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“If Not Now, When? Addressing Oil Shale’s Contribution to Climate Change in the Midst of the U.S. Production Boom,”
Volume 37, Number 2
IF NOT NOW, WHEN? ADDRESSING OIL SHALE’S CONTRIBUTION TO CLIMATE CHANGE IN THE MIDST OF THE U.S. PRODUCTION BOOM
Introduction: You Can’t Have Your Cake and Eat It Too! s U.S. policy makers push to facilitate the development of fossil fuels on public lands, prospects for meaningful domestic progress on climate change appear increasingly dim. The Obama administration released its comprehensive national energy policy in early 2011, highlighted by a major initiative calling for a 33-percent reduction in U.S. oil imports by 2025.1 Prominent in the Administration’s strategy for achieving this ambitious goal has been increasing domestic oil production, particularly from unconventional fuels. ‘‘[Oil companies] are just sitting on supplies of American energy waiting to be tapped,’’ President Obama proclaimed. ‘‘That’s why part of our plan is to provide new and better incentives that promote rapid, responsible development of these resources.’’2 Indeed, since President Obama took office in 2008, total domestic oil production has increased by nearly 1.4 million barrels per day.3 Unconventional supply sources, particularly those derived from shale, have been at the center of this production boom. Shale gas has increased from a negligible component of the nation’s gas production at the turn of the century to nearly a third today, and rose from 4.86 trillion cubic feet (tcf) in 2010 to 8.13 tcf
*Michael Diamond is an attorney practicing at the law firm of Van Ness Feldman, LLP., in Washington, D.C., where he focuses on regulatory issues surrounding the transportation of natural gas. He holds a J.D. from the Ohio State University, Moritz College of Law, and a B.A. from the University of Wisconsin-Madison. The opinions expressed in this paper are his own and do not reflect the views of the law firm or any other attorneys with which the author is associated. The Journal of Energy and Development, Vol. 37, Nos. 1 and 2 Copyright Ó 2012 by the International Research Center for Energy and Economic Development (ICEED). All rights reserved.
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in 2012.4 Similarly, in the last two years alone U.S. tight oil5 production has more than doubled, rising from 800,000 barrels per day in 2010 to 2 million barrels per day in 2012.6 In this context, climate change has become an ‘‘elephant in the room,’’ receiving only scant discussion in the public decision-making progress despite the obvious implications posed to it by the production boom. Oil shale, a separate resource base with a confusingly similar name to shale oil and gas, represents another unconventional fuel source with potentially even greater implications for energy and the climate. The largest concentration of oil shale lies in public lands in the Green River Formation, an area that stretches between northwest Colorado, northeast Utah, and southwest Wyoming, and was recently opened to development of oil shale.7 The Green River Formation alone contains an estimated 800 billion barrels of recoverable oil.8 To comprehend the magnitude of this resource, consider that the entire country’s reserves of oil are roughly 22 billion barrels—a mere 2.75 percent of the total oil shale reserves. 9 President Bush finalized the opening of new lands in the Green River Formation for oil shale development in 2008, but only three years later, prompted by environmental concerns, the Obama administration announced that it would ‘‘consider whether it is still appropriate for the land identified in 2008 to remain open for oil shale and tar sands leasing and development.’’10 The contribution large-scale production of oil shale would make toward global warming has been particularly controversial in the debate over the fate of the Green River Formation’s oil shale reserves.11 The Obama administration’s announcement that it would be reconsidering development in the Green River Formation came just two weeks after it set out a new energy policy, the cornerstone of which was the increase of domestic energy output. Almost simultaneously, the Obama administration proclaimed an urgent need for domestic energy production and stunted the development of the largest U.S. fuel resource. Indeed, you can’t have your cake and eat it too. This paradox raises increasingly relevant questions as to the means of addressing environmental concerns during a national explosion of production of unconventional fossil fuel resources. How can policy makers reconcile the need to curtail emissions of greenhouse gases with the revolutionary expansion of unconventional fuel output? More specifically, as we consider the possibility of a boom in oil shale potentially dwarfing that currently under way in shale gas and oil, can we assess and mitigate the implications such development poses to the climate? This article discusses the regulation of oil shale in the Green River Formation, arguing that analyses of the relationship between its development and climate change, conducted pursuant to the National Environmental Policy Act (NEPA), have not provided a meaningful discussion of related greenhouse gas emissions and how they may be mitigated. The first part of this article provides an overview of oil shale and its effects on the environment and documents Canada’s experience
U.S. OIL SHALE DEVELOPMENT & CLIMATE CHANGE
becoming a major producer of unconventional fuels. Part II discusses how policy makers weigh considerations of climate change into NEPA analyses. Part III examines how the Bureau of Land Management (BLM) has addressed climate change in the process of opening federal lands within the Green River Formation for application for leasing for oil shale development. Part IV provides a critical analysis of this process and outlines options for mitigating the impacts of oil shale development upon the climate that the BLM has not considered. The fifth section concludes by arguing that a thorough discussion of the contributions major energyrelated initiatives will have upon the climate is needed prior to these initiatives’ implementation.
Part I. Oil Shale and Its Regulation Background on Oil Shale: As the largest untapped U.S. energy resource, oil shale has the potential to provide the country with an economic windfall and to significantly improve national energy security. Surely, U.S. oil shale’s most noteworthy characteristic is its raw size. The Green River Formation alone most likely contains even more recoverable reserves than all of Saudi Arabia.12 A recent economic analysis indicates that projected development of oil shale would lead to billions of dollars of growth in gross domestic product (GDP), along with the generation of substantial public revenues.13 Additionally, by offsetting billions of dollars in expenditures that would otherwise be spent on oil imports, oil shale production could improve U.S. energy security and, more generally, contribute to the meeting of foreign policy objectives.14 As a preliminary matter, ‘‘oil shale’’ must be distinguished from ‘‘shale oil.’’ Shale oil is oil trapped in shale rock formations and produced similarly to shale gas through hydraulic fracturing.15 Spurred by recent technological developments, production of shale oil and gas has skyrocketed in recent years. In contrast, because of high production costs and technological uncertainty, oil shale has yet to be produced on a meaningful scale in the United States.16 Notably, oil shale is not oil. Instead, the term refers to sedimentary rock that has not been under the necessary heat, pressure, and depth for enough time to form crude oil—essentially a geologically immature form of petroleum.17 When heated to extreme temperatures, oil shale releases a petroleum-like liquid called kerogen.18 This process, referred to as retorting,19 is undertaken in one of two ways.20 The first, surface retort, is the older, more labor-intensive process. Here, shale producers mine the shale from the earth, haul it to a processing facility to crush the rock, extract the kerogen, upgrade it to a refinable substance through a water-intensive hydrogenation process, and, finally, refine it into gasoline or jet fuel.21 This process is as cumbersome and costly as it appears; consequently, oil producers disfavor it today.
and nitrogen oxides. these lands are used for recreational hiking. others are dependent on unique characteristics of the Green River Formation.25 The Green River Formation has considerable ecosystem diversity and houses a number of species listed as threatened or endangered by the U.27 Another widely voiced concern is the effect of oil shale development on water.262 THE JOURNAL OF ENERGY AND DEVELOPMENT The newer method.26 While some of these species may be able to adapt to a degree of habitat disruption. sheep and cattle grazing.24 None of these uses will be possible on areas with commercial oil shale production. the entire heating system must be contained by freeze walls. carbon monoxide. To prevent oil and gas from escaping and contaminating groundwater. the Bureau of Land Management has estimated that oil shale production would lead to an 8.’’23 Compared to conventional oil drilling.32 . Water. is the process of using heat to extract the oil while leaving the rock in place. Currently. Consequently. and conventional oil and gas drilling.29 The spent shale leachate is another major issue. Environmental Consequences of Oil Shale Production—Effects on Land. in-situ retort.2-percent reduction in the annual flow of Colorado’s White River where it meets the Green River in northeastern Utah. Water quality is another issue as mine drainage and discharge could flow into the water supply.31 Health impacts of these pollutants are well documented. oil shale brings new economic and environmental challenges to policy makers attempting to regulate it appropriately. particulates. mining oil shale will release significant quantities of air pollutants.22 In-situ retort requires at least two years of underground heating at temperatures as high as 700 degrees Fahrenheit. and Wildlife: The most immediately noticeable consequence of oil shale production in the Green River Formation will be to the lands overlying the shale resources. ozone. including sulfur dioxide. Finally. lead. it will have significant impacts on local flora and fauna. The very verbosity needed to explain the process of producing oil shale on a basic level demonstrates an important point: ‘‘[i]t is not just a matter of sticking a steel straw in the ground like we did in Texas in 1932. production of oil shale entails significantly higher costs and imposes significantly greater consequences to the environment. as it will have a high salinity content and contain small amounts of toxic substances. however. Fish and Wildlife Service. which are wells circulating refrigerated fluid around the in-situ area. For one. fishing and hunting.30 The sheer magnitude of leachate that would accompany commercial oil shale production makes all of this a very significant concern. because oil shale production requires so much water. Subject to the most controversy. Because oil shale development will lead to permanent topographic changes. fossil collecting.S.28 This is a major concern because of the scarcity of water in the region. Air. are the implications oil shale production has for the earth’s climate.
necessitating the construction of a power plant large enough to serve a city of 500. Likewise. instead.38 Canada’s Tar Sands and Climate Obligations: Tar sands are a similar resource to oil shale in that neither are oil but.5 million b/d from its tar sands and expects output to increase to 3. well-to-wheels carbon dioxide (CO2) emissions from oil shale production in any case would be markedly greater than those from conventional oil.35 Such a production level would necessitate the construction of 24.S.5 million b/d by 2025.36 Roughly half of these emissions result from the production of the fuel prior to its actual combustion as a fuel.44 Largely as a result of tar sands production. Regardless of the method used. tar sands emit an average range of 14 to 25 percent more greenhouse gases (GHGs) than conventional oil. making it the country’s largest single GHG emissions source. tar sands can be extracted using either surface mining or in-situ retort. it committed to reducing its GHG emissions to 6 percent below 1990 levels by 2012. Like oil shale. Canadian emissions had surged to 26 percent greater than 1990 levels. While the carbon output associated with oil shale varies with the methods and energy sources used for production. Canada produced 1. require energy-intensive extraction.000 barrels of oil per day would require roughly an input of 1. tar sands production causes substantially greater greenhouse gas emissions than that of conventional oil (table 1). As of late 2009.41 In 2010. with at least 175 billion barrels of economically recoverable oil. demanding the construction of enough new power-generating facilities to serve a city of 10 million. OIL SHALE DEVELOPMENT & CLIMATE CHANGE 263 Environmental Consequences of Oil Shale Production—Contribution to Global Climate Change: Heating oil shale for retorting always requires significant energy inputs. Canada ranks last among the G8 (Group of Eight) countries in addressing GHG emissions and 56th of 57 countries catalogued in the Climate Change Performance Index. likely to be provided by coal. This is a staggering number. and upgrading before they can finally be refined into a liquid fuel.45 With the . production of each impacts the environment more severely than conventional oil output.000 people. Current studies estimate that full-fuel-cycle CO2 emissions from oil shale-derived liquid fuels are likely to be 23 to 73 percent higher than those from conventional gasoline.34 The Department of Energy hopes to ramp up oil shale production to achieve a 2-million barrel per day (b/d) industry by 2020.000 megawatts of new power. Canada has been the only country to ratify and subsequently disavow its Kyoto obligations.37 This varies with a number of factors.42 Tar sands production represents a staggering 8 percent of the Canada’s total GHG emissions. Since then. most prominently with the shale quality and the retorting technology used. separation.43 When Canada ratified the Kyoto Protocol in 2002.40 Canada possesses the world’s largest tar sands resource.39 Depending on the technology used for production.33 This process is so energy-intensive that production of even 100.200 megawatts of power.U.
With an oil shale resource base four times greater than Canada’s tar sands. While Canada’s tar sands emit an average range of 14 to 25 percent more GHGs than does conventional oil.pdf. 2005 Average Range Tar Sands Synthetic crude oil (in-situ production) Surface mining (ex-situ processing) Oil Shale In-situ processing Ex-situ processing a 116 106 25% 14% 16% to 37% 8% to 19% 137 159 49% 73% 23% to 49% 47% to 73% The U.org/ energy/files/ene_10070101a. Both the quantity and carbon-intensity of U. The base line would be lower if these crude oil sources were removed. includes emissions from higher carbon-intensity crude oils produced domestically and imported. available at http://docs. as estimated by the U.S. tarnished its reputation. a U. loom ominously over any hopes the United States has to meaningfully address climate change. Policy on Oil Shale and the Energy Policy Act of 2005: Federal interest in oil shale dates back 100 years when the United States Navy established the Naval Petroleum and Oil Shale Reserves as a measure of energy supply security for its fleet. (National Resources Defense Council. the Korean War. with the government having set up new programs during World War II. and rendered the country a major obstacle in international climate negotiations. U.S. Environmental Protection Agency. September 2010. oil shale emits between 23 and 73 percent more GHGs than conventional oil.S.S.nrdc.’’46 tar sands production has damaged the country’s reputation as a leader in environmental progress. policy makers should look warily to its northern neighbor’s experience in producing unconventional fuels.264 THE JOURNAL OF ENERGY AND DEVELOPMENT Table 1 EMISSION FACTORS FOR HIGH CARBON-INTENSITY FUELS Well-to-Wheel Emissions (in grams of CO2 equivalent per megajoule–gCO2e/MJ) Greenhouse Gas Percentage Increase vs. Chairman of the Intergovernmental Panel on Climate Change (IPCC) having stated that Canada simply does ‘‘not want to do anything on climate change.S. GHG Emission Factors for High Carbon Intensity Crude Oils. Source: Simon Mui et al. Though tar sands production has certainly provided Canada with a monetary windfall. 2005 base line.S. significantly greater than those of tar sands.47 Federal interest has continually resurged during times of supply scarcity or high prices. ver. U. and during the oil embargoes of the 1970s to . 2). it has forced Canada to withdraw from its obligations under the Kyoto Protocol. 2. oil shale..
In compliance with the National Environmental Policy Act. to the benefit the United States while taking into account affected States and communities.48 However.’’55 Congress intended that EPAct 2005 would jumpstart the development of unconventional fuels in the Green River Formation. the BLM began efforts to promote the development of oil shale on public lands.51 A handful of voices.S. policy— that ‘‘oil shale.’’56 This has led to a protracted and heavily litigated EIS process. and accelerate the development’’ of oil shale. Consideration of Climate Change under the NEPA Overview of the National Environmental Policy Act: NEPA has long been regarded as the ‘‘magna carta’’ of U. tar sands. and the testimony overwhelmingly focused on the need to ‘‘encourage. where Congress unequivocally declared—as U. Part II.57 The .’’49 Flowing from the report’s emphasis on increasing domestic energy production.S. OIL SHALE DEVELOPMENT & CLIMATE CHANGE 265 promote development of the resource.’’54 The Act further states that development of oil shale should be done ‘‘with an emphasis on sustainability.’’53 Despite being primarily an energy statute as opposed to an environmental one.’’50 Almost all of the witnesses here were energy executives and Bush administration officials. economics have continued to preclude efforts toward significant development. followed by a discussion of the Programmatic EIS’ assessment on climate change. EPAct 2005 required the BLM to complete a Programmatic Environmental Impact Statement (EIS) ‘‘for a commercial leasing program for oil shale and tar sands resources on public lands. we provide an overview of how climate change is considered under NEPA. did advocate environmental responsibility and ideals of sustainability. Toward this end. Bush established the National Energy Policy Development Group and directed it to develop ‘‘a national energy policy designed to help the private sector . affordable. NEPA requires that agencies develop an Environmental Impact Statement for all proposed major federal actions significantly affecting the quality of the human environment. Immediately upon taking office. and other unconventional fuels are strategically important domestic resources that should be developed. however. using practices that minimize impacts. Senate Committee on Energy and Natural Resources heard testimony to ‘‘discuss opportunities to advance technology that will facilitate environmentally friendly development of oil shale and oil sands resources. President George W.U.S. the U. and environmentally sound production and distribution of energy for the future. facilitate. environmental protection. Next.S. .52 The above events culminated with the passage of the Energy Policy Act of 2005 (EPAct 2005). . the Act still insists that oil shale be developed ‘‘in an environmentally sound manner. promote dependable. one that highlights the difficulties of addressing unconventional fuels’ impacts on the climate.
if mitigation is not discussed in sufficient depth to ensure that a project’s environmental consequences have at least been fairly evaluated. not substantive. the court reasoned. However. (b) minimizing impacts by limiting the degree or magnitude of the action and its implementation.’’ a discussion of how these effects may be mitigated is particularly critical.64 Greater complexity arises when actions may not significantly affect the environment independently but when significant impacts ‘‘resulting from the incremental impact of the action when added to other past. .’’68 Prior to farther-reaching agency actions. (c) rectifying the impact by repairing. ‘‘the Forest Service will be free to amend road density standards throughout the forest piecemeal. Still.63 In other words. .67 Without a cumulative analysis. without ever having to evaluate the amendments’ cumulative environmental impacts.’’65 NEPA requires that agencies address these as ‘‘cumulative impacts. rehabilitating. is defined to include: (a) avoiding the impact altogether by not taking a certain action or parts of an action. the Supreme Court has made it clear that NEPA only requires a discussion of potential mitigation actions and not an actual plan to be formulated and adopted.’’66 The Court of Appeals for the Ninth Circuit explained the need for cumulative impacts analyses in Native Ecosystems Council v. after which more specific EISs are to be conducted evaluating site-specific issues accompanying any given . where it required that the Forest Service’s road density standards amendments be subjected to a cumulative impacts analysis.61 When the proposal brings ‘‘adverse environmental effects which cannot be avoided. courts must reject as arbitrary and capricious the agency’s subsequent actions based upon the NEPA discussion. and reasonably foreseeable future actions regardless of what agency . Dombeck. the mitigation requirement is procedural.69 This is a broader EIS addressing relatively general matters.’’ which include ‘‘individually minor but collectively significant actions taking place over a period of time. or person undertakes such other actions.266 THE JOURNAL OF ENERGY AND DEVELOPMENT purposes of the EIS are to ensure that agencies carefully consider the environmental impacts of their decisions and that parties associated with the decisionmaking process have relevant environmental information available to them.58 An EIS includes a detailed statement of the impacts.’’ agencies often undertake a Programmatic EIS. ‘‘such as the adoption of new agency programs or regulations. or restoring the affected environment. adverse environmental effects. (d) reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.62 This discussion forms the foundation for any mitigative actions that will occur thereafter. in turn. and analysis of alternatives. and (e) compensating for the impact by replacing or providing substitute resources or environments.’’60 Mitigation. The required analysis of alternatives to the proposed action lies ‘‘at the heart of the [EIS]’’59 and includes consideration of ‘‘appropriate mitigation measures not included in the proposed action or alternative. present.
. the Programmatic EIS is tailored to address cumulative impacts. to significant environmental impacts.’’76 The court made it clear that ‘‘[t]he impact of GHG emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct.’’77 The Adequacy of NEPA Climate Analyses: However.75 Citing the rules for cumulative impacts analyses of the Council on Environmental Quality’s (CEQ).’’ including addressing ‘‘mitigation parameters at the broad landscape. Commenters have documented that significant uncertainty surrounds the threshold at which emissions can be said to ‘‘significantly affect the quality of the human environment’’ and thus require NEPA review.78 Furthermore. .79 Consequently. . or regional level. the agency that oversees NEPA.’’ the rules are ‘‘’collectively significant actions taking place over a period of time. arguing that the agency failed to take a ‘‘hard look’’ at the rulemaking’s GHG implications and further failed to adequately analyze alternatives or the rule’s cumulative impacts. it has remained unclear precisely what NEPA analyses of actions’ contributions to climate change must entail and. consideration of these emissions is particularly appropriate in cumulative impacts analyses at the Programmatic level. there is no way to link specific emissions to specific climate impacts or to particular environmental consequences of climate change. the agency engages in ‘‘tiering.’’71 In comparison to the site-specific EIS.’’ where it covers certain matters from a broader perspective. Although the United States has no comprehensive federal law limiting the emissions of GHGs that contribute significantly to climate change. the court explained that although an individual rule setting a CAFE standard may only have an ‘‘individually minor effect on the environment. incorporat[e] by reference the general discussions and concentrat[e] solely on the issues specific to the statement subsequently prepared. providing a high-level analysis of actions that would lead collectively. and ‘‘subsequent narrower statements or environmental analyses .70 In a Programmatic EIS. perhaps more importantly.U.’’73 Climate Change under NEPA: Because global warming is caused by the aggregation of individually small greenhouse gas (GHG) emissions.72 One important use of the Programmatic EIS is to ‘‘formulate mitigation efforts comprehensively. whether they can lead to any reductions of GHG emissions. federal agencies must consider in their NEPA analyses the impacts of GHG emissions resulting from major federal actions. while it is clear that GHG emissions are contributing to global warming. OIL SHALE DEVELOPMENT & CLIMATE CHANGE 267 project. but not independently. ecosystem.S.74 The Ninth Circuit made this clear in a case in which environmental organizations had challenged the National Highway Transportation Safety Administration’s issuance of a final rule implementing light truck Corporate Average Fuel Economy (CAFE) standards. the incremental nature of climate change’s exacerbation makes its incorporation into NEPA analyses an inherently difficult task.
releasing a Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions (‘‘Guidance’’). a recent analysis of 35 EISs conducted by the BLM between 2007 and 2008 found that only three discussed GHG mitigation. . making major decisions regarding the potential utilization of resources under the Department’s purview.’’82 However. significant litigation has surrounded the questions of when climate change must be included in NEPA analyses.81 The BLM’s climate analyses demonstrate the fact that typical NEPA climate analyses do not lead to actual mitigation efforts. Recent cases evaluating NEPA discussions of climate change demonstrate that such studies. agencies have seldom considered in their NEPA analyses measures to mitigate the impacts GHG emissions have on the climate.000 metric tons or more of GHG emissions on an annual . the applicant committed to acquiring carbon credits to offset increased GHG emissions. even when determined to be adequate by courts.84 NEPA analyses in a few cases have led developers to commit to some form of climate mitigation efforts. it represents an indicator of the current regulatory climate vis-a-vis GHGs. agencies making resource man` agement decisions will undoubtedly look to it for general guidance.91 The Guidance recommends conducting a quantitative and qualitative analysis of GHG emissions for any actions that would reasonably be anticipated to cause direct emissions of 25. Even in the few cases where BLM has quantified GHG emissions. the Guidance does not apply to Federal land and resource management decisions90 but.87 The CEQ’s NEPA-Climate Guidance Document: The Council on Environmental Quality recently attempted to clarify the standards for consideration of climate change in NEPA analyses.83 More commonly.80 Critically. concluding that the project analyzed would make only a negligible contribution to climate change. have not resulted in meaningful analysis. since 2001 it has been required to ‘‘consider and analyze potential climate change impacts when . nonetheless.86 This lack of consistency has led commentators to criticize the ambiguity surrounding agencies’ climate change obligations under NEPA. . and whether studies that do consider climate change do so with sufficient rigor.88 Although the Guidance has yet to be finalized.85 In another case addressing the expansion and modernization of a gypsum processing plant.89 Notably. developers of a new coal-fired power plant committed to implementing certain carbon sequestration measures. although these were made conditional upon the technological and commercial feasibility of these measures. arising under California’s more stringent state-level version of NEPA. BLM has included a general discussion of climate change but provided no quantification of GHG emissions. upon comparing them to national or even global emissions the agency has concluded that they would be negligible. agencies will rely upon it in crafting their NEPA analyses.268 THE JOURNAL OF ENERGY AND DEVELOPMENT In part as a result of this uncertainty. The BLM has been a leader among agencies in factoring climate change into NEPA analyses. In one case.
As the Programmatic EIS has a substantial influence upon the projects within its ambit.’’98 The Guidance recommends that agencies utilize Programmatic EISs for ‘‘proposals regarding long-range energy. articulated in the CEQ’s previous Guidance document on considering climate change in NEPA analyses. renewable energy. they can . project-level analyses tier from the emissions and climate discussion in the Programmatic EIS.’’ considering ‘‘the consequences of actions over which it has control or authority. OIL SHALE DEVELOPMENT & CLIMATE CHANGE 269 basis.S. but that the cumulative effect of such emission could be more dramatic. and the Difficulty of Meaningfully Discussing Climate Change in a Programmatic EIS: The Guidance makes it clear that programmatic evaluations are the preferred forums for analyzing the impacts of long-range energy and resource management programs upon the climate.99 It suggests that individual. This follows the reasoning.’’95 In these studies. Shell Games. Furthermore.’’94 Provided that an action meets the threshold for quantitative and qualitative analysis. the quality of any proposed measures to mitigate GHG emissions should ‘‘be carefully evaluated. lower emitting technology. and sequestration.92 To determine the extent and depth of its analysis. planning for carbon capture.’’ which aims to ‘‘ensure that each agency decision maker has before him and takes into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance. because Programmatic EISs occur prior to the start of individual projects.’’96 Among the mitigation options the Guidance suggests are enhanced energy efficiency. the Guidance describes analysis of alternatives as ‘‘an essential element of the NEPA process. however. that: Analysis of the impacts of such emissions or sinks at the project level. transportation. This type of approach recognizes that individual projects may increase greenhouse gas emissions by only marginal 101 amounts.’’93 By this standard.97 Furthermore. Efforts would be better spent in assessing federal programs which may affect emissions or sinks of these gases. the discussion of mitigation options at the programmatic level provides an important source of options to be implemented at the project level. agencies’ actions should be ‘‘commensurate with the importance of the GHG emissions of the proposed action.U. would not provide meaningful information in most instances. and resource management programs’’ and describe GHG emissions in the aggregate. This can help to comprehensively address the complex and interrelated affects agency actions may have upon the climate. the Guidance suggests that agencies use a ‘‘rule of reason.’’100 Tiering. allowing them to ‘‘summarize the relevant issues discussed in the programmatic statement. particularly when individual EISs would not provide a forum far-looking enough to satisfactorily address them. the Guidance recommends that agencies should ‘‘consider mitigation measures and reasonable alternatives to reduce action-related GHG emissions.
it may never be meaningfully considered in subsequent analyses. It is at this stage that the NEPA’s goal of truly informed decision making can be served most directly. The court required the agency to conduct a cumulative effects analysis in order to prevent it from inadequately assessing certain issues through segmentation. Ultimately. and it was reasonably foreseeable that the agency would purchase more timber in the future. In the context of the BLM’s Programmatic EIS for the opening of federal lands to leasing for oil shale production. where actual impacts and standards for analyzing them are relatively uncertain. the agency could then claim that the analysis is beyond the individual project’s scope. However. the use of tiering from programmatic analyses introduces the danger that in conducting subsequent. uncertain standards surrounding the consideration of climate change may lead to a failure to address projects’ most significant environmental impacts. Commenters have referred to this problem as agencies playing ‘‘shell games. NEPA analyses related to climate change are frequently conducted cursorily. but then rely on their analysis of that issue in a subsequent individual EIS. Agencies could thereby use the programmatic analysis as a shield that protects them against later calls for rigorous analysis at the individual level. But at the individual level. analysis.’’ to avoid considering difficult issues. narrower EISs. This danger is particularly potent with respect to climate change. in City of Tenake Springs v. Clough. with little meaningful discussion of potential mitigation measures. While the court rejected the argument as disingenuous.270 THE JOURNAL OF ENERGY AND DEVELOPMENT serve as a tool to analyze the scope of the broad initiative as a whole and its relative merits. through ‘‘shell games. if a given issue is addressed in a Programmatic EIS in a cursory. agencies will claim that certain issues have already been addressed sufficiently at the programmatic level and ultimately fail to ever conduct meaningful analysis of that issue.’’ meaning that they describe certain issues only vaguely in the Programmatic EIS. the issue may be neglected. but arguably sufficient. Similarly. Part III. The BLM’s Consideration of the Climate in Its Oil Shale Programmatic Environmental Impact Statement The BLM has now conducted two Programmatic EISs to evaluate the environmental and socioeconomic impacts of opening massive swaths of land for oil . The agency challenged the requirement that it conduct a cumulative impacts analysis. Thus.102 For instance. this illustrates the potent danger of agencies attempting. agencies could defend a lack of cumulative impacts analysis in a programmatic evaluation by stating that it will conduct such analysis at the individual level. arguing that it had already done so in a prior land management plan.103 an agency was purchasing timber from the Tongass National Forest. As discussed above.
107 As a result of the rushed time frame.108 The report was narrow in scope. displacing them from areas being developed to process oil shale. are unlikely ever to be analyzed with adequate rigor. after settlement of a lawsuit by environmental groups that alleged that the EIS was deficient.104 In the new EIS.’’ it would have no impact on the environment. The Programmatic EIS documented a laundry list of potential impacts but generally refused to make firm conclusions. analyzing only the effect of opening the lands for application for leasing. and vaguely concluded that oil shale development ‘‘could have a direct effect on these uses. the BLM considered whether it was appropriate to open these lands for potential development. in fact.S. and its few discussions of the issue were superficial. 2008 Final Programmatic EIS: EPAct 2005 ordered the BLM to ‘‘ensure expeditious compliance’’105 with its duties under NEPA. rather than the effects that would accompany actual leasing and energy production on those lands. released before the BLM issued its final rule on oil shale management. adequately considers the impact oil shale development will have on the climate nor any potential measures to mitigate this impact. The BLM’s statement that the opening of lands for leasing was not ‘‘irreversible’’ gave it the ability to postpone consideration of the probable impacts of its decision. the report named 32 species that are listed or are candidates for listing under the Endangered Species Act but then ‘‘punted. this development introduces the danger of ‘‘shell-games. OIL SHALE DEVELOPMENT & CLIMATE CHANGE 271 shale and tar sands development.U.’’111 Likewise. discussing impacts on land use the report listed a slew of different uses. the Programmatic EIS did not address regulatory changes accompanying publication of the oil shale management regulations and was. because this action merely opened land to potential future leasing and did not ‘‘authorize any ground-disturbing activities’’ or represent ‘‘an irreversible or irretrievable commitment of resources.110 For instance. Neither Programmatic EIS. however.109 As discussed below. The first was conducted shortly after the passage of EPAct 2005 and.106 The 2008 Programmatic EIS analyzed the effects of the opening of the Green River Formation’s lands for oil shale leasing and potential development of those lands. The document acknowledged climate change’s reality and importance but hedged against this acknowledgment by emphasizing uncertainty regarding the precise impact of GHG emissions on the . particularly mitigation of oil shale development’s effects on climate change. BLM took a ‘‘fresh look’’ at the land allocations and issued a second Programmatic EIS. According to the BLM.’’ stating that because ‘‘actual project locations and footprints will not be determined until some later date.’’ it could make no real assessment of the projects’ effect on these species.’’ under which certain issues.112 The 2008 Programmatic EIS scarcely mentioned climate change. ambitiously requiring a Programmatic EIS to be completed within 18 months of its enactment.
’’115 While it is impossible to claim with absolute certainty that GHG emissions cause climate change.’’113 Distorting the conclusion of the IPCC that the increase in global temperatures is very likely114 due to the increase in GHG emissions. it provides an overview of the scientific consensus surrounding climate change and its regional impacts. there was no discussion of potential options for mitigation of impacts on the climate.’’122 With this distinction.940 megawatts of new electricity generation from coal-fired power plants and discussed non-GHG emissions in some depth. For instance. The Programmatic EIS states that it is not currently possible to predict the quantity of GHG emissions associated with its making lands available for application . the report stated ‘‘observed climatic changes may be caused by GHG emissions or may reflect natural fluctuations.272 THE JOURNAL OF ENERGY AND DEVELOPMENT climate. however. reducing the land for oil shale development from 2.118 In light of its estimation of emissions of traditional pollutants. The report also emphasized that the energy development would occur with many currently unproven technologies and that the size of projects and production levels could not yet be precisely quantified. it left genuine consideration of environmental damage and potential mitigation measures to a later date. the 2012 study discusses climate change more extensively but adds little substance. as the Programmatic EIS made a number of forecasts based on speculative estimates. the Programmatic EIS found no ‘‘impacts on the environment or socioeconomic setting of the area under consideration. the Programmatic EIS emphasizes that it only analyzes effects of the land being made ‘‘available for application for leasing. Its lack of discussion of climate change based upon these uncertainties seems disingenuous. As compared to the 2008 Programmatic EIS. Instead. Ultimately. the Programmatic EIS minimized overwhelming scientific consensus and presented the possibility that GHGs cause climate change as comparable to the possibility that they do not.000 acres to only 129.000 acres to 676. the Programmatic EIS simply did not discuss potential effects of oil shale development on climate change.121 Like its predecessor. the Programmatic EIS’s refusal to attempt to quantify GHG emissions is difficult to justify.117 Likewise.123 Unlike the original analysis.’’ rather than simply ‘‘available for leasing. the BLM highlights the fact that additional analysis pursuant to NEPA and other statutes will be required before any land is actually leased.120 2012 Final Programmatic EIS: The 2012 EIS proposes under its preferred alternative to significantly decrease the amount of area to be made available. the report assumed the construction of 9. the 2012 study does not cast doubt on climate change’s reality or the fact that it is clearly exacerbated by GHG emissions.000.116 Grounded in this emphasis of uncertainties.’’119 Because the Programmatic EIS claimed to be merely ‘‘the first step in the process’’ of developing the Green River Formation’s unconventional fuels. clouding its responsibility under the guise of ‘‘scientific uncertainty.567.967 and reducing the land for tar sands from 430.
retorting.’’128 In denying requests that it give greater consideration to these issues.g. these will primarily consider sitespecific impacts and related mitigation measures. regardless of their source (e. and government agencies.. Though each actual development project requires an independent EIS.000 comments were received from individuals affiliated with various organizational campaigns. the EIS provides little information concerning the impacts of oil shale development on the climate. superficial discussion of the cumulative climate change impacts of oil shale development. As a result. Approximately 160.130 . while helping to streamline development of oil shale at any given location. the BLM received an incredible amount of commentary from the public. Thus. Additionally. because applications detailing proposed land use and technologies would be needed to provide ample specificity to justify quantitative analyses. through sitespecific EISs.U. businesses. the EIS describes potential GHG emissions of oil shale and tar sands development only in qualitative terms. i. the Programmatic EIS states that quantitative analyses could be conducted when individual project applications are submitted to the BLM.124 Instead.. including from approximately 600 individuals. Regarding mitigation of GHG emissions. runs the risk of failing to consider the forest among the trees.125 Beyond this. organizations. the Programmatic EIS provides a single sentence: GHG emissions that may be related to climate change impacts may be reduced.127 Many of these commentators urged the agency to consider climate change more thoroughly.S. It states that oil shale emissions may actually lead to reduced global GHG emissions. protocols or policies to guide oil shale and tar sands leasing and development considerations. the BLM relied heavily on the fact that the Programmatic EIS only analyzed land allocation decisions. Following the issuance of its 2012 Draft Programmatic EIS. The EIS neglects to consider any studies of GHG emissions associated with oil shale that strongly suggest otherwise. and waste disposal.129 This decision. including ‘‘reasonable mitigation measures. not permits to actually produce oil shale. oil shale or conventionally-derived carbon-based energy sources) through 126 the use of emission controls or by sequestering GHGs. The Programmatic EIS does include a brief. the Programmatic EIS leaves the bulk of the responsibility of addressing climate change in the hands of local BLM field offices.e. the BLM repeated that estimations of emissions at the programmatic stage would be premature and speculative. since environmental impacts of oil shale projects are obviously much less on an individual scale than when considered cumulatively. it simply lists potential sources of emissions such as electricity generation. OIL SHALE DEVELOPMENT & CLIMATE CHANGE 273 for leasing. because transportation of domestically produced oil shale for ultimate use would lead to less transportation emissions than transportation of oil produced from greater distances abroad. oil shale surface or underground mining.
Among all the world’s environmental issues.132 While the 2012 Programmatic EIS represents an improvement over the 2008 study by virtue of its acknowledging the contribution of human activity toward global climate change. for instance. a relatively cursory discussion of environmental impacts may be justifiable with respect to localized environmental impacts. is unlikely to consider a wide range of . As explained in the CEQ’s Guidance document. the Programmatic EIS has neglected to consider the collective impact of its decision on the climate. Project-level NEPA analyses also will consider the broader effects of individual commercial-scale projects through cumulative impacts analyses. a localized EIS will precede any actual development and is well suited to discuss methods of mitigating adverse effects to. the BLM could potentially engage in ‘‘shell games’’ during NEPA analyses of individual projects and.274 THE JOURNAL OF ENERGY AND DEVELOPMENT The Programmatic EIS Does Not Adequately Consider Climate Change: The BLM has not provided a meaningful discussion of the contribution the opening of enormous areas to oil shale development will make toward climate change. While individual oil shale projects will affect the global climate. a Programmatic EIS. it does not provide the information necessary for policy makers to carefully consider the environmental effects of the BLM’s action. absent a comprehensive discussion at the programmatic level.’’ setting the stage for implementation of such measures when oil shale is developed at the commercial level. planners at this point could have ‘‘formulate[d] mitigation tools comprehensively. is the appropriate instrument available to consider the implications oil shale development in the Green River Formation will have on the global climate. Unfortunately. designed to account for the impacts that arise from the accumulation of comparatively less significant actions.’’131 Indeed. the Programmatic EIS was the best juncture for planners to consider the collective environmental impact of the opening of these lands to oil shale development.133 Going forward. Following precedent from past Programmatic EISs. The BLM is correct to emphasize that the Programmatic EIS is merely one step toward the development of oil shale in the Green River Formation and that significant uncertainty regarding the technologies used and extent of development remains. the piecemeal approach is inadequate if the BLM is to meaningfully address the impacts of oil shale development on climate change. its purpose was merely to ‘‘assess the range of possible impacts that may occur. precisely the critical component of its decision. a local animal population. Nonetheless. as it is caused precisely by the accumulation of GHGs from countless emitters. it is the greater opening of enormous areas of land for energy-intensive mineral development that will impact the climate most profoundly. the problem of accumulated effects is most manifest with respect to climate change. By leaving to site-specific environmental analyses the task of substantively discussing potential climate impacts and mitigation measures. As the report made clear.
use of near-zerocarbon energy sources would render emissions from oil shale-derived fuels comparable to those of conventional oil. As discussed below. Given projected increases in global demand for oil and the BLM’s ambitious goals for oil shale development. The Programmatic EIS should have carefully examined the consequences of this development and explored opportunities to mitigate its adverse effects.139 2.S. 1. the lack of adequate consideration of its effects on the climate could have major implications. The following presents some prospective strategies to mitigate emissions from oil shale development.134 For a project with impacts so far-reaching as the BLM’s opening federal lands to facilitate the recovery of an estimated 800 billion barrels of underlying oil shale. located within the Green River Formation in northwestern Colorado.137 Finally. The current Programmatic EIS will not facilitate any of these mitigative actions.or zero-carbon energy sources to generate the electricity needed for oil shale production would significantly reduce its carbon intensity. Part IV.135 Researchers estimate that substituting natural gas for coal would nearly halve retorting’s carbon burden.and solar-based retorting methods are currently under way. a proportionately broad assessment of methods of addressing its impacts on the climate is appropriate.S. it absolutely must mitigate carbon emissions associated with commercial-scale production of oil shale. could potentially house 50 billion tons of carbon produced from oil shale operations. When? Mitigating the Climactic Effects of the Exploitation of U.138 Tests for wind.141 Researchers have estimated that the Piceance Basin. used for coalbed methane extraction.U. The Programmatic EIS projects that conventional coal-fired plants would provide the new electricity capacity needed for oil shale production. As discussed below. Mitigation Strategies: Several potential methods of mitigating oil shale’s climate impacts exist. several options are available to mitigate the oil shale program’s impact on the climate.136 Use of the newest. Carbon Capture and Storage: The Department of Energy (DOE) has identified the capture of carbon produced by oil shale as potentially necessary for its commercial production. high-efficiency gas plants could reduce emissions by an additional 10 to 15 percent. Clean Energy Inputs: Using low. these options are unlikely to be implemented at the project-level absent some broader mitigative initiative. OIL SHALE DEVELOPMENT & CLIMATE CHANGE 275 alternatives or options to mitigate emissions. Oil Shale If the United States is to seriously address climate change. If Not Now. many of these would best fit in the Programmatic EIS as opposed to a project-level study.142 .140 The DOE suggests that captured carbon be injected into oil wells at other sites for enhanced oil recovery. or otherwise stored.
emitters of carbon would trade the right to emit with entities that sequester carbon. Polluters may also purchase these reductions in quantified credits from other entities that unilaterally undertake such projects.148 4. but these tend to come with significant trade-offs. it would do so in the form of electricity rather than as a liquid transportation fuel.146 Referred to as ‘‘Electricity Production with in-situ Carbon Capture’’ (EPICC). reservoirs. which obviously presents a host of its own obstacles. which could be done either governmentally or privately. Alternative Means of Production: Novel ideas for oil shale development exist. this process would use waste heat from a fuel cell to heat the oil shale under ground. ocean water. building the business case for these projects is ‘‘difficult and time-consuming. such as reforestation investments. The government would place a mandatory limit on the quantity of GHGs that oil shale-producing entities may emit. mitigation banks are wetlands or other aquatic resource .147 Other similar pilot-stage ‘‘greener approaches’’ for oil shale development are generally plagued by high costs. Using electricity as a transportation fuel would require widespread adoption of electric cars.276 THE JOURNAL OF ENERGY AND DEVELOPMENT However. The Kyoto Protocol’s Clean Development Mechanism allows polluters to take on projects that reduce GHG emissions. projects must be underpinned by a regulatory environment facilitative of carbon management. the Clean Water Act’s wetlands mitigation program offers an additional precedent. Artificially. Sequestration could be accomplished through several mechanisms. For instance. Carbon Offsets: A carbon offsets program would be the most comprehensive tool for addressing oil shale production’s GHG emissions. The carbon offsets program would work as follows. a wheat farmer. Several precedents exist for a program of this sort. Though this process would produce low-carbon energy from oil shale. Authorized by Section 404 of the Clean Water Act. A producer of oil shale could enter into a contract with. aging oil fields. and few large-scale projects currently exist. Funding to oversee the program would be appropriated from royalty payments being collected for use of the public land. commercial-level carbon capture and storage (CCS) is very expensive.’’144 Even at the demonstration level. who could change certain agricultural methods to capture more carbon or plant trees to restore degraded land.150 Most simply. and the additional waste heat generated would be used to further retort the oil shale.152 Polluters can then use these projects as credit toward meeting their own emissions reduction targets.149 In such a program.145 3. or several other types of carbon sinks. As an example of a domestic governmental program. for example. one recent article suggests using the oil shale’s own energy to fuel its extraction. The EPICC process would ultimately create electricity under ground.143 As pointed out by an organization that advocates CCS development.151 Such a program would require certification. carbon may be stored in subsurface saline aquifers. carbon can be biologically captured by plant photosynthesis or naturally in soils by vegetation.
early-stage discussion and evaluation of such measures will inhibit their future implementation. where will climate change fit? The explosion in development of unconventional fuels has major implications for climate change. beginning in 2009 with 2005 emission levels. The absence of a comprehensive. including the climate. major initiatives such as those outlined are unlikely to be undertaken. policy makers should engage in public.155 Under this initiative. significant coordination among customers of the power plants used to fuel oil shale development will necessarily precede planning and construction of such plants. Monitoring these developments. or in certain circumstances preserved for the purpose of compensating for damage to wetlands elsewhere.’’156 The most powerful potential mitigation measures.157 Likewise. is a legal limit on the quantity one can pollute. prior to authorizing major projects facilitating development of oil shale and other unconventional fuels. gradually decreases until 2018. Generators that fail to meet the standard may purchase offsets from other entities within the participating states. Post-authorization analysis of oil shale development’s implications to the climate may amount to too little. the government awards credits that are bought and sold. Hundreds of mitigation banks currently operate in the United States. all power plants in these states with a capacity of over 25 megawatts are subject to a mandatory cap on their GHG emissions. a regional cap-andtrade program among 10 Northeastern states. OIL SHALE DEVELOPMENT & CLIMATE CHANGE 277 areas that have been restored.U. established. Part V. Decision makers should be mindful of .S. Most germane is the Regional Greenhouse Gas Initiative. Conclusion The cursory nature of the BLM’s discussion of climate change in both of its Programmatic EISs raises a broader concern: as the federal agencies continue to undertake far-reaching actions to facilitate domestic energy production. For instance. of course. the Programmatic EIS provides an opportunity to ‘‘formulate mitigation efforts comprehensively.154 Key to this and any offsets program. As discussed in the CEQ’s NEPA Task Force Report. as described above. comprehensive discussions of environmental issues. would generally require high-level coordination prior to the undertaking of any individual commercial projects. Technological progression in methods of fuel development will continue to affect the economic and environmental costs of oil shale and other unconventional fuels. too late. Implementing Mitigation Measures: Without high-level consideration of the impacts of the oil shale program on climate change. enhanced. This cap.153 To economize these actions. the Global CCS Institute advises that pre-construction planning of a CCS project should take between four and seven years and constitute 10 to 15 percent of the cost of the total project.
Center for Strategic and International Relations. that statutorily required environmental analyses of broad government programs include a thorough assessment of their effects on the climate. ultimately. The Programmatic EIS is the appropriate vehicle for accomplishing this preliminary analysis. Annual Energy Outlook 2013 Early Release. D. large-scale programs.S. ‘‘Tight oil’’ is defined as ‘‘resources in low-permeability reservoirs. NOTES Editorial note: The citation system used here follows the accepted legal style. Verrastro. Annual Energy Outlook 2013 Early Release. Liquids and Natural Gas Supply and Prices. detailed information concerning significant environmental impacts. and Energy Information Administration. Programmatic EISs have thus far seldom provided a sufficiently rigorous analysis of climate change and almost never discussed mitigation measures. As courts have explained. Department of Energy.pdf. Georgetown University. no EIS may ever give the issue its due analysis.. including shale and chalk formations.org/files/publication/120417_gf_verrastro. then.160 These discussions are the very purpose of NEPA. the Programmatic EIS provides the opportunity for a more exhaustive consideration of the effects of. available at http://www.whitehouse.gov/the-press-office/2011/03/ 30/remarks-president-americas-energy-security. available at http://www. Blueprint for a Secure Energy Future (March 30. 67 (April 17.’’158 Accordingly. Frank A.’’ 5 4 3 2 1 .278 THE JOURNAL OF ENERGY AND DEVELOPMENT NEPA’s objective of ensuring that ‘‘the agency. Early Release. Oil and Gas Supply. The White House. 2012) available at http:// csis.gov/sites/default/files/blueprint_secure_energy_future. and mitigation options for. Washington. including considering means to mitigate their adverse effects. meaningful analysis of climate change is unlikely to take place at the individual project level and. available at http:// www. 2011. It is only fitting.whitehouse. Remarks by the President Obama on America’s energy security. in reaching its decision. Early Release. will have available. agencies should closely examine the effects oil shale development will have on the climate and consider potential means of mitigating them before providing the broad authorization needed to facilitate their development. U. Liquids and Natural Gas Supply and Prices. Unfortunately.eia. Reference Case.159 Absent sufficient consideration at the programmatic level. Oil and Gas Supply.C. The Role of Unconventional Oil and Gas: A New Paradigm for Energy. Reference Case. and climate change is the most important environmental issue the world has faced. Energy Information Administration. 2011). alternatives to.pdf.gov/oiaf/aeo/tablebrowser/#release=AEO2013ER&subject=0AEO2013ER&table=14-AEO2013ER®ion=0-0&cases=early2013-d102312a. and will carefully consider. March 30.
263-84. see DOE.gov/ programs/reserves/npr/publications/npr_strategic_significancev1. 2008. Economics of Oil Shale Development.pdf. eds. available at http://republicans. See also Adam R. available at http://fossil.energy.cfm [hereinafter Programmatic EIS]. 2010). INT’L ENVTL. depending on the technology used and resource quality. 2010). Bureau of Land Management (BLM).S.html. Brandt. only Estonia and Brazil have produced any oil shale on a small commercial scale. Oil shale is not technically oil but can be converted into kerogen.Y. Liquids and Natural Gas Supply and Prices. Burnham. National Energy Technology Laboratory. Energy Information Administration. DENVER POST. March 2012. Press Release: ‘‘Western Oil Shale Potential: 800 Billion Barrels of Recoverable Oil. 2011.. U. OIL SHALE DEVELOPMENT & CLIMATE CHANGE 6 279 Energy Information Administration.pdf The most current study estimates that. Karin P. 20 COLO.house.blm. available at http://www. Department of Energy. a product similar to petroleum that can be refined into liquid fuel. Annual Energy Outlook 2013 Early Release. American Chemical Society. 2009. Strategic Significance of America’s Oil Shale Resource. Liquids and Natural Gas Supply and Prices.gov/documents/index.. Oil and Gas Supply.denverpost.’’ July 22. energycommerce. available at http:// www. available at http://www. N.g. December 18. infra. Id. at A29.gov/Media/file/Hearings/Energy/20120320/HHRG-112-IF03-WStateDammerA-20120320. Office of Naval Petroleum and Oil Shale Reserves. Hydraulic Fracturing.S. See Part II. 255 (2009). Sheldon and Paul Komor. eds.anl.gov/wo/st/en/info/newsroom/2008/July/NR_07_22_2008. al. Ogunsola et. News Release: ‘‘Oil Shale and Tar Sands. 2012 Oil Shale and Tar Sands Final Programmatic Environmental Impact Statement. See generally Khosrow Biglarbigi et al. Carbon Dioxide Emissions from Oil Shale Derived Liquid Fuels. BLM. (Olayinka I. J. & Alan K. May 10. L. Reference Case. BLM. Production Technology. Oil and Gas Supply.gov/technologies/oil-gas/publications/ eordrawings/Color/colhf. For brief overview of the production of shale oil using hydraulic fracturing. Game Over for the Climate.com/opinion/ci_14020099. Jeremy Boak.. American Chemical Society.pdf.netl. Exploration & Production Technologies. Globally. the average minimum price at which oil shale can be economically developed ranges from $38 to $62 per barrel. Economic Impacts of Failure to Implement Legislative Mandates of Section 369 of the Energy Policy Act of 2005.gov/wo/st/en/prog/energy/oilshale_2.doe.html. The Modern Oil Shale Boom: An Opportunity for Thoughtful Mineral Development. e. al. Significantly. TIMES.. oil shale production demands high capital investment and long periods of time between expenditure of capital and return on investment.. Oil Shale Development and Climate Change. & POL’Y 253. Carrie Covington Doyle. Annual Energy Outlook 2013 Early Release.’’ April 13. available at http://ostseis.U. 16 15 14 13 12 11 10 9 8 7 . March 2004. James Hansen. A. Ogunsola et. in OIL SHALE: A SOLUTION TO THE LIQUID FUEL DILEMMA. See. Bunger. Dammer & J.. 2012. in OIL SHALE: A SOLUTION TO THE LIQUID FUEL DILEMMA 1 (Olayinka I. available at http://www.blm.
S. at 12-14. Boreal Toad. at 12.nrdc.wy.asp. supra note 28. Id. (2005). James Howard Kunstler. (presentation). at 41. available at http://rand.gov/beta/state. D.asp. supra note 18. 27 28 Id. and Peter Crawford. Id.C. Colorado Pikeminnow. available at http://kunstler. at 36. 2011. Driving it Home: Choosing the Right Path for Fueling North America’s Transportation Future 12. 21 22 23 Id. available at http://www. National Resource Defense Council. NRDC Report.’’ April 4. Wyoming Game and Fish Department. Id. Department of Energy. 19 20 18 ‘‘Retorting’’ is the process of heating the rock and capturing the resultant liquid. 34 33 NRDC Report. Oil Shale Development in the United States Prospects and Policy Issues ix. ‘‘Blowing Green Smoke. at ix. al. supra note 18. [hereinafter RAND Report].. Annual Energy Outlook 2009 (Washington. and Parachute Beardtongue (plant species) are among the Green River Formation’s threatened or endangered species that would be affected by oil shale development. [hereinafter NRDC Report]. In 2011. Id. Energy Information Administration (EIA). over half of the public comments on air quality were related to climate change. . (2007). coal accounted for 86 percent of all electric generation in Wyoming. Ken Peacock. Id. Bartis et al. The Bald Eagle.org/energy/ drivingithome/contents. U. available at http://gf. See also RAND Report. James T.: EIA. and 66 percent in Colorado.com/ blog/2011/04/blowing-green-smoke. at 35. 2010). Ogunsola et. 29 30 31 32 RAND Report.. 24 25 26 RAND Report. 2009). 80 percent in Utah. James Killen. 1 (Olayinka I. eds.. supra note 28. at 12. In the notice and comment proceedings supporting the BLM’s Programmatic Environmental Impact Statement for the expansion of lands available for oil shale production in the Green River Formation. See http://www.html. An Overview of Oil Shale Resources.280 17 THE JOURNAL OF ENERGY AND DEVELOPMENT Emily Knaus.us/climatechangeworkshop/index.state. Khosrow Biglarbigi.org/pubs/reports/R2293. RAND Corp. supra note 18.eia. in OIL SHALE: A SOLUTION TO THE LIQUID FUEL DILEMMA. ‘‘Climate Change and the BLM’’ 6.
Assessment of Strategic Issues.com/library/Oil_Shale_Stategic_Significant. Incentives.aspx#ERg5kwEqhwK4. OIL SHALE DEVELOPMENT & CLIMATE CHANGE 35 281 Office of Deputy Assistant Secretary for Petroleum Reserves. available at http://www. 36 37 38 39 40 41 Brandt et al.html. Energy Information Administration. Associated Free Press. Id. G8 Climate Scorecards 15 (2009) cited in The Tar Sands Group and Climate Action Network Canada. The sands’ overall emissions have dramatically increased with rising production.fas. Washington D. Notably. Id. despite the industry’s success in reducing its emissions by 29 percent between 1995 and 2004. (May 2001). History. Anthony Andrews.pdf. 49 48 47 46 45 44 43 42 .evworld.. History. climateactionnetwork. infra. cited in The Tar Sands Group at 8. available at http://www. 6/12/07. Reliable. available at http://www. available at http://www. supra note 45.S. us/index. See Part III.pdf. Rajendar Pachauri. Ecofys for Allianz and WWF.org/sgp/crs/misc/RL33359. 24 (March 2004). Canadian Association of Petroleum Producers. North American Oil Sands: History of Development. (December 2009).ca/e/publications/tarnishing-the-maple-leaf. infra (discussing enactment of the Energy Policy Act of 2005).php?option=com_ content&view=article&id=17&Itemid=13 Environmentally Conscious Consumers for Oil Shale. Marc Humphries.com/EnergyReport/ National-Energy-Policy. Id. this was a critical policy report leading to the enactment of the Energy Policy Act of 2005. available at http://www.pdf. Oil Shale: History. The Tar Sands Group and Climate Action Network Canada. See Table 1. at 2. Tarnishing the Maple Leaf: How the Tar Sands Drive Canada’s Climate Positions 2. (June 9.capp. and Environmentally Sound Energy for America’s Future.pdf. 2010-2025 Canadian Crude Oil Forecast and Market Outlook. 2008). Prospects for the Future. supra note 11. Id.C.eccos. and Policy: CRS Report for Congress (Apr.doe. 2010). Country Analysis Briefs: Canada (July 2009). available at http://www.php?option=com_content&view=article&id=17&Itemid=13 National Energy Policy Development Group. Chairman of the IPCC.us/index. available at www. 2006).wtrg. (Congressional Research Service.U.gov/cabs/canada/Full.ca/aboutUs/mediaCentre/NewsReleases/Pages/2010-Oil-Forecast. Strategic Significance of America’s Oil Shale Resource: Volume 1. Affordable. supra note 45. 13.eia. available at www. See also Environmentally Conscious Consumers for Oil Shale.eccos.
g. See generally Matthew C. 42 U.S. th CEQ Definition of Tiering.’’ See also Mark Squillance and Alexander Hood. Id.. EPAct 2005.S 332 at 352. Testimony of Raul Grijalva. Hrng. Id. x 1502. at x 15927(b)(2). 304 F.282 50 THE JOURNAL OF ENERGY AND DEVELOPMENT The Vast North American Resource Potential of Oil Shale. Finality and Geographical Nexus: Judicial Review of Agency Compliance with NEPA’s Programmatic Environmental Impact Statement Requirement After Lujan v.S. x 4332(2)(C). x 15927(b)(1). Porterfield.28 (1992). CEQ. 65 66 67 68 69 70 40 C. and Public Lands Decision Making. Id.3d 886 (9 Cir. 2002). Climate Change. 42 Envtl.R. 28 U.R. Definition of Mitigation. Public Citizen. 351-52 (1989) (‘‘Implicit in NEPA’s demand that an agency prepare a detailed statement on ‘any adverse environmental effects which cannot be avoided should the proposal be implemented’ is an understanding that the EIS will discuss the extent to which adverse effects can be avoided. 490 U. on Resources. Methow Valley Citizens Council. Subcomm. L. 40 C.R. 2004).R. x 1508. Oil Sands. 332.C. at 4. 40 C.C.F. NEPA. on Energy and Mineral Resources of the H.C.S.7 Id. (2010). S. x 15927(d)(1).F. REV. See also 42 U. . Oversight Hearings Before the H. Parts 1 and 2. NEPA.S. CEQ Alternatives Including the Proposed Action. CEO Shell Unconventional Resources Energy.F. x 1508. Id. 768 (U. 109-35. Id. 541 US 752. 109th Cong. and Heavy Oils. Executive Director of the Colorado Department of Natural Resources. 51. x 1508. 63 64 Methow Valley.F. 53 54 55 56 57 58 59 60 61 62 Energy Policy Act of 2005.S. 490 U. 42 U.R. x 4332(2)(C)(iii).4(b). 469 (2012). x 1502.20. 51 52 Id. Comm. and Russell George. RICH. at x 15927(b)(3). National Wildlife Federation. See. Representative of Arizona. Agency Action. 42 U. Robertson v. at 897. at 33 Testimony of Stephen Mut.14 (2009).C.F. 40 C. Department of Transportation v.’’). L. (2005). 40 C.S. 619 (1994). Id. e. at 351-53 (An EIS must contain a ‘‘reasonably complete discussion of possible mitigation measures.
citing 40 CFR x 1508. plan. 508 F. Surface Transportation Board. available at http://ceq. COLO.D. REV. courts have rejected agencies’ NEPA analyses for neglecting to sufficiently consider climate change. 1040 (S. 42 IND. The NEPA Task Force Report to The Council on Environmental Quality: Modernizing NEPA Implementation 35 (2003). Haroff & Katherine Kirwan Moore. The regulation describes tiering as appropriate when analyses are ‘‘[f]rom a program.’’).pdf 83 84 85 Stein. 76 77 78 75 Id.25(a)(2). Mid States Coalition for Progress v. 2d. Dept.pdf.2d 508. at 550. Amendment 1. 2003) (requiring analysis of GHGs in NEPA review of construction of railroad lines to carry coal to power plants). 182 (2007) (‘‘Under the appropriate circumstances. at 548. 477 (2010). L. 81 Id.7 (‘‘Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. 79 80 Id.gov/pgdata/etc/medialib/blm/wo/ Information_Resources_Management/policy/im_attachments/2009. Cal. 81 U. available at http://www.U. 467 F. 81 U. 3226.R. Evaluating Climate Change Impacts In Management Planning (2009). 74 Center for Biological Diversity v. In several other instances.Supp. 2007). REV.2d 508. . L. Stein.blm. National Highway Traffic Safety Administration.3d 520 (8th Cir. 2007). there is little doubt . Amy L. Climate Change under NEPA: Avoiding Cursory Consideration of Greenhouse Gases. or policy environmental impact statement to a program. . 487 (2010).File.Par. the impact of greenhouse gas emissions on climate change is an issue properly within the scope of NEPA’s environmental-review requirements. L.’’ 40 C.dat/IM2009148_att3. xx 1508.F. Toquop Energy Project: Draft Environmental Impact Statement ES-5 (2007). 73 72 Center for Biological Diversity v. Climate Change under NEPA: Avoiding Cursory Consideration of Greenhouse Gases. CEQ. Kevin T. 345 F. L. plan. REV. 82 Secretary of the Interior. NEPA Task Force. Id. National Highway Traffic Safety Administration.’’). 2006) (NEPA analysis of GHG emissions required in review of proposed construction of electric transmission lines carrying electricity from gas-fired plants in Mexico to consumers in California). See also Amy L. A NEPA-Climate Paradox: Taking Greenhouse Gases Into Account in Threshold Significance Determinations. 155. 473. BLM. 473. of Energy.9479. REV. 42 U. 514 (9th Cir. 550 (9th Cir.hss. COLO. . OIL SHALE DEVELOPMENT & CLIMATE CHANGE 283 71 Id. 1508.F.7. Stein. See Border Power Working Group v. See generally Madeline June Kass. Order No. 47 (2009).S.doe. Id.gov/ntf/report/chapter3. or policy statement or analysis of lesser scope or to a site-specific statement or analysis. supra note 81 at 477. (‘‘inclusion of climate change in NEPA documentation is now unavoidable’’). Global Climate Change and the National Environmental Policy Act. 508 F.S.
at 5. 450 (2006). As options for reducing or mitigating GHG emissions. at 5. at 6. Id.’’ Id.gov/ca/st/en/fo/elcentro/recreation/ohvs/isdra/dunesinfo/docs/isdramp.doe.hss. 125. NEPA. at 2.0-78 (2008).blm. available at http://ceq. 27 J. 2 ed.doe. (February 18. Public Citizen. 261 (American Bar Ass’n. 87 88 E.284 86 THE JOURNAL OF ENERGY AND DEVELOPMENT BLM.g. 2012). 441. available at http:// www. L. Id. Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions.gov/nepa/ regs/Consideration_of_Effects_of_GHG_Draft_NEPA_Guidance_FINAL_02182010. and capturing or beneficially using fugitive methane emissions. Id. Nancy H. at 9. L. (February 18. 100 101 CEQ. Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions. Climate Change. Available at http://ceq. 767 (2004). Id. Forest Service Case Law. 102 . AND LITIGAT. ‘‘NEPA and Climate Change. planning for carbon capture and sequestration. at 4.S. Courtney A Schultz. 42 ENVTL. Sutley. supra note 81.’’ See Squillance and Hood. at 6. and Public Lands Decision Making. renewable energy. ENVTL. NEPA Compliance in Fisheries Management: The Programmatic Supplemental Environmental Impact Statement on Alaskan Groundfish Fisheries and Implications for NEPA Reform. 1997). 165 (2012). United States Gypsum Company Expansion/Modernization Project: Final Environmental Impact Report/Environmental Impact Statement 4.. Memorandum to heads of federal agencies (October 8. L.pdf. History of the Cumulative Effects Analysis Requirement Under NEPA and its Interpretation in U. 30 HARV.gov/nepa/regs/ Consideration_of_Effects_of_GHG_Draft_NEPA_Guidance_FINAL_02182010. Guidance Regarding Consideration of Global Climatic Change in Environmental Documents Prepared Pursuant to the National Environmental Policy Act. lower GHG-emitting technology. Sutley. 97 98 99 Id. 469 (2012). Id. Id.hss. See Beth C. 541 U. See Mark Squillance and Alexander Hood. Id. at 6.html. citing DOT v. 2010).’’ in The NEPA nd Litigation Guide.pdf. Bryant. 2010). REV. the document cites ‘‘enhanced energy efficiency. The Guidance also states that the CEQ ‘‘seeks public comment on the appropriate means of assessing the GHG emissions and sequestration that are affected by Federal land and resource management decisions. Stein. ENVTL.S. at 1. 93 94 95 96 92 91 90 89 Id. 752. Nancy H.
gov/documents/ peis2012. at ES-6.anl. at 6-185. communication sites. 2008 Programmatic EIS at 3-100. and cumulative effects associated with oil shale and tar sands development). 2d 1308 (9 Cir.gov/documents/ index.anl. See generally id. at 3-158-59. but simply makes more land available for lease under the BLM’s commercial leasing program. 1990). See First Amended Complaint for Declaratory and Injunctive Relief and Petition for Review of Agency . x 15927(d)(1). See Doyle.C. available at http://ostseis. wild horse and burro herd management. Id. The final PEIS was significantly delayed. Id.gov/documents/ index2008. 109 110 111 108 2008 Programmatic EIS at ES-5. 20. (Mar. Notably. 2008. pipelines. finally released 37 months after EPAct’s passage.nrdc. supra note 12. the Act does not actually lease new lands.’’ 112 113 Id. roads. x 15921(a)(1)..C. . 4. Chapter 6 (analyzing potential direct. BLM Identifies Lands for Potential Development of Significant Oil Shale Resources (Sept. hunting.org/land/files/lan_08032001A. ‘‘Detailed Comments on Oil Shale and Tar Sands DPEIS’’ at 26-29.cfm. 2008).anl.cfm.U.) (Trial Pleading). (September 4. Id.S. livestock grazing. oil and gas production. 105 106 42 U. 2009 WL 2491560 (D.S. 2008. th 2008 Oil Shale and Tar Sands Final Programmatic Environmental Impact Statement [hereinafter ‘‘2008 Programmatic EIS’’].pdf. and ROW corridors (e. BLM published the PEIS on September 5. 2012) available at http://ostseis. and it is not yet possible to know with confidence the net impact on climate. 9. OIL SHALE DEVELOPMENT & CLIMATE CHANGE 103 104 285 915 F. indirect.. [hereinafter ‘‘2012 Programmatic EIS’’]. and published the final rule on oil shale management on November 18. 107 42 U. at 271-72. 2008 Programmatic EIS at 4-17. at ES-8 – ES-9. (Nov. 2008). .’’). Id.Colo. 2008). x 15927(d)(1). BLM. 114 115 116 117 The IPCC uses the term ‘‘very likely’’ to indicate a probability of between 90 and 95 percent. 2012 Oil Shale and Tar Sands Final Programmatic Environmental Impact Statement. and transmission lines). . Id. available at http://ostseis. The list of land uses includes ‘‘recreation. See Press Release.g. at 3-100 (‘‘The assessment of the relationship between GHG emissions and climate change is in its formative phase.S. available at http://docs. 118 119 120 Id. mining. at ES-6 – ES-8. See also Western Resource Advocates et al.
th (Presented to 29 Oil Shale Symposium.7. supra note 11.5.1. Golden.F. pp.’’ 40 C. at x 3. the Programmatic EIS is required expressly to consider these cumulative effects and remains the instrument through which broad mitigation could be developed. at 35.org/ documents/29thsymposium/presentations09/PRES_09-2_Crawford-Peter2a. INTEK. Peter M. present. and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Institute for Energy Research. Utah.’’ which are ‘‘the impact on the environment which results from the incremental impact of the action when added to other past. Appendix J: Summary of Public Scoping Comments for the Programmatic Environmental Impact Statement and Possible Land Use Plan Amendments for Allocation of Oil Shale and Tar Sands Resources on Lands Administered by the Bureau of Land Management in Colorado. at J-17.ceri-mines.. 2012). This electricity would be generated through a combination of construction of new power plants and expansion of existing power plants. BLM states that natural gas would likely be used for new power plants given recent industry trends. . INTERNATIONAL ENERGY AGENCY.pdf. Still. EarthJustice. 3-98 – 102. Sierra Club. at 4-57-58. WORLD ENERGY OUTLOOK 2012. Id. 127 Organizations included the Center for Biological Diversity. Id. at 4-56.1. Colorado Environmental Coalition. Id. Programmatic EIS at 4. at ES-4.6. Id. 136 137 138 139 Brandt et al. supra note 74. at x 4. x 1508. and Wyoming. Developing Greener Approaches for Oil Shale Development.2.286 121 122 123 124 125 126 THE JOURNAL OF ENERGY AND DEVELOPMENT 2012 Programmatic EIS at ES-1. Id.R. Defenders of Wildlife. Crawford. CO 2009). 4-63. Id. (Nov.2. EISs must consider ‘‘cumulative effects. Id. at 3-1. 129 130 131 132 128 Id. but assumes substantial expansion of currently-existing coal plants. Id. p. and an Unidentified Campaign. Id. The Wilderness Society. See 2012 Programmatic EIS. National Wildlife Federation. 12. available at http://www. 133 134 135 NEPA Task Force.6.
2007). 3.org/about/whatismitigationbanking.mitigationbanking.html#ses13.energy. U. OIL SHALE DEVELOPMENT & CLIMATE CHANGE 140 287 DOE OFFICE OF PETROLEUM RESERVES. e. 236 (2010). 2009). Id. CO 2009). See The Global CCS Institute. Currie.html. 1997. available at http://fossil. The EPICC process’s major flaw is that it would not create a fuel that runs in any of the 250 million internal combustion engine-driven vehicles currently on the road. Article 12. National Mitigation Banking Association. See generally Carolyn V. 25 ENERGY FUELS 1633 (American Chemical Society 2011). available at http://www. available at http://www. See. at ch.S. 146 Hiren Mulchandani and Adam R.org/documents/29thsymposium/presentations09/PRES_09-2_Crawford-Peter2a. 37 I. available at http://www. ‘‘FACT SHEET: OIL SHALE AND THE ENVIRONMENT. INTEK.ceri-mines. available at http:// www. Crawford.globalccsinstitute.com/publications/global-status-ccs-2012/online/47941. 18.S.’’ 2 (Jun. Developing Greener Approaches for Oil Shale th Development. opened for signature Dec.com/ 2010/08/27/a-solution-to-climate-change-economics-a-carbon-swap-bank/. Peter M.pdf.g.ceri-mines. Genevieve Young. Id. Oil Shale as an Energy Resource in a CO2 Constrained World: The Concept of Electricity Production with in Situ Carbon Capture. A Solution to Climate Change Economics – A Carbon Swap Bank. (January 12.pdf. 10. 154 153 .U. available at http://carolyncurrie.epa.energy.html?col= sitewide&qs=&qp=&qc=&pw=100%25&ws=0&la=en&qm=0&st=1&nh=10&lk=1&rf=0&oq=& rq=0&si=1&qt=fact+sheet. 11 INTERDISCIPLINARY ENVTL R. (Presented to 29 Oil Shale Symposium.L.pdf. available at http://www. ‘‘What is Mitigation Banking?’’ available at http:// www.gov/programs/reserves/npr/ Carbon_Management_Fact. Kyoto Protocol to the United Nations Framework Convention on Climate Change. th and Center for Oil Shale Technology and Research. The Global Status of CCS: 2012.costar-mines. 22.. see id. EPA. 144 145 143 142 141 Id. 30 Annual Oil Shale Symposium. See generally DOE OFFICE OF PETROLEUM RESERVES.M.org/documents/ P01-GenevieveYoung.org/oss/30/30th_Oil_ Shale_Symposium.wordpress. Carbon Storage and Resource Development Potential of the Piceance Basin. Abstract.fossil. thus sacrificing oil shale’s chief benefit of being a domestically abundant transportation fuel. Session 13: Carbon Management. available at http:// www.gov/search/fossilweb/query. (Colorado Geological Survey 2006). FACT SHEET: CARBON MANAGEMENT FOR STRATEGIC UNCONVENTIONAL RESOURCES.html#two. Golden. 150 151 152 149 148 147 For overview. gov/owow/wetlands/facts/fact16. Brandt. Mitigation Banking Factsheet.
C. The Global Status of CCS: 2012.’’ available at www. ‘‘Program Design.2d 1079. The Methow Valley Court also highlighted the importance of making such information available to the public. 160 158 Stein. 481 F. 1973). 490 U. . Atomic Energy Comm’n. Cir. 157 Global CCS Institute. supra note 74. to play a role in the decision-making process and the decision’s implementation. v.com/publications/global-status-ccs-2012/online/ 48591. Appendix B: Asset Lifecycle Model. supra note 81. at 477.288 155 156 THE JOURNAL OF ENERGY AND DEVELOPMENT Regional Greenhouse Gas Initiative. available at http://www. Methow Valley. at 35. Id.S.org/design. NEPA Task Force. 1087 (D.globalccsinstitute. Inc.rggi. 332 at 349. 159 Scientists’ Institute for Public Information.
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