Drilling the Marcellus

There has been a great deal of misunderstanding about the potential for drilling gas wells in the Marcellus Shale, and the alleged dangers presented by produced fluids that are brought up out of the wells and have to be disposed or reused. I won't claim to be a geologist, but I understand that the Marcellus, like lots of shales, is rather tight, meaning gas doesn't travel far in it. To develop it properly, it's necessary to drill horizontally in the formation and fracture (frac) it, in this case by forcing in water and chemicals under pressure, so gas can move in the tiny fracture lines toward the well bore. Fracturing the Marellus usually takes lots of water, which can become contaminated with chlorides and other substances.

In Pennsylvania the DEP has allowed disposal (after treatment) of some of these frac fluids and produced fluids into state streams, causing high levels of total dissolved solids in streams like the Monongahela. WV, on the other hand, does not currently allow discharge of produced fluids into state streams. All produced fluids in WV are reused, land applied, or put into the subsurface beneath drinking water sources through UIC (underground injection control) wells. In other words, they aren't going to state streams. The City of Morgantown, among other political entities, is trying to impose more regulation on Marcellus Shale gas drillers to reduce TDS in the Monongahela River, even though gas drillers aren't contributing TDS to that or any other WV rivers.

The WV DEP is acting to protect water supplies from excessive withdrawals by drillers to use in the Marcellus wells, and is also watching where the produced fluids go when they're pulled out of the wells. A copy of the DEP's recent guidance to the industry is found here. If you want a different take on the story, Ken Ward's blog can be found here.

EPA Announces Greenhouse Gas Reporting Program

Anne Blankenship reports that EPA has issued a press release (below) announcing its proposed rule to require annual greenhouse gas emissions reporting for suppliers of fossil fuels or industrial greenhouse gases, manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more of GHGs per year. Under the proposed rule, the first annual report would be submitted to EPA in 2011, for the calendar year 2010, except for vehicle and engine manufacturers, which would begin reporting for model year 2011. The preamble and the text of the rule, both quite large, can be accessed from this link. Contact Anne (304 347-8344) for more information about GHG reporting under the WV state rule or the federal proposal.

EPA Proposes First National Reporting on Greenhouse Gas Emissions Administrator Jackson: “Our efforts to confront climate change must be guided by the best possible information.” Contact: Cathy Milbourn, 202-564-4355 / milbourn.cathy@epa.gov (Washington, D.C. – March 10, 2009) The U.S. Environmental Protection Agency today proposed the first comprehensive national system for reporting emissions of carbon dioxide and other greenhouse gases produced by major sources in the United States. “Our efforts to confront climate change must be guided by the best possible information,” said EPA Administrator Lisa P. Jackson. “Through this new reporting, we will have comprehensive and accurate data about the production of greenhouse gases. This is a critical step toward helping us better protect our health and environment – all without placing an onerous burden on our nation’s small businesses.” In developing the reporting requirements, EPA considered the substantial amount of work already completed and underway in many states, regions and voluntary programs. Greenhouse gases, like carbon dioxide, are produced by the burning of fossil fuels and through industrial and biological processes. Approximately 13,000 facilities, accounting for about 85 percent to 90 percent of greenhouse gases emitted in the United States, would be covered under the proposal. The new reporting requirements would apply to suppliers of fossil fuel and industrial chemicals, manufacturers of motor vehicles and engines, as well as large direct emitters of greenhouse gases with emissions equal to or greater than a threshold of 25,000 metric tons per year. This threshold is roughly equivalent to the annual greenhouse gas emissions from just over 4,500 passenger vehicles. The vast majority of small businesses would not be required to report their emissions because their emissions fall well below the threshold. The direct emission sources covered under the reporting requirement would include energy intensive sectors such as cement production, iron and steel production, and electricity generation, among others. The first annual report would be submitted to EPA in 2011 for the calendar year 2010, except for vehicle and engine manufacturers, which would begin reporting for model year 2011. EPA estimates that the expected cost to comply with the reporting requirements to the private sector would be $160 million for the first year. In subsequent years, the annualized costs for the private sector would be $127 million. EPA is developing this rule under the authority of the Clean Air Act. The proposed rule will be open for public comment for 60 days after publication in the Federal Register. Two public hearings will be held during the comment period.

Mountaintop Mining Isn't Finished, But What's the Future?

Anyone who is following the EPA review of Section 404 permits for mountaintop mines should take a look at Ken Ward's blog Coal Tattoo. Ken accurately reports that EPA is not denying the 404 permits for the 2 mines in question (although it is taking the first steps needed to do so)and it has stated that EPA expects most pending 404 permit applications will not present environmental concerns. It is a little early to write about the demise of the coal industry, or even mountaintop mining, based on the EPA action. However, I'll stand by my belief that the Obama Administration is going to tighten up review of 404 permits and take other action to increase the cost of mountaintop mining, and to delay such mining whenever possible, in the hope that marginal operations will drop out, and the cost of coal powered generation will rise to the level of more favored power production methods, like wind power.

EPA Requires Additional Review of Mountaintop Mining Permits

EPA Regions 3 and 4, two of the Regions where most mountaintop mining takes place, have sent letters (here for Region 3, here for Region 4) to the Huntington Corps of Engineers raising concerns about stream impacts caused by two mountaintop mines in Kentucky and West Virginia , and asking to confer with the Corps about the Section 404 permits for those mines. This has garnered lots of media attention, because it signals a stricter scrutiny that will be given to mountaintop mining under the Obama Administration.



In order to reach and remove coal, miners remove overburden (the rock and dirt covering the coal) and place it out of the way, often in the headwaters of streams that flow from the mining area. Clean Water Act Section 404 permits are required for this sort of discharge of fill material into waters of the United States. The Corps of Engineers is responsible for issuing 404 permits, and in the case of mountaintop mining 404 permit applications, does so after evaluating the effects of the fill on the streams farther downstream, and requiring mitigation (repair or replacement) of the streams that are filled. While the Corps has authority to issue the 404 permits, EPA has the right to review the permits and deny authorization for the permit if it believes it will have an unacceptable adverse effect on the environment. First, though, it has to ask the Corps for a conference, and that is what these letters do.

The letters are not permit denials, but that is clearly where EPA is headed. EPA has cited a number of reasons for believing the Corps did not do an adequate job in evaluating the environmental effects of the valley fills that are allowed by the 404 permits it has proposed issuing for the 2 mines in question, and EPA will likely deny the permits unless the Corps agrees to reevaluate the projects.



It's going to be much tougher to mountaintop mine if EPA requires the same analysis for all 404 permits that it is requiring for these 2. For those of you concerned about mountaintop mining, your patience has been rewarded and the Obama Administration is fulfilling its expectations. For those of you whose county and state governments rely heavily on severance taxes in order to pay wages and fund programs, this could be a big blow.



You will find plenty written about this in the blogosphere today, including this summary from EPA, this from enewsUSA, this from the New York Times, and this from MSNBC, which notes the decision of the Fourth Circuit last month that allowed issuance of 404 permits without the sort of review that EPA is demanding. The 4th Circuit said that a more detailed review was not required under Corps regulations, but EPA has the authority to require a further review independent of Corps guidelines.

EPA to Regulate Greenhouse Gases under the Clean Air Act?

It would seem to be a no-brainer for the Obama Administration to decide to regulate carbon dioxide emissions under the Clean Air Act, as the Washington Post reports it is considering. After all, Mr. Obama was elected in large part by persons who contend that that CO2 is one of the most dangerous pollutants in the history of mankind, and must be reduced before the planet overheats, causing enormous and permanent damage to the environment and civilization. However, he is a very intelligent man, and is well aware of the Law of Unintended Consequences. CO2 is ubiquitous and is generated about everywhere (for example, anywhere humans gather, bakeries, automobiles) and regulating CO2 as a pollutant presents the opportunity to challenge about every business venture, government program or other human activity on the ground it would contribute to increases in a pollutant. That could be a recipe for numerous lawsuits trying to halt all manner of activities, and increased scrutiny of all permits issued by government entities. If you think that's a good thing, you must be a lawyer.

My guess is that the Obama Administration is going to let pundits throughout the country start the Parade of Horribles, citing every doomsday example they can think of that will result from regulating CO2 as an air pollutant. This will put Congress, including the Republicans, under tremendous pressure to amend the Clean Air Act and develop a more nuanced approach to CO2 regulation, one that recognizes some of the difficulties that are peculiar to regulating CO2. Check back in a year and see if I'm correct.

Is Cap and Trade the Way to Go to Limit CO2?

I remain a skeptic about the need to cut global emissions of carbon dioxide. However, those who feel climate change is anthropogenic in origin won the election and are exercising their right to move policy in a direction they feel is best for the country. That's one of the wonderful thing about our democracy - the orderly transfer of power between those of different beliefs.

One issue that has not been resolved yet is whether to reduce CO2 emissions and discourage use of fossil fuels by taxing carbon emissions (a carbon tax) or by capping the amount of CO2 that can be emitted and allowing industry to trade their right to emit CO2 on the open market (a cap and trade system). In that regard, I found this article by Fred Krupp of the Environmental Defense Fund (in the Wall Street Journal, of all places) illuminating. He's making the case for a cap and trade system because he feels it is the surest way to put a limit on CO2 emissions. A carbon tax, in his opinion, would not reduce CO2 emissions, only make them marginally more expensive, and they would continue to grow.

I think Mr. Krupp is right about a cap and trade being most effective. I think he's wrong in guessing that alternative sources of energy will appear at the right time to allow for continued economic growth (which is inexorably tied to increases in energy production) if we limit carbon-based energy generation. But hey, I've been wrong before.

UCLA, UCal Law Schools Announce Blog

The law schools of UCLA and U Cal (Berkeley) have announced that they are starting an environmental blog. Those schools are filled with some very bright people and it will be interesting to see their take on environmental law and their analysis of judicial decisions and agency actions. It could be a great source of useful legal research on timely topics. It will also be interesting to see whether they present a balanced view of environmental issues, and fairly report decisions, or whether it becomes another site where everything is viewed through the prism of climate change. I'll keep an eye on them and report later.

Greenhouse Gas Reporting Rule Proposed

My colleague Anne Blankenship reports that EPA has issued a press release announcing its proposed rule to require annual greenhouse gas (GHG) emissions reporting for suppliers of fossil fuels or industrial greenhouse gases, manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more of GHGs per year. Under the proposed rule, the first annual report would be submitted to EPA in 2011, for the calendar year 2010, except for vehicle and engine manufacturers, which would begin reporting for model year 2011. I have attached a copy of the fact sheet for the proposed rule. Documents, including the preamble and the text of the rule, both quite large, can be accessed from this link. CNN Money has a story about the proposed rule, and you can find more about it here from the Associated Press

There will be a public comment period on the proposed rule for 60 days after it is published in the Federal Register.

Who's Tougher on Environmental Issues - Feds or State?

Some people believe that state environmental agencies are too protective of state businesses, at the expense of the environment. But as this article from the Elkhart Truth points out, states can, and do, apply a more stringent interpretation of the law than EPA does. This interpretation of whether a certain type of dust at a steel plant is a hazardous waste is a case in point. EPA had issued guidance that the waste was not a hazardous waste, but Indiana said that it is. Indiana has been delegated the Resource Conservation and Recovery Act (RCRA) program, which allows the state to make these types of hazardous waste decisions.

The relationship between the states and the feds is very complex when it comes to implementing environmental programs, and perhaps it is a disservice to even speak about who is tougher. Many environmental programs are national in scope, like the Clean Water Act , RCRA or the Clean Air Act. Implementation of the programs is usually delegated to states, which then administer them in lieu of the EPA. In West Virginia, there are Memoranda of Agreement and other "contracts" between EPA and state officials which spell out what the state has to do to maintain authority for an environmental program, such as issuance of NPDES permits or setting of water quality standards. In other cases, EPA approves state rules, such as those for issuing air permits.

For the WV DEP, implementing federal environmental programs can be a bit of a tightrope walk. In order to receive approval to run a federal program like the NPDES system (i.e., the wastewater discharge permit program) the state has to promise to adopt rules that are at least as stringent as the federal rules. However, there are also requirements that the state environmental rules not be more stringent than federal rules (W.Va. Code 22-1-3a). The result is that the DEP often adopts rules that are word for word the same as federal rules, and relies on EPA's interpretations of those rules. (Evidently, Indiana does not have this "no more stringent than federal rules" requirement in its state code, at least as it applies to RCRA.) This dichotomy between rules that have to be as stringent as federal rules, but no more stringent, becomes especially difficult when there are no federal rules to follow, as sometime occurs with the setting of water quality criteria. But that's a subject for a later day.

US Supreme Court Issues Environmental Standing Decision

The US Supreme Court, in Summers v. Earth Island Institute, has addressed the issue of standing to bring suit against federal agencies. Standing is an esoteric, but important, feature of environmental law. Persons who are going to challenge federal actions must have standing to bring the suit - it isn't enough to simply claim you don't like something the government has done.

Lots has been written on standing, and this decision is not the most comprehensive, nor will it be the last, discussion of the subject. Briefly stated, Article III of the US Constitution limits the judiciary to redressing or preventing actual or threatened injuries, and courts will only consider the claims of plaintiffs with a personal stake in the outcome of the lawsuit. This is often done by individuals filing affidavits to the effect that regulations (in this case, US Forest Service regulations, but it would apply to EPA regulations as well) will adversely affect their enjoyment of certain activities, such as hiking, boating, or viewing the landscape. Organizations like the Earth Island Institute can assert their members' standing.

This case was a little more complex, because Earth Island Institute had filed suit to stop a specific timber sale at Burnt Ridge, as well as the regulations that allowed such timber sales elsewhere. Earth Island resolved the Burnt Ridge portion of the lawsuit, but wanted to proceed with the lawsuit as to the regulations as a whole. The Supreme Court decided that the affidavits submitted by Earth Island members only showed a particularized interest in the Burnt Ridge project, and once that claim was resolved none of the affidavits offered by Earth Island members showed concrete plans to visit one of the other sites that could have been affected by the regulations. Therefore, Earth Island had lost standing to challenge the regulations. It submitted additional affidavits, but these came in too late to be considered.

These standing cases are interpretations of the US constitution, and states are free to be more generous in allowing plaintiffs to bring actions in state court. However, many environmental cases, such as mountaintop mining permits, involve federal agency approvals such as Section 404 fill permits issued by the US Army Corps of Engineers, and therefore standing decisions are closely watched.


Take a look at the Syllabus of the decision, which presents a quick summary of the majority (5-4) decision. You might also want to look at this article by Dustin Till of the Marten Law Group who does a fine job analyzing the decision.

Virginia Supreme Court Hears Power Plant Protest

A neighboring state is having a battle fought over the construction of a coal-burning power plant that is similar to the battle against the Longview plant in Morgantown and could presage similar battles that would be fought in WV if a new plant is sited here. Last Wednesday the Virginia Supreme Court heard arguments from opponents of a plant being built in Wise County, just south of WV, and the main argument is not environmental concerns, although those are certainly the real reason. The basis for the challenge is a dormant Commerce Clause argument, based on the fact that the plant was given expedited approval if it would burn Virginia coal. The Commerce Clause argument is premised on the contention that giving preference to Virginia coal over coal from other states is a violation of the US Congress' control of interstate commerce, enshrined in the Commerce Clause of the US Constitution.

A brief Associated Press report of the oral arguments can be found here. A blog from Forbes, which explains a little more about companion litigation in Richmond involving environmental permits, is found here.

It is unfortunate that there are continued attacks on coal generating plants. Until power storage of renewables is improved, load leveling plants powered by fossil or nuclear fuels will be needed. Increase clean coal research, but don't cut out development in the meantime.

Anti Coal Protest Hits the Nation's Capitol Power Plant

Ken Ward is reporting in his blog that there are West Virginians heading for Washington DC to protest the burning of coal at the U.S. Capitol power plant. It is being watched by industry groups to see whether there is significant support for the anti coal cause. BNET Business Network says that Senate Democratic leaders Pelosi and Reid are supporting a conversion to natural gas, but that may be playing to the public. The New York ABC affiliate says that groups are going to block entrance to the plant and minor celebrities like Susan Sarandon will be there as well.

Looks like their timing is a little off, as Washington DC is reportedly getting pounded with snow today. Might be a bad day to protest.