All posts tagged 'environmental impact statement'

Damascus Citizens for Sustainability Attack Marcellus Shale Gas

August 28, 2011 21:10
by J. Wylie Donald
No, this is not jihad or the last gasp of a d esperate despot.  Instead, it is a citizens group taking on the government and seeking to compel the completion of environmental impact statements (EISs) prior to the promulgation of regulations for the development of shale oil wells in the Delaware River Basin.  If they are successful, they will certainly delay the drilling of hundreds if not thousands of wells.  And as part of that success, the role of natural gas as a "bridging" fuel to ease us into a carbon-free world may be substantially diminished. Taking a page from the playbook of past environmental challenges, Damascus Citizens for Sustainability, Inc. filed suit earlier this month against the Army Corps of Engineers, Fish and Wildlife Service, National Park Service, Department of the Interior, EPA and Delaware River Basin Commission (DRBC), as well as various officers in their official capacities to block hydraulic fracturing ("fracking") activities in the Delaware River Basin. The gravamen of the complaint (attached) is that the agencies have violated federal law by failing to require the completion of an environmental impact statement before promulgating regulations allowing natural gas development within the Basin.  Plaintiff seeks declaratory and injunctive relief.  DCS is a non-profit conservation group whose members "live, work and recreate" in the Basin. Complaint ¶ 11.  Members of DCS include organic farmers, bird watchers, hunters and fishermen. Id. ¶ 12.  Some will take offense at the disengagement of some of the plaintiff's members who "escape on weekends and vacations to their refuge in the Upper Delaware Basin where they can commune with nature in the bucolic setting of the Basin."  Id.  As summarized by the complaint, "For each member of DCS, the Basin's unspoiled resources are his or her own Walden Pond."  Id. Defendants are government agencies responsible in one way or another for the watershed.  As such, effects from fracking (which, according to the complaint, will result in between 15,000 and 18,000 natural gas wells in the Basin, id. ¶ 62) fall under their jurisdiction. A substantial hurdle in plaintiff's suit is whether the National Environmental Policy Act (NEPA) (which requires EISs) even applies to an interstate commission such as the DRBC. As the complaint acknowledges, "DRBC has stated that it is not subject to NEPA, noting that four of the five commissioners are appointed by states.  DRBC thus refuses to comply with NEPA."  Id. ¶ 32.  There is support in the case law for this position:  "That DRBC is a federal agency for purposes of NEPA is very doubtful."  Delaware Water Emergency Group v. Hansler, 536 F. Supp. 26, 35 (E.D. Pa. 1981).  DCS argues that, among other things, the DRBC is a federal agency as it was established by federal legislation, publishes its regulations in the Code of Federal Regulations, publishes its activities in the Federal Register, is listed as a U.S. Government Agency by USA.gov and is viewed as a federal agency by the Council of Environmental Quality, which oversees the federal government's compliance with NEPA.  Complaint ¶¶ 26, 28, 29. If DCS gets past that hurdle then numerous aspects of fracking may come under the microscope.  Allegations include:  highly contaminated return flows of water, gas and other materials, confidential fracking fluid formulas containing "carcinogenic, acutely toxic, chronically toxic and bioaccumulative" materials, methane emissions as greenhouse gases, "systematic evidence of methane contamination of drinking water from gas extraction activities", "large-scale changes in land use and increased water withdrawals," "significant air pollution from truck exhaust emissions," "serious vehicular accidents,"  "significant public health problems" and  permanent change to the rural and scenic character of the area.  Id. ¶¶ 50, 51, 54, 59, 62, 63, 65 and 66.  It is obvious that full development of all these topics will substantially delay the development of the Marcellus shale. To focus on just one aspect of the allegations, it is worth looking at greenhouse gas emissions.  The conventional wisdom is that because natural gas is composed of lighter, less complex hydrocarbons, and therefore when combusted it emits less carbon dioxide per BTU than other fossil fuels, it is to be preferred over oil and coal.  NaturalGas.org reports on its webpage that "The combustion of natural gas emits almost 30 percent less carbon dioxide than oil, and just under 45 percent less carbon dioxide than coal."  (Particulates, SOx and NOx and mercury are likewise much lower.)  Methane, an even more potent greenhouse gas than carbon dioxide, and a significant component of natural gas, likewise is reported to have better characteristics in natural gas. An EPA/Gas Resources Institute 1997 study concluded "that the reduction in emissions from increased natural gas use strongly outweighs the detrimental effects of increased methane emissions."  Id.  Accordingly, many believe that if one substitutes natural gas for coal and oil, one could continue to grow the economy while at the same time reducing greenhouse gas emissions. This proposition is under attack.  Citing a 2010 EPA study, DCS pleads that EPA "revised its estimated potential emissions from gas well completions from 0.02 tons of methane per well to 177 tons of methane per well."  Complaint ¶ 63. We tracked down the EPA study and some additional scholarship.  In Greenhouse Gas Emissions Reporting from the Petroleum and Natural Gas Industry, Background Technical Support Document, the EPA walks away from its earlier study:  "new data and increased knowledge of industry operations and practices have highlighted the fact that emissions estimates from the EPA/GRI study are outdated and potentially understated for some emissions sources."  Background Technical Support Document at 8.  One of those sources is unconventional natural gas production, aka fracking.  Appendix B of the study lays out the sources of the new data and they are thin: four presentations at a 2007 EPA Natural Gas STAR Production Technology Transfer Workshop .  Nevertheless, they may be a game changer. Cornell researchers Howarth, Santoro and Ingraffea took the new numbers and applied them to the proposition that natural gas should be used "as a transitional fuel, allowing continued dependence on fossil fuels yet reducing greenhouse gas (GHG) emissions compared to oil or coal over coming decades."  Howarth at 2.  They concluded that shale gas has a greenhouse gas footprint substantially larger than previously thought and that, depending on circumstances, the footprint of coal can be superior to that of shale gas (i.e., smaller).  Id. ¶ 8.  Thus, "the large GHG footprint of shale gas undercuts the logic of its use as a bridging fuel over coming decades, if the goal is to reduce global warming."  Id. One thing that was striking in the EPA study was the acknowledgment of "great variability in the natural gas sector and [that] the resulting emission rates have high uncertainty."   Background Technical Support Document at 86.  EPA also noted that its results do not include reductions due to control technologies.  Id. at 87.  Howarth et al. acknowledge the efficacy of technology and that "methane emissions during the flow-back period in theory can be reduced by up to 90%."  Howarth ¶ 7.  In practice, they assert it does not happen.  If Damascus Citizens for Sustainability has anything to say about it, we will know more. Damascus Citizens for Sustainability, Inc. v. U.S. Army Corps of Engineers et al, 11-cv-03857 Complaint (Aug. 10, 2011).pdf (828.33 kb)

Carbon Dioxide | Carbon Emissions | Climate Change Litigation | Greenhouse Gases | Sustainability

Coal Exports and Rising Temperatures

June 13, 2011 04:33
by J. Wylie Donald
Front page news in Baltimore this past week were two stories. The first notes record temperatures in Maryland in the first full week of June, 2011.  The second was a lead article this Sunday on the record year the Port of Baltimore is having moving coal from the mines of Appalachia to the coke ovens of Asia. It does not take a Shakespeare schooled in climate change to grasp the irony. First, the weather. Central Maryland suffered four 90-plus record highs in ten days, topping out at Baltimore-Washington International Airport at 99 degrees on June 8.  The summer (which hasn't even started yet) is picking up where last year left off as being the hottest on record for Baltimore.   Now, the coal. Ships are literally waiting in line in Chesapeake Bay to get a place at the pier to load the high quality anthracite "metallurgical" coal that this part of the world produces in abundance. Freight trains deliver millions of tons to two private terminals, which load ships capable of carrying 77,000 tons of the black stuff, or even 135,000 tons.  The Port of Baltimore is on track to ship over 14 million tons this year. For comparison this is almost 3 times the pre-recession volume of just 5 years ago. More jobs, more dollars, more activity. Of course, not everyone is happy. The Sierra Club points out that shipping coal is not consistent with being a leader on combating global warming. But the Sierra Club has no present intent to attempt to interfere with exports (but they will object to increasing the size of the Port). Not so across the continent.  Seems the Asian appetite for coal is also seeking the carbon of Montana and Wyoming.  The difference is that on the West coast the only dedicated coal terminal is in British Columbia.  Washington State is seeking to build new coal terminals with the first being at Longview.  Montana interests are excited at the prospect.  In Washington, however, the Sierra Club and others are opposing such activities and have appealed the Cowitz County commissioners' approval of an application to build a new coal terminal.    Besides the usual types of challenges to mining and transport in the domestic realm, the appellants also assert that the commissioners should have studied the consequences of burning coal in Asia.  This is novel.   My colleague, classmate and Seattle Port Commissioner John Creighton shared with me the implications:  "While many in Washington State are sympathetic to the environmental community's concerns over the ultimate impact of a large dirty coal export operation on global warming, the port community is apprehensive about how such a precedent might affect the environmental review process on other port projects.  For example, in looking to permit an airport project, would we be required to go beyond the airport grounds and consider greenhouse gas emissions of a British Air nonstop all the way from Seattle to London?  On a container terminal project, would we have to trace the greenhouse gas impacts of every possible product transportable in a container?" Commissioner Creighton's concerns are well-founded.  What are the limits of environmental impact assessments?  This approach by environmental groups - looking at the entire chain of events in a particular activity - is well-tested, however.  New nuclear power was stopped in California by focusing on California waste disposal law.  See Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Development Comm'n, 461 U.S. 190 (1983).  Chemical weapons disposal was challenged (unsuccessfully) by attacking the environmental impact statement and transportation across the "global commons."  See Greenpeace USA v. Stone, 748 F. Supp. 749 (D. Haw. 1990), dismissed as moot, 924 F. 2d 175 (9th Cir. 1991). So, it is hot in Maryland.  And elsewhere.  Notwithstanding the pass current coal shipping operations have in the East, the West may hold a lesson on whether this will continue to be business as usual.

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