This climate change-related virtual fellowship opportunity, sponsored by the UNFCCC, was forwarded to me recently. It looks quite interesting; targets young professionals (under age 30).
During the midst of the 2020 election, Americans heard a common phrase in the presidential debates and other online forums: will Joe Biden ban fracking? Many might ask “what is fracking?” It is the process of extracting natural gas or oil from shale and other forms of rock by blasting water, chemicals, and sand at pressures high enough to crack the rock to allow the gas and oil to flow to the surface. Because fracking makes it easier to obtain hard to reach sources of oil and gas, it has transformed the energy industry in the US. The technology has been popular in many states, including in Pennsylvania, a swing state in Presidential elections with one of the most electoral votes.
Apart from simply being a fossil fuel extraction technology, fracking has been extremely controversial because of its many negative environmental impacts. Fracking contributes to groundwater contamination, uses large amounts of water, causes earthquakes due to the pressure on the rock formation, and allows greenhouse gases to escape into the atmosphere. Fracking has also raised serious public health concern — fracking is linked to cancer, respiratory and neurological problems, birth defects, and premature mortality, especially for industry workers who are exposed on-site.
In spite of such environmental and health concerns, President-elect Joe Biden has promised not ban fracking, mostly because fracking makes up a large portion of the energy industry and is a source of jobs and economic prosperity in states where thousands of people work in the industry. Instead, the President-elect’s plan is to stop issuing new fracking permits on federal land, while allowing fracking to continue on private lands.
The plan is an effort to please people on both sides of the aisle — no new fracking on public lands to appease those who are concerned about the environmental impact of fracking, while making a concession to states and industry by continuing to allow fracking on private lands to be regulated by states. Yet, it is also unclear how much this compromise will accomplish for the environment. In states such as Pennsylvania, allowing fracking to continue on private land will have little effect on curbing this practice since most fracking there occurs on private land. In fact, oil and gas production utilizing fracking technology on federally owned land constitutes less than 10% of the US total. Thus, even though the Biden’s plan constitutes an important compromise and valuable first step in addressing the problems associated with this controversial gas extraction technology, it is not likely to make a significant difference in terms of a nationwide positive impact. It remains critical for strict regulations and permit requirements to be imposed on ongoing and future fracking activities once the Biden Administration begins its work, regardless of whether they occur on private or public lands. Otherwise, this initial policy compromise is unlikely to accomplish much for the environment and will be little more than political cover.
In 2019 the U.S. Fish and Wildlife Service promulgated significant rollbacks to its regulations implementing the Endangered Species Act, especially sections 4 and 7 of the Act. These address the endangered species listing and delisting process, designation of critical habitat, and consultation with other federal agencies. Interior Department Secretary Bernhardt has stated that these roll backs will make the ESA more efficient and “ensures more resources can go where they will do the most good: on-the-ground conservation.” While efficiency and being pro-industry are important issues for conservative administrators, I believe that these rollbacks significantly weaken the ESA’s ability to protect this nation’s important biodiversity and will increase the likelihood of species extinctions.
One the most detrimental changes was the removal of regulatory requirements that listing decisions be made “without reference to possible economic or other impacts of such determination.” Under the new amendment to the ESA regulations, wildlife listing decisions may now consider the economic impacts of such a determination. This rollback is obviously beneficial to private landowners who are subject to the ESA. However, commentators have argued that listing decisions should be made solely on the best scientific data available for species preservation rather than economic concerns.
Another important change related to the situations in which a critical habitat no longer needs to be designated at the time of listing. Agencies will now also have to satisfy a higher standard of scrutiny for unoccupied areas to be designated as a “critical habitat”. Agencies now must first evaluate occupied habitats before considering unoccupied habitat for designation as a critical habitat. In addition, unoccupied habitat must now contain one or more physical or biological features essential to the species survival to qualify for “critical habitat” designation.
Finally, the most significant change to the ESA is arguably the removal of the “blanket 4(d) rule”. Previously, Section 4(d) of the ESA automatically provided “threatened” species with the same “take” protections of “endangered” species. With the removal of this blanket rule, the U.S. Fish and Wildlife Service will now need to establish a specific take provision for each “threatened” species on a case-by-case basis. Even though this 4(d) rescission only applies to future “threatened” species listings or downgrading of species listed as endangered to threatened status, commentators have warned that rolling back Section 4(d) could prevent newly listed “threatened” species from receiving adequate protection. In particular, it has been estimated that the U.S. Fish and Wildlife Service will need to more than double its output of species-specific rules to maintain the same level of protection that was previously afforded under the ESA.
These pro-efficiency and pro-industry changes to the ESA have undermined the Act’s ability to protect our nations’ species. I believe these changes are a major step in the wrong direction. Our country’s wildlife already face the ever-increasing destructive dangers of climate change which are seen in yearly devastating wildfires and hurricanes. These issues coupled with the rollbacks of the ESA puts our wildlife at a great risk of extinction.
On August 27th, 2020, the California Public Utilities Commission (CPUC) approved Agenda Item 27, a Biomethane Standard Interconnection Tariff (R. 13-02-008). In layman’s terms, this rulemaking created a standard process for interconnecting renewable natural gas producers with any investor-owned utility pipelines. For many citizens, this groundbreaking ruling represents a huge step towards decarbonizing our power infrastructure, since it creates an efficient process for lessening our reliance on fossil fuels in our power system.
Furthermore, there is one more significant issue. As more and more users begin to leave the gas system, fewer consumers, oftentimes low-income communities, are left to continue paying for the maintenance of the entirety of the infrastructure, which are costs that would otherwise have been supported by the customers that have switched. Similar issues arise with the Power Charge Indifference Adjustment (PCIA) exit fee which is paid by electricity users that want to buy their power from Community Choice Aggregates instead of their traditional utilities; this charge was used to supplement the transmission costs for utilities. While similar to the gas system change, the PCIA charge is triggered by users simply switching providers, rather than moving off the transmission infrastructure entirely. Thus as Gridworks, a consulting organization focusing on transforming our energy system for the future, puts it, we have two paths forward:
However, there is also different side to this debate. Since much of the natural gas system, especially the transmission pipeline portion, is prone to leakage, it is one of the largest contributors to atmospheric pollution. Thus, some view this ruling as allowing the natural gas industry to entrench itself in an effort to stay relevant and provide different kinds of gas, contrary to calls for widespread electrification of buildings, cars, and homes. For instance, the city of Berkeley recently became the first in the nation to prohibit natural gas pipeline hookups to new buildings. Consequently, the system of pipeline infrastructure is slowly falling into disarray with an uncertain plan for its future, as communities are likely to continue to leave the system.
- A smart, managed path that maximizes benefits and minimizes costs for everyone
- An uncontrolled path is reactive and costly
The upshot of Gridworks’ analysis of these two paths is that California needs to put a plan in place to address this soon so as to avoid the inevitable scramble of supporting an inefficient and outdated gas system. Yet, this is easier said than done. In effect, this will require creation of a formal state-wide effort ensuring a sound and sensible transition off the system, while adjusting gas customer rates in a way that incentivizes the exploration of alternative external funding sources to recover gas transition costs. Unfortunately, the 2019 report by Gridworks, a leader in the energy consulting field, offers no further guidance than big picture considerations, and a grim reminder that this transformation will be one of the most challenging tasks facing us in the 2020 decade.
Carl Yirka, a long-time Vermont Law School professor and friend, passed away over the weekend, after a long battle with cancer. Carl was a wonderful human being, a great friend and colleague during my time at VLS, and a witty travel companion extraordinaire. In addition to the time I spent with him on matters related to the VLS China program, one of my fondest memories with him dates back to a 1999 trip to Petrozavodsk, Russia. It was right around the summer solstice, and we were there for a short environmental law teaching stint. We arrived into St. Petersburg on a flight from the US. After a full day exploring St. Petersburg, the evening/night-time van ride to Petrozavodsk was one of the most memorable (but also bizarre) trips that I have ever experienced. Since it was the summer solstice and since St. Petersburg is located at a relatively high northern latitude (approximately the same as Anchorage, Alaska), daylight lasted almost 24 hours. Driving during these “White Nights” basically meant traveling through a rural landscape where people were doing gardening, recreation, and other activities at a time when everyone would ordinarily be asleep. For the entire 4-5 hour drive there, the driver kept telling us that we were about to arrive even though it would be hours longer. The road seemed to go on forever, and the sun kept hovering around the horizon but never set. It was an experience that could have come straight from a Twilight Zone episode. And to cap it all off, when we arrived, we had a full Russian dinner with our hosts at around midnight.
I am really going to miss him.
So it turns out that I have been voted “Most Entertaining Law Professor of the Year” by the Santa Clara law students (with the award delivered by the Student Bar Association Presidents and duly inscribed on a vinyl record). It made my day! However, I also have to confess that I am a little bewildered — my family usually accuses me of being too serious and “a stick in the mud.” But it still made my day (and probably my month). (I think my property law students were happy for me, too! So kind of them.)
Starting next semester, Santa Clara Law students can expect to see an even more globally diverse campus as the Law School and the Instituto Tecnológico y de Estudios Superiores de Occidente (“ITESO”) have signed a new exchange agreement that will open up exciting opportunities for law students and faculty of both institutions.
ITESO is a Jesuit university founded in Guadalajara, Mexico in 1957. Like Santa Clara Law, ITESO is known for its academic excellence, a deep concern for both local and global contexts, and its commitment to social justice. Santa Clara’s Center for Global Law & Policy trains students to meet the challenges of globalization for the practice of law and supports cutting-edge faculty research in international and comparative law to advance justice and the common good.
Pre-Law Magazine once again gave Santa Clara Law’s International Law program an “A+.” Regarding our International Law program, the magazine stated, “Santa Clara University School of Law in California, another A+ school in this specialty, is home to the Center for Global Law and Policy, which offers the largest and one of the oldest summer aboard programs in the nation. It offers nine summer class programs as well as more than 30 externship options, including working in large international law firms, local firms, nongovernmental organizations, courts, international organizations and the UN.”