AN INVITATION TO ACOEL MEMBERS: A TOOL TO SUGGEST TO YOUR CLIENTS AND FRIENDS TOWARD IMPLEMENTING NET ZERO GHGs

Posted on February 18, 2021 by Jeffrey C. Fort

 

Climate is clearly an early priority of the Biden Administration.  The array and breadth of executive orders surely demonstrates the vast power of  the Federal  bureaucracy to achieve reductions in GHG emissions and climate impact.  While those measures would have been gladly received 4 years ago, the prior administrations retreat from climate leadership to climate denial has evoked a groundswell of actions by cities and states, and private citizens.  “We’ re still in” and the Climate leadership states have stepped up their commitments.  Indeed, even before the Clean Power Plan was replaced in 2019 by the American Clean Energy Rule, it was evident the private sector investment incentives from federal tax credits had substantially increased the use of solar and wind-powered electric generation,  reducing US dependence on coal for power generation.

Other actions, including renewable portfolio requirements from almost 30 states,  enhanced the results from the federal investment tax and production credits.  To keep nuclear power as part of the solution, some states [e.g. Illinois and New York] crafted “zero-emission” incentives to keep nuclear, base-load power plants running.

But the largest potential reduction in carbon emissions is the geologic sequestration tax credit, which earns a tax credit of $50 per ton of CO2 stored in appropriate geologic formations. Even when used for enhanced oil recovery or Direct Air Capture, the credit is $35 per ton.  Not only is this perhaps the largest emission reduction tax credit, but when implemented is a huge CO2 reduction strategy.  Sources in the mid-South and mid-west may boast excellent geologic formations for such.

The federal tax credit [known as 45Q for its position in the tax code] has captured much attention, as it should.  Getting the results expected of that tax credit will be difficult, but would go far beyond anything EPA assumed in the Clean Power Plan when adopted in 2015.

The 45Q tax credits for geologic sequestration and direct air capture have already stimulated as many as 30 projects announced to use geologic sequestration principles to remove CO2 from the troposphere.  Credits from these kinds of projects also may be used as credits in the low carbon fuel standard credits, which is part of California’s suite of climate policies.

As important as these tax incentives are for geologic sequestration, and for climate benefit if implemented, there are other actions which private citizens and states can take. One of those is to incentive changes in industrial processes by chemical fixation of CO2 exhaust gases. The reaction processes are well known and established; but the cost of making existing products using this approach is more expensive than existing in-place technologies.  

A potential incentive is to monetize the environmental attributes of such an approach by use of a carbon offset credit methodology. We have crafted such a methodology to quantify the saved emissions when certain conditions are met, and then create carbon offset credits to use elsewhere. A dozen or more end-use durable products in existing markets could be formulated using exhaust CO2 gas.[1]

Developed in consultataion with the American Carbon Registry and waiting to be put to public notice and peer review, this carbon offset methodology would do just that -- earn carbon credits for the re-use of CO2 exhaust if used in beneficial products.[2]

This is an open invitation to ACOEL members to investigate this opportunity -- to develop   a peer-reviewed carbon offset methodology, and apply it to a particular client or business segment.  Dentons and a client have done the heavy and creative initial lifting -- the opportunity is too special not to share. See americancarbonregistry.org/carbon-accounting/standards-methodologies

This is an opportunity to recover waste gases and convert into a wide range of commercial products, regardless of the extra market value from potential offset sales.


[1] A wide number of intermediate products could be created, which would then  be used in appropriate products. End use products which we have found likely to be eligible under this draft Methodology include: Plastics, Polymers, Coatings, Paints, Adhesives, Rubber & leather, Textiles, Paper, Glass, Metals, Wood and Concrete.

[2] Fuels would likely not qualify, since the focus of such is to again combust and release the CO2 into the environment.

 

It’s a Bird, It’s a Plane….It’s a Drone!

Posted on February 12, 2021 by Gail Port

As previously reported, the New York State Department of Environmental Conservation (NYSDEC) and New York State Energy Research and Development Authority (NYSERDA) are focused on meeting their ambitious goals to address climate change set out in the Climate Leadership and Community Protection Act (CLCPA). To do so, they have undertaken a number of innovative initiatives, including, as recently announced, that they will deploy drones to help reduce climate-altering greenhouse gas emissions from aging and abandoned oil and gas infrastructure in the State.

In New York, there are a number of orphan oil and gas wells that have been abandoned for more than a century, in some cases. Leaving these wells unplugged allows methane gas to leak into the environment.  Insofar as methane is, at least in its first two decades after its release, 84 times more potent than carbon dioxide as a greenhouse gas, this can have a significantly negative impact on the environment. The importance of plugging these orphan leaking wells is well-known.  Indeed, we are likely to see federal government also pushing this initiative, as the Biden-Harris transition plan included a proposal to create “250,000 jobs plugging abandoned oil and natural gas wells and reclaiming abandoned coal, hard rock and uranium mines.”  Plugging abandoned wells is only one step that NY is undertaking to reduce methane emissions from, among others, landfills, new and existing oil and gas infrastructure, and agricultural sources.

Until now the process to locate and plug these leaking methane emitting sources was very costly because it is difficult to spot them from the ground during land-based field surveys. It is expected that employing the use of drones to identify these wells will speed up the process and save taxpayer dollars. As noted in the NYSERDA/NYSDEC press release “[t]he specialized drones will fly over the landscape with equipment that reveals magnetic signals produced by the wells at specific GPS coordinates. Signal anomalies and other data will be used to create maps that DEC will use to identify locations for on-site visits to verify the presence of orphan wells.”

This is not the first time New York has used drones to improve its environmental efforts. In 2017, NYSDEC deployed a fleet of 22 drones to enhance the state’s environmental management, conservation and emergency response efforts. Such drones have been used for search and rescue missions, forest fire suppression, wildlife management and surveys, invasive species detection, and forest health evaluations.‎ Specifically, in New York state alone, drones have been used to locate an oil spill in a Staten Island wetland, to map an invasive plant across 200 acres of wetlands in St. Lawrence County, to detect underground bat hibernation sites in Mineville and even to control traffic at the New York State Fair.

Saving taxpayer money is certainly a laudable goal, but doing so while taking steps to improve the environment is even better! New York should be applauded for its initiative to leverage drone technology to make leaks “drone” dry.

A FLORID (AND POSSIBLY SIGNIFICANT?) ACE DISSENT

Posted on January 26, 2021 by Dick Stoll

On January 19, 2021, the D.C. Circuit issued its long-awaited decision on the Trump EPA’s Affordable Clean Energy (ACE) rule.  American Lung Assn. v. EPA, No. 19-1140.  The ACE rule was the Trump EPA’s repudiation of the Obama EPA’s Clean Power Plan (CPP) under the Clean Air Act. 

Two spoiler alerts:

(1)    I will not in this blog even begin to analyze the extremely lengthy and complex majority and dissenting opinions.  I am too retired for that.  Hopefully an unretired Fellow will be helping us with that soon. 

(2)   I will not offer any views on which of the opinions is more meritorious, because I really don’t know.   I will conclude by saying, however, that new legislation would sure be nice. 

The most critical issue in both the ACE and the CPP is fairly simple.  In regulating coal-burning electric power plants under the CAA for climate purposes, is EPA authorized to impose “beyond-the-fenceline, generation shifting” measures?  These measures will hereafter be referred to as “BTFGS.” 

Or put another way, may EPA go beyond plant-specific emission controls, and impose measures that effectively require power companies to secure emission reductions on a company-wide or grid-wide basis?  If so, power companies may be forced to shift some (or all) of their capacity to non-coal-fired generation (such as natural gas) or even shut down some (or all) of their coal-fired generation.

The Obama EPA based its CPP on BTFGS requirements.  The Trump EPA repealed the CPP and issued ACE, which imposed no BTFGS measures.  In doing so, the Trump EPA took the position that the CAA’s plain words did not authorize BTFGS measures.

The D.C. Circuit’s new 2-1 American Lung decision — joined by Judges Millet and Pillard — rejected the Trump ACE.  The majority fully embraced the Obama CPP position that the CAA authorizes BTFGS measures.  Judge Walker dissented (more on that below).

The majority decision was hailed by many as giving the Biden EPA a “green light” to fashion effective climate regulations that the Trump EPA would never entertain.  This may or may not prove to be correct, however, if the Biden EPA decides to require BTFGS measures in future climate rules.  For even though the new decision may stand as binding in the D.C. Circuit, we must consider the U.S. Supreme Court (SCOTUS).

Two points on SCOTUS.  First, recall that in totally unprecedented fashion, SCOTUS in 2016 stayed the Obama CPP pending review, with the result that the CPP never came into effect before the Trump EPA repealed it.   The stay was issued by a 5-4 Court that included five conservative leaning and four liberal leaning Justices.  No opinion accompanied the stay, but it is fair to assume the conservative majority was skeptical of the Obama BTFGS position.  If any rule that relies on BTFGS comes before SCOTUS in the next few years, it will presumably face a Court that includes six conservative leaning and three liberal leaning Justices.

Second, and now I get to the Walker dissent.   Judge Walker, a recent Trump appointee, was well known on Fox News and other outlets for his strong conservative views before his appointment.   His dissent is a testament to those views.  

Whether you agree with Judge Walker or not, you may have fun reading his florid opinion.  I have attached a copy, in which I have highlighted various notable passages.  He throws in cites to Arthur Conan Doyle (p. 9), Shakespeare (p. 33), and Lawrence of Arabia (the movie, p. 14).  He explains that the U.S. Senate is designed to protect small States (pp. 3, 5).   He postulates that the doomed Obama 2009 legislative climate effort would have succeeded if there were proportional representation in both Houses of Congress (p. 6).  He engages in amusing word play (pp. 3, 35).

But why am I even bothering with Judge Walker’s dissent?   Recall that in 2014, then-D.C. Circuit Judge Kavanaugh filed a dissent in a CAA case against a majority opinion favoring stronger environmental controls.  White Stallion v. EPA, 748 F. 3d 1222 (2014).   On review, a 5-4 SCOTUS (with the conservatives in the majority) reversed the D.C. Circuit ruling, adopting and quoting from the reasoning in Judge Kavanaugh’s D.C. Circuit dissent.  Michigan v. EPA, 576 U.S. 743 (2015).

So not too long ago, a narrow conservative SCOTUS majority adopted the reasoning of a dissent from a conservative D.C. Circuit Judge to reverse a more environmentally protective D.C. Circuit opinion.  I suppose it could happen again, with an even more conservative SCOTUS now.  And by the way, Judge Walker clerked for Judge Kavanaugh when Kavanaugh was on the D.C. Circuit. 

Again, I offer no view on what I think the courts should do with BTFGS.  What I really hope is that Congress will enact CAA amendments to clarify EPA’s climate authorities.   Now that we have a Democratic President, House, and (barely) Senate, maybe this can finally happen.  Maybe the Senate will do away with the filibuster, or — even without that — enough Republicans in the Senate could come along?  There’s always hope. 

What a Difference a Day Makes

Posted on January 26, 2021 by Brian Rosenthal

Co-authored by Brian Rosenthal and Timothy Webster

On Day One, the 46th President of the United States signaled his focus on climate, the environment, and energy in executive orders, official correspondence, and memoranda.  In a few strokes of his pen, the President undid much or all of what his predecessor had done, also largely by executive order, and cast into doubt many of the prior administration’s environmental and energy policies and rules.

As has been widely reported, the new administration’s Day One executive actions established and implemented a broad range of policy objectives, several of which were environmental, that immediately start to make good on some of the commitments of candidate Biden during his campaign and President Biden in his inaugural address:

While unable to change substantive rules, the administration’s memorandum “Modernizing Regulatory Review” weaves themes together of environmental justice and equality. It supports the administrative agencies recommending steps for “improving and modernizing regulatory review” in order to “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.”  Among other things, this memorandum order seeks to review the regulatory process by 

(i) identifying ways to modernize and improve the regulatory review to reflect current science and economics considerations even where “difficult or impossible” to measure; and 

(ii) considering the regulatory impact on disadvantaged communities.

Similar themes are presented in the administration’s “Executive Order on Advancing Racial Equity and Support for Underserved Communities through the Federal Government.”  The order imposes equitable assessment benchmarking across agency programs to examine barriers in and to federal programs. 

Perhaps the boldest order for environmental lawyers was President Biden’s “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”  The order directs executive agency heads to review hundreds of agency actions implemented during the Trump Administration, including more than 120 related to energy and the environment.  In addition, the order suspends or revokes, in whole or in part, nearly one dozen Executive Orders issued by the prior president that were directly tied to energy infrastructure.

The order includes the phrases “listening to science” and “holding polluters accountable.”  It also emphasizes reviewing all regulations of the last administration for disproportionate effects on low-income areas.  Parenthetically, as noted in Seth Jaffe’s Law & the Environment Blog—the line between legitimate environmental concern based on cost benefit and NIMBY reactions is narrow but must be drawn.   

Opposition has already been expressed to many of these measures, several of which will surely spur litigation.

President Biden Pulls the Plug on Keystone XL — Let’s Make Sure It Sets the Right Precedent

Posted on January 25, 2021 by Seth Jaffe

Last week, President Biden hit the ground running on environmental policy, issuing an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.  There’s a lot in it, so I think I’m going to have to take it in blog-sized bites.  Let’s start with Section 6, in which he revoked the Presidential permit for the Keystone XL pipeline.

keystone pipeline protestors in silhouette with man holding ‘NO XL’ sign (XXXL)

Why start here?

Well, it’s a big deal, any way you look it.  It’s pretty much the end for large fossil fuel pipeline construction in the US.  According to Bloomberg (subscription required), here’s what Alan Armstrong, CEO of the Williams Companies, had to say about it:

"I can’t imagine going to my board and saying, ‘we want to build a new greenfield pipeline’. “I do not think there will be any funding of any big cross-country greenfield pipelines, and I say that because of the amount of money that’s been wasted."

OK.  But there’s also another reason why this is important. Creating a new, renewable electricity grid is going to require substantial new transmission capacity.  In terms of direct impacts, there isn’t necessarily much difference between siting a pipeline and siting a transmission line.  They can both cause damage to wetlands and endangered species.

The difference between them is simple and stark.  Fossil fuel pipelines lead to greater GHG emissions, while new transmission is necessary to reduce GHG emissions.  And so much for the Trump administration’s efforts to minimize consideration of indirect impacts from infrastructure projects.  It’s all about the indirect impacts!

It can be a fine line between one person’s NIMBY and another person’s legitimate environmental concerns.  I sure hope we figure out how to assess environmental costs and benefits in infrastructure siting sooner rather than later, or that grid we’re all counting on to deliver zero-carbon electricity won’t be there when we need it.

Battling Over Battlegrounds: Climate Torts Return to the Supreme Court

Posted on January 22, 2021 by Tracy Hester

The brawl over climate tort liability has returned, again, to the U.S. Supreme Court.  In its first skirmish in 2011, the Court in Connecticut v. American Electric Power swept the board by declaring that the federal Clean Air Act displaced federal common law tort claims for climate change damages.  Noting the fragile nature of federal common law in the face of contrary federal legislation, Justice Ginsberg wrote for a unanimous Court that Congress had displaced federal common law claims when it gave the EPA power to regulate greenhouse gases – even if the agency chose never to exercise that power.

A decade later, the battle has resumed in a new forum:  the state courts under state laws.  Over 20 lawsuits in federal and state courts are simmering in pretrial stages and are now poised to begin discovery.  The defendants, mostly large energy and chemical corporations, have removed the cases to the federal courts and, hopefully, under federal law.  So, unsurprisingly, the new climate litigants are now fighting first over where they’ll ultimately fight, and how.

Earlier this week, the U.S. Supreme Court waded back into the struggle.   The Court heard oral arguments in BP P.L.C. v. City of Baltimore from the Fourth Circuit on relatively abstract issues of appellate jurisdiction.  This anodyne cover, however, shouldn’t obscure the petition’s true objective:  to broaden the scope of immediate federal appellate review, and control, of climate tort claims.  

The specific dispute in BP v. Baltimore centers on the breadth of appellate review of remand orders, such as the federal district court’s decision here to deny the defendants’ attempt to use the federal officer removal statute to remove the case to federal court.  The company petitioners have asked the Court to review on appeal the district court’s entire order denying removal, not just the federal officer issue.  Baltimore and the respondents instead want the Court to interpret the appellate review statute to limit review to just the federal officer question.

This grain of procedural sand holds a universe of important legal and policy implications for climate liability law.  Tellingly, the companies have already used this narrow procedural platform to ask the Court to find that federal law governs all of these tort claims because of their uniquely interstate nature.  When Justice Barrett asked whether it would be “fairly aggressive” for the Court to resolve the federal law question now, Kannon Shanmugam, arguing for the company petitioners, boldly answered that the Court should resolve the issue – and that the answer “is clear” that state tort law should not govern climate damage claims.

Most of the questioning in oral argument focused unsurprisingly on narrow statutory interpretation doctrines.  For example, the petitioners emphasized that the plain textual meaning of “order” in the statute implies that the entire order undergoes appellate review, not just the federal officer ruling.  Other justices focused on the obscure ratification doctrine, which emphasizes that Congress implicitly adopts the prevailing interpretation of statutory language when it revises a statute without changing the language at issue.  The justices appear narrowly divided, which might be important given that only eight justices participated in the argument (Justice Alito has recused himself presumably because of his holdings of energy company stocks).

In the end, other political and legal developments may leap ahead of the Court’s ruling in this case.  While the United States appeared alongside the companies today to support their petition, President-elect Biden’s earlier campaign statements supported state law climate tort litigation.  The U.S. Department of Justice, as a result, may shift its stance in future attempts to remove state court lawsuits.  And immediately before the Court heard arguments in BP v. Baltimore, the D.C. Circuit struck down the Trump Administration’s Affordable Clean Energy rule.  If the Biden EPA responds with immediate and sweeping efforts to regulate greenhouse gas emissions from the energy and chemicals sectors, the room for parallel state liability actions over greenhouse gas emissions may correspondingly shrink.  Last, any attempts at federal legislative action on climate change will almost certainly spark demands for explicit preemption of state tort liability claims.  As a result, major climate change damages and injuries will likely last for centuries, but the window of state law liability for them may not last nearly as long.

Showerheads: Untangling the Outgoing Administration’s Last Attack on Energy Conservation Standards

Posted on January 6, 2021 by Adam Kahn

Regulatory trackers from Harvard Law School, Columbia Law School, and the New York Times identify over 100 rule changes from the outgoing Trump administration that could increase greenhouse gas emissions or decrease other protections of  the environment. The weakening of conservation standards for showerhead flows will be one of the last of such rules to go into effect prior to January 20, 2021. The Department of Energy (DOE) promulgated the so-called “Showerhead Rule” on December 16, 2020, which becomes effective on January 15, 2021. (DOE also promulgated new rules that weaken efficiency standards for certain washers and dryers on the same schedule.) 

The Showerhead Rule amends the Energy Conservation Program for Consumer Products Rules, found at 10 CFR Part 430. Part 430 implements part of the “Energy Policy and Conservation Act or EPCA, as amended by the Energy Policy Act of 1992, and codified at 42 U.S.C. 6291-6309.  Specific to showers, Section 31(D) of 42 U.S,C. 6293 defines “showerhead” as “any showerhead (including a handheld showerhead), except a safety shower showerhead.” And 42 U.S.C. 6295(j) imposes a maximum water use of 2.5 gallons per minute for “any showerhead” manufactured after January 1, 1994.  Since Congress passed EPCA in response to the 1973-74 energy crisis, the implementing rules have largely been viewed as a success, and a stepping stone to further conservation efforts.  In January 2017, DOE described the appliance efficiency standards as “highly effective -- achieving high bang-for-the-buck energy savings.”  In short, this rule cannot be good for the environment.

Application of EPCA to showerheads was admittedly the subject of complaints about inadequate flow, particularly in the years immediately following implementation of the standards.  President Trump got lathered up about this too.  As he explained in July, 2020:

We’re bringing back consumer choice in home appliances so that you can buy washers and dryers, showerheads and faucets. So showerheads — you take a shower, the water doesn’t come out. You want to wash your hands, the water doesn’t come out. So what do you do? You just stand there longer or you take a shower longer? Because my hair — I don’t know about you, but it has to be perfect. Perfect. (Laughter and applause.)

In response, the Showerhead Rule added two definitions to its Energy Conservation Program rules: “Body spray means a shower device for spraying water onto a bather from other than the overhead position.  A body spray is not a showerhead” and “Showerhead means any showerhead (including a handheld showerhead) other than a safety showerhead. DOE interprets the term ‘showerhead’ to mean an accessory to a supply fitting for spraying water onto a bather, typically from an overhead position.” (emphasis added).

What is the effect of this rule?  For “ordinary” one-head showers, not much.  Flow from a single head shower “spraying device” is still limited by statute to 2.5 gpm.  The differences are for those who want a shower with multiple spraying devices (e.g., waterfalls, shower towers, rainheads, and shower systems) and/or “body sprays.”  The definitions change a longstanding DOE policy that considers each spraying device from a single pipe to be part of one “showerhead,” so they are collectively limited to 2.5 gpm.  Now each spraying device in a product containing multiple “heads” are considered separately for purposes of determining compliance with the 2.5 gpm limit.  Thus, a shower with four water spraying devices can use 10 gpm (until the hot water runs out), and Body Sprayer flow is unlimited.

The Showerhead Rule allows showers to consume more water and use more energy to heat water.  The increase could be significant: the U.S. Energy Information Administration reports that water heating consumes more household energy than anything but space heating, and showers are one of the largest consumers of hot water. Time will tell whether the additional water and energy wasted in the name of consumer choice is a relative drip or flood.

The incoming administration has options to rescind or reverse rules, including the Showerhead Rule.  But President Biden cannot issue an executive order to invalidate an existing regulation.  Nor can he “freeze” a rule that has been finalized and has taken effect.  Changing a rule requires the usual notice and comment periods, unless the “good cause” exception in the Administrative Procedures Act (APA) can be invoked.  

Litigation could also change or delay the effective date of the Rule.  The deadline to challenge the Showerhead Rule under the APA and EPCA is March 16, 2021.  Litigation can be slow, but if a challenge is brought, in the near term the Department of Justice could decline to defend the rule and request a stay to give DOE the chance to consider amendment or repeal. Similar lawsuits were brought at the end of December 2020 by 15 state attorneys general and NGOs challenging the October 2020 “Dishwasher Rule” which loosened dishwasher efficiency standards.

Showerhead manufacturers also need to contend with state and local law. Many state energy conservation standards are preempted by EPCA, but that law also allows or requires preemption to be waived is specified circumstances.  DOE waived preemption for showerheads in 2010.  Six states then adopted standards stricter than 2.5 gpm:  California, New York, Colorado, Washington, Hawaii, and Vermont.  These state standards, which likely will be interpreted under the superseded DOE policy, reduce the incentives for showerhead makers to sell products newly authorized by the Showerhead Rule.  As other states try to reduce GHG emissions, additional states may promulgate new rules to avoid the effects of a federal rule that does just the opposite.

Will manufacturers retool and remarket their product lines on the assumption that the Showerhead Rule will remain in place, at least for the states that have not adopted their own standards? The choice is theirs, but with increasing ESG considerations, the limited market, and a flood of uncertainty surrounding future of the Rule, many may wash their hands of this opportunity.   

The Showerhead Rule will hardly go down as the worst attack on the environment from the outgoing administration. There is simply too much competition.  There is also hope that a future regulator will consider the (paraphrased) advice of Rodgers and Hammerstein and conclude: “I'm gonna wash this [Rule] right outta my hair, and send [it] on [its] way.”  At 2.5 gpm or less.

Combating Climate Change with the Clean Air Act’s International Air Pollution Provision

Posted on November 23, 2020 by Michael Burger

As the key staffing decisions and priority policy agendas for President-elect Joseph R. Biden begin to take shape, the questions of when and how the administration will act on his campaign’s climate plan are front and center. Deservedly so. The scale and scope of the climate crisis calls for immediate and comprehensive nationwide efforts to reduce greenhouse gas emissions. There is no question that new federal legislation would be the best option. But with Georgia’s two Senate seats still undecided and the political implications of the November election still being parsed out, the prospect for federal legislation remains highly uncertain. What’s more, even assuming Congress does enact new climate legislation, it may not go far enough in reducing GHGs to be consistent with science-based climate targets, or to meet the nation’s international climate commitments. From January 20 onward, the Biden administration will need to think through and set in motion regulations that rely on existing statutes to achieve the deep emission reductions required to avoid increasingly dangerous, highly unpredictable climate scenarios.

Combating Climate Change with Section 115 of the Clean Air Act: Law and Policy Rationales provides a roadmap for an essential component of such a plan:  the Environmental Protection Agency’s international air pollution authority. This new book, which I edited, is the culmination of a decade of collaboration by scholars and lawyers at the Sabin Center for Climate Change Law at Columbia Law School, the Emmett Institute at UCLA, and the Institute for Policy Integrity at NYU, with major contributions from other outstanding legal scholars, experienced lawyers from the Environmental Protection Agency and the State Department, leading state regulators, and veterans of congressional climate battles. Its chapters lay out how the Clean Air Act’s international air pollution provision -- Section 115 -- provides a logical, common-sense basis for a federal climate policy that (a) allows the executive branch to synchronize the nation’s domestic emission reduction efforts with its international climate commitments; (b) authorizes the use of a broad range of regulatory approaches, including market-based mechanisms; (c) respects cooperative federalism by giving EPA the responsibility to set emission reduction targets and states the authority to decide how to achieve them; and (d) is administratively simple. Whatever might come from Congress in the next year or two, and whatever else the Biden administration’s environmental, energy and natural resources agencies might do, EPA’s international authority can fill the gap between the emission reductions other federal, state and local programs can achieve and the level of cuts required to meet the nation’s climate goals. 

Though it has only been invoked once, and never implemented, the criteria for using the international air pollution provision are relatively straightforward. Section 115 is triggered when EPA both finds that emissions in the United States contribute to air pollution that endangers public health or welfare in another country (the “endangerment finding”) and determines that the other country provides “essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country” by Section 115 (the “reciprocity determination”). In the case of climate change, both of these prerequisites are readily met: GHGs in the U.S. contribute to climate change, which endangers public health and welfare in other countries just as much if not more than it does here in the U.S. And the UNFCCC, the Paris Agreement, and potentially new, additional agreements ensure both that the U.S. can participate in other countries’ planning and that there is a mutual, or “reciprocal,” substantive commitment to address the climate crisis.   

Once triggered, Section 115 operates through state implementation plans (SIPs), the state air pollution control programs that are the heart of the Clean Air Act’s cooperative federalism model for achieving the nation’s air pollution control goals. Under Section 115, EPA’s role is to require the states to revise their SIPs to the extent they are “inadequate to prevent or eliminate the endangerment.” As explored in detail in the book, EPA can use the provision to set GHG emission reduction targets for the states, and the states can work together with EPA and other states to build upon their existing initiatives to achieve these emission reductions in a cost-effective manner. If a state refuses to revise its SIP, EPA can promulgate a federal implementation plan (FIP) for the state, authority that EPA has exercised in other contexts.

Some of this may sound familiar to some of you. Combating Climate Change with Section 115 of the Clean Air Act: Law and Policy Rationales reflects a  significant enhancement of a 2016 article, which many of the book’s authors contributed to, and which received a good deal of attention, that examined how EPA’s international air pollution authority could help achieve the country’s climate change goals at that time. The book’s updated analysis makes important adjustments to the thinking in that article to reflect all that has happened in the intervening years – including developments in the UNFCCC, the U.S. Supreme Court, and U.S. politics. The book’s chapters dive deeper into the key implementation issues that would face EPA and the states, and they explore ways to address the various legal and policy issues that would arise – including critical questions of judicial review in an evolving doctrinal landscape marked by uncertainty around the future of Chevron deference and the shadow cast by the “major questions” doctrine. But the book’s chapters present solid answers to these questions, and demonstrate that the statutory language is robust enough to empower EPA and the states to reduce U.S. emissions in line with our international commitments, while providing sufficient guardrails to constrain and direct agency discretion.

The Clean Air Act’s international air pollution provision is not the only existing authority the Biden administration can, should, or will rely on to address climate change. But it is a powerful one. And while the idea of relying on the provision may seem novel to some, it is not new. Former EPA General Counsel Roger Martella wrote one of the first articles advocating the approach back in 2009. (Another former EPA GC, and ACOEL fellow, Jon Cannon, is one of the contributors to the book.) The provision provides EPA and the states with the authority, and the flexibility, to address GHG emissions in an efficient and equitable manner. It should be on the table when, early in 2021, the U.S. rejoins the Paris Agreement, and the federal government recommits to ambitious climate action.   

To read a summary of the book, go here.

To purchase the book, go here. You may use the discount code MBRG35 for a 35% discount on hard cover copies. The discount code does not apply to e-books, which are also available, and a lot less expensive.

For additional materials on the International Air Pollution provision, go to the Sabin Center’s Section 115 resources page, here.

HAS THE TIME COME FOR A GREENHOUSE GAS NAAQS? LAW STUDENTS WILL ARGUE THE ISSSUE AT THE 33RD ANNUAL NATIONAL ENVIRONMENTAL MOOT COURT COMPETITION

Posted on November 19, 2020 by Karl Coplan

One thing that is clear from the 2020 election: the Senate will remain closely divided, with slim majority control to be determined by the two January Senate runoff races in Georgia. President Elect Biden has announced the most aggressive climate policies of any major party climate candidate ever, but the prospects of achieving these goals through climate legislation are slim as long as Republicans maintain majority control or a bare Democratic majority lacks the votes to eliminate the filibuster (or to vote in strong greenhouse gas emissions controls). The likely continued lack of legislative action on climate is refocusing attention on measures EPA can take under existing Clean Air Act (CAA) authorities.

One potent EPA option in the Clean Air Act toolkit is the authority to add greenhouse gases  (GHGs) to the CAA § 108 list of criteria pollutants. A pollutant is eligible for listing as a criteria pollutant once EPA has found that that the pollutant “may reasonably be anticipated to endanger public health or welfare.” EPA made that finding for GHGs back in December, 2009, when the Obama administration invoked CAA § 202 to regulate new motor vehicle GHG emissions based on the identical endangerment criteria of § 202. Environmental groups 350.org and Center for Biological Diversity filed a petition with EPA, also in December 2009, demanding that EPA list GHGs as a criteria pollutant. But the Obama administration chose not to invoke the NAAQS program for GHGs, fearing the severe regulatory repercussions. Once EPA lists a criteria pollutant, it must propose primary and secondary National Ambient Air Quality Standards (NAAQS) within twelve months (§§108, 109), and establish final NAAQS within another ninety days (§ 109). Promulgation of final primary NAAQS triggers a three-year compliance deadline for states – after which States risk loss of all federal highway funding and EPA imposition of emissions control measures within the State. And since no State could realistically meet this three-year deadline for a climate protective GHG NAAQS, adoption of the primary NAAQS would be a recipe for draconian federal enforcement measures.

Fearing this regulatory morass, the Obama administration chose to put the U.S. on track to meet its Paris Agreement climate goals through a combination of motor vehicle mileage standards, new source standards, and invocation of CAA § 111(d) authority to require States to develop Best Systems of Emissions Reductions standards for existing power plants through a combination of emissions reductions, renewable energy development, and regional trading systems. EPA called this the “Clean Power Plan.” EPA’s § 111(d) authority for the Clean Power Plan was sufficiently uncertain that the Supreme Court took the unprecedented action of enjoining the implementation and enforcement of the Clean Power Plan before any judicial challenge actually reached the Court. The Trump administration withdrew the Clean Power Plan in favor of much weaker plant-by-plant GHG emissions controls.

Unlike § 111(d) authority, EPA’s authority to list GHGs as a criteria pollutant could not be more textually clear. Indeed, the phrasing of § 108 seems to make a pollutant’s listing mandatory upon a finding of endangerment, directing that EPA “shall” list, as a criteria pollutant, a pollutant that “cause[s] or contribute[s] to air pollution which may reasonably be anticipated to endanger public health or welfare.” 

A 1976 Second Circuit case, NRDC v Train, held that § 108 imposes a mandatory obligation on EPA to list a pollutant as a criteria pollutant for the CAA Title I NAAQS program once it has made a determination that pollutant may present an endangerment to public health or welfare under the Title II provisions governing motor vehicle emissions. The facts of Train are highly analogous -- EPA made the endangerment finding for lead additives in fuel but had not planned to list lead as a criteria pollutant. Until the court ordered it to do so.

Would a court apply Train to order EPA to list GHGs as a criteria pollutant subject to the NAAQS? What if a hypothetical 2009 petitioner for a GHG NAAQS tried to enforce that theory in court? That’s the question presented in the 33rd running of the 2021 Jeffrey G. Miller National Environmental Law Moot Court Competition, to be conducted by the Elisabeth Haub School of Law at Pace University in February and March, 2021. You can view the problem here. Due to COVID restrictions, all rounds up to the Final Round will be conducted virtually this year. This may be a climate blessing in disguise, as running the competition as a virtual event will vastly reduce the travel related carbon emissions associated with the competition. This year’s virtual event may provide a template for the more climate friendly moot court competitions of the future. Licensed attorneys can sign up to judge here (CLE credit is available).

An Uncommon Dialogue: All We are Saying, is Give Peace a Chance

Posted on October 22, 2020 by Richard Glick

Those of a certain age will remember this plaintive, kumbaya-seeking line from John Lennon’s Vietnam War protest song.  Naïve, perhaps, but an Uncommon Dialogue process initiated thorough Stanford’s Woods Institute for the Environment, expresses a similar hope for peaceful solutions among the warring parties in hydroelectric regulatory processes.  A two and a half year effort has resulted in execution of a Joint Statement of Collaboration on U.S. Hydropower: Climate Solution and Conservation Challenge.  Signatories include an extraordinary collection of national environmental and industry groups.

The impetus for the Joint Statement is the urgent need to address climate change by promoting non-greenhouse gas emitting, renewable energy resources.  Hydroelectric power meets these criteria, and has the added benefit of storing energy capacity that is readily dispatchable, as with a battery, making it an ideal companion to other renewable resources when the sun doesn’t shine and the wind doesn’t blow.  The central problem, of course, is that dam building across America has often resulted in decimation of native and anadromous fish runs.  Mitigating or reversing damage to rivers is a formidable challenge, impossible in some cases, but feasible in others.

The Joint Statement notes that there are about 90,000 dams in the U.S., but only 2,500 produce electricity.  About 30% of existing FERC-licensed hydropower facilities will be up for relicensing over the next decade.  These facts led the participants to focus on three main policy directions in the Joint Statement:

  • Rehabilitating both powered and non-powered dams to improve safety, increase climate resilience, and mitigate environmental impacts;  
  • Retrofitting powered dams and adding generation at non-powered dams to increase renewable generation; developing pumped storage capacity at existing dams; and enhancing dam and reservoir operations for water supply, fish passage, flood mitigation, and grid integration of solar and wind; and
  • Removing dams that no longer provide benefits to society, have safety issues that cannot be cost-effectively mitigated, or have adverse environmental impacts that cannot be effectively addressed.

A 60-day period now begins, during which signatories to the Joint Statement will reach out for comments from a broader range of stakeholders, including state and tribal governments.

Many of us practicing environmental, natural resources and energy law chose those fields because we cared about the environment and believed that economic growth and conservation values could, and indeed must, coexist.  While only 7% of the nation’s electricity output now comes from hydropower, this old technology could play a much bigger role if we maximize the benefits and minimize the harms through collaboration based on trust, rather than endless litigation.  The climate change crisis demands that we try, and this Joint Statement is a big step in the right direction.

“Purple Haze … Is It Tomorrow, Or Just the End of Time?”

Posted on September 14, 2020 by Samuel I. Gutter

We are in Yosemite, midway through our month-long RV trip out west.  We planned this trip long before the world heard of Covid-19, but decided it was the lowest risk vacation we might take in 2020, so off we went.  After two weeks of hot sun and blue skies in the stunningly beautiful national and state parks of Southern Utah, we headed toward our planned stops in California and Oregon.  And then we hit the wall – the fire wall.

Coming into California through Death Valley and driving north, the normally majestic Sierra Nevada range on our left was barely visible.  At our next stop in June Lake, air quality was determined by the direction of the wind.  When the wind blew from the west, the mountains disappeared and the smell of smoke was everywhere.  There was no hiking – all National Forests in California are closed, with stringent fines for violators, out of concern that even the stray cigarette butt could add to the conflagration.  Further north, huge areas of Oregon that have never experienced wide-scale fires are burning, with devastating consequences.

Driving west into Yosemite on State highway 120, we had to be escorted by Park Service vehicles through areas where local fires are burning trees right up to the edge of the road.  Now at midday, the sky is Martian-orange with heavy smoke from the Creek Fire.  The scene is eerie and apocalyptic.

So instead of heading north to California and Oregon as we had planned, we’re backtracking to Utah and Arizona, before returning home to the East Coast.  For us, it’s a route change and an inconvenience.  For many others, it’s a human and economic tragedy on top of the unprecedent crush of the pandemic.

And it’s an environmental disaster.  The embedded map is from the U.S. government’s AirNow site, www.airnow.gov, and shows unhealthy and dangerous air quality blanketing California and Oregon.  Make no mistake; the fires are the direct consequence of climate change.  Standing among the embers in Oroville, California Governor Newsom said, “This is a climate damn emergency.  This is real and it’s happening.”  www.latimes.com/california/story/2020-09-11/california-wildfires-climate-change-gavin-newsom-trump

To those of us who have spent decades involved in clean air regulations, what is happening now on the West Coast viscerally dwarfs the impacts from controlled stationary and mobile sources.  While hopefully transient in time, this seems worse than any day in the history of Southern California’s smog alerts in the latter half of the last century.  I don’t mean to belittle the long-term importance of emission regulations – they are essential to public health and welfare – but this tragedy is a stark reminder that unless we vigorously deal with global climate change, we will continue to experience very real and immediate consequences, including public health and safety emergencies, on an immense scale.

Implementing the CLCPA: New York is Amping up the Electrification of its Transportation Sector

Posted on August 26, 2020 by Gail Port

In September 2019, I wrote about the banner year it had been for the environment and environmental legislation in New York, particularly with the passage of the Climate Leadership and Community Protection Act (CLCPA) which was signed into law in July 2019.  The CLCPA sets a bold, aggressive, statewide framework to reduce net greenhouse gas emissions to zero by 2050—a very high bar for state-led action to address climate change.

To keep the state on track to achieve its goals, the CLCPA called for the creation of two significant decision-making bodies. The first, the Climate Action Council, is in charge of developing the scoping plan for New York’s economy to achieve the State’s bold clean energy and climate agenda. The second is the Climate Justice Working Group, which will guide the state in carrying out its ambitious climate targets by ensuring that the environmental justice provisions of the CLCPA—such as clean energy spending, green jobs, and affordable resources—are enforced and distributed equitably to low-income communities of color. Appointees to both of these bodies have been made and meetings have been held. The Advisory Panels called for in the CLCPA, which consist of representatives from public, private, academic, environmental and community groups covering six economic sectors areas—transportation, energy efficiency and housing, agriculture and forestry, land use and local government, energy intensive and trade-exposed industries, and power generation—were filled on August 24th.  Members of the Just Transition Working Group, which is charged with helping to ensure NY’s workforce is prepared for and will benefit from the transition to renewable energy, were also appointed on that date. 

Governor Cuomo has taken other steps to meet the CLCPA’s ambitious goals, including,

While guiding New York through the difficult and challenging process to flattening the enormous curve of COVID-19 cases, Governor Cuomo continued to work on advancing the CLCPA’s ambitious goals and in mid-July announced a nation-leading initiative to expand electric vehicle use to help combat climate change.  Our Governor prudently recognizes that well after the Coronavirus is no longer a threat, the existential threat of climate change will still be with us. 

The program to accelerate New York’s transition to cleaner mobility is expected to stimulate $1.5 billion in new investments and to provide more than $2.6 billion in consumer benefits and economic opportunities (translation: lots of green jobs).   The package of initiatives to electrify New York’s transportation sector includes: (i) an “EV Make Ready” initiative to accelerate the deployment of more than 50,000 charging stations by 2025 and (ii) $206 million set aside to benefit low-income and disadvantaged communities, which includes $85 million to fund three innovative clean transportation prize competitions.

Back in January 2020, the New York Department of Public Service (“DPS”) released a white paper proposing a bold statewide electric vehicle charging program. That program, which was alluded to in the Governor’s State of the State, is intended to spur the installation of infrastructure to support widespread electric vehicle deployment throughout the state. It is estimated that New York needs about 850,000 electric vehicles on the road to cut pollution from transportation to meet the clean car Zero Emission Vehicle (ZEV) standards. The state will need over 100,000 public and workplace charging stations and over 4,000 Direct Current Fast Charging (DCFC) stations to support that number of electric vehicles.

EV Make Ready Program

The EV Make-Ready Program will be funded by investor-owned utilities in New York State and creates a cost-sharing program that incentivizes utilities and charging station developers to site electric vehicle charging infrastructure in places that will provide a maximal benefit to consumers. Specifically, this program will provide funding to create more than 50,000 level 2 charging plugs, which are capable of charging a vehicle at least twice as fast as a standard wall outlet. Providing drivers with assessable charging stations is the key to encouraging the wide-spread adoption of electric vehicles. Given that the transportation sector is responsible for the largest contribution to greenhouse gas pollution in the U.S., with those emissions increasing more than any other sector over the last 30 years, coupled with the fear of many New Yorkers of using crowded mass transit options during the Coronavirus pandemic, this is clearly a step in the right direction. 

Competitions

Solving onerous problems requires innovative thinking and the creation of incentives to foster that creative thinking often can be a winning strategy. This program includes $85 million to fund three competitions to support clean transportation options to benefit lower socio-economic communities. The three competitions are:

  1. the Environmental Justice Community Clean Vehicles Transformation Prize, a $40 million program focused on reducing harmful air pollution in frontline communities and creating transportation “green zones” across New York State;
  2. the Clean Personal Mobility Prize, a $25 million program soliciting innovative and high impact approaches that enable access to clean transportation services for disadvantaged and underserved communities; and
  3. the Clean Medium- and Heavy-Duty Vehicle Innovation Prize, a $20 million program designed to achieve direct benefits; allow concrete investigation of opportunities, costs, and benefits; and prove out innovative and high-impact approaches to medium- and heavy-duty electrification that can be replicated at scale, including for “last-mile” solutions, one of the fastest growing emissions sources in this class of vehicles. 

2019 was off to a good start in New York with much promise on how we planned to confront the threat of climate change. Then came 2020, the year we stayed home, changed the way we live (perhaps forever), lost over 172,000 US citizens to COVID-19, wore masks, and saw large-scale protests and long overdue calls for racial and social justice.  I for one hope that 2020 will also be remembered as a defining time in the fight against climate change—at least in New York.

BLM Rescission of the Methane Waste Prevention Rule Has Been Vacated; Two Thoughts About the Implications

Posted on August 12, 2020 by Seth Jaffe

Last month, Judge Yvonne Gonzalez Rogers vacated BLM’s rescission of the 2016 methane “Waste Prevention Rule.”  Although Judge Rogers found many flaws in the rescission rule, I think that two are key. 

The first is the Court’s rejection, under Chevron, of BLM’s limitation of the definition of “waste” to economic waste.  I think that the Court’s holding is correct, but I don’t think it’s necessarily even a Chevron issue.

After Justice Gorsuch shocked many readers by holding that the plain language of the Civil Rights Act required protection of transgender people, environmental lawyers speculated whether Justice Gorsuch’s passion for plain language readings might benefit the environmental side in any pending environmental disputes.  I have questioned such hopes, but I think that the Waste Prevention Rule case may not be a bad candidate.  “Waste” may not be defined in the statute and there may be uncertainty in precisely what it does mean, but I don’t that there is any plausible understanding of the word that limits its meaning to “economic waste.”  Venting or flaring gas into the air, damaging the air without creating any benefits, has to fit within the definition of waste.

Justice Gorsuch, are you listening?

The second important issue is the Court’s rejection of BLM’s redefinition of the “social cost of methane.”  This is just one of many occasions in which the Trump administration has attempted to change Obama administration positions.  To date – and including this case – the Trump administration has had a difficult time enacting its policy preferences when those policies are interwoven with scientific questions.  Here, President Trump issued Executive Order 13783, which disbanded the Interagency Working Group and withdrew all of the documents created by the IWG, including its social cost of methane metric, which included global costs.  That metric had been intensively vetted and was subject to peer review.  In response to EO 13783, BLM withdrew the global social cost of carbon approach and replaced it within one that looked only at the domestic cost, an approach that was not subject to peer review and has been roundly criticized by economists.

Judge Rogers was not amused.

While Executive Order 13783 may have withdrawn the relevant technical support documents for political reasons, it did not and could not erase the scientific and economic facts that formed the foundation for that estimate—facts that BLM now ignores.  [T]he President did not alter by fiat what constitutes the best available science.  (My emphasis, because this may be the single best sentence written to date summarizing this administration’s approach to environmental regulation.)

Notwithstanding my views of this administration, I’m not so confident about this part of the opinion.  I can certainly imagine conservative judges concluding that whether the U.S. government should care about the global, as opposed to domestic, cost of methane is more of a policy choice than a scientific question.

There’s little doubt though, that this is not the last case in which courts are going to have to wrestle with this thorny problem.

Hats Off to the Green New Dealers

Posted on August 10, 2020 by Leslie Carothers

Watching the U.S. government botch the response to the pandemic may deepen pessimism about our prospects for meaningful action to prevent catastrophic climate change. But multiple failures in foresight and management of a simpler crisis may well help make the case for serious national climate protection policies. In fact, strategies for climate action are gaining momentum. And environmental lawyers are stepping up to help.

Two developments in late 2018 created new pressure for action. The Intergovernmental Panel on Climate Change (IPCC) Special Report on Global Warming of 1.5 degrees C (October 2018) warned that avoiding increasingly severe impacts requires achieving net zero emissions by 2050 and reductions of 45% by 2030. Soon after, young activists led by the Sunrise Movement announced the Green New Deal. Proposed House Resolution 109 (Feb. 7, 2019) calls for a 10 year “national mobilization” to meet 100% of the U.S. power demand through “clean, renewable, and zero emission sources,” and to establish a host of programs to address economic weakness and inequality through investments in priorities like infrastructure, universal health insurance, and even a jobs guarantee. Speaker Nancy Pelosi was cool to the “Green Dream,“ and Republicans dismissed the Green New Deal as a socialist takeover. But despite its many critics and its daunting ambition, the Green New Deal has spurred an emerging climate policy consensus on the left and beyond.

Many civil society organizations representing environmental groups, the labor movement, and front-line environmental justice communities harmed by pollution have produced new reports and platforms influenced by the Green New Deal. For example, the U.S. Climate Action Network, a coalition of environmental organizations, issued a Vision for Equitable Climate Action that presents a concise statement of climate policy solutions from a consensus building initiative involving 100 groups. An analysis of this agenda and others by David Roberts in Vox stresses their common focus on achieving the goal of net zero emissions by 2050 by similar means: stringent sector-based energy standards; large scale public investments in efficiency, technology, and infrastructure to reduce emissions and create good jobs; and environmental justice, a commitment not only to protect disadvantaged communities from excess pollution but also to support a just transition for fossil fuel industry workers displaced by the transition to a clean energy economy.

The Democratic members of the House Select Committee on the Climate Crisis established by the Speaker issued a 540-page report in June with comprehensive recommendations for legislative committees. That report sets the same major priorities of setting sector standards, public investment, and environmental justice, with much more elaboration of the details. Neither the Climate Action Network report nor the House Committee Democrats reject the use of market mechanisms to set a price on carbon, but market tools are not central to their agendas. What is clear is that climate strategies combining energy use standards with big public investment to rebuild our infrastructure, generate good jobs, and protect vulnerable communities have won wide acceptance by environmental organizations and the broader Democratic Party, now including the Biden campaign.

The Biden plan announced in July would set technology neutral clean energy standards for the power sector that could allow trading of credits among sources, while pledging major infrastructure investments and greater monitoring of pollution sources to protect disadvantaged communities. His plan calls for a transition to 100% green energy in the power sector by 2035, a national net zero emissions goal by 2050, and $2 trillion in federal investments in clean energy infrastructure, procurement, and research over 4 years. The Democrats’ call for massive federal spending on decarbonization of the economy akin to the original New Deal looks less extreme following a Democratic primary campaign spotlighting decades of wage stagnation amid exploding health and housing costs for the majority of Americans. Today’s pandemic and the resulting economic damage and unemployment have only strengthened the case for more federal spending to revive a long underperforming economy.

In another important policy development, the Climate Leadership Council, the leading proponent of a revenue neutral carbon tax with revenue returned to citizens to offset higher energy costs, issued a Bipartisan Climate Roadmap in February, 2020. The updated plan, narrowed from earlier versions to focus on stationary sources of carbon dioxide and stripped of non-starters like liability protection for fossil fuel companies, estimated that it would reduce U.S. greenhouse gas emissions by 57% by 2035, “unlock” $1.4 trillion in capital investment, presumably private, and create 1.6 million jobs. Initially developed by respected Republican elders James Baker and George Shultz, the plan has many high-powered endorsers from diverse sectors and retired public officials from both political parties. Thorny issues like how this plan can intersect with existing state emission trading and renewable energy portfolio standards remain. But the bigger question is whether this ambitious market-oriented plan would finally bring many congressional Republicans to the table to work on a national law. It is noteworthy that the U.S. Chamber of Commerce, mirabile dictu, issued a new statement of climate policy priorities last year, concluding in bold type that “inaction is not an option.” Can the Republican Party be far behind? We shall see.

It’s great to see lawyers advancing concrete climate response actions, too. The report on Legal Pathways for Deep Decarbonization in the United States (2018) edited by ACOEL members and climate experts John Dernbach and Michael Gerrard offers 25 chapters by lawyers who donated their time. (The report and a short summary document are available from the publisher, the Environmental Law Institute). The editors have now recruited 24 law firms and legal clinics to draft model laws implementing the ideas or serve as peer reviewers. More volunteers are still needed. Here is the link to the recently launched website on the project where the work will be published. If readers have interest and time to contribute your skills to this fine project, check it out.

Nearly 30 years ago, the U.S. Senate ratified the 1992 United Nations Framework Climate Convention calling for national efforts to work toward stabilizing greenhouse gas emissions at 1990 levels. Those of us dismayed by our national failures since then should applaud young activists for transforming the debate with the Green New Deal’s call for urgency, equity, and economic revival to meet the challenge of the climate crisis. It’s about time.

The “Next” Pandemic : How States Can Avert It.

Posted on July 10, 2020 by Nicholas Robinson

The “next” pandemic in the USA is not a question of “if” but of “when.” Just as States scramble to win or shore up their victories against  COVID-19, a second front appears. Can the USA win a two-front war with microbes?

Two parallel infections now afflict separately humans and pigs. A new strain of the H1N1 swine flu virus, which killed 285,000 people when it merged in 2009, is now spreading among humans working on pig farms in China. The National Academy of Science reported this new threat in June  ( https://www.pnas.org/content/early/2020/06/23/1921186117). How can the risks to humans from this new virus, G4 EA H1N1, be contained? This human infection is emerging at the same time that  the world experiences the raging animal pandemic of African swine fever virus (AFS). AFS is forcing Asians to kill their domestic pig herds. AFS is now in 17 European nations and threatens to spread across all continents. No one knows now how to contain the AFS Pandemic among animals.

Once early surveillance detects such threats, what  precautions are essential to avert the “next” pandemic? Much is at stake. Since February 18, 2020, when ACOEL published its first Blog on COVID-19, (at http://www.acoel.org/post/2020/02/18/CORONAVIRUS-We-Thought-We-Knew-Ye!-The-Wuhan-Potential-Pandemic.aspx ), the virus SARS-CoV-2  has stolen lives and livelihoods. Its impact has vastly exceeded that of the costly HIV-1/AIDs pandemic, or the 2009 H1N1 epidemic. 

Like the plague, these diseases, along with SARS, EBOLA or West Nile virus, are the result of infections  that spill over from the wild animal kingdom, transmitting disease to  humans. This is known as zoonosis. HIV-1/AIDS came from primates in Africa, and since 1983 has killed 38 million humans, and currently sickens 36.9 million persons.  When COVID-19 first appeared, it was thought to have come via Pangolins, but now is linked to bats (Rhinolophus), which live in habitats across SE Asia and China. Earth holds perhaps 700,000 different viruses, most not yet discovered.  Of the 335 human diseases identified between 1960 and 2004, 61% are of zoonotic origin, and 72 % of all recent diseases are zoonotic.

The frequency of human infections from zoonotic diseases is increasing. Illnesses like Denge, chikungunya, or Zika have shown up in the Americas, and will be joined by others in the future. In 1999, West Nile virus, transmitted to humans by mosquitoes, made its first appearance in the Western Hemisphere in New York, after a drought followed by heavy rains. Since then, over 1,600 people have died of the disease.

Simultaneously while coping with COVID-19, it is evident that governments need to organize to avert a new zoonotic infections. Some are already here, others are coming. For example, Lyme Disease is a continuing threat. Other novel microbes can arrive quickly. Locally infected people travel, and airplanes bring the diseases to distant lands. It took months for rats to bring Bubonic Plague, the medieval “Black Death,” to Europe on sailing ships. Today a virus jumps continents in a few hours. As the economy restarts after COVID-19, governments will need new regimes of phyto-sanitary measures for trade, transportation, and tourism. 

Zoonotic diseases are on the rise for several reasons. Escalating declines in  biodiversity are the root cause. Biodiversity loss is a health risk multiplier.  As populations of species thin, many to the point of extinction, the viruses and bacteria that they host spread out looking for new hosts. Deforestation, and other unsustainable developments, disrupt habitats for many species, which in turn shed their viruses. A zoonotic disease, whether bacteria like Lyme Disease, or a novel coronavirus like SARS, then finds new animal hosts, including eventually human beings. Building new roads or suburban subdivisions fragment the landscape,  severs  migration corridors, and disrupt ecosystems, thereby exposing more humans to zoonotic microbes. Since humans interface with these disturbed natural  habitats,  their likelihood of being infected increases. 

Climate Change impacts are exacerbating biodiversity loss and augment humanity’s interface with zoonotic infections. Extreme weather events cause a cascade of other effects that influence disease. Heat and droughts create dry conditions, providing fuel for forest fires that end up fragmenting forests and driving wildlife closer to humans. Increased rainfall and humidity provide favorable conditions for mosquitoes to breed and for adult mosquitoes to survive.

If society waits for hospitals and health departments to cope with a zoonotic disease, it is too late. The most effective way to prevent or minimize zoonotic spillovers from animals to humans is to keep all animals healthy. Doing so requires greater attention to veterinary science and the health of domesticated animals and agriculture.  For environmental law, it means enhancing nature conservation programs that sustain ecosystem health, everywhere. We reduce the likelihood of zoonotic spillovers by sustaining resilient ecosystems in wetlands, in suburbs, in rural countryside, as well as in parks and wilderness. 

An inter-agency, or “whole of government” collaboration, is required. Such collaboration runs against the grain. We promote agriculture as commerce, with insufficient attention to veterinary health of farmed  animals. The pandemic of AFS has destroyed the pork industry in China and impacts food supplies worldwide. Animal health is treated apart from human health. Humans and animals exchange TB, zoonotic tuberculosis. Developed economies tend to forget that the well-being of all plants, animals and humans is intrinsically connected, and profoundly affect by human activity. The reality is that there is only “One Health.”

The World Health Organization (WHO) and Food & Agricultural Organization (FAO) endorse a “One Health” approach. The US Centers for Disease Control does too. Consensus favoring a “One Heath” approach has grown, but has been too marginal to make much of a difference. The  Wildlife Conservation Society and German government’s  2019 “Berlin Principles,”  or the 2017 UN Environment Assembly recommendations, and proposals from the EcoHealth Alliance, have all proposed  the “One Health” approach as essential to successfully manage risks of zoonosis.

To date, however, none of the “One Health” advocates  translate this policy construct  into meaningful action. At most they urge that veterinarians and public health  agencies should cooperate. In truth, cooperation between veterinarians, public health agencies, and nature conservation authorities, whether locally or globally through the International Union for the Conservation of Nature (IUCN), today does not exist. All these entities largely ignore the tools that environmental law offers to effectuate the “One Health” approach.

To avert the spillover of viruses or bacteria from wild animals, it is essential to keep natural habitats healthy.  At the outset, “One Health” should formally recognize the conservation of wild nature as its foundation. Conservation is too often discounted or deemed merely an amenity. Yet if governments at all levels fail to maintain healthy wild habitats, they invite spillovers of virus and bacteria seeking human hosts. Human incursions are increasing disrupting habitat in the forests of Africa, Southeast Asia the Amazon, or the woods of suburban North America. Disease spillovers increase in turn.

Sustaining biodiversity requires maintaining intact and functional ecosystems. These are the fundamental infrastructure for all of life, our health and our socio-economic well-being. Stemming current losses in biodiversity is the front line for protecting human health. Governments need to mainline biodiversity conservation to manage zoonotic disease risks.  

Virtually all governments neglect these tasks. Government budgets reflect an ignorance about the measures that prevent zoonotic spillovers. Budgets invariably assign to Departments of Health more than twice the resources provided for nature conservation and they allocate exponentially more when funding  military or police security.  COVID-19 reveals the folly of this imbalance.  Zoonotic diseases are non-traditional security threats, causing incalculable human and economic loss. The upshot: “Pay me now or pay me later.”

To avert the “next” pandemic, governments can deploy  a number of environmental laws to implement  a “One Health” approach. Environmental laws provide a suite of policies and best practices exists to avert the “next” pandemic. Given what COVID-19 has taught us, there is some urgency in deploying these tools. Would it not be irresponsible to fail to do so?” Will we? The war on COVID-19 has so far precluded debate about preparing to avert the “next” pandemic.  We face  the risk of “business as usual,” and choosing not to learn, as happened after the experience of SARS in 2003-2004. 

Since the “next” zoonotic spillover is underway, it is essential to actively manage the interface between humans and animals. Surveillance of emerging diseases requires collecting data constantly, as a priority. To ensure that warnings from this surveillance are  acted upon,  each level of government needs to provide a strategic, high level coordinating council or executive body to oversee these efforts. Many governments do so now (See the 2019 Trilateral Guidance by WHO, FAO, OiE, at http://www.fao.org/3/ca2942en/ca2942en.pdf).  The USA briefly had such a strategic unit, begun after the Ebola crisis by the Obama Administration. The White House Directorate for Global Heath and Security in the National Security Council addressed these non-traditional security issues.  President Trump discontinued this unit. While the President’s Council on Environmental Quality (CEQ) could be tasked with these coordinating roles, CEQ’s weakened capacity means that Congress and future Presidents will need to do even more in order to coordinate all federal agencies to protect domestic health. 

Every State government should have a gubernatorial body to prepare for and coordinate zoonotic risk management. Such bodies exist already in some cases. For example, New York State can and should activate the Governor’s Council of Environmental Advisors, as is authorized under Article 7 of the Environmental Conservation Law. A statutory body is needed to prevent a future executive from neglecting this strategic cockpit for “One Health.” Where no such authority exists, the legislature should provide for one.  

A top priority for any executive coordinating body will be to address how to manage zoonotic risks while addressing the impacts climate change. For example, New York’s Climate Leadership & Community Protection Act of June 2019 provides tools that could be used to provide “One Heath” safeguards. In §75-0109 of the Environmental Conservation Law, this Act provides for off-setting carbon emissions through extending forests and other ecosystems to enhance the photosynthesis that removes carbon dioxide from the atmosphere. The same healthy habitats serve to avert zoonosis spillover. 

The same Act amended New York State’s Community Risk And Resilience Act in ways that directly also could be deployed to protect against zoonotic diseases.  § 17-A mandates that the Department of Environmental Conservation (DEC)  address impacts on public health and species and to identify the most ”significant climate-related risks,” along with measures to mitigate those risks. § 17-B requires applicants for all permits to identify physical climate-risks and how to handle them and authorizes DEC to mandate mitigation measures. Increased disease spillovers are climate risks. 

Environmental Impact Assessment (EIA) is another readily available tool. The data from environmental assessments can be harvested to identify zoonotic risks. Although President Trump is currently seeking to limit the role of the National Environmental Policy Act, the NEPA Regulations can and should address potential environmental impacts from zoonotic risks. Half the States also have their “little NEPAs” and assess zoonotic risks. The California Environmental Quality Act (CEQA) and the New York State Environmental Quality Review Act (SEQRA) are prime examples. They require all state and local governmental agencies to make a holistic evaluation of potential environmental impacts and risks. EIA effectively enables a “One Health” approach. Beyond collecting data on ecological zoonotic risks, EIA can identify options for sustaining health of ecosystems to contain spillovers of bacteria and viruses, identify the cumulative impacts exacerbating biodiversity loss, and identify how to fragmentation of intact ecosystems and restore migration corridors for species.

State building codes also serve a role to contain the spread of viruses within buildings.  Codes can be revised to mandate “healthy buildings.” For example, ventilation and filtration systems should be retrofitted to reduce risk of airborne exposures to communicable diseases. See Joseph G. Allen and Joseph D. Macomber, Healthy Buildings: How Indoor Spaces Drive Performance and Productivity (Harvard University Press, 2020).  

Ultimately, “One Health” is all about sustaining biodiversity. The federal systems of National Parks, Wildlife Refuges and National Forests provide opportunities to enhance stewardship of natural areas. State park systems, and state wetlands laws, do the same. Zoning and land use laws at the state and local level also can provide for care of natural systems to manage zoonotic risks. Municipal land use laws can provide, for example, for migration corridors through overlay zones, or obliging property owners to control mosquito breeding, all to minimize infection risks. When ecological habitats remain undisturbed, the bacteria and viruses in wild nature tend to remain relatively stable in their natural hosts, which dilutes the chances of spillovers to humans.

Finally, the federal government and the states can establish and enhance phyto-sanitary safeguards for their agricultural sectors, and control animal products  imported into or through the states. Since 1947, the General Agreement on Tariffs and Trade (GATT) has respected the rights of countries to impose such safeguards. California has done so for many years to protect its agricultural sector. Theses phyto-sanitary norms need to be expanded robustly to address zoonotic risks. Precautions to prevent microbes entering in our airports and at State borders can be established.   

Once a “One Health” approach is made operational, many state agencies will discover how they help  avert the “next” pandemic. There are key roles for agencies regulating agriculture, produce markets, public health, environmental protection, forestry, wildlife conservation, transportation, and other State agencies are key parts of the “One Health” approach. States have substantial expertise in their universities, organizations like the Wildlife Conservation Society, as well as across their public health sectors. Each state and local agency needs to undertake continuous biodiversity-related heath surveillance in order to detect and manage emerging zoonotic disease spillovers to avert health emergencies. Each can be alert to end habitat fragmentation, and can provide buffer zones that manage disease-risk from human interfaces with animals in shared ecosystems.

Even in the middle of this COVID-19 Pandemic, governments need to be building back better, to be anticipating and preparing for the “next” pandemic. As Ben Franklin said in 1736, “An Ounce of Prevention Is Worth A Pound of Cure.” States cannot wait for Washington, D.C. They each must build their own resilience. Leadership from the States can pilot the nation toward the security of “One Health.”

A New Map of Climate Resilient Landscapes

Posted on July 1, 2020 by Philip Tabas

After 12 years of work by more than 150 Nature Conservancy scientists we now have an interactive map of resilient lands that can withstand climate impacts AND protect biodiversity. Using ground-breaking science, conservationists identified a network of special places across the U.S. that have unique topographies, geologies, soils, temperatures and other characteristics that, if properly protected, could provide safe havens for species migrating away from growing climate threats.

We know that plant and animal species are disappearing at an alarming rate as their habitats are altered or destroyed by warmer temperatures, increased flooding and other impacts from the changing climate. One-third of animal and plant species could face extinction in the next 50 years due to climate change, according to a study from scientists at the University of Arizona. We know too that nature is on the move to escape these climate impacts. For example, in North America, studies show that species are shifting their ranges an average of 11 miles north and 36 feet in elevation each decade. Many species are approaching – or have already reached – the limit of where they can go to find hospitable climates. Research has also shown that more than half – nearly 60% – of US lands and waters are fragmented by human development, blocking species movement and preventing species from finding new and more hospitable habitat. 

The Resilient and Connected Network Map (see: http://maps.tnc.org/resilientland/) for the contiguous U.S. provides a new way to prioritize lands for land conservation action. This model offers a roadmap for preserving a network of resilient sites and connecting corridors that could sustain North America's natural diversity by allowing species to adapt to and thrive in the face of climate impacts. By protecting the most resilient landscapes, conservationists hope to double their environmental impact by 2050.

By providing safe havens for diverse species, this network of lands could also protect important sources of fertile soils, clean drinking water, economic resources and other vital services people rely on for survival. Conserving such a resilient network has large benefits for both people as well as nature. For example, resilient areas identified in Eastern North America not only serve as home to more than 30,000 species of plants and animals but also support a $25 billion outdoor recreation industry.  Additionally, protecting these resilient areas would secure over 66 million acres of high-value source water supply land, provide 1.8 billion tons of oxygen annually, and mitigate over 1.3 million tons of air pollution avoiding $913 million in human health costs. Resilient lands could also capture and store higher amounts of carbon than other areas and thus help offset greenhouse gas emissions; in the Eastern US, these lands could store an estimated 3.9 billion tons of carbon.

Of the total acreage represented in the network, approximately 301 million acres are already in some form of protected status. To protect the remainder, we will have to protect as much land as we have protected in the last 100 years of previous land conservation action. Although challenging, if government agencies, land trusts, the private sector and others can be persuaded to use this new science to direct conservation action and resources to these most important lands, it can maximize the impact of conservation funding and actions. Recent Senate passage of the Great American Outdoors Act or "GAOA” which would fully and permanently fund the Land and Water Conservation Fund with $900 million annually for the first time since the program's creation in 1964, gives some hope that we will be able to meet this challenge.

By conserving these environmental strongholds, we can protect the lands best-equipped to sustain threatened species -- and mitigate the adverse effects of climate change in the process. Saving nature from the effects of climate change might seem to be a daunting task. But, by focusing on conserving naturally resilient lands, we can keep the planet habitable for a vast array of species, including our own.

Schrödinger’s Climate

Posted on May 18, 2020 by JB Ruhl

Question: Will we meet the goal of holding the rise of mean global temperature to below 2°C?

Answer: Yes and no, simultaneously.

Welcome to Schrödinger’s climate, a paradox in which commentary on climate change policy assumes we will meet the 2°C goal, for that is the motivation behind aggressive emission controls and other mitigation measures, but at the same time assumes we will not meet the 2°C goal, for that is the motivation behind aggressive measures to adapt to the impacts of climate change.

Austrian physicist Erwin Schrödinger famously described a paradox that follows from quantum physics theory, which posits that particles in a quantum system exist in multiple states at the same time, assuming a final position only when observed from the external world. In his scenario, a cat is placed in a sealed box with a quantum particle and, through a contraption that reacts to the state of the particle, will either live or die depending on the state of the particle. Under quantum theory, Schrödinger argued, the cat would be simultaneously alive and dead until the lid of the box was unsealed and lifted off, at which point the observer would see the cat as either alive or dead.

It is important for climate change mitigation policy to have a goal. Whether expressed as parts per million of atmospheric carbon dioxide or average global temperature rise, the goal is used by mitigation policy commenters to rally support for emission controls. The goals used to be 350ppm and 1.5°C. Those are history now. The Paris accord moved the upper limit to 2°C. “We will hold the rise to below 2.0°C!”

At the same time, climate change adaptation policy commenters use scenarios built around different temperature rises to motivate action. While it is not as if no adaptation will be necessary in a 1.5°C or 2.0°C scenario, things start looking really messy above 2.0°C. If we are honest, 2.0°C may be a best-case scenario, so adaptation policy needs to get rolling. “We will not hold the rise to below 2.0°C!”

The Schrödinger’s climate paradox arises from the necessity of pursuing both mitigation policy and adaptation policy at the same time. There was a time when talk of adaptation was frowned upon, lest it lead to complacency on mitigation policy. Even modest sea level rise, however, threatens island nations and developing nations with large coastal populations, pushing adaptation into the international climate policy discourse. As it became clearer and clearer that climate change will have a wide range of nasty effects in many parts of the world—developed and developing—the need for adaptation policy became increasingly apparent. The urgency of mitigation policy depends on meeting the 2°C goal. The urgency of adaptation policy becomes more salient above the 2°C goal. To engage in the broad climate policy discourse these days—to advocate action across the board—one must enter the box of Schrödinger’s climate. 

Yet this leads to awkward conversations between those focused on mitigation and those focused on adaptation. “We need to prepare for massive human migration,” says the adaptationist. “Oh my,” says the mitigationist, “But we’re going to hold it to below 2.0°C, right?”  “Uh, sure,” says the adaptationist, “But we really need to prepare for bad stuff happening.” “Um, right,” says the mitigationist, then changes the topic. Tension between mitigationists and adaptationists remains in the air inside the Schrödinger climate box.

We do not have the luxury of lifting the lid off the box to observe whether the future is above or below 2°C. We are a world in dire and present need of aggressive mitigation and adaptation policies. Adaptation cannot be portrayed as a contingent policy for mitigation failure. Acting as if adaptation policy need only prepare us for the worst if we don’t meet the 2°C goal means we won’t be prepared for the worst. We need to shape mitigation policy around the idea that we will attain 2°C, and we need to shape adaptation policy around the idea that we will not. Ironically, this means climate policy must behave as if 2°C is both alive and dead.  This conundrum should no longer be cause for uncomfortable conversations.  “Embrace the paradox of Schrödinger’s climate!”

Earth Day 50: Have We Made any Real Progress?

Posted on April 22, 2020 by Christopher Davis

April 22, 2020 marks the 50th Anniversary of Earth Day. The coronavirus pandemic has consumed the world’s attention, and thus it seems likely that Earth Day and environmental issues will unfortunately get less attention than otherwise might have occurred.

The first Earth Day in 1970 changed my life. In particular, Garrett Hardin’s essay, The Tragedy of the Commons, and a little book called The Environmental Handbook, had a powerful influence on my thinking and career path.  I decided my calling was in solving environmental problems, stopping pollution and protecting nature. Over the last 50 years, this has taken me through a brief career in environmental engineering, a rewarding 30 years in environmental law, and most recently economic advocacy to leverage private sector solutions to climate change.

So where are we now, as we celebrate the 50th anniversary of Earth Day? There has certainly been progress in building environmental consciousness, institutionalizing environmental protection, developing environmental laws, building a global cadre of environmental professionals, reducing at least the most obvious forms of air and water pollution and cleaning up hazardous waste sites. In most places, at least in the developed world, the air and water are cleaner.

Yet on a macro scale, many indicators of environmental quality have declined significantly since 1970. Global greenhouse gas emissions continue to rise, the physical impacts of climate change are accelerating, and we are making little progress in implementing the Paris Agreement’s goal of limiting average global warming to well under 2 degrees Celsius. Deforestation continues to shrink the world’s tropical forests, biodiversity is being lost, species extinction is accelerating, wetlands are disappearing, and our oceans are becoming degraded. Groundwater and surface water resources are being depleted and nonpoint sources threaten water quality. Toxic pollutants are ubiquitous. By most accounts, the world’s ecosystems are in worse shape than they were in 1970. Our expanding human population has exceeded the carrying capacity of the world’s natural systems on which we all depend.

So, while we have won many battles in environmental protection and the implementation of environmental laws, we are losing the war. The imperatives of economic growth and resource consumption have overwhelmed the forces of environmental protection and conservation. Our generation has been responsible for many great technological and social advances. Yet as we mark the 50th Earth Day, our environmental legacy is troubling.

Perhaps the lessons of the coronavirus crisis—and the need for prevention, global collaboration, and commitment of resources necessary to anticipate and combat such crises-- will enable the kind of concerted action needed to successfully confront the systemic risks of climate change and global ecological degradation. We have the tools and knowledge to solve these problems; we lack only the moral imperative and collective political will to do so--and the sense of urgency that inspired me and so many others on that first Earth Day.

Nothing But Blue Skies?

Posted on March 31, 2020 by Robert Uram

As a result of the measures put in place to flatten the curve for the coronavirus pandemic, California is experiencing an unprecedented improvement in air quality. The combination of work from home, layoffs and reduced automobile travel by people sheltering in place has reduced vehicle miles traveled by as much as 70 percent.  Nearly everyone in California is now experiencing good air quality. Nearly everyone in California will wake up to bluer skies and cleaner air so long as the pandemic restrictions remain in place.

Californians have not seen this high level of air quality since before World War II. Even this brief improvement in air quality will help those who suffer from asthma, bronchitis, lung irritation and heart disease. As an added benefit, congestion has been reduced and there will likely be a significant decline in deaths and injuries from accidents. The reduced emissions are also a down payment on emission reductions desperately needed to address climate change.

In medicine, randomized studies are the gold standard for determining the efficacy of a new drug or device. In the air pollution arena, the California Air Resources Board can’t do randomized studies. It can’t order people not to drive so the Board can measure the effects of reduced vehicles miles traveled or substituting electric vehicles for fossil fuel vehicles. Instead, it does computer modeling to estimate these effects. But computer models are meaningless to most people. They can’t read a computer model and see how their lives will be better if they have bluer skies and healthier air. It’s too abstract. The crisis is not only giving the Board valuable information on the actual effects of less vehicle pollution, it is giving millions of people first hand experience of seeing and understanding how much better of their lives will be with less pollution clouding their sky.

What to do? How do we assure that Californians will see blue skies sooner rather than later once the crisis has abated? How do we assure that Californians will step up in the battle against climate change? And, how do we assure California will leap ahead and create jobs to ameliorate the devastating economic effects of the coronavirus pandemic.

California has roughly 24 million cars. California’s current goal is to have 1.5 million electric vehicles on the road by 2025. My hope is that the millions of Californians who are now experiencing better air quality will push the state to far exceed the current goal. California should place a moratorium on new fossil fuel powered vehicles as soon as possible and provide the regulatory climate and financial support conditions to build millions of electric vehicles here in California without delay. We all should enjoy blue skies and a better economy as soon as possible.

Think Globally, Act Locally?

Posted on March 10, 2020 by Mark W. Schneider

In Washington State, some legislators and regulators have been acting locally.  But are they thinking globally?

Our two-term governor sought for years, unsuccessfully, to persuade our legislature to authorize a statewide program to reduce carbon emissions.  After several unsuccessful attempts, his Department of Ecology passed the Clean Air Rule (Chapter 173-442 WAC), which attempted to accomplish by regulation what he couldn’t accomplish by legislation.  The Clean Air Rule imposed requirements on direct and indirect emitters, with the goal of reducing carbon emissions in the state.  Predictably, it was challenged.  The trial court invalidated the Clean Air Rule in its entirety, and the Washington Supreme Court, by a 5-4 vote, ruled in January that the Washington Clean Air Act (Chapter 70.94 RCW) authorized Ecology to regulate direct emitters, but not indirect emitters. Ass’n of Washington Business et al. v. Washington State Dep’t of Ecology, 455 P.3d 1126 (Wash. 2020).  Our legislature, with a different makeup of senators and representatives than in the past, is now considering several bills expressly authorizing Ecology to regulate indirect emitters.  And in next year’s legislative session, the Governor, who is likely to be elected for a third term, may ask the legislature to pass a comprehensive cap and invest bill to govern emissions from Washington State sources.

Is this thinking globally?  Does imposing carbon emission limits in Washington State lower or raise global emissions?  Many observers, including Energy Intensive Trade Exposed entities (“EITEs”), have demonstrated that the state-only limits on carbon will lead to “leakage” - a reduction in emissions of greenhouse gases within the state that is exceeded by an increase in emissions of greenhouse gas emissions outside the state.  Some of the EITEs engage in operations with far less “carbon intensity” (tons of carbon emitted per unit of product produced) than their competitors in other states and countries.  With carbon emission limits, and resulting costs, imposed only on entities operating in Washington State, the EITEs may lose business to out-of-state competitors, many of which emit more carbon per unit of product.  More carbon pollution.  That’s local action that, along with other things, may contribute to global harm.            

Or will this local action lead to global benefits?  In the face of federal government inactivity on carbon, some states have already taken action on a statewide level.  Will Washington State legislative or regulatory action induce more states to follow suit, and will that result in lower emissions of carbon in the country?  And, if that happens, will other countries take action to lower global emissions? Or will it incentivize US companies to operate elsewhere in countries with less stringent emissions?

As this state/national/global tension continues to build, we need to think globally and act locally in a way that will result in reductions of global carbon emissions. In Washington State, one thoughtful step would be to regulate EITEs in a way that allows them to grow but doesn’t contribute to leakage.  That could include measuring compliance for them based on output of emissions per unit of production, rather than mass of emissions. It could also mean recognizing past beneficial conduct and crediting EITEs for prior efficiency improvements that reduced the carbon intensity of their operations.  And it could mean providing a variety of compliance pathways for EITEs, rather than simply requiring an inflexible linear reduction in emissions.

That’s one step.  We need many others.

Get Off of My Cloud – Online Storage is Not as Environmentally Sustainable as I Thought

Posted on February 5, 2020 by Jonathan Ettinger

I read an article last week in Fortune magazine (free registration required) about the large amount of energy actually consumed by cloud storage and thought that must only apply if you are actively uploading, changing, or downloading documents and pictures.  But I was wrong.  With a little digging, I was able to determine that all of those family photos and videos of your cats (not to mention huge folders of environmental analyses) automatically uploaded to iCloud, Google Drive, Box.com, DropBox, and Amazon actually consume lots of electricity even when they are just sitting idle.  Apparently the servers, which are energy hogs because they require lots of cooling, are actively managed on a regular basis to prevent loss or degradation of data, regardless of whether we are accessing the information or not.

According to one source, uploading data and storing it in the cloud consumes 3-7 kWh per gigabyte, roughly a million times more than storing it on your hard drive.  So storing 100 gigabytes of data in the cloud for one year (maybe a few thousand photos or a few hours of video) would result in the emission of roughly 0.2 tons of CO2

I am not suggesting we all stop using the cloud for storage.  After all, it is convenient, largely safe, and probably more environmentally sustainable than paper file storage.  It’s just that it isn’t carbon neutral.  Everything has trade-offs.  For me, I will keep uploading videos of my dogs playing (turn on the sound) – primarily because I am not sure how to stop it – and sending links to classic rock songs.

Children’s Climate Case Coming to a Close

Posted on January 23, 2020 by Rick Glick

In an extraordinary opinion issued January 17, the Ninth Circuit U.S. Court of Appeals concluded that the redress sought by the Juliana v. United States plaintiffs is beyond the power of federal courts.  It is not the conclusion that is extraordinary, which was widely expected, but rather the court’s extended expression of dismay in having to reach it. 

Plaintiffs in this case are a group of young people alleging that through policies promoting or acquiescing to fossil fuels use, the federal government has violated their constitutional rights to a “climate system capable of sustaining human life.”  The court never reaches the merits of the case.

The basis for the court’s conclusion is that the plaintiffs lack standing, meaning the right to prosecute their case in federal courts.  There is a three-part test for standing.  First, the plaintiffs must show “concrete and particularized injury.”  Second, plaintiffs must show that their injury is caused by defendant.  Third, the plaintiffs must demonstrate that the alleged injury can be redressed by court order.  The court found that plaintiffs satisfied the first two prongs, but not the third.

The court noted that the “plaintiffs have compiled an extensive record” that the government “affirmatively promotes fossil fuel use in a host of ways,” from tax credits to extraction leases on public lands.  These policies “will wreak havoc on the Earth’s climate if unchecked.”  The court had no trouble finding particularized injury to specific plaintiffs and that there is a genuine issue as to whether these government policies are a “substantial factor” in plaintiffs’ injuries.  The harder question is what a court could or should do to remedy the problem.

The court found that the scope of the desired remedy—an injunction to end pro-fossil fuel policies and to direct the government to prepare a plan to reduce emissions—is better left to the political branches to resolve.  The court recognized the harm from government policies, which the government does not refute.  However, such an order is problematic because:

  • Plaintiffs own experts acknowledge that the injunction would not “suffice to stop catastrophic climate change or even ameliorate their injuries. . . . Rather, these experts opine that such a result calls for no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world.”
  • “As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”
  • “Although the plaintiffs’ invitation to get the ball rolling by simply ordering the promulgation of a plan is beguiling, it ignores that an Article III court will thereafter be required to determine whether the plan is sufficient to remediate the claimed constitutional violation of the plaintiffs’ right to a ‘climate system capable of sustaining human life.’ We doubt that any such plan can be supervised or enforced by an Article III court. And, in the end, any plan is only as good as the court’s power to enforce it.”

The plaintiffs have indicated the case is not over, that they will seek reconsideration of the three-judge panel’s decision before the entire Ninth Circuit en banc, and possibly the Supreme Court.  Reconsideration rarely overturns decisions and bringing the case to the Supreme Court is risky.  If the Court accepts the case, the result may be an even more adverse standing ruling for such cases.  There are cases pending in which the relief sought is not so broad as in Juliana, cases in which states are asking for money damages for harm caused by government fossil fuel policies.  The Ninth Circuit’s denial of standing based on redressability may not be as limiting in those cases, as courts are accustomed to cases seeking damages.

Even if the Juliana case ends here, it will have served an important public service.  The plaintiffs’ tenacity—and the extraordinary advocacy by their attorney Julia A. Olson—have shone a spotlight on the abject failure of the government to address climate change.  The court expressed its sympathy to that effort and its regret at the limited ability of the judiciary to correct the government’s failure:

The plaintiffs have made a compelling case that action is needed; it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions. We do not dispute that the broad judicial relief the plaintiffs seek could well goad the political branches into action. We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box. That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.

It was always unlikely that U.S. courts would feel empowered to issue orders to address so complex and global a problem.  The Trump Administration’s open hostility to aggressive action to restrain fossil fuels use—reaffirmed by the President at the Davos conference just this week—coupled with congressional inaction, suggests leaving the matter to the legislative and executive branches is a slim reed indeed.  But as the court concludes, Juliana and other climate cases make it harder for politicians to ignore the catastrophic consequences and get reelected.  The question is, how much more time do we have to take meaningful action?

Being On the Eve of Destruction Does Not Provide a Basis for Judicial Relief

Posted on January 23, 2020 by Seth Jaffe

Last week, the 9th Circuit Court of Appeals ruled that the plaintiffs in Juliana v. United States do not have standing.  Given where we are, this is about as momentous a decision as I can imagine.  I get the majority opinion.  Under traditional standing doctrine, it may even be right, though I think it’s a close call.

However, this is not a time for timidly falling back on the easy jurisprudential path.  Extraordinary times demand something extraordinary, from our judges as well as our elected leaders.  If our government is even around in a hundred years, I think that this decision will likely be seen as of a piece with Dred ScottPlessy v. Ferguson, and Korematsu

The cruel irony underlying the opinion is that it is the very scope of the climate problem and the comprehensive government response that it demands that is the basis of the court’s decision that courts are not in a position to oversee the response.  Is this the first case ever brought before our nation’s courts in which the court ruled that it could not grant relief, precisely because relief is so necessary?

I’ll note one other issue.  The majority opinion was clearly sympathetic to the plaintiffs, but ultimately concluded that:

the plaintiffs’ case must be made to the political branches or to the electorate at large.

What if, however, our legislative and executive branches are literally incapable of addressing climate change?  That’s pretty much the view of my intellectual hero, Daniel Kahneman.  If we are truly on the eve of destruction and Congress can’t do anything about it, must the courts remain powerless to step in?  And so I’ll leave you with the conclusion of the dissent:

Were we addressing a matter of social injustice, one might sincerely lament any delay, but take solace that “the arc of the moral universe is long, but it bends towards justice.” The denial of an individual, constitutional right—though grievous and harmful—can be corrected in the future, even if it takes 91 years. And that possibility provides hope for future generations.

Where is the hope in today’s decision? Plaintiffs’ claims are based on science, specifically, an impending point of no return. If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly. When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?

COURT-ORDERED REDUCTIONS OF GREENHOUSE GASES? THE URGENDA AND JULIANA DECISIONS

Posted on January 22, 2020 by John C. Dernbach

Two major climate change cases were decided in the last month—State of the Netherlands v. Urgenda (Dec. 20, 2019) and Juliana v. United States (Jan. 17, 2020).  They illustrate sharply contrasting views about the role of courts in forcing reductions in greenhouse gas emissions.

The Urgenda decision, issued by the Supreme Court of the Netherlands, upheld lower court decisions in 2015 and 2018 requiring the national government to “reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990.”  The government’s current goal of a 20% reduction by 2020, the Court held, violates Articles 2 and 8 of the European Convention on Human Rights (ECHR), a human rights treaty to which 47 nations are parties, including the Netherlands.  As our colleague Michael Gerrard has pointed out, this is the first judicial decision anywhere in the world to explicitly require a government to reduce its greenhouse gas emissions.  

Article 2 of the EHCR ‘protects the right to life,” and means that a nation has a “positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction.”  Article 8 “protects the right to respect for private and family life,” which includes a nation’s “positive obligation to take reasonable and appropriate measures to protect individuals against serious damage to their environment.”  Finally, and significantly, Article 13 “provides that if the rights and freedoms under the ECHR are violated, there exists the right to an effective remedy before a national authority.” 

Climate change science, the Court said, compels the conclusion that there is a “genuine threat of dangerous climate change,” and that the “lives and welfare of Dutch residents could be seriously jeopardized.”  In addition, “there is a high degree of international consensus” on the need to achieve at least a 25% reduction of greenhouse gas emissions by 2020 to prevent dangerous climate change.  The government violated its duties under the ECHR with a less ambitious short-term goal, the court held.  (The 2019 Dutch Climate Act sets a 49% reduction goal for 2030 and a 95% reduction goal for 2050, and there was no dispute about long-term goals.) 

The Supreme Court rejected the government’s argument that “it is not for the courts” to make political decisions “on the reduction of greenhouse gas emissions.”  ”The protection of human rights…is an essential component of a democratic state under the rule of law,” the Court said.  “This case involves an exceptional situation. After all, there is the threat of dangerous climate change.”  The government, not the courts, will decide which measures to employ to achieve the required reduction, the court explained.  

In the Juliana case, 21 young people are the principal plaintiffs in a lawsuit against the United States, claiming, among other things, a right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.”  They developed a “substantial record” establishing the severity of existing and projected climate change impacts, and showing that the government had not only failed to act but that it “affirmatively promotes fossil fuel use in a host of ways.”  They sought declaratory and injunctive relief requiring the “government to implement a plan to ‘phase down fossil fuel emissions and draw down excess atmospheric [carbon dioxide].’”

The U.S. Court of Appeals for the Ninth Circuit, by a 2-1 vote, “reluctantly” held that youth plaintiffs did not have standing.  All three judges agreed that climate change caused by human activity presents grave, even existential, risks.  For the majority, Judge Andrew Hurwitz wrote that the plaintiffs met the first two requirements for standing—some had suffered concrete and particularized injuries, and their injuries were “fairly traceable to” carbon emissions.  But even assuming that there is a constitutional right to a “climate system capable of sustaining human life,” the court said, they do not meet the third requirement because “it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan.”

The plaintiffs had argued that the legislative and executive branches of government can figure out which particular measures to employ to “phase down fossil fuel emissions and draw down excess atmospheric [carbon dioxide].”  But even then, the court said, a court would have to decide whether the government’s response is sufficient.  There is no “limited and precise” standard, the majority wrote, by which a court could determine the adequacy of the government’s response.

Judge Josephine Staton’s lengthy dissenting opinion states that the plaintiffs are seeking to “enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction.”  The discernible standard, she wrote, is “the amount of fossil-fuel emissions that will irreparably devastate our nation.”  This is a scientific question, she said, not a political one.  

Julia Olson, co-counsel for plaintiffs in the case, issued a statement saying the next step would be a petition for en banc review in the Ninth Circuit. 

As both cases indicate, there is no universal answer on the authority of courts to order reduction of greenhouse gas emissions, and this issue is not going away.

MAKING MIRACLES HAPPEN

Posted on January 21, 2020 by Charles F. Becker

I’ve known Drew Tierney since I was 10. I’d call him a friend, but he’d find a way to argue about it.  You know the type, they live to disagree – you desperately want to prove them wrong, but it never happens.

DT (as his friends call him) and I met for lunch last week. He was in fine form and clearly ready for a fight.  We ordered a beer and food and started watching a game.

DT: “So, it’s a good thing we finally got that Soleimani dude, right?”

DT is one of those people that put “right” at the end of every sentence so that you have to agree or become bait. I wasn’t in the mood.

Me: “I suppose, but we’ll just have to see where it goes.”

That seemed to satisfy him as he took a bite out of his chicken sandwich, then said:

“Does it really count as an impeachment if nothing is sent over to the Senate? That wouldn’t be fair, right?”

I chomped down hard on a piece of celery causing a neighboring table to stop talking for a moment. But I bit my tongue at the same time.

Me: “I’ll leave that one to the scholars.”

I could see DT process my comment and he apparently decided that yet another impeachment debate wasn’t worth the effort. He took another bite and said:

“It’s a real shame that the Dems can’t get their act together on that climate change thingy.”

He kind of spit out the word “thingy.” He knew that would do it  . . . and it did.

Me: “Climate change thingy? Are you kidding me? Climate change is a disaster, and everyone knows it!”

DT: “Really? Everyone?”

Finally!  One I could win.  I knew this stuff.

Me: “Do you know that 69% of all Americans believe that we need to take aggressive action to fight climate change?  And that includes 56% of Republicans and 71% of independents.  That’s pretty impressive.”

DT: “Yeah, but 43% say they wouldn’t pay a dime to deal with climate change.  And only 28% overall would be willing to pay even an extra $10 a month to help.  That’s $120 a year!  That means about two-thirds of your support will talk the talk but won’t walk the walk.

Me: “Well, OK, but from 2014 to 2019, the people who saw climate change as an actual crisis went from 23% to 38%. That means more than one-third of the country see it as critical.”

DT: “But for Republicans, it started out at 12% and stayed at 12%. Not what I’d call a burning issue, is it? In fact, the polls of all the voters in 2012, 2016, and 2019 show that of the top issues for voters, climate change has always ranked right near the bottom.”

Me: “That’s because Republicans skew the results!”

I had him. 

Surprisingly, DT seemed unpersuaded.

DT: “I don’t think that word means what you think it means. I think you mean to say Republicans participated in the results. There are as many Republicans as Democrats. The problem is you keep forgetting that. “

Me: “I can’t help it if 88% of them can’t read.”

DT:  “Let me suggest that telling Republicans they’re illiterate doesn’t seem to be a particularly persuasive argument, right?”

This wasn’t going exactly as I planned.

DT: “Whether you like it or not, the difference in the parties’ view on climate change has the biggest gap of any of the priority issues -- there’s a 46% difference between the parties in how important climate change is to the country. Heck, Trump shut down the government over a border wall and the difference between the parties on immigration is a measly 28%.  You’re not going to close the gap by pounding your fist and saying ‘you just don’t get it’ to the people whose vote you need.”

Me: “But DT, it doesn’t matter what the difference is . . . what about our children?”

DT stopped eating, looked at me, and sighed.

DT: “Well, there it is. The ‘you’re-killing-our-children’ argument. The last bastion of the self-righteous. But you know what, I’ll give you that argument. You’re right, we might be killing our children, but all you’ve succeeded in doing is to make both parties dig in deeper. The problem is you believe that climate change is a moral issue.  Maybe it was at one time, but not anymore. You know that whatever the solution is going to be, it will have to be instigated by the federal government. You keep telling me it’s going to cost billions of dollars and will go on for decades.  It seems to me that makes it, by definition, a problem for Congress.  Like it or not, you’ve made it political, right?  And once you make it a political problem, in this day, good luck.”

That really was a show stopper.  DT was right about it being a money issue.  And at this scale, it was going to have to be done by Congress, so clearly it was political. In years past, maybe some sort of middle ground was possible, but not today – or tomorrow.   So does DT win again?

But then I saw it.  I realized DT wasn’t really a bad person, he was just a good arguer.  And he was a good arguer because he always forced you to argue in his ballpark.  The real problem was we were just in the wrong stadium.

Me: “OK DT, you’re right.  The costs are really big.  I doubt that we’ll ever agree on a solution, so it’s not worth arguing about.”

DT was puzzled for a moment, but he seemed satisfied.  We ordered another beer and continued to watch the game.

Me: “By the way, how’s your daughter doing at Southeastern?”

DT: “Don’t get me started.  The cost of that place is killing me.”

Me: “I hear ya.  I’ve got the same problem.  I’m just happy the investments are working out.”

Next to politics, DT’s favorite topic is money and he’s nothing if not a creature of habit – thankfully.

DT: “Really?  What’s working for you?”

Me: “I put a lot into Sunkist Dynamics a few years ago. They’ve been going nuts!”

DT: “What do they do?”

Me: “Solar panels, and they’re American made.  It’s sort of like buying Exxon at $5 a share.”

DT: “So, there’s really money there?”

Me: “Ohhh, yeah.”  And I added an eye roll that implied that you were an idiot if you weren’t already on this gravy train.  DT looked around, leaned over and sort of whispered to me:

“You think I can I get in?”

Me: “Oh, no.  Sorry DT, it was a private placement deal.”  I took a sip of beer and let that sink in for a moment.  “But I do know about a group of investors that are going to fund a wind farm.  The possibilities are huge.  Think about it – you make money whenever the wind blows.”

I saw DT stop for a moment and sort of gaze into the distance.  He was calculating how much money he might make when the primary input was free. 

DT: “That sounds like a pretty good buy . . . right?”

Me: “Well, it’s up to you.  Just don’t tell a lot of people – I want to keep this between us.”

DT: “Not a problem – I get it – too many cooks kind of thing.”  He ran his two fingers across his lips and added: “Zipped tight.” 

Then a minor miracle happened:

DT: “By the way, lunch is on me today.”

I ordered dessert.