At the end of December 2019, a contagious respiratory illness was reported in Wuhan, China. For the first few weeks, the World Health Organization (WHO) had doubts that the roots of the illness (pneumonia-like cases) stemmed from a new coronavirus.[1] As early as January 21st, 2020, the novel coronavirus had been identified as the mysterious contagious respiratory illness originating in Wuhan and had made its way into the United States when a Washington state resident became the first person in America to be confirmed to have it.[2] On January 31^st, 2020, the WHO declared a public health emergency.[3] Shortly thereafter, on February 3^rd, 2020, the Trump administration declared a public health emergency in the United States due to the coronavirus outbreak.[4] By March 11th, 2020, the WHO declared COVID-19 reached the status of being a pandemic. During that announcement, Tedros Adhanom Ghebreyesus, director-general of WHO, said at a briefing in Geneva that the agency is “deeply concerned by the alarming levels of spread and severity” of the outbreak.[5] In the beginning stages of the pandemic, major governmental players and organizations such as the WHO were primarily concerned with restricting global travel and completing contact tracing with individuals who tested positive for the novel coronavirus.[6] As the virus continued to spread at an alarming rate, government officials and officials from around the world began to construct more restrictions and protocols in an effort to stop the spread.[7]

The most drastic restriction to be created in response to the novel coronavirus was the stay-at-home orders that numerous governors put in place in several states around mid-March of last year. The goal of these orders was to limit residents from traveling except to go to an essential job or to shop for their essential needs (food, medications, etc.).[8] Although the intention of the stay-at-home orders was to reduce the spread of the novel coronavirus, the orders ended up having a secondary benefit in that air pollution worldwide significantly decreased.

Since the start of the COVID-19 pandemic, the reductions in Earth’s atmospheric air pollutants have been observable from both space and the ground.[9] Scientists wanted to know how much of the decline was attributable to changes in human activity during the stay-at-home orders compared to how much air pollution would have occurred if a pandemic did not occur in 2020.[10] NASA researchers utilized computer models to generate COVID-free 2020 pollution statistics.[11] Their research showed that since February, the restrictions that emerged in response to the pandemic have reduced global nitrogen dioxide concentrations by nearly 20%.[12] Nitrogen dioxide is an air pollutant that is primarily produced by the combustion of fossil fuels used by industry and transportation—both of which were significantly reduced during the height of the pandemic in an effort to mitigate the spread of the novel coronavirus.[13] Wuhan, China, was the first municipality to report an outbreak of COVID-19. It was also the first place to show a reduction in nitrogen dioxide emissions—60% lower than simulated values of the NASA computer-generated model expected for 2020. A 60% decrease in Milan and a 45% decrease in New York followed shortly, as their local restrictions went into effect.[14] The European Environmental Agency (EEA) predicted that, because of the COVID-19 lockdown, nitrogen dioxide emissions dropped from 30-60% in many European cities, including Barcelona, Madrid, Milan, Rome, and Paris.[15] It is assumed that vehicles and aviation are vital contributors to emissions and contribute almost 72% and 11% of the transport sector’s greenhouse gas emissions, respectively.[16] “We all knew the lockdowns were going to have an impact on air quality,” said lead author Christoph Keller with Universities Space Research Association (USRA) at NASA’s Goddard Space Flight Center; however, in some ways, Keller was “surprised by how much it dropped,” because “many countries have already done a very good job in lowering their nitrogen dioxide concentrations over the last decades due to clean air regulations, but what our results clearly show is that there is still a significant human behavior-driven contribution.”[17]

Additionally, when the pandemic hit and city streets became eerily quiet seemingly overnight, chemists from around the world began collaborating to analyze how carbon dioxide (CO₂₎ emissions were altered as the responses to COVID-19 were underway.[18] In New Zealand, where stringent movement restrictions bolstered the country’s effective containment of COVID-19, traffic volume fell by about 80% during the height of the lockdown, according to Jocelyn Turnbull, a radiocarbon scientist at geological research company GNS Science.[19] During the first six weeks that the orders were in place in the United States, traffic was down by about 45%. Data from the Berkeley Environmental Air-quality and CO₂ Network (BEACON) showed that total carbon dioxide emissions fell by about a quarter during that period compared with the previous six weeks.[20]

All in all, the COVID-19 commute has helped mitigate the spread of the novel coronavirus and helped to reduce the number of air pollutants in our atmosphere. Moving forward, leaders of countries around the world should aim to increase economic activity and slowly re-open the world (in a safe manner) while also making a valiant effort to reduce the use of transportation. I believe the work from home era is here to stay in some capacity—as this pandemic has shown us how much work is able to be achieved within the walls of our homes—and additionally has proven to businesses how much money they could be saving if they either downsize their offices or close them all together and continue to work remote.

[1] AJMC Staff, A Timeline of COVID-19 Developments in 2020, AJMC, https://www.ajmc.com/view/a-timeline-of-covid19-developments-in-2020 (Jan. 1, 2021).

[2] Id.

[3] Id.

[4] Id.

[5] WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 – 11 March 2020, Who.int, https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020 (Mar. 11, 2020).

[6] AJMC Staff, A Timeline of COVID-19 Developments in 2020, AJMC, https://www.ajmc.com/view/a-timeline-of-covid19-developments-in-2020 (Jan. 1, 2021).

[7] Timing of State and Territorial COVID-19 Stay-at-Home Orders and Changes in Population Movement–United States, March 1, May 31, 2020, CDC, https://www.cdc.gov/mmwr/volumes/69/wr/mm6935a2.htm (2020).

[8] Id.

[9] Model Shows Extent COVID-related Pollution Levels Deviated from Norm, NASA, https://www.nasa.gov/feature/goddard/2020/nasa-model-reveals-how-much-covid-related-pollution-levels-deviated-from-the-norm  (2020).

[10] Model Shows Extent COVID-related Pollution Levels Deviated from Norm, NASA, https://www.nasa.gov/feature/goddard/2020/nasa-model-reveals-how-much-covid-related-pollution-levels-deviated-from-the-norm (Nov. 17, 2020).

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Air pollution goes down as Europe takes hard measures to combat coronavirus, European Environment Agency (2020), https://www.eea.europa.eu/highlights/air-pollution-goes-down-as (last visited Apr 24, 2021).

[16] Tanjena Rume & S.M. Didar-Ul Islam, Environmental effects of COVID-19 pandemic and potential strategies of sustainability Heliyon, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7498239/#:~:text=The%20global%20

disruption%20caused%20by,parts%20of%20the%20world.

[17] Id.

[18] Cen.acs.org, https://cen.acs.org/environment/atmospheric-chemistry/COVID-19-lockdowns-had-strange-effects-on-air-pollution-across-the-globe/98/i37 (Sept. 25, 2020).

[19] Id.

[20] Id.

The post COVID-19 Commute: Air Quality During the Work From Home Era first appeared on JOULE.

The post Joule Volume 9 – 2021 first appeared on JOULE.

If you are someone who drives frequently, you are likely aware of the sharp increase in gas prices over the last few months. You may also be aware of much of the political posturing and theories on why these prices have been on the rise. The U.S. Energy Information Administration (EIA) is a government agency whose job is to gather and distribute data and other information relating to the energy industry.[1] One of the many data points that the EIA tracks are the average price per gallon of gasoline across the country, as well as by region. According to the EIA, the average price per gallon was $2.420 in January, $2.587 in February, and $2.898 in March.[2] In the two-month span from January to March, the average price per gallon rose roughly 19.6%.[3] Although this is a drastic increase, part of this increase must be attributed to a yearly trend. Over the five-year period from 2015-2019 (excluding 2020 as an outlier because of the COVID-19 pandemic), the average price increase per gallon from January to March was around 5.3%.[4]

In order to better understand why gas prices may have risen more than they normally do in the first quarter of the year, we must first take a look at the major factors that affect gas prices. According to the EIA, 56% of the price of gas consists of crude oil costs.[5] Further 13% is attributed to refining costs, 12% to distribution and marketing, and 19% is attributed to taxes. As you can see, the cost of the crude oil used in producing gasoline makes up over half of the cost per gallon. Although much of the coverage regarding the increase in prices has been given to gasoline, it is worth noting that the price of crude oil has also increased drastically over the last few months. Two of the major benchmarks of oil prices are those of West Texas Intermediate (WTI) crude oil and Brent crude oil. In the time period from November 2020 through February 2021, the price of WTI crude oil and Brent crude oil rose 44.2% and 45.9% respectively.[6] On top of this sharp increase in the price of crude oil, the recent winter storms to hit the southern United States have also played a role in the increase in gas prices. The weekly production of fuel ethanol, one of the inputs used in making the gasoline we use in our cars, saw a drop of over one-third in the last week of February compared to the production level at the same time last year.[7]

The combination of the sharp rise in oil prices and the decrease in production of fuel ethanol are both anomalies that could not be predicted based upon past trends. When you consider these factors and how much the price of gasoline depends upon them, one can see why the price of gasoline has risen nearly 4 times more than it has in the same period (January-March) for the five-year period from 2015-2019. So, when you hear politicians and political pundits taking shots across the bow regarding the recent spike in gas prices, just remember that factors largely out of direct control of the government determine the price we pay at the pump.

[1] U.S. Energy Info. Admin., https://www.eia.gov/about/

[2] U.S. All Grades All Formulations Retail Gasoline Prices, U.S. Energy Info. Admin. (Mar. 29, 2021), https://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=pet&s=emm_epm0_pte_nus_dpg&f=m

[3] Id.

[4] Id.

[5] Gasoline and Diesel Fuel Update, U.S. Energy Info. Admin. (Mar. 29, 2021), https://www.eia.gov/petroleum/gasdiesel/

[6] Spot Prices, U.S. Energy Info. Admin. (Mar. 31, 2021), https://www.eia.gov/dnav/pet/pet_pri_spt_s1_m.htm

[7] Sean Hill & Estella Shi, Extreme winter weather event in Texas reduced fuel ethanol production in February, U.S. Energy Info. Admin. (Mar 31, 2021), https://www.eia.gov/todayinenergy/detail.php?id=47356

The post Why are Gas Prices on the Rise and is This Out of the Ordinary? first appeared on JOULE.

Within his first few days in office, President Biden signed an executive order which revoked the permit for the Keystone XL Pipeline.[1] The project was proposed in 2008 by TC Energy and it was designed to transport tar sands oil from Alberta, Canada to the Gulf Coast of Texas.[2] The pipeline is comprised of two segments, the southern and northern.[3] While the southern part of the pipeline has already been completed, the northern segment has faced difficulties.[4] Under Obama’s administration, the permit to construct the northern leg was declined, but then President Trump reversed that action and granted the permit to continue construction.[5] Despite President Trump’s efforts though, President Biden’s executive order last month halted the construction of the 1,700 mile pipeline project.

Since the Keystone Pipeline project began there have been varying opinions from supporters, as well as opponents of the project. Supporters of the pipeline have consistently said that it would create thousands of jobs in the United States.[6] However, with President Biden recently revoking the permit, it could directly lead to large amounts of layoffs.[7] Furthermore, according to lobbyists, developing tar sands would protect the United States’ national energy security and lower fuel prices in the U.S.[8] People for the pipeline have also emphasized the point that the growth of tar sands will continue to move forward with or without the Keystone XL Pipeline.[9]

While some believe in the pipeline and its claimed benefits, various environmental activists, indigenous communities, and farmers have strongly opposed the pipeline project.[10] One of the biggest concerns surrounding the pipeline is the harmful impacts it could have on our environment.[11] The construction of the pipeline itself and the development of crude oil will likely lead to an increase in the use of fossil fuels, which will then produce more greenhouse gas emissions.[12] Opponents further argue that due to the tar sands oil being extremely corrosive it could lead to more leaks in the pipeline.[13] Along with leaks, another environmental and safety issue is potential oil spills, which as we have seen in the Kalamazoo River and BP oil spills are not only costly, but should also make one pause when considering the Keystone Pipeline project.[14] A further safety issue surrounding the Keystone Pipeline is that it runs through the Sandhills area of Nebraska, which houses the Ogallala Aquifer.[15] The concern is that the ground is very thin in the Sandhills area, which could cause problems for the two million people that depend on the aquifer for their drinking water.[16]

Whether one agrees or disagrees with the Keystone XL Pipeline, President Biden made his decision and now TC Energy has to figure out its next steps. As of the beginning of this month, TC Energy hadn’t announced what it planned to officially do with the project.[17] It could scrap the pipeline project entirely or it could just wait for more beneficial political conditions to then resume its more than a decade of work.[18]

[1] Rob Gilles, Keystone XL Pipeline haltered as Biden revokes permit, AP News, https://apnews.com/article/joe-biden-alberta-2fbcce48372f5c29c3ae6f6f93907a6d (Jan. 20, 2021).

[2] Melissa Denchak, What Is the Keystone XL Pipeline, NRDC, https://www.nrdc.org/stories/what-keystone-pipeline#whatis (Jan. 20, 2021).

[3] Id.

[4] Id.

[5] Id.

[6] Irina Ivanova, Who benefits from revived Keystone XL and Dakota Access pipelines?, CBS News, https://www.cbsnews.com/news/who-benefits-from-the-keystone-xl-pipeline-and-dakota-access-pipeline-pros-cons/ (Jan. 24, 2017).

[7] Keystone XL, TC Energy disappointed with Expected Executive Action revoking Keystone XL Presidential Permit, Keystone XL, https://www.keystonexl.com/project-updates/updates-feed/2021/tc-energy-disappointed-with-expected-executive-action-revoking-keystone-xl-presidential-permit/ (Jan. 20, 2021).

[8] Melissa Denchak, What Is the Keystone XL Pipeline, NRDC, https://www.nrdc.org/stories/what-keystone-pipeline#whatis (Jan. 20, 2021).

[9] Id.

[10] Id.

[11] David Barer, Alex Dropkin, Jessica Mahoney, Michael Marks and Daniel Ramirez, What is the Keystone XL Pipeline?, StateImpact Texas, https://stateimpact.npr.org/texas/tag/keystone-xl-pipeline/ (last visited Feb. 26, 2021).

[12] Gray, Debunking Keystone: The Myths & Misinformation about Extending the Pipeline, Gray, https://www.gray.com/insights/debunking-keystone-the-myths-misinformation-about-extending-the-pipeline/ (May 28, 2014).

[13] David Barer, Alex Dropkin, Jessica Mahoney, Michael Marks and Daniel Ramirez, What is the Keystone XL Pipeline?, StateImpact, https://stateimpact.npr.org/texas/tag/keystone-xl-pipeline/ (last visited Feb. 26, 2021).

[14] Gray, Debunking Keystone: The Myths & Misinformation about Extending the Pipeline, Gray, https://www.gray.com/insights/debunking-keystone-the-myths-misinformation-about-extending-the-pipeline/ (May 28, 2014).

[15] David Barer, Alex Dropkin, Jessica Mahoney, Michael Marks and Daniel Ramirez, What is the Keystone XL Pipeline?, StateImpact, https://stateimpact.npr.org/texas/tag/keystone-xl-pipeline/ (last visited Feb. 26, 2021).

[16] Id.

[17] Alec Jacobson, The Keystone XL pipeline is dead. Now what?, National Geographic, https://www.nationalgeographic.com/environment/article/keystone-xl-pipeline-dead-now-what (Feb. 9. 2021).

[18] Id.

The post Cancellation of the Keystone XL Pipeline: Good or Bad? first appeared on JOULE.

Noted to be the “most anti-nature president in U.S. history,”[1] former president Donald Trump operated his final days in the Oval Office with vengeance against the American environment; aiming to diminish and eliminate strong protections against notoriously harmful, anti-environmental practices, Donald Trump continued to work solely for the advancement of corporate development until his final hour.

Such practice does not come as a surprise to anyone.  During his four years as president, Donald Trump and his political cohorts “rolled back more than 100 environmental rules,” of which concern, inter alia, air pollution and emissions, drilling and extraction, infrastructure and planning, animals, water pollution, and toxic substances and safety.[2]  However, since losing the election in November, Trump has done more for his environmental setbacks in two months than in four years.[3]  Severe dissections to the Endangered Species Act, “expedited approvals to lease more than 550,000 acres of the Arctic National Wildlife Refuge for energy development,” green light go-ahead to motorway infrastructure in a wildlife reserve, and the weakening of high standards for energy efficiency have been few of many actions taken prior to Trump’s January 20, 2020 leave.[4] 

Notably, the Trump Administration justified environmental harm with security and expansion of mining, fracking, and drilling-based jobs.   However, nothing new shall stay if the Biden Administration has anything to say about it.  President Biden believes such ‘competing interests’ can work in tandem with the guidance of science and technology.  It is, therefore, President Biden’s overarching environmental goal “to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on the [undermentioned goals].”[5]

As the executive branch begins to say “out with the old, in with the new,” change has already commenced.  Within mere hours of his swearing in, President Biden signed two notable Executive Orders: an “Acceptance on Behalf of the United States of America”[6] to re-enter into the Paris Climate Agreement, and an “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”[7]  Within the latter Order, it is mandated that all executive departments and agencies review, with the highest scrutiny, all of the Trump Administration’s environmental setbacks and “immediately commence work” to combat the damage exasperated by the previous administration’s orders.[8]  All current and future action, President Biden undersigned, shall work to achieve ultimate goals, among others listed, “to improve public health and protect our environment; . . . to bolster resilience to the impacts of climate change . . .”[9]

Unfortunately, only after years and the changing of various presidential administrations will we see significant change to the ongoing climate crisis.  The Biden Administration, contrary to the Trump Administration’s practices, will follow heavily in the footsteps of scientific and analytical pursuits and expertise and bring the United States up to par with the rest of the world.  Scientific expertise shall assist in changing the course of legal precedent, but not without its challenges.  Reward shall only come with immense legal impact, something that presidential-appointees of executive agencies, governmental attorneys, legislative members, and President Biden must all carry out to the highest practicum.  If the first day of the Biden Administration is any proof, change will come swiftly and without hesitation to equally benefit all American citizens.

[1] Juliet Eilperin and Dino Grandoni, In Trump’s last days, a spree of environmental rollbacks, The Washington Post (January 15, 2021 at 8:47 pm), https://www.washingtonpost.com/climate-environment/2021/01/15/trump-environmental-rollbacks/.

[2] Nadja Popovich, Livia Albeck-Ripka, and Kendra Pierre-Louis, The Trump Admission Rolled Back More Than 100 Environmental Rules. Here’s the Full List, The New York Times (updated January 20, 2021), https://www.nytimes.com/interactive/2020/climate/trump-environment-rollbacks-list.html.

[3] Id.

[4] Juliet Eilperin and Dino Grandoni, In Trump’s last days, a spree of environmental rollbacks, The Washington Post (January 15, 2021 at 8:47 pm), https://www.washingtonpost.com/climate-environment/2021/01/15/trump-environmental-rollbacks/; Earthjustice Editors, We’re Defending Endangered Species from the Trump Administration’s Last-Minute Attacks, Earthjustice (January 4, 2021), https://earthjustice.org/brief/2021/were-challenging-the-trump-administrations-last-minute-attacks-on-endangered-species

[5] Id.

[6] Press Release, The White House, Paris Climate Agreement (January 20, 2021).

[7] Id.; Exec. Order No. 13990, 86 FR § 7037 (signed January 20, 2021).

[8] Id.

[9] Id.

The post Final Days / First Days: The Trump Administration’s Environmental Rollbacks and the Biden Administration’s Reversal first appeared on JOULE.

On January 6, 2021, only fourteen days before President-Elect Joe Biden is inaugurated, the Trump Administration will begin selling oil and gas leases in the Arctic National Wildlife Refuge.[1] However, there are compelling reasons to prevent drilling in the region including to protect vulnerable arctic wildlife, the risk of an oil spill and the difficulty of mitigating the effects of one in the arctic, and the affects that drilling has on climate change.[2] Lawsuits have already been filed by The Audubon Society, Center for Biological Diversity, Sierra Club, and the Gwich’in Steering Committee challenging the adequacy of the environmental review process that is required by the National Environmental Policy Act (“NEPA”) before leases can be issued.[3] Additionally, the Biden Administration “has vowed to protect the refuge and could delay or possibly revoke any leases that are issued.”[4] But, is revoking leases after they are issued within the authority of the incoming president and his executive branch agencies?

In 2016, the Secretary of the Interior under the Obama Administration, Sally Jewel,  did just that. She revoked granted leases to drill for oil and gas in the Badger Two Medicine Area of Billings, Montana; some of which were granted in the early 1980s.[5] The Secretary cancelled the leases because they were in violation of NEPA and the Historic Preservation Act.[6] NEPA requires agencies “to use all practicable means to create and maintain conditions under which man and nature can exist in productive harmony.”[7] Agencies must “incorporate environmental, considerations in their planning and decision-making . . . [by preparing] detailed statements assessing the environmental impact of and alternatives to major federal actions significantly affecting the environment.”[8]

One of the companies that held a lease which was cancelled in 2016 challenged the move in district court, claiming, among other things, that the cancellation decision was arbitrary and capricious.[9] While the United States District Court for the District of Columbia initially overturned the cancellation of that lease, which was issued in 1982, the Court of Appeals upheld the cancellation in Solenex LLC v. Berhard.[10]

Under the Administrative Procedure Act, which governs administrative agencies, agency action may be held unlawful and set aside if the action is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . .”[11] Agency action is arbitrary and capricious where the agency does not offer evidence that explains its underlying decision and they do not have a rational connection between the facts and the choice made.[12]

The court in Solenex LLC v. Berhardt, found that the agency action of cancelling the lease was not arbitrary and capricious, even though there was a thirty-four-year delay in the cancellation.[13] They found that the delay in the cancellation was the result of “extensive and complex environmental, cultural, historical, and religious challenges to the agency decision” and did not result in harm to the company.[14] However, the Court remanded the case back to the District Court for the District of Columbia to reconsider whether the agency action was arbitrary and capricious for more than just the delay of the action alone.[15]

Thus, the Secretary of the Interior under the Biden Administration, currently pegged to be Representative Deb Haaland of New Mexico, may cancel the leases to be sold on January 6, 2021 so long as there is a rational connection between the facts surrounding the issue and the cancellation, and she offers evidence to support her decision. She can choose to cancel those leases based on a violation of NEPA, as many environmental groups allege, or other statutory requirements and policy considerations. Harm is unlikely to result by the cancellation of these leases, especially if the cancellations are done shortly after the administration is sworn in and cabinet nominations have been confirmed. There would be too little time for the companies with leases to begin their operations, and those applying for the leases are already aware of the possibility the Biden Administration will revoke them. Additionally, the agencies may remedy any expenses that a company may incur while applying for the lease, which makes harm even less likely.[16] Therefore, the Biden Administration will likely be successful in preventing drilling in the arctic, which will help to prevent further climate catastrophes in the years to come.

[1] Henry Fountain, Sale of Arctic Refuge Oil and Gas Leases Is Set for Early January, The N.Y. Times, Dec. 3, 2020, https://www.nytimes.com/2020/12/03/climate/arctic-refuge-lease-sales.html.

[2] 5 reasons why America’s Arctic should remain off-limits to new drilling for oil and gas, World Wildlife Fund, (last accessed Dec. 23, 2020) https://www.worldwildlife.org/stories/5-reasons-why-america-s-arctic-should-remain-off-limits-to-new-drilling-for-oil-and-gas.

[3] Adam Federman, The Trump Administration Rushes to Sell Leases in the Arctic Refuge, But How Much Oil Is There?, The Sierra Club, Dec. 7, 2020, https://www.sierraclub.org/sierra/trump-administration-rushes-sell-leases-arctic-refuge-how-much-oil-there.

[4] Id.

[5] Associated Press, US cancels energy leases in Montana area sacred to Blackfeet, FOX News, Nov. 17, 2016, https://www.foxnews.com/us/us-cancels-energy-leases-in-montana-area-sacred-to-blackfeet.

[6] Solenex LLC v. Bernhardt, 962 F.3d 520, 525 (D.C. Cir. 2020).

[7] What is the National Environmental Policy Act?, U.S. Environmental Protection Agency, (last accessed Dec. 23, 2020), https://www.epa.gov/nepa/what-national-environmental-policy-act.

[8] Id.

[9] Solenex LLC v. Bernhardt, 962 F.3d at 526.

[10] See Id.

[11] 5 U.S.C.A. § 706.

[12] See Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Ins. Co., 463 U.S. 29 (1983).

[13] See Solenex LLC v. Bernhardt, 962 F.3d 520.

[14] Id. at 528.

[15] Id. at 530.

[16] See Solenex LLC v. Bernhardt, 962 F.3d 520.

The post Can the Biden Administration Revoke Leases for Arctic Drilling Granted by the Trump Administration? first appeared on JOULE.

After seven years of litigation, the Environmental Protection Agency (EPA) has negotiated settlement terms by way of a proposed stipulated order of partial dismissal in its battle with Northwest Environmental Advocates [“Northwest”], an organization that works to restore water quality and habitats. Northwest, in conjunction with the Idaho Conservation League, sued the EPA in 2013 in the U.S. District Court for the District of Idaho. In its complaint, Northwest alleged that the EPA had failed to fulfill its duty under the Endangered Species Act to consult with certain wildlife agencies before initiating a new rulemaking under the Clean Water Act.[1] Under the Clean Water Act, the EPA is required to review state water quality standards and approve of them before said standards become a part of the state’s regulatory scheme.[2] See 40 C.F.R. § 131.21(c). Northwest claims that the EPA should have consulted with both the Fish & Wildlife Service and the National Marine Fisheries Service prior to promulgating new and revised water quality standards.

The water quality standards pertain to salmonid spawning timing procedure. For background, salmonids include whitefish, graylings, char, trout, and salmons.[3] Salmonids reproduce by spawning in fresh water and are very picky about their spawning conditions, requiring coarse gravel sediment for adequate oxygen flow to their eggs during the incubation period.[4] The Chinook salmon, a native fish of Idaho, is protected under the Endangered Species Act.[5] The Chinook salmon spawning period lasts from late July through December.[6] Idaho’s wild salmon travel nearly 900 miles and 7,000 ft vertically to spawn, dying shortly thereafter.[7] The carcasses of those salmon subsequently fertilize the rivers with much-needed nutrients.[8] Due to habitat destruction and over-fishing, inter alia, the number of wild chinook salmon that return to Idaho for spawning has dramatically decreased—dropping from 1.5 million in the 1950’s to just 20,000 today.[9]

The Clean Water Act contains provisions related to salmonid spawning, incubation and emergence periods that require states to “restore and maintain the chemical, physical and biological integrity of the nation’s waters” to protect salmonid habitats.[10] Accordingly, Idaho’s Department of Environmental Quality [“DEQ”] conducted informational studies to determine when and where salmon spawn in the state’s rivers.[11] The DEQ then established standards pertaining to the water quality in bodies of water that are likely to be inhabited by wild salmon.[12] For example, the DEQ set average maximum temperature standards for streams that are measured over a seven-day period.[13] The delicate balance of the salmonid spawning ecosystem requires careful monitoring and implementation of water quality standards.

In the Northwest matter, plaintiffs alleged that the EPA incorrectly approved of Idaho’s water quality standards without applying the Endangered Species Act [“ESA”] Section 7 process.[14] Plaintiffs further allege that, in failing to utilize the ESA Section 7 consultation, the EPA failed to protect threatened and endangered fish and wildlife from pollution.[15] The relief sought included declarative relief stating that the EPA violated its duties under the Clean Water Act, as well as injunctive relief requiring the EPA to take immediate action in consultation regarding the Idaho water quality standards.[16]

Under the proposed settlement agreement, the EPA would have a three-year timeline during which it must complete an “effects determination” pursuant to 50 C.F.R. 402.14(a) for its approval of Idaho’s revisions of the salmonid spawning timing procedures.[17] The EPA would also initiate consultation under the Endangered Species Act.[18] Additionally, the EPA would pay $37,000 in attorney’s fees to plaintiffs under the settlement agreement.[19]

The EPA is required by law to be transparent about litigation and settlement offers and, as such, accepted public comments regarding the settlement for a period of thirty (30) days, which ended on December 30, 2020.[20] Barring the revelation of new facts related to this matter by way of public comment, the settlement order will be entered and the longstanding litigation will come to an end, in a relative victory for environmentalists and spawning salmon alike.[21]

[1] Complaint at 2, Northwest Environmental Associates et al. v. EPA, (D. Idaho, 2013) (No. 1:13-cv-00263-EJL) epa.gov.

[2] Id. at 8.

[3] Wikipedia, Salmonidae, (2020) http://en.wikipedia.org/wiki/Salmonidae.

[4] Watershed Information & Conservation Council, Spawning Gravel Permeability, napawatersheds.org, (last visited Dec. 31, 2020).

[5] Barnhill, Frankie, Boise State Public Radio, Chinook Salmon Begin Spawning on a Wild Idaho River (Aug. 14, 2018) http://www.boisestatepublicradio.org.

[6] Essig, Don, Idaho Department of Environmental Quality, Geography and Timing of Salmonid Spawning in Idaho (April 25, 2014) http://www.air.idaho.gov.

[7] Idaho Rivers United, Celebrating Salmon, Wild Salmon: an Idaho legacy at risk of extinction, (last visited Dec. 31, 2020) https://www.idahorivers.org/celebrating-salmon.

[8] Id.

[9] Id.

[10] Essig, Don, Geography and Timing of Salmonid Spawning in Idaho.

[11] Id.

[12] Id.

[13] Id.

[14] Complaint at 5.

[15] Id. at 6.

[16] Id. at 34-35.

[17] Environmental Protection Agency, Proposed Settlement Agreements: Clean Water Act and Endangered Species Act, Notice Document, (No. 2020-26310) (Nov. 30, 2020) https://www.regulations.gov.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

The post The End of the Salmon Run: Environmental Organization’s Lawsuit Against EPA Wraps Up first appeared on JOULE.

Photo courtesy of: https://commons.wikimedia.org/wiki/File:Environmental_Impacts_from_Marijuana_Cultivation.pdf

With the recent legalization of recreational use in four states, along with the legalization for medical use in Mississippi[1], marijuana is clearly a growing industry in the United States.  Marijuana legalization is often discussed in the context of criminal law.  Indeed, thoughtful legalization of marijuana is an act of social justice; Just under half of the annual arrests for non-violent drug violations are for marijuana[2], with Black people being 3.64 times more likely than white people to be arrested for marijuana possession, despite similar usage rates.[3]  In addition to considering social justice, legalizing marijuana should be considered in an environmental context.  We must hash out the role environmental law will play in the marijuana industry, as marijuana growth uses a significant amount of water, electricity, and land.  Frequent changes in legal status makes it difficult to implement effective agricultural regulations[4]; However, legalization will allow the government to ensure that the use of these sources in marijuana cultivation is environmentally friendly.

Whether grown indoor or outdoor, marijuana plants require a significant amount of water.  During the outdoor growth process, one plant can soak up around twenty-two liters of water each day.[5]  Outdoor growers, to keep up with irrigation, will engage in illegal river or lake diversions.[6]  Since the first, credible scientific study of marijuana cultivation on water resources in March of 2015, it’s been shown that marijuana plants can outstrip water supplies.[7]  Legalization can lower the damaging water use.  For example, in Washington, the state requires compliance with the State Environment Policy Act–which includes obtaining water quality permits.[8]

Additionally, indoor marijuana growth is one of the most energy-intensive industries in the country, requiring significant amount electricity maintain the necessary conditions for plant growth (i.e., light and heat).[9]  However, legalizing marijuana can help curtail wrongful energy use.  Legitimate companies with sources of revenue will be less likely to steal electricity, and thus will encourage growers to “connect to the grid.”[10]  Additionally, trail blazing programs on energy efficiency in marijuana cultivation can be implemented to ensure best practices.[11]

Finally, cultivators operating unpermitted farms on public lands can cause significant damage.[12]  Growers seeking to conceal their farms often share their operations with pristine wildlife habitats;[13] these “trespass operations” include illegally clearing the land, and destroying the wildlife and the wildlife habitats.[14]  Growers also use pesticides, fungicides, and fertilizers to ensure that the plants are able to grow.[15]  The types used, however, are not the same as what one uses in their typical garden; these chemicals are extremely dangerous, some requiring special licensing and others being plainly illegal.[16]  However, it has been shown that there has been a decrease of improper land use for marijuana growth in states where the plant has been legalized–such as Oregon.[17]  Additionally, legalization of marijuana will lead to better opportunities to conduct research on the plant, and to find proper pesticides that will be less harmful to the surrounding environment.[18]

Legalization of marijuana has environmental benefits.  As a budding industry, state and federal legislation must make a joint effort to work towards legalizing and regulating marijuana.  Marijuana law and environmental law, working hand-in-hand?  Now that’s the jackpot.

[1] Richard Luscombe, How marijuana legalization made strides across the US in this election, The Guardian, https://www.theguardian.com/us-news/2020/nov/14/marijuana-legalization-us-elections-2020 (Nov. 14, 2020).

[2] Marijuana Arrests & Punishments, The ACLU, https://www.aclu.org/other/marijuana-arrests-punishments (last visited December 17, 2020).

[3] ACLU Research Report, A Tale of Two Countries: Racially Targeting Arrests in the Era of Marijuana Reform, ACLU, 1, 7 https://www.aclu.org/sites/default/files/field_document/tale_of_two_countries_racially_targeted_arrests_in_the_era_of_marijuana_reform_revised_7.1.20_0.pdf (last visited Dec. 17, 2020).

[4] Mark Klassen and Brandon P. Anthony, The effects of recreational cannabis legalization on forest management and conservation efforts in the U.S. national forests in the Pacific Northwest, 162 Ecological Economics 39, 39 https://www.sciencedirect.com/science/article/abs/pii/S0921800918318330 (August 2019).

[5] Jennifer K Carah, et. al.  High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, 65 BioScience 822, 823 (August 2015).

[6] Gina S. Warren, Regulating Pot to Save the Polar Bear: Energy and Climate Impacts of the Marijuana Industry, 40 Colum. J. Envtl. L. 385, 407 (2015).

[7] Ryan B. Stoa, Article, Weed and Water Law: Regulating Legal Marijuana, 67 Hastings L.J. 565, 569 (2016).

[8] Warren, supra note 7 at 422.

[9] Id. at 386.

[10] Id. at 409-410.

[11] Id. at 409.

[12] Jodi Helmer, The Environmental Downside of Cannabis Cultivation, JSTOR Daily, https://daily.jstor.org/the-environmental-downside-of-cannabis-cultivation/ (last accessed December 15, 2020).

[13] Id.

[14] Warren, supra note 8 at 405.

[15] Warren Eth, Comment, Up in Smoke: Wholesale Marijuana Cultivation within the National Parks and Forests, and the Accompanying Extensive Environmental Damage, 16 Penn St. Envtl. L. Rec. 451, 473 (2008).

[16] Jessica Owley, Unforeseen Land Uses: The Effect of Marijuana Legalization on Land Conservation Programs, 51 U.C. Davis L. Rev. 1673, 1679-1680 (2018).

[17] Klassen, supra note 4 at 39.

[18] Owley, supra note 16 at 1695

The post Weed Be Good Together: Environmental Regulation & The Marijuana Industry first appeared on JOULE.

As the world recovers from the heart attack of the 2020 United States presidential election, onlookers are likely curious about the impact that prevalent environmental issues had on voters across the country. The United States is often seen as a leading influence on other countries especially when it comes to policy issues such as climate change. In 2017, President Trump made the decision to drop out of the Paris Climate Agreement. The Paris Agreement seeks to limit global warming to well below 2 degrees Celsius and to pursue efforts to limit it to 1.5 degrees Celsius; countries that are parties to this agreement would need to reach net-zero emissions by the year 2050 in order to meet such goals. As a result of United States’ absence in the Paris Climate Agreement, other countries have started to lessen their efforts toward commitments made under the agreement.
Recent events as well as the rising voices of activists proved to be two important factors which ultimately led to the result of the presidential election. These recent events include wildfires searing across the Western United States, unprecedented floods in Asia, deadly heatwaves and droughts, and a rapid loss of ice caps. A recent CNN article, Jonathan Pershing, the Program Director of Environment at the William and Flora Hewlett Foundation, stated that he believes “under a United States president who pushes for climate policies the world could work toward ‘marginal, incremental damagers’ rather than catastrophic ones.” The devastating blow of climate change has wreaked havoc throughout the global community. As Kim Cobb, professor and researcher of paleoclimate and climate change at Georgia Tech, claimed in the same CNN article “It’s not really the planet anymore. It’s really about people. And that’s something that we have to wake up to. It’s not about saving polar bears and coral reefs, it’s about us.” Climate change has gotten personal for voters as was the evident in this election.
Several voters were cited in a BBC article from November 2020 which featured a discussion about the influence that the climate crisis had on their vote this fall. First, an independent voter from Alaska explained that in her community, common activities have been negatively impacted by climate change. She claimed that there has been a devastating “impact on the Alaskan economy as the land and waters of Alaska have always provided so much life for the community, and when they are diminished the Alaskan quality of life is diminished.” A California resident, a member of the Republican party, said he believes that climate change has indeed become a threat to national security, but he also stated that he does not believe that either candidate presented a viable plan that would lead to a reasonable solution to the crisis. Finally, a Florida resident, a member of the Democratic Party, believes that President-Elect Joe Biden’s climate change plan will have a positive impact on his local community in Miami. The young voter claimed, “climate change is an existential threat to the future of his generation, and Joe Biden’s proposed policies take some of the necessary steps to mitigate its effects.”
Additionally, the Pew Research Center conducted a study this past summer to further an understanding of the impact that environmental issues have on voters in the United States. The study found that “a majority of registered voters in the United States say climate change would be a very or at least somewhat of an important issue in making their decision about whom to vote for in the presidential election.” About 68% of Biden supporters had said that, at the time of this survey, climate change would have a very important influence on their vote. On the other hand, only about 11% of Trump supporters shared that perspective on climate change. In both instances, this data reflects a variation in perspectives depending on several factors including ideology, gender, and generation.
Recently, climate change has become an increasingly prevalent issue for voters across the United States. This impact of which is reflected in the results of the recent election. Now, as the dust settles on these results, the country and our global community await the fruition of President-Elect Joe Biden’s proposed environmental policies.

References:
https://www.cnn.com/2019/11/01/world/us-election-climate-crisis-intl-dst-hnk/index.html
https://www.bbc.com/news/election-us-2020-54727388

How important is climate change to voters in the 2020 election?

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Like wild animals, oil and gas are subject to the rule of capture.^[1] The rule of capture was established by Pierson v. Post, a famous American property law case addressing which of two hunters possess rights to a killed fox in early-nineteenth century Southampton, New York.^{[2] [3]} Lodowick Post was a hunter in pursuit of a fox, trailing a fox through a pasture with his hunting hounds.^[4] The fox, seeking refuge, positioned itself near a well located within the pasture. This pasture adjoined the farm of Jesse Pierson, a fellow Southampton resident.^[5] Pierson captured and killed the fox, carrying it off—the rest is history.^[6] The Court held that one who manifests an “unequivocal intention of appropriating the animal to his individual use” by depriving the animal of its natural liberty, and subjects the animal to the control of its pursuer, establishes occupancy and gains rights over a wild animal.^[7]

This “rule of capture” now extends far beyond the scope of foxes residing in the pastures of Suffolk County, New York, and into many disputes involving oil and gas law.^[8] As with any fluid, oil and gas may naturally move from an area of high pressure to low pressure.^[9] Because minerals have a natural tendency to escape, courts have compared this tendency to that of wild animals.^[10] Like the aforementioned fox in Post, oil and gas are thus subject to the rule of capture.^[11] In Pennsylvania, the rule of capture allows for gas to be extracted from underneath land owned by another party when a common pool of gas lays below the adjoining lands .^[12] An aggrieved property owner may only offset the loss by drilling their own well to siphon gas from the common pool. This principle is referenced in Barnard v. Monongahela Nat. Gas Co., a decision rendered by the Supreme Court of Pennsylvania in 1907.^[13]

In Briggs v. Southwestern Energy Production Company, the Supreme Court of Pennsylvania addressed whether hydraulic fracturing constitutes a trespass to adjacent land. Plaintiffs alleged that Southwestern extracted natural gas from under their parcel of land consisting of approximately eleven acres. In turn, Plaintiffs alleged two counts: 1) the value of the natural gas under the Plaintiff’s land; and 2) possession and use of the natural gas, as Plaintiffs allege Southwestern converted these rights to Southwestern’s use. The Plaintiffs did not allege a physical trespass.

To understand the rule of capture in the context of fracking, a broad background on the mechanics of hydraulic fracturing is necessary. Broadly, hydraulic fracturing works by pumping water, sand, ceramic pieces, and chemical additives into a rock formation at high pressure. This injection creates a fracture from which fluids may be drawn. Southwestern has used hydraulic fracturing to extract natural gas from the Marcellus Shale rock formation.^[14] The Marcellus Shale play contains natural gas trapped in between small fissures of rock.^[15] Marcellus Shale “stretches from upstate New York south through Pennsylvania to West Virginia and west to parts of Ohio.”^[16]

In the absence of a physical invasion, the Supreme Court of Pennsylvania held that, “developers who use hydraulic fracturing may rely on pressure differentials to drain oil and gas from under another’s property”.^[17] In its reasoning, the Court references prior decisions holding that, in the absence of a physical invasion of property, subsurface drilling using artificial means, such as a pump, from a common pool, is permitted under the rule of capture.^[18] The Court reasons that there is no reason for this principle not to apply when the operators’ means of extraction is through hydraulic fracturing methods.^[19] Thus, the rule of capture still applies in Pennsylvania, despite operators using hydraulic fracturing methods in natural gas extraction.^[20] As methods of natural gas extraction continue to evolve, the foundations of property law, including the rule of capture and trespass, remain crucial to resolving land use disputes.

^[1] Briggs v. Sw. Energy Prod. Co., 224 A.3d 334, 336 (Pa. 2020).

^[2] Id. at 1119.

^[3] Id. at 1121.

^[4] Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805).

^[5] Bethany R. Berger, It’s Not About the Fox: The Untold History of Pierson v. Post, 55 Duke L.J. 1089, 1120 (2006).

^[6] Pierson v. Post, 3 Cai. R. 175 at 175.

^[7] Id. at 178.

^[8] Briggs v. Sw. Energy Prod. Co., 224 A.3d 334 at 336.

^[9] Id.

^[10] Id.

^[11] Id. at 337.

^[12] James A Pellow, III, “PA Supreme Court rules on Briggs v. Southwestern Energy and the Rule of Capture” https://www.eckertseamans.com/legal-updates/pa-supreme-court-rules-on-briggs-v-southwestern-energy-and-the-rule-of-capture

^[13] Barnard v. Monongahela Nat. Gas Co., 216 Pa. 362, 65 A. 801 (1907).

^[14] Briggs v. Sw. Energy Prod. Co., 224 A.3d 334 at 339.

^[15] “The Marcellus Shale, Explained” https://stateimpact.npr.org/pennsylvania/tag/marcellus-shale/

^[16] Id.

^[17] Briggs v. Sw. Energy Prod. Co., 224 A.3d 334 at 352.

^[18] Id. at 348.

^[19] Id.

^[20] Id. at 352.

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