January 01, 2013

Literary Resources

JoAnne L. Dunec

The Eskimo and the Oil Man: The Battle at the Top of the World for America’s Future

Bob Reiss, Business Plus, Hachette Book Group, 2012.

It’s a challenging environment, conceded Shell Alaska Vice President, Pete Slaiby. —San Francisco Chronicle, November 4, 2012

The Eskimo and the Oil Man illuminates the complexities of drilling for oil in the Arctic, including the daunting physical challenges, deep cultural concerns, and the arduous navigation through environmental analyses and permitting requirements. The story is told from the perspectives of Edward Itta, an Iñupiat, and Mayor of Alaska’s North Slope Borough, and Pete Slaiby, Vice President and head of Shell Oil’s Alaska Venture.

The book begins in April 2010, just as the BP Deepwater Horizon is burning and sinking and oil has begun spewing into the warm waters of the Gulf of Mexico. Itta must leave his whaling crew camped on the Arctic ice, waiting to hunt bowhead whales migrating through the Chukchi Sea to return to Barrow, Alaska to meet with three executives from Shell Oil. At the time, Shell was working toward being permitted to drill an exploratory well in the frigid waters off the North Slope.

According to the author, Bob Reiss, “Iñupiats had been hunting whales in northern Alaska for thousands of years,” and Itta “feared that [Shell’s] plan—if it went wrong—could destroy his 4,000-year-old community. Yet he feared that he might have to support it.” Reiss notes,

[Itta’s] concerns were shared by most residents of the region. Subsistence hunting was not only the basis of Iñupiat culture but it provided food that people ate. In the last census 61 percent of residents who worked full time and 89 percent of the unemployed reported getting over half of their nourishment from hunting and fishing.

Per Itta’s orders, “Borough lawyers had challenged Shell in court in 2007, charging the federal agency responsible for permitting any offshore drilling with failing to conduct underlying science, failing to show whether the drill plan would do harm to the areas offshore.” The court agreed. Itta recognized that his people depend on oil for income, but at the time thought it was “[t]oo much, too fast, too soon.”

In response, the author notes that Shell revised its plan—“made it smaller, and promised to stay away longer during hunting weeks—so Itta had refused to join national environmental groups—and a few Eskimo ones—still trying to bar Shell in court.”

According to Reiss, Shell had determined “that the next big US oil find would be in the Arctic [and] after conducting secret seismic work Shell had paid a total of $2.1 billion to buy leases in the Beaufort Sea east of Barrow in 2005 and in the Chukchi to the west in 2008.” However, the author notes,

five years after the first sale the only thing Shell had sunk into the area was $3.5 billion for the leases, studies, equipment and lawyers. Shell had been stopped each year between 2007 and 2009 by legal challenges brought first by Itta, then a consortium of national environmental organizations teamed up with a few native groups, then by byzantine federal permitting processes.

Shell’s plans were once again put on hold on May 27, 2010, when Secretary of Interior, Ken Salazar, suspended all offshore drilling in the Gulf of Mexico and Alaska. Shell began to plan for 2011. According to the author, “Slaiby was determined to drill” noting “[w]as it too much to ask, after paying over $3 billion, that a company might be allowed to explore leases it had purchased?”

“The problem,” notes the author, “started with government regulations. . . . [a]t least 30 federal permits were required before a company could [drill], and getting the permits called for more analysis and public hearings.” The author added, “[t]here was no requirement for all overseeing agencies to coordinate the studies, decisions and permit giving.” Permitting difficulties culminated in Shell’s determination that it would not seek to drill in the Arctic in 2011.

Nonetheless, both Itta’s and Slaiby’s perspectives were changing. As noted by the author,

[w]hen Itta became mayor of the North Slope in 2005, he opposed all offshore oil extraction in the US Arctic. By 2011 he believed that some exploration was necessary if his people were to enjoy the same amenities enjoyed in other US communities—decent schools, emergency medical care, roads, heated homes, basic plumbing. Itta had changed positions only after he helped force one of the world’s largest oil companies to modify its original Alaska plans, which he had deemed too dangerous to his people. . . .
Pete Slaiby had come to Alaska in 2008 hearing that North Slope residents in general and Edward Itta in particular were difficult, impossible to please. By 2010—still confident in his company—he had also come to respect the reasons why Shell’s initial plans had faltered. He helped modify those plans along lines suggested by Itta and other Iñupiat groups.

In addition, Itta and Slaiby successfully negotiated a science agreement “to fund research and provide baseline information about Arctic wildlife, climate and ice conditions, which will help North Slope mayors, the state of Alaska, oil companies and the US government plan for change in the High North.” Then Shell began planning for 2012.

The Law of Adaptation to Climate Change: U.S. and International Aspects

Michael B. Gerrard and Katrina Fischer Kuh, eds., The Law of Adaptation to Climate Change: U.S. and International Aspects, ABA Section of Environment, Energy, and Resources, 2012.

The initial response to climate change has been to focus on mitigation, such as controlling the reduction of greenhouse gases (GHGs). “Unfortunately,” notes editor, Michael Gerrard, “due to global and cumulative effects of GHG emissions, mitigation measures will not yield tangible climate benefits for many years, and those benefits will not be especially local, though mitigation often yields collateral benefits, such as reducing fossil fuel use and conventional air pollution.” In short, while “reducing humanity’s impact on the climate” (mitigation) is essential, notes Gerrard, “so is adaptation.”

As defined in the Introduction and Overview:

“Adaptation” is the term used to describe efforts to moderate, cope with, and prepare for the current and anticipated impacts of climate change on human and natural systems. A closely related concept is “resilience”—the capability to anticipate, prepare for, respond to, and recover from climate impacts. Also related are both “sensitivity” (the degree to which a system is affected by climate-related stimuli) and “vulnerability” (the degree to which a system is susceptible to, or unable to cope with, adverse effects of climate change).

According to Gerrard, “[a] comprehensive legal approach to mitigation can certainly be envisioned, but formulating a comprehensive approach to adaptation is much more challenging. . . . The mitigation laws are like a patchwork of scraps that are barely sewn together. The adaptation laws are not even that; there is little cloth, and the existing scraps are hardly linked.”

The Law of Adaptation to Climate Change is a comprehensive analysis of laws that apply to adaptation and “describes proposals to make the laws that deal with adaptation more rational and comprehensive.” As noted in the Introduction and Overview,

There is, as yet, no coherent body of adaptation law. The challenges posed by adaptation intersect with numerous bodies of law that address other problems. Adaptation-related provisions may be grafted onto some existing bodies of law (such as those governing environmental impact assessment, flood insurance, and infrastructure planning); it is much more difficult to do that for some other areas of law (such as property rights, endangered species protection, and water rights). This book addresses how climate impacts intersect with the law and how the law in particular areas is being modified, finessed, and imagined to deal with these impacts. Where there has not been much thought about how the law will or should respond to climate impacts, the book suggests some possibilities.

Following the introductory chapter and a “cross-cutting” chapter on adaptive management, the second part of the book addresses U.S. law, and the third part of the book explores international and non-U.S. law.

Oil Pollution Deskbook

Russell V. Randle, Environmental Law Institute, Second Edition, 2012.

Oil, so vital to the U.S. economy, has its darker side as demonstrated by the tragic BP Deepwater Horizon incident in 2010 in the Gulf of Mexico, the “largest maritime oil spill in U.S. history”. Oil spills and environmental law have a long relationship. In the Foreword, John Cruden notes:

Oil spills have marked key moments in American environmental history and, arguably, have provided the impetus for significant change in U.S. environmental law. Many credit the Santa Barbara oil spill and the fires on the Cuyahoga River with helping to shepherd in the environmental activism of the 1970s and the blooming of federal environmental law.

Cruden also observes that adoption of the Oil Pollution Act of 1990 (OPA) was “a direct product” of the Exxon Valdez oil spill of more than 10 million gallons of oil in 1989 in Prince William Sound, Alaska.

The Oil Pollution Deskbook illuminates the OPA and its implementation. The second edition includes lessons learned from the BP Deepwater Horizon incident and suggests that significant revisions to the OPA may be necessary as a result. Extensive appendices include the current text of the OPA, as well as the legislative history and related regulations.

According to the author, Russell Randle, enactment of the OPA,

resolved a decade-long dispute over preemption of state oil spill liability law by federal law, substantially rewrote the rules on oil pollution cleanup, increased the resources available for such cleanup, and reinforced strict liability aspects of oil spill cleanup and natural resource damage liability rules. . . . [T]he law’s passage also culminated almost 15 years of prior congressional work to consolidate and rationalize oil spill response mechanisms under federal laws, including § 311 of the [Clean Water Act (CWA)], the Deepwater Port Act of 1974, the Trans-Alaska Pipeline Authorization Act of 1973 (TAPAA), the [Outer Continental Shelf Lands Act] of 1978, as well as to harmonize these oil spill response mechanisms with state laws, international conventions, and other federal environment law, especially CERCLA.

Although attempts have been made to amend CERCLA to include comprehensive oil spill provisions, the petroleum exclusion remains. According to Randle, “[t]he omission of oil spill cleanup from CERCLA is especially ironic, because the liability provisions of § 107 of CERCLA are patterned on the oil spill liability provisions of § 311 of the CWA.”

The OPA, according to the author, has eight main elements:

  1. a comprehensive federal liability scheme, addressing all discharges of oil to navigable waters, the exclusive economic zone (EEZ), and shorelines;
  2. a single, unified federal fund, called the Fund, to pay for the cleanup and other costs of federal oil spill response authorized at $1 billion, far higher than any of the other funds previously authorized, but whose limits are now challenged by the BP Deepwater Horizon spill;
  3. clear federal authority to order removal action or to conduct the removal action itself;
  4. drastically revised spill prevention control and countermeasure plan requirements for onshore facilities, offshore facilities, and vessels, requirements which failed to work adequately in the BP Deepwater Horizon spill, exposing serious problems with the implementation requirements;
  5. strong criminal penalties and large civil penalties for spills of oil and for spills of hazardous substances. The outer bounds of these penalties are likely to be tested with the civil penalty claims in the BP Deepwater Horizon disaster;
  6. tighter standards and reviews for licensing tank vessel personnel, and for equipment and operations of tank vessels, including the requirement of double hulls, now almost fully implemented according to the elaborate compromise schedule in the statute;
  7. no preemption of state laws and an endorsement of U.S. participation in an international oil spill liability and compensation scheme; and
  8. a number of provisions pertinent to specific water bodies around the United States, including Prince William Sound, Puget Sound, the Great Lakes, Alaska, as well as a large number of studies Congress directed to be performed.

“The OPA of 1990 was a comprehensive and thorough effort to resolve the difficult political issues that had hobbled effective oil spill prevention and cleanup efforts under the previous uncoordinated legal regime”, notes Randle. He also observes that the “OPA and its programs improved oil spill response performance and compensation in most cases over the situation as it was in the late 1980s.” However, Randle concludes, regulatory neglect and in some cases malfeasance, inadequate federal resources, and wishful thinking, instead of careful contingency planning by industry, meant that the response to the largest maritime oil spill in U.S. history, the BP Deepwater Horizon sinking, proved chaotic and ineffective in preventing substantial environmental and economic damage. The lessons from that response suggest that significant revisions are needed to some aspects of OPA. Perhaps more important, analysis of that response suggests that adequate funding of regulatory agencies, continuous research and development of spill containment technologies, and a consistent emphasis on practicing spill responses and improving them, will be needed to avoid repeating the mistakes of both the Exxon Valdez and BP Deepwater Horizon oil spills, and avoiding needles environmental damage from oil transportation and offshore drilling.

Energy Policy Analysis: A Conceptual Framework

Michael S. Hamilton, M.E. Sharpe, Inc., 2013.

According to author, Michael Hamilton, “[n]o president since Jimmy Carter in the late 1970s has advanced a coherent national energy policy . . . and Congress failed to approve most of his proposals.” Energy Policy Analysis provides a framework for “analysis of technological options for formulating a coherent national energy policy for the United States.”

“Historically,” Hamilton observes, “there have been three approaches evident in the development of proposals for national energy policy in the United States: supply expansion, demand suppression, and cost analysis.” “Proponents of supply expansion” notes the author, “have focused on energy conservation and distribution . . . based on the observation that there is no physical shortage of energy in the world [just] barriers between us and the use of various energy sources, [such as] technical, geographical, economic, political, or environmental barriers to energy resource conversion and distribution.”

Proponents of demand suppression, the author notes, “have focused on reducing energy consumption in their energy policy proposals, [which] approach is critical of consumerism and advances the proposition that our energy problems are attributable to human nature, which is viewed as inherently self-centered.” With respect to the third approach, cost analysis, Hamilton cites “a seminal article” written by Robert M. Lawrence after the 1973 oil embargo that “suggested that national energy policy choices in the United States were constrained by three primary costs of continued high energy use: higher energy prices, greater environmental degradation, and increased security risk.”

The cost analysis approach provides the basis for the conceptual framework presented in Energy Policy Analysis for analysis of conventional and alternative energy technologies with respect to economic, environmental, and national security costs. Following the introductory chapter, subsequent chapters provide an analysis of such costs associated with coal, nuclear energy, oil and natural gas, solar, wind, geothermal, hydroelectricity, biomass, conservation and efficiency, ocean-generated energy, hydrogen, and transportation and electricity transmission. In the final chapter, the results of a “rough ranking from lowest overall costs to highest costs” were shown as the following (with several ties):

  1. Conservation and efficiency, geothermal heat pump, and solar energy
  2. Beneficial biomass
  3. Hydroelectric energy
  4. Hydrogen and harmful biomass
  5. Wind and ocean
  6. Natural gas and geothermal power plants
  7. Electricity
  8. Coal and petroleum
  9. Nuclear energy

“On the basis of this analysis,” the author concludes, “technologies at the top of the list are the most desirable for the United States to emphasize in national energy policy in the immediate future.” The remainder of the chapter provides further analysis of the ranking.

JoAnne L. Dunec