Environment

Bottom-Up Approach to Climate Change

Allison Kvien, MJLST Managing Editor

Most often, climate change is discussed on the global, top-down level: what changes may happen all around the world as a result of increasing global temperatures and greater fluctuations in weather events. There are very interesting maps that can show you just how much coastline will be underwater depending on different levels of sea level rise. To see just how much sea level rise it would take to put any city in the world underwater, you can use this mapping tool. There are also plenty of articles discussing hundreds of other effects of global climate change, such as food production, human health, endangered species, and the global economy.

We talk about climate change from a bottom-up perspective far less often, but it is a perspective that really does deserve our attention. Myanna Dellinger, in a recent article published in 2013 by the Minnesota Journal of Law, Science, and Technology, discusses and analyzes “bottom-up, polycentric developments within national and international environmental and human rights law in general.” This approach to viewing the large issue of climate change could be very beneficial because, as Dellinger points out, “waiting for national- and supranational-level actors to reach a broadly based and substantively effective agreement on climate change mitigation is like waiting for Godot—unlikely to happen, at least at a substantively early enough point in time.” Dellinger’s article argues that bottom-up approaches could be very viable alternatives to waiting for the unlikely global, top-down action to occur. Read her interesting and novel article here.


Renewable Energy Accounts for Majority of New Energy Technology Installed in 2015 but Remains a Minority Producer Overall

John Biglow, MJLST Staffer

According to a United Nations Environment Programme report titled “Global Trends in Renewable Energy Investment 2016,” 2015 was a record setting year for global investment in renewable energy. A record $286 Billion dollars was invested in renewable energy technology in 2015. Furthermore, for the first time in history, renewable energy technologies made up more than half of the total gigawatt capacity of all newly installed energy technologies. Significantly, it was developing countries that led the way, with China, South Africa, Mexico, India, and Chile all showing an increase in investment. China itself accounted for over 1/3 of the total global investment with $102.9 billion invested.

According to a UNEP publication concerning this report, these developments are indicative of a structural change happening in the global energy system in the article Complexity in Global Energy-Environment Governance, Andrew Long discusses and describes the global energy system and the ways it reacts to change. Long argues that viewing the global energy system in the same manner that we study other complex systems will allow for a better understanding of how the system works and how it could be changed.

In his article, Long argues that the current global energy system shows both resilience and adaptation. By adaptation, he is referring to the system’s ability to incorporate new aspects into itself without experiencing an entire overhaul and shift in trajectory. The UNEP’s report which indicates the increasing role of renewable energy in the global energy system is demonstrative of this adaptation. By resilience, Long is referring to the entrenched nature and dominance of fossil fuels in the global energy system. Despite the major, and indeed record setting, strides made in 2015 in regards to renewable energy investment, it still only accounts for around 10% of total global energy production, as stated in UNEP’s recent report.

It is unclear what to make of the UNEP report at this juncture; on the one hand, if our goal is to increase the use of environmentally friendly energy sources, as it undoubtedly should be, then it appears we are on track. However, questions remain as to whether we are moving fast enough down that track. In his article, Long stated that in complex systems, occasionally small scale changes to the system can cause a system-wide shift and alteration, though he stressed that the occurrence of this is rare. Whether or not the increase of renewable energy use is indicative of a trend which will eventually de-trench the entrenched fossil fuel energy production is unclear at this point. Overall, the UNEP report seems to indicate a promising trend towards increased renewable energy usage, but if the global energy system is to undergo any drastic shifts, it seems that more countries will have to follow China’s example and invest heavily in new eco-friendly energy technologies.


Five-Year Extension May “Put the Falls Back in River Falls”

Katie Cumming, MJLST Lead Note & Comment Editor

A March 17, 2016 decision by the Federal Energy Reserve Commission (FERC) may “put the falls back in River Falls.” This is good news for community groups and environmental stewards, as this decision overturns FERC’s December 9, 2015 decision originally denying a five-year extension for the continued operation of the River Falls two hydroelectric dams (the River Falls Project). After the initial denial, the City released a letter stating that it would “pursue the extension through whatever means” available. FERC heard and ultimately granted the City’s extension because it “found that the unique circumstances in this case, such as the unanimous stakeholder support for the extension, the river corridor plan, and the size of the project, all demonstrate that a five-year extension of the license is in the public interest.” As a result of the recent decision the City effectively ended its relicensing efforts and is refocusing its resources on planning for the Kinnickinnic River Corridor. The five-year extension gives the City and stakeholders “breathing room to decide about the fate of the two dams.” City Management Analyst, Ray French, said “The benefit is that the five-year (license) extension pushes back the regulatory filing and process deadline in order to give the community time to engage in a river corridor planning process that will provide a vision for this central area and beyond. . . .” Re-evaluating the use of rivers as a resource is not unique to the Kinnickinnic River. As many dams age and become obsolete, communities are re-evaluating the economic and environmental costs of these dams. Kinnickinnic stakeholders have created a movement to “put the falls back in River Falls.” On April 5, 2016, River Falls will hold an election for City Council and Mayor. With the river’s fate to be determined, the result of this election will undoubtedly have an effect on whether the falls are put back in River Falls.


The Path of Pollutants Under the Clean Water Act

Ted Harrington, MJLST Staffer

In 1972, the Clean Water Act set forth a lofty goal—to “[r]estore and maintain the chemical, physical, and biological integrity of the nation’s waters.” (33 U.S.C. §1251(a)). Yet, the Clean Water Act only regulates point sources that discharge pollutants into navigable waters (33 U.S.C. §1251(a)(1)). As a result, many forms of water pollution escape federal jurisdiction, most notably, groundwater. This is because CWA regulation depends on how a pollutant reaches navigable water, instead of focusing on the end result. This added constraint is hardly logical when juxtaposed against the stated goal.

For example, if a pollutant is discharged into groundwater, and eventually reaches navigable Water Body B, the CWA does not have the ability to regulate the groundwater. In other terms, if the polluted effluent passes through groundwater, considered a “nonpoint source,” before it reaches Water Body B, no CWA regulation occurs.

To combat this issue, Federal District Courts in Hawai’i, North Carolina, and Pennsylvania have begun adopting the “Conduit Theory” (See Allison Kvien note Volume 16). The conduit theory states that if a body of water (groundwater) simply acts as a conduit, it should be viewed as an extension of the point source from which it is receiving the pollutant. This theory directs its attention to the ultimate result—the pollution of Water Body B. It is only logical that if Water Body B is being polluted, the source should fall under CWA jurisdiction. Why should we leave a source of pollution unregulated simply because the effluent isn’t being directly discharged into a navigable water? As the Court in Rapanos v. United States noted, “The [Clean Water] Act does not forbid the ‘addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’”

The issue of groundwater as a pollutant is receiving increasing attention in the courts. In the Northern District of Iowa, a case concerning the discharge of groundwater through tile drains is currently in litigation‑ Board of Water Works v. Sac County Board of Supervisors. This could be an opportunity for Iowa to take one of the first stances on the conduit theory in the 8th Circuit. Stay tuned!


Circumventing EPA Regulations Through Computer Programs

Ted Harrington, MJLST Staffer

In September of 2015, it was Volkswagen Group (VW). This December, it was the General Electric Company (GE) finalizing a settlement in the United States District Court in Albany. The use of computer programs or other technology to override, or “cheat,” some type of Environmental Protection Agency (EPA) regulation has become seemingly commonplace.

GE uses silicone as part of its manufacturing process, which results in volatile organic compounds and chlorinated hydrocarbons, both hazardous byproducts. The disposal of hazardous materials is closely regulated by the Resource Conservation and Recovery Act (RCRA). Under this act, the EPA has delegated permitting authority to the New York State Department of Environmental Conservation (DEC). This permitting authority allows the DEC to grant permits for the disposal of hazardous wastes in the form of an NYS Part 373 Permit.

The permit allowed GE to store hazardous waste, operate a landfill, and use two incinerators on-site at its Waterford, NY plant. The permit was originally issued in 1989, and was renewed in 1999. The two incinerators included an “automatic waste feed cutoff system” designed to keep the GE facility in compliance with RCRA and the NYS Part 373 Permit. If the incinerator reached a certain limit, the cutoff system would simply stop feeding more waste.

Between September 2006 and February 2007, the cutoff system was overridden by computer technology, or manually by GE employees, on nearly 2,000 occasions. This resulted in hazardous waste being disposed of in amounts grossly above the limits of the issued permits. In early December, GE quickly settled the claim by paying $2.25 million in civil penalties.

Beyond the extra pollution caused by GE, a broader problem is emerging—in an increasingly technological world, what can be done to prevent companies from skirting regulations using savvy computer programs? With more opportunities than ever to get around regulation using technology, is it even feasible to monitor these companies? It is virtually certain that similar instances will continue to surface, and agencies such as the EPA must be on the forefront of developing preventative technology to slow this trend.


Awaiting an Important Decision on the Gulf of New Mexico “Dead Zone” Lawsuit

Allison Kvien, MJLST Managing Editor

In 2013, the U.S. Environmental Protection Agency was ordered to set limits on nitrogen and phosphorous levels in U.S. waterways. These nutrients contribute to the loss of oxygen and cause what is called hypoxia to occur in the water, killing marine life. This year, the “dead zone” in the Gulf is larger than Connecticut and Rhode Island combined. While this is larger than average, it is not a record. The oxygen levels are so low in this zone that it was reported that even starfish are suffocating.

An appeals court recently decided that the district court should determine, based on the Clean Water Act (CWA), whether the EPA gave adequate reasons for its refusal to set limits on the nutrients in U.S. waterways. Environmental groups, such as the NRDC, are optimistic that the original ruling requiring the EPA to set nutrient limits will be reaffirmed by the district court.

This CWA ruling is analogous to the 2007 Supreme Court Clean Air Act (CAA) case, Massachusetts v. EPA, which ruled that the EPA must have good reasons, based on the CAA, for refusing to regulate greenhouse gases (GHGs). The Supreme Court found that the EPA’s rationale for not regulating GHGs was inadequate and required the EPA to come back with a reasonable basis for not regulating GHGs in order to avoid being forced to regulate GHGs.

If the outcome of this CWA lawsuit is that the EPA is required to regulate nutrients causing the enormous hypoxia zone, the EPA will embark on a hugely collaborative journey to set appropriate limits for these nutrients all over the country. For instance, the NRDC reports that Chicago, over one thousand miles away from the Gulf, was found to be the single largest contributor to the “dead zone” in the Gulf.


Recent Developments Affecting the “Fracking” Industry

Neal Rasmussen, MJLST Staff Member

In “Notes from Underground: Hydraulic Fracturing in the Marcellus Shale” from Volume 12, Issue 2 of the Minnesota Journal of Law, Science & Technology, Joseph Dammel discussed the then current state of hydraulic fracturing (“fracking”) and offered various “proposals that protect public concerns and bolster private interests.” Since publication of this Note in 2011, there have been major changes in the hydraulic fracturing industry as more states and cities begin to question if the reward is worth the risk.

Since 2011, required disclosures of the fluids used in fracking have become effective in fourteen additional states, increasing the overall number of states that require disclosures to twenty. While required disclosures have alleviated some concerns, many believe this is not enough and have pushed to ban fracking outright. Vermont was the first state to do so in 2012. Although progressive, the ban was more symbolic as Vermont contains no major natural gas deposits. However, in late 2014 New York governor Andrew Cuomo made a landmark decision by announcing that fracking would be banned within New York State. Many cities have begun to pass bans as well, including Denton Texas, right in the heart of oil and natural gas country. Citing concerns about the potential health risks associated with the activity, Florida could be the next state to join the anti-fracking movement. In late 2014, two Florida senators introduced a bill that sought to ban all fracking activities and a state representative introduced a similar bill in the beginning of 2015.

The bans have not been without controversy. The fracking industry has challenged many of the local bans arguing the bans are pre-empted by state laws and exceed the cities authority. After Denton passed its local ban, the Texas Oil & Gas Association filed an injunction arguing the city did not have authority to implement such a ban. It yet to be seen if the injunction will be successful but if the results in Colorado are any indication, where local fracking bans have been overturned due to state preemption, the fracking industry should be confident. Until or unless there is a major federal decision on fracking regulations, the fracking industry will be required to juggle the various state and local regulations, which are becoming less friendly as fracking becomes more controversial nationwide.


Could Changes for NEPA be on the Horizon

Allison Kvien, MJLST Staff Member

The National Environmental Policy Act (NEPA) was one of the first broad, national environmental protection statutes ever written. NEPA’s aim is to ensure that agencies give proper consideration to the environment prior to taking any major federal action that significantly affects the environment. NEPA requires agencies to prepare Environmental Impact Statements (EISs) and Environmental Assessments (EAs) for these projects. NEPA is often criticized for its inability to be effective in the courts for environmental plaintiffs looking for review of federal agency actions. Environmental petitioners who have brought NEPA issues before the Supreme Court have never won.

The Court has never reversed a lower court ruling on the ground that the lower court failed to apply NEPA with sufficient rigor. Indeed, as described at the outset, the Court has not even once granted review to consider the possibility that a lower court erred in that direction and then heard the case on the merits. The Court has instead reviewed cases only when NEPA plaintiffs won below, and then the Court has reversed, typically unanimously.

Because environmental plaintiffs have never won before the Supreme Court on a NEPA issue, many view the statute as a weak tool and have wanted to strengthen or overhaul NEPA.

According to a recent report from the Environmental Law Reporter, President Obama is now “leaning on NEPA” for the work he hopes to accomplish in improving the permitting process for infrastructure development, but it does not look like he is working to improve NEPA itself,

The president’s initiative has identified a number of permitting improvements, but it does not include a serious effort to force multiple agencies to align their permitting processes. A key to forcing multiple agencies to work together on project reviews and approvals is found in an unlikely place: NEPA. The statute is overdue for a makeover that will strengthen how it identifies and analyzes environmental impacts for federal decisionmakers. In doing so, it can provide the framework that will require multiple agencies to act as one when reviewing large projects.

Though Obama’s proposal may not address improvements for NEPA itself, could it help those who have long wished to give NEPA an overhaul? This is not the first time in the last couple years that the President has talked about using NEPA. In March 2013, Bloomberg released news that Obama was, “preparing to tell all federal agencies for the first time that they should consider the impact on global warming before approving major projects, from pipelines to highways.” With NEPA being key to some of President Obama’s initiatives, could there be more political capital to address some changes for NEPA that have been long-wanted? There might be some hope for NEPA just yet.


Driving Under the Influence: Recent Legal Developments in Cellulosic Ethanol Industry

Ke M. Huang, MJLST Lead Articles Editor

As a second-year law student, I met an energy law attorney who told me that sometimes his job felt like mediating between two parents. Two parents butting heads.

The more recent legal developments in the cellulosic ethanol industry since the publication of my student note in the Volume 15, Issue 2 of the Minnesota Journal of Law, Science & Technology echo the words of the attorney I met. In the note–published in Spring 2014 and entitled A Spoonful of Sugarcane Ethanol–I argue that the U.S. should enact tax benefits to spur cellulosic ethanol based on existing Brazilian tax benefits for sugarcane ethanol. Ethanol, or ethyl alcohol, is a fuel fermented from renewable resources. In the case of cellulosic ethanol, the resource is vegetative and yard waste; in the case of sugarcane ethanol, the resource is sugarcane juice.

Unlike the note, which focuses on tax benefits, the recent developments in the cellulosic ethanol industry center on blending mandates, both in the U.S. and Brazil. Under these mandates, motor fuel–which contains mostly gasoline–must be blended with a certain amount of ethanol. The U.S. motor fuel mandate is the Renewable Fuel Standard (RFS). RFS, which generally requires the petroleum industry to blend in motor fuel specific amounts for cellulosic ethanol, was already subject to litigation in American Petroleum Institute v. EPA, 706 F.3d 474 (D.C. Cir. 2013). However, the concerned industries of that case, primarily the petroleum industry and the cellulosic ethanol industry, continue to disagree. Broadly speaking, as further elaborated in this Bloomberg BNA blog entry, the petroleum industry takes the position that the RFS is unworkable. To much the vexation of the cellulosic ethanol industry. What makes the recent development more interesting is that, since early 2014, the cellulosic ethanol production seemed to have increased. Extending the metaphor of fighting parents, it is as if the ethanol parent continues to grasp the motor fuel teen, a teen that has grown bulkier in size, when the petroleum parent is ready to send the teen off to college.

In Brazil, a similar “family tale” ensues. In late 2014, Brazilian President Dilma Rousseff signed the legislation to increase Brazil’s blending percentage of ethanol from 25% to 27.5%. Still, the semi-public petroleum producer Petrobras expressed concern that, before the change in the mandate can be put in effect, more study is needed. These articles further explain these events (1)(2). As such, in this “family,” the parents are at a deadlock.

On a more serious tone, as I reread my student note, I would like to make two corrections. I apologize for the misspelling of Ms. Ruilin Li’s name on page 1117, and for the missing infra notations on page 11141 (notes 218 to 221).


Localized Climate Change: A Glance at the Minneapolis Climate Action Plan

Matt Mason, MJLST Staff

Historically, the climate change mitigation arena has centered almost exclusively on traditional national and supra-national actors. However, persistent failures in seeking widespread agreement among many nations with diverging interests have recently given rise to experiments in climate change mitigation by nontraditional actors at the sub-national and sub-state level.

Myanna Dellinger recently wrote an excellent and informative article advocating for the need to implement local climate change initiatives. Dellinger examined a number of recently adopted local climate change initiatives, arguing that bottom-up methods can indeed be an effective alternative to the more traditional top-down approaches. With nontraditional local government and non-government actors becoming more involved in climate change mitigation due to lack of effective action of the traditional climate change actors, Dellinger concluded that “local initiatives currently present the most promising course of action for effective climate change solutions.” Effective local climate change solutions should focus on a number of factors, according to Dellinger, including carbon reduction, public participation, improved energy infrastructure, and the mobilization of private entities. Additionally, Dellinger found that city programs with some degree of enforcement, such as exclusion for non-compliance and public disclosure of progress, tend to be more effective.

The City of Minneapolis has a history of implementing climate change initiatives at the local level, starting with the Minneapolis – St. Paul CO2 Reduction Projection in 1993. In 2004, then Mayor R.T. Rybak signed the U.S. Conference of Mayors Climate Protection Agreement pledging to take action to reduce greenhouse gas emissions. Most recently, the City of Minneapolis adopted the Minneapolis Climate Action Plan this past June.

The overall goals of the Climate Action Plan are to reduce emissions by 15% in 2015, and 30% by 2025. The Plan seeks to achieve collaboration between local government, businesses, civic organizations, and residents alike to not only reduce emissions, but also improve public health, shift to a more energy efficient economy, generate more electricity from local and renewable sources, and to promote cleaner fuel use throughout the public transit system. To achieve these goals, the Plan itself focuses on three key sectors: buildings and energy (with commercial and residential buildings being the largest source of emissions in 2010 totaling 65% of all emissions), transportation and land use (with transportation representing the second largest emitter at 29% of total emissions in 2010), and waste and recycling (including the goal of increasing the recycling rate to 50% by 2025).

While we often do not think about the impacts of climate change at the local level, the Climate Action Plan highlights a number of localized effects of recent climate change. For example, since 1970 the average annual precipitation in the Minneapolis area has increased by 20%. Additionally, average air temperatures are increasing, with the greatest warming trend at night and in the winter months, which is consistent with higher concentrations of greenhouse gasses in the atmosphere. If the current climate trends continue, the Plan projects difficult summers ahead with increasingly common heat waves and “extreme heat events.” Not to mention to projected increase in days with low air quality and a general increase in the level of ozone pollution.

While it remains to be seen just how effective the Minneapolis Climate Action Plan will be, it appears to be relatively in line with the localized climate change policies advocated for by Dellinger. The Plan requires progress to be reported annually, and provides that climate reduction goals and strategies must be revisited at a minimum of every three years. In addition, the Plan seeks to improve the energy infrastructure by making environmental and infrastructural benefits more equitable between low-income communities and elsewhere in Minneapolis. Furthermore, the Plan seeks the involvement of private entities and the public at-large. On a broad policy level, the Plan prioritizes “high impact, short timeframe,” and cost effective strategies, while attempting to implement strategies with multiple benefits to the climate change problem. Time will tell whether Minneapolis’s own localized climate action plan will see effective results such as those analyzed by Dellinger, but hey, you have to start somewhere.