Archive for the ‘Environmental Enforcement’ Category

DOT Wants To Keep Oil Trains On the Rails

via Wikimedia

via Wikimedia

There’s a lot of oil coming up out of the ground in the U.S. right now. Especially in North Dakota and Montana where there is a good old fashioned oil boom underway. We’ve noted before that increasingly that oil is making its way to market by rail. Given the unprecedented ramp up in production, it was inevitable that pipelines wouldn’t be able to handle all that extra goo. But shipping all that oil by rail is causing some problems. For one thing, the massive increase in the number of oil cars rolling across the land is tying up other rail traffic. Wheat farmers, for instance, are having trouble getting their crops to export terminals on the Pacific coast, and face skyrocketing freight charges. The tracks they need to move their grain are too crammed with oil trains.

Also, those oil trains have a tendency to go off the rails. Not only that, the oil from those north plains oil fields, known as Bakken crude, tends to be more flammable than your garden variety oil.  The combination of flying rail cars and volatile fuel has had some very unpleasant consequences. The issue just got close to home here at Knowledge Mosaic. Last week a Burlington Northern train carrying Brakken crude derailed underneath the heavily-traveled Magnolia Bridge in Seattle. Fortunately, the tanker cars didn’t explode and nobody was injured. But having those tanks flip over a mere mile and a half from our offices was a disturbing reminder just how vulnerable densely packed urban areas are to these rolling bombs. The first thought that popped into my mind was the thundering disaster in Quebec when an oil train derailed, killing nearly 50 people.

The dangers oil trains pose has drawn the attention of the Department of Transportation which has released details of proposed rules intended to improve the safe transportation of large quantities of flammable liquids. The Department proposes a wide ranging number of changes, from phasing out older tank cars, requiring upgraded braking systems, requiring more comprehensive flammability testing of oil prior to shipping, requiring future cars to have thicker hulls and rollover protection, and imposing reduced speed limits for oil shipments, especially in urban areas where any explosions would be the most destructive.

There will be a sixty day comment period in which the energy sector is sure to argue strenuously against the proposals. The railroad companies themselves are none too comfortable with the risks these shipments pose and are likely to support the regulations. As are the citizens of the countless cities and towns through which the trains run. Including all those people who drive over the Magnolia Bridge every day.

Bobby Jindal Presents “The Creature From the Oil-Black Lagoon”

via Wikipedia

via Wikipedia

There’s a lot of swampland on the Gulf Coast. A lot of that swampland has been polluted with oil. And a lot of that oil has oozed into the swamps of the legal system which is brimming over with lawsuits brought against the extraction industry. BP’s Deepwater disaster is only the most high profile case. It certainly brought a lot of public attention to the parlous state of the Gulf of Mexico and its hundreds of miles of vulnerable coastline – attention BP and its energy cohorts don’t want.

Things haven’t been going well for BP in the litigation that flowed up out of its underwater well along with all that oil. It has found it rough going even in the famously conservative and business-friendly Fifth Circuit Court of Appeals which has consistently swatted down the company’s attempts to wriggle off the liability hook. But the oil industry is nothing if not industrious. A business that hunts for oil thousands of feet below the surface of the sea will work just as hard to find a political solution to its legal problems. Now, thanks to Louisiana  governor Bobby Jindal, the oil business has what it hopes is a magic cloak to ward of further lawsuits.

Last week Jindal signed legislation designed to kill a lawsuit against almost 100 oil and gas companies.

The lawsuit was filed by the Southeast Louisiana Flood Protection Authority in an attempt to get oil and gas companies to pony up billions of dollars for damage caused by exploration and production in the vulnerable wetlands around New Orleans – wetlands that play a vital role in protecting the city from what the suit describes as the mortal threat of hurricane storm surges. The stakes for New Orleans could not be higher. The Authority filed suit to avert the dire consequences of the environmental degradation of the region’s coastline. The suit demanded that energy companies “honor their obligations to safeguard and restore the coastal treasures entrusted to them and from which they have so richly profited.” The Flood Protection Authority described the measures it demanded in its suit as essential to preserving the future of the state and its biggest city. The coastal barriers it sought to preserve have been brought to the brink of destruction over the course of a single human lifetime. Without immediate action to reverse the loss of wetlands and restore the region’s natural defenses, many of Louisiana’s coastal communities will vanish into the sea. Meanwhile, the Authority says, inland cities and towns that once were well insulated from the sea will be left to face the ever-rising tide at their doorsteps.”

Jindal’s signature has now thrown the future of that suit, and other similar actions, into doubt. The new law is specifically intended to stop the lawsuit in its tracks. It would limit enforcement of the state’s coastal zone program to the state Department of Natural Resources, a parish, a parish district attorney or the state attorney general.  The law previously allowed any government agency to file claims. The oil and gas industry lobbied strenuously to get the new law passed. Apparently the industry’s efforts were more persuasive than the state’s own attorney general who urged the governor to veto the bill, arguing that the language was both so vague and so sweeping that it would prohibit local governments from filing lawsuits against energy companies for past or future actions. A passel of legal scholars also weighed in warning that the bill would nullify lawsuits already filed against BP for damages from the oil spill by dozens of governmental entities. Environmentalists and urban planners are aghast.  The industry, on the other hand, was crowing about its bill, describing it as “a huge victory for the oil and gas industry as well as the economy for the state of Louisiana.”

The bill demonstrates how far and how deep the energy industry’s tentacles reach into the machinery of Louisiana politics. The Deepwater catastrophe brought a lot of unwelcome attention to the long-intertwined relationship between the oil and gas industry and Louisiana’s politicians. The new law is designed to restore that relationship to its historical centrality in the state’s political ecology. Whether it survives the inevitable appeals (it almost certainly won’t) is irrelevant. As a piece of of intimidating muscle flexing it’s in a class of its own: Let there be no doubt of who calls the shots in the state.

Jindal defended the bill by saying it creates “a more fair and predictable legal environment.” The good people of New Orleans can sleep easier now, secure in the knowledge that at least the legal landscape is predictable. The levees be damned.

Note: The Times-Picayune is, as always, doing yeoman’s work covering this story.

More Fracking Squabbles in Wyoming

Photo by Wikimedia Commons. Some rights reserved.

Photo by Wikimedia Commons. Some rights reserved.

Natrona County District Judge Catherine Wilking dealt a blow to Wyoming denizens (Wyomingites?) seeking specific information on chemicals currently being pumped into the ground that could be potentially harmful to the environment. Essentially, the court in Casper ruled in favor of the state of Wyoming, which already has the sought-after intelligence about these chemicals (thanks to a 2010 rule in which Wyoming became one of the first states to require fracking companies to disclose their ingredients to the state government) but refuses to share this information with the general public.

A bit of background: the chemicals in question are used by mining companies to lubricate the cracks in the earth created by hydraulic fracturing (fracking), so that loose sand will pour in and hold the cracks open, to more easily access the natural gases beneath. Environmentalists across the globe have grave concerns about the environmental consequences of fracking, as readers of this blog already know. Wyoming itself is already on red alert with the EPA regarding what kind of permanent damage is being done by fracking to its groundwater. So, the demand by environmental groups to publicly release the ingredients of these fracking fluids does not seem inherently unreasonable to me, and yet the court found otherwise, on the grounds that the ingredients are trade secrets that are protected from disclosure under Wyoming’s open records laws. Environmentalists argue that they have strong claims to the information, as it could help prevent irreversible pollution damage.

While environmentalist groups debate taking the case to a higher court, James Fallow, in a fascinating Q&A with the Atlantic, argues that asteroid mining within the next century could save the environment.

Fracking in California and Moviemaking in Pennsylvania

The Promised Land? Photo by Alan Bowring, some rights reserved.

In July, we wrote about the scramble to regulate fracking. Last month, California entered the fray, releasing a “discussion draft” of hydraulic fracturing regulations and seeking comments from interested parties ahead of the formal rulemaking process set to begin in February.

California’s Department of Conservation’s Oil, Gas, and Geothermal Division released the draft, detailing testing, monitoring, operating, and disclosure requirements (thanks to Arnold Porter for their advisory). The Division will operate a chemical disclosure directory to which operators will have to disclose information about the chemicals and concentrations used as well as data on the amount of fluid recovered. There is a trade secret exemption, but in the case of an operator withholding information, they must submit documentation of the type of information withheld, why it was withheld, and that the proprietary information could not be gathered through testing. However, operators would have to be able to provide the information immediately if necessary to investigate a release of fracking fluid or to a doctor to treat an individual exposed to fracking fluid.

Information from required pre-fracking testing would be available to the public before fracking at a particular well begins, and operators would be required to monitor certain variables in and around a well during fracking and for thirty days after.

A personal tidbit of my own says something on the topic as well.

I just saw Matt Damon and John Krasinski’s Promised Land, which seems to encourage viewers to focus on its exploration of selling mineral rights leases to gas companies rather than its characters and story, so I will do just that. Centered on a Pennsylvania town whose struggling farms are sitting on millions of dollars of natural gas, Matt Damon’s character as a representative of Global Crosspower Solutions claims to be offering the town its last chance to fund and prolong the myth of the small town of family-run farms. At a town meeting, an influential local science teacher raises questions about the risks surrounding the type of drilling Global plans to do – fracking – leaving some of the community hesitant to join farmers promised a big payout in their enthusiasm for the gas company’s drilling plans.

And though the appearance of a fake environmental advocate employed by Global to discredit environmental concerns portrays townspeople as uncritical pawns of interest groups, the point that such tactics may not be far from the truth is certainly taken. The questions Promised Land raises are as much emotional and cultural as scientific and political, but maybe with the information gathered through California’s regulations the debate in the future can be informed by a more measured understanding of its risks.

Second Term Preview of Environmental Regulation

Photo by Carl Chapman, some rights reserved

In the next four years, the Obama administration will make its mark on energy and environmental laws, working through pending legislation and proposed regulation as well as considering further reforms in response to environmental and industry lobbying.

A Marten Law memo has the rundown on anticipated changes to energy and environmental laws. Obama’s “all of the above” energy strategy, well chronicled at the Green Mien, is likely to continue. Federal renewable energy programs have seen opposition recently, and the outcome of the pending battle of the wind energy production tax credit will be an early test of the Obama Administration’s policy. Either way, renewable energy growth is likely to be lower in the coming years as production of natural gas continues to increase.

Fracking, too, has contributed to the domestic supply surge, while prompting calls for closer regulatory scrutiny. In response, the Obama Administration has proposed regulation of fracking on federal lands, and EPA is studying the potential impact of horizontal drilling on drinking water.

Energy infrastructure questions are on the agenda, too. Most importantly, the Administration will decide whether to authorize a re-routed Keystone XL pipeline bringing oil from Canadian tar sands to the Gulf of Mexico. Proposals for coal and natural gas export terminals are making their way through state and federal agencies as well.

In the news this week is Obama’s stance on climate change, a topic he avoided during his election campaign. A second term will ensure that EPA will proceed with its plan to regulate greenhouse gas emissions under existing provisions of the Clean Air Act, a plan upheld last summer by the D.C. Circuit Court of Appeals. In addition, EPA is expected to release standards for greenhouse gas emission from power plants and refineries. Several challenges to air quality rules are still pending, though, notably the Cross-State Air Pollution Rule and the Boiler MACT rule affecting industrial facilities.

At a press conference Wednesday, President Obama responded to a reporter’s question about his specific plans to address climate change. You should read his entire response here, but he made himself clear that ignoring jobs and growth simply to address climate change is not on his agenda: “I won’t go for that.” An agenda for job growth that includes making a dent in climate change, however, is “something the American people would support.”

In addition to air and energy policy previews, Marten Law’s memo has summaries of expected policy developments in natural resources and hazardous waste regulation.

EPA Struggling to Keep Pace with Fracking

Photo care of geograph. Some rights reserved.

Two reports were released by the Government Accountability Office this week detail challenges facing the EPA in overseeing the oil and gas drilling boom in the U.S. The growth of the dispersed and hard-to-follow fracking industry is the focus of the first report, while the second addresses the public health and environmental impacts of oil and gas development.

EPA officials report that inspection and enforcement of fracking sites is challenging due to limited information on many aspects of the industry. The EPA doesn’t receive information about new well sites in Ohio, for example, and their sheer number makes tracking them difficult. Baseline water-quality data are unavailable in most areas, so assessing groundwater contamination is difficult.

In addition, legal limits on EPA’s authority affects their ability to regulate some aspects of the fracking process. Exploration and production waste, for example, are not regulated under hazardous waste provisions in the Resource Conservation and Recovery Act. The Hill, with more details on the reports (here and here) notes that attempts to increase regulation of the industry have not advanced in Congress.

The second report notes that though all oil and gas development poses environmental and public health risks, the risks from shale gas development are particularly poorly understood. Studies the GAO reviewed, according to the report, “do not generally take into account the potential long-term, cumulative effects” so the extent and longevity of risks is unknown.

Supreme Court Backs Away Slowly From Chevron/Ecuador Dispute

Photo by Lita V. Some rights reserved.

In February of 2011, American gas giant Chevron (you know, the one with the cute cartoon cars) was ordered to pay $8.6 billion in pollution damages to by a provincial court the relatively small city of Lago Agrio, Ecuador, which claimed that Chevron (the 2nd largest oil company in the U.S.) had done irreparable damage to the area between 1964 and 1992 under the Texaco banner, another oil company that Chevron now owns. The lawsuit was launched in 1993, and the area affected by the damages has since come to be known as “the Amazon Chernobyl.” Chevron at the time responded by calling the ruling “illegitimate and unenforceable,” countering by suing the plaintiffs (the indigenous villagers of Lago Agrio) for racketeering, and requesting a stay of judgment from an international tribunal in the Hague. A federal judge in New York issued an injunction on the dispute in March 2011, blocking any enforcement on the judgment, which was later overturned by the 2nd U.S. Circuit Court of Appeals on January 26th, 2012.

Fast forward to yesterday, October 9th, 2012. The U.S. Supreme Court heard Chevron’s appeal, and ultimately ruled that it would not intervene and block the collection of legal penalties and damage fees, which now total $18.2 billion, as the original $8.6 billion figure was doubled by the Ecuadorian court when Chevron failed to make a public apology. The Supreme Court ruling came despite the fact that Chevron was backed by the National Association of Manufacturers and the U.S. Chamber of Commerce. The fight over environmental reparations will now continue in district courts in New York, Brazil, and Canada, and may end up back at the Supreme Court before a final verdict is reached. If Chevron is strong-armed into paying the $19 billion in damages, it will be the largest judgment of its kind in history.

Read our previous coverage of this case here.

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