March 01, 2017

Literary Resources

JoAnne L. Dunec

BOOKS

Fracking: Law and Policy

Mark S. Guralnick

Wolters Kluwer, 2016

The term “fracking” has become a household word due to the media’s attention to its controversial nature. According to Mark Guralnick, “[h]ydraulic fracturing—or fracking—has quickly become the most significant environmental law and public policy question of the twenty-first century.” He elaborates,

If it has not itself become the most significant question, then it is surely driving the most important questions—questions involving American and foreign energy supplies. Perhaps even more urgently, fracking presents controversies on multiple frontiers: Proponents say that fracking unlocks natural gas and oil that would otherwise be inaccessible, lowers gasoline prices at the pump, strengthens the U.S. energy industry, and builds the American economy. Opponents charge that fracking pollutes the water and the air, poisons workers and exposes neighbors to dangerous spills and leaks, causes traffic and road destruction in small towns, renders nearby real estate forever unmarketable, and destroys farms, crops, and livestock.

Fracking: Law and Policy,” Guralnick explains, “attempts to unravel the science, the law, the environmental controversies, the business of fracking, and the public policy questions in a meaningful manner.” Guralnick also notes:

Although fracking litigation is still in its infancy, Fracking: Law and Policy undertakes a proactive look at the litigation landscape. More than 23 theories of liability are examined. Sample pleadings and discovery forms are provided, and a list of third-party discovery and investigative resources is provided. The book also makes a thorough survey of worker safety and injury risks, covering all aspects of chemical handling, silica dust, casing operations, and well completion procedures.

Fracking: Law and Policy is organized in three parts. Part I (The Backdrop) introduces the subject matter in the first chapter, which covers the scope of fracking, its definition, use, controversy, and stakeholders. Ensuing chapters describe the science of fracking, regulatory jurisdiction, the federal statutory framework, the complex regulatory infrastructure, and the economics of fracking (sometimes referred to as frackonomics). An additional chapter, entitled “The Fracking Frontier,” addresses “the frontier of unconventional gas development.” Guralnick notes that “there are six key kinds of unconventional gas: shale gas, tight gas, coalbed methane, deep gas, geopressurized zones, and subsea hydrates.” He explains, “What makes these kinds of gas ‘unconventional’ is not their chemical composition but rather their geological locations[,]” which require “[u]nconventional drilling and production techniques such as fracking . . . to extract the resources efficiently and economically.”

Part II (The Litigation Landscape) includes chapters covering theories of liability, initial pleadings and procedures, pretrial discovery and investigation, “the fracking trial,” damages and remedies, and worker safety and injury claims. Part III (Public Policy, Sustainable Business, and Corporate Social Responsibility) addresses “sustainable business and corporate social responsibility,” the author notes, through chapters covering mineral leasing law and policy, industry reporting issues, corporate risk management and best practices, shareholder and stakeholder protection, insurance and risk, optimizing citizen activism, and public policy.

A comprehensive glossary is also provided, which is described as “[c]ontaining the leading terms from the fields of fracking, statutory and regulatory law and the related sciences of geology, petrology, hydrology, chemistry, seismology, climatology, soil science, environmental science, energy policy, petroleum engineering and allied areas.”

All the Wild That Remains: Edward Abbey, Wallace Stegner, and the American West

David Gessner

W. W. Norton & Company, 2015

The idea of wilderness needs no defense. It only needs more defenders.

—Edward Abbey

We simply need that wild country available to us, even if we never do more than drive to its edge and look in. For it can be a means of reassuring ourselves of our sanity as creatures, a part of the geography of hope.

—Wallace Stegner

In this unusual biography, David Gessner explores the lives and writings of two of America’s most famous western writers, Edward Abbey and Wallace Stegner, not only through research and interviews, but also by travelling to the places that shaped each man. On the surface, it is an unlikely pairing as the two writers’ styles are quite different, and Edward Abbey had a reputation for civil disobedience and anarchy, whereas Wallace Stegner, often called “the dean of western writers,” founded the creative writing program at Stanford University, and, Gessner notes, “was known to all as a model of old-fashioned propriety.”

Edward Abbey’s best-known works are the fictional novel The Monkey Wrench Gang, which inspired the founding of several radical environmentalist groups, such as Earth First!, as well as the nonfiction Desert Solitaire. Wallace Stegner’s novel Angle of Repose won a Pulitzer Prize for fiction in 1972, and he won the National Book Award in 1977 for The Spectator Bird.

Gessner explains that as he read close to “everything the men had written,” he “came to believe . . . that Wallace Stegner and Edward Abbey, far from being regional or outdated, have never been more relevant.” Gessner observes:

What I came to believe is that, in this overheated and overcrowded world, their books can serve as guides, as surely as any gazetteer, and as maps, as surely as any atlas. . . . To see that as far back as fifty years ago Stegner and Abbey were predicting, facing, digesting, and wrestling with the problems that we now think uniquely our own. [They were] artists who labored to make something great, and human beings who lived vibrant, rich, and often contradictory lives.

However, in a letter, another well-known western writer, Terry Tempest Williams, wrote to Gessner, “In so many ways Ed was the conservative, Wally forever the radical,” which, Gessner notes, “soon began to take on, for [Gessner], the properties of a koan.” Gessner ruminates,

After a year of reading the two men, I had begun to regard them as, in some respects, polar figures. I saw myself flitting between the two poles. At one end is Wallace Stegner, the man of order, the man of culture, indeed The Man. At the other end is Edward Abbey, the man of wildness, the counterculturalist, the fighter of The Man. These labels are true, to some extent, but as Terry Tempest Williams was perhaps reminding me, they were too simple. If we accept them, we start to worry that the reasonable man is not passionate enough, and the passionate man is unreasonable.

According to Gessner, “Both Stegner and Abbey would eventually be described by their biographers as ‘reluctant environmentalists,’ the reluctant part due mostly to their commitment to writing, but reluctant or not, they would become in very distinct ways two of the most effective environmental fighters of the twentieth century.” He continues:

And in their passion for the fight they showed their core kinship, even as their manner of fighting revealed wide personal and stylistic differences. While Stegner’s political thinking was more sophisticated and restrained, Abbey’s words had a rare attribute: they made people act.

However, Stegner’s works motivated people as well. In Mirror of America: Literary Encounters with the National Parks (National Park Foundation, 1989), the editor, David Harmon, notes in the introduction to the chapter about Wallace Stegner:

No one could have foreseen that the most virulent conservation battle of the 1950s—indeed, since Hetch Hetchy forty years before—would be fought over the fate of remote canyons in an obscure national monument. Until 1950, few people had heard of Dinosaur National Monument, let alone the plans of the Bureau of Reclamation to build a dam at Echo Park (the junction of the Green and Yampa rivers) in the Colorado portion of Dinosaur. . . . At the urging of the Sierra Club’s David Brower, Stegner edited a call-to-arms entitled This Is Dinosaur: Echo Park Country and Its Magic Rivers. This, the first of the Club’s “fighting books,” was put out in 1955 by the publishing house of Alfred A. Knopf, whose namesake had himself been a strong supporter of the national parks . . . . Stegner also wrote the first chapter of This Is Dinosaur, a summary of the exploration of the canyons—and a reminder of what would be lost if the dam were built. . . . Later that year Congress finally quashed the dam plans. Echo Park was a complete victory for the conservationists. More than that, it marked their coming of age as a political force.

Gessner explains that All the Wild That Remains is “part dueling biography, part travel narrative, part meditation, part criticism, part nature writing,” which is an apt description, as the reader travels not only geographically with the author, but also through the writings of Abbey and Stegner, and ruminations of Gessner, as he illuminates each writer’s life, as well as his own.

PERIODICALS

Environmental Policy

Shi-Ling Hsu, The Accidental Postmodernists: A New Era of Skepticism in Environmental Policy, 39 Vt. L. Rev. 27–88 (2014), available at http://lawreview.vermontlaw.edu/wp-content/uploads/2011/09/39-05_Hsu.pdf, “argues that the nature of environmental policy conflict is changing and that a new kind of opposition movement is forming.” Hsu observes:

Environmental policy conflicts used to be predictable. Environmental advocacy groups battled with regulated industries in courthouses and legislatures (federal and state), and governments were stuck in the middle. But the emergence of complex problems, such as climate change, and of mixed-blessing technologies, such as hydraulic fracturing and genetic engineering, combined with two decades of congressional inaction on federal environmental legislation, has created new schisms in environmental law and policy. New law- and policy-making conflicts are pitting traditional allies against each other.

For example, notes Hsu, “[t]he Environmental Defense Fund (EDF), one of the oldest environmental advocacy organizations in the world, is now scorned by upstart environmental groups for often breaking policy ranks.” Hsu continues:

Harvard Law Professor Cass Sunstein, who served as President Obama’s head of the Office of Information and Regulatory Affairs, left government service to a chorus of praise from political conservatives, while being roundly criticized by politically liberal organizations and also by his former student, fellow Democrat and Obama Administration official, Georgetown law professor Lisa Heinzerling. While partisan politics have reinforced some traditional political divides, these new disagreements seem to represent the drawing of new fault lines. And the rhetoric has been so heated that these arguments among former allies have at times bordered on the fratricidal.

Professor Hsu “consider[s] this new kind of opposition postmodern in nature because it has sought to undermine the legitimacy of lawmaking by arguing that it generates outcomes that are structurally and inherently biased.” He continues:

In particular, environmental postmodernists have rallied around opposition to the use of cost-benefit analysis in environmental law and around a discomfort with the way that science is produced and used in environmental policy. What emerges from environmental postmodernist opposition in these two very different policy arenas is a shared skepticism of a narrative that seems to gaining a dominant position.

The article is divided into four parts. According to Professor Hsu:

Part I . . . describe[s] postmodernism and its influence in legal thought. Part II examines a live and persistent controversy in an area in which environmental reform has met with opposition from environmental postmodernists: the use of cost-benefit analysis (CBA) in environmental law. This Part also considers the evolving role of science in environmental law- and policy-making, and postmodern themes that are raised in public discourse, including those raised by climate skeptics in opposing the prevailing message of climate scientists. Part III of this Article offers a critical evaluation of the environmental postmodernist objection and a synthesis with what appears to be a positivist trend in environmental law- and policy-making. Part IV concludes with some summary remarks and observations on future trends and counter-trends in environmental law.

In his concluding remarks, Professor Hsu observes:

For a postmodernist, the only principled way forward is to broaden public participation and knowledge. . . . Serendipitously, this procedural tack is reminiscent of one of environmentalism’s greatest contributions: the introduction of environmental assessment statutes, which have (at least in the United States) imposed minimal substantive obligations but significant procedural obligations.

Professor Hsu notes “that skepticism has to be accompanied by something affirmative. What a brief encounter with environmental postmodernism has illustrated,” he observes, “is one form of that affirmative way forward: procedural reform.” He concludes, “[i]f done with an open mind, it is a way out of the nihilistic dystopia that has always been associated with postmodernism.”

JoAnne L. Dunec

Ms. Dunec is vice president, underwriting counsel with Old Republic Title Company in San Francisco, California, and a member of the Natural Resources & Environment editorial board. She may be reached at jdunec@ortc.com.