Managing Interdependence in a World of Chaos

Posted on August 8, 2018 by Dan Esty

Managing interdependence in our complicated world of nearly 200 nations and thousands of other interests pushing and pulling on global policymaking is never easy. And yet the challenge of getting the world community to work together to solve problems remains urgent – especially for issues of inescapably global scope such as climate change. The international chaos of the past several weeks (with the U.S. President attacking allies, denigrating longstanding alliances, cozying up to autocrats, and brandishing tariff increases like a hotheaded D’Artagnan slashing his way through a Three Musketeers movie) shows just how fragile our collaborative regimes can be. Against this backdrop, the success of the 2015 Paris Climate Change Agreement in getting so many nations and so many others (including mayors, governors, and CEOs) to commit to a joint effort to reduce greenhouse gas emissions looks more amazing today than it did when the COP21 negotiations concluded three years ago.

Continued progress to address the threat of climate change cannot, however, be taken for granted.  Discord in one domain of international relations has a tendency to spill over into others.  Indeed, successful collaboration often depends on give-and-take across policy realms as well as within particular treaties or other cooperative endeavors. President Trump’s bellicose behavior on the international stage thus adds stress to the efforts to maintain momentum for climate change action – on top of the discord that he had already introduced by promising to pull the United States out of the Paris Agreement.

But the news from the climate change front is not all bad.  President Trump cannot actually remove the United States from the Paris Agreement until 2020 based on the accord’s carefully specified withdrawal provisions.  More importantly, the leadership slack is being taken up by others.  Not only have foreign leaders, such as Canadian Prime Minister Justin Trudeau and French President Macron, grabbed the climate change mantle, a whole series of mayors (including Anne Hidalgo in Paris and Frank Jensen in Copenhagen not to mention hundreds of municipal leaders across America) and governors (including Jerry Brown in California and Jay Inslee in Washington state) have ramped up their greenhouse gas emissions control initiatives. Indeed, nearly 3000 subnational leaders across all 50 U.S. states have signed on to the “We Are Still In” coalition, and their actions have kept the United States more or less on target to achieve the emissions reduction commitment set out by President Obama in the U.S. “nationally determined contribution” to the Paris Agreement.

So while the Trump Administration’s non-cooperative posture may yet slow down the global march toward a clean energy future, it may also hasten the creation of a new multi-dimensional structure of global climate change action – and a framework for managing international interdependence more generally -- capable of withstanding the President’s belligerence. With layers of state and local activities as well as national and global ones, supported by initiatives from the business community and many other non-governmental actors, the pace of progress need not falter. And the unintended gift of a more diverse and robust regime of global collaboration may well endure.

Von Humboldt's Gifts

Posted on August 6, 2018 by David B. Farer

Somehow I'd made it this far into my life without ever having heard of Alexander Von Humboldt.  Now, thanks to a wonderfully enlightening and beautifully written biography, I'm in a state of wonderment about this man.  (Thus the title of this blog, with apologies to Saul Bellow.)

The book is The Invention of Nature -- Alexander Von Humboldt's New World, by Andrea Wulf (Alfred A. Knopf, 2015; 473 pp.)

Von Humboldt (1769-1859) was a Prussian-born explorer and naturalist, a prodigious writer, a close friend of Goethe, friend and advisor to many including Thomas Jefferson and Simon Bolivar, inspirer of Charles Darwin (who took a copy of Humboldt's Personal Narrative with him on the Beagle), Henry David Thoreau, John Muir and many, many others.

As a young man, he undertook a five year, groundbreaking exploration of the Americas from 1799 to 1804 (spending much of that time in Latin America, including a year in Venezuela alone), and in 1829, at age 60, undertook another arduous expedition in Russia and Siberia.

As early as the 1790s, he was documenting the impacts of deforestation and deleterious agricultural practices and speaking plainly of the consequences; namely, climate change. During his lifetime, he encouraged climate studies around the world.  He investigated the interconnectedness of volcanos around the globe, of global weather patterns (inventing isotherms along the way), compared rock strata across the earth, and studied the negative impacts of human activity on the balance of nature.

Andrea Wulf delves into Von Humboldt's life in a lucid and engaging manner, documenting his origins, his development as an individual steeped in both science and the arts, his bold, groundbreaking expeditions, the development of his ideas and their exposition in his many books, his dramatic impact on others and the spreading and further development of his ideas by those who followed.

Wulf notes that his contemporaries described him as "the most famous man in the world after Napoleon," that aside from his numerous books and studies, he wrote on the order of 50,000 letters and received at least double that, and at the same time helped advance the careers and travels of fellow scientists and explorers.

Goethe, Wulf writes, compared Humboldt to a "fountain with many spouts from which streams flow refreshingly and infinitely, so that we only have to place vessels under them."

In 1834, at the age of 65, he began the book he intended to bring together everything he had been studying about nature. The first volume was published in 1845, and he named it Cosmos.  A Sketch of the Physical Description of the Universe, drawing the title from the Greek word for "beauty" and "order."

It became an instant best seller in its original German version, and was translated into ten other languages in the following few years.

"Cosmos," Wulf writes, "was unlike any previous book about nature.  Humboldt took his readers on a journey from outer space to earth, and then from the surface of the planet to its inner core.  He discussed comets, the Milky Way and the solar system as well as terrestrial magnetism, volcanoes and the snow line of mountains."

By the 1850s, his portrait hung "in palaces as remote as that of the King of Siam in Bangkok," and "his birthday was celebrated as far away as Hong Kong."

Wulf describes that John Floyd, the U.S. Secretary of War, "sent Humboldt nine North American maps that showed all of the different towns, counties, mountains and rivers that were named after him," and noted that thought had been given to renaming the Rockies as "Humboldt Andes."

He was mourned around the world upon his death in 1859, and then ten years later, on the centenary of his birth, there were celebrations from Australia to America, including commemorations and parades in many of the major cities of the U.S.

And yes, the Humboldt Current and hundreds of plants and animals are also named after him.  Wulf even documents that the state of Nevada was nearly named after Von Humboldt.  Yet as Wulf describes and then sets out to change, he has been nearly forgotten in the English-speaking world outside of academia.

It's a great read; stimulating, inspiring and a finely told life of a great man.

Fear of Forward Looking Statements: Climate Reporting and the TCFD

Posted on July 18, 2018 by Christopher Davis

Risks relating to climate change are becoming increasingly material to companies in a broad range of sectors, to investors who own their shares, to banks that lend to them, to insurers that insure them, to communities where they operate, and to regional and global economies. Climate-related factors including energy transition from fossil fuels to renewables, extreme weather events and water scarcity are having increasing impacts. As a result, climate-related disclosure has become a hot topic, or should be, as companies are required by the Securities and Exchange Commission (SEC) and other regulators to disclose their material climate-related risks.

In the wake of the 2015 Paris climate agreement, the Task Force on Climate-Related Financial Disclosures (TCFD) was created by the G20’s Financial Stability Board in 2016 to develop consistent, voluntary standards for companies, investors and insurers to report climate-related financial risks and opportunities. The task force was chaired by Michael Bloomberg, and comprised of 32 members from major global corporations, financial institutions, corporations, accounting firms, credit rating agencies and other organizations. The TCFD issued a final report presenting its Recommendations [insert link] for such disclosures in June 2017. The Recommendations have been endorsed by more than 250 companies, banks, institutional investors, insurers and other organizations.

The TCFD Recommendations focus on two kinds of financially material climate-related risks: transition (legal/policy, technology, market, reputation) and physical risks. They call for disclosures in four areas: (1) Governance of climate-related risks and opportunities, (2) Strategy for identifying and addressing climate-related impacts, (3)  Risk Management measures to assess and manage relevant risks, and (4) Metrics and Targets including reporting Scope 1, 2 and 3 greenhouse gas emissions and metrics and targets to measure and manage them.

While the TCFD Recommendations have garnered considerable attention and support, notably from institutional investors, relatively few companies have so far committed to report in accordance with the Recommendations. There are various reasons for this, including inertia, cost and advice from inside and outside counsel about the purported liability and competitive risks associated with the kinds of forward-looking statements called for by the Recommendations. Indeed, disclosures consistent with what the TCFD recommends would be much more substantive, revealing and useful than the generic boilerplate disclosures of climate and other environmental risks that commonly appear in SEC filings.

Corporate counsel often provide conservative advice on disclosures in SEC and other mandatory corporate financial reporting. Federal securities laws provide corporate issuers with safe harbors for forward looking statements (typically focused on projections of future financial results) where accompanied by meaningful cautionary statements. Also relevant here is the SEC’s 2010 “Guidance Regarding Disclosure Related to Climate Change,” which highlights mandatory reporting requirements under SEC Regulation S-K for financially material climate-related risks, including the impact of legislation or regulation, international accords, indirect consequences of regulation or business trends, and physical impacts.

While caution and risk aversion are hallmarks of typical legal advice, I would argue that good, thoughtful disclosures consistent with the TCFD Recommendations are likely to have a range of benefits to the disclosing companies, and limited risks. Doing the internal work across disparate corporate functions necessary to address the TCFD Recommendations will improve a company’s understanding and management of evolving climate-related risks and opportunities. Good, meaningful disclosures require homework that underpins good corporate governance, risk management and strategic planning. What gets measured gets managed, and the TCFD Recommendations call on companies to assess and manage climate risks and opportunities, and to report to stakeholders on how they are approaching these issues.

Companies responding in a timely and effective way to the accelerating economic and physical changes brought by climate change can be expected to have a competitive advantage over their peers that fail to do so. Likewise, companies that meaningfully and credibly disclose how they are responding to material climate risks and opportunities, as called for by the TCFD, should enjoy a competitive advantage over their competitors who do not. A range of stakeholders (including current and prospective customers and employees) are likely to respond more favorably to companies that make a good faith effort to comply with evolving best practice disclosure standards. The likelihood of being sued for securities fraud based on such well-grounded climate disclosure seems low. By contrast, the risks of successful claims of non-disclosure and misleading disclosure for companies that fail to meaningfully disclose climate-related risks affecting their business seem quite real, as suggested by the investigations of ExxonMobil’s climate-related disclosures. The market generally rewards leaders that, to paraphrase hockey great Wayne Gretsky, are skating to where the puck is going rather than where it has been, and are early responders to global megatrends like climate change.

Still No Judicial Remedy For Climate Change — Don’t Expect Advocates To Stop Trying

Posted on July 3, 2018 by Seth Jaffe

On June 25th, Judge William Alsup dismissed the public nuisance case brought by the City of Oakland and the State of California against five major oil companies.  The suit sought payment of damages into a fund to be used for necessary adaptation expenditures to deal with sea level rise.  

Why did he dismiss the case?  Simple.  The courts are not the right forum in which to address the problems of climate change.  The more complicated answer?  Because AEP v. Connecticut held that the Clean Air Act displaces federal common law claims for greenhouse gas emissions in the United States and because claims with respect to sales by the defendants outside of the United States could not be addressed by a U.S. court without violating the presumption against giving extraterritorial effect to U.S. laws.

Here, plaintiffs seek to impose liability on five companies for their production and sale of fossil fuels worldwide. These claims — through which plaintiffs request billions of dollars to abate the localized effects of an inherently global phenomenon — undoubtedly implicate the interests of countless governments, both foreign and domestic. The challenged conduct is, as far as the complaints allege, lawful in every nation. And, as the United States aptly notes, many foreign governments actively support the very activities targeted by plaintiffs’ claims. Nevertheless, plaintiffs would have a single judge or jury in California impose an abatement fund as a result of such overseas behavior. Because this relief would effectively allow plaintiffs to govern conduct and control energy policy on foreign soil, we must exercise great caution.

This order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. But questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate.  Nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.

I couldn’t have said it better myself.  I’ve always thought that these types of suits are not the way to address climate change.  I’ve recently acknowledged that, if the current administration continues to rely on fake news to formulate its position on climate change, courts at some point might conclude that the exigencies of the situation require them to act.  For now, we haven’t reached that point, and I hope we never do.

The Dutch Government Also Doesn’t Like Citizen Climate Litigation

Posted on July 3, 2018 by Seth Jaffe

As a follow-up to my earlier post about the dismissal of public nuisance claims brought by the City of Oakland and the State of California against five oil majors concerning their contribution to climate change, I note that ClimateWire (subscription required) is reporting that the Dutch government is appealing a court order that would require it to cut carbon emissions by 25 percent by 2030. 

The Dutch case is more similar to the Oregon children’s suit than Oakland litigation, because the Oregon case, like the Dutch case, is against the government, seeking further regulation, rather than against private parties, seeking damages.  All of these cases, though, present some of the same concerns regarding whether courts are the right place to make climate policy, as noted by the Dutch government spokesman, quoted in ClimateWire:

We also believe that renewable energy should be increased and CO2 emissions should be reduced, so this is really about something else: It’s about how the judge has intervened in something that’s [called] democracy, and actually democracy has been sidelined.

It would be nice if democracy could show a greater capacity for addressing climate change, but I still agree that sidelining democracy is rarely a good thing.  Of course, there are good scientific reasons why democracies don’t do so well at dealing with climate change.  Appeals to the courts may be unavoidable.

“To Count or Not to Count, That is the Question”

Posted on June 28, 2018 by Jeff Civins

“To count or not to count”--greenhouse gas (“GHG”) emissions--was a question facing both the Bureau of Land Management (“BLM”) and the US Forest Service (“USFS”), in deciding whether to lease 13 parcels of federal mineral estate in Santa Fe National Forest in New Mexico for oil and gas production, and the federal district court in New Mexico, on an appeal of those agencies’ joint determination to lease those parcels.  The appeal, filed by plaintiff citizen groups, in San Juan Citizens Alliance v. United States Bureau of Land Management, No. 16-cv-376-MCA-JHR, D. NM (June 14, 2018), asserted a number of violations of the National Environmental Policy Act (“NEPA”) based on, among other things, the agencies’ alleged failure to take a hard look at direct, indirect, and cumulative impacts of oil and gas leasing.  The GHG emissions in question related to those that would result not from the production of oil and gas from the leases, but rather from the consumption of that production--and the resulting climate change impacts of those emissions.  The court answered yes to the question of whether to count those emissions, but its determination raised another question--what difference would or should counting those GHG emissions make.

Operating under a memorandum of understanding, the USFS and BLM jointly manage oil and gas leasing on federal forest land, with the USFS regulating the surface and the BLM, the subsurface.  The USFS identifies specific lands to be offered for lease; the BLM provides a reasonably foreseeable development scenario.  If the UFS consents to leasing, it may include conditions; BLM may then issue competitive leases.  The leases here were issued after protracted administrative proceedings, which included the USFS’s preparation of an environmental impact statement and supplement that supported the permitting of oil and gas leasing and which culminated in the BLM’s issuance of a Decision Record and Environmental Assessment approving the parcels for lease, which “tiered to” the USFS environmental studies.

Plaintiffs argued that the agencies “failed to take a hard look at direct, indirect, and cumulative impacts of oil and gas leasing” before making an irretrievable commitment of resources.  Regulations of the Council on Environmental Quality, at 40 CFR Part 1500, define the pertinent terms.

Direct effects” are “caused by the action and occur at the same time and place” while “indirect effects” are effects that “are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” A “cumulative impact,” on the other hand, is an “impact on the environment [that] results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency … or person undertakes such other actions.” “Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” 

BLM’s Decision Record explained that the agency was evaluating only GHG emissions associated with exploration and production of oil and gas (estimated to be 0.0018% of the US’s total GHG emissions), because the environmental impacts of GHG emissions from consumption of that oil and gas, e.g., refining and consumer-vehicle combustion, were not direct effects and neither were they indirect effects because production was not a proximate cause of GHG emissions resulting from consumption.  BLM argued, however, that emissions from consumption were accounted for in the cumulative effects analysis. 

The Decision Record explained:

The very small increase in [GHG] emissions that could result from approval of the action alternatives would not produce climate change impacts that differ from the No Action Alternative. This is because climate change is a global process that is impacted by the sum total of [GHG] emissions in the Earth’s atmosphere. The incremental contribution to global [GHG] from the proposed action cannot be translated into effects on climate change globally or in the area of this site-specific action. It is currently not feasible to predict with certainty the net impacts from the proposed action on global or regional climate.

The Air Resources Technical Report discusses the relationship of past, present and future predicted emissions to climate change and the limitations in predicting local and regional impacts related to emissions. It is currently not feasible to know with certainty the net impacts from particular emissions associated with activities on public lands.

The Air Resources Technical Report noted that the BLM did not have the ability to associate an action’s contribution in a localized area to impacts on global climate change,” but may do so in the future when “climate models improve in their sensitivity and predictive capacity.” 

In its review of the agencies’ record, the court noted “neither the Record Decision nor its tiered or incorporated documents estimate the potential greenhouse gas emissions from consumption of the oil and gas produced by wells developed on the leases, nor do they discuss the potential impacts of such emissions. “  The court concluded that the failure to estimate the amount of GHG emissions resulting from consumption of the oil and gas produced as a result of development of wells on the leased areas was arbitrary and required that BLM reanalyze the potential impact of such greenhouse gases on climate change in light of the recalculated amount of emissions in order to comply with NEPA.

For that reason, the court remanded the case to the BLM to address this error and to consider whether, based on that reanalysis, its mitigation analysis needed to be revised as well.  The court reasoned that GHG emissions from the consumption of oil and gas were an indirect effect that BLM should have considered, citing Sierra Club v. Fed. Energy Regulatory Comm’n, 867 F.3d 1357, 1374 (D.C. Cir. 2017), and found that BLM also did not adequately consider the cumulative effects of those emissions, together with other emissions.

The question raised by this case, and Sierra Club v. FERC, which the court cites, is how helpful the analysis of indirect and cumulative effects will be to the agency in its decision-making and could or should that analysis result in the selection of a different alternative or in requirements to mitigate. As a practical matter, given the global nature of the concern posed by GHG emissions and the relatively small contribution of the activity under review, is there an expectation that an agency will make meaningful changes in its decision-making as a result of any required reanalysis? So perhaps the question should be not whether to count or not to count, but rather, “What difference would or should counting make?”And, perhaps an even more salient question is, as a policy matter, should concerns posed by GHG emissions be better addressed through legislation and rulemaking rather than by imposing constraints on an ad hoc basis?

HOW WILL WE COPE WHEN DAY ZERO ARRIVES IN A U.S. CITY?

Posted on June 21, 2018 by Eileen Millett

While those of us here in the northeast have been wringing out soggy clothing, using umbrellas as an essential feature of our wardrobes, praying for sun, and genuinely wondering if the long hot days of summer will ever truly be with us, residents of Cape Town, South Africa are experiencing the opposite dilemma.  Although recently the situation began to improve, Cape Town is suffering through one of the longest and driest spells in its history, and could be the first major city to run out of water.   They could come face to face with Day Zero when no water comes from the taps.

Cape Town, named one of the world’s best places to visit by the New York Times and Britain’s Daily Telegraph, is Africa’s third main economic hub, and until the gold rush development of Johannesburg, was the largest city in South Africa. It is alive with multi-million dollar beach front homes, art museums and two of the world’s top 50 restaurants.  The city could now have another distinction.  Despite reducing its water use to half, announcing three new desalination plants, and residents taking 90-second showers, it will take years to normalize  the extended drought its residents have suffered through.   Cape Town is suffering from a three-year drought the likes of which haven’t been seen in a century, as the city has become warmer and drier.

We take water’s existence for granted.  When we turn on the tap, it better be there, and it better be drinkable.  Water quality and less water quantity have been front and center in deliberations about water management.   Flint, Michigan brought us to the battle zone at the mouth of the Flint River, and demonstrated the ramifications head-on of high levels of lead in drinking water.  Lack of proper treatment, exposure and yes, environmental justice issues were at the fore.  Obviously, we care about what is in our drinking water, but we don’t give much thought to whether or how much water is readily available.  Little has prepared us for the day when the amount of water flowing from our faucets will be limited to a few hours a day, if even we have access to water at all. 

Not so the case in Cape Town, South Africa, a coastal paradise, responsible for 10% of Africa’s GDP, where residents have been living with the ramifications of severely limited supplies of water, and where this thriving metropolis of 4 million is poised to become the first major city in the world to completely run dry.   They have little choice but to prepare and to live with the crisis.  Can we afford to dismiss Cape Town as an outlier or should we be preparing for a Day Zero closer to home?

Population growth and urbanization, combined with drought, a natural climate phenomenon or a feature of climate change, depending on your point of view, has pushed Cape Town to a 2019 Day Zero countdown clock, but has not resulted in its being able to avoid Day Zero entirely — a day when the doomsday scenario occurs and the taps run dry.  Earlier this year, Day Zero had been predicted to fall on May 11, 2018, the day when taps in all homes and businesses would be turned off, and when Cape Town’s 4 million residents would have had to line up for water rations.  Cape Town residents are now forced to subsist on 13 gallons of water a day.  Exceeding the daily water limit results in fines.  Residents and tourists alike are implored to recognize the water crisis and to conserve.  This means taking extreme measures on a daily basis, like taking 90-second showers, drinking a half gallon of water, utilizing only one sinkful to hand wash dishes or laundry, having water for one cooked meal, two hand washings, two teeth brushings and one toilet flush.   The 13-gallon limit is less than the minimum U.N. daily recommendation for domestic needs.

Tragically, Cape Town’s looming problem might have been avoided if only there had been better planning, better crisis management and no drought.  To be fair, Cape Town did undertake a program to fix old and leaky pipes, to install meters and to adjust tariffs.  The city did not, however, look for new water sources.  Cape Town depends on water from six dams that are rainfall dependent, and now stand at just over 25% of capacity.  Depending on these dams as a limited source has been exacerbated by the city’s population growth swelling by upwards of 30% in the last decade, with most of that growth in the city’s poorer areas that actually consume less water.  And therein lies one of the realities of South Africa’s sad apartheid legacy — extraordinary inequality and concentrated wealth and privilege.  Folks in the more affluent area of the city can access privately maintained water tanks and pools for their water needs.  Pools provide a built in bathing option and an emergency water supply.

With only about half of the residents reaching the 13 gallon a day target, most consider a shut-off inevitable.  It is not a question of if, but how the city will make water accessible and prevent anarchy.  In poorer parts of the city, people share communal taps and carry water buckets to their homes.  With the clock ticking, Capetonians are sharing water-saving tips — don’t boil food, bake it or grill it; use paper plates; order pizza and eat it from the box; use water collected from showing to wash clothes, use grey water to flush toilets, and more.

Recent rainfall in Cape Town will help to normalize the situation, but the city has not averted the crisis.  Closer to home the condition of the Rio Grande in New Mexico reflects a broader trend in the west, where greenhouse gas emissions have made wet years less wet and dry years even drier.   So although conservancy districts store water in reservoirs, once that water is drained, if there are no summer rains, farmers will face an uncertain future.  Despite the northeast’s rainy spring and general good fortune with water reserves, there are lessons to be learned from our neighbors to the west, and very far south on a different continent.

Places

Posted on June 20, 2018 by Jonathan Z. Cannon

On vacation on Sanibel Island, FL, three hour’s drive from the central Florida town I grew up in, I’m thinking about place.  When I vacationed here as a child, Sanibel was a sleepy island, with primitive bungalows for tourists, insatiable hordes of mosquitoes, mephitic drinking water, and glorious shell beaches, refreshed daily by the tides. Like most of Florida’s West Coast, Sanibel has undergone a sea change since then, transformed into a high-end resort community with luxury accommodations and expensive homes – and, yes, points of public access to the beach. There’re fewer good shells, because so many more people are hunting them.

A visitor from the early days might say the island had been spoiled, but in fact people who cared about Sanibel and its sister island, Captiva, worked to protect it even as it morphed under intense development pressure. The local land trust, the Sanibel-Captiva Conservation Foundation (SCCF), begun in 1967 with the first flush of the modern environmental movement, is the largest private landowner on the islands and manages over 1200 acres of conservation lands on Sanibel and another 600 on Captiva. That’s in addition to the conservation lands managed by the State of Florida and the U.S. Fish and Wildlife Service, which include the 6400-acre J. Ding Darling Wildlife Refuge. Established in 1945, through the efforts of J.N. “Ding” Darling, a Pulitzer-prize winning political cartoonist and conservationist who kept a winter home on Captiva, the refuge protects a part of “the largest undeveloped mangrove ecosystem in the United States” and “spectacular migratory bird populations.”

We all live in places, vacation in places; we care about them –their people and their nature. There are over 1300 active land trusts in the United States, most of them local or regional. These organizations protect and manage over 56 million conservation acres largely though private donations.  Local governments protect additional land through easement acquisition programs, open space zoning, and protections for ecologically sensitive areas. These actions go on largely under the radar of the divisive politics that infects national environmental and natural resource policy. There are still conservatives and liberals, Republicans and Democrats in these local settings, but they are joined by a common interest in their place – the qualities that make that place worth living in for everyone.  This common commitment is more elusive at larger geographic scales, where red and blue segregate along lines of rural/urban, coast and heartland.

The power of place to mobilize action to protect and defend is no panacea for environmental ills. Rootedness in place can cause people to overlook the larger consequences of their actions, as in NIMBY cases. It also may fail to be an effective motivator for addressing issues at larger scales, such as climate change. But there’s evidence that politically diverse communities that are seeing the effects of global change, such as cities and counties in Southern Florida, are moving toward meaningful climate change policies – with both adaptation and mitigation components. A common threat to “home” might help lift even climate change into the realm of common commitment.

EPA Must Produce Any Agency Records Supporting Administrator Pruitt’s Statement that Human Activity Is Not the Largest Contributor to Climate Change

Posted on June 8, 2018 by Seth Jaffe

Last Friday, EPA was ordered to produce documents, in response to a FOIA request, on which Administrator Pruitt relied in stating on CNBC that: “I would not agree that [carbon dioxide] is a primary contributor to the global warming that we see,” and “there’s a tremendous disagreement about of [sic] the impact” of “human activity on the climate.”

I’ve done a fair number of FOIA requests in my time.  The request here was about as plain and simple – and clear – as it is possible to be.  The extent to which the government contorted the request in order to make it seem impossible to answer did not sit well with the Court.  Here’s the request as modified by the plaintiffs.  They sought:

(1) agency records that Administrator Pruitt relied upon to support his statements in his CNBC interview,” and “(2) any EPA documents, studies, reports, or guidance material that support the conclusion that human activity is not the largest factor driving global climate change.

EPA objected to the request in part on the basis that it was an improper interrogatory that required the EPA to take a position on the climate change debate.  To which the Court stated that “this hyperbolic objection strays far afield from the actual text of both parts of the FOIA request.”

EPA also argued that the request was vague, asking “how is one to even know precisely what documents one relies on forming one’s beliefs.”  Yikes.  And what is the definition of “is,” Mr. Administrator?

I loved the Court’s response.

Particularly troubling is the apparent premise of this agency challenge to the FOIA request, namely: that the evidentiary basis for a policy or factual statement by an agency head, including about the scientific factors contributing to climate change, is inherently unknowable. Such a premise runs directly counter to “an axiom of administrative law that an agency’s explanation of the basis for its decision must include ‘a rational connection between the facts found and the choice made.  EPA’s strained attempt to raise an epistemological smokescreen will not work here to evade its obligations under the FOIA.”

Epistemological smokescreen.  Humph.

Nor was the Court done.  Responding to EPA’s objection to having to take a position on climate change, the Court trenchantly noted that:

EPA’s apparent concern about taking a position on climate change is puzzling since EPA has already taken a public position on the causes of climate change.

The bottom line?  EPA must complete a search for responsive documents by July 2, 2018, promptly disclose responsive documents, and explain any withholding by July 11, 2018.

This is not the first case under this Administration where I’ve thought how blessed I am that I’m not at DOJ and in the position of having to defend the indefensible from EPA.

Paving a Legal and Regulatory Path to America’s Clean Energy Economy

Posted on May 30, 2018 by Kenneth Berlin

A clean energy revolution is underway in this country, buoyed by market forces making renewable energy sources increasingly cost-competitive with fossil fuels. Wind and solar are now cheaper than coal and natural gas in much of the country, and their costs will continue to drop. This stunning decrease in the price of wind and solar generation has created a new paradigm in the energy industry.

Similarly, the cost of energy storage is falling fast, and batteries will soon eliminate – at fully competitive prices – the intermittency issues around wind and solar. Meanwhile, electric vehicles are projected to become both cheaper to purchase and cheaper to run than gasoline cars by 2025.

Despite these extremely favorable economic trends, legal and regulatory barriers that protect fossil fuels continue to slow the transition to a clean energy economy. Removing these obstacles is a critical step toward securing a clean, safe and prosperous future.

At the outset, new clean energy projects face potential challenges around siting and transmission, including permitting restrictions, utilities’ unwillingness to enter into the necessary contracts, and a lack of support from public officials.

Once a project has cleared those hurdles, additional legal, regulatory and policy barriers may remain. Some of the primary impediments include:

o   Non-existing, limited, or even preventative legal frameworks for independent power producers – like homeowners – to sell energy to utilities or third parties. These power purchase agreements are currently allowed in only 26 states, the District of Columbia and Puerto Rico.

o   Utility interconnection, or connection of home or commercial renewable energy systems to the regional grid, that may be limited or severely restricted by regulation or laws.

o   Lack of or insufficiently priced net metering policies that make renewable investments much less attractive. In 2016, for example, Nevada’s Public Utilities Commission (PUC) sought to triple fees for solar customers while at the same time reducing credit for net excess generation by approximately three-quarters. After pushback from solar manufacturers and installers, as well as the prospect of hundreds of solar jobs leaving the state, the PUC approved new rules, partially restoring the net metering rate.

o   Tariffs on components of renewable energy systems like those recently announced by the Trump Administration on solar panel imports.

These obstacles don’t even touch on the fact that fossil fuel companies are not held financially responsible for the global warming pollution they dump into our shared atmosphere, leaving everyday Americans to foot the bill for these extraordinary health and economic costs. They also don’t factor in the uneven playing field that well-funded lobbyists tilt in favor of the fossil fuel industry, including enormous government subsidies.

The good news is that many individuals and organizations are working to build the political support needed to remove these barriers, including my organization, The Climate Reality Project, and our Founder and Chairman, former US Vice President Al Gore.

With enough voices working together across many sectors, we can eliminate these challenges and allow market forces and popular support to usher in a new clean energy economy.

How Much Deference Will EPA Get On Its CAFE Standards Decision?

Posted on April 30, 2018 by Seth Jaffe

There’s been a lot of discussion regarding EPA’s decision to withdraw EPA’s Mid-term Evaluation of Greenhouse Gas Emissions for Model Year 2022-2025 Light-duty Vehicles. After pondering for a while, my question is how much deference courts will give to EPA’s decision.

I’ve previously speculated about whether the typical deference to agency decisions might eventually lose its luster, not because conservative judges hate Chevron, but simply because courts might get tired of agencies under this Administration abusing their discretion.

Contrary to the statements in the withdrawal decision, the Obama Mid-term Evaluation was exhaustive.  The withdrawal decision itself, on the other hand, was, as far as I can tell, based largely just on what scientists might objectively describe in jargon as “bitching and moaning” by the auto industry. 

I’ve also previously noted that, in the history of major environmental rules going back to the 1970s, the evidence shows that every single rule has cost less than estimated prior to implementation.  And that’s less than EPA’s estimates of compliance, not just less than industry’s estimates, which have routinely been wildly high.  The reason is that compliance cost estimates never fully account for the ability of the market to respond efficiently to the new standards.

There is some question as to whether the recent withdrawal decision even constitutes final agency action, but the courts will get a crack at this at some point and I am waiting with bated breath to see how they respond.

THE GREAT LAKES OF NORTH AMERICA AND THE GREAT BARRIER REEF OF AUSTRALIA; MORE IN COMMON THAN ONE MIGHT THINK

Posted on April 18, 2018 by David Ullrich

Although separated by over 8,000 miles and representing vastly different ecosystems, the Great Barrier Reef of Australia and the Great Lakes of North American share much in common.  As globally significant resources, they not only help define the countries so fortunate to host them, they are major contributors to the social, economic, and environmental vibrancy of their cultures.  They are both very big and visible from space, with the Great Lakes having well over 10,000 miles of shoreline and the Great Barrier Reef stretching over 1200 miles of coast in Queensland.  At the same time, many similar challenges face the communities that are charged with the stewardship of the resources to make sure their integrity is preserved for future generations.

At the top of the list is climate change.  For the Great Barrier Reef, the warmer ocean temperatures have resulted in significant bleaching events over the past twenty years and have caused damage to major portions of the Reef, although much of its beauty remains intact. The increase in severity and intensity of cyclones has also caused major physical damage to the Reef all up and down the coast of the Coral Sea.  As the storms travel inland with heavy rains, the runoff from agriculture brings vast quantities of sediment and nutrients to the nearshore areas of the Reef.  The siltation can smother the coral and the nutrients are thought to contribute significantly to the explosion of the indigenous crown of thorns starfish that attack and destroy coral. 

Climate change is also putting extensive stress on the Great Lakes.  The warmer temperatures are leading to less ice cover, more evaporation, and lower lake levels.  However, the more frequent and intense rainfall events are putting more water back into the system.  Experts differ on the long term implications.  In the short term, lake levels seem to be going up and down more rapidly and to a greater degree than before, leading to navigational and erosion problems.  In addition, the heavy rains have increased nutrient runoff from agriculture and urban areas, leading to alarming algal blooms and drinking water crises like those in Toledo, Ohio and Pelee Island, Ontario on Lake Erie.  The nutrients also contribute to the formation of low oxygen dead zones that can result in fish kills.  In addition to climate change, the battle against invasive species such as sea lamprey and zebra and quagga mussels seems endless, while grass, silver, bighead, and black carp continue as major threats to the $7 billion fishery of the Great Lakes.

As strategies and approaches to dealing with these challenges are developed in Australia, Canada, and the United States, we would be well served to share ideas with one another on how best to meet them.  We have a tremendous responsibility as stewards of these global treasures to protect and preserve them for future generations.  It would be a tragedy to be resigned to renaming them the “Pretty Good Barrier Reef” and the “Pretty Good Lakes.”

Federal Common Law Controls California Climate Actions: Never a Dull Moment

Posted on March 12, 2018 by Seth Jaffe

Earlier this week, Judge William Alsup denied a motion by Oakland and San Francisco to remand their public nuisance claims against some of the world’s largest fossil fuel producers to state court.  However, I’m not sure that this is a victory for the oil companies.  This might be more of a “be careful what you wish for” scenario.

After the Supreme Court decision in AEP v. Connecticut and subsequent decisions, such as Native Village of Kivalina, it seemed pretty clear that the federal Clean Air Act had displaced federal common law, leaving only potential state law claims in its place.

Judge Alsup had a different idea.  The cities’ claims were only brought against fossil fuel producers, not electric generators.  The claims were based on the allegations concerning the companies’ conduct in selling fossil fuels into the stream of commerce, while at the same time allegedly making misrepresentations concerning the risks of climate change.

Judge Alsup concluded that this was a distinction with a difference.  The Clean Air Act displaces federal common law regulating operations that emit GHGs.  The Clean Air Act, however, does not regulate the sale of fossil fuels.  Thus, it does not displace the type of public nuisance action at issue in this case.  (Of course, this leads to the odd result that the companies’ sale of fossil fuels is subject to public nuisance claims, even though methane emissions from oil wells and refineries are not, because those are subject to regulation under the CAA!)

Having made this critical distinction, the rest of the decision was relatively easy.  As Judge Alsup noted:

If ever a problem cried out for a uniform and comprehensive solution, it is the geophysical problem described by the complaints, a problem centuries in the making. The range of consequences is likewise universal. Taking the complaints at face value, the scope of the worldwide predicament demands the most comprehensive view available, which in our American court system means our federal courts and our federal common law. A patchwork of fifty different answers to the same fundamental global issue would be unworkable. This is not to say that the ultimate answer under our federal common law will favor judicial relief. But it is to say that the extent of any judicial relief should be uniform across our nation.

I’m not sure that Judge Alsup is right, though I appreciate his creativity.  And if appellate courts decide he is right, the defendants may come to regret removing the action from state courts.

The Power of Pension Funds: How to Win Friends and Influence Others

Posted on March 6, 2018 by Gail Port

While both tout their desire to reduce the State’s carbon footprint and address climate change,  New York Governor Andrew Cuomo and State Comptroller Thomas DiNapoli have  their differences when it comes to  New York State pension fund’s fossil fuel investments.   

The New York state pension fund (known as the New York State Common Retirement Fund) is the third largest pension fund in the United States, with an audited value as of March 2017 of $192.4 billion in assets.  The pension fund holds and invests assets of over one million state and local government employees, retirees, and beneficiaries. At issue are holdings of at least 50 oil and gas companies with significant carbon-intensive operations.  Comptroller DiNapoli is the sole trustee of the pension fund, and is advised by several independent advisory committees.

DiNapoli is under pressure from Cuomo, State Senator Liz Krueger, and certain environmental groups to divest the pension fund from fossil-fuel investments.  DiNapoli has pushed back on immediate divestment on several grounds, most importantly, that as a fiduciary his first priority is to earn a good return for the approximately 1.1 million New Yorkers who rely on the state pension system for their retirement security.  While recognizing that the effects of climate change represent a systemic risk to the returns of the pension fund, the economy and the welfare of the people of the State, DiNapoli believes that he can be more effective in managing those systemic climate change risks by the use of the significant power of the pension fund to influence the policies of oil and gas companies.  That includes shareholder activism (i.e., filing shareholder resolutions), voting proxies, investor collaborations and corporate engagement programs.

On the latter point, Comptroller DiNapoli has cited ExxonMobil’s agreement to implement a shareholder proposal, co-filed by the state pension fund and the Church of England, which caused ExxonMobil to agree to assess how it might be impacted by the Paris Agreement goals to reduce global warming. Duke Energy has responded to a similar shareholder resolution seeking to require it to analyze how the Paris Agreement will impact its business and plans to produce a climate risk assessment in the first quarter of 2018. DiNapoli asserts that because these oil and gas companies will not go out of business as a consequence of divestment of the pension fund’s holdings, he can be more effective by having a seat at the table as a shareholder to influence companies’ actions and disclosures.  Critics of this view, including State Senator Krueger, believe the shareholder influence is limited and that divestment sends a stronger message than does the Comptroller’s more nuanced and varied approach. 

Another investment strategy recently employed by the Comptroller was to double the pension fund’s investment-- to $4 billion-- in a low-emissions index designed by Goldman Sachs Asset Management.  That index is more geared toward stocks, such as Apple Inc. and Microsoft Corp., than higher carbon-emitters, such as ExxonMobil and Chevron.  DiNapoli has said that since 2016 the Goldman Sachs designed index has delivered returns comparable to the Russell 1000, thereby yielding strong investment returns with the benefit of significantly reducing the carbon footprint associated with that investment.

Although DiNapoli has expressed reservations about allowing pension fund investments to be influenced by political forces, he recently agreed to join forces with Governor Cuomo and others on decarbonization strategies for the pension fund investment portfolio.  While there are no immediate plans to divest the energy holdings of the pension fund, DiNapoli and Cuomo have agreed to create an independent advisory committee to develop a low carbon future roadmap for the fund.  In his January 2018 State of the State Address, Cuomo called for an end to fossil fuel related activities in the pension fund and stated his intent to work with DiNapoli so New York can “put our money where our mouth is.” Cuomo then asked for a round of applause for Comptroller DiNapoli and his efforts.

Regardless of whether DiNapoli takes immediate moves to decarbonize the portfolio, the movement towards divestment is gaining momentum. California ended its pension fund investments in coal companies in 2015 and is facing pressure to decarbonize its portfolio. On January 10, New York City Mayor Bill de Blasio and Comptroller Scott Stringer announced that NYC plans to divest its five pension funds from fossil fuel investments, which will be the largest divestment of any municipality to date. Stringer stated, “[T]his a first-in-the-nation step to protect our future and our planet – for this generation and the next. Safeguarding the retirement of our city’s police officers, teachers, firefighters and city workers is our top priority, and we believe that their financial future is linked to the sustainability of the planet.” De Blasio and Stringer were praised by environmental activists after the announcement and by State Senator Kruger who continued her call for State Comptroller DiNapoli to follow suit with respect to the New York State pension fund investments.

Lots of good intentions, lots of ideas and a bunch of strange bedfellows--only time will tell if these investment (and divestment) initiatives will continue to gain traction and make a difference. And what about us-- shouldn’t we too be employing low-emissions/decarbonization investment strategies with our portfolios?

If Jimmy Fallon Was an ACOEL Member, Here is What He’d Sing

Posted on March 1, 2018 by Jeff Thaler

While many in Philadelphia were in the streets after the end of Super Bowl LII, and New Englanders promptly went to bed after the last pass hit the Minneapolis turf, the Doppelgänger of a native-born Minnesotan made a national appearance in the middle of that long, cold night.

By now, many have seen the 2018 version of “The Times They Are a-Changin,’” performed by someone born 10 years after the original version was created—one Jimmy Fallon. According to my consultation with Dr. Google, the only time Mr. Fallon has talked about environmental issues was back in May 2016 when he did a segment on Sarah Palin, climate change and climate scientists.

Therefore I think it is time that ACOEL commissioned Mr. Fallon to perform an updated version of that and another Dylan song, ones many of us could probably sing by heart (with a refresher class) even though written in the early ‘60s—that pre-NRDC/CAA/CWA/ESA/et.seq. classic, “Blowin’ in the Wind.” The original lyrics for both songs need to be refreshed, as do all of us who were alive and kicking back then, so here they are:

The Times They Are A-Changin'

Come gather ’round people                                                       

Wherever you roam                                                                           

And admit that the waters                                                               

Around you have grown                                                               `                   

And accept it that soon                                                                     

Under water will be our coast and flood zones                       

If our kids’ future to you is worth savin’                                   

Then you better start swimmin’                                                  

or you’ll sink like a stone                                                              

For climate times they are a-changin’

 

Come federal and state legislators

Please heed the call

Don’t stand in the doorway

Don’t block up the hall

For those who should be ashamed

Will be those who have stalled

Weather extremes are outside and they’re raging

Floods, fires and storms will break down your walls

For climate times they are a-changin’

 

Come bloggers, reporters, and skeptics

Throughout the land

Please don't criticize

What you refuse to understand

Rising CO2 levels and temperatures

Are getting beyond our command

Your old fossil-fueled road is

Rapidly agin'.

Please embrace a clean energy new one and

Vote out of office resisting government hands

For climate times they are a-changin'.

 

Blowin’ in the Wind

How many droughts & fires must the world endure                                  

Before we know they are a warning?

Yes and how many seas must flood our shores                        

Before we seek a solution?                                                           

Yes and how many times must the fake news fly                     

That climatic disruption is not real?                                                

The answer my friend is blowin' in the wind                              

The answer is blowin' in the wind.                                                    

 

How many years will our beaches and airports exist

Before they are washed into the sea?

Yes and how many years can the glaciers survive

Before they are just memories?

How many heads must be buried in the sand

So that people can deny what should be seen?

The answer my friend is blowin’ in the wind

The answer is blowin' in the wind

 

How many more years must we create greenhouse gases

Such that too many species can’t survive?

Yes and how many times will clean energy projects be held up

Before too many people have died?

How can we power our cars, lights and heat pumps

Without harming the world for our kids?

The answer my friend is blowin' in onshore winds

The answer is blowin' in offshore wind.

 

So break out your harmonicas and guitars, and we will sing the songs of climate changes while working to change our laws and policies for the benefit of all.

Troubled Waters – Blue Lakes Turning Green From Toxic Algal Blooms

Posted on February 6, 2018 by Virginia C. Robbins

Frank DeOrio knows a lot about protecting drinking water.  For more than 25 years, Frank was Director of Utilities for the City of Auburn located in the pristine Finger Lakes region of Upstate New York.  He was responsible for the water supply drawn from Owasco Lake and the protection of the lake’s watershed.  During Frank’s tenure, the City won awards for the best water in the state and the U.S. 

Frank and I recently discussed his concerns about the potential impacts to drinking water from summer algal blooms in our region’s lakes.   Algal blooms can occur when spring rains flush nutrients, for example, phosphorous, into waterbodies.  Summer temperatures raise water temperatures, creating optimum growth conditions.    

Owasco Lake, September 18, 2017

Owasco Lake, September 18, 2017

Summer algal blooms now occur in more lakes, their duration has increased, and they are producing toxins that pose health risks to the public when ingested or during recreational contact.  These toxins are not easily treated by water suppliers because the technology to treat one toxin may not be effective for another.  And unlike bacteria, boiling water does not remove these toxins. 

In 2017, harmful algal blooms (HAB) occurred in all 11 of the Finger Lakes, reportedly for the first time.  Blue-green algae are cyanobacteria and they can produce several species of cyanotoxins.  What is disturbing about the recent HAB outbreaks is that some classes of these cyanotoxins (e.g., microcystins), are particularly toxic.  If present at high concentrations, they can be difficult or impossible to treat using the technology of most public water systems.  One of these is Microcystin-LR, a liver toxin that is considered one of the more toxic.  These toxins can also cause skin, digestive system and other health issues.

Mycrocystin-LR has been identified in raw water drawn from Owasco Lake and Skaneateles Lake, both jewels of the Finger Lakes.  And Owasco Lake provides drinking water to more than 50,000 customers.  In 2016, the City of Auburn was using filtration to treat its raw water.  When the level of Mycrocystin-LR increased, the City considered moving the location of its water intake away from the area of the lake containing the toxin.  But would the new intake remain safe if the toxin shifted location?  The City decided against moving the intake and instead added carbon filtration. 

Skaneateles Lake is the primary water supply for the City of Syracuse and surrounding communities.  The water authority operates under a “filtration avoidance” authorization.  After a severe storm on July 1, 2017, phosphorous levels in the lake rose, resulting in algal blooms, and Microsystin-LR was then detected in the raw water pumped from the lake.  The levels were low enough that treatment was not required and the toxin was not identified in the water that reached customers.  Nonetheless, the presence of this toxin in the raw water is a disturbing development. 

These examples are lakes in my area.  But similar algae toxins and blooms are occurring in New England states, including New Hampshire and Maine. 

The broader challenges?  The science around algae toxins is emerging.  Further, there are no federal or state drinking water standards for microcystins (though there are health advisory guidelines published by USEPA and some states).  Water treatment plants are generally designed to avoid taste and odor concerns and to manage the most commonly tested algae toxins.  The next generation of plants will need to have more flexible designs to accommodate advanced treatment technologies.  And water authorities will need to consider spatial needs, hydraulics, connections, utilities and process control for these technologies. 

Frank’s concerned.  So am I.  It may get worse before it gets better.  While we wait for science, regulatory efforts and focused treatment technology to develop, at least municipalities can take steps to control the potential for toxic algal blooms by a combination of runoff control, nutrient reduction and stream-bank restoration.  Why wait to build that bridge from troubled waters to cleaner lakes?

The North Slope Is Really, Really, Getting Warmer. Drill, Baby, Drill

Posted on December 20, 2017 by Seth Jaffe

The Washington Post reported last week that Utqiagvik, Alaska (formerly known as Barrow), has gotten so warm, so fast, that NOAA’s computers can’t even believe it.  The data for Utqiagvik (that’s hard to type!) were so high that the computers determined it must be anomalous and pulled all of the data from Utqiagvik from the NOAA monthly climate report.  Only when scientists realized that Utqiagvik was completely missing from the report did they notice what had happened.

How hot does it have to get to get bounced by the computer?  How about average October temperatures 7.8 degrees warmer than in 2000?  Average November temperatures 6.9 degrees warmer than in 2000?  Likely culprit?  Melting sea ice means that less sunlight is reflected.  That’s one nasty negative feedback loop.

In the meantime, as I noted in October, Alaska Governor Bill Walker has concluded that Alaska needs more oil drilling (can you say “Open ANWR” three times fast?) in order to pay for climate change mitigation.  It’s apparent that Governor Walker has not read Faust.

Governor Walker, this one’s for you.

PASSING LESS GAS

Posted on December 5, 2017 by Keith Hopson

While some still debate climate change, on 11/22/17, eight of the oil and gas industry’s biggest players signed on to a set of Guiding Principles for reducing methane emissions across the natural gas value chain.  BP, Eni, Exxon Mobil, Repsol, Shell, Statoil, Total and Wintershall, in collaboration with international institutions, NGOs and academics, drafted the Guiding Principles.

The five guiding principles are: continually reduce methane emissions; advance strong performance across value chains; improve accuracy of methane emissions data; advance sound policy and regulations on methane emissions; and increase transparency.  Click here for the entire Guiding Principles document.

It will be interesting to see if these “voluntary principles” eventually become enforceable regulations.  Likewise, it will be interesting to see if these guidelines become “industry standards” and, accordingly, whether by acquiescence, private litigation, or lender requirements, become de facto regulations.

Time will tell.

It is significant to see so many major oil and gas industry actors responsibly, firmly and publicly commit to both reduce methane emissions and advance monitoring.  Perhaps now others in the industry will be more inclined to join the responsible eight and commit to pass less gas.

Coming Soon to a Northeast or Mid-Atlantic State Near You: Regulations on Carbon Emissions From Transportation

Posted on November 16, 2017 by Seth Jaffe

Earlier this week, eight states in the Transportation Climate Initiative issued a joint statement pledging to pursue regional solutions to GHG emissions from transportation.  The statement does not identify any specific policy options; instead it simply announced that they are “initiating a public conversation about these opportunities and challenges.”

Even if the statement doesn’t say so, what everyone is hearing from this announcement is simply this:  RGGI for transportation.

To give one an idea of the momentum that is finally building in support of regulation of transportation sector GHG emissions, one need look no further than the recent letter sent jointly by the New England Power Generators Association (our client), the NRDC, the Sierra Club, the Union of Concerned Scientists (also our client!), and the Acadia Center to four New England governors, requesting that they

"develop and participate in a regional, market-based policy to address greenhouse gas emissions from the transportation sector."

If the letter seems at first blush to involve strange bedfellows, think again.  From NEPGA’s perspective, its members are reasonably sick and tired of being the only target of GHG emissions regulations – particularly given that electric generation now represents less than ½ the GHG emissions from transportation.  From the perspective of the environmental groups, they know that it will be literally impossible to meet targets of 80% reductions in GHG emissions by 2050 without very substantial reductions in emissions from transportation.

For too long, states focused on electric generation emissions to the exclusion of transportation for one reason only.  Transportation will be difficult.  Difficult is no longer an excuse.

It’s about time.

Court Rejects BLM’s Efforts to Unbalance the Scales of Justice

Posted on November 6, 2017 by Seth Jaffe

Last month, Magistrate Judge Elizabeth Laporte granted summary judgment to plaintiffs and vacated the Bureau of Land Management’s notice that it was postponing certain compliance dates contained in the Obama BLM rule governing methane emissions on federal lands.  If you’re a DOJ lawyer, it’s pretty clear your case is a dog when the Court enters summary judgment against you before you’ve even answered the complaint.

The case is pretty simple and the outcome should not be a surprise.  BLM based its postponement of the compliance deadlines on § 705 of the APA, which authorizes agencies to “postpone the effective date” of regulations “when justice so requires.”  However, every court that has looked at the issue has concluded that the plain words of the APA apply only to the “effective date” of a regulation and not to any “compliance date” contained within the regulation.

It seems clearly right to me.  For Chevron geeks out there, I’ll note that the Court stated that, because the APA is a procedural statute as to which BLM has no particular expertise, its interpretation of the APA is not entitled to Chevron deference – a conclusion which also seems right to me.

What particularly caught my eye about the decision was the Court’s discussion of the phrase, “when justice so requires.”  In a belt and suspenders bit of analysis, the Court also made findings that justice did not require postponement.  BLM’s argument was that justice required the postponement because otherwise the regulated community would have to incur compliance costs.  However, as the Court noted, “the Bureau entirely failed to consider the benefits of the Rule, such as decreased resource waste, air pollution, and enhanced public revenues.”  Indeed:  

If the words “justice so requires” are to mean anything, they must satisfy the fundamental understanding of justice: that it requires an impartial look at the balance struck between the two sides of the scale, as the iconic statue of the blindfolded goddess of justice holding the scales aloft depicts. Merely to look at only one side of the scales, whether solely the costs or solely the benefits, flunks this basic requirement. As the Supreme Court squarely held, an agency cannot ignore “an important aspect of the problem.” Without considering both the costs and the benefits of postponement of the compliance dates, the Bureau’s decision failed to take this “important aspect” of the problem into account and was therefore arbitrary.

I think I detect a theme here.  Some of you will remember that Foley Hoag filed an amicus brief on behalf of the Union of Concerned Scientists, supporting the challenge to President Trump’s “2-for-1” Executive Order.  We made pretty much the same arguments in that case that Magistrate Judge Laporte made here – minus the reference to the scales of justice.

Unless SCOTUS gets rid of all agency deference, the Trump Administration is going to get some deference as it tries to eliminate environmental regulations wherever it can find them.  However, if it continues to do so while looking solely at the costs of the regulations to the business community, while ignoring the benefits of the regulations, it’s still going to have an uphill battle on its hands.

“Let No Man Put Asunder:” The Act of God Defense and Climate Change

Posted on November 2, 2017 by Peter Hsiao

Following the punishing hurricanes in the gulf coast and island regions of the United States, concern immediately turned to the environmental impacts of toxic releases from damaged chemical facilities.  EPA reports that 13 of the 41 Superfund sites in the area were flooded by Hurricane Harvey.  High winds and rain damaged the protective cap at the San Jacinto River Waste Pits, risking the escape of dioxin contaminated sediments, and EPA ordered the responsible companies to take immediate action.  Even without an order, facility owners will often act as quickly as possible to contain any spills and mitigate their impacts. 

But as a matter of law, would there be a basis to defend against the EPA order or claims for response costs by asserting the Act of God defense?  CERCLA and the Oil Pollution Act both provide a complete defense to liability if the party can show that the release of hazardous substances (or petroleum under the OPA) was caused solely by an act of God.  The defense is severely limited by the requirement that a natural disaster must be “unanticipated” and an “exceptional” event.  For example, CERCLA’s legislative history says a major hurricane may be an act of God, but may not qualify as unanticipated or exceptional in an area where hurricanes are common.  Reportedly there are no cases where the defense has been successfully raised.

A superstorm such as Hurricane Harvey may present a more compelling case for this defense.  While hurricanes are expected in the area, an event that unleashed an estimated 19 trillion gallons of water can be considered exceptional and arguably unforeseeable, even with the recent history of other superstorms (e.g., Sandy, Katrina).  Successfully asserting the defense will likely depend upon expert testimony showing the facility implemented enhanced protective measures before the storm, probably true for most major industrial facilities in the affected area, and that exceptional circumstances overwhelmed those measures, which circumstances could not have been anticipated or prevented even by the exercise of due care or foresight.  

Comparing the precautions taken by other similarly situated facilities will also be important to establish the standard of care.  For example, the Texas environmental agencies worked with chemical facilities before the storm to protect hazardous waste containers from damage and flooding, and any facility asserting the defense will likely need to have undertaken similar precautions to have any chance of success.  For a toxic tort case, there is no statutory Act of God defense, but the same types of arguments will be used to show the facility exercised due care and reasonable foresight in taking protective measures. These issues will also be presented in insurance claims and litigation regarding coverage disputes. 

The defense however has an additional requirement, that the Act of God not be the result of human action, such as from greenhouse gas emissions.  While the relationship between climate change and these superstorms may not be known until years of further study, there is preliminary evidence that global warming made the storms worse by increasing ocean temperatures and raising the sea level, intensifying the impacts of its wind speed, rainfall and storm surges. 

So the Act of God defense may become impossible to win for a superstorm if man-made contributions were a factor – but is this meaningful?  The defense has never been successfully asserted in any event.  But if an alternative causation for a superstorm can be proven by a preponderance of the evidence, there is a potential basis for the responsible party under CERCLA or a tort theory to seek contribution or otherwise allocate a proportionate share of liability to others.  And the large number of “other” potential defendants who contributed to global warming will raise difficult issues of justiciablity.  The recent superstorms may produce a test case with the right combination of circumstances to squarely present these issues to a court. 

That is, while not a complete defense, climate change may provide new theories for defendants.  When a door closes, a window may blow open.

Harvey and Hindsight

Posted on October 10, 2017 by Tracy Hester

There’s nothing like a good catastrophe to make your typical disaster planning look bad.

You hear the word “unprecedented” a lot in Houston these days.  Hurricane Harvey brought an astonishing 50.1 inches of rain to the Houston region over three days, which means the storm effectively provided our entire annual rainfall within the space of three weeks.  The deluge damaged 195,714 homes in Texas, forced over 7,500 Texans into emergency shelters, shut down power and transportation to thousands more, and triggered hundreds of inspiring do-it-yourself rescue missions as flooded neighbors helped each other when official high water rescue teams faced impossible demands.

The environmental cost was, also, “unprecedented.”  Even Tropical Storm Allison and Hurricane Ike did not cause the scale of refinery shutdowns, upset emissions, wastewater treatment system disruption, and chemical plant incidents (including spectacular explosions and fires at the Arkema chemical plant) that we saw in the greater Houston region during Harvey.  At least 13 CERCLA sites in the greater Houston area flooded, and EPA was unable to even access numerous sites for over a week to assess any damages or identify any releases.

“Unprecedented,” however, has a different connotation when viewed through a legal lens.  The post-Harvey environmental liability battles have only just begun, and they promise to raise a broad array of challenging legal issues.  The flooding damage lawsuits alone (including takings claims against the U.S. Army Corps of Engineers) are multiplying fast.  In particular, EPA has already contacted PRPs at some flooded CERCLA sites to demand that they respond to hazardous substance releases – which might have some ACOEL members closely scrutinizing the model reopener provisions and the scope of covenants not to sue in their clients’ consent decrees.  The Act of God defense will likely get a fresh re-examination, including arguments about how to apply it when hurricanes – even massive ones - are not exactly a surprise in the Gulf Coast region.  And fires, explosions, and discharges at facilities could turn a spotlight onto the scope of the general duty clause under Section 112r of the Clean Air Act and the legal penalties for inaccurate or delayed initial release reports under CERCLA and other statutes.

In the long run, Texas and Houston – and other coastal states, counties, cities and towns– will need to revise their disaster frameworks to anticipate and account for Harvey-type storms into the future.  These storms are no longer, unfortunately, “unprecedented,” and the standard terms of consent decrees and agreed orders on liability for secondary releases from post-remediation incidents will need a lot more scrutiny than they’ve typically received.  

HIPPOS, THE DANCE OF THE HOURS, AND THE TRUMP ADMINISTRATION

Posted on October 5, 2017 by James Holtkamp

The award-winning 1940 movie Fantasia includes a segment with a bevy of hippopotami in tutus preforming the Dance of the Hours. It is a remarkable depiction of an alternate reality in which the law of gravity doesn’t seem to apply.  The 2017 version of an alternate reality is the Trump Administration’s perspective on climate change.  Like the hippos in Fantasia, Messrs. Trump and Pruitt and other Administration officials are trying to ignore inexorable laws of nature and human behavior.  Unlike the hippos, they will not succeed (reserving judgment on whether they will look as nice in their tutus).

In June, Mr. Trump announced the withdrawal of the U.S. from the Paris Agreement, claiming that it was a ”bad deal” that would “kill American jobs.” With Nicaragua belatedly deciding to sign on to the Agreement, the only two countries left that are not participating in the Agreement are the U.S. and Syria.  (Nicaragua, by the way, initially refused to sign the Agreement, not because it thought the Agreement was too stringent, but rather that it wasn’t stringent enough.)

Meanwhile, Category 5 hurricanes march through the Gulf of Mexico and the Caribbean, epic droughts wither the Pacific Coast, sea lanes in the Arctic are open for the first time in recorded memory, and entire islands disappear beneath rising seas.  The human cost of these and other climate-related events is immense.

The preamble to the Paris Agreement identifies the following climate-vulnerable areas of society:

·         Poverty-stricken populations

·         Food security

·         Quantity and quality of jobs

·         Human rights

·         Health

·         Indigenous peoples

·         Local communities

·         Migrants

·         Children

·         Gender Equality

·         Empowerment of women

·         Intergenerational equity

·         Ecosystem integrity

·         Justice

The rejection of the Agreement by the Trump Administration represents a denial of the broad impact of climate change on society as articulated in the Agreement.  Like the hippos in the dance, the Administration wants to live in a world in which the laws of nature don’t apply.  But real-world hippos and the rest of the inhabitants of the planet (including all of us and our children and grandchildren) will suffer the consequences of their denial of reality.

The Intersection of Environmental Justice and Climate Change

Posted on September 20, 2017 by Lisa C. Goodheart

Media images of the recent devastation from Hurricanes Harvey and Irma provide vivid illustration of the direct link between climate change and environmental justice (“EJ”) concerns.  For those who live in the path of tropical storms, the impacts of severe storm damage often have a disproportionately harsh effect upon low-income, minority, non-native English-speaking communities.  Members of these communities are often the least able to get out of harm’s way and find temporary living accommodations in a safer place.  They tend to live in sub-standard housing stock that is the least able to withstand the impacts of storm surges and extreme wind forces.  Frequently, their homes are disproportionately located in close proximity to clusters of known environmental hazards such as Superfund sites, hazardous waste TSDFs, chemical and power plants, other locally undesirable land uses (“LULUs”), and a range of industrial facilities which are associated with adverse health impacts.  Hurricanes, tornadoes, and other extreme weather events may cause catastrophic damage and failures of routine safety systems, resulting in unexpected and uncontrolled releases of dangerous chemicals that impose particular risks on neighboring “EJ communities.”

In the early days of the EJ movement, attention and energy was focused primarily on questions of equity with respect to facility siting and the permitting of new LULUs in close proximity to already overburdened neighborhoods populated by EJ communities.  For many years now, concerns about the inequitable distribution of environmental burdens have been used to rally opposition to the siting and permitting of new LULUs that would likely increase existing environmental risks.  Naturally, this approach has tended to focus attention on the adverse health impacts associated with long-term exposures to the environmental contaminants that proposed new facilities would or could release to air, soil and water in the course of their routine operations.

Increasingly, however, the most serious environmental risks facing EJ communities – especially in or near industrialized urban waterfront zones – are those associated with the catastrophic weather-related impacts of climate change on existing facilities and established infrastructure.  It is doubtful that the existing paradigms for thinking about environmental justice have grasped and evolved to account for this fundamental fact as quickly or as fully as they should and must.

At the state level, approaches to EJ vary considerably.  Some states, like California, were early adopters of legislation that codified EJ and have established EJ programs with responsibility vested in a coordinating body and various required legal processes.  Other states, like Massachusetts, have executive orders and state policies aimed at proactively integrating EJ considerations into the decision-making of environmental and energy agencies, and perhaps an occasional statutory nod in the direction of EJ.  Some have programs (e.g., the Texas Environmental Equity Program) or study centers (e.g., the Center for Environmental Equity and Justice at Florida Agricultural and Mechanical University) that pertain to environmental equity but do not explicitly compel the government to go beyond the avoidance of invidious discrimination.  In general, it remains the case that EJ laws, policies and programs have tended not to focus a great deal of attention on climate change impacts.  That is, they have not tackled with sufficient rigor and depth the unfortunate synergies that occur when the worst effects of climate change are felt by the most vulnerable EJ communities.  This is beginning to change, but the change cannot come too quickly.

By way of example, Massachusetts’ original EJ policy, which was issued in 2002, focused primarily on the equitable protection of parks and open space, on brownfields redevelopment, on fairness in environmental grant-making, and on procedural protections aimed at enhancing the ability of all to have a voice in environmental decision-making.  Its scope was limited to environmental agencies, and it contained no mention of climate change.  Today, the updated Massachusetts EJ policy (revised as of January 31, 2017) applies to energy as well as environmental agencies, and it expressly affirms the need to enhance meaningful participation by traditionally underserved and under-represented EJ communities in climate change decision-making, as well as in energy and environmental decision-making.  In addition, the updated Massachusetts EJ policy expressly points to the need to ensure that all residents “are prepared for and resilient to the effects of climate change.”  This link between climate change and EJ is also now reflected in the Massachusetts Climate Protection and Green Economy Act, codified at G.L. c. 21N.  Specifically, § 5 of that statute expressly requires the Secretary of Energy and Environmental Affairs to determine “whether activities undertaken to comply with state regulations and efforts disproportionately impact low-income communities.”

The importance of strengthening the developing linkage of climate change to EJ concerns cannot be overstated.  The most pressing EJ problems today go far beyond matters of equity with respect to parklands, brownfields, grants, and opportunities for participation in environmental decision-making.  The most urgent current EJ needs include planning and providing for robust, effective, fair responses to the environmental disasters associated with climate change, as they affect vulnerable low-income, minority, non-native English-speaking communities.  States, counties, and municipalities will need to step up and provide the necessary leadership to address these needs.  This will require creating, strengthening, and fulfilling the promise of state and local EJ laws, policies, and programs, so as to address the current gaps in our legal system that all too often leave the most vulnerable among us “up the creek without a canoe paddle” in the wake of an environmental disaster.  As we face the future, whether and how we will choose to involve, consider, and respond to those who are at the greatest risk of being the most severely victimized, at the intersection of climate change and environmental justice, will be a test of our collective will and values.

Turn On, Plug In, Peel Out

Posted on September 18, 2017 by Samuel I. Gutter

(With apologies to the late Timothy Leary [“Turn on, tune in, drop out”], who was referring to Electric Kool-Aid, not Electric Vehicles.)

Today, September 18th, is the second anniversary of the first public disclosure of the VW “Defeat Device” scandal.  It also marks the beginning of the end of sales of diesel-powered VW cars in the U.S.  And while other companies (Chevy, BMW, Jaguar and Land Rover, among them) still offer diesel cars and SUVs, the pickings are a lot slimmer. 

One unintended consequence of diesel’s fall from grace is the boost it has provided to electric vehicles.  Auto manufacturers must find ways to meet increasingly stringent fuel-economy standards, and for some the efficient diesel was a way to hike their “CAFE” (corporate average fuel economy) numbers.  Now, signs are that Tesla, even with the introduction of its less-expensive Model 3, will soon be sharing the EV market with a growing number of competitors.  GM and Nissan are expanding their pure EV offerings, and Volvo, Mercedes and Mini are planning to release their own “zero emission vehicles” (ZEVs) over the coming years.  Meantime, plug-in electric/gasoline hybrids are becoming common-place, with offerings from Toyota, Cadillac, Volvo, Ford, BMW, and others.  

While diesels dominate the line-haul truck market, Cummins and Tesla are both planning to introduce short-haul electric heavy trucks in the near future.  And what could be more telling than the announcement by the quintessential American company, Harley-Davidson, that it will start selling its “Livewire” electric motorcycle in five years?  Will “Rolling Thunder” become an anachronism?

International pressure to reduce GHGs and urban air pollution is also at play.  China, India, England, France and Norway are all considering an outright ban on the sale of fossil-fueled vehicles.  And back to VW, as part of its Defeat Device settlement, the company agreed to spend $2 billion over the next 10 years on U.S. infrastructure to support electric vehicles.

Battery prices are coming down and charge stations are going up.  And sure, diesels have great torque, but as anyone who has experienced the head-banging g-force of mashing the pedal in an EV will tell you, diesels are best viewed in the rear-view mirror. 

Still, many institutional and social barriers remain – proprietary charging technologies, reliance on government subsidies, high costs of electricity with (in some areas) no reduction in nighttime rates, and consumers who are wary of the emerging technology and fear being stranded on the highway with a depleted battery.  But while ZEVs and plug-in hybrids are still a fraction of total vehicles sales, they are increasing in numbers and market share.  As prices drop and driving range increases, electric vehicles will become more affordable and practical.

Fasten your seatbelt, there might be an EV in your future!