The Hot Air About Methane

When President Biden left for the COP26 meeting in Glasgow recently, his primary plan for reaching the greenhouse gas reduction goals in the Paris Accords was in disarray.  The cause of this disarray was mainly the opposition of West Virginia Senator Joe Manchin.  But Biden had Plan B, which involves a two-pronged approach to sharply reducing methane emissions.  In Glasgow, Biden announced that more than thirty countries have pledged to cut emissions of methane 30% by 2030.  Given our decades-long focus on reducing carbon dioxide, this pivot to methane is a bit disorienting.

Carbon dioxide is by far the largest contributor to climate change, and it comes from recognizable fossil fuel sources such as coal-burning utilities, and automobile tailpipes. Carbon dioxide persists in the atmosphere for hundreds of years, making the climate change it causes not just a current problem, but a future one as well.

Yet some experts say that methane (CH4) is a bigger problem than carbon dioxide (CO2).  While methane dissipates naturally after about 100 years, its pound for pound impact is 25 times greater than carbon dioxide in trapping heat reflected from the Earth’s surface.

Sources of Methane

Some methane occurs naturally from the decay of plant and animal matter. Domestic livestock, such as beef cattle, pigs and sheep, produce CH4 as part of their normal digestive process.  But human-produced methane far exceeds what is produced naturally.

Agriculture, including raising of cattle for human consumption and management of animal wastes, is the single largest source of methane. Natural gas and petroleum systems are the second largest source. The U.S. oil and gas industry emits more methane than the total emissions of greenhouse gases from 164 countries combined. Landfills are the third-largest source.

Some politicians call natural gas a “bridge fuel,” meaning that burning it emits less carbon dioxide than burning coal.  But it is wrong to call natural gas clean. Methane is the primary component of natural gas. Methane is emitted during the production, processing, storage, transmission, and distribution of natural gas.  In addition, burning natural gas still releases carbon.

Satellite imagery of the Permian gas field in Texas show huge plumes of methane erupting from hot spots throughout the area. No human artifice or industrial process is infallible, and that is certainly true with gas production and pipeline transmission. Major failures to capture methane and leaks from pipelines, pumps and valves are endemic.

Biden’s Plan B 

Not surprisingly, Biden’s plan to reduce methane emissions focuses on the oil and gas industry.  Regulations issued under President Obama placed controls on methane emissions from new and modified sources in the industry, but failed to address existing wells, production facilities and pipelines.  Even as toothless as they were, these regulations were shelved during the Trump Administration.  In April 2021, Congress restored the Obama-era methane regulations.

Then on the eve of Biden’s trip to Glasgow, the Environmental Protection Agency issued a proposed new rule that covers existing sources of methane emissions in the oil and gas industry. The proposed rule involves a comprehensive monitoring program for new and existing well sites and compressor stations, and proposed performance standards for other sources, such as storage tanks, pneumatic pumps, and compressors.

The proposed rule would reduce 41 million tons of methane emissions from 2023 to 2035, the equivalent of 920 million metric tons of carbon dioxide. That’s more than the amount of carbon dioxide emitted from all U.S. passenger cars and commercial aircraft in 2019. The EPA will receive public comment for 60 days and projects a new final rule by the end of 2022.

Also Biden’s $1.2 trillion infrastructure bill, which just passed both houses and awaits the President’s signature, contains a provision to spend $4.7 billion to clean up abandoned oil and gas wells, many of which spew methane into the atmosphere.  Central West Virginia is littered with these orphan wells.

But the stronger second prong of Biden’s Plan B is a methane tax contained in the Build Back Better social spending bill that has not passed either the House or the Senate. As described in a recent Forbes article, the plan would tax methane emitted in excess of specified thresholds and begin at $60 per ton. It would take effect in 2023, with the revenues used to administer the program, provide technical and financial assistance to companies for monitoring and reducing emissions, and to support communities affected by pollution from oil and gas systems.

A fee on methane would boost the incentive for companies to reduce emissions and require companies to internalize the cost of the pollution they emit. A methane fee would have double duty – raising revenues and discouraging pollution – while holding industry accountable. Climate policy experts say that the two-pronged approach – regulation and fee — is necessary to shut down methane emissions, particularly because executive regulations alone could be undone by a future administration.

The Ball is in Manchin’s Court

By now, we are all aware of the immense power that has fallen to Senator Joe Manchin purely because he is a key vote in a balanced Senate.  Unfortunately for the environmental community, his power has been exercised to block legislation that is widely seen as necessary to meet the challenge of climate change.  Having already caused the removal of Biden’s plan to radically reduce CO2 emissions in the electric power sector, all eyes are now on Manchin regarding the methane tax in the Build Back Better Act.

Initial signs are not good, even though Democrats reduced the starting fee level from $1500 per ton to $60 to win Manchin’s support.  But Manchin appears still to be opposed, arguing that since we have the technology to reduce methane then the technology should be used, not a fee that he regards as punitive.  One wonders how it is “punitive” to impose a fee designed to cause the largest industrial producers of methane finally to end their harmful practices.  Instead, it seems exactly the sort of measure required to make them internalize the true cost of their behavior. The language of money is the language this industry understands.

 

The Future of Carbon Capture

Carbon capture is a term used to describe a group of technologies that either remove carbon directly from the air or scrub it from waste gas as fossil fuels are burned.  In either case, the carbon “captured” is buried or used in the manufacture of other products.  The Intergovernmental Panel on Climate Change includes carbon capture as one of many methods that must be employed if the world is to limit temperature rise to no more than 1.5 degrees Celsius.

The U.S. does not have a dedicated research program for carbon capture.  Funding has been piecemeal.  But in the $3.5 trillion infrastructure legislation under consideration in Congress, advocates see an opportunity to change that.  The first funding for carbon capture came in the 2005 Energy Policy Act.  Now several bills have been proposed to amend that Act to strengthen the research funding and tax credits for carbon capture projects.

The carbon capture method eventually supported by Congress is important to West Virginia.  Removal of carbon directly from the air remedies harmful carbon already released, while capture during the burning of fossil fuels does not reduce the carbon in the atmosphere, it merely prevents the release of additional CO₂.  Further, the “scrubbing” method continues our reliance on those fuels versus renewables.  West Virginia coal interests are lining up behind removal from fossil fuel gasses for obvious reasons.

But the truth is that neither method of carbon capture and storage is feasible now at the scale necessary to make even a tiny improvement in the climate change monster.  Currently, around 40 megatons of CO2 are captured and stored annually worldwide, equivalent to about 0.1 per cent of our emissions. Funding carbon capture projects is a bet on the future.

Many, although not all, environmentalists oppose carbon capture.  They worry that carbon sequestered underground will still find its way to the surface through leaks, pipeline spills and geologic activity.  They also rightly argue that carbon capture employed in the burning of fossil fuels does not wean us from these harmful fuels.  The entire mining, drilling and pipeline infrastructure would still be present and require capital investment that could otherwise be spent on renewables.

Perhaps more to the point, environmentalists argue that carbon capture generally does not work.  FutureGen Alliance, backed by the U.S. Department of Energy, attempted to demonstrate carbon capture at a coal-fired power plant in Illinois.  After spending $1.65 billion, DOE suspended the project in 2015.  More recently, Chevron conceded that it has fallen short of its carbon capture targets after spending $3 billion on a project in Australia.  Throughout this period, the cost of solar and wind projects has plummeted.

Undeterred, a bipartisan group of legislators recently sent a letter to House and Senate leadership outlining a legislative program for breathing some life into the carbon capture concept.  Many of these legislators hail from oil and coal-producing states, including David McKinley who represents West Virginia’s 1st Congressional District.

The letter proposes a “targeted suite of carbon management policies,” including the buildout of regional CO₂ transport and storage networks, enriching the tax credit available for carbon capture projects, and “robust funding” for commercial scale carbon capture pilot projects.  They urged Congressional leaders to pass several pending bills that would amend current law to achieve all these goals.

Notably these legislators also urge reforming the law to incentivize utilities to retrofit existing coal-fired units with carbon capture technology.  I am certainly no expert, but these bills seem to dress up carbon capture in virtuous language, while really aiming to bolster the coal and other fossil fuel industries.  Rep. McKinley has proposed one of these, called the “Net-Negative Carbon Dioxide Baseload Power Act.”  This bill would have the Secretary of Energy begin a retrofit program for existing coal-fired plants that use at least 70% coal.

Perhaps friendlier to the environment overall is the direct air capture method for removing carbon.  The technology for this has existed on a small scale for many years – it is what enables air inside a submarine to be reused.  One recent venture in Iceland will use a chemical called sorbent to capture carbon contained in the air circulating through.  Once it is fully operational, the project will capture 4000 metric tons of carbon each year.  The size of this experimental operation will soon be eclipsed by one in the Southwestern U.S.

The ultimate question is whether the cost of capturing a ton of carbon by direct air capture can be brought down to around $100.  This will be a difficult target to meet – the cost incurred by Climeworks, the company building the Iceland project, is expected to be around $500 per ton.  But if costs can ultimately be reduced to around $350 per ton, these experimental projects may reveal enough promise to attract the funding necessary to improve the technology and drive costs down.

Higher Registration Fees For Hybrid Vehicles – What’s Up With That?

Awhile back, a good friend of mine spent half an hour complaining to me about having to pay an additional $100 when he registered his Prius hybrid vehicle. That caused me to wonder why West Virginia would want to discourage the ownership of these vehicles with a whopping big tax.  Hybrids consume lots less gasoline and emit proportionately less greenhouse gasses from the tailpipe. That’s a good thing, right?  The answer, of course, is not so simple.

The additional registration fees for alternative fuel vehicles were first imposed in 2017.  Many states have done this.  In West Virginia, hybrid vehicles, which use a combination of gasoline and self-generated electric power, are charged an extra $100.  All-electric vehicles, which use no gasoline, are charged an additional $200.  This difference depending on whether gasoline is used turns out to be the key to understanding the policy behind these fees.

West Virginia, like all other states, uses gasoline taxes to fund the maintenance and expansion of its transportation infrastructure – roads, bridges, and the like.  West Virginia is one of only four states that has responsibility for maintaining both state and county roads.  In 2017 the combined state gasoline tax was raised to $.357 per gallon, where it remains today.  But still gasoline tax revenues have been declining for years, principally because of better fuel efficiency.

The gasoline tax is considered a use tax – until hybrid vehicles came along the gallons of gasoline sold were a rough measure of the use our highways and bridges were getting.  Because of increasing fuel efficiency driven by federal policy and alternative fuel vehicles, gasoline consumption can no longer be used as a proxy for highway use.

So it was no coincidence that both higher gasoline tax and the alternative fuel vehicle registration fees were imposed in the same year.  The objective was to even the burden of infrastructure maintenance on all vehicle owners.  When viewed this way, raising the registration fee for hybrid and electric vehicles seems fair.  And owners of these vehicles actually are better off than traditional gasoline vehicle owners if each drives the average annual mileage put on a West Virginia vehicle.

Here is the math.  I have seen several different figures for the average miles a vehicle is driven each year in West Virginia, but all of them are around 15,000.  Assume that a gasoline powered vehicle gets 25 miles per gallon, which would mean 600 gallons of fuel consumed per year.  The West Virginia tax on that gasoline would come to $214 per year.  What about the hybrid vehicle?  They get around 50 miles per gallon, so that would mean 300 gallons consumed on average per year.  The West Virginia tax on that would be $107 per year, saving this driver an equal amount per year versus the gasoline vehicle driver.  Against this tax, the additional $100 registration fee is a slight bargain.

It’s a similar bargain for all-electric vehicle drivers, who save the entire $214 in gasoline tax that a driver of a conventional vehicle would pay.  Against the $200 registration fee, the all-electric driver saves $14, enough to treat the kids to a couple of Big Macs. The higher registration fee really creates no financial disincentive for owning a hybrid vehicle, it just removes an incentive to do so.

Maybe hybrid owners should get an incentive as a matter of state policy.  An argument could be made that reducing tailpipe emissions is a worthy objective that is served by making ownership of a hybrid more attractive.  But this runs into that elusive concept of environmental justice.  If we eliminate the higher registration fees on hybrids, the cost of maintaining roads simply gets shifted to drivers who don’t own hybrids.  Maybe they own big gas guzzling trucks and deserve it.  But maybe they can’t afford to buy a Prius, which the last time I looked cost $25,000 for an entry model.  It is not good policy for a highway use tax to be converted into a tax on being poor.

Looking a little more skeptically at electric vehicles, when and why did we decide they were so good for the environment?  It might make us feel better about ourselves to drive one, but exchanging CO₂ emissions from gasoline for even dirtier emissions from generating electric power makes no sense.  A model developed at MIT shows that eliminating petroleum use by electrifying the whole transportation sector would cause the use of dirtier electric power to surge.  Overall emissions would drop only 2% by 2050.  And emissions from coal-burning power plants include lots of other bad stuff besides CO₂, like nitrous oxide and soot.

Tax policy is never simple, particularly when it is bound up with politicized environmental issues.  But at ground zero, my friend is never going to accept any of this.  He is just annoyed by having to pay a stupid tax on his hybrid Prius.  I can talk all I want, but I plan to make myself scarce next year when he registers his car again.

Industry To West Virginia: We Can’t Be Bothered

They’re at it again. Under the cover of the Covid pandemic, when citizens can’t rally in numbers, the West Virginia legislature is poised to gut one of the key protections of the Aboveground Storage Tank Act enacted after the 2014 water crisis. Remember the crisis? When 300,000 Mountain Staters had no access to safe water? Apparently, the legislature does not. The bill is pushed by tank owners and backed by industry. The reason? As Charlie Burd of the Gas and Oil Association of WV says, according to Gazette-Mail reporter Mike Tony, the regulation is too burdensome. Translation: We can’t be bothered.

We can’t be bothered to operate responsibly, they’re telling us. We can’t be bothered to make sure dangerous chemicals don’t foul drinking water supplies. We can’t be bothered to make an honest dollar — one with a reasonable return that does not force people to live under the specter of mass contamination.

The bill in question is HB 2598. It would exempt more than 1,000 oil and gas waste tanks — tanks near drinking water supplies across 27 counties — from Aboveground Storage Tank Act regulation. That’s right. The legislature wants to make our water less safe by throwing out common sense rules.

Oil and gas waste tanks contain a mixture of produced water and crude oil. The mixture is composed of a variety of pollutants that can contaminate drinking water supplies. This is true for surface water systems and surface water-influenced groundwater systems, or SWIGs, appropriately. There are some 20 SWIG systems along the Ohio River.

The Aboveground Storage Tank Act helps ensure that tanks in “zones of critical concern” are properly inspected and maintained. These zones are areas along streams located upstream from a public water system’s intake or well. This seems sensible. Rather than having the public pay for leaks, spills, and disasters in the water supply, let’s inspect tanks closest to drinking water supply more often, and keep them in working order.

That’s it. Seriously.

How can inspection and maintenance of a business asset be too burdensome? This is the same old trope industry rolls out every time it can’t be bothered. Installing seat belts in every car, the auto industry said, would make cars unaffordable. Too burdensome. The food industry said the same thing when the FDA required companies to state the ingredients on packaging so that people actually can know what they are eating. Too burdensome. It’s the same story every time.

We all face regulatory “burdens” every day. Like the 70 miles per hour speed limit on our wide-open interstates. Rules for safe food storage and handling in restaurants. Restricting hunting to certain seasons.

We accept these rules as minor inconveniences because we know, in our great big West Virginia hearts, that we do unto others as we would have them to unto ourselves. And that’s what the aboveground storage tank rules do, especially in the Ohio River Valley, where the vast majority are located. Call it the Good Neighbor Rule. It ensures people that their government cares and takes its responsibilities seriously. That their government is up to the task of fulfilling its most basic function: to protect the health and safety of its citizens. We need these protections.

In nearly laughable displays of feigned outrage, tank owners may level the ultimate threat — leaving the state altogether if they don’t get their free pass. For good. Take their ball and go home. I say, Good Riddance. Bye bye. Don’t let the door hit you on the way out. We don’t need you in West Virginia. We don’t want you in West Virginia if you’re not willing to play by the rules.

Another company, one that accepts the responsibility that comes with handling and storing dangerous chemicals, will step in and find a way to make an honest buck. Now that’s the free market. And then maybe other industries that value clean air, safe water, and responsive government will move in to create 21st century jobs.

I keep hoping that one day our legislature will have the courage to acknowledge one existential fact. That the states with the weakest environmental and public health and safety rules are consistently among the poorest. Exempting tanks near drinking water supplies will make us not only less safe, but poorer. A slap on both cheeks to people who live in the Ohio Valley and across West Virginia.

— David Lillard is on the board of directors of Conservation West Virginia; he lives in Jefferson County.

What President Biden Could Do for the Environment in His First Ninety Days

I recognize that some of my readers may be Trump supporters who would prefer not to see a Biden administration. And, of course, one should not count one’s chickens too early. That said, there can be little debate that the Trump administration has been more hostile to sound environmental policy than any administration in modern history. From the start President Trump identified environmental protection as the territory of Obama liberals and played strongly to his populist base and big fossil fuel industry donors by dismantling every protection in sight. So, a Biden administration has a lot of work to do restoring the positive direction set in previous administrations. Here is where I think he should start.

Rejoin the Paris Accords

Almost every nation in the world, including the United States, signed the Paris Accords in 2015. The central aim of the Accords is to coordinate a global response to climate change by keeping a global temperature rise this century well below 2 degrees Celsius and to find the means to limit the temperature increase even further to 1.5 degrees Celsius.

But Trump is a climate change denier, and his fossil fuel backers have a financial stake in things remaining as they are. On November 4, 2019, the Trump administration began the official process of withdrawing the United States from the Paris Accords, which will not be completed until the day after the November 2020 election. Upon withdrawal, the U.S. will no longer be committed to reach its emissions reduction targets under the Accords.

Why does this matter? First, the United States is one of the two largest emitters of greenhouse gasses in the world so relaxing our efforts to reduce these emissions will have a hugely negative effect on the world’s ability to reach the Paris goals. Second, the United States is an environmental policy and technology leader in world. Our absence from the Accords takes our gravitas and leadership out of the equation. It weakens our international soft power and opens the door to preening by the Chinese.

How could a Biden administration reverse Trump’s withdrawal? The Paris Accords are a non-binding expression of national commitment. President  Obama was able to enter the United States into the agreement through executive action, since it imposed no new legal obligations on the country. Candidate Biden has pledged to recommit the country to the Paris Accords, and can do so most likely through similar executive action. Legislation is also possible.  Experts believe that the United States could rejoin the Accords in a matter of a few months. It is inconceivable that other nations would oppose our rejoining.

Appoint Environmentalists to Head Environmental Agencies

What a concept. But President Trump’s first appointment to head the EPA was Scott Pruitt, a notorious climate change skeptic. As Oklahoma’s Attorney General, Pruitt sued the EPA 14 times. Pruitt’s replacement, Andrew Wheeler, is a former coal industry lobbyist who has proposed dubious rules limiting the kind of scientific information the EPA can consider. One that called on the EPA to consider only “double blind” studies of the sort used in drug trials was called “breathtakingly ignorant” by the Union of Concerned Scientists. The Biden administration should be able to improve upon the quality of the EPA Administrator in short order.

The Department of the Interior sets policy and manages the implementation of many environmental statutes through a group of key agencies, including the Fish and Wildlife Service, the Forest Service, the Bureau of Land Management, the National Park Service, and others. Having a Secretary with environmental sensitivity and purpose could make a huge difference.

President Trump has seemed mainly interested in using the Department of Interior as a conduit to reward his friends in the extractive industries by shrinking protected land and opening federal lands to resource exploitation. Trump’s first appointment to Interior, Ryan Zinke, has been called “the most anti-conservation Interior secretary in our nation’s history.” President Biden’s appointment of a Secretary of Interior will be significant and closely watched.

Revive Obama’s Executive Order Requiring All Federal Agencies to Enhance Climate Preparedness and Resilience

In 2013, President Obama issued Executive Order 13653 instructing all federal agencies to identify global warming’s probable impact on their operations and take the actions necessary to protect against that impact. The importance of this is obvious. In 2016 alone the United States suffered 15 extreme weather and climate-related disasters each exceeding $1 billion in losses. Moreover, the Pentagon has for years regarded global warming as a significant threat to American national security.

But in March 2017, shortly after taking office, President Trump rescinded Obama’s Executive Order. In this order, Trump clearly set out the reason for this rescission:

It is the policy of the United States that executive departments and agencies immediately review existing regulations that potentially burden the development or use of domestically produced energy resources [oil, natural gas, coal, and nuclear energy resources] and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law. “Burden” means to unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources.

It is not immediately obvious why unburdening the production of domestic energy required the rescission of Obama’s direction to plan for climate disasters, but there you have it. President Biden should immediately rescind this absurd Order and restore good sense to the nation’s efforts to protect itself against the effects of global warming.

Establish Science, Not Politics, As the Guiding Principle of Environmental Policy

President Trump has politicized agencies that are only effective and credible when they rely on the best science. This has happened since the beginning of the Trump administration. For example, he has marginalized the EPA’s Science Advisory Board by prohibiting any member but the Chairman from reviewing decisions regarding agency regulations. His 2021 budget proposes eliminating funding for that agency’s Climate Change Research Program. Pursuant to a direction from a Trump executive order EPA terminated the National Advisory Council on Environmental Policy and Technology. The BLM issued a final environmental impact statement for drilling in the Arctic National Wildlife Refuge and concluded there was no climate crisis.

The list of anti-science policies and actions during the Trump administration is quite long. These have been catalogued by Columbia University Law School’s “Silencing Science Tracker.” Within the first ninety days of a Biden administration, he could issue an executive order directing federal agencies to act only after giving heightened consideration to the best data and scientific opinion available, and he could restore to a prominent role the various science advisory bodies Trump has marginalized or dismantled.

Reversing Anti-Environment Regulations

President Biden will be unable in the first ninety days to reverse many of the harmful regulatory rollbacks and changes wrought by the Trump administration. All of these have been listed by the Harvard Law School’s Regulatory Rollback Tracker. This is because any such action must proceed deliberately and be based on a reasonable assessment of all factors, usually involving public testimony or input. He will not simply be able to change a regulation because he believes it is the ill-conceived product of the previous administration. Trump learned this lesson the hard way, most recently in connection with reversing Obama’s DACA order deferring deportation of children brought here illegally.

But President Biden can direct that these be triaged and that the process for reversing the most significant of them be started. The list is long and tantalizing. It includes Obama’s Clean Power Plan setting standards for power plant emissions, which the Trump administration repealed. The Clean Power Plan was a primary means to reach the nation’s Paris Accords emissions commitment.

There may be other, more important steps President Biden could take immediately to restore the correct course on the environment. The plate will certainly be full. One thing is certain — January 2021 cannot come soon enough for the environment.

Trump Flails Again at Environmental Law and Policy

While we were distracted by a pandemic, a recession, and an uprising in the streets, Donald Trump attempted to upend decades of environmental law and policy with the stroke of his pen. In an executive order dated June 4, 2020, President Trump directed all federal agencies to use “emergency powers” to speed infrastructure work, specifically waiving or bypassing where possible the National Environmental Policy Act, the Endangered Species Act and the Clean Water Act. Trump justified this order on the basis of the “economic emergency” existing in the country created by the national COVID-19 response. This shouldn’t surprise us – Trump has used every excuse to undermine environmental regulations from the start of his Administration, often favoring oil, gas and coal interests. But the scope of this executive order is audacious.

Bypassing the National Environmental Policy Act (NEPA) by fiat is a big deal. NEPA was one of the first laws ever written establishing a broad national framework for protecting the environment. It requires all branches of government to consider environmental effects prior to undertaking any major federal action. It does not mandate or forbid any particular action. NEPA applies to the construction of airports, buildings, military complexes, and highways, parkland purchases, and other federal activities.

Environmental Assessments (EAs) and Environmental Impact Statements (EISs), which are assessments of the likelihood of impacts from alternative courses of action, are required from all federal agencies when planning these large projects. NEPA regulations already call for speedy production of evaluative work and concise analysis, as well as reductions in paperwork and red tape.

Trump’s executive order identifies the types of infrastructure projects to receive this expedited treatment. These are transportation infrastructure projects, such as highways, “civil works” projects within the purview of the Army Corps of Engineers, and “infrastructure, energy, environmental and natural resources” projects on federal land.

The President’s executive order claims that agencies have been given by regulation “appropriate flexibility . . . for complying with NEPA” in emergency situations by consulting with the Council on Environmental Quality about alternative arrangements. This is true as far as it goes. But the regulation Trump’s order relies on goes on to say that “agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.” 40 CFR 1506.11. No mention is made in Trump’s order of any limitation on his power to waive the regulation, even though one clearly exists, and there is also no mention of a sunset for the emergency declaration.

Another target of Trump’s order is the Endangered Species Act (ESA). It requires federal agencies to consult with the Fish and Wildlife Service about the impact of proposed federal action upon endangered species. The ESA contains language permitting expedited consultations in emergencies. It does not authorize waiving or bypassing the consultation in emergency circumstances. Furthermore, “this provision applies to situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.” On its face, it does not apply to an economic emergency of the sort Trump has declared.

The final statutory target of Trump’s executive order is the Clean Water Act. The order directs the heads of all agencies to identify planned or potential actions the permitting for which may be subject to “emergency treatment” under law by the Army Corps of Engineers. These agency heads are directed to use the emergency procedures to “the fullest extent possible and consistent with the law to facilitate the Nation’s economic recovery”

Trump’s efforts to roll back environmental regulations have been well documented. Harvard Law School students have created a Regulatory Rollback Tracker, which provides information on each regulation affected by Trump’s campaign and the consequences of the rollback to the environment. The list of such rollbacks covers several pages.

Trump’s hostility to environmental regulations can be traced to the strong relationship he has developed with the energy industry, and particularly wealth energy industry donors, and also the Republican Party’s historic aversion to regulation. But now he has a compelling new reason – the threat of a recession to his reelection chances. The June 4 executive order is sure to come under legal fire from environmentalists, but Trump’s anxiety about his reelection may have created a fatal flaw in the order. While he declared the COVID-19 pandemic to be a national emergency, he did not declare the economic recession that followed the pandemic a national emergency. It is doubtful that he could have done so.

Some observers are not convinced this order will have a large negative impact on the environment. They point out that federal agencies already have emergency procedures to permit expedited review, but none of these permit ignoring the statutes or waiving an otherwise required review. If the agencies fail to follow their own procedures, their actions will be invalidated.

In the end, the June 4 executive order may simply be more flailing on Trump’s part in a manner that gets maximum heat and light but does little damage. Constitutionally, the President does not have the authority to overrule or temporarily nullify acts of Congress that have become law. It is a certainty, however, that Donald Trump is the least environmentally sensitive President in modern history. He will do whatever damage he can. He has to go.

Solar Energy and the Legislature: A Power Play in Charleston

For a state beholden to the coal and natural gas industries, solar energy generated a lot of heat at the recent West Virginia legislative session. Two initiatives concerning alternative energy, including solar, were introduced. One survived and will become law. Unfortunately, the survivor is a timid effort to attract a specific hi-tech enterprise that will involve no new solar energy facilities unless that enterprise locates here. But progress on renewable energy in West Virginia will have to be made in small steps, and this was a start.

The unsuccessful initiative – SB 759 – contained a number of wonderful ideas that would have enabled commercial and individual property owners to develop alternative energy for their own consumption.  The bill would have accomplished this by authorizing municipalities to establish low-cost alternative energy revolving loan programs to assist the property owners. Interest rates charged on the loans from these programs would have been below prevailing market rates.

The alternative energy technologies eligible for loans from the municipal loan program included solar photovoltaic projects, solar thermal energy projects, geothermal energy projects, as well as wind energy, biomass or gasification facilities for generating electricity.

SB 759 was introduced by Democratic Senators Robert Plymale and Mike Woelfel, both from District 5 (Cabell and Wayne counties). It was referred to the Government Organization Committee, the place where bills of this sort go to die. At the end of the session 67 bills, including SB 759, had expired in that committee with no action.

The survivor of the two initiatives — SB 583 — was introduced by Republican Senator Patricia Rucker of Jefferson County, among others. This bill will authorize electric utilities in the state to construct or purchase solar energy facilities on sites that have previously been used for industrial, manufacturing or mining operations. Wind and other alternative energy sources are not covered.

Demonstrating how timorous this initiative is, solar facilities under the law can only be built in 50 megawatt increments. When 85% of the power from the first increment is under contract, facilities for the next 50 megawatts can be built. No single such facility can generate more than 200 megawatts and the state-wide cumulative generating capacity of renewable energy facilities can’t exceed 400 megawatts. Evidently, neither the utility industry nor the coal industry wanted a lot of excess solar power sloshing around that would require companies to reduce coal-fired power generation.

This bill surprisingly had the support of the West Virginia Department of Commerce. It seems that whenever the business recruiters at the Department tried to lure tech companies to the state, these companies insisted on the availability of solar energy. Well, of course, we have had no such capacity.

The particular focus of the Department’s recent efforts is a company that proposes to build a research and development facility in Preston County that will test ultra-high speed transportation systems. The provisions of SB 583 that enable utilities to recover their costs for constructing solar facilities will sunset in 2025, by which time this company will either have located in West Virginia or not. So despite the high-sounding rhetoric about the need for West Virginia to enter the twenty-first century world of renewable energy, the real driver of this legislation was immediate business development and not a long-term commitment to renewable energy.

A similar bill – HB 4562 – was introduced in the House and debated extensively in the House Energy Committee, where it appeared to be stalled by objections from the coal industry. When SB 583 was passed by the Senate and sent to the House, it sidestepped the troublesome Energy Committee and went straight to House Judiciary and then to the House floor. Debate there was contentious. Delegate Tom Bibby, a Republican from Berkeley County, grumbled 

If renewable energy and solar energy were so good they (the tech companies) could afford to pay for it themselves. Renewables may sound nice and good, but they are heavily subsidized. To say coal-fired power plants won’t suffer from this legislation is just sticking your head in the sand.

House environmental advocates were initially considering an amendment that would broaden SB 583 to include solar power purchase agreements (PPAs). These are contractual arrangements where a third-party developer designs, finances and installs a solar energy system on a customer’s property at little to no cost. The developer sells the power generated to the host customer at a fixed rate that is typically lower than the local utility’s retail rate.

However, the idea for an amendment allowing PPAs was dropped. Democrats favoring the amendment had little time to gather support and it was feared that complicating the process would threaten passage of the main bill. Karan Ireland, lead lobbyist for the West Virginia Environmental Council, lamented that “what we see is utilities calling the shots and getting everything they want in the process.”

So West Virginia will move forward with a solar facilities law limited in scope that was carefully managed by electric utility and coal interests to avoid any threat to the existing carbon-based power generation monopoly in the state. The motivation for this law had nothing to do with any recognition that burning coal is fouling our air and literally killing us. Nevertheless, it is a first step and progress will have to be made this way.

Drinking Water From Plastic Bottles. Or Not.

Here is the news my world-wide readers have been waiting for. The winners of the 30th Annual Berkeley Springs International Water Tasting for 2020 are in! A panel of twelve judges sipped over 100 entrants at the competition. Believe it or not, the principal criterion for success was that the water should have no taste. Three of the top five winners in the Bottled Water category were Japanese. The best bottled water in the world is Hita no Homare Cosmo Water from Japan. Of course I am going to run right out and buy some. Or not.

A member of my household who shall remain nameless (I have been married to her for many years and I’m pretty sure she has a name) occasionally will bring home Fiji water in those cute little square bottles. I think Fiji water is refreshing. But then I saw that it is actually bottled on the island of Fiji, 7,726 miles from where I sit writing this. In order to get to a local grocery, Fiji water has to be shipped on ocean-going vessels that spew diesel smoke into the air and have to plow through an ocean of discarded plastic bottles just like the ones on board. To buy this stuff you’d have to be insane. I gently, respectfully, said just this to my beloved. What happened next is the interesting part.

Tyler-Mountain-Old-TruckWater is, of course, necessary for life. So when water comes to us in packages of any kind, I think we need to be a little more tolerant than when some non-necessity is presented to us in single use plastic bags. Water in small plastic bottles can be just the thing when, for example, we are hiking away from a source of tap water. Water packaging has evolved into smaller, lighter containers. I grew up in Charleston, West Virginia and I can remember Tyler Mountain Water Company delivery trucks rolling through town with enormous green glass bottles on the back. This company is still going strong, mostly because in 1972 it began to package water in 8 oz. plastic bottles that are sold to coal companies for worker consumption.

Nevertheless, the bottled water industry is under assault, and with some justification. Part of this has to do with the source of the water. Water taken from natural springs or wells in unspoiled rural areas has big value from a marketing standpoint. What’s more, U.S. bottled water sales are enormous, reaching 14 billion gallons in 2017. Environmentalists worry that extraction of natural ground water from pristine mountain areas can lower the water table and deplete cold freshwater streams. The Washington state Senate recently passed a bill that would block new permits for taking water from natural sources. Similar measures are on tap in California.

Not all bottled water comes from natural springs and wells. One of the largest brands – Dasani – is a product of the Coca-Cola Company. It is bottled using “local water sources” that are subjected to a purification process called reverse osmosis. Then a special blend of minerals is added to give the water that “pure, crisp, fresh taste.” I guess Dasani is not interested in competing for the world title at Berkeley Springs. Dasani would not, however, trigger environmental opposition to tapping spring and well water as seen in Washington state. I noticed one other thing of interest on the Dasani website. The company recommends that consumers discard unopened bottles after one year.

This Dasani shelf-life advice may simply be a quality concern. Or it may instead be a health concern. Dasani bottles contain no BPA and a new package called a Plant Bottle contains 30% plant material. Nevertheless, all plastic water bottles are suspected of shedding plastic micro-fibers and leaching chemicals into the water when stored at high temperatures. The bottled water industry denies this and argues that the studies raising this issue are not peer-reviewed and rest on unsound science. But the health implications of plastic water bottles bear watching.

Although plastic water bottles are fully recyclable, perhaps 40% are not recycled. The litter problem caused by plastic water bottles in national parks caused the Obama Administration to ban them from the parks in 2011. This ban was lifted by the Trump Administration in 2017. The Administration’s statement lifting the ban noted that the ban had removed from 23 parks the healthiest beverage choice while still allowing sales of bottled sweetened drinks. But “fairness” was probably not the true motivation. The ban was lifted only after the International Bottled Water Association spent hundreds of thousands of dollars lobbying for this result. But what happens with plastic bottles in the national parks is only a tiny fraction of the plastic litter problem created by these bottles.

So back to the domestic discussion of Fiji water with my beloved. No, I did not spend some quality time in the hospital. The result was that she stopped buying water in plastic bottles of any sort. This is a big change around here because I used to lug the 36-bottle cases into the house every week or so. We are using well water purified through a Brita filter. These filters can get clogged up pretty fast and have to be changed out, but the promotional material that accompanies them says that one filter replaces 300 standard 17 oz. water bottles. These filters reduce chlorine taste and eliminate zinc, copper, cadmium and mercury – but not lead. The Brita company will recycle the spent plastic filters.

There is no perfect solution to the water packaging problem. We as a nation are drinking more water in plastic bottles and are not likely to change. In the absence of a top-down prohibition on these bottles, maybe the best that can be hoped for is a re-engineering of their composition toward biodegradable materials, and an assurance in the meantime that plastic bottles have no unhealthful effects. Water filtering of well and tap water can also achieve a purity objective without any bottles at all. But don’t, whatever you do, even think about buying water bottled in Fiji or Japan.

West Virginia’s Green Amendment

On February 11, 2019, thirty-two West Virginia legislators — all Democrats — introduced Resolution 25 in the West Virginia House of Delegates. The Resolution called for an amendment to the West Virginia Constitution creating a right to clean air, pure water, and the preservation of the natural, scenic, historic, and aesthetic values of the environment. Modeled on a similar amendment in Pennsylvania, the “Green Amendment” declares that these public natural resources are the common property of the people and appoints the State of West Virginia as trustee of those resources. These declarations would have sweeping legal consequences if the Green Amendment is adopted.

The Green Amendment reads like this:

The people have a right to clean air, pure water, and the preservation of the natural, scenic, historic, and esthetic values of the environment. West Virginia’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the State shall conserve and maintain them for the benefit of all the people.

It was referred to the House Agriculture and Natural Resources Committee from which it did not emerge during the 2019 regular session. That Committee was co-chaired by Del. Roy Cooper and Del. Martin Anderson, both Republicans.

The Green Amendment will be re-introduced in the upcoming general session. Eastern Panhandle Delegates John Doyle, Sammi Brown and Isaac Sponaugle are among the co-sponsors. The Resolution will once again be referred to committee, where its future is uncertain.

According to Article 14-2 of the Constitution, the Green Amendment must be reported out of committee and then supported by two-thirds of both the House of Delegates and the Senate before appearing on the ballot in November.

The Green Amendment would substantially change the legal landscape regarding environmental rights and law. Presently, any rights to environmental cleanliness are created by statute or regulation. For example, DEP regulations now govern the amount of various chemicals that are permitted in our drinking water. The determination of what is permissible is heavily influenced by the industries that are affected by the regulation.

With a Green Amendment, the people’s right to a clean and healthy environment would occupy a higher order of legal significance. Statutes and regulations would have to be consistent with the right or be subject to rejection in a court as unconstitutional. If the West Virginia Legislature or the DEP created a statute or regulation affecting the cleanliness of drinking water, they could to do so only after considering how the protected environmental rights could be preserved with the least impact. This is a feature of acting as a trustee of those rights. Where protected environmental rights would be destroyed, no governmental action could be taken.

The trusteeship feature is very significant. The beneficiaries of the trust are the current generation of West Virginians and all future generations. So the government actor would have to consider not only the immediate effect of an action, but its long-term effect. And as a trustee, the primary concern would be the preservation of the environment. Where job creation or some other competing policy objective conflicted with these rights and could not be reconciled, the competing objectives would have to give way.

Taking the Rockwool situation as an example, if the Green Amendment were in place a private citizen would not be able to sue the company directly for any industrial activity. Instead the private citizen would challenge the state for issuing the air quality permit. Perhaps even local governments, which are instrumentalities of the state, would be subject to suit for acts in the permitting process that unconstitutionally infringed the protected rights.

Pennsylvania’s Green Amendment was enacted in 1971. But through early judicial interpretation its impact was blunted. Instead of reading and enforcing the plain language of the Amendment, Pennsylvania courts treated it as a policy statement the meaning of which was determined by legislatively-created statutes and rules. This ended in 2012 with the case of Robinson Township v. Commonwealth, which successfully challenged the constitutionality of a one-size-fits-all zoning scheme that permitted drilling, fracking pads and gas wells in every zoning district, including residential districts, near schools, playgrounds and hospitals.

The Robinson Township court ruled that the people had withheld from government the power to trample environmental rights, which the Green Amendment had raised to the same level as the right to free speech or the right to be free from unreasonable searches and seizures. While the Green Amendment did not impose on the legislature a duty to enact affirmative statutes, a duty was created to avoid infringing those rights by legislative action.

Like West Virginia’s proposed Green Amendment, Pennsylvania’s placed on the Commonwealth the duty to preserve and maintain the state’s public natural resources. This duty was held by the court to mean that the government must prevent and remedy the degradation, diminution, or depletion of public natural resources and do so in a way that is consistent with the fiduciary obligations of a trustee, including the duties of prudence, loyalty and impartiality.

The principle of anti-degradation does not mean “no activity.” Instead it allows for sustainable development and activities that do not harm the quality and quantity of the water, air, fish and other aspects of the natural environment, now or in the future. Under this standard, it is hard to imagine how mountaintop removal mining could be given a permit by state authorities.

Pennsylvania is not the only state with a Green Amendment. The Montana Constitution declares a right to a “clean and healthful environment.” This is supported by other features of the state’s constitution. A section entitled Protection and Improvement reads like this:

The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations. The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.

The Montana Supreme Court enforced these obligations against the Montana Department of Environmental Quality when it issued a permit to a massive open-pit gold mine to discharge polluted water into streams.

In fact there is a movement, called For the Generations, devoted to the passage of Green Amendments across the country. In advancing our own Green Amendment, progressive West Virginia legislators are out in front of many states. This Amendment would be a game-changer for us. Wish them luck.

Paper or Plastic?

Remember when grocery clerks would ask this question at the checkout counter? Now you practically have to leap over the counter to prevent your groceries from immediately going into plastic bags. I have always assumed that plastic bags became the grocery industry’s packaging of choice because of the cost savings to the grocers. This is basically true. I have also assumed that paper bags are both biodegradable in landfills and recyclable into other products, while plastic bags are not biodegradable and rarely recycled. But going beneath these assumptions a little further, the environmentally sound choice between paper and plastic bags is not at all clear.

Plastic bags started to appear nationwide in the 1970s and soon captured 80% of the bag market. The principal grocers in Jefferson County – Food Lion, Martins and Walmart all default to plastic bags at the checkout counter. Paper bags are available only on request at Food Lion and Martins, which are both owned by the Dutch company Ahold Delhaize. Walmart does not offer paper grocery bags at all. One won’t find any explanation of the default to plastic bags on the websites of these chains.

All the chains offer reusable bags for sale at around a dollar a pop, and these are probably a better alternative than either paper or plastic bags. But even this turns out to be debatable depending on what they are made from and how many times they are used. Most of these reusable bags are woven plastic of some sort.

There are several factors to consider when deciding whether paper or plastic bags are more environmentally friendly. First, whether the raw materials that go into the manufacture of the bag are renewable. Next, how much electricity and water are used to produce them and how much greenhouse gas is emitted in each manufacturing process. Then how readily each type of bag can be recycled. Finally, how biodegradable each type of bag is at the end of its life cycle.

On the question of renewability of resources, paper bags are the clear winner. They are made from trees. Paper bag manufacturers do not typically use trees from Amazon rain forests, but rather tree farms of fast growing species. While they are growing these trees capture carbon. Plastic bags on the other hand are made from petroleum, which is a non-renewable resource that produces greenhouse gas when burned.

But when considering the use of resources and the release of greenhouse gas in the manufacturing process, plastic bags are the clear winner.  Making a paper bag consumes four times as much energy and three times as much water as making a plastic bag.  And because 1000 paper bags weigh over nine times the same number of plastic bags, transporting them also consumes more energy.

It is difficult to pin down exactly how much more greenhouse gas is emitted by the manufacture of paper bags than plastic bags. But it is a certainty that paper bag manufacturing is dirtier. The Sierra Club reports that you have to reuse a paper bag four times to reduce its carbon footprint to that of a plastic bag. Another study from 2008 asserts that paper bag manufacturing emits 80% more of this gas. A plastic bag manufacturer asserts that “solids” emitted into the air in the manufacture of paper bags is roughly twice what is emitted in the manufacture of a plastic bag.

The question of recycling further adds to the muddle. While paper bags can be recycled into other paper bags, the recycling process is inefficient, often taking more energy than it would to make a new bag. Furthermore, it takes about 90% more energy to recycle a pound of paper than a pound of plastic. But plastic bags are a recycling nightmare – most curbside recycling operations are not capable of recycling these bags because the thin plastic melts and fouls the machinery. It is estimated that only 12% of plastic bags are recycled.

So plastic bags often end up in landfills, where they can sit for 500 to 1000 years.  And plastic bags don’t ever “biodegrade.” Instead they “photodegrade” when exposed to light into smaller plastic particles. The more serious problem with plastic bags is that they don’t end up being disposed of properly but end up as litter. They are everywhere, fouling land and water. Plastic waste is deceptive to birds and mammals, who often mistake it for food. This would lead you to think that paper is the better choice. But here is the big surprise. A paper bag that ends up in a landfill does not biodegrade much faster than a plastic one photodegrades.

So perhaps the way to avoid this bag conundrum is not to use either type of single-use bag. The reusable bags offered for sale by grocery stores are a good option – if you use them long enough.  Heavier reusable plastic bags and cotton bags also have the freight of energy and resource consumption in their manufacture and their own greenhouse gas emission problems.  A heavy-duty plastic bag must be used five times to reduce its carbon footprint to that of a single-use plastic bag. A reusable cotton bag must be used 173 times.

There might also be a political solution to the problem. Eight states—California, Connecticut, Delaware, Hawaii, Maine, New York, Oregon and Vermont—have completely banned single-use plastic bags. Some cities and localities have also instituted bans, including Montgomery County, Maryland. Jefferson County Delegates John Doyle and Sammi Brown introduced legislation in the 2019 Legislature that would ban single-use plastic bags in West Virginia. The legislation was referred to committee, where it awaits some sort of action in the next session.

Most likely, however, we will have to change our behavior voluntarily. That’s not to say we couldn’t use a nudge. The German grocer Aldi, which is a small player in the market, provides that nudge. That chain will happily sell you a plastic or paper bag for about 10 cents each. Aldi claims this saves them money that they return to customers in the form of lower prices. Perhaps.

But there is no doubt that Aldi’s price on single use bags acts as a tax with the predictable result of encouraging shoppers to come up with their own bags or reuse bags they have previously purchased at Aldi or elsewhere. While this approach doesn’t completely eliminate the problems associated with single-use bags, it gets us moving in the right direction without government intervention. My conservative friends like this.