Hot Potato: How Cities Can Tackle Climate Change Through Zoning
Mariah Harrod
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In the early hours of August 21, 2020, a blackened plume billowed across the skyline of Corpus Christi, Texas.[1] Helicopters wove through the haze to rescue those injured by the “Refinery Row” explosion.[2] Earlier that day, a dredging barge had collided with a submerged natural gas pipeline, igniting the highly volatile methane inside.[3] Four people died, and eight were injured.[4] Traumatic events like these serve as poignant reminders of the latent dangers of fossil fuel infrastructure. Yet the innocuous, everyday impacts from these commonplace facilities are no less perilous.
Much of the natural gas in the United comes from hydraulic fracturing (fracking), a process that shatters the rock formations containing fossil fuels.[5] This process uses several million gallons of pressurized water with added chemical agents later discharged into local reservoirs.[6] Fracking facilities contribute to air and water contamination, earthquakes, and climate impacts from fugitive emissions.[7] Proximity to these sites also correlates with birth defects and premature births.[8]
Other fossil fuel infrastructure poses similar problems of air and water pollution.[9] Though production is most common in the Appalachian region, Midwest, and Texas, distribution facilities—pipelines, storage units, and power plants—are widespread.[10] Indeed, “a spaghetti bowl of pipes underlies cities,” moving fossil fuels from “producing states to consuming centers.”[11] These distribution sites are no less risky for public health.
Pipelines, for example, not only threaten calamitous explosions like the one at Corpus Christi but also jeopardize public health and the environment.[12] Maintenance processes can expose locals to high concentrations of toxic substances while leaking methane, a potent greenhouse gas linked to climate change.[13] Residents near pipeline compressor stations have experienced dermatological, gastrointestinal, respiratory, neurological, and psychological ailments, and short-term storage facility leaks are linked to nausea, headaches, and nosebleeds.[14]
These issues compound the environmental problems associated with supporting further fossil fuel operations. Fossil fuels still compose most of the American energy mix.[15] In 2018, carbon dioxide from fossil fuel energy combustion amounted to 75% of U.S. greenhouse gas emissions,[16] indicating most of our climate impacts are attributable to current forms of energy use. However, studies show that an energy mix of 80% renewables, alongside improvements in grid connection or battery storage, can satisfy that demand.[17]
Despite renewables quickly becoming more cost-competitive than fossil fuel energy,[18] fossil fuel industries continue to develop new infrastructure.[19] Due to this expansion, continued use, and lackluster climate action, carbon emissions are still increasing, prompting some scholars to call for an abolition of fossil fuels.[20]
This Note provides a framework for creating local ordinances to local governments hoping to reduce climate impacts or the dangers associated with producing and transporting fossil fuels. Part I explains how health risks and climate impacts prompt municipalities to play hot potato with fossil fuel infrastructure. Cities can use their broad police powers to restrict fossil fuel infrastructure. Yet these restrictions nearly guarantee litigation. Part II looks at various legal challenges to local ordinances that restrict fossil fuel infrastructure and various provisions municipalities include to safeguard these ordinances. Part III extrapolates recommendations from those ordinances that successfully defend against legal challenges to provide a path forward for cities hoping to tackle the climate crisis.
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[1] Suzanne Freeman, BREAKING NEWS: Corpus Christi Firefighters Battle Pipeline Blaze, Corpus Christi Bus. News (Aug. 21, 2020), https://www.ccbiznews.com/news/BREAKING-NEWS-corpus-christi-firefighters-battle-pipeline-blaze.
[2] Id.
[3] Suzanne Freeman, Suits, Countersuits Filed in Corpus Christi Explosion, Corpus Christi Bus. News (Oct. 13, 2020), https://www.ccbiznews.com/news/suits-countersuits-filed-in-corpus-christi-explosion.
[4] Id.
[5] Joel B. Eisen et al., Energy, Economics, and the Environment 148, 155–57 (Saul Levmore et al. eds., 5th ed. 2019).
[6] Monika U. Ehrman, A Call for Energy Realism, 2 Utah L. Rev. 435, 449 (2019).
[7] Barbara Gottlieb & Larysa Dyrszka, TOO DIRTY, TOO DANGEROUS: Why Health Professionals Reject Natural Gas, Physicians for Social Responsibility (Feb. 2017), https://www.psr.org/wp-content/uploads/2018/05/too-dirty-too-dangerous.pdf.
[8] Id.
[9] Eisen, supra note 5, at 162.
[10] U.S. Energy Mapping System, U.S. Energy Information Administration, https://www.eia.gov/state/maps.php (last visited Nov. 15, 2021).
[11] Eisen, supra note 5, at 162 (internal punctuation omitted).
[12] Gottlieb, supra note 7.
[13] Id.
[14] Id.
[15] See Eisen, supra note 5, at 148 (“About 62% of the energy used in the United States today is oil and gas, from both domestic and imported sources.”).
[16] Energy and the Environment Explained: Where Greenhouse Gases Come From, U.S. Energy Information Administration (Aug. 11, 2020), https://www.eia.gov/energyexplained/energy-and-the-environment/where-greenhouse-gases-come-from.php#:~:text=In%202018%2C%20carbon%20dioxide%20(CO2,total%20U.S.%20anthropogenic%20CO2%20emissions.
[17] Matthew R. Shaner et al., Geophysical Constraints on the Reliability of Solar
and Wind Power in the United States, 2 Royal Soc. of Chem. 914 (2018).
[18] Renewables Increasingly Beat Even Cheapest Coal Competitors on Cost, International Renewable Energy Agency (June 2, 2020), https://www.irena.org/newsroom/pressreleases/2020/Jun/Renewables-Increasingly-Beat-Even-Cheapest-Coal-Competitors-on-Cost.
[19] See, e.g., Mapped: The World’s Coal Power Plants, Carbon Brief (Mar. 26, 2020), https://www.carbonbrief.org/mapped-worlds-coal-power-plants?fbclid=IwAR0rerCGcEl_T1Akjs1fh9uStP6GJdKqyFBS-HoV44QKptLZunSHW5N9ecY (noting that 500 GW of coal power plant capacity is being built or planned).
[20] Karl S. Coplan, Fossil Fuel Abolition: Legal and Social Issues, 41 Colum. J. Envtl. L. 223, 225 (2016).