Concerns Raised by the Wave of Hydrofracking in the US

Hydraulic fracturing, more commonly known as “hydrofracking,” is a controversial mining technique that allows natural gas and oil industry developers to reach otherwise unattainable deposits of shale gas.[i] There are varying techniques currently in use, but the general process involves pumping fluids at high pressures into underground wells to force out either oil or natural gas.[ii] The composition of this ‘fluid’ is generally unknown because disclosure is not required by industry groups, but it is estimated that some fluid mixtures may contain up to 29 different carcinogens.[iii] The Environmental Protection Agency (“EPA”) is in the process of actively researching hydrofracking techniques and potential human health effects with a focus on groundwater contamination.[iv]

Hydrofracking took off in the United States in the early-2000s, when the public health and environmental effects of the process were still largely unknown. Since then, there have been various problems with groundwater contamination, leading to people being exposed to an array of chemical compounds, as well as other anecdotal evidence of unforeseen consequences including earthquakes in Ohio and flammable faucets.[v] This type of ‘unconventional natural gas’ development has grown steadily in the United States. According to the EPA, in 1998, unconventional natural gas techniques comprised 28 percent of total U.S. natural gas production versus 50 percent in 2009.[vi]

Environmentalists and various opposition groups are calling for a halt on hydrofracking until the human health and environmental impacts are completely assessed and discussed seriously before moving forward.[vii] These groups feel that adherence to the precautionary principle is crucial, calling for mitigation techniques and remedies to pollution and other potential problems to be handled at the outset rather than as remedial measures.[viii]

There are a variety of legal issues that come with the advent of hydrofracking – while the practice is not particularly new, the application to directional drilling is new along with the sheer growth of the industry. Environmental effects of hydrofracking include air pollution, groundwater depletion and contamination, surface water pollution, soil erosion and sedimentation, among others.[ix] These diverse issues present a jurisdictional problem: both the environmental hazards and broader effects of the oil and natural gas resources are variously national, statewide, regional, and local.[x] Thus, the pervasive nature of hydrofracking activity presents the unanswered question, which level of authority should regulate – federal, state or local?[xi]

Another area of legal concern is the scope and effectiveness of the Safe Drinking Water Act (“SDWA”) in protecting against contamination due to hydrofracking. The SDWA is set up “to ensure the integrity and safety of public water for human consumption,” focusing mainly on toxic substances.[xii] EPA sought to regulate hydrofracking under the SDWA, and conducted a study of hydrofracking and potential impacts on underground sources of drinking water, concluding that injection of hydrofracking fluids posed a minimal threat, yet said that some chemicals can lead to environmental concerns.[xiii] Since this study, Congress passed the Energy Policy Act of 2005, which essentially left a loophole open so that states only have to obtain permits before drilling when diesel fuel is involved.[xiv]

The only effort so far to remove this loophole is the proposed Fracturing Responsibility and Awareness of Chemicals Act of 2011, which would impose two avenues of federal regulation.[xv] First, it would repeal the hydrofracking exemption mentioned above in the SDWA to include “the underground injection of fluids or propping agents pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities”.[xvi] This would then require EPA to monitor and issue permits, requiring state underground injection control programs that previously did not need a permit to acquire one. This bill died at the end of the 112th Congress, and was reintroduced on June 11th, 2013 in the Senate.[xvii]

The Clean Water Act (“CWA”) was put in place to restore and maintain the physical, chemical and biological integrity of waters of the United States.[xviii] The CWA further prohibits the discharge of “point source” pollution into the “waters of the United States,” without a permit acquired from EPA through the National Pollution Discharge Elimination System (“NPDES”).[xix] Hydrofracking produces tremendous amounts of wastewater which, mentioned above, may contain many different contaminants. The EPA generally defers to the various state permitting authorities, though the issue of permitting again implicates the jurisdictional issues of hydrofracking.[xx]

As hydrofracking is a novel and developing technique to mine oil and natural gas, there are a variety of other legal problems besides those mentioned here. The resolution of these issues depends on many factors, including the economic costs of permitting, environmental remediation efforts, and the interplay of federal, state and local actors. With new legislation pending in the Senate, the future of hydrofracking activities is currently uncertain.

 

- Christina Bonanni is a General Member on MJEAL. She can be reached at cdbon@umich.edu

 


[i] Hydraulic Fracturing (Hydrofracking), Pace Law Library, http://libraryguides.law.pace.edu/content.php?pid=227170&sid=1880060 (last visited April 1, 2014).

[ii] Id.

[iii] Goldfarb, Ben, Hydrofracking Poses Serious Risks to Human Health, PolicyMic, December 22, 2011, http://www.policymic.com/articles/2985/hydrofracking-poses-serious-risks-to-human-health.

[iv] Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources, U.S. Environmental Protection Agency, EPA/600/R-11/122. http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/upload/FINAL-STUDY-PLAN-HF_Web_2.pdf (November 2011).

[v] Supra, note ii.

[vi] Supra, note iv.

[vii] Supra, note iii.

[viii] Id.

[ix] John R. Nolon and Steven E. Gavin, Symposium: The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom, 63 Case W. Res. 995 (2013).

[x] Id.

[xi] Id.

[xii] 42 U.S.C. § § 300f-300j-26.

[xiii] Supra, note iv.

[xiv] Id.

[xv] Id.

[xvi] Id.; H.R. 1084, 112th Congress. (2011).

[xvii] s.1135: FRAC Act, https://www.govtrack.us/congress/bills/113/s1135 (last visited April 1, 2014).

[xviii] 33 U.S.C. § § 1251-1387 (2006).

[xix] Id.

[xx] Supra, note viii.

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China’s “War Against Pollution”

Environmental protection will be a hot topic at this year’s annual session of the National People’s Congress (NPC) of China. Premier Li Keqiang’s government work report, given at the opening of the NPC on March 5, 2014, listed nine “Major Tasks for 2014,” including the goal of “building China into a beautiful homeland with a sound ecological environment.”[1] To that end, Li has “declare[d] war against pollution.”[2] NPC Chairman, Zhang Dejiang, echoed Li’s proclamation, informing delegates, “We will revise the Environmental Protection Law and the Air Pollution and Control Law to improve environmental protection and management so that emissions of all pollutants are strictly supervised.”[3]

Improving the environment is consistent with the goals in China’s 12th Five Year Plan (2011-2015).[4] And legislation is one of the major solutions to China’s environmental problems. As China enters into the fourth year the Plan, the public will be watching the NPC closely to see whether progress toward the goal will be made, particularly in regard to decreasing air pollution.

Air pollution in China has been a major concern, both on a national and international level. China is home to 16 of the world’s twenty most polluted cities and produces a third of the greenhouse gas output on Earth.[5] According to a report by the Asian Development Bank, a mere 1% of China’s 500 largest cities were able to meet the World Health Organization’s air quality standards in 2012.[6]

February 25, 2014 marked the sixth consecutive day that Beijing’s air quality index met the “hazardous” level, according to the U.S. Embassy.[7] Pollution levels reached “501 micrograms per cubic meter, well above the World Health Organization’s safe limit of 25.”[8] Smog consistently engulfed many cities in China due to staggering levels of pollution, leading a professor at China Agricultural University to declare a “nuclear winter,”[9] while others are referencing an “airpocalypse.”[10]

Meanwhile, public discontent within China has been increasing. In a historic move in February 2014, Li Guixin, a resident of Shijiazhuang, the capital of Hebei, became the first citizen to bring suit against the government for “failing to curb air pollution” in accordance with the law.[11] Li claims he was unable to participate in outdoor activities this winter due to the horrendous atmospheric conditions,[12] and seeks $1,600 in damages from the Shijiazhuang Municipal Environmental Protection Bureau.[13] However, while Article 26 of China’s Constitution indicates a governmental interest in protecting the environment, the Constitution does not entitle individual citizens to a specific environmental right.[14] It is therefore uncertain whether the court will even entertain Li’s lawsuit.[15] Nonetheless, the bold action has drawn further attention to the government’s policies and spurred greater scrutiny of existing laws and their execution.

The pollution in China also has a global effect, and regularly contributes to the air quality problems in countries such as the United States. According to a study done in 2006, “On a daily basis, the export-related Chinese pollution contributed, at a maximum, 12-24% of sulfate concentrations over the western United States.”[16] Despite the efforts of countries like the U.S. to curb its own pollution, without reform, and as the world’s largest emitter of greenhouse gases, China has the potential to wreck further havoc not only to its own environment, but to the environments of other countries as well.[17]

However, potential solutions to China’s air pollution do exist. Allowing for and strengthening responses the laws may result in improved air quality. In the U.S., citizen groups have been successful in achieving changes in law and policy. If citizens in China were allowed to bring action against the government, as Li Guixin has done, perhaps the government would be held more responsible for its actions or inactions in the area of environmental protection.

In addition, some have suggested that judicial and executive responses could be held under stricter scrutiny.[18] The judiciary, economically dependent on local government and wrought with corruption and pressures to ignore the law, is not as accountable as it should be in upholding the laws.[19] Moreover, as the allegations by Li Guixin highlight, perhaps the enforcement of environmental laws by local officials could be more stringent and regulated by more oversight.[20]

A major solution is through the amendment of the existing environmental protection law in China. The speeches given on the opening day of the NPC session would appear to indicate the government’s apparent commitment to making this a top priority. This year, the Ministry of Environmental Protection is expected to propose an “Air Pollution Prevention Law” for review.[21] The current draft imposes fines on local governments for failing to meet targets for air pollution reduction.[22] If the threat of harsh sanctions is effective, perhaps citizens such as Li Guixin will not have to resort to taking independent actions against the government to improve the air quality.

In addition, individual citizens of China could be held to higher standards through legislation. Although factories and plants are major contributors to the smog, Chinese citizens each add to the pollution through their energy and consumption habits, as well as their selected methods of transportation. In the absence of established laws and policies, individual citizens have the opportunity to recognize problems and make their own decisions on whether and how to take independent steps toward a solution. But perhaps self-monitoring and individual initiatives to reduce air pollution are not possible without the threat of legal ramifications.

And although the government is responsible for creating and amending China’s environmental laws and regulations, perhaps there are other parties, such as foreign purchasers, who could share responsibility for China’s predicament. Questions have been raised as to what extent China should be held accountable for its air pollution as compared to countries to which China exports goods.[23] For example, a study in 2006 found that “36% of anthropogenic sulfur dioxide, 27% of nitrogen oxides, 22% of carbon monoxide, and 17% of black carbon emitted in China were associated with production of goods for export… About 21% of export-related emissions [of each pollutant] were attributed to China-to-US export.”[24] So even though Chinese factories and plants are at fault for the harmful emissions, other countries and corporations in those foreign countries have in a way encouraged China’s increase in pollution: either indirectly by demanding more products from China or directly by moving their production of goods overseas to China.

Officials have claimed that the “war on pollution” will be waged during this year’s annual session of the NPC. But it remains to be seen whether the Environmental Protection Law and the Air Pollution and Control Law will be amended or if any new laws will be approved. Both in China and abroad, the public will be watching the government’s actions carefully, in the hopes that its effects will drastically reduce, or at least curb, the current condition of air pollution. However, to have the greatest impact on improving its air quality, China must look not only to legislative solutions, but also to improving executive and judicial responses to the laws and policies, as well as potentially holding other parties, such other countries and their corporations, responsible for the problem.

 

-Dayna Chikamoto is a General Member on MJEAL. She can be reached at dchikam@umich.edu.



[1] Didi Kirsten Tatlow, China Declares “War Against Pollution”, N.Y. Times, Mar. 5, 2014, http://sinosphere.blogs.nytimes.com/2014/03/05/china-declares-war-against-pollution/?_php=true&_type=blogs&_php=true&_%20type=blogs%20&ref=environment&_r=1.

[2] Id.

[3] Zhang Hong, Pollution and Food Safety to Top Legal Agenda This Year, Zhang Deijang Tells NPC Delegates, South China Morning Post, http://www.scmp.com/news/china/article/1444270/pollution-and-food-safety-top-legal-agenda-year-zhang-dejiang-tells-npc (last updated Mar. 10, 2014).

[4] David Stanway, Water, CO2 the Priorities for China’s 5-year Plan, Reuters, Mar. 3, 2011, http://www.reuters.com/article/2011/03/03/us-china-environment-idUSTRE72214Y20110303.

[5] Beina Xu, China’s Environmental Crisis, Council on Foreign Relations, http://www.cfr.org/china/chinas-environmental-crisis/p12608 (last visited Mar. 18, 2014).

[6] Id.

[7] Julia Makinen, Toxic Smog Hangs Over Large Swarth of China but Many Ignore Threat, L.A. Times, Feb. 25, 2014, http://www.latimes.com/world/worldnow/la-fg-wn-china-air-pollution-20140225,0,2798618.story?page=%201#axzz2vbxZUMPS.

[8] Sean Breslin, China’s Smog Continues to Worsen; Now Being Called a ‘Nuclear Winter’, The Weather Channel, http://www.weather.com/news/science/environment/beijing-china-dangerous-smog-20140227 (last visited Mar. 18, 2014).

[9] Breslin, supra note 8.

[10] Xu, supra note 5.

[11] Sui-Lee Wee, Chinese Man Becomes First to Sue Government Over Severe Smog, Reuters, Feb. 25, 2014, http://www.reuters.com/article/2014/02/25/us-china-pollution-idUSBREA1J18E20140225.

[12] Id.

[13] Makinen, supra note 7.

[14] Ying Shen, Combating Climate Change: China’s Efforts on Environmental Legislation, The Envtl. L. Rep., http://elr.info/news-analysis/44/10153/combating-climate-change-china’s-efforts-environmental-legislation (last visited Mar. 18, 2014).

[15] Wee, supra note 11.

[16] Jintai Lin et al., China’s International Trade and Air Pollution in the United States, Proceedings of the National Academy of Sciences of the United States of America (Jan. 21, 2014), http://www.pnas.org/content/early/2014/01/16/1312860111.full.pdf.

[17] Xu, supra note 5.

[18] Shen, supra note 14.

[19] Id.

[20] Id.

[21] Michael Standaert, China Outlines Environmental Action in ‘War’ on Air, Water and Soil Pollution, Bloomberg BNA, http://www.bna.com/china-outlines-environmental-n17179882762/ (last visited Mar. 18, 2014).

[22] Id.

[23] Lin et al., supra note 16.

[24] Id.

 

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Michigan’s “Very Serious Consequences” Test: Zoning Standards and Natural Resource Extraction

In Lyndon Township, a major dispute is brewing between McCoig Materials, Inc. (McCoig) and concerned community members over a proposed gravel mine.  Located in the northwest corner of Washtenaw County, Lyndon Township is a rural community with a small population (2,720), few businesses, and abundant nature areas. The proposed mine location near the junction of M-52 and Territorial Road falls on land that abuts county-owned Park Lyndon and 20,500-acre Waterloo-Pinckney Recreation Area, a state-owned network of forests, lakes, and trails that is a recreational destination for outdoor enthusiasts.

McCoig has applied for a permit to operate a Mineral Mining Operation (MMO), including a variance request that would enable them to operate a gravel mine on land zoned as rural-residential.[1] In compliance with Lyndon Township’s Zoning ordinance[2] and Ordinance 21[3], a specialized ordinance that regulates the extraction of sand gravel and other earthen materials, McCoig provided the following documents: A hydrological review, environmental assessment, endangered species report, spill prevention control and containment plan, and a preliminary hauling route from the mine to US-94.[4]

The proposed gravel mine raises an array of environmental, safety, health, and economic concerns that have mobilized local residents to collectively take action to “Deny the Mine”.[5] On March 13th, a public meeting soliciting community perspectives drew around 500 people. The crowd of opposition included Jeff Daniels, Hollywood actor and resident of the nearby town of Chelsea, and multiple scientists and lawyers who are contributing their time and expertise pro bono.[6]

The legal side of this local dispute is fascinating, confusing, and unsettled. In 2006, the State legislature passed the Michigan Zoning Enabling Act (Public Act 110). The 2006 Act was silent as to what standard of review planning commissions should utilize when evaluating zoning requests that concern natural resource extraction.  However, common law had an established standard from Silva v. Ada Township, a 1982 Michigan Supreme Court case.[7] Silva established a “very serious consequences” test as the “standard for determining the validity of zoning which prevents the extraction of natural resources.”[8]

All zoning must bear a “direct and substantial relation to the . . . public health, safety, morals, and general welfare, or the community as a whole.”[9] In order to comply with this mandate and substantive due process, courts have construed that a zoning ordinance must be reasonable. Silva held that when a zoning law affects one’s ability to mine valuable natural resources, the “very serious consequences” rule must be applied to determine the ordinance’s reasonableness. The “very serious consequences” test established a presumption in favor of resources extraction- any zoning that prevents natural resources extraction is invalid unless very serious consequences would ensue.[10]

The Silva court reasoned that “preventing the extraction of natural resources harms the interest of the public. . . by making natural resources more expensive”.[11]  Since the cost of natural resources is largely dictated by transportation costs, a mine location proximately located to the extracted resource’s destination  lowers the (transportation and thus) production costs of the resource, which translates into a public interest- a lower price for the resource on the marketplace. Taken in aggregate, Silva establishes a two-prong test: (1) a subjective test where “the landowner must show that by extracting the resource he or she can reasonably hope to operate at a personal profit,” and (2) a balancing test where the degree of public demand for the resource extracted is compared to the consequences to the community.[12] In effect, the “very serious consequences” test elevates a generalized public interest in inexpensive natural resources over all other conceivable interests that may be particular to local communities.[13]

In 2010, the Michigan Supreme Court overruled Silva, holding in Kyser v. Township that the “very serious consequences” test violated separation of powers and was preempted by the Michigan Zoning Enabling Act (2006).[14] The court found that the test impinged on separation of powers because zoning is a constitutionally-mandated legislative function.[15] The effect of very serious consequences was that the court, not a legislative body, created state-wide public policy; “Michigan’s constitution directs the legislature, not the judiciary, to provide for the protection and management of the state’s natural resources.”[16] Additionally, the court interpreted that the legislative intent of the zoning enabling act was to empower local government to regulate land use, including the review process for natural resource extraction.[17] The court determined that the legislature did not intend for natural resource extraction to have a presumption of validity unless “very serious consequences” would occur.[18]

The Kyser court questioned the validity of two underlying premises of the serious consequences rule to come to that conclusion: (1) that natural resource extraction is preferred to other types of land use, and (2) that the public is always harmed by preventing the extraction of natural resources.

In direct response to Kyser, the state legislature amended Section 205 (which previously had no mention of natural resource extraction) of the Michigan Zoning Enabling Act by passing Public Act 113 (2011).  The act codified the “very serious consequences” test from Silva and added six considerations to help determine whether very serious consequences will result from mineral extraction.[19]

  1. The relationship of extraction and associated activities with existing land uses
  2. The impact on existing land uses in the vicinity of the property
  3. The impact on property values in the vicinity of the property and along the proposed hauling route serving the property, based on credible evidence
  4. The impact on pedestrian and traffic safety in the vicinity of the property and along the proposed hauling route serving the property
  5. The impact on other identifiable health, safety, and welfare interests in the local unit of government
  6. The overall public interest in the extraction of the specific natural resources on the property.

McCoig’s proposal is currently under consideration by the township planning commission and a date for a vote has not yet been set. The planning commission faces mounting pressure from both sides and a considerable fear of getting sued by McCoig if they deny the zoning request and MMO. The front page of Lyndon Township’s website contains the following disclaimer: “Please understand that the township’s authority to regulate MMO’s is very limited.”  Michigan State Legislators have greatly reduced township control by passed Act 110 of 2006.”[20] In the fiscal year ending on June 30, 2013, Lyndon Township drew in just $716,447 in revenue.[21] Lacking both the financial or personnel resources of McCoig, Lyndon is hoping to avoid a litigation from either side.

Regardless of whether Lyndon Township decides grant or deny McCoig’s proposal, the losing side will likely file a lawsuit. I believe that factually, a strong case can be made that the mine would have very serious consequences on Lyndon Township and neighboring Chelsea. Joel Blum, a University of Michigan Professor of Earth and Environmental Science questioned the thoroughness of McCoig’s hydrological report. He raises the concern that mining activities, which would convert the highest elevation point in Washtenaw County into a 50-foot lake, could contaminate wells in the surrounding area through facilitating the release of arsenic into the groundwater.[22] Additionally, at the March 13th public meeting, the thoroughness and veracity of McCoig’s endangered species report was challenged.[23]

From a safety and economic perspective, McCoig’s proposed hauling route is particularly troublesome. Each day, the gravel mine is expected to fill eighty truckloads that will travel to I-94 via M-52, passing straight through Chelsea’s quaint downtown. Chelsea residents and business owners have voiced concerns about traffic congestion, pedestrian safety, smells and debris, and a harmful impact on business revenue and property values. The culmination of environmental, health, safety and economic impacts strongly indicate that the McCoig mine poses very serious consequences to Lyndon Township and the city of Chelsea.

With Lyndon Township’s vote date not set, the timetable for this dispute is unclear. Stay tune to local media for ongoing coverage of this dispute!

 

-Hazel Blum is a General Member on MJEAL. She can be reached at hblum@umich.edu.



[1] Residents express concern over proposed storage facility in Lyndon Township, Lisa Allmendinger, http://www.twplyndon.org/Documents/attachments_2010_12_06/Chapter%205%20-%20R-R%20Rural%20Residential%20District.pdf.

[5] “Deny the Mine” is a slogan displayed on lawn signs around Lyndon Township.

[6] Jeff Daniels joins nearly 500 residents opposing new sand mine near Chelsea, Ben Freed, http://www.mlive.com/news/ann-arbor/index.ssf/2014/03/jeff_daniels_joins_about_500_r.html.

[7] Silva v. Ada Twp., 330 N.W.2d 663 (1982).

[8] Silva at 664.

[9] Alderton v. City of Saginaw, 116 N.W.2d 52, 55-6 (1962).

[10] Ryan (Dissenting), Silvia at 668.

[11] Silva at 666.

[13] See supra, note 10.

[14] Kyser v. Twp., 786 N.W.2d 543 (2010).

[15] Id at 556.

[16] Id.

[17] Id. at 559.

[18] Id. at 560.

[20] Supra, note 4.

[21] Township of Lynson, Report on Audit of Financial Statements, http://www.michigan.gov/documents/treasury/811080LyndonTwp20131220_443707_7.pdf.

[22] Supra, note 6 (Additionally, I must disclose that Joel Blum is my father and I have spoken to him about the issue).

[23] Very generalized questions were raised about thoroughness of the endangered species report. The report concluded that the proposed area of vegetation removal is not critical habitat for local endangered and threatened species. The report can be found at http://www.twp-lyndon.org/Documents/Appendix%20B.2%20%20Threatened%20and%20Endangered%20Species%20Report.pdf.

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Wealth, Enjoyment, and How Our Society Measures Success

Cost-Benefit Analysis (CBA) has been a mainstay of the regulatory state since the Reagan administration issued Executive Order 12,291 in 1981. Despite vigorous criticism, the CBA policy first introduced by Reagan has remained largely untouched by subsequent administrations.[i] Most recently President Obama issued his own Executive Order, reaffirming CBA practices under his administration. While CBA is the standard tool used for evaluating new regulations, many scholars have proposed alternative methods that they claim to be preferable to CBA.[ii] Recently John Bronsteen, Christopher Buccafusco, and Jonathan S. Masur proposed one such alternative to CBA: Well-Being Analysis (WBA). Although WBA claims to use the power of social psychology to innovate the tools available for regulators, it falls short of being the answer to the CBA problem.

Cost-benefit analysis provides regulators with a convenient tool to weigh the benefits of a new regulation against its burdens. This analysis is made particularly salient because CBA allows all costs and benefits to be measured with the same dollar metric. Basically, CBA weighs a person’s willingness to pay for a benefit of a new policy against his or her willingness to accept burdens introduced by a new regulation. Once dollar amounts are assigned to the benefits and costs of a regulation, regulators can easily quantify the net benefit of a proposed regulation.[iii]

Without a crystal ball, regulators must rely on CBA to determine if a proposed regulation is worthwhile. As a tool, CBA is easy to administer and provides a concrete way to measure the value of a regulation. CBA provides a one-size-fits-all approach for analyzing every sort of agency regulation; in this way, CBA acts as quality control among agencies, ensuring that any and all regulation analysis is conducted uniformly. CBA therefore creates a sort of scientific standardization in agency activity. The consistency and quality control offered by CBA also allows agencies to be transparent. The uniform application of CBA allows outsiders to understand exactly how a potential new regulation is being evaluated.

Although CBA is standard practice for regulators, it has consistently been criticized. CBA is primarily an economic tool, which many critics find incompatible with what CBA attempts to quantify. For example, CBA requires a dollar amount to be placed not only on human health but also on the value of a human life. Many critics have bemoaned that placing a dollar amount on things like human life is morally suspect and scientifically haphazard. “A particular life may have one value to the individual, another to his or her family, and still another to society at large.”[iv]

The consistent and vocal criticism of CBA has led many theorists to propose alternatives to CBA. Recently, Bronsteen et al, proposed well-being analysis (WBA) as a viable replacement for CBA. WBA heavily relies on hedonic psychology, which examines how individuals experience enjoyment in life. Instead of focusing on CBA’s willingness to pay vs. willingness to accept, WBA measures how much more or less a person would enjoy their life due to the effects of a regulation. “WBA simply adds up the positive experiences of life that individuals stand to lose or gain under a given project.”[v] WBA proponents argue that with advancements in hedonic psychology, a person’s enjoyment of positive experiences can be quantified into well-being units. They further argue that data about sense of well-being can be accumulated and analyzed with more or less the same, if not better, accuracy and efficiency as CBA.[vi]  Ultimately, WBA proponents argue that WBA presents the same benefits as CBA, but avoids CBA’s pitfalls introduced by wealth and monetization metrics.[vii]

Although WBA perhaps offers an alternative to CBA, it seems WBA is susceptible to many of the same criticisms as CBA. While WBA uses well-being units as a metric instead of dollars, it is unclear if well-being is in fact a better measure than money. Despite the change in metric units, the criticism that some things simply can’t be quantified remains. Additionally in some ways, enjoyment seems as superficial a measure as buying power. Intriguingly, WBA proponents note that increases/decreases in wealth are logarithmically proportional to a person’s increased sense of satisfaction.[viii] The link between wealth and enjoyments perhaps demonstrates that well-being and wealth have more in common than WBA would care to admit. Mainly, wealth and enjoyment are both transient measures of success that can vary over time. And in some sense, both wealth and enjoyment can only minimally represent a policy’s or a society’s success.

Generally speaking, WBA and CBA share a common foundation. CBA has been largely criticized as being misguided by placing a dollar amount on invaluable things, like human life. While WBA does not place a dollar amount on human life, it does place a number on it, albeit a number representing wellness units. By using superficial measures and building on the same foundation of systematic quantification, it seems that WBA and CBA share much in common.

In many respects, the commonalities between WBA and CBA allow WBA to be a good alternative to CBA. While WBA can offer a familiar type of analysis for regulators, it also shares many of CBA’s advantages. And, WBA proponents argue, WBA is a more sensitive tool that can better measure the effects of regulations.[ix] Ultimately, WBA advocates urge that the data provided by WBA and/or CBA are mere starting points for regulators.[x] They infer that it is the job of ultimate policy makers (assumingly the executive and legislative branches) to ensure that justice, fairness, and human dignity are considered.[xi] But this regulatory scheme depicts a regulatory state where the ends justify the means. It would perhaps be better to have an analytical regulatory tool that reflects our society’s normative values of justice, fairness, and equality.

While WBA presents an interesting development in the cost-benefit analysis debate, it is unclear how novel an approach it really is. WBA’s similarities to CBA make it an alluring analytical method. But its resemblance to CBA also suggests that WBA may not be a true alternative to CBA. Ultimately, the debate over CBA and the development of WBA would benefit from a candid evaluation of the normative values that animate U.S. law and regulation, in the hopes that one day, our regulators’ analytical methods are consistent with the ideals our society strives toward.

 

-Jessica L. Shaffer is a General Member of MJEAL. She can be reached at shjess@umich.edu

 



[i] Helen G. Boutrous, Regulatory Review in the Obama Administration: Cost-Benefit Analysis for Everyone, 62 Admin L Rev 243, 248 (2010). See also Michael A. Livermore, Can Cost-Benefit Analysis of Environmental Policy Go Global?, 19 NYU Envtl LJ 146, 151 (2011).

[ii] Michael A. Livermore, Can Cost-Benefit Analysis of Environmental Policy Go Global?, 19 NYU Envtl LJ 146, 163 (2011).

[iii] Michael A. Livermore, Can Cost-Benefit Analysis of Environmental Policy Go Global?, 19 NYU Envtl LJ 146, 161-63 (2011).

[iv] W. Kip Viscusi. Fatal Trade Offs. 17-19 (1992).

[v] John Bronsteen et. al., Well-Being Analysis vs. Cost-Benefit Analysis, 62 Duke LJ 1603, 1645 (2013).

[vi] Id. at 1664.

[vii] Id. at 1645.

[viii] Id. at 1640.

[ix] Id.

[x] Id at 1640.

[xi] Id. at 1616. See also, Exec. Order No. 13,563, 3 C.F.R. 215 (2012).

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Oklahoma Legislature Threatens Moratorium on Wind Developments until 2017

On March 12th, the Oklahoma Senate passed Senate Bill (SB) 1440, which places a moratorium on new wind farm developments in Oklahoma east of Interstate 35.[i]  This bill would effectively limit wind farm developments to only the western half of the state, significantly decreasing the potential for future wind farm development and diversification of Oklahoma’s energy portfolio.

As a state, Oklahoma has aggressively been pursuing an “all of the above” energy policy, which calls for integration of traditional fossil fuels such as natural gas and oil in tandem with newer renewable energy sources such as wind and solar.[ii]  While Oklahoma is often considered an oil and gas state with large drilling operations bringing in billions of dollars worth of production and additional billions in royalties[iii], 15% of Oklahoma’s energy is produced through wind power, making Oklahoma the state with the seventh highest amount of wind power generation as a percentage of total electricity generated.[iv]  Most of Oklahoma’s wind production takes place in the western, less populated area of the state.[v]

Many people would question the logic behind the moratorium when they find out that Oklahoma, a state with ample wind resources and a dedication to a diversification of its energy portfolio, is close to legislatively chilling private sector wind energy production in the state.  The answer, however, isn’t very clear.  Proponents of the bill have offered a number of justifications, including that a moratorium is needed in order to regulate an essentially unregulated industry, comparing wind energy development to that of oil and gas, which has been the subject of supervisory legislation and regulation – such as environmental permitting – for over 100 years.[vi]  Other supporters have said that the wind resources make the project cost prohibitive.[vii]  However, this justification is based on a map delineating areas of economically justified wind resources that was written in 2008, not based on current technology updated to reflect improvements in efficiency.  An additional justification is to separate wind farms from the more heavily populated cities and towns of eastern Oklahoma.[viii]

Critics of the legislation, including landowners and residents of eastern Oklahoma, are upset with the prospect of a moratorium that would hinder job growth and prevent locals from collecting royalties on new wind farm installations.[ix]  While proponents point to the 2008 report on Oklahoma wind sources, critics point to private wind companies who are champing at the bit to invest in eastern Oklahoman wind farms.[x]  It seems unlikely that profit-driven private companies would desperately try to invest in projects that are economically unviable, as suggested by proponents of the bill.  Private sector investment rarely ever flocks to areas of technical infeasibility.

While the actual justifications and underpinnings behind the bill and its massive legislative support may be opaque, the effects remain clear.  As gas production in the Caney Shale continues to boom and new wells are continuously spudded, wind production will become a smaller proportion of the Oklahoman energy portfolio and economy.  SB 1440 will be up for vote in the Oklahoma House of Representatives in the coming weeks, so only time will tell if these effects will materialize.

 

-Liam O’Sullivan is a General Member at MJEAL.  He can be reached at liamosul@umich.edu



[i] Ryan Gentzler, Wind power in Eastern Oklahoma: Not in my backyard?, Oklahoma Policy Institute, Mar. 18, 2014, http://okpolicy.org/wind-power-eastern-oklahoma-backyard-guest-post-ryan-gentzler

[ii] Id.

[iii] William Crum, Measuring the economic impact of oil and gas in Oklahoma County, News OK, March 28, 2014, http://newsok.com/measuring-the-economic-impact-of-oil-and-gas-in-oklahoma-county/article/3947992

[iv] Joe Wertz, Oklahoma Moves Up the Ranks by Adding More Wind Energy to its Electricity Mix, NPR: State Impact, Mar. 6, 2014, http://stateimpact.npr.org/oklahoma/2014/03/06/oklahoma-moves-up-the-ranks-by-adding-more-wind-energy-to-its-electricity-mix/

[v] Barbara Hoberock, Wind Energy Moratorium Sought, The Okie, Mar. 17, 2014, http://www.theokie.com/wind-energy-moratorium-sought/

[vi] Id.

[vii] Ryan Gentzler, Wind power in Eastern Oklahoma: Not in my backyard?, Oklahoma Policy Institute, Mar. 18, 2014, http://okpolicy.org/wind-power-eastern-oklahoma-backyard-guest-post-ryan-gentzler

[viii] Barbara Hoberock, Wind Energy Moratorium Sought, The Okie, Mar. 17, 2014, http://www.theokie.com/wind-energy-moratorium-sought/

[ix] Associated Press, Legislation to restrict wind farms progresses under fire, Muskogee Phoenix, Mar. 16, 2014, http://www.muskogeephoenix.com/statenews/x787219637/Legislation-to-restrict-wind-farms-progresses-under-fire

[x] Id.

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California Bans Lead Bullets: Protecting the environment or anti-gun agenda?

On October 11, 2013, Governor Jerry Brown signed Assembly Bill 711, banning lead ammunition for hunting in California. The bill requires the Fish and Game Commission to promulgate regulations on lead ammunition by July 1, 2015, and those regulations to be fully implemented statewide no later than July 1, 2019.[i] The Humane Society, Audubon California, and Defenders of Wildlife sponsored the bill in response to the danger that lead bullets pose to wildlife, specifically the endangered Californian condor.[ii] The bill states that fifty years of research has shown that the presence of lead in the environment poses an ongoing threat to the health of the general public and the viability of the state’s wildlife species.[iii] Most scientists and conservationists agree that lead is the primary threat to the lives of condors. Data for the studies came from captive-bred birds equipped with radio transmitters, captured and tested annually.[iv] Proponents of the Bill, including Jeff Miller of the Center for Biological Diversity, believe that switching to nontoxic ammunition will not only save the lives of thousands of birds every year, but will also decrease toxic lead exposure for hunters and their families.[v]

The Bill expands upon previous regulation in California which has not been as successful as the state hoped. In 2008, California passed The Ridley-Tree Condor Preservation Act and related regulations which required hunters to use non-lead ammunition for all hunting within the central and Southern California condor range.[vi] Unfortunately, the problem persisted. A 2012 study by the University of California at Santa Cruz found that “30 percent of blood samples taken from condors each year showed levels of lead high enough to cause significant health problems and that 20 percent of the free-flying birds required treatment to remove lead.”[vii] However, as noted by the Center for Biological Diversity, the previous regulations demonstrate that hunters can easily transition to hunting with non-lead ammunition since there had been no decrease in game tags or hunting in the affected counties over the last five years.[viii]

The new Bill elicited strong opposition from California Game Wardens, hunters, and the National Rifle Association, who believe the legislation infringes on 2nd amendment rights. Opponents argue that the previous ban in the use of lead ammunition in the condor’s range did not lower levels of lead poisoning and the new ban is, therefore, scientifically unfounded.[ix] Andrew Arulanandam, spokesman for the NRA, has responded that no connection of lead poisoning to ammunition has been proven, stating that “condors could be picking up lead from paint, junkyards or other sources.”[x] The National Rifle Association additionally complains that copper bullets cost more than lead bullets, and don’t fly the same.[xi] Don Saba, a member of the NRA board of directors with a doctorate in toxicology, questioned the science behind the bill and stated that California has an anti-firearm mentality with the ultimate goal of banning guns.[xii]

Although this constitutes the most extensive ammunition ban in the United States, it is merely an additional step in the long history of recognizing the danger that lead ammunition poses to wildlife. In Governor Brown’s signing message, he stated that this bill is a response to a danger that has been known for a long time. The first report about the danger of lead poisoning to wildlife was by George Bird Grinnell in 1894.[xiii] California is not an exception to the rest of the nation’s view on this important issue. Governor Brown explains that in 1991 the United States Fish and Wildlife Service banned lead in waterfowl hunting across the nation, and at least 30 other states regulate lead ammunition in some manner.[xiv] In addition, over the past 30 years, lead has been banned in gasoline, paint, new home pipes and other materials, in order to protect public health.[xv]

Governor Brown, as well as the California legislature, also emphasized that this bill is meant to protect Californians, not threaten their right to bear arms. The Bill states that “California’s wildlife species represent the state’s rich natural resources and environmental health and beauty,” and “California’s wildlife species play an important role in the state’s environmental health.”[xvi] Governor Brown further explained that he had only decided to sign the bill after amendments that better protected hunting interests were added, including an ability of the Director of Fish and Wildlife to suspend the statewide ban in the event that the federal government prohibits non-lead ammunition because it is considered armor piercing.[xvii]

This Bill tackles a significant problem that threatens many species of birds and other wildlife in California. Although this new and extensive ban on a commonly-used ammunition will place a burden on Californian hunters, they are not left without other options. Additional types of non-toxic ammunition are available at reasonable prices, and since California constitutes such a large market, it is likely that prices will become increasingly competitive as the legislation comes into effect.  Hunters point to protecting tradition; however, reducing lead in the Californian wilderness will not only protect the health of the environment, but public health as well.

 

-Chelsea Thomas is a General Member on MJEAL. She can be reached at chelsmae@umich.edu

 


[i] H.R. 711, Cal.  Fish and Game Code §3004.5 (2013).

[ii] Paul Rogers, Ban on lead bullets pushed for all hunting in California, Oakland Tribune (2013), http://www.insidebayarea.com/oakland-tribune/ci_22624475/environmental-animal-welfare-groups-move-ban-lead-bullets.

[iii] H.R. 711.

[iv] Lenny Bernstein, With ban on lead in hunters’ bullets, California hopes to protect condors, Wash. Post (2013), http://www.washingtonpost.com/national/health-science/with-ban-on-lead-in-hunters-bullets-california-hopes-to-protect-condors/2013/10/20/2e375388-3829-11e3-ae46-e4248e75c8ea_story.html.

[v] Jeff Miller, California Makes History in Banning Lead Hunting Ammunition, Ctr. for Biological Diversity (2013), http://www.biologicaldiversity.org/news/press_releases/2013/lead-10-11-2013.html.

[vi] Id.

[vii] Bernstein, supra.

[viii] Miller, supra.

[ix] Jerry Karnow and Gary Schales, Re:AB 711 (Rendon): Non-lead ammunition for hunting, California Fish and Game Wardens’ Ass’n, (2013), http://www.theoutdoorwire.com/story/1380881691yb59ayrkvhz.

[x] Bernstein, supra.

[xi] Rogers, supra.

[xii] Id.

[xiii] Edmund G. Brown, Jr., Signing Message H.R. 711 (Cal. 2013).

[xiv] Id.

[xv] Rogers, supra.

[xvi] H.R. 711.

[xvii] Brown, supra.

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