Posts By Tim

Climate Change and the Common Law

The recent line of climate change cases presents the question of whether climate change is sufficiently unique to enjoy immunity from tort law. It would seem odd to think that it is. The rules of tort are well established, and courts have historically applied these rules to fill in the gaps in federal environmental legislation. Yet, every district court to consider these claims has held that they raise non-justiciable political questions committed to the political branches. This note examines the political question doctrine and its application to public nuisance claims asserted in climate cases. It concludes that “the thicket of global warming” does not present a political question, and that courts have been too quick to embrace the political question doctrine as grounds dismissing these causes of action.
The Cases: Public nuisance or political question?
In American Electric Power, state plaintiffs sought an injunction to reduce GHG emissions from six coal-fired electricity plants. The threshold question in the case was whether such a remedy presented a nonjusticiable political question outside the scope of the court’s jurisdiction – in short, whether the court could impose a cap on the defendants’ GHG emissions. The political question doctrine requires federal courts to avoid deciding matters better left to the political branches. The district court dismissed the case on this ground, noting that the injunction was “impossible” without an “initial policy determination”: namely, the “identification and balancing of economic, environmental, foreign policy, and national security interests,” which the court determined to be a question for the political branches, not the judiciary.
The Second Circuit vacated the dismissal. It emphasized the absence of a “textually demonstrable constitutional commitment” of the nuisance issue to a political department, and that judicial standards were capable of crafting an appropriate injunction. It further rejected the defendants’ arguments that allowing the case to proceed would result in a national emissions policy or undermine the separation of powers. Because the EPA had not yet regulated greenhouse gas emissions in such a way that “speaks directly” to the issue that the plaintiffs raised, the federal common law of nuisance was an appropriate cause of action.
The state plaintiff in California v. General Motors Corp., charged various automakers with the public nuisance of “creating, and contributing to . . . global warming.” Unlike the state plaintiffs in American Electric, California sought compensation for damages it would incur as a result of global warming. Distinguishing American Electric as a suit for equitable relief, the district court determined that it could not hear California’s claim for damages without an “initial policy determination” from the executive or legislature. The court further concluded that the California’s claim was nonjusticiable because it implicated interstate commerce and foreign policy, areas constitutionally committed to the political branches of government. With the case awaiting review by the Ninth Circuit, the federal government stepped in. EPA acknowledged that “greenhouse gases are a public health danger and must be regulated,” and the President directed the Department of Transportation to “establish higher national fuel efficiency standards in line with the standards California had sought to implement.” Consequently, California voluntarily dismissed its appeal in 2009.
Climate change, as Chief Justice Roberts observed in his dissent in Massachusetts v. EPA, “may be a crisis, even the most pressing environmental problem of our time.” One problem with climate change is that its causes and effects are not equally distributed. It is caused much more by some than by others. While its impacts are global, its costs are distributed unevenly, bearing most acutely on the poor and the politically disenfranchised. Some have nowhere to turn but to the courts. For example, in City of Kivalena v. Exxon Mobil, the Alaska Native Village of Kivalena brought nuisance claims against a dozen energy companies. The plaintiffs claimed that the defendants’ GHG emissions contributed to global climate change, rendering their coastal village uninhabitable. The plaintiffs sought compensation for the estimated $400 million it would cost to relocate their entire community before it melts—schools, churches, streets, businesses, and polar bears —into the
Arctic Ocean. Finding that these allegations presented a non-justiciable political question, the Northern District of California dismissed the case.
In Comer v. Murphy Oil USA, fourteen private citizens filed a class action law suit against 147 oil, chemical, power, and insurance companies in Mississippi, for their contribution to the destruction of plaintiffs’ private property. Plaintiffs alleged that by emitting greenhouse gases, defendants contributed to increased sea levels and Hurricane Katrina’s increased ferocity, which in turn damaged the property in question. Proceeding under state common law claims, The Fifth Circuit ruled that these claims did not present a nonjusticiable political question.
In its analysis, the Comer court explained why public nuisance claims for climate change impacts must be considered justiciable, at least for the immediate future. The court noted that until the federal government responds to the climate change issue with legislation or regulations, “there is no commitment of those issues exclusively to the political branches of the federal government by the Constitution itself or by federal statutes or regulations.” Even if Congress does enact comprehensive GHG legislation, it might very well preserve state common law remedies, as the CWA did. Thus, while the EPA’s recent regulatory actions may preempt claims under federal common law, nothing in the Clean Air Act prevents future tort claims under state law. Consequently, common-law climate change litigation remains a viable action-forcing mechanism.
Expressly deciding not to “enter the global warming thicket,” district courts dismissed each case as presenting a non-justiciable political question. In other words, the cause of action was dead on arrival. There was no answer, no discovery, no hearings, no proof, and no opportunity for the plaintiff to present her case. Case closed. The courts reasoned that federal courts lack jurisdiction over climate cases because climate change is textually committed elsewhere, there are no judicial standards to apply, and the elected branches have yet to render an initial policy determination about the subject. These summary conclusions seem inaccurate, and inappropriate in light of how the doctrine has been applied in the past.
The political question doctrine does seem applicable to a very narrow class of cases. Applying the doctrine involves “a delicate exercise in constitutional interpretation” to be conducted on a “case-by-case inquiry.” It is to be used sparingly in the context of demonstrable “political questions”devoted to the elected branches, not simply to cases that involve political issues. Indeed, the Supreme Court has used the doctrine only six times in more than two centuries. Traditional questions into which courts “ought not enter the political thicket” include political apportionment and gerrymandering, impeachment, constitutional amendments, and treaty abrogation. Even among clearly political cases it is rarely raised. For example, the Court made no mention of the doctrine while resolving issues arising from Florida’s recount of votes in the 2000 presidential election, despite the fact that the Constitution vests in Congress the authority to count electoral votes, and further provides for selection of the President by the House of Representatives if no candidate receives a majority of electoral votes.
Ideally, Congress would address climate change. It could force the energy and automotive industries to adopt clean technologies or bare the economic externalities of their climate-altering activities. It could apportion the costs of the property damage, health care, and community relocation resulting from climate change. Sadly, it does not seem that such measures are likely anytime soon. Some states have responded with their own measures to reduce GHG emissions. But states have little means either to require technological solutions or to recover their response costs. The costs to states and individuals for responding to climate change will likely be unlike anything we have seen in kind or degree. And without a comprehensive system for allocating those costs, this much we can count on: the most-damaged states and individuals will also be the poorest.
Potentially, these litigations could help to shape a viable legal and policy framework for climate change in the United States. By resolving issues of liability and remedies in the court system, these suits may succeed where the federal government has failed in seeking to merge environmental protection and human injury into an actionable legal theory. Since Georgia v. Tennessee Copper, federal common law for public nuisance has served as a meaningful cause of action for states and individuals to stop harmful interstate pollution and recover their costs. Climate change seems like a natural fit for the doctrine. It is indifferent to political boundaries. Legislation providing for injunctive measures or compensation is nonexistent. A hodgepodge of state common law would lack consistency. And of course, the common law is not without its own problems. Federal common law is unwieldy and nebulous. It is hardly the only or most efficient societal response to climate change. But it is a valid response. Climate cases, if they are to fail, should fail on other grounds, such as plaintiffs’ failure to prove causation, or that its damages are “unreasonable,” or because the claims have actually been displaced by an appropriate act of Congress or the executive.
Access to the judicial process should trump concerns about the future implications of a positive verdict for two main reasons. First, political question challenges occur early in the process, well before plaintiffs have the chance to gather and present evidence in support of their claims. In cases hinging on a nexus between the defendant’s contributions to climate change and the plaintiff’s injuries, most plaintiffs are unlikely to survive summary judgment. In this context, the elements of nuisance — causation and unreasonableness – seem particularly difficult to prove. Plaintiffs do, however, deserve access to discovery to help establish their claims.
Second, even when some plaintiffs eventually prevail, the implications could be limited. For instance, the district court could have crafted its holding to apply only to the residents of Kivalina. Alternatively, multidistrict litigation could help keep the amount of cases manageable, or courts could adjust tort compensation schemes for climate change rulings. In any event, no decision a court might issue would prevent Congress from preempting it, for example, by setting a standard level of emissions below which companies could not be held liable. Simply allowing discovery to occur in these cases will add to the costs and risks of emitting large amounts of greenhouse gases for corporations, perhaps prompting them to take mitigating actions. If the costs and risks are great enough, it might even prompt Congress to pass national legislation.
Certainly the complexities of climate change would be better addressed through comprehensive legislation and planning. Yet until this happens, a court can apply tort law. Compensation schemes and equitable remedies could be adjusted specifically for climate change-related damages. In turn, Congress can override any illogical or unreasonable court decisions by passing legislation.
In conclusion, the Constitution does not reserve climate change to Congress or the executive. Federal common law contains a long history of judicial standards in cases involving interstate pollution disputes. The elected branches have made initial policy determinations about climate change policies. Furthermore, there is good reason to question whether the political question doctrine was ever meant it to be applied to federal common law in general, and to climate cases in particular. While federal common law is not the ideal way to resolve the problems of climate change, it is still a legitimate forum for these plaintiffs. Until Congress passes climate change legislation, political question doctrine does not warrant the dismissal of their cases.

Roadless Rule Update

Administrative rulemaking is a challenging way to manage public lands. The relative ease with which each new administration can reverse policy is particularly troublesome with regard to the conservation of roadless areas. The history of wilderness preservation shows that however sincere the promises of protection in administrative orders and plans may be, “anything less than statutory protection is temporary at best and illusory to boot.” Proponents of the Wilderness Act, who also sought lasting protection for the nation’s wilderness areas, specifically curbed administrative discretion to expand or eliminate wilderness areas. Congress retained the right to designate wilderness areas proposed by the administrative agencies. By contrast, while the 2001 Roadless Rule was designed “to provide lasting
protection for inventoried roadless areas within the National Forest System,” the past decade of litigation has frustrated that goal.
The failure of the executive branch and judiciary to manage these areas consistently is most problematic from the viewpoint of conservation. It only takes one road to end an area’s roadlessness. Roads may invite logging and development; as a result, the areas are no longer “untrammeled by man . . . with the imprint of man’s work substantially unnoticeable,” and the qualities that might qualify them for future inclusion in the National Wilderness Preservation System are destroyed. In short, agency management puts conservation at a perpetual disadvantage because development is often permanent. Roads cannot be built and then removed after every four-year election cycle.” Nevertheless, perhaps due to methodological or philosophical differences, or perhaps due to political pressure, Congress has stayed out of the fray, relegating the fate of 58.5 million acres of public forest to the administrative and judicial arenas. Part I of this paper examines the current state of the roadless litigation and the problems it exposes with regard to agency-judiciary governance of national forests. Part II traces these problems to a lack of clarity in the statutory provisions that guide the Forest Service. Part III concludes with a discussion of how the administrative rulemaking process might be improved to make it a more effective tool for resolving the kind of value-laden issues posed by the roadless debate.
I. The Roadless Litigation
The state of the roadless rule is currently indeterminate, as the Ninth Circuit upheld it on substantive and procedural grounds, while the unfavorable Wyoming decision remains on appeal to the Tenth Circuit. So it is possible that two western courts of appeals may uphold the original roadless rule; or we may have a circuit split and have to wait for the Supreme Court to sort it out.
A. California v. USDA and Wyoming v. USDA
In California v. USDA , the Ninth Circuit set aside the Bush administration’s State Petitions Rule for violating NEPA and ESA, and reinstated the Clinton administration’s Roadless Rule. The USDA argued that it was not legally obligated to prepare an EIS under NEPA because the rule fell within a categorical exclusion for “purely procedural” rules. The court rejected this argument, noting that because the State Petitions Rule removed the Roadless Rule from the Code of Federal Regulations and reinstated the prior regime of localized management under individual forest plans, it was not merely “procedural.” Such a drastic measure, the court reasoned, qualified as “substantive” action and triggered environmental analysis under
NEPA. The court cited its opinion in Kootenai Tribe v. Veneman, which found that the Roadless Rule had a demonstrable impact on the environment and provided greater substantive protections to roadless areas than the individual forest plans it superseded.174 Bound by this
precedent, the Ninth Circuit rejected the USDA’s arguments that the Roadless Rule was never meaningfully in effect. As the State Petitions Rule completely replaced subpart B of 36 C.F.R. § 294 (which contained the Roadless Rule), it amounted to a repeal. The Ninth Circuit also rejected the USDA’s reliance on the Wyoming District Court’s injunction to argue that the replacement of the Roadless Rule was simply procedural. Given that the Wyoming injunction is currently on appeal to the Tenth Circuit, the USDA was unreasonable to ignore the possibility that the Tenth Circuit would reverse and reinstate the Roadless Rule. Of course, it is also possible that the Tenth Circuit will affirm the injunction. But the Ninth Circuit undermined the significance of that potential outcome, dismissing the USDA’s claim that the Wyoming injunction nullified the Roadless Rule in all jurisdictions.
Intriguingly, the USDA also argued that the district court abused its discretion by reinstating the Roadless Rule (by the court’s own logic, a substantive action) as the remedy for the procedural inadequacies of the State Petitions Rule. The court rejected this argument as well, noting that NEPA permits invalidation of violative rules, and that under the APA “[t]he effect of invalidating an agency rule is to reinstate the rule previously in force.” The court also found that it was not bound by the State Petition Rule’s severability clause. Finally, the court observed that the FS remains free to change its approach to roadless area management at any time, as long as it complies with NEPA and ESA in doing so. This last point —that the Forest Service may change its approach to roadless area management—highlights the issue at hand. Administrative rulemaking is not effectively protecting roadless areas pending wilderness designation.
II. Accountability, Politics and Administrative Rulemaking
A. The Forest Statutes
This is a management problem. The statutory provisions that guide the Forest Service lack clear directions for how the agency should resolve what are essentially value-laden political issues. The 1897 Organic Act, for example, states in part that “(n)o national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States.” This broad mandate provides little resolution because some interest groups emphasize the “protect” and “water flows” provisions while others highlight the “supply of timber” component.
Compared to the Multiple Use Sustained Yield Act of 1960 (MUSYA), the Organic Act is a paragon of clarity. Through MUSYA, Congress formally charged the FS with administering the national forests for multiple uses, namely, outdoor recreation, range, timber, watershed, and wildlife and fish purposes.” The statute contains relatively little direction as to how forest managers should balance these uses. They are to manage for multiple use and sustained yield, the latter meaning “the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land.” Sadly, the statute does not prioritize between these values, leaving the agency without a consistent or coherent mission. For instance, what are the needs of the American people and what constitutes the most judicious use of the land? What does providing “due consideration” of “the relative values of the various resources in particular areas” actually mean?
Perhaps most problematic is the Act’s failure to specify the spatial scale for implementing multiple uses: should uses be balanced on a forest-by-forest basis, or at the national forest level? This is not to say that MUSYA was a failure, as the multiple use requirement proved to be a major challenge for the FS in its efforts to focus primarily on timber mining. But its ambiguity has been used by the FS to justify everything from designating 58.5 million acres as protected roadless areas to proposing an 8.7 billion board-foot timber sale in the Tongass National Forest. The timber industry could accommodate multiple uses, according to the FS. For example, in Montana’s Bitterroot National Forest, the agency embraced clearcutting as a way to simultaneously achieve its timber, wildlife, and recreational hunting purposes, by providing “beneficial openings” for browsing game species.
A similar policy in the Monongahela National Forest prompted the famous Fourth Circuit ruling that the Organic Act prohibited clearcutting in national forests. Congress responded with the National Forest Management Act of 1976 (NFMA). Primarily a planning-based statute, the NFMA called for new interdisciplinary processes and expanded opportunities for public participation. The NFMA also set limits on the size of clearcuts and required the FS to “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives.” The NFMA has been criticized as failing to provide the FS with any intelligible standards for its timber management policy, a result of Congress’s commitment to avoiding responsibility for difficult resource management decisions.
One consequence of statutory ambiguity is that many important policy and management decisions are relegated to the administrative rulemaking process. At its best, rulemaking can be seen as a type of practical compromise between general legislative ideals and on-the-ground localized reality. How well it performs this role is of great importance to public land policy and the conflict it generates.
B. The Roadless Rule
While Congress is the most appropriate body for resolving issues like this, the simple reality is that when Congress cannot organize a majority, or simply abandons its responsibilities, the decision-making is left with the FS. Regardless of how the courts ultimately decide the NEPA issue, the fact remains that roadless rulemaking is within the constitutional and legal discretionary authority of the FS. Article IV, section 3 of the U.S. Constitution, the Property Clause, states, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” The federal government has proprietary and sovereign powers over its property (including public lands) and may regulate activity on private lands that affect its public lands. The scope of the Property Clause has been debated, but the courts have consistently read the Clause broadly, going so far as to say that this congressional power over public lands is “without limitations.” Congress has power over national forest management and has exercised that power in this case by giving it to the FS.
This is not necessarily a bad thing. The roadless rulemaking process, though exasperating and deeply flawed, is still a workable and legitimate source of law in our administrative state. Steps can and should be taken to improve it. After all, discretion cuts both ways: the broadly written forest laws have allowed the FS to build more than 380,000 miles of roads in the forest system–and they also allow the FS to stop building any more.
III. Improving the Process
Roadless areas represent different values to different groups: some view them as economic resources to be exploited, some emphasize their recreational value, others recognize their ecological significance, and still others focus on the spiritual values associated with these lands. These values animate the two main viewpoints on roadlessness, which academics have called the “roadless issue” view and the “roadless resource” view. The “roadless issue” group sees roadlessness as a “designation which should cease to exist,” arguing that land should either be designated as wilderness or opened up to multiple use, while the “roadless resource” group wishes to protect the valuable roadless resource for its own sake.
1. Forest Planning
Critics of the original roadless rule claimed that roadless issues should be resolved through the traditional forest planning process, in part because of President Clinton’s controversial role in the rule’s initiation. On this view, the forest planning process is assumed to be value-and decision-neutral, which it is not. The FS has historically emphasized intensive management and timber mining over other values, such as basic economics and diversity. Furthermore, it was the forest planning process that led to 58.7 percent of inventoried roadless areas being “allocated to a prescription that allows road construction and reconstruction.” It may be that those defending forest planning as a way to deal with the roadless issue are really defending roads and not the planning process. For them, there is not much difference between policy substance and process: the rule means no more roads and the forest planning process means more roads. In reality, however, the difference is important. NFMA planning regulations call for decision making at the appropriate scale, and the FS saw the roadless issue as one that should be addressed nationally. This makes sense. Given trends in habitat fragmentation and administrative priorities like ecosystem management, some issues go beyond the purview of individual forests. Sometimes it is necessary to make decisions on a national basis.
2. Public Participation
The role of public participation in the rulemaking process is a central theme in the roadless debate. Proponents of the Clinton rule are quick to point out the record-breaking number of comments generated by the DEIS, and credit public input for the decision to include the Tongass in the FEIS. But opponents make the argument–one that is often made by the environmental community with other issues–that the rule was predetermined and an example of the “decide, announce, defend” model of decision making. The ambiguous role of public participation in rulemaking compounds the problems stemming from the ambiguity of the forest statutes. The “content analysis team,” responsible for analyzing the public comment on the roadless rule, makes this point. The team noted that many commenters believed that the FS should be guided by the majority opinion, but differed on what they believed constituted the majority opinion. Many comments argued that some voices should count more than others because certain segments of the population were disproportionately impacted by the rule. Some believed that the public had spoken loud and clear and that the rule should be implemented accordingly. Others contended that the rule was fixed from the outset and questioned the integrity of the whole public comment process in general. Some questioned the validity of the self-selecting nature of the public comment process. Many writers insisted that a nationwide vote should be held.
Overall, the FS procedure for gathering and weighing public input does not exactly imbue the process with clarity. Comments are basically non-committal, and their self-selected writers might not represent the sentiments of the entire population; there is no criteria for assessing public input beyond the agency’s generic assurance that “that every comment is considered at some point in the decision process.”
3. Legislative Measures
Unless and until Congress clarifies the central purpose of our forests and the core mission of the FS, the FS will continue to be dogged by procedural and decision-making inefficiencies.
There are a number of ways in which Congress can act to direct the Forest Service to protect roadless areas more permanently. It could codify the original 2001 roadless rule into law. It could and should amend the Wilderness Act to expand protection for roadless areas. For example, an amendment could provide for periodic reviews, and include different levels of protection for different kinds of wilderness. Third, Congress could Amend NFMA to require that forest service planning take roadless values into account. Such an amendment could create a strong presumption that roadless areas remain roadless, and require specific findings to overcome that presumption, subject to judicial review. Amending the NFMA in this manner would still allow for flexibility in roadless area decision making, but it would set a baseline of protection.
Sadly, Congress is unlikely to pass meaningful roadless legislation anytime soon. The tremendous sway of commodity and recreation interests, combined with Congress’s general inability to agree on anything, are serious barriers to legislative action. Ultimately, the roadless resource will continue to be addressed through the administrative and judicial process.
3. Electronic Rulemaking
The technical nature of rulemaking often limits the extent of public input to experts and interest groups that have the necessary knowledge, time, and resources to fully engage in the process. Electronic rulemaking might provide a politically feasible way to make the process more transparent and accessible. Electronic commenting is already being tried by other federal agencies, including the EPA, the DOT, and NOAA. The problem with notice and comment rulemaking is that it relies on one-way communication. Little or no dialogue takes place between the public and agency. Online rulemaking could change that. Internet-accessible dockets, for example, could give the public easy access to important information, increase transparency, and facilitate the sharing of information. Public comment blogs could also lead to interactive discussion, as commentators could read and respond to other comments accessible online. Lastly, the FS could refocus its website to educate the public about proposed rules and their scientific and legal context, with hyperlinks to primary sources — the scientific studies, maps, legal instruments, and internal documents it used to design the rule. This could increase the quality of comments received and help the public understand their role in this process. One purpose of e-rulemaking, then, might be to find better ways to integrate scientific knowledge and public values in environmental decision making.
4. Expanded Scoping
FS use of public input, whether through NEPA scoping or notice-and-comment rulemaking, is usually very restricted and circumscribed. The public is asked to comment on specific and often highly technical topics. This is especially true at the beginning of the EIS process. Inevitably, much of the comment received by the agency is not solely focused on the decision at hand. This kind of non-technical, often value-laden and personal comment is usually deemed irrelevant to the decision and discarded. This practice was probably necessary in the traditional forest planning process. At the same time, these types of comments should have a place in the rulemaking process. Another possibility, made increasingly feasible by the online forums discussed above, is to expand the scoping process to make it more inclusive. For example, blogs could be used to facilitate discussion of future resource scenarios or to maintain an ongoing public conversation between stakeholders and the agency. Scoping in this way could encourage important and relevant dialogue that might go beyond a particular project, proposal, or rule. Lastly, by expanding the permissible discourse, this type scoping could give the public a greater say in what types of issues need to be addressed. As the Wyoming and Idaho district courts emphasized, the use of scoping by the FS left a lot to be desired on both sides of the debate. Its broadened use, therefore, should be embraced by a wide variety interests.
In conclusion, the roadless debate illustrates a pattern in natural resource management. Vague or contradictory laws leave important policy questions unanswered, so agencies try to answer these questions through the rulemaking process. The agencies are sued. Courts answer the policy questions avoided by Congress, and are either championed as guardians of the earth or vilified as judicial activists. The bottom line is that something is not right. Important national issues are being decided by unelected judges and interest group litigants at the exclusion of the citizenry. We need a productive debate on how to fix this.

CWA Jurisdiction, Rapanos and Raich

Congress enacted the 1972 Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” To achieve this goal, the CWA created a framework that uses Water Quality Standards, Total Maximum Daily Loads (TMDLs) for non-point source pollutants, and a system of permits that must be acquired before dredged or fill material can be discharged from a point source into navigable waters. These provisions were intended to create “a comprehensive approach to regulating pollution and improving the quality of the nation’s waters,” and to guide states towards national water quality goals.
Central to the CWA is its prohibition against “discharge of any pollutant by any person” into covered waters, subject to a series of exceptions. One of these exceptions, which is most frequently implicated in the context of wetland management and use, is section 404 of the CWA, which requires that:

Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced [is] required to have a permit [issued by the Army Corps of Engineers.]

Section 404 of the CWA has been referred to as “the centerpiece of federal wetlands regulation,” and as “the most significant federal regulatory scheme related to wetlands protection.” The Environmental Protection Agency (EPA) holds primary responsibility for administering the CWA. How-ever, section 404 of the CWA is co-administered by the Army Corps of Engineers. The substantive criteria used in determining when a section 404 permit should be granted are set out in regulations which the EPA and the Corps promulgate together, and the permit program is subsequently administered by the Corps alone. Additionally, the EPA has “veto” authority over the Corps’s permitting decisions, and both agencies have enforcement authority. The scope of the Corps and EPA’s jurisdiction is described as “navigable waters.” The CWA defines “navigable waters” cryptically, as “the waters of the United States, including the territorial seas.”
It has never been clear how wetlands fit into that category. Wetlands have been problematic in the context of section 404, in part because although a wetland has a biological and ecological identity, the term, as it is used in section 404, is “jurisdictional in nature, not scientific.” Only wetlands whose use affects interstate commerce are subject to CWA jurisdiction. The Corps traditionally asserted broad jurisdiction over wetlands, included: (1) wetlands that were used or could be used by migratory birds, and as such could affect interstate commerce (the “Migratory Bird Rule”); (2) wetlands that abutted surface watercourses, and; (3) wetlands adjacent to surface water courses.
Adjacent wetlands were broadly construed, as “areas inundated or saturated by surface or groundwater at a frequency and duration sufficient to support … a prevalence of vegetation typically adapted for life in saturated soil conditions.” This broad interpretation of the Corps’ jurisdiction over wetlands held sway with the Court until the mid nineties. For example, in the 1986 Riverside Bayview Homes case, the Court upheld the Corp’s jurisdiction over “marshy land” near Lake St. Clair in Michigan, on the theory that the property constituted an “adjacent wetland” under the Corps’ 1975 regulations. Noting that the Corps’ construction of the statute was “entitled to deference if . . . reasonable and not in conflict with the expressed intent of Congress,” the Court examined the legislative history of the CWA, and found that Congress had deliberately adopted an expansive definition of “waters” to reflect the broad underlying purposes of the CWA. Writing for the majority, Justice White’s observed that Congress had designed the CWA to “create a mechanism by which to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Citing the broad systemic purposes of the CWA, and acknowledging that evidence presented by the EPA demonstrated the close hydrological and ecological connections between wetlands and nearby waters, the Court determined that the Corps’s conclusion that section 404 applied to adjacent wetlands was reasonable.
Wetlands to Seasonal Puddles: SWANCC, Raich, and Rapanos
The Court’s 2001 decision in SWANCC was heavily influenced by its decisions in two Commerce Clause cases that, at that time, were relatively new. In United States v. Morrison and United States v. Lopez, the Court “reaffirmed the proposition that the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited.” These decisions were highly relevant to the outcome in SWANCC because it was the commerce power that Congress relied on for the authority to regulate navigable waters through the CWA. The Court determined that the Corps’ use of the commerce clause to regulate isolated wetlands because they provided habitat to migratory birds “invoke[d] the outer limits of Congress’s power. In such a situation, the Court decided, the Army was required to provide a “clear indication that Congress intended that result,” and to demonstrate that a “significant nexus” existed between the isolated wetlands and “navigable waters.” The Court found that the required nexus was lacking in SWANCC, where the wetlands at issue were not directly adjacent to any waters covered by the CWA. The SWANCC decision thus eliminated CWA jurisdiction over “isolated, intrastate, non-navigable waters where the sole basis for asserting CWA jurisdiction is the actual or potential use of the waters as habitat for migratory birds.'”
In 2005, the Court broke the Lopez / Morrison trend towards a narrower Commerce Clause with its decision in Gonzales v. Raich. Raich involved California’s Compassionate Use Act (CUA), which permits the use of marijuana for medical purposes. The Act exempts from criminal prosecution those who possess or cultivate marijuana for medical purposes upon the approval of a physician. The respondents in Raich were using marijuana in accordance with the CUA but were nonetheless prosecuted under the federal Controlled Substances Act (CSA). The question for the Court was whether the provisions in the CSA prohibiting personal use of marijuana for medicinal purposes were valid exercises of Congress’s Commerce Clause authority. The Court held that the CSA was within the bounds of Congress’s commerce power. The majority distinguished Lopez, arguing that, unlike the Gun Free School Zone Act at issue in that case, the CSA “was a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of . . . ‘controlled substances.'” Although the respondents’ personal use of homegrown marijuana was concededly a purely intrastate activity, the Court found that the federal prohibition of this activity was part of “a larger regulation . . . in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Accordingly, the Raich Court upheld CSA jurisdiction over purely intrastate activities to be valid as an essential part of a broader regulatory scheme.
Even before Raich’s broad interpretation of the commerce power, lower courts had tended to interpret SWANCC narrowly; they read it as restricting the Corps’s jurisdiction over wetlands only where jurisdiction “turned solely on the potential presence of migratory birds.” In 2006, disagreement among the circuits as to the scope of SWANCC prompted the Supreme Court to grant cert on a pair Sixth Circuit decisions “that upheld federal jurisdiction over wetlands adjacent to non-navigable tributaries of navigable waters” – Rapanos and Carabell (consolidated) (“Rapanos.”).
The five opinions in the Rapanos expose sharp divisions among members of the Court about the scope of the CWA and leave some doubt as to the current state of the law. Writing for a four person plurality, and relying primarily on a 1954 edition of Webster’s New International Dictionary, Justice Scalia found that “[“waters of the United States’] includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features’ that are described in ordinary parlance as “streams[,] … oceans, rivers, [and] lakes.” He conceded that there was an “inherent ambiguity” in attempting to draw a line between water and land, and so he deferred to the Corps’ decision to include wetlands that actually abut “traditional navigable waters.” Beyond this, however, he refused to recognize the Corps’ authority. He wholly rejected the dissent’s claim that Congress acquiesced to the Corps’ rules, and that those rules merit deference under the Chevron doctrine. Regarding the issue of deference, he found that whatever ambiguity might exist with respect to the meaning of the phrase “waters of the United States,” it does not extend to “whether storm drains and dry ditches are “waters.'”
Rapanos was inconsistent with the underlying purpose of the Clean Water Act. A predicate of the Act … has been that clean water and related wetland values inhere to the entire nation and that a federal program is necessary to protect, restore, and maintain them.” The plurality adopted a strict textualist + selective use of dictionary approach, arguing that to allow the Corps the jurisdiction it sought would leave the term “navigable” without any significant meaning. It further asserted that the use of “waters” indicated that the statute refers only to relatively permanent waters such as oceans, rivers, lakes and other bodies of water which form more conventional geographic features.
This approach is problematic for at least two reasons. First, the plurality disregarded the substantial body of scientific evidence indicating that wetlands affect all the bodies of water in proximity to them, such that any jurisdictional separation between traditionally “navigable waters” and the wetlands near them is essentially meaningless. Second, the plurality ignored the fundamental and explicit goal of the CWA, to create a comprehensive scheme to maintain the integrity of the nation’s water systems as a whole, an objective requiring that wetland preservation be taken into account.
In addition, Rapanos is inconsistent with the Court’s 2005 decision in Raich. Although Rapanos deals with the reasonableness of the Corps’s interpretation of its jurisdiction under section 404 and not the constitutionality of section 404 itself, the Court addressed the Commerce Clause issue in dicta. According to the Rapanos plurality, “The extensive federal jurisdiction urged by the Government would authorize the Corps to function as a de facto regulator of immense stretches of intrastate land.” The plurality argued that “the Corps’ interpretation stretches the outer limits of Congress’s commerce power and raises difficult questions about the ultimate scope of that power,” thus suggesting that Congress was without authority under the Commerce Clause to regulate wetlands adjacent to tributaries.
This view does not comport with the Court’s decision in Raich. In Raich, the Court explained that congressional regulation of intrastate activities was a valid exercise of Congress’s commerce power where it was an essential part of a comprehensive statutory framework regulating an activity which had substantial effects on interstate commerce. The use of the nation’s waterways for transportation and commerce, for the production of power and municipal water supplies, and for protecting ecological resources, plays a central role in interstate commerce and in the health of the national economy. Further, the dredge and fill activities regulated by section 404 are typically engaged in by “commercial actors for a commercial profit.” If the CWA cannot regulate the use of wetlands that have a hydrological connection to navigable waters, an essential mechanism for protecting the integrity of the nation’s waterways as whole. If the integrity of the nation’s waterways is not protected, activities that rely upon those waterways will be restricted to an unpredictable degree. The result could substantially, even catastrophically, affect interstate commerce.
Congress recognized that watersheds do not conform to political boundaries, and that the degradation of waterways, therefore, was necessarily an interstate matter. In response it promulgated the CWA. The CWA create a comprehensive framework for regulating point sources of water pollution so as to prevent these types of situations from arising. The Corps’s interpretation of its jurisdiction under section 404 of the CWA does not “push the outer limits of Congress’s commerce power,” but rather fits squarely within the conception of Congress’s authority advanced by the Court in Raich. Given the interconnected and cyclical nature of water systems, regulation of these wetlands is a federal matter, fully within Congress’s purview under the Commerce Clause.
Raich seemed to suggest that the Court was more prepared than it had been to accept this kind of broad conception of the commerce power. Raich was a marked departure from Lopez and Morrison. Arguably, it signaled a return to the Court’s anti-revisionist, deferential reading of federal authority over isolated, purely intrastate, activities, where such regulation served a broader legislative purpose. Even in light of the concerns about federal intrusion on areas of traditional state sovereignty, Raich suggests that “not all intrastate concerns traditionally reserved to state regulation should necessarily remain so, particularly where Congress has enacted a comprehensive statutory scheme.” Indeed, if Raich is to be reconciled with Lopez and Morrison, it must mean what it says: where Congress enacts a comprehensive framework for advancing a national purpose, and that purpose could be undercut unless intrastate activities are regulated, it is a valid exercise of the commerce power to regulate those activities. As it is difficult to imagine a more comprehensive statutory scheme than the framework for managing the nation’s waters set forth in the Clean Water Act, it seems that the Corps’ assertion of CWA jurisdiction in Rapanos should have received the same level of deference given to the CSA in Raich.
At a broader level, Rapanos is a case about the inherent conflict between the national need to preserve ecological resources, and local desires for the employment and tax revenue that comes from developing wetland real estate, on the other. This tension makes a strong case for a prominent federal role in wetlands protection. Yet local governments seem best equipped to understand local needs and the relationship between particular wetlands and local economies. At the very least, wetlands regulation could benefit with active participation from state and local governments. As the plurality noted, when one considers a hydrological model in which all wetlands affect the water bodies around them, “even the most insubstantial hydrologic connection may be held to constitute a ‘significant nexus.'”
In response to the Court’s decisions in Rapanos and SWANCC, Congress attempted to amend the CWA so as to give the Corps jurisdiction over isolated and adjacent wetlands, thus resurrecting the wetlands protection lost as a result of SWANCC. The 110th Congress intro-duced, but did not enact, the Clean Water Authority Restoration Act of 2009. The CWRA is currently under consideration by the 111th Congress. This bill would delete the term “navigable” from the CWA, codifying the Corps’s jurisdiction over “waters of the United States.”
This approach is misguided for several reasons. First, the Court’s dicta in Rapanos and its other recent CWA cases suggest that it might strike down such legislation as unconstitutional under the Commerce Clause. The decisions in Lopez and Morrison marked a distinct change in its Commerce Clause jurisprudence, suddenly curtailing a Congressional power that had ballooned without check for more than a hundred years. The Court’s decision in Raich did appear to reverse or at least limit that new trend, but the fact that the Court was unwilling to accept Corps jurisdiction in Rapanos, even after Raich, suggests that the Court is likely to apply a relatively narrow, Lopez-like reading of the Commerce Clause to an amendment like the CWRA, particularly to the extent that the amendment is justified under Congress’s power to regulate intrastate activities having a substantial effect on interstate commerce. In light of the Court’s reluctance to allow the kind of comprehensive authority necessary for a truly effective federal wetlands protection program, a legislative solution aimed at fostering the development of strong state wetlands protection programs may prove more effective than adding language to the federal statute.

Frackwater Rising: Application of NEPA and ESA to Hydraulic Fracturing Operations in the Marcellus Shale

The Marcellus Shale has the potential to be one of the largest natural gas plays in the United States, and its successful development appears to entail widespread use of horizontal well drilling and hydraulic fracturing. While the oil and gas industry asserts these technologies are safe, the environmental impacts associated with extraction remain unknown. In light of the current regulatory framework under NEPA and the ESA as applied to hydraulic fracturing activities on federal lands, particularly on federal lands overlying privately-held mineral estates in the Marcellus, the lack of information about environmental impacts is not surprising. It’s a problem.
Natural gas extracting using horizontal drilling and hydraulic fracturing has been underway in Wyoming, Texas and Colorado, among other states, since the early 2000s. In 2005, Congress exempted hydraulic fracturing from regulation under the Safe Drinking Water Act as part of the Energy Policy Act. Specifically, Congress modified the definition of “underground injection” to exclude “the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.” As a result of this exemption, EPA cannot use the SDWA to regulate hydraulic fracturing unless it can show the use of diesel fuels, and energy companies engaged in hydraulic fracturing are not required to disclose any information about the chemicals they pump into the ground.
A 2008 study in Colorado concluded that the methane gas tapped by drilling had migrated into dozens of water wells, possibly through natural faults and fissures exacerbated by hydraulic fracturing. In Illinois, geologists have documented methane gas seeping underground for more than seven miles – several times what industry spokespeople say should be possible. In another case, benzene, a chemical sometimes found in drilling additives, was discovered throughout a 28-mile long aquifer in Wyoming. In New York, there is a moratorium on drilling while the state reviews public comments on a proposal to extract gas from the Marcellus.
In May 2009, EPA Administrator Lisa Jackson said that she found allegations of drinking
water contamination linked to hydraulic fracturing “startling” and told members of Congress that
it may be time to take another look at the safety of the hydraulic fracturing process. EPA hired
a consulting firm to survey media reports and publicly available documents describing several
cases of drinking water contamination allegedly linked to hydraulic fracturing. Based on this
review of available literature, the firm concluded that 12 of the contaminant cases examined
“may have a possible link to hydraulic fracturing, but, to date, EPA has insufficient information
on which to make a definitive decision.”
The conference report for the Department of the Interior, Environment, and Related
Agencies Appropriations Act for Fiscal Year 2010, signed into law on October 30, 2009,
requested that EPA conduct a new scientific study of the hydraulic fracturing process.
Specifically, the report states that EPA is to “carry out a study of the relationship between
hydraulic fracturing and drinking water, using a credible approach that relies on the best
available science, as well as independent sources of information.” Implementation of the requested study began in March, 2010.
Meanwhile, in Pavillion, Wyoming, EPA, using its authority under CERCLA, has been
testing residential and municipal wells, in response to community concerns about declining
drinking water quality. The first phase of testing found hydrocarbons and 2-butoxyethanol, a foaming agent used in hydraulic fracturing fluids, in several wells. While EPA has been unable
to “pinpoint any specific source at this time,” the agency acknowledged a potential connection
between this contamination and nearby oil and gas production activities.
The Shale
The Marcellus Shale extends from west central New York on a northeast to southwest trend down into Pennsylvania, Ohio, and West Virginia, with minor portions of the eastern side of the basin extending into Maryland and Virginia. A highly organic black shale, the Marcellus was formed when a shallow continental seaway existed in the area that now makes up the eastern United States west of the Appalachian Mountains. The interior seaway was a result of the African Plate and the North American plate colliding approximately 380 million years ago. The Marcellus Shale was deposited in a deep trough basin (below the pycnocline, a layer in water bodies below which a density difference prevents water from overturning and bringing oxygen to the lower portions of the water) located between the rise of the Cincinnati Arch and the collision boundary of the two plates. This collision created a deep basin in which little clastic sediment deposition (from rivers and streams) occurred. This depositional environment is analogous to the Black Sea of Europe, where a lack of fresh water flow from rivers prevents the deposition of significant quantities of clastic sediments.
The deposition of large quantities of organic matter below the pycnocline, combined with the thrust faulting from the continued collision of the two continental plates, resulted in a rapid burial process for the organic matter that proved to be the source materials for the natural gas present in this black shale. The rapid burial of the Marcellus, a result of continued sedimentation and thrust faulting, eventually resulted in the sediments surpassing the temperature and pressure of the oil window leading to the formation of large quantities natural gas entrained in the shale’s porosity. The subsequent uplift and erosion of the Marcellus has resulted in the natural formation of an extensive array vertically orientated joints (or fractures). Because these natural fractures run vertically, horizontal drilling provides greater wellbore exposure to the gas reserves in comparison to traditional vertical drilling. In the Marcellus, a vertical well may only be exposed to as little as 50 ft of formation, whereas a horizontal well may be developed with a lateral wellbore extending 2,000 to 6,000 ft within a 50 to 300 ft thick formation.
Hydraulic Fracturing
Hydraulic fracturing is the process through which gas is extracted from shale. In a fracking operation, millions of gallons of fluid — water mixed with sand and blends of chemicals — are pumped into the ground through horizontally-drilled wellbores. The pressurized fluid pulverizes the shale, expanding and extending the existing vertical fractures. The chemicals transform the fluid into a frictionless mass that works its way through the rock, prying open additional tiny fissures that can extend thousands of feet in any direction. Propping agents, such as particles of sand or silicon, wedge inside the fissures, holding the earth open just enough to allow the gas to slip by.
Environmental Concerns and Information Asymmetries
Scientists have found it difficult to determine the environmental impacts of hydraulic fracturing for three primary reasons. First, two kinds of information gaps are problematic – the gap between the gas industry and the public, and the gap between the technology and its effects on hydrogeology. Fracking has not received the same regulatory scrutiny as the processes used for many other energy sources. Because the identities of the chemicals used in fracking fluids have been tightly held as trade secrets, scientists don’t know precisely what to look for when they sample contaminated streams and taps. Scientific uncertainty about the connection between fracking operations and groundwater contamination underscores the possibility that hidden environmental costs could cut deeply into the anticipated economic benefits. For example, it is unclear how far the tiny fissures that radiate through the bedrock from hydraulic fracturing might reach, or whether they can connect underground passageways or open cracks into groundwater aquifers that could allow the chemical solution to escape into drinking water. It is unclear that the fracking chemicals – some, such as benzene and 2-butoxyethanol, are known to cause cancer and have been linked to bizarre disorders of the nervous and endocrine systems – are adequately contained by either the well structure beneath the earth or by the people, pipelines and trucks that handle it on the surface. It is unclear how much of the voluminous waste the process creates can be recovered from the ground, and unclear whether waste that cannot be extracted could migrate into underground sources of drinking water.
These are reasons for concern. Even if layers of rock can seal water supplies from the layer where fluid is injected, the gas well itself creates an opening in that layer. The well bore is supposed to be surrounded by cement, but often there are large empty pockets or the cement itself cracks under pressure. In many instances, the high pressure of the fluids being injected into the ground has created leaks of gas – and sometimes fluids – into surrounding water supplies.
Second, there is the problem of proving causation in cases involving groundwater migration. The abundance of possible explanatory variables in this context make it difficult to establish that any given instance of contamination was a result of fracking operations.
Finally, the federal regulatory scheme seems to be based on an assumption that hydraulic fracturing is safe until proven dangerous. And that burden of proof has been allocated to the states, or – as in the National Forests — to federal land managers, rather than to the O&G permit seekers, who have a monopoly on the crucial information, or to the federal government, which has greatest resources for research and enforcement. The lack of scientific certainty about hydraulic fracturing can be traced in part to the drilling industry’s success in persuading Congress to leave regulation of the process to the states, which often lack manpower and funding to do complex studies of underground geology. As a consequence, regulations vary wildly across the country and many basic questions remain unanswered.
Frackwater in the Monongahela
On the East coast, one of the most important unanswered questions about drilling is how to dispose of the chemically tainted wastewater that hydraulic fracturing produces. Most drilling wastewater in other parts of the country is stored in underground injection wells that are regulated by EPA under the Safe Drinking Water Act. However the geology in the Marcellus makes injection less viable, and less common. In West Virginia, millions of gallons of drilling wastewater could eventually be produced each day.
That wastewater likely contains high levels of Total Dissolved Solids – a mixture of salts, metals and minerals – that can increase the salinity of fresh water streams and interfere with the biological treatment process at sewage treatment plants, allowing untreated waste to flow into waterways. High TDS levels also can harm industrial and household equipment and affect the color and taste of water. But without identification and routine testing for the problematic chemicals, it will be impossible to know how much of them are making their way to drinking water sources, or how they are accumulating over time. Evolving medical science says low-dose exposure to some of those chemicals could have much greater health effects than the EPA or doctors have previously thought.
In the Monongahela, regulation of the hydraulic fracturing process has failed to address at least three critical scientific issues. The first of these are the substantial risks posed by fracking in karst landscapes. “Karst” refers to a specific type of landscape containing caves and extensive underground water systems that is developed on especially soluble rocks such as limestone, marble and gypsum. Many hydrogeologists mistakenly assume that if karst landforms are absent or not obvious on the surface, then the groundwater system will not be karstic. This assumption can lead to serious errors in groundwater management and assessment of environmental impacts, because karst groundwater circulation can develop even though surface karst is not apparent. Karst is typified by seeps, springs, sinkholes, sinking streams and caves. Fracking in karst thus increases the risk of contamination to groundwater supplies, threatens the habitat of cave-dwelling endangered species such as the Indiana bat and Virginia big-eared bat, and, where springs and seeps exist, risks surface water contamination as well.
Karst is abundant in the U.S., particularly in areas where gas drilling and hydraulic fracturing are becoming increasingly common, like the Marcellus. The Independent Petroleum Association of America (IPAA), which represents the thousands of independent oil and natural gas producers that develop 90 percent of U.S. wells and produce over 80 percent of U.S. natural gas, has acknowledged that “approximately 90 percent of these wells now require the use of hydraulic fracturing.” This increase in the use of hydraulic fracturing in West Virginia has led to the development of the Oriskany formation in the Monongahela, where land application of hydraulic fracturing fluids resulted in the immediate death of 3 acres of vegetation in the MNF’s Fernow Experimental Forest. There is also significant overlap between karst areas and the Marcellus shale formation. As development of the Marcellus increases, the risks of significant drinking water contamination and wildlife habitat in karst will grow.
Second, regulation should reflect a comprehensive understanding of the full lifecycle of the hydraulic fracturing process, including an examination of water sourcing issues. Given the massive amounts of water needed for each frack (approximately 2-4 million gallons per well ) and the various uses to which available water supplies are already committed, ensuring both quantity and quality of drinking water is paramount.
Finally, permitting decisions must include informed assessments of the potential cumulative impacts of fracking activities on the drinking water quality of those citizens who rely on individual water wells to supply their drinking water needs. Because natural gas development tends to take place in rural areas, which are also the areas where people are most likely to rely on well water, regulators must consider both threats to continued water supply from water drawdown at the beginning of the process and the risks of well water contamination and habitat destruction as fracking activities proceed and expand in the future.
Federal Property Rights and Obligations in the Monongahela
Most of the lands in the Monongahela are split estates, where the United States owns the surface of the property and another entity owns the subsurface mineral rights. When the United States acquired the Monongahela forest lands by deed, dated November 26, 1915, the sellers reserved the underlying mineral rights. The 1915 deed reserving the mineral rights provided that the mining and removal of minerals shall be done in accordance with the rules and regulations prescribed by the Department of Agriculture, which were incorporated into the deed. The mineral reservation terms require the Forest Service to 1) approve the locations of structures or improvements, such as roads or bridges on MNF land, needed to carry out the private mining operations; and 2) to ensure that these mining operations are carried out in a manner that prevents the “obstruction, pollution, or deterioration of National Forest streams, lakes, ponds or springs, and the escape of harmful or deleterious material or substances to National Forest System land from the operations.”
REGULATORY FRAMEWORK: Managing Vertical Externalities
1. Forest Service and the NFMA
The Forest Service administers National Forest land pursuant to the National Forest Management Act (“NFMA”). The Forest Service has a responsibility to manage the landscape for wildlife, energy development, and many other purposes. The NFMA requires the FS to “manage the public lands under principles of multiple use and sustained yield,” in a manner that will “minimize adverse impacts on the natural, environmental, scientific, cultural, and other resources and values (including fish and wildlife habitat) of the public lands involved.” NFMA also requires the FS to inventory its lands and their resources and values, and then take this inventory into account when preparing land use plans. Through management plans, the FS can and should protect wildlife (as well as scenic values, recreation opportunities, and wilderness character) on the public lands by prescribing various management actions, including the exclusion or limitation of certain uses of the public lands. This is necessary and consistent with NFMA’s definition of multiple use, which identifies the importance of wildlife (in addition to other values) and requires the FS to consider the relative values of these resources but “not necessarily to [choose] the combination of uses that will give the greatest economic return.”
In the Monongehela, as in other national forests, the Forest Service is responsible for land use and permitting decisions concerning use of the surface, while administration of federal mineral rights and the issuance of federal oil and gas leases are the purview of the Bureau of Land Management, though the FS retains veto power over such decisions.
Section 101 of the National Environmental Policy Act declares a broad national commitment to protecting and promoting environmental quality. To ensure that this commitment is “infused into the ongoing programs and actions of the Federal Government, the act also establishes important ‘action-forcing’ procedures.” The procedural requirements of NEPA apply whenever federal agencies contemplate “major Federal actions significantly affecting the quality of the human environment.” Section 102 requires every federal agency contemplating such action to put its reasoning and conclusions in writing and subject them to public scrutiny and judicial review. Section 102 provides that the federal agency prepare an environmental impact statement, detailing the environmental impact of the proposed action, including the potential adverse environmental effects of the action, and identifying and addressing alternative courses of action that may be more environmentally friendly.
The EIS requirement serves NEPA’s sweeping policy commitment in two respects. First, it ensures that the agency, in reaching its decision, will obtain and will carefully consider detailed information concerning significant environmental impacts. It requires federal agencies to take a “hard look” at the potential environmental consequences of the proposed action, such as a resource management plan or oil and gas development project. Second, it guarantees that the relevant information will be made available to the larger audience that may also play a role in the processes of making and implementing decisions.
The acting agency, be it the FS or BLM, must assess impacts and effects that include: “ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative.” NEPA’s hard look at environmental consequences must be based on “accurate scientific information” of “high quality.” The agencies’ interpreting guidance expand on this obligation, requiring that “influential information” (information that is expected to lead to a “clear and substantial” change or effect on important public policies and private sector decisions as they relate to federal public lands and resources issues, such as that information contained in or used to develop a resource management or major oil and gas development project) use the “best available science and supporting studies conducted in accordance with sound and objective scientific practices.”
The key CEQ regulation, 40 C.F.R. 1508.25, requires agencies to consider in a single analysis actions that are connected, cumulative, or similar. Connected actions are those that cannot or will not proceed unless other actions are taken previously or simultaneously, and those that are interdependent parts of a larger action and depend on the larger action for their justification. For example, in Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985), the court required the FS to analyze the impacts of subsequent, anticipated timber sales in conjunction with a decision to build road whose justification depended on the sales. Thomas also considered, and rejected, the FS’s argument that it was sufficient to consider the cumulative environmental impacts in ex-post NEPA documentation it would produce in connection with the timber operation, after the road was built:
Where agency actions are sufficiently related so as to be “connected” within the meaning of CEQ regulations, the agency may not escape compliance with the regulations by proceeding with one action while characterizing the others as remote or speculative.
2. Ongoing Implementation of Plans
In certain circumstances an EIS or EA must be supplemented to account for the impacts of activities not considered in the original NEPA documentation . Specifically, the regulations require supplementation where there are “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” In Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989), the Supreme Court interpreted § 4332 in light of this regulation to require an agency to prepare supplementation only if “there remains major Federal action to occur,” as that term is used in § 4332(2)(C). In Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004), the Court, citing Marsh, held that “although the approval of a [land use plan] is a major federal action” requiring an EIS, that action is completed when the plan is approved.
The implication is that ongoing implementation of plans may not trigger NEPA analysis. Norton addressed a claim that BLM had violated NEPA by failing to prepare a supplemental environmental analysis to the EIS it originally completed on the land use plan, in order to discuss the impact of unexpectedly large ORV traffic in the wilderness area in question. The Court rejected this argument, finding that there was no ongoing “major Federal action” that could require supplementation (though additional NEPA analysis is required if a plan is amended or revised.).
3. Categorical Exclusions
Categorical exclusions, originally created in the 1969 NEPA, allow federal agencies to approve certain projects on federal land without any extensive review of environmental impacts if the agency determines the projects will not have significant environmental impacts. For the purpose of reducing delay and paperwork, the CEQ regulations provide for categorical exclusions (CEs) to implement the NEPA. CEQ regulations allow federal agencies to exclude from documentation in an environmental assessment (EA) or environmental impact statement (EIS) categories of actions that do not individually or cumulatively have a significant effect on the human environment. (emphasis added). After an agency promulgates counterpart regulations identifying which of its common actions ordinarily do not require even an EA to confirm no significance, implementation generally requires little notice or documentation.
In recent years, the FS has moved aggressively to expand the use of CEs. In 2005, it attempted to exempt the entire forest planning process from NEPA. The Energy Policy Act of 2005 (Section 390) established CEs for five categories of oil and gas exploration and
development activities conducted pursuant to the Mineral Leasing Act on federal oil and gas leases. In Section 390, Congress replaced the standard procedural mechanism for compliance
with NEPA. The categorical exclusions addressed in this guidance are established by
statute and not under the Council for Environmental Quality (CEQ) procedures pursuant
to 40 CFR 1507.3 and 1508.4. Therefore, their use is not dependent on the usual CEQ process
for approving new categorical exclusions or other NEPA procedures. Thus, if a proposed activity meets the criteria of any of the five categories for categorical exclusion, it is also presumed that no further NEPA analysis is required. Specifically, if a proposed activity falls under one of the statutory categorical exclusions, agency categorical exclusion direction, or the extraordinary circumstances contained therein are not to be used. Importantly, however, Section 390 does not limit or diminish the Forest Service’s substantive authority or responsibility regarding review and approval of a Surface Use Plan of Operation (SUPO) conducted pursuant to 36 CFR 228.107-108. The Authorized Forest Officer must continue to assure that operations on leaseholds on National Forest lands will minimize effects on surface resources and prevent unnecessary or unreasonable surface resource disturbance, including effects to cultural and historical resources and fisheries, wildlife and plant habitat. Best management practices are to be applied as necessary to reduce impacts of any actions approved under these categorical exclusions.
Section 390 gives federal land managers the benefit of a “rebuttable presumption that the use of a categorical exclusion” under NEPA would apply to several categories of activities involved in developing oil and gas leases. Such categories include surface disturbances of less than five acres where the total surface disturbance on the lease is not more than 150 acres and a site-specific analysis had previously been completed in a NEPA document; drilling a well in a developed field where previous NEPA documents had “analyzed such drilling as a reasonably foreseeable activity” and had been approved within the last five years; and “maintenance of a minor activity, other than any construction or major renovation o(f) a building or facility.” To use a “minor activity” exclusion, the Authorized Forest Officer must determine and document that the activity under consideration constitutes maintenance of a minor activity (a non-exclusive list of such activities include maintenance of a well, wellbore, road, wellpad, or production facility having surface disturbance). The Authorized Forest Officer must include in the project record three types of documentation to demonstrate use of the categories apply to the activities under consideration: 1. identification of the categories used; 2. a brief narrative stating the rationale for making the determination that use of the CE applies to the activity under consideration, specifically addressing the applicable review criteria; and 3. copies or reference to materials used to support its use determination.
4. Discussion
In its administration of land use in the Monongahela, the Forest Service has cited the categorical exclusion at 36 CFR 220.6(e)(3) for surface activities associated with the hydraulic fracturing operations of private mineral rights-holders. The 220.6(e)(3) CE applies to “approval, modification, or continuation of minor special uses of National Forest System lands that require less than five contiguous acres of land. Consequently, the environmental impacts of many steps in the hydraulic fracturing process, including those caused by on-land wastewater disposal, have not received NEPA scrutiny. For example, the potential impacts that so-called “land applications” of wastewater from hydraulic fracturing may have, individually and cumulatively, on USDWs and ecological resources in the forest have not been assessed. The risks of water contamination and habitat degradation posed by this practice are particularly concerning in areas overlying rich karst structures, such as the Fernow Experimental Forest near Parsons, WV. But the extent of such risks remain unknown, as they were not considered by the FS in NEPA documentation. The FS has taken the position that its use of the CE is warranted because land application of hydraulic fracturing fluids is a routine activity with known effects, and that no extraordinary circumstances exist that could be impacted by land application.
Use of 220.6(e)(3) in this context is inappropriate for at least three reasons. First, the Section 390 CEs apply “exclusively to oil and gas exploration and development activities
conducted pursuant to the Mineral Leasing Act of 1920 on Federal oil and gas leases. The USDA guidance clarified that the phrase “on Federal oil and gas leases” means that the applicability Section 390 does not extend to private or outstanding rights. Since the gas leases at issue in split estate context of the Monongahela’s are privately issued, it is difficult to see how development activities associated with those leases are covered by the Section 390 CEs.
Second, NEPA’s effectiveness depends entirely involving environmental considerations in the initial decision-making process. The purpose of an environmental assessment is to provide the agency with sufficient evidence and analysis for making an informed determination that considers the potential environmental effects of a proposed action before approving it. By circumventing this vital information-gathering step, the FS was unable to make an informed determination. Instead, it gave land application a rubber stamp without considering the potentially disastrous consequences that this manner of disposing of toxic fluids may have on the Monongahela. The FS does not even know what chemicals or elements will be contained in the fracture fluid, and likely will not know until after application has occurred. Finally, this method of wastewater disposal simply does meet the requirements for a 220.6(e)(3) exclusion. Given the unknown chemical composition of frackwater and the lack of information available to the FS regarding the potential impact on wildlife and water sources of dumping thousands of gallons of frackwater in the Monongahela, the FS is hardly qualified to dismiss the practice as a “minor” land use.
Moreover, the FS actions in this context – namely, approving the construction of gas wells, pipelines, and plans for disposal of wastewater proposed by the energy company –sufficiently related so as to be “connected” within the meaning of CEQ regulations. All are interdependent parts of the company’s larger plan to exercise its subsurface mineral rights in the Monongahela, and all depend on the larger plan for their justification. As discussed in Thomas, an agency may not escape compliance with the regulations by proceeding with one action while characterizing the others as remote or speculative.
The FS has made no effort to detail or disclose reasonably foreseeable actions on MNF lands arising from the Berry Energy’s ongoing hydraulic fracturing. Nor has it discussed any potential effects – direct, indirect or cumulative – in any of the comment letters for Berry’s surface activities. The FS’s use of the CE and its failure to properly assess the effects on extraordinary circumstances in the has allowed the agency to inappropriately narrow its assessment of the cumulative impacts of wastewater disposal and other post-leasing activities in the Fernow. No cumulative effects analysis was presented for public comment and the only effects analysis (a biological evaluation under ESA, discussed below) was limited in scope and available only after the decision. The FS indicates that there is not likely to be any assessment or disclosure of the cumulative impacts of the overall Berry Energy development plan. This piecemeal approach to the environmental impacts analysis improperly ignores what are reasonably foreseeable activities – and cumulative impacts – beyond the proposed instance of land application of fracking fluids.
For the site-specific pre-drilling NEPA analysis necessary to assess the impacts arising from oil and gas development on these leases, the FS Decision Memos rely heavily on the analysis contained in the 2006 Monongahela NF Forest Plan and and Final EIS. However, neither of these documents contain the site-specific analysis necessary to satisfy NEPA’s requirements, especially that for a “hard look” at the impacts. The 2006 MNF Forest Plan actually tiers to a 1992 Forest Plan amendment (Amendment #4) identifying federally owned oil and gas available for lease on the Forest. This would be inadequate under NEPA and arbitrary and capricious. The 1992 Plan Amendment did not consider the cumulative impacts of ongoing extensive hydraulic fracturing and wastewater disposal in the Forest, which would have been unforeseeable at that time. The circumstances have changed and new information has arisen since then, necessitating further analysis.
Alternatives to land application, such as disposal in toxic waste treatment facilities, do exist and are mandated by law many states. Propping agents consisting of sand and water without any additives have been used effectively, as have agents containing sand and water with non-toxic additives. Non-toxic additives are being used by the offshore oil and gas industry, which has had to develop fracturing fluids that are non-toxic to marine organisms. Oil and gas wastes are often flowed back to and stored in pits on the surface. Often these pits are unlined. But even if they are lined, the liners can tear and contaminate soil and possibly groundwater with toxic chemicals. The same chemicals that are injected may come back to the surface in the flowed-back wastes. As well, hydrocarbons and naturally-occurring radioactive materials from the fractured formation may flow back into the waste pits. A reasonable alternative of storing wastes may be flow them back into steel tanks.
The Forest Service should prepare EAs that address these and other alternatives. Recent studies in Pennsylvania, New York, Colorado, and Wyoming have traced contaminated streams and underground sources of drinking water to local hydraulic fracturing operations and their voluminous waste products. This new information, combined with the possibility of safer propping agents and the availability of safer methods of hazardous wastewater disposal, would seem to constitute new circumstances and information relevant to environmental concerns and bearing on the the impacts of Berry Energy’s wastewater dumping program. Given the ongoing nature and anticipated escalation of natural gas development in the Monongahela, the FS should scrutinize such activities in light of the expected cumulative effects, and support its findings with scientific evidence. This would be consistent with Metcalf v. Daley, where the court ordered the agency to repair its flawed EA by preparing another EA, and consistent with National Audobon Society v. Hoffman, 132 F.3d 7 (2d Cir. 1997), where the court found that the FS violated NEPA in an EA for constructing a road and then logging in a portion of the Green Mountain National Forest in Vermont. In Hoffman, the court ordered another EA, based on its conclusion that the FS failed to consider a number of relevant environmental factors and to include sufficient mitigation to justify the finding of no significant impact.
B. Forest Service obligations under the ESA
Under the NFMA the Forest Service must create land and resource management plans for the forests within its jurisdiction. The planning process consists of two stages: programmatic and site specific. The programmatic stage involves the development of a broad, long-term planning document for an entire forest. The forest plan guides the management of the forest in a multiple-use framework. It establishes planning goals and objectives for units of the National Forest system and specific standards and guidelines for management of forest resources, taking into account both environmental and economic factors. There is an opportunity for public participation in development of the plan and for public review of the plan and comment. Forest plans are implemented through individual site-specific projects. At this stage, the Forest Service proposes, analyzes, and decides upon specific actions.
The Endangered Species Act expresses a legislative mandate that the Forest Service, FWS, and other federal agencies “afford first priority to the declared national policy of saving endangered species.” The ESA authorizes the Secretary of the Interior to list a species of wildlife as either “endangered” or “threatened.” The Act requires each federal agency to “insure that any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of an endangered or threatened species or result in the destruction or adverse modification of [the critical] habitat of such species …”. “Jeopardize the continued existence of” means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species [i.e., a species which has been determined to be endangered or threatened under the Act] in the wild by reducing the reproduction, numbers, or distribution of that species.” “ ‘Recovery’ means improvement in the status of listed species to the point at which listing is no longer appropriate under the criteria set out in section 4(a)(1) of the Act.”
Section 7 of the ESA, 16 U.S.C. § 1536, and its implementing regulations found at 50 C.F.R. Part 402 establish the procedure for determining the impacts of a proposed federal agency action. An agency that proposes an action must first determine whether the action “may affect” the listed species or critical habitat. With certain exceptions, if an agency determines that an action it proposes to take may adversely affect a listed species or critical habitat, it must engage in formal consultation with FWS to determine whether the proposed action may jeopardize the continued existence of the endangered species or critical habitat. The federal agency requesting consultation must provide FWS the best scientific and commercial data available.
FWS’s responsibilities during formal consultation are to review all relevant information provided by the federal agency or otherwise available; evaluate the current status of the listed species or critical habitat; evaluate the effects of the action and cumulative effects on the listed species or critical habitat; formulate its BiOp as to whether the action, taken together with the cumulative effects, is likely to jeopardize the existence of the species or result in the destruction or adverse modification of critical habitat; and discuss with the federal agency and any applicant FWS’s review and evaluation, the basis for any finding in the BiOp, and in the event a jeopardy opinion is to be issued, the availability of reasonable and prudent alternatives that the agency and applicant can take to avoid violating § 7(a)(2). The BiOp produced must include a summary of the information on which FWS’s opinion is based; a detailed discussion of the “effects of the action” on the listed species or its critical habitat; FWS’s determination of “jeopardy” or “no jeopardy;” and reasonable and prudent alternatives in the event a jeopardy determination is made.
If FWS concludes that the agency action will not result in jeopardy to the species, or if FWS offers RPAs to avoid that consequence, FWS must provide the agency with an Incidental Take Statement. The ITS must specify the impact of the incidental taking on the species; reasonable and prudent measures that the FWS considers necessary or appropriate to minimize such impact; and the terms and conditions … that must be complied with by the Federal agency or applicant (if any) or both, to implement [those measures].” “Incidental take” means “takings that result from, but are not the purpose of, carrying out an otherwise lawful activity conducted by the Federal agency or applicant.” “Reasonable and prudent measures” means “those actions necessary or appropriate to minimize the impacts, i.e., amount or extent, of incidental take.” If the proposed action complies with the terms and conditions of the Incidental Take Statement, the incidental take is not prohibited under the ESA.
The Monongahela Forest Service has cited the “highly conditional” and unpredictable nature of surface activities stemming from natural gas development as grounds for not addressing the impacts of such activities in a pre-lease biological evaluation. But this position is inconsistent with Thomas, where the Ninth Circuit held that surface leases required BiOps that addressed post-leasing activities, even though forecasting what those activities might be was difficult.
While the MNF has repeatedly acknowledged the presence of karst topography on the Fernow, it has not assessed the direct and indirect effects that horizontal and hydraulic drilling and land application of wastewater might have on groundwater and endangered species habitat in the karst system. The Berry Energy gas field lies within a “key area” of the endangered Indiana bat’s primary range. Big Springs Cave (BSC) is located half a mile east of the land application area, but is part of a larger cave system underlying this part of the Forest. The BSC has been identified as hibernacula for approximately 300 Indiana bats. In fact, a Well Operator’s Report of Well Work filed with the WV Department of Environmental Protection, Office of Oil and Gas on October 7, 2008, by Berry Energy for the B-800 well, notes on page 3 that during initial drilling and first fracture open caves were encountered at 92 and 149 feet and that a mud filled cave was encountered at 164 feet. Additionally, fresh water was encountered at 395’. This indicates there are likely abundant natural fractures, caverns and solution cavities existent within this karst structure and that it serves as a conduit for groundwater.
Land application of waste to soils overlaying such obviously rich karst structures creates the potential for seepage into the caves and caverns, thus altering the chemistry of such structures. The alteration of the chemistry could produce changes in the humidity level, which could in turn alter the temperature. Additionally, the air quality could be diminished if such toxic chemicals are introduced into a confined space. Disturbance of cave habitat due to the initial drilling, including modification of delicately balanced air flow and temperature regimes has potentially already occurred. Indiana bats, in particular, can only hibernate successfully within a very narrow, specific temperature range, and have been known to abandon hibernacula when structural or other changes to the caves resulted in unsuitable temperatures.
In the Monongahela, the Forest Service’s administration of surface activities relating to hydraulic fracturing looks a lot like an ongoing violation of the ESA. By letter dated November 2, 2007, the FS transmitted to the FWS a Biological Evaluation and Decision Memo for Berry Energy’s proposed Gas Well B-800 and access road. In its cover letter and in the BE itself, the FS stated that the mineral owner had a right to develop their minerals and that the FS did not have authority to control the use of surface beyond the terms in the mineral reservation. The FS concluded that it had a mandatory duty to allow Berry Energy to exercise its mineral rights and no discretionary control over the operations, such that would trigger the requirements of NEPA or Section 7 of the ESA. In response to the FS’s position in the 2007 BE for the B-800 well, the Office of the Solicitor for the Department of the Interior issued a memorandum to the FS West Virginia field office in February 2008. The memorandum stated that the FS’s “conclusion that it has no discretionary control over Berry Energy’s right to develop their mineral interests is incorrect. . . When the owner of the surface estate is the United States, the government has the authority to regulate the use of the surface and impose conditions on that use. Federal law, if applicable, preempts state law.”
To date, the FS does not appear to have exercised that discretion. It has continued to grant special use permits for hydraulic fracturing activities on the surface without assessing cumulative effects to the human environment under NEPA or providing mitigation measures to protect Indiana bat habitat from drilling in karst structures. The ESA requires federal agencies to consult with the FWS regarding the impacts of proposed federal actions that may affect threatened and endangered species. Given the existence of Indiana bats and karstic hibernacula in the Fernow, the proper conclusion is that drilling and land application of wastewater “may affect” this listed species, which triggers the requirement that the FS engage in consultation with the FWS. But the FS has apparently not consulted with FWS on these special use permits. The FS mailed its Biological Evaluation for the proposed well B-800 wastewater discharge to FWS on the same day it issued its Decision Memo granting the proposal. Thus it is difficult to see how consultation could have occurred prior to the decision.
Further, as the ESA’s implementing regulations make absolutely clear,“[e]ach federal agency shall review its actions at the earliest possible time” to determine whether an action may affect protected species, and, if so, to engage in the appropriate level of conferral. Thus, the FS must consult with the FWS over the impacts to Indiana bats and Virginia big-eared bats on proposed drilling and wastewater disposal activities. The FS’s failure to initiate meaningful consultation with FWS violates the ESA.
Berry Energy has now obtained a state permit for a plug to be placed to access a shallower horizon the same B-800 well, and plans to develop 8-10 additional wells in the Fernow gas field. Additional hydraulic fracturing could force fracking fluids into formations that would increase the risk of adverse effects to groundwater resources. It could also result in greater risks of adverse effects on the cave system and a higher likelihood of take under the ESA. These potential impacts must be analyzed and disclosed under NEPA and an updated BiOp.
In conclusion, the FS’s responsibility for regulating land uses associated with oil and gas leasing necessitates a full environmental analysis of the likely post-leasing impacts of ongoing gas production before any special use permits are issued. Overall, the Forest Plan data is far too old for use under NEPA and should be updated. Changes in the nature and extent of surface disturbing activities, the lack of analysis of the cumulative effects of hydraulic fracturing on groundwater, increased future development well beyond that considered in the DMs and BEs for gas wells and land application of wastewater, as well as the presence of threatened, endangered and sensitive species since the 1992 analysis render this data moot. No other updated site-specific analysis was included in the 2006 Forest Plan. Given the absence of an underlying NEPA document or BiOp that adequately considers the impacts of these activities on forest resources, issuance of these special use permits violated NEPA and the ESA.

The Empty Promise of Natural Gas

For several years, many voices, including Texas energy baron T. Boone Pickens, have been touting natural gas as the best energy source to form a bridge between the current fossil-fuel economy and a renewable energy future. Proponents contend that not only is natural gas a cleaner-burning fuel than coal, producing lower greenhouse gas emissions, but that reserves of natural gas are far greater than previously believed because of vast reserves trapped throughout the U.S — and around the world — in huge underground formations of shale.

Recently, the Wall Street Journal ran its own fawning ode to shale gas: “Shale Gas Will Rock the World.” The author, Amy Myers Jaffe — a fellow in energy studies at Rice University — wrote, “I am convinced that shale gas will revolutionize the industry — and change the world — in the coming decades.” She even suggested that the abundance of natural gas in shale deposits worldwide will slow the transition to a renewable energy future.

“It may be a lot harder to persuade people to adopt green power that needs heavy subsidies when there’s a cheap, plentiful fuel out there that’s a lot cleaner than coal, even if gas isn’t as politically popular as wind or solar,” Jaffe wrote.

The water pollution concerns alone should be sufficient to make the U.S. and other countries rethink future reliance on shale gas. Separating the gas from the shale, a process known as hydrofracturing, involves forcing a mixture of water, chemicals, and sand at high pressure down a well bore and into rock formations, creating small fractures that release the trapped gas. The process uses a huge amount of water — the New York State Department of Environmental Conservation estimates as much as 1 million gallons per well — at a time when water is already a limiting and precious resource. Second, hydraulic fracturing fluid may come back to the surface, or near enough, to affect groundwater supplies. This fluid is a mixture of chemicals including friction reducers, biocides to prevent the growth of bacteria that would damage the well piping or clog the fractures, a gel to carry materials into the fractures, and various other substances. Returning to the surface, it could also bring other environmentally damaging materials, such as heavy metals.

Advocates for shale gas claim that these effects will be minor. Others, including those in charge of water supplies, are not persuaded. In Pennsylvania, wells claimed to be safe have leaked natural gas into local domestic water supplies, with the gas bubbling out of faucets. Also in Pennsylvania, fracturing fluids have leaked before they have been sent underground and have also contaminated drinking water. These problems suggest that returning fracturing fluids to the surface could cause similar problems on a large scale.

That shale gas exists in abundance — in the U.S., Europe, Australia, China, South Africa, and other regions — is beyond question. The Marcellus Shale region in the eastern U.S. reportedly contains enough shale gas to meet U.S. natural gas demand for a century. MIT released a report last week forecasting that, in part because of the exploitation of abundant shale gas reserves, natural gas will go from making up 20 percent of he U.S.’s energy supply today to 40 percent within several decades.

But what is the reality behind the optimistic claims for shale gas? The U.S. Geological Survey lists natural gas “reserves” — the amount believed to be in the ground — in four categories: readily available with current technologies, which accounts for only 1 percent of the known natural gas in U.S. territorial limits; technically recoverable (5 percent); marginal targets for accelerated technology (6 percent); and unknown but probable (84 percent). Shale gas shares the fourth category with coal gas and methyl hydrates. The latter are a kind of water ice with methane embedded in it and occur only where it is very cold, in Arctic permafrost and below 3,000 feet in the oceans.

How long would the natural gas in each of the four categories would last if we obtained it independently — that is, only from U.S. territory? Just using our 2006 rates of use of natural gas consumption — not including any major transition to fueling our cars and trucks — the “readily available” gas within the United States would be exhausted in just one year. That, plus what is called “technically recoverable” gas, would be gone in less than a decade. What is termed “unknown but probable” would last about a century.

This means that any significant increase in our consumption of natural gas will have to come from the “unknown but probable” reserves, much of which will be from formations of shale, a sedimentary rock formed from muds in which bacteria released methane. Most of this gas is so deep underground or otherwise not very accessible that nobody is really sure that we can get at a lot of it, or of how high an environmental price we must pay to retrieve it.

Currently available wind and solar energy technologies, on the other hand, are up to the job right now. There just aren’t enough wind and solar installations, so today they provide less than 1 percent of the nation’s energy. We will need to rapidly scale up, so that by 2050 we can receive the Solar and wind do not have the enormous environmental and economic costs of developing shale gas. majority of our energy from wind and solar power. That’s an enormous task: The U.S. Census Bureau forecasts that our population will reach 440 million by 2050 — nearly a 50 percent increase from today. That’s 150 million more people, each hoping to live at the standard of living we have grown accustomed to. When that happens, the amount of fossil fuels we use today, and which provide 86 percent of America’s energy, would provide those 440 million with less than two-thirds the energy they would need, if per-capita energy use remains the same as today.

Contrary to standard criticisms of solar and wind, providing this much energy in the future would not use up a lot of land. Based on current installations, less than 1 percent of U.S. land area would be required. Right now, 22 percent of U.S. land is in agriculture, not counting grassland pasture and range used by grazing animals.

What about costs? Wind is the cheapest energy source, with installation costs as low or lower than coal’s. There’s no need to pay for fuel, and no huge costs to repair the environmental damage caused by strip-mining and underground mining, let alone costs involved to try to develop “clean-burning coal.” As for solar power, the costs of producing new cells — photovoltaic or otherwise — are moving rapidly down, and increased research and development will inevitably lead to a similar decline in installation costs.

Hydraulic Fracturing Goes West

As domestic U.S. pools of conventional oil and gas dwindle, energy companies are increasingly turning to fossil fuel reserves contained in the carbon rich-sands and deep shales of Canada, the Great Plains, and the Rocky Mountain West.

Colorado, Utah, and Wyoming hold oil shale reserves estimated to contain 1.2 trillion to 1.8 trillion barrels of oil, according to the U.S. Department of Energy, half of which the department says is recoverable. Eastern Utah alone holds tar sands oil reserves estimated at 12 billion to 19 billion barrels. The tar In North Dakota and other states, residents worry that the energy boom will deplete aquifers. sands region of northern Alberta, Canada contains recoverable oil reserves conservatively estimated at 175 billion barrels, and with new technology could reach 400 billion barrels. Deep gas-bearing shales of the Great Plains, Rocky Mountain West, Great Lakes, Northeast, and Gulf Coast contain countless trillions of feet of natural gas. If current projections turn out to be accurate, there would be enough oil and gas to power the United States for at least another century.

But even as one of the largest energy booms in history has erupted along a great arc of the continent, the consequences are prompting civic discontent, lawsuits, and political battles in state capitals. The boom is producing fresh scars on the land and new threats to scarce water supplies. Government studies show that exploiting unconventional fossil-fuel reserves generates more C02 emissions than drilling for conventional oil and gas and uses three to five times more water. “It’s a pact with the devil,” says Randy Udall, a consulting energy analyst from Colorado. “The tar sands and shale oil and shale gas require a lot of water. It sets up a collision course for the West.”

In communities from Wyoming to Texas, thousands of trucks now rumble down rural roads, carrying the huge amounts of water — 2 million to 4 million gallons per well — needed to free oil and natural gas from shales by blasting them with high-pressure fluids. In places such as North Dakota, which receives modest amounts of rainfall, local residents and conservationists worry that the energy boom will deplete aquifers.

And the explosion in development of these unconventional fossil fuels raises a troubling question at the national level: At a time when the country should be embracing a renewable energy revolution, it is hurtling in the opposite direction, developing on a massive scale sources of energy that cause considerably more environmental harm than conventional oil and gas drilling.

Highway 12 is a crucial supply route for this burgeoning industry, with fossil fuel companies using the road to reach a good portion of the West’s new oil and gas domain that lies to the north and south of the highway. The companies transport equipment 900 miles north to Alberta, Canada, where they are spending $15 billion annually to develop the region’s tar sands, now the single largest source of oil imports to the U.S. and the fastest-growing source of CO2 emissions in Canada, according to the Pembina Institute, a Canadian environmental think tank.

In North Dakota — which has become the fourth-largest oil-producing state in the country, with an estimated 100 million barrels being pulled out of deep shales this year and where 1,000 wells will be drilled in 2010 — Highway 12 crosses the $5 billion, 2,151-mile Keystone Pipeline. It is the centerpiece of a $31 billion network of major transport lines either planned or under construction to carry oil from the middle part of the continent to refineries in Texas, Oklahoma, and Illinois that are being modernized and expanded at a cost of more than $20 billion. In all, according to company reports and state economic development offices, the oil industry is spending nearly $100 billion annually in the U.S. to perpetuate the fossil fuel era.

Oil industry executives say their investments are consistent with the national goal of producing more energy to increase security. Oil companies are also profiting handsomely from the exploitation of these unconventional sources of oil and natural gas. The stakes became clear earlier this year, when ExxonMobil paid $41 billion to buy XTO Energy, a major player in unconventional fuels production, especially natural gas.

Last year, in a much-disputed draft environmental impact statement that summarized the need for the new Keystone-XL pipeline — which will transport oil from Alberta’s tar sands to U.S. refineries — the U.S. Department of State tacitly backed the new energy boom. “The increasing demand for crude oil in the U.S. cannot be entirely met by efforts to conserve use of refined petroleum products or the increased use of renewable energy,” the department said. “As crude oil demand increases, the overall domestic supplies of crude oil are declining.” The department’s analysts added that without the pipeline and the new supplies of oil it would carry, the country “would remain dependent upon unstable foreign oil supplies from the Mideast, Africa, Mexico, and South America.”

One of the flashpoints is occurring in northern Idaho and eastern Montana, where oil companies want to use Highway 12 to dispatch the largest convoy of oversized trucks ever assembled to Alberta’s tar sands and elsewhere. The trucks, nearly as long as football fields and so wide they cover both lanes of the highway, haul refining and processing equipment that weighs hundreds of tons and is as tall as a mansion.

ConocoPhilips was granted a road permit in Idaho last month to haul four Korean-built oversized oil-processing units from Lewiston, Idaho, where The Bakken Shale may contain 4 billion barrels of oil and trillions of cubic feet of natural gas. they were offloaded from Columbia River barges, to the company’s expanding refinery in Billings, Montana. Earlier this month, Idaho Second District Judge John Bradbury revoked the permit, asserting that the state did not adequately assess the hazards of the shipment, particularly the consequences of an accident involving one of the immense processing units blocking the highway. Local officials in Montana are considering similar legal action.

The court judgment in Idaho, which is set for an appeal on Oct. 1, could have significant ramifications for ExxonMobil Canada, which wants to make 207 oversize hauls next year along Highway 12. Exxon’s trucks will carry even larger Korean-built units to be assembled into a new tar sands oil processing plant in Alberta. The company says it must use Highway 12 because the loads are too big to fit under bridges along interstate highways or rail lines.

Despite opposition, the oil and gas industry is undeterred. The Bakken Shale that lies 10,000 feet beneath a 200,000 square mile expanse of North Dakota, Montana, and Saskatchewan is said by the U.S. Geological Survey to contain more than 4 billion barrels of oil and trillions of cubic feet of natural gas. Oil industry geologists say there is much more than that in the Bakken, and in a second oil-rich shale reserve, the Three Forks, that lies below it.

Spurred by the Bakken riches, energy companies are now spending tens of millions of dollars to lease mineral rights in Wyoming and Colorado and are drilling exploratory wells in the Niobrara Shale, which sprawls beneath both states.

“It just almost boggles the mind,” Lynn Helms, director of the North Dakota Department of Mineral Resources, told a veterans group in Minot on Sept. 2. “It is not like the traditional oil and gas play.”

A 2006 study by the Department of Energy that looked at rising energy demand and diminishing freshwater supplies found that the collision between the two was occurring most violently in the fastest-growing parts of the country that also happened to have the scarcest water ‘The oil industry can find water elsewhere,’ said one North Dakota wildlife official. resources — California, the Southwest, the Rocky Mountain states, and the Upper Great Plains.

It takes 2.5 to 6.5 gallons of water to extract and refine one gallon of tar sands oil, which is four times more water than it takes to produce oil from conventional reserves, according to a 2009 study by Argonne National Laboratory.

Moreover, producing tar sands oil, according to the Natural Resources Defense Council, generates as much as three times as many greenhouse gases per barrel as conventional oil production.

Extracting unconventional fossil fuel reserves like the Bakken formation uses a lot of water because getting to the oil and natural gas requires rupturing the deep shale to create open spaces and crevices through which the oil and gas can flow. The pulverizing process, called hydraulic fracturing or “fracking,” involves sinking drill bits two miles deep and then turning them to move horizontally through the shale. An armada of tank trucks hauls several million gallons of water to each well site, where pumps shoot it down the well at such super high pressure — 8,000 pounds per square inch — that the rock splits.

The practice is risky. Earlier this month, an oil well undergoing fracking near Kildeer, N.D. ruptured. The blowout leaked 100,000 gallons of fracturing fluid and crude oil before being plugged two days later.

Fracking has caused contamination of surface and groundwater in other states and harmed drinking water in some communities, according to a number of reports from local environmental organizations. The energy boom has also filled state coffers. In North Dakota, where the oil and gas rush has drawn more than 7,000 laborers migrating into the state, the unemployment rate has dropped to 3.6 percent, the nation’s lowest. When North Dakota’s budget cycle ended in June, the state reported an $800 million surplus.

Bill Would Strip Wolves of ESA Protection Forever

Eight members of Congress have introduced a bill called the State Sovereignty Wildlife Management Act. The sole purpose of HR 6485 is to render any listing of wolves as threatened or endangered under the Endangered Species Act legally irrelevant. While I have no reason to assume this bill will pass, the fact that officials elected to national office could propose such a thing underscores much of what’s wrong with, well, with everything.

Wolves are not a threat to people. In the history of the United States, there has never been a fatal wolf attack on a human. They do, however, sometimes eat livestock. Since their reintroduction into the Northern Rockies (emphasis on re- introduction because they used to live there until we exterminated them), ranchers have whined because they occasionally lose animals to wolves. Rather than treat this as a cost of doing business, ranchers argue that the wolves’ existence constitutes an unwelcome intrusion into the natural order of things. This despite the fact that the wolves used to inhabit the region in far greater numbers than the 1700 or so that currently exist there and that ranching (and the factory farming that it supports) has caused widespread damage to the region’s ecosystem.

Others complain about wolves preying on elk because it makes hunting (by humans) more challenging. Let’s think about that for a moment. First, there is no shortage of elk in the Northern Rockies. Second, wolves, as an alpha predator, help to control the herd in the way that is both natural and ecologically beneficial. Yet hunters complain that the wolves, who hunt without the benefit of anything except their bodies and who need the elk to survive, make it too hard (and consequently less fun) for recreational hunters to shoot the elk with high-powered rifles.

Then we have the recent court decision finding that Endangered Species Act requires that the wolf population be managed as an integrated whole rather than in a state-by state hodgepodge. Sensible though this might seem, it nonetheless has added to the outrage. Compounded by the entrenched bias against wolves that has existed since time immemorial, these complaints trigger unfortunate legislation such as HR 6485.

But the problem is not just with this bill and this animal. It has to do with rampant indifference to anthropogenic impacts on the natural world and a willingness to sacrifice animals, climate, ecosystems, oceans and most anything else for short-term human gain. The Endangered Species Act was and is one of the few outwardly directed laws ever enacted in this country. It explicitly subordinates human activity to the preservation of threatened and endangered species and their habitat. And that generosity of spirit has endangered the law itself almost from the moment of its passage.

We like to believe that society is evolving and becoming more sensitive to humanity’s role within the biosphere. We would like also to believe that lawmakers will respond to the increasingly urgent need to protect our threatened patrimony and strengthen rather than gut our environmental legal regime. But, sadly, neither belief seems accurate.

Calculating the True Cost Of Global Climate Change

When climate legislation died last summer in Congress, one cause was the powerful drumbeat of claims that the bill would bring economic disaster. The legislation would amount to a massive tax hike, devastating an already crippled economy and throwing more people out of work, charged Senator James Inhofe (R-Ok) and Glenn Beck. It would be “the final nail in the coffin of the American middle class,” proclaimed an ad from the Conservative Society of America. Despite supporters’ protests that the price tag of greenhouse gas curbs would be modest, voters’ fear of hits to their pocketbooks forced even many Democrats to backpedal.

The heated argument about economic costs, however, barely touched one vitally important issue: the costs of NOT taking action on climate. What if last summer’s Russian heat wave and drought, which destroyed one third of the country’s wheat crop, or the catastrophic floods in Pakistan and China, or category 5 hurricanes like Katrina are just glimpses of future havoc from warming left unchecked? As Kevin Trenberth, head of the Climate Analysis Section at the National Center for Atmospheric Research, observes, “Certain events would have been extremely unlikely to have occurred without global warming, and that includes the Russian heat wave and wild fires, and the Pakistan, Chinese, and Indian floods.”

The economic costs of such disasters could make even inflated estimates of the legislation’s price tag look small, says University of California, Berkeley, economist Michael Hanemadebate. There’s a deeply rooted perception in the U.S. that the economy will suffer little damage from climate change. Yet Congress didn’t seem to care. “The question of damages from climate change never penetrated the debate in There’s a deeply rooted perception in the U.S. that the economy will suffer little damage from climate change. Washington,” Hanemann says.
Why not? Partly, it was a conscious political calculation. Polls show that scare tactics work better to block legislation than to bring sweeping change. The Obama Administration and environmentalists decided to tout the clean energy industries that could be created and boosted by the climate bill, rather than warn of withered crops or drowned cities from heat and rising sea levels. “The assumption has been that focusing on short-term job creation would be a more compelling political argument,” says Dan Lashof, director of the Natural Resources Defense Council’s climate center.

More importantly, there’s a deeply rooted perception that the U.S. economy will suffer little damage from climate change. That view dates back to work from the mid-1990s by the influential Yale University economist William Nordhaus. Nordhaus took what was known about the science of climate change, then constructed an economic model to estimate the monetary harm. The model put the economic cost to the U.S. of raising global temperatures by 2.5 to 3 degrees C (expected by about 2100) at about ¼ to ½ percent of GDP. “There are both good and bad impacts, but they offset each other,” explains Robert O. Mendelsohn, professor of forest policy and economics at Yale University and a frequent collaborator with Nordhaus.

The original economic model wasn’t complete, Nordhaus readily acknowledges. It didn’t include some sectors of the economy or “non-market” damages — effects that economists can’t easily quantify, such as loss of species. “We basically guessed on those, and that got us up to between 1 and 2 percent of GDP,” says Nordhaus — still relatively small. Since then, Nordhaus has worked extensively on the analysis, but the general conclusion is the same. There’s little threat to U.S. GDP. “Do I think that the measured GDP of the U.S. or Britain or Japan is seriously at risk from global warming over the next 100 years?” Nordhaus asked in an interview. “No,” though he adds that “GDP is a poor indicator of economic welfare.”

Other experts see the hit to GDP as much greater. “We did a survey of top economists in the country, asking what they think about the costs and benefits of climate legislation,” says Michael Livermore, executive director of the Institute for Policy Integrity at New York University School of Law. “They said that climate change is a clear threat to America and the global economy.” Adds Berkeley’s Hanemann: “I don’t want to be Dr. Gloom, but our complacency in the U.S. is wrong.”

An earlier version of this debate flared into public view and the media for a short time in 2006. A report prepared for the British government by economist Sir Nicholas Stern found that the cost of unconstrained global Top economists surveyed say climate change is a clear threat to America and the global economy. warming would be huge — up to a 20 percent drop per year in the world’s GDP by 2050. The widely disparate conclusion compared to Nordhaus’, however, turned largely on one single factor: Stern put a higher value on costs far out in the future — and on the future return from climate change reduction investments made today — than Nordhaus did. Or in economists’ jargon, he used a lower discount rate. “You can change the discount rate and get a totally different answer,” explains NRDC’s Lashof.

Who’s right? The late climate scientist Stephen Schneider liked to ask economists if they really do value their grandchildren far less than their children, as implied by a higher discount rate. Nordhaus, who dismissed the Stern report in a 2007 book as “political in nature,” with “advocacy as its purpose,” says that’s not a fair comparison. “The argument is not how we value our grandchildren, it’s primarily about the return on capital,” he says. “My view is that the return on capital is high, so that the threshold is pretty high if we are going to compete with other uses of our investment dollars.” That makes efforts to fight global warming seem less cost-effective.

But the tiff over discount rates is really a sideshow. There are now new critiques of the low estimates of the costs of climate change that challenge core details of how those damages were calculated, such as whether the analyses correctly included the costs of heat waves, more intense hurricanes, and other extreme events predicted to become more common. The original work “has been enormously influential, but for a number of reasons, I think the analysis is profoundly wrong,” says Hanemann.

One issue cited by the critics is that the models assume that many of the costs of climate change in the U.S. are balanced by benefits — or that it will be easy to adapt. For instance, heat waves in summer mean higher energy costs and more deaths from heat. However, warmer winters save fuel and lives, so in the economic models, the two generally balance out. And sure, if temperature rises above 95 degrees F, corn pollination starts to fail. But defenders of the models figure cornfields could just move to cooler areas. “If you take adaptation into account, this turns out not be such a big effect,” argues Mendelsohn.

The critics say these conclusions are far too optimistic. Hanemann points out that summer air conditioning requires expensive daytime peak power, while the winter savings come from much cheaper nighttime baseload ‘The damages grow much worse as we get more extreme events,’ says one economist. power. So the overall costs must be higher. Similarly, damages to agriculture from heat waves and droughts are likely to swamp benefits from milder winters and longer growing seasons — and moving crops to better climes may be costly or difficult. Nordhaus partly agrees. “The damages will differ by crop and by region,” he says. “I think the numbers will be large for some regions, such as those now bordering on desertification.”

The models also calculate future harms using predicted average increases in temperature or precipitation. But scientists don’t believe temperatures and precipitation will be uniformly average around the planet. Instead, they foresee more — and more severe — extreme events: more powerful hurricanes and storms, record floods, searing heat waves and droughts, bigger wildfires. In fact, the U.S. has already experienced a higher-than-average amount of warming. A graph showing these events would not only have a long tail (i.e. the events are more extreme), but the tail would also be fatter (i.e. more events). “The damages grow much worse as we get more extreme events,” explains Hanemann. “We need to pay more attention to the tail.”

Nordhaus says that his model doesn’t neglect the idea of extreme events. “It’s completely wrong to say we’ve ignored it,” he says. But even supporters acknowledge that not everything is in the models, including a full treatment of extreme events. “Nordhaus’ model was never intended to be the kitchen sink,” says Mendelsohn.

Critics say that’s a serious flaw. “Many, many of the costs associated with climate change are not included in the models,” says NYU’s Livermore. Additional examples include acidification of the oceans from the absorption of carbon dioxide, which could threaten ocean food chains; loss of glaciers, which could cause water shortages and reduce hydropower; sea level rise, which could flood coastal cities; and mass migrations and increased global tensions, as people move away from regions hit harder by of the effects of climate change. The military takes these possibilities seriously, noting that climate change is a “threat multiplier.”

Harvard economist Martin Weitzman even suggests that the economic costs of a catastrophic event, however unlikely it might be, would be so enormous that it would overwhelm the whole analysis. “Perhaps in the end the climate-change economist can help most by not presenting a cost-benefit estimate for what is inherently a fat-tailed situation with potentially unlimited downside exposure,” he writes.

True, the models don’t include all possible costs or catastrophes, Nordhaus and Mendelsohn respond. For one thing, the models calculate the damages The costs of a catastrophic event would be so enormous that it would overwhelm the analysis. from climate change only in terms of economic activity. They don’t assess damages from non-market effects like loss of species. Take ocean acidification, which makes climate change more worrisome than it appeared to be in the 1990s, Nordhaus says. The direct economic damages from acidification are negligible. “We know the actual economic impacts are almost sure to be small because they involve fisheries, which are already pretty small, and they involve only ocean fisheries that are sensitive to carbon,” Nordhaus says.

Similarly, the calculated damages from extreme events are small, Nordhaus and Mendelsohn say. While the estimated cost of Hurricane Katrina topped $150 billion, hurricanes don’t actually hurt the economy, as measured by GDP. “If your million-dollar house blows away tomorrow, it would not affect GDP,” explains Nordhaus. The reason: spending to rebuild stimulates the economy. “This is one of the ways in which GDP is a flawed measure,” Nordhaus adds. Mendelsohn has spent years trying to figure out what the additional damages from extreme events might be — and he argues that they don’t amount to much. “As long as we didn’t measure this number, the perception was that it was huge,” he says. “But when we actually measure it, it turns out not to be big.”

That assertion is a matter of fierce debate, however. The damages are far higher, Hanemann and others believe. In Hanemann’s analysis, the economic toll from unconstrained climate change in the U.S. is three to four times higher than Nordhaus’ model calculates.

Other new analyses have similar results. Livermore and his colleagues looked at the economic benefits of the Waxman-Markey legislation passed by the House of Representative last year, including the avoided harm from climate change, and compared those benefits to the price tag for the bill. “The benefits outweighed the costs by nine to one,” says Livermore.

The U.S. Environmental Protection Agency is also expected to conclude that inaction is costly. With climate legislation apparently dead, regulation under the Clean Air Act is the only remaining pathway to federal curbs on greenhouse gases. To bolster its case in the face of strong opposition, the agency is working on a more detailed analysis of the costs and benefits of regulation, sources say. Past Administration efforts to assess the economic toll used Nordhaus’ basic approach. But because of the limitations of the economic models, the agency is also planning to examine scenarios of possible climate change, and expects that it will find a large economic toll. “We think the costs of not acting will be huge,” says one EPA official.

Nordhaus acknowledges that the small hit to the GDP of rich nations from climate change predicted by his model is just part of the overall story. “I’ve been working on this a long time,” he says. “The facts have changed, and my view has changed.” For example, “emissions and temperatures are rising faster than earlier models thought and the geophysical impacts look more serious,” he says. So even if direct economic impacts are small, “ecologists and biologists have made a pretty serious case that other things are at risk,” he says. “I think the non-market impacts have turned out larger than I thought and what the community [of economists] thought.” Those non-market impacts don’t show up in the results of the economic models.

In addition, Nordhaus says he now has a greater appreciation for the unknowns, including potential catastrophes. “The uncertainties are enormous,” he says. “If you include them, you can say almost nothing about the second half of the century.”
Nordhaus’ own conclusion is that action on climate is needed, especially since his analysis also shows that the economic costs of reasonable policies are relatively small. Indeed, there’s no longer a debate among economists that action should be taken, says Mendelsohn: “The debate is how much and when to start. If you believe there are large damages, you would want more dramatic immediate attention. The Nordhaus camp, however, says we should start modestly and get tougher over time.”

Regardless of the role played by economists in the global warming debate, the view that climate change is not to be feared has contributed to the delay in the world’s response. Even Nordhaus says he’s “stunned” by the lack of progress in tackling climate change. “It doesn’t matter if I, or Weitzman, or Hanemann are right on this,” says Nordhaus. “We’ve got to get together as a community of nations and impose restraints on greenhouse gas emissions and raise carbon prices. If not, we will be in one of those gloomy scenarios.”


Court Grants Cert in American Electric

The Supreme Court has granted cert in American Electric Power v. Connecticut, the federal common law nuisance case brought by several northeastern states against the electric power injury for damages from climate change.

The petition argued that plaintiffs lack standing to sue, preemption of federal common law by the Clean Air Act, and preclusion under political question doctrine. As the order grants the petition without limitation, the Supreme Court will presumably consider all three claims. Justice Sotomayor took no part in the cert decision, as she sat on the panel in the Second Circuit that decided the case (although she did not participate in the decision itself). This raises the possibility of a 4-4 split decision on the merits, which would ordinarily leave the decision of the Court of Appeals intact.

This is not good news for an attempt to establish the liability of power producers for global warming harms. The Second Circuit decision being reviewed recognized the federal common law nuisance claim, recognized the plaintiffs’ standing, and rejected application of the political question doctrine. At least four justices thus seem ready to revisit the broad standing recognized for States in Massachusetts v. EPA, though it would seem that standing in a damages action is a given: plaintiffs are suing for damages for an actual injury, and if they can prove their injury and entitlement to damages, standing should be no greater a hurdle than establishing the nuisance cause of action in the first place.

The Second Circuit decisions are here and here. The cert petition is here. The Court’s order list, showing the grant of cert, is here.

Deepwater Horizon Report Highlights Faulty Decisionmaking

The presidential panel investigating the causes of the Deepwater Horizon/BP spill in the Gulf of Mexico released one chapter of its report on the critical causes of the blowout, which released over 200 million gallons of oil into the Gulf of Mexico last year. The report is available here. The report blames the blowout on a series of time-saving and cost saving shortcuts approved by BP and Halliburton, as well as lax, or nearly non-existent, oversight by MMS.

The critical conclusion of the report reads:

Decisionmaking processes at Macondo did not adequately ensure that personnel fully considered the risks created by time- and money-saving decisions. Whether purposeful or not, many of the decisions that BP, Halliburton, and Transocean made that increased the risk of the Macondo blowout clearly saved those companies significant time (and money).*
There is nothing inherently wrong with choosing a less-costly or less-time-consuming alternative—as long as it is proven to be equally safe. The problem is that, at least in regard to BP’s Macondo team, there appears to have been no formal system for ensuring that alternative procedures were in fact equally safe. None of BP’s (or the other companies’) decisions in Figure 4.10 appear to have been subject to a comprehensive and systematic risk-analysis, peer-review, or management of change process. The evidence now available does not show that the BP team members (or other companies’ personnel) responsible for these decisions conducted any sort of formal analysis to assess the relative riskiness of available alternatives.

There is nothing surprising about industry shortcutting safety measures and captive agencies approving these shortcuts without substantive review. While the report suggests stronger regulations as an appropriate responsive, lax enforcement and freely granted waivers will always plague an activity like offshore drilling where the dollar stakes are high, and citizen oversight is well nigh impossible.

What I find more fascinating, and troubling, than the series of predictable economic decisions made by the corporate managers at BP and Halliburton is the fact that one of the critical mistakes was made by the crew on the drilling rig itself. The crew chose to ignore a series of “negative pressure tests” that strongly indicated that the cement cap was leaking (and subject to blowout), and instead performed a second test using a different procedure, which gave a more favorable result. Given the ambiguous test results, the drilling rig crew chose to rely on the favorable test even though, by doing so, they put their own lives at risk. Good descriptions of the on-site engineers’ decisionmaking process appears in the report issued today (at pages 105 -109, with a critical evaluation at pages 118-119).

This critical error illustrates one of the challenges of any scheme of environmental regulation in the face of scientific uncertainty: the problem of human cognitive bias. Human beings tend to accept evidence that supports their preconceived factual biases, and to reject evidence that conflicts with those biases. This kind of cognitive bias kicks in at the individual level (drill rig engineers who expect that the cement plug was effective and also want to be able to declare the well job finished) as well as at the collective societal level in a democracy where political scientific truth is established by majority vote. What is frightening about the Deepwater Horizon example is how clearly it shows that cognitive bias will overcome risk aversion even when one’s own life is at stake. It demonstrates the huge challenge faced by our society, which requires political consensus to deal with environmental threats like global warming, and for which the evidence perceived by the voting public is ambiguous. Just as the crew of the Deepwater Horizon put their own lives at risk by choosing to believe a less reliable negative pressure test instead of the standard test, we collective seem to be ready to believe that one snowstorm in December is a more reliable refutation of global warming than a year’s worth of temperature data showing 2010 to be one of the warmest years on record globally. Like the crew of the Deepwater Horizon rejecting the danger signals from the pressure tests, we’d rather believe that we are not responsible for global climate change that threatens the patterns of settlement and agriculture that our global civilization depends on.