Cuba Delegation 2: ACOEL’s Possible Contribution to the Cuban Environmental Community and Other Observations from XI International Convention on Environment & Development (Part 2 of a Two-Part Series)

Posted on September 13, 2017 by Mary Ellen Ternes

As noted in yesterday’s post, David Farer and I recently went to Cuba as delegates to the XI International Convention on Environment & Development, specifically, the Congress of Policy, Law and Environmental Justice.  At the conference, on behalf of ACOEL, we presented our paper, “Lessons Learned:  Effective Environmental Regulation of Critical Infrastructure Development & Operation.” Let me share some of the “flavor” of our experience.  It is first worth noting that little English was spoken at this quite international conference, but participants got by with assistance by Google Translate.  Also worth noting is that many of the conference participants are familiar to us all.  For example, those with exhibition booths at the conference included the Environmental Defense Fund, which has made considerable efforts to protect Cuban fisheries; and the Harte Research Institute for Gulf of Mexico Studies, Texas A&M Corpus Christi, which is working closely with the Cuban Environmental Agency on research in the Gulf of Mexico.  Also exhibiting were Cuban administrative and educational entities, such as the Nuclear Agency and the Institutes of Geology and Paleontology, Physics and Astronomy, Ecology, Science, Sea and Climate, and Meteorology, as well as several entities focusing on sustainability, local food, and climate change adaptation and environmental protection.

Fellow speakers included environmental and energy professionals from the United States, Canada, and Mexico, as well as Columbia, Costa Rica, Brazil, Peru, Chile and Spain.  Topics ranged broadly from cultural heritage to mining law; the impact of climate change on urban agriculture; perspectives of ecofeminists; sustainability in urban areas; limits of rights, policy and environmental management; resolving water disputes; methods to establish legally protected areas, particularly coastlines; and approaches to protecting drinking water and defining solid waste for community waste management. Of particular interest to U.S. environmental practitioners were Cuban presentations on improving the regulation of environmentally responsible businesses, the test for environmental damage and its main problems, and approaches to a law of liability to resolve civil damages.  Toward the end of the Congress, attendees were invited to the Cuban Bar Association to participate in an analysis and discussion regarding foreign investment and the environment. 

The Congress ended with a presentation of the 2017 book: “Environmental Act, Twenty Years Later,” edited by Teresa D. Cruz and Orlando Rey.  This 120 page book reviews, in Spanish of course, the history of Cuba’s first framework environmental law of 1997: Law No. 81, the Environmental Law.  The story behind Law No. 81 –including information on Cuba’s rich biological diversity, the country’s depth in science and education, and the fact that the law was supported by Fidel Castro – are the subject of Oliver Houck’s excellent article, Environmental Law in Cuba, J. Land Use & Envtl. L. (Fall 2000).  Those appreciating Professor Houck’s description of the hard road Cuba traveled to recover its original astonishing beauty after tripping along a precipice of potential environmental ruin would have appreciated the XI International Convention and the passionate arguments by presenters.  They should also appreciate the new book commemorating Cuba’s environmental passage.

We are looking forward to ACOEL’s next steps toward pro bono projects with Cuba.

Hurricane Irma Note:  As of the date of this posting, the Cuban people  – like so many others in the Caribbean and our own country -- are facing a long and difficult road to recovery from the hurricane’s devastation.    We hope that the College’s efforts can aid in this process.

THE PRESIDENT’S CRUSADE AGAINST BIRTH CONTROL HARMS WOMEN AND THE ENVIRONMENT

Posted on June 14, 2017 by Leslie Carothers

Environmentalists have long debated the need to address links between population growth and environmental harm.   Perennial issues include whether excessive consumption by the rich contributes more to environmental degradation and deserves more attention than population growth in poor countries and the merits of governmental incentives and disincentives to alter birth rates in either direction. Six writers with different perspectives explore these issues in the March/April issue of ELI’s Environmental Forum.  

Professor Lucia Silecchia at Catholic University ably presents the case for focusing on poverty reduction and education, citing the warnings of Pope Francis against population control as a simplistic solution.  (However, the views of the Catholic hierarchy have not caused the great majority of Catholic women to refrain from use of artificial contraception).  None of the population experts joining the ELI debate, including Paul Ehrlich of Stanford and Joe Bish of the Population Media Center, supports coercive measures to reduce birth rates; but they generally agree that at a minimum, a much stronger effort to meet massive unmet needs for family planning education and service is essential to slow the rise in our numbers and make a meaningful difference.

Experts estimate that over 200,000,000 women in developing countries want to avoid pregnancy but are not using modern contraception.  Melinda Gates, Co-Chair of the Gates Foundation, reports that during her visits with African women to talk about vaccination programs for children, the women generally speak up for improving access to contraception.   Worldwide birthrates have declined from about 5 births per woman to 2.4 from 1960 to 2015 according to World Bank figures.  But many developing countries in sub-Saharan Africa remain at near 5.  If each of those 200,000, 000 women decided to have two fewer children, the result would be an appreciable reduction in population growth that would measurably increase family living standards and reduce impacts on scarce resources and the warming of the planet.    

President Trump’s recent decision to withdraw from the Paris Climate Accord was disappointing but not unexpected.  More bad news for people and the environment has been the Trump Administration’s extraordinary set of initiatives to slash access to family planning services internationally and here in the U.S.  The Administration has launched a veritable crusade to reduce women’s autonomy, increase family poverty, and derail progress toward lower birth rates compatible with environmental sustainability.  The Monday following his inauguration and the Women’s Marches, President Trump announced that he was reinstating the “gag rule” prohibiting federal funding for international family planning programs if they provide counsel, referrals, or do lobbying for abortion services even with their own funds.  This rule has been on and off as U.S. Presidents have changed over the years; but Population Action International (PAI), the leading advocate for international family planning support, describes the Trump version as the gag rule on steroids.  That is because the old rule applied directly only to family planning programs of about $600 million.   Flanked by a lineup of well-heeled white men, the President signed an Executive Order intending to apply the new gag rule to all “global health assistance programs” receiving 15 times more U.S funding than family planning programs alone.  The impact according to PAI will be greatly reduced access to birth control services for women in 60 low and middle income countries, especially in Africa.

Women in the United States are now in the cross hairs of the crusade to make access to birth control more difficult and costly.   The week before the President announced his intention to exit the Paris agreement, the online news site Vox reported that a regulation had been drafted and sent forward to the Office of Management and Budget to roll back the Affordable Care Act’s mandate that employers include cost-free contraception in their health insurance programs.  The Supreme Court’s decision in the Hobby Lobby case to allow a privately held firm to claim a religious exemption, as if it were a church, has not settled the issue of application of the religious exemption.  While further litigation and negotiations continue, the Trump Administration is preparing  regulatory action to greatly broaden the basis for objections by allowing any employer with religious or “moral convictions” against offering contraceptives without cost to opt out of providing insurance covering them.  This little change would be promulgated as an interim final rule entering immediately into effect before any public comment or hearings though it affects 55 million women who have benefited from the requirement.

Advocates for women’s health services such as the Center for Reproductive Rights will challenge the content and process for the rule if it moves forward.

And there is more.  The “health care” bill passed by the House of Representatives and celebrated by the President would allow states to seek waivers of required elements of the current Affordable Care Act such as offering prescription drug or maternity benefit among others, a further blow to women’s health programs.

The deep cuts in Medicaid contemplated by the House health bill together with the reduction levels floated in the Administration’s skimpy outline of its budget proposals dealing with other federal benefit programs would further burden access to birth control services by reducing insurance coverage and imposing higher costs on people least able to afford them.  In addition to eliminating all funding in support of international family planning programs as well as the UN Population Fund, the budget would slash U.S Medicaid funding that also supports reproductive health care for millions of women.

The continuing campaigns of the anti-abortion and now the anti-contraception factions to limit access to reproductive health care by other people have a grossly disproportionate impact on low income women and families.  Women with resources may be inconvenienced by new limitations but will rarely be prevented from obtaining contraceptives or even abortions as before.  

Perhaps psychologists or sex therapists can divine why the President and his minions seem so fixated on reducing women’s access to birth control.  Whatever their motivations, this is an issue environmental advocates should not ignore.  Improving the lives of women and their families and increasing women’s ability to participate in decisions in their communities are the primary goals of advocates for women’s reproductive rights.    But the benefits of lower birth rates to reduce pressure on natural resources and to help slow global warming are real and merit strong support.  

Categories:  Sustainability, Climate Change

Tags:  Population, Environment

 


Energy Benchmarking, An Idea Whose Time May Have Come (And Just May be Politically Palatable)

Posted on June 5, 2017 by James B. Witkin

Given the current political climate in Washington, environmental programs most likely to survive unscathed are those that rely on market principles, especially if they are enacted at the state or local level. Sustainability advocates may want to take a closer look at energy benchmarking programs, which pass both of those tests.  

The jurisdictions closest to me, the District of Columbia and its close-in neighbor to the north, Montgomery County, Maryland, have adopted mandatory energy benchmarking programs for many commercial buildings. Other cities with similar programs include Seattle, Philadelphia, Los Angeles, Kansas City and New York City. Many of those jurisdictions began requiring compliance for public buildings, then larger commercial buildings, and finally smaller buildings. In Montgomery County, buildings over 250,000 square feet had to start benchmarking last June; starting June 1, 2017, most buildings over 50,000 square feet must comply. In New York City, buildings larger than 25,000 square feet must benchmark by next May.

Although benchmarking programs vary from jurisdiction to jurisdiction, generally they require building owners to measure and report information on various types of energy and water usage. Some of that information may come from the owner’s own records; in tenanted buildings, landlords may need to obtain the information from tenants. Often the information is input into software such as the EPA’s Energy Star Portfolio Manager Program, which allows for uniform reporting and effective comparison of the data among buildings. That information is made available to the public.

There are several goals of benchmarking. First, it provides owners with information they may not have had, or understood—as one EPA benchmarking website states, you can’t manage what you don’t measure. By making owners focus on their energy costs, and see how those compare to their neighbors’, they should theoretically make efficient management and upgrade decisions.  Second, armed with this information, tenants looking to lease space (or buyers looking to purchase commercial properties) are better able to evaluate what their long term energy costs will be, and can make better leasing or purchasing decisions. Nothing like a lousy score to shame a landlord into making an upgrade decision that ideally is both cost effective and green.

While the programs are still young, some data indicate that they are working. (See the reports issued by the Institute for Market Transformation, and the studies cited by them.) Benchmarking seems like a concept that people on both sides of the isle should be able to support. 

The Latest Executive Order: Any Kind of Consistency Is the Hobgoblin of Little Minds

Posted on March 31, 2017 by Seth Jaffe

Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal.  Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules.  There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.

Regardless, though, it’s important.  Social cost of carbon?  Poof.  Gone.  Climate Action Plan?  Gone.  Consideration of climate change in environmental impact reviews?  Gone.

We already know all this, though.  I’d like to focus on a few details concerning the EO that might have gone unnoticed.

  • The order states that development of domestic natural resources “is essential to ensuring the Nation’s geopolitical security.”  I found this statement interesting in light of the recent statements by Secretary of Defense Mattis, who very clearly stated that climate change is real and is itself an important security risk.
  • The order states that environmental regulations should provide “greater benefit than cost.”  I found this statement somewhat odd, given that the President’s prior EO known as the 2-for-1 order, essentially requires agencies to ignore the benefits of regulations and focus solely on the costs that they impose.
  • Similarly, the Order requires agencies, in “monetizing the value of changes in greenhouse gas emissions resulting from regulations,” ensure that their analyses are consistent with OMB Circular A-4, issued in 2003.  The Order states that Circular A-4 embodies “best practices for conducting regulatory cost-benefit analysis.”

I’d be interested in knowing if a single one of the authors or peer reviewers of Circular A-4 have anything nice to say about the 2-for-1 Order?

Energy Storage and Transforming The Grid in New York

Posted on March 21, 2017 by Virginia C. Robbins

For those who support national and international climate change initiatives like the Clean Power Plan and the Paris Agreement, the news out of Washington is gut-wrenching.  Disengaging from these initiatives is harmful on geo-political, economic, and moral grounds.  Despite these expected actions by the current administration, there is good news in the renewables sector:  battery storage technology has the potential to be a strong contender in the fight against climate change. 

In October 2015, a leak at the Aliso Canyon gas storage facility outside Los Angeles caused it to shut down.  The leak reduced fuel supplies for area power plants.  In response, the California Public Utilities Commission (CPUC) mandated mitigation measures, including the expedited procurement of about 100 megawatts (MW) of local energy storage resources in the Southern California Edison (SCE) and San Diego Gas & Electric (SDGE) service territories.  Renewable and other types of energy stored during the day would be available when electricity demand increased in the evening, thereby avoiding the need for increased fossil fuel generation to serve that peak need. 

The CPUC order directed utilities in Southern California to identify storage projects that could be sited, constructed, and put into operation providing electricity to the grid in only a few months.  Within 6 months after the CPUC issued its order, two battery storage facilities were completed.  SDGE contracted for the installation of two energy storage projects totaling 37.5 MW.  The larger 30 MW project in Escondido is said to be the biggest lithium ion battery storage facility in service on a utility grid in the world and is capable of serving 20,000 customers for four hours.  Also, Tesla completed a battery storage facility for SCE at the Mira Loma substation capable of powering about 15,000 homes for four hours.

These California energy storage projects are providing valuable “lessons learned” about the efficiency of battery technology, its benefits and limitations.  For example, building on these lessons, New York has established aggressive goals for meeting its electricity needs through renewable sources.  New York’s Governor Cuomo established a goal for 50 percent of the state’s electric needs to be met by renewable sources by 2030.  The strategy is to transform New York’s electric industry by building a cleaner, more resilient and affordable energy system through investment in clean technologies like solar, wind and energy efficiency.  And because wind and solar sources cannot always generate power during times of high electricity demand, energy storage must be a key component of the state’s energy future and more needs to be done for system operators to understand it and to develop the business models that will work.      

In October 2016, the New York Department of Public Service issued a Staff Report and Recommendations in the Value of Distributed Energy Resources Proceeding.  The goal of the proceeding is to develop accurate pricing for clean distributed energy resources (DERs) that reflects the actual value created by technologies that produce power outside of the utility grid (e.g., fuel cells, microturbines, and photovoltaics) and technologies that produce power or store power (e.g., batteries and flywheels) as well as demand-side measures.

The staff report supports including projects that pair any energy storage technology with an eligible generation facility to receive compensation under a proposed tariff.  The report also identifies a utility-driven demonstration project supporting solar-plus-storage.  Consolidated Edison Company of New York is currently pursuing a demonstration project that combines multiple solar plus storage systems to improve grid resiliency and provide a dispatchable “virtual power plant” that Con Edison can control and rely on in real time.  Con Edison is also pursuing grid-scale energy storage through a request for information seeking to demonstrate how large-scale utility storage can improve company operations, and establish how a singular type of energy storage can offer multiple kinds of value.   

Also, at its March 9, 2017 session, New York’s Public Service Commission (PSC) enacted a new compensation structure to value DERs installed in New York.  The order establishes compensation values for the first time in New York for energy storage (battery) systems when combined with certain types of DERs.  In addition, the PSC directed the state’s utilities to significantly increase the scope and speed of their energy storage endeavors.  By the end of 2018, each utility must have deployed and begun operating energy storage projects at no fewer than two separate distribution substations or feeders.  The Commission tasked the utilities with striving to perform at least two types of grid functions with the deployed energy resources, for example, increasing hosting capacity and peak load reduction.  The Commission stated that these actions are both feasible and necessary to promote timely development of a modern grid capable of managing DERs.   

These developments promise good outcomes for the deployment of energy storage, for environmental protection and for consumers.  They may also play a role in the planned shutdown (by 2021) of the Indian Point nuclear power facility, that has the capacity to generate more than 2000 MW of electricity and that serves about 25% of the energy needs of New York City and Westchester.  At a recent legislative hearing on the Indian Point shutdown, state officials discussed making up for the lost energy by efficiency programs and by encouraging opportunities for renewable, non-polluting sources like solar, wind and hydropower.  Their focus on renewables bodes well for further investment in energy storage as a component of reliable service using a resilient distribution system.  The battery storage “lessons learned” in Southern California in resolving the gas leak crisis may be valuable to New York State in planning for the shutdown of Indian Point.

President Theodore Roosevelt: A Conservative for All Seasons

Posted on March 8, 2017 by Irma S. Russell

The debate on whether President Theodore Roosevelt was a conservative or a progressive experienced a recent uptick.  One example of the debate is the reception to Daniel Ruddy's new book, Theodore the Great: Conservative Crusader.  In Theodore the Great, Ruddy documents the Roosevelt presidency’s conservation achievements, including efforts to protect the Grand Canyon and other national wonders from exploitation.  Like most presidents since his time, Theodore Roosevelt had a goal of making America great.  His philosophy centered on increasing the political power of the American people and limiting the build-up of the “invisible government” of party bosses, corporate trusts, and corporate lobbyists.  President Roosevelt championed reforms that limited corporate interests and conserved public lands for future generations.  The book’s website indicates that TR “obfuscated his own legacy with populist speeches” and promises that the book’s focus on Roosevelt’s actions “clears the cobwebs and presents a real and convincing case for remembering Theodore Roosevelt as a great conservative leader.”  I am persuaded of this point without reading the book.

The term “conservative” is capacious and has many dimensions, and the model of Roosevelt as a conservative is thoroughly convincing.  The U.S. National Parks website presents the evidence of President Roosevelt’s legacy.  Among other things, he created 51 federal bird reserves that have now evolved into national wildlife refuges in every state.  But of even greater importance, he established the U.S. Forest Service in 1905 and set aside 230 million acres of public lands, with over 150 million acres of that designated as national forests.  The success and public acceptance of the Forest Service was laid out for the ACOEL by Timothy Egan in a presentation to our members about his book, The Big Burn, which chronicled the birth of the agency within the Department of Agriculture and the public’s acceptance of its value after a 1910 fire in Montana and Idaho claimed lives as well as acres of forest. Roosevelt and the USFS insured the future of our forests – both for commercial and for recreational use. As an advocate for the American people, Roosevelt worked to insure the sustainability of those resources. 

Today, conservatives seem to be taking a markedly different approach to conservation and public lands.  Last week Ryan Zinke was confirmed by the Senate as Secretary of the Interior, the principal manager of public lands.  Zinke, the former Montana representative has been compared to President Roosevelt and praised as a Roosevelt conservative.  Last fall, he resigned his position as a delegate to the Republican National Convention in protest to proposals to transfer federal lands to states and private entities. 

More recently, however, Zinke has changed his approach to the preservation of public lands.  Before vacating his seat in the House of Representatives to accept the top position in the DOI, he voted in favor of a bill that facilitates the transfer of large tracts of western state federal public lands to states, local governments and private entities.  Such transfers of federal public lands will enrich the new owners by millions if not billions of dollars in valuable land and the natural resources on the lands. 

Even if the transfers were made for a fair market price and assuming the uses of the land were to remain the same (with the same park rangers and the same memorial markers), there would be adverse consequences.  The legacy, access, and pride in the public treasures would be forever altered.  Disposing of public lands will take these assets from America and Americans to enrich commercial or state interests.  This will impoverish the country both fiscally and by severing the relationship of ordinary Americans with the lands they revere.  Such transfers may also limit public access and will inevitably deprive the country of the value of natural resources on the public lands and reduce the national security – an important rational for the creation of public lands. 

National forests, wildlife refuges and other lands provide a national conservation and recreation system like none other.  Transferring these assets from the public to other interests is a loss to America no matter what form is used for the disposition.  Private interests focused on the corporate bottom line will inevitably exploit such holdings for profit.  As corporate spokesmen often explain, the responsibilities of their corporations are to their shareholders, not the general public.  Ordinary Americans might have the ability to hike, camp, and hunt and fish, but such access is not insured, and the nature of the access would be far different if our citizens become ticket-holders to private attractions. 

The collective holdings of the nation’s public lands protect access for all to the most inspiring areas on earth.  Debating what label best describes President Roosevelt’s brand of conservative principles or conservationist zeal is trivial in comparison to the serious issue of preserving America’s heritage in public’s lands.  Even from a purely economic perspective, selling public lands would be the worst deal in history. 

Going for Gold!

Posted on February 13, 2017 by Gail Port

Have any of you been feeling like this lately?  I certainly have!  Which is why, after struggling to come up with a topic for this blog, I decided not to write about the uncertain future of the US EPA or the man who has been nominated to lead that agency, concerns about the US withdrawing from the Paris Agreement, the frightening implications of climate change and unchecked global warming, the erosion of the Chevron doctrine, or the increasing disrespect for the judiciary.  Instead, I chose a topic that made me smile.

On February 1, 2017, the organizers of the Tokyo 2020 Olympics and Paralympics announced that the Olympic medals for the 2020 Games will be made entirely out of recycled materials from computers, mobile phones and other small electronic devices. This public initiative is in direct response to Recommendation 4 of Olympic Agenda 2020, which states that sustainability must be integrated into all aspects of the planning and execution of the Games.  The organizers have partnered with mobile phone operator NTT DoCoMo and the Japan Environmental Sanitation Center for a nationwide collection effort to gather 8 tons of metal from recycled electronics. It will involve over 2,000 collection boxes placed at offices and stores throughout Japan beginning in April 2017. The donated electronics will undergo chemical processing to separate out various metals to provide enough gold, silver and bronze for 5,000 medals.  The chemical production process is expected to result in 2 tons of metal: 42 kg of gold, 4920 kg of silver and 2944 kg of bronze. 

Olympic host cities traditionally have purchased the precious metals needed to make Olympic medals from mining firms.  A few host cities previously used recyclable materials in their medals.  Thirty percent of each of the silver and bronze medals from the Rio 2016 Olympics were made from recycled materials and the ribbons on which the medals were hung were made 50% from polyethylene terephthalate (PET) plastics.  The recycled silver came from mirrors, waste solders and X-ray plates while the bronze came from waste from the Brazilian Mint.  The gold was mercury free and in compliance with sustainability standards from extraction to refining.  At the Vancouver 2010 Olympics, a local mining and metals company processed 6.8 metric tons of recycled circuit boards for materials for medals.  The Japanese initiative, however, is the first to involve extensive public participation and, if successful, will be the first to have medals composed entirely of recyclables. Japan has scant mineral resources, so apart from being sustainable and raising public awareness about waste minimization and the multitude of opportunities for e-waste beneficial reuse, this project will also result in cost savings. 

As technology continues to advance and drive the electronics market forward, electronic products—and particularly smart phones—quickly become outdated and are discarded for the next model or generation. And, the life cycle of an electronic device ends at the consumer. While recycling and disposal of e-waste is regulated in Japan, enforcement can be lax and public awareness and compliance low. 

Of course, we face similar obstacles in the United States.  On the federal level, while EPA has some authority to address e-waste under the Resource Conservation and Recovery Act, it does not have broad authority to implement a comprehensive federal program covering recycling of e-waste.  The EPA relies largely on voluntary compliance programs, which are not well publicized. Given the current political climate, we are unlikely to see significant advancement in addressing the e-waste problem, even though having one comprehensive set of rules regarding e-waste recycling and beneficial reuse likely would be more efficient for the manufacturers and distributors of electronic products as well as for the public. 

At least in New York, things on the e-waste recycling front are more optimistic.  New York has been praised for its e-waste recycling program under the Electronic Equipment Recycling and Reuse Act, which provides comprehensive regulation impacting manufacturers, retailers, consumers and recyclers throughout the life cycle of electronic devices.  The New York State Wireless Recycling Act requires wireless telephone providers that sell phones to accept up to 10 old cell phones per person per day.  At the local level, New York City is participating in an initiative to contribute zero waste to landfills by 2030.  As part of this initiative, NYC urges consumers to donate old electronics through donateNYC, or to participate in the take-back or drop-off program mandated by the Wireless Recycling Act.

Regardless of whether an e-waste program is voluntary or mandatory, at the foreign, federal, state or local level, the public must be educated, engaged and willing to comply with the program for it to be effective. While it’s too early to tell how effective Japan’s Olympic initiative will be, it certainly is a smile-worthy, innovative way to engage the public.

WORRIED ABOUT OUR CLIMATE FUTURE? LOOK TO YOUR PLATE

Posted on December 15, 2016 by Peter Lehner

If the worst should happen—if the U.S. withdraws from the Paris climate agreement and rescinds President Obama’s Clean Power Plan—do we have any hope of protecting climate stability? Yes. Even in the face of such serious setbacks, all would not be lost. Clean energy and energy efficiency are already a part of our power system. Wind energy is less expensive than coal in some parts of the country, and the prices of wind and solar are expected to drop further still as projects already funded come online. Our vehicle fleet is more efficient than ever and will continue to save drivers money at the gas pump. And there’s another factor driving greenhouse gas emissions that we have enormous personal power to change: the way we eat. 

The effect of diet on climate change is extraordinary. According to a tool called the Global Calculator, developed last year by an international team led by the UK Department of Climate Change and the Environment, simply reducing (not eliminating) meat consumption worldwide—without any changes in other activities, including fossil fuel use—could move us nearly halfway toward meeting the 2° Celsius (3.6° Fahrenheit) limit in temperature rise set by the Paris agreement. By contrast, if the entire world ate meat in the way rich countries do now, emissions would go off the charts, even if we took big steps to cut climate pollution in other areas.

Eating meat—beef in particular—has a major impact on climate pollution because of the amount of carbon-storing forest that is cleared to raise grain for cattle, the emissions created by fertilizer used to grow that grain and the emissions from the digestive systems of cows themselves. Beef is responsible for about 20 times more climate pollution per unit of protein than lentils or beans and 8 times more than pork or poultry.

Eating meat, especially beef, has a major impact on climate pollution.

GLOBAL CALCULATOR

In the image above, the rising black line represents climate emissions if the world fails to take any other positive climate action. (All data is based on our modeling using the Global Calculator.) Continuing along our current path would lock us into 7.2°F of warming in this century and nearly 10.8°F in the long run, resulting in swamped coastlines, bleached coral reefs, increased disease, water insecurity and a host of other effects. On the other hand, if meat consumption falls to levels currently found in India (the caloric equivalent of eating one serving of chicken breast per week) and the proportion of beef in the meat we eat is reduced from 22 percent to 10 percent, as seen in China now, it would result in a major decline in emissions by 2050, as you can see in the falling green line.

The steep red line represents what would happen if meat consumption worldwide increased to current European levels (the equivalent of eating two servings of chicken breast per day) and the proportion of meat from beef increased from 22 percent to 28 percent, as seen now in Canada. In other words, if the world starts to emulate the diet of wealthier Western nations, emissions would rise sharply. In fact, emissions would climb beyond levels predicted under the worst-case scenario mapped by the Intergovernmental Panel on Climate Change in 2014. The panel warned of a two-foot rise in sea level by the end of this century, increasing the flood risks in coastal cities like Miami by 10 to 100 times. In other areas, droughts, deadly heat waves and tropical cyclones could also become more frequent and intense.

What’s alarming is that even if we pursue extremely ambitious reductions in climate pollution from transportation and energy, these efforts would not be enough to counteract the impacts of consuming meat at higher levels, as shown by the rising blue line on the chart.

Here’s the rub: The risk of catastrophic climate change will be almost impossible to avoid if we fail to address the impacts of meat consumption. As we ponder how the nations of the world will move forward to address climate change, and how America, in particular, will move forward under a Trump presidency, it’s heartening to know that a powerful solution like diet is available and relatively untapped.

No one expects the world to stop eating meat overnight, but we can reduce the amount of meat we eat. Many studies show that a diet high in plant-based foods and lower in red and processed meats benefits your health as well the climate. Restaurants and grocery chains are offering more plant-based options; there are even food delivery services like PlantPure Nation and Purple Carrot that make it easy to put a plant-based meal on the table. Food writer Mark Bittman’s “flexitarian” recipes are another good source of inspiration. As more people incorporate more plants and less meat into their diets, we’ll have a healthier population and a healthier planet, too.  

(This blog was first published by Earthjustice. http://earthjustice.org/blog/2016-november/worried-about-our-climate-future-look-to-your-plate)

Cuba Delegation Part 4: Las Terrazas

Posted on October 12, 2016 by Eileen Millett

I stood staring at the ruins of slave quarters on what had once been a 19th century coffee plantation situated in the northwestern part of Cuba ― Las Terrazas, in the Sierra de Rosario mountains.  I was struck by the unabashed preservation of the old with the new.  Slave quarters juxtaposed with Algarrabo cententarios trees growing up through the balconies and ceilings of La Moka, an ecological hotel.  La Moka is a modern twist on old colonial architecture, with a multi-tiered atrium lobby built around trees that disappear magically skyward.  We had journeyed 45 minutes from La Habana above the shores of San Juan Lake and beneath the mountains to another place and time. 

Las Terrazas is a biosphere with a protected ecosystem, a buffer zone that supports ecological practices, and an area that fosters ecologically sustainable development.  It combines a small community of about 1,200 people, many of them artists, with ecotourism.  The hotel and the buildings seem to melt into the mountains by design.   In those mountains, even with my Spanish proficiency, I struggled to understand Ariel Gato, in his artist studio, where hanging in the sun was his very own recycled computer paper for drawing, prints, and other art work.  Later, I learned his accent was shared by many farmers, or campesinos, influenced by the Haitian settlers who brought coffee, and spoke the French language.   Gato is renowned for his art work, but he is clearly more than simply an artist.  

In 1968, then-President Fidel Castro founded a green revolution, making Las Terrazas a green project.  Architect Osmany Cienfuegos mobilized work brigades that created terraces of timber, fruits, ornamentals and vegetables.  Starting in 1971, the brigades carved roads through the mountains to build homes, schools, playgrounds and clinics all surrounding San Juan Lake.  Owing to the success of the reforestation project, the biosphere came under UNESCO protection in 1984.

We walked through Las Terrazas and were treated to zip line tours, steel cables whisking people above Las Terrazas; enjoyed coffee that was muy sabroso; and learned something about the art of coffee-making along the way.  In the old days, slaves had to turn the coffee beans― red in their original form― every 30 minutes.  Still today, this dry method is used where water is scarce.   Coffee beans are spread out on huge surfaces to dry in the sun.  Beans are raked and turned throughout the day and then covered at night or during rain, in order to prevent the beans from spoiling.   From this vantage point on the ranch, we could see the port of Mariel, where the Brazilians and Cubans are building a major container terminal that will have the capacity to handle vessels deeper than Habana Bay, and will have facilities for offshore oil exploration.  We are marching toward a new day for Cuba.

Small expressions of sustainable initiatives seem to be on the rise in Cuba.  The day before visiting Las Terrazas, we visited a local permaculture project near Cojimar, a seaside village, best known for its setting in Ernest Hemingway’s novel The Old Man and the Sea.  Mosquitoes fell in love with me there, but we could have been in any 1950’s fishing village.  Nearby, we encountered a family-run business –Planta de Fregado—an ecological car wash that uses plant solids, gravity feed and carbon filtration for a completely organic car wash.  The owner was enthusiastically confident of replicating his system all over Cuba. 

In Cuba, the legacy of slavery and the old African traditions blend seamlessly with so much of the new world.  In some ways they are frozen in time and in other ways, not so much.  Little Zika problem here, at least with standing water outside, as we witnessed systemized mosquito spraying throughout the countryside.  However, the mosquito problem occurs with water indoors, as no amount of education convinces people not to keep glasses of water under their beds, in the corners of rooms and on dressers to ward off evil spirits or to bring good luck.  Officially Cubans are atheists, unofficially Roman Catholic, but in reality most Cubans practice Santeria, a system of beliefs that merges Yoruba myth with Christianity and indigenous American traditions.  The Cubans are unabashed in recognizing African influence in their music, their food and their religion.  Perhaps it has, too, influenced permaculture projects, and the biosphere reserve ― Las Terrazas.  

Cuba Delegation Part 3: Environmental Law and Policy Wonks Wanted

Posted on October 11, 2016 by Mary Ellen Ternes

Our ACOEL delegation to Cuba was an incredible opportunity to engage substantively with the lovely people of Cuba.  My personal experience is that the Cuban People are joyful, happy, warm, generous, well-educated and proud of Cuba.  Cuban literacy rates are extraordinarily high (97%), and with government funded education, the population has high rates of secondary education, including masters and PhD graduates, in science, medicine, engineering, architecture, and law as well as the creative arts, music, art, dance and so much more.

As a second career lawyer and chemical engineer, I loved engaging in Cuba’s electrifying mix of science and engineering education, creativity and equality.  But my fascination was also challenged by the need to fully appreciate contextual implications of Cuba’s post-revolutionary government, including government-controlled media and government-provided and government-directed education and careers, healthcare, housing and food distribution. This is a wholly different mindset from U.S. capitalism, of course, which takes time and engagement to fully explore and understand.  With its socialist roots and communist goals, most important in Cuba is equality:  equality between bricklayers and brain surgeons, as well as between women and men.  And while Cubans exhibit pride in their cultural emphasis on equality, a quality the U.S. is struggling to achieve in many respects, this emphasis may result in disincentive regarding the more challenging career choices.  Also, with government-controlled investment, we saw stark contrasts between recent and historic choices in investment, targeted skills and effective implementation contrasting with apparent inefficiencies and possibly strategic neglect.  For example, Havana’s recently completed opera house, which we were told was completed within three years by Cuban workmen, is a marvel of execution.  It is simply breathtaking and a great example of Cuban potential.  Yet several doors down are majestic and palatial structures built in the 1800’s, for which rooves and windows have long given way to healthy vegetation, and even trees, within roofless walls.

As environmental lawyers, of course, we were visiting to learn about Cuban environmental policies and to see if Cuba might be receptive to ACOEL’s offer of pro bono assistance.  Recall that the timing of Cuba’s disengagement from the U.S. occurred somewhere around Kennedy’s disastrous Bay of Pigs in April 1961 and the Cuban Missile Crisis in October 1962, which were contemporaneous with awakening of the U.S. consciousness regarding environmental policy with the first publication of Rachel Carson’s “Silent Spring” in September 1962.  In light of this, I did not expect to see evidence of U.S.-based or otherwise familiar environmental policies, practices or approaches. In our discussions throughout our visit, however, Cuba’s great interest in protecting the environment was quite clear, particularly Cuba’s focus on protecting native species and surface water and Cuba’s commitment to the Paris Agreement. 

Cuban historic domestic industries include textiles, footwear, cement, flour milling, fertilizer, nickel and steel production; mining for nickel, copper, chromium and manganese; and agriculture including tobacco (cigars!), henequen (agave), rice and coffee.  With Cuba opening up to the world, the Cuban government has received many proposals for development projects in the country including, of course, hotels and golf resorts, but also a long list of projects that can replace current imports and benefit from Cuba’s natural resources including:  radial tires, petroleum, automobiles and trucks, refrigeration and air conditioning, stainless steel and alloys, aluminum cans and glass bottles, tableware and other goods for the hotel industry, industrial waste treatment and waste-to-energy project proposals, pharmaceuticals, containers and equipment for drug storage, delivery and other medical uses, cell phones, concentrated animal feeding operations, animal and agricultural goods processing (for example, fruits and vegetables, soy bean, yeast, spirits (rum!), sugar, coffee, cacao, dairy, shrimp, chicken, pork, beef, charcoal), and many more industrial, commercial and consumer goods.

With the natural beauty and unique species native to the Cuban archipelago, the Cuban Government quite rightly demands demonstration up front that all projects will result in no unacceptable impact to the environment and native species.  However, in making this demonstration, proposed projects would greatly benefit from design and implementation of environmental management systems and approaches similar to those long implemented by the United States. For example, there may be a need for more air pollution control requirements for sooty stacks, even if Cuba is surrounded by ocean; limitations on releases of pollutants to the environment; and a systematic method of identifying, characterizing and managing solid and hazardous wastes produced by industry.  Also, many indicated they had concerns regarding water resources and expressed an interest in water conservation, efficient use of water resources and protection of surface and drinking water resources.  Certainly, when and if the lovely historical ghost structures so common throughout Cuba are to be preserved or redeveloped, systematic methods of renovation or redevelopment would be helpful.  And finally, as Eileen will share in her blog, there are opportunities and great enthusiasm in sustainability and conservation, including sustainable energy projects, and potentially exploration of more efficient approaches to electricity distribution, such as distributed energy generation, renewable energy and energy conservation.  But beyond the technical standards, more than anything, Cuba’s greatest opportunity may be in developing and adopting an integrated environmental program that will result in predictable, consistent and fair implementation, monitoring and enforcement, with reasonable penalties for noncompliance.

I am hopeful ACOEL has an opportunity to assist Cuba, and that our ACOEL Fellows catch our Cuban Enthusiasm and volunteer to join us in Cuba pro bono projects!

The Drama of the Massachusetts Power Wars

Posted on September 20, 2016 by Lisa C. Goodheart

Sometimes the most extraordinary things in the world of law and government get served up in the most undramatic way.  If you aren’t paying attention to the back story, and you don’t know the context, you might almost miss the action.  And future generations, seeking to decipher history, might all too easily overlook the most crucial and delicate tipping points.  This fact of life has been emphatically proven by the Pulitzer Prize-winning cultural juggernaut that is the Broadway musical Hamilton, by Lin-Manuel Miranda.  In addition to telling the very personal story of one of our nation’s founding fathers, Hamilton shows, in brilliant style, that even seemingly dry and technical matters such as the origins of our nation’s financial system, and the logic underlying the complex apparatus of modern administrative agencies, are actually fueled by passion, dripping with drama, and world-changing in consequence.  You just need to know whose story to tell, and how to read between the lines.

A recent case in point:  On August 17, 2016, the Massachusetts Supreme Judicial Court issued its decision in Engie Gas & LNG LLC v. Department of Public Utilities (Docket SJC-12051/SJC-12052).  Environmental and energy lawyers readily recognized the decision as an important one, but it’s easy to see how future generations, far from the current action, might miss the excitement here.  The question in Engie was whether the state utility department could approve ratepayer-backed, long-term contracts by electric distribution companies for the purchase and resale of interstate natural gas pipeline transportation capacity. 

To answer that question, the Engie court addressed, among other things, (1) the propriety of the appeal in the absence of a final adjudicatory order; (2) the pertinent standard of review, (3) the canon of statutory construction reddenda singula singulis, a.k.a. the rule of the last antecedent (which might also be merely a grammar rule), (4) whether ambiguity should or could be found in statutory language that neither expressly forbids nor clearly permits the proposed departmental action, (5) the parties’ competing interpretations of the legislative history, (6) the overall statutory framework, (7) the necessity of a “distributive reading” of the terms “gas or electric,” (8) the limitations of the deference to be afforded to an agency’s reasonable interpretation of a statute it is charged with enforcing, where the interpretation represents a significant departure from the agency’s own record of administering the pertinent statute, (9) the importance of ensuring consistency with the fundamental policy embodied in the legislation at issue, and (10) the interpretive pertinence of subsequent, separate legislation. Phew! 

Ultimately, the SJC rejected the utility department’s determination of the scope of its authority, and concluded that the pertinent statute forbade the imposition on electricity ratepayers of the costs of new natural gas supply infrastructure.  Like many judicial opinions concerning complex environmental and energy issues, the Engie decision has a sober logic that makes it seem unsurprising, correct, and even almost easy.  But wait – what just happened here? 

Ladies and gentlemen, we have an affair of honor!  One dueling party and its seconds, the state’s public utility department and electric distribution companies, contend that the policy choice by our state government’s executive branch to expand natural gas pipeline capacity is a sensible way of meeting our very real need for reliable electrical power.  Even as we move toward a more sustainable future of renewable energy, they say, we still depend urgently on new supplies of natural gas, obtained by means of fracking, to provide the essential “bridge” fuel, and we can all get ready for price spikes and power blackouts each winter if we ignore that reality.  It’s an emergency, and our future is at stake!  

The other dueling party and its seconds, who include the Massachusetts Attorney General and a coalition of environmentalists, land conservationists, and consumer and taxpayer advocates, insist that we don’t need any new natural gas infrastructure at all.  And if we don’t push much faster and harder for a larger-scale shift to more environmentally sustainable ways to support our energy consumption, they say, we are fiddling while Rome burns. It’s an emergency, and our future is at stake!

Grappling with the fine points of utility infrastructure regulation and financing may make some people’s eyes glaze over.  To which I say, are you kidding?  I can’t think of another moment when our courts were faced with environmental and energy law disputes more laden with tension and drama.  This is the high-stakes, heroic, dueling-on-the-ledge stuff on which our future history depends.  It could practically be a Broadway musical.

The Arctic: A Region of Future Conflict or Cooperation

Posted on July 20, 2016 by William M. Eichbaum

Among the most dramatic impacts of global warming is Arctic change.  On the one hand, we are witnessing the unprecedented melting of ice and snow, loss of habitat for globally unique species, and threats to centuries-old patterns of human livelihood.   On the other, as the Arctic becomes more accessible, there is a rush to satisfy the global thirst for natural resources creating yet greater environmental jeopardy for the region.

The popular press has raised the specter of possible conflict among nations as this newest wave of resource exploitation accelerates.  These concerns have been exacerbated as tensions have increased between NATO countries and Russia over Ukraine, among other geo-political issues.  In fact, there are several examples of Arctic countries increasing military presence in their Arctic territories.

However, from my vantage point, the Arctic is unlikely to erupt into a new zone of conflict as nations pursue resource development.  That’s because, there have been few instances of dispute over actual territory, with the most significant ones involving only Canada, the United States, and Denmark.  While Russian claims regarding the Arctic Ocean seabed are much discussed in the media, other “Arctic nations” are making similar claims.  These claims are all subject to resolution pursuant to the United Nations Convention on the Law of the Sea.  (To some there is irony in the fact that United States’ failure to accede to this Convention means that the United States may be unable to perfect its Arctic seabed claims.

Despite increased accessibility, exploiting natural resources in the Arctic region will continue to be dangerous and difficult.   Governmental cooperation in governance of the Arctic region will be essential to provide the platform for Arctic economic activity to advance in an environmental, social, and economically sustainable manner

Since 1996, The Arctic Council, consisting of the eight Arctic countries, permanent participants representing indigenous people, and observers, has been the focal point for developing the science necessary to meet this challenge.  Under the leadership of the US Government, currently the Chair of the Council, a Task Force is considering stronger measures to assure that the recommendations of the Council are implemented.  In a recent paper published by The Polar Record I addressed issues key to strengthening Arctic governance, especially in the marine environment. http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=10379682&fulltextType=RC&fileId=S0032247416000462 At this juncture, Arctic countries, including Russia, are positively exploring options for achieving such cooperation.

This summer a tourist vessel with over a thousand passengers is crossing the Canadian Arctic, through seas where a ship one-tenth that size recently ran aground, requiring evacuation of all passengers and crew.   While Shell aborted future hydrocarbon exploration in the Bering and Chukchi Seas following numerous accidents and missteps in the summer of 2012, robust development continues elsewhere in the Arctic.  And distant water fleets are moving ever northward in pursuit of fish.  Without strong mechanisms for cooperation on governance of the region by the Arctic countries, these and other activities pose meaningful environmental threats to the Arctic beyond the climate change narrative.    With strong cooperation, however, they can be made to be sustainable not just for the natural resources of the region but also for the people of the Arctic. 

Perspectives of Twenty-four Pioneers on the Past and Future of Environmental Law

Posted on June 16, 2016 by Leslie Carothers

On Earth Day 2016, the Environmental Law Institute presented to the public a collection of 24 videotaped interviews conducted over the past five years to record the career experiences of many pioneers of environmental law.  The men and women profiled were active in the environmental movement in the sixties and early seventies.  They served as Democratic and Republican legislators, organizers and advocates for public interest organizations, administrators of national and state environmental agencies, academics producing new ideas and educating new lawyers, and legal counsel to business and government agencies contending with a host of new environmental laws.   ELI’s interviewers wanted to learn why these pioneers chose to enter the field of environmental law, what they see as its major successes and shortcomings, and how they view the health of environmental activism and public commitment today.

Among other things, the oral histories provide interesting insight into the roots of activism for early environmental lawyers and what different life experiences and motivations may influence today’s new environmental lawyers.  Practically every pioneer spoke of enjoyment of nature and the out of doors experienced through growing up on a farm or in rural areas or visiting campsites and parks on family vacations and scouting trips.  They witnessed both the beauty and the degradation of natural and scenic resources and were inspired to seek ways to protect them.  The other factor mentioned most often was the example and energy of other social movements in the sixties and seventies, first and foremost the civil rights struggle.  Personal experience and the climate of social activism combined to motivate many environmental pioneers to become leaders in the new environmental movement. 

Most of the pioneers express optimism that new generations of young women and men will take up activism and environmental law to attack today’s agenda of complex and serious problems.   But many worry that the communications technology building young people’s impressive expertise may also be keeping them glued to their screens and disconnected from the natural world.  Robert Stanton, former Director of the National Park Service and the first African American to hold the position, comments in his interview that we should not be unduly critical of young people who spend so much time inside.  He observes that when he was growing up, there were only a few black and white TV channels to compete with going outdoors!   Still, a lifelong activist like Gloria Steinem believes that excessive dependence on electronic connections can weaken the interpersonal qualities of empathy that depend on face-to-face communication and can dilute the emotional drivers for action in concert with others.  Activism means more than making a statement and pressing “send.”    The impact of technology is just one of many issues discussed in an engaging set of interviews available to all.  Visit ELI’s website at http://www.eli.org/celebrating-pioneers-in-environmental-law for a unique source of perspective on the evolution of environmental law and the prospects for further progress on pressing problems in today’s very different social and political setting.

Looking Back Over 100 Years of the National Park Service, Looking Ahead to the Future of Environmental Law

Posted on May 20, 2016 by Benjamin F. Wilson

August 25, 2016 is the 100th anniversary of the National Park Service.  The many planned celebrations and observances provide an opportunity for everyone to become reacquainted with these great outdoor spaces and reflect on the world around us.  As your summer plans take shape, be sure to visit FindYourPark.com and try to visit at least one national park.  I invite you to share photos of your travels in the comments section of this post, and perhaps ACOEL can find a place for the collection of images of its members enjoying these national treasures.

As I reflect on the Park Service’s anniversary, I observe that it presents a chance for me – and for all environmental lawyers – to take stock of where we have been as a profession.  Why – and how – we do what we do?  What challenges will the next 100 years hold?

I issue this charge, in part, to carry on the conservation legacy of Henry L. Diamond.  Henry was a founder of my firm, Beveridge & Diamond, and a great environmental lawyer and mentor to many (including myself).  Sadly, we lost Henry earlier this year.

Henry and many others like him paved the way for our generation to be stewards of the planet and the environmental laws that govern our interactions with it.  We have made progress, but new challenges have emerged.  Easy answers, if they ever existed, are fewer and farther between.  So what, then, does the future hold for the next generation of environmental lawyers? 

Future generations of lawyers would do well to focus on the funding mechanisms that are critical but often overlooked components to achieving our most important environmental and sustainability goals.  As an example, we can look to the past.  Early in his career, Henry Diamond assisted the Chairman of the Outdoor Recreation Resources Review Commission, Laurance Rockefeller, in editing the Commission’s seminal report, Outdoor Recreation for America, that was delivered to President John F. Kennedy in 1962.  Among the Commission’s more significant recommendations was the idea to use revenues from oil and gas leasing to pay for the acquisition and conservation of public lands.  Congress took action on this recommendation, creating the Land & Water Conservation Fund in 1965 as the primary funding vehicle for acquiring land for parks and national wildlife refuges.  While the fund has been by all accounts a success in achieving its goals, much work remains to be done and the fund is regularly the target of budgetary battles and attempts to reallocate its resources to other priorities.  Today, the four federal land management agencies estimate the accumulated backlog of deferred federal acquisition needs is around $30 billion. 

I expect climate change will dominate the agenda for the young lawyers of our current era.  They will need to tackle challenges not only relating to controlling emissions of greenhouse gases, but also adaptation resulting from climate change.  Sea level rise, altered agricultural growing seasons, drought and water management, and other issues will increase in prominence for this next generation.

We can expect our infrastructure needs to continue to evolve – not only replacing aging roads, bridges, tunnels, railroads, ports, and airports, but also the move to urban centers and the redevelopment of former industrial properties.  Autonomous vehicles and drones also pose novel environmental and land use issues.  These trends will require us to apply “old” environmental tools in new ways, and certainly to innovate.  As my colleague Fred Wagner recently observed on his EnviroStructure blog, laws often lag developments, with benefits and detractions.  Hopefully the environmental lawyers of the future will not see – or be seen – as a discrete area of practice so much as an integrated resource for planners and other professions.  Only in this way can the environmental bar forge new solutions to emerging challenges.

The global production and movement of products creates issues throughout the supply chain, some of which are just coming to the fore.  From raw material sourcing through product end-of-life considerations, environmental, natural resource, human rights, and cultural issues necessitate an environmental bar that can nimbly balance progress with protection.  As sustainability continues its evolution from an abstract ideal to something that is ever more firmly imbedded in every aspect of business, products, services, construction, policymaking and more, environmental lawyers need to stay with their counterparts in other sectors that are setting new standards and definitions.  This area in particular is one in which non-governmental organizations and industry leaders often “set the market,” with major consequences for individuals, businesses, and the planet.

Finally, as technology moves ever faster, so do the tools with which to observe our environment, to share information about potential environmental risks, and to mobilize in response.  With limited resources, government enforcers are already taking a page from the playbooks of environmental activists, who themselves are bringing new pressures for disclosures and changes to companies worldwide.  With every trend noted above, companies must not underestimate the power of individual consumers in the age of instantaneous global communication, when even one or two individuals can alter the plans and policies of government and industry.

Before Henry Diamond passed away, he penned an eloquent call to action that appeared in the March/April edition of the Environmental Law Institute’s Environmental Forum (“Lessons Learned for Today”)I commend that article to you.  It shares the story of the 1965 White House Conference on Natural Beauty and how a diverse and committed group of businesspeople, policymakers, and conservationists (some of whom were all of those things) at that event influenced the evolution of environmental law and regulation for the decades to come.  Laws such as the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, and others have their roots in that Conference.  In recognition of his lifetime of leadership, Henry received the ELI Environmental Achievement Award in October 2015.  The tribute video shown during the award ceremony underscores Henry’s vision and commitment to advancing environmental law.  I hope it may inspire ACOEL members and others to follow Henry’s lead.

These are just a few things I think the future holds for environmental lawyers.  What trends do you predict?  How should the environmental bar and ACOEL respond?  

Is Our Diet Healthy if it Threatens the Planet? Environmental Sustainability and the Dietary Guidelines for Americans

Posted on October 8, 2015 by Lisa Heinzerling

This week, the Obama administration passed up an opportunity to promote environmental sustainability by incorporating sustainability into the Dietary Guidelines for Americans. The Secretaries of the Departments of Agriculture and Health and Human Services, Tom Vilsack and Sylvia Burwell, announced in a blog post that they would not follow the recommendation of their scientific advisory committee by incorporating environmental sustainability into the dietary guidelines. Their decision is unfortunate, and reflects a crabbed understanding of their authority under the law.

Experts on food systems have long drawn a connection between a healthy environment and food security. The representatives of the 185 countries present at the first-ever World Food Summit in 1996, for example, observed the links between food insecurity and environmental problems such as the loss of biodiversity, desertification, overfishing, degradation of land, forests, water, and watersheds, and ecological changes brought on by global warming. A substantial impetus behind the contemporary food movement is the conviction that our food system, and the security of the food supply it creates, is only as stable as the environment from which it comes. Even the Pope is onto the intimate connection between food security and the environment: the 2015 papal encyclical on the environment and poverty, Laudato Si', emphasizes the importance of a healthy environment to a secure food system. As Wendell Berry, the great agrarian and essayist, has put it, "What is good for the water is good for the ground, what is good for the ground is good for the plants, what is good for the plants is good for animals, what is good for animals is good for people, what is good for people is good for the air, what is good for the air is good for the water. And vice versa."

Federal agencies in the United States have increasingly been urged to recognize the relationship between a healthy environment and secure food. A recent entry in this field is the 2015 recommendation from a scientific advisory committee to the Department of Agriculture (USDA) and the Department of Health and Human Services (HHS), urging that these agencies revise the Dietary Guidelines for Americans to take into account the environmental consequences of industrial agriculture and their implications for future food security. 

The Dietary Guidelines for Americans are, as USDA and HHS have described them, "intended to be used in developing educational materials and aiding policymakers in designing and carrying out nutrition-related programs, including Federal nutrition assistance and education programs," and they "also serve as the basis for nutrition messages and consumer materials developed by nutrition educators and health professionals for the general public and specific audiences, such as children." Previous iterations of the Dietary Guidelines for Americans have contained recommendations on intake of fat, sodium, alcoholic beverages, physical activity, and more. The influence of the Guidelines on food assistance programs and educational initiatives has long made them a focal point for political and scientific controversy.

The statutory basis for the Dietary Guidelines for Americans is the National Nutrition Monitoring and Related Research Act of 1990. The Nutrition Monitoring Act requires the Secretaries of Agriculture and Health and Human Services to "publish a report entitled 'Dietary Guidelines for Americans'" every five years. This report is to contain "nutritional and dietary information and guidelines for the general public." The information and guidelines must be "be based on the preponderance of the scientific and medical knowledge which is current at the time the report is prepared." 

Information and guidelines concerning the environmental sustainability of our present diet are assuredly "dietary information and guidelines for the general public." The exhaustive report prepared by the scientific advisory committee, reflecting current evidence on the link between dietary choices and environmental sustainability, certainly reflects "the preponderance of the scientific … knowledge which is current" at this time. The secretaries of USDA and HHS would have been well within their range of legal discretion in deciding that environmental sustainability – no less than advice on alcohol consumption or physical activity – should be considered in developing food assistance packages and educational programming for Americans. Indeed, given the huge contribution of agriculture to climate change, incorporating environmental sustainability into the dietary guidelines could well have become an important feature of the Obama administration's legacy on climate change – if the secretaries of USDA and HHS had had the vision and will to make it so.

Can Environmental Lawyers Save The Earth

Posted on April 8, 2015 by Charles Tisdale

What is your favorite place on Earth.  The beach.  The mountains.  A hiking trail to a waterfall.  A river or lake.  People are drawn to water, mountains, and forests.  Being in nature switches off the analytic left brain, turns on the creative right brain, and activates the heart and body.  Experiencing the environment is like mindful meditation. 

What is the biggest challenge the world faces?  Controlling technology.  Curing diseases.  Making the world safer.  Preventing a nuclear disaster.  Overcoming poverty.  Preventing another economic depression.  Reducing illiteracy.  We can address many of these social problems.  However. we cannot control nature.  We have to learn to live with nature.  If we cannot learn to live with nature. we will destroy the earth and ourselves.

Sea levels are rising faster and glaciers are melting more rapidly now than in 1950.  Hurricane Katrina and Super Storm Sandy are powerful reminders that man cannot control nature.  Record snowfalls in the northeast shut down many activities in 2014 and 2015.  California is in a prolonged drought.   

In the 1970’s, America’s concern for the earth led Republicans and Democrats to create the laws and regulations which are universally recognized as the most successful environmental laws in the United States.  Other countries used these laws as models.  These laws include the 1970 Clean Air Act, the 1972 Clean Water Act and the 1976 hazardous waste law.  Richard Nixon created EPA in 1970.  April 22, 1970 was the first Earth Day.

The Clean Air, Clean Water and hazardous waste laws are still used to limit the discharge of pollution into the environment.  However, science has discovered new environmental problems and sources of pollution which require amendments to the 1970’s laws or new regulations.

Congress will not amend the 1970’s laws to give EPA the authority to control new sources of pollution.  Congress opposes new regulations proposed by EPA.  Many legislators contend that additional pollution controls will bankrupt American industry because other countries can make cheaper products since their industries do not have to pay for pollution controls.

What motivated Congress to create the Clean Air, Clean Water and hazardous waste laws in the 1970s?  I believe that powerful images of environmental crises  captured in photographs touched everyone, regardless of their political party.  (1) The Cuyahoga River catching fire near Cleveland in 1969.  (2) Chattanooga air pollution so dark that headlights were necessary to see at noon on a sunny day.  (3)  Containers leaking hazardous waste into the Valley of the Drums in Kentucky.

Has our concern for the earth disappeared?  No.  Businesses and citizens are finding sustainable solutions to environmental problems.  Recycling saves money.  Businesses and citizens will not buy unhealthy products.  Consumers want utilities to use nature’s energy: sun, wind and water.  Local farms and gardens provide more of our food.

Americans are still concerned about the earth.  Scientists tell us that emissions from cars cause air pollution which prevents children from playing outside on hot sunny days in Atlanta, Houston and Los Angeles.  Runoff from cities and farms causes pollution which makes some rivers unsafe for swimming.  Why have our concerns and new scientific discoveries not led Congress to take actions to address today’s most serious environmental issues?  How can we educate our leaders and generate the consensus that leads to support of new pollution controls.  What are the actions, the events and the pictures that will motivate Americans to find the common understanding needed to agree on new laws and regulations.

Environmental lawyers can save the earth.  Why and How?

Why?

Environmental lawyers care about the environment.  We may fight about how clean is clean.  We may disagree on how stringent an air or water discharge standard must be.  But we all want to reduce pollution to levels that protect human health and the environment and are cost effective.

How?

(1)        Education – Environmental lawyers representing industry, EPA, states and environmental non-profits learn the relevant scientific facts and applicable laws.  Environmental lawyers can teach clients, legislators, agency officials, judges and the public.

Education is critical to reaching agreement on action to protect the environment.

(2)        Advocacy – Environmental lawyers are trained to marshal the facts and law and advocate for change in legislatures and courts.  Environmental lawyers are experts in relevancy and advocacy.

(3)        Facilitated Agreements – Environmental lawyers representing industry, government and environmental advocacy groups regularly resolve environmental disputes without litigation or soon after litigation is commenced.

Environmental lawyers know that litigation is a last resort.  Environmental lawyers can teach their clients that a mediated settlement is superior to giving up control of the outcome to a judge. 

(4)        Alternative Dispute Resolution – When the operator of a hazardous waste site cannot clean up the site, the parties who sent waste to the site must clean it up.  Environmental lawyers created a mediation process which enables each company to agree on a percentage of the cleanup cost without lengthy litigation.  The mediation process enables the companies to clean up hazardous waste sites faster and cheaper than EPA. 

(5)        Cleanup of Contaminated Property - In the 1980’s, environmental lawyers created the “Brownfield” process in which a natural biological solution is used to clean up contaminated property so that it can be used again.  The private sector taught EPA that waste sites could be reused rather than abandoned.

(6)        Private Sector Cleanup – Legislators and EPA set the pollution standards.  However, environmental lawyers and the private sector can clean up pollution faster and cheaper that any governmental agency.

(7)        Aid To Other Countries – Congress is concerned that new environmental regulations will be so expensive that U.S. businesses will not be able to compete with other countries who continue to pollute.  China is often used as an example.  Lawyers from the American College of Environmental Lawyers (ACOEL) have given free legal advice to the Chinese government on how to eliminate pollution through use of daily fines, a concept that was fundamental to enforcement of the 1970’s Clean Air and Clean Water laws.  Chinese companies are spending money on pollution control.  American industry will not be at a competitive disadvantage in pricing its products.

(8)        White Papers – In 2014, ACOEL lawyers prepared “White Papers” explaining the facts and law on proposed EPA water and air regulations.  Lawyers representing all views worked together on the White Papers.  The White Papers educate.  They do not advocate.  State environmental agencies have praised these White Papers.

Can Environmental Lawyers Save the Earth?  Yes we can.  We need to continue educating our children, our citizens, and our leaders in business, government, and nonprofits.  The 1970s environmental laws and regulations can be amended to save the earth.  

Cole Porter Was Right: The Economic Cost of Climate Change

Posted on December 18, 2014 by Seth Jaffe

There has already been significant discussion of the economic impacts of climate change. Damage from catastrophic events, the cost to build adaptation measures such as sea walls; these have all been examined. Now, a National Bureau of Economic Research Working Paper suggests a much more direct measure. Apparently, we’re just not as productive as the planet warms.

Cole Porter knew what he was talking about.

When Will My Leftover Turkey Power My Electric Car: A Post Thanksgiving Reflection on the Promise and Challenge of Food Waste Bans

Posted on December 1, 2014 by Adam Kahn

Food is a big part of why Thanksgiving is my family’s favorite holiday.  Over the years, we have tried to eat sensibly and sustainably, and to waste less food. But on the Monday after Thanksgiving, I suspect we are not alone as we contemplate the wilted salad, the wan sweet potatoes, and the last of the now not-so-attractive leftover turkey.  Indeed, one recent study by NRDC estimated that Americans throw away 40% of their food. 

In the last few years, declining capacities at conventional solid waste disposal facilities, combined with the realization that there are more beneficial things to do with food waste and other organics than to throw them in a landfill or burn them have led to partial food or organic waste bans in California, ConnecticutMassachusetts, Vermont, as well as in cities such as Seattle, San Francisco,  and New York.

Of course, these ambitious waste segregation programs require that there be an alternative location to reuse or process these materials.  Historically, organics have been transformed into compost or animal feed.  Unfortunately, the volume of the waste stream is far in excess of what existing, generally small composting facilities can handle.  Larger facilities that might be able to increase capacity are generally located far from urban and suburban centers that generate the waste.  Many regulators have recognized the need to create an infrastructure to handle this material but a more comprehensive national program is needed if we are really going to stop throwing our food into landfills.

One of the most promising technologies to manage the large amount of organic waste generated near city centers is anaerobic digestion (“AD”). AD systems use anaerobic bacteria to break down organic matter into methane and carbon dioxide. The resulting methane can generate energy in place of traditional fossil fuels.  A large-scale system might generate as much as 8-10 MW of electricity (enough to power 8-10,000 homes), while diverting thousands of tons of organics from landfills.  And as a bonus, the residual materials can be used as compost or soil amendments.  AD systems are well established at wastewater treatment plants and are emerging at certain large agricultural operations.

But there have not been many large scale AD systems designed to handle the anticipated flood of organics that will soon be separated from the general waste stream.   Part of the problem may be one of raw material supply – a single large AD system may need hundreds of thousands of tons of segregated organic materials annually.   The waste bans may help develop a reliable supply.   Siting of these facilities presents other challenges.  Some states, most notably Massachusetts have amended regulations to make it easier (though certainly not “easy”) to permit these facilities, at least on a state level. Hopefully other regulators will follow suit, allowing market forces to coalesce and expand what is now a nascent industry. Otherwise the organic material diverted from the solid waste stream by well-intentioned laws and rules will pile up in unpleasant ways.

Product Stewardship – Coming to a state or locality near you

Posted on October 15, 2014 by Kenneth Gray

Product Stewardship.  It sounds friendlier than “Product Responsibility” or “Extended Producer Responsibility,” but it means the same thing:  arranging for collection and recycling or disposal of unused or waste products.  Mandatory in the European Union and the subject of aggressive national programs in Germany and a growing number of countries worldwide,  the U.S. has continued its state-by-state approach promoting recycling – but for a growing number of products and in more and more jurisdictions.

We may have initially started with glass, paper, and metal in the 1970’s, but the range of products and materials covered is now broad:  from batteries, tires, beverage containers, electronics, and tires, to carpets, mattresses, and paint.  Pharmaceuticals may be in the offing.  A new final rule from the U.S. Drug Enforcement Administration would allow voluntary drug collection options for retail pharmacies, drug distributors, and hospitals/clinics with an on-site pharmacy.  

Of course, there is a “trade association” – the Product Stewardship Institute -- whose members are state and local governments and businesses and NGOs.  According to PSI, two states -- California (my birth state) and Maine (my adopted state) -- lead the country with seven or more different types of programs for products.   (To see how your state compares, see http://productstewardship.site-ym.com/?State_EPR_Laws_Map.)

 Legislatively, some of these programs were developed on a product-by-product basis, but both California and Maine have adopted over-arching framework product stewardship laws or regulations allowing the addition of more products.  And some municipalities aren’t being shy – the Ninth Circuit just upheld a 2012 ordinance from Alameda County, California requiring manufacturers to pay for collection and disposal of consumers’ unused medications. 

Some of these programs are after-market recycling operations.  Others are closer to product “take-back” requirements.  The common features of these schemes are a deadline for a program submission (e.g., from a trade association and retailers), fees and potential cost-sharing, management regulations and limited government oversight, and proper recycling or disposal options.  “Reverse distribution” options have been favored by some retailers, who benefit from the additional foot-traffic of potential shoppers – if they can stand the paperwork and regulatory burdens.

If you believe the literature, everyone is a winner:  municipalities have less waste to manage thereby reducing their disposal costs; recycling and reclamation occur reducing energy and greenhouse gasses; wastes are properly managed; and coveted “green” jobs are created.   Obviously, some costs are transferred to businesses in the short term (though as consumers or taxpayers, we all ultimately pay). 

More than a few manufacturers and industries are on board.  Some trade associations -- like the American Coatings Association -- have created non-profit organizations to promote and operate state programs.  ACA has set up PaintCare Inc., a non-profit operating paint collection programs in seven states, with more to come.

In advising the Republic of Kazakhstan on possible product stewardship plans, our firm had occasion to consider “best in world” programs.  By contrast to the U.S., the European Union has incorporated Extended Producer Responsibility into the E.U.’s Waste Framework Directive, 2008/98/EC.    At this point, Germany is probably leading the E.U. through its Closed Substance Cycle Law (KrWG),  intending to promote the “circular economy” by requiring products stewardship to be addressed during the design phase.  The goal?  Development, manufacture and marketing of products that are reusable, recyclable, durable and technically suitable for environmentally safe disposal.  While the U.S. plays out these issues on a jurisdiction-by-jurisdiction and product-by-product basis, Germany is trying a very ambitious comprehensive, national approach.   The German effort has run into the complicated realities of sharing collection costs among and between manufacturers and German state and local waste management programs.  The country faces additional challenges of collecting and recycling automobiles and all packaging materials, two of the more interesting programs being implemented.

Don’t expect a national law in the U.S. anytime soon, but watch this Product Stewardship trend – it is one of the more interesting developments in environmentalism – and look around.  What products will be next in your state?  Or in your county?  And yes, Kazakhstan is weighing adoption of an Extended Producer Responsibility law this fall.

The Investors' Climate March: Divestment & Reinvestment

Posted on September 25, 2014 by David B. Farer

Momentum continues to build as investors and fund managers develop and  implement policies and investment guidelines favoring sustainability and clean energy, and disfavoring -- and in certain cases shedding --  investments in companies that are major producers of carbon emissions and greenhouse gases.

While legislators and regulators continue to grapple with the means to establish and enforce mandates to fight climate change, sectors of the investment community are weighing in by redeploying capital.

Two recent developments illustrate different approaches to investor action on climate change.

In the first, Yale University’s Chief Investment Officer, David Swensen, reportedly issued a letter to Yale’s outside investment managers requesting that they take into account climate change impacts and greenhouse gas emissions in evaluating investment options.  Yale’s Investment Office is reputed to oversee the second largest endowment in the U.S., valued last year at close to $21 billion.

The Rockefeller Brothers Fund (RBF), a philanthropy valued at $860 million this year,  announced that it is working to divest itself from fossil fuel investments.  RBF, which in 2010  had already committed ten percent of the endowment to investments consistent with the goals of its Sustainable Development program, will focus initially on coal and tar sand investments, with the goal of reducing those exposures to less than one percent of the portfolio by the end of the year, while analyzing exposure to remaining fossil fuel investments in order to implement  a strategy for additional divestments in the coming years. 

The Yale approach stops short of requiring divestment from existing portfolio holdings, and, as reported by the Yale Daily News,  Mr. Swensen’s letter came after the Yale Corporation Committee on Investor Responsibility voted against divesting the endowment’s holdings in fossil fuel companies.  Still, the Yale paper quoted the letter as stating:  “Yale asks its [investment managers] to avoid companies that refuse to acknowledge the social and financial costs of climate change and that fail to take economically sensible steps to reduce greenhouse gas emissions.”

The RBF announcement follows the growing number of individuals and  institutions that have determined to sell off their fossil fuel holdings in the last few years.  The announcement came a day after more than 300,000 participants gathered in New York City for The Peoples’ Climate March, and a day before commencement of the U.N. climate change summit in New York. 

The New York Times cites a report from Arabella Advisors that investors ranging from wealthy individual  to pension funds, and from philanthropic and religious organizations to local governments, have committed to divesting over $50 billion in fossil fuel investments and to turning to investments in cleaner energy.

Socially responsible investment strategies are nothing novel; funds dedicated to such benchmarks have been around for years.  But as the Times article pointed out, it is notable that the latest reported entrant in the fossil fuel divestment trend is a fund established by a family whose wealth was substantially derived from the oil industry. 

Task Force Recommends Stronger ABA Leadership on Sustainability

Posted on September 2, 2014 by John Dernbach

Will the ABA make leadership on issues of sustainability a permanent part of the organization's infrastructure and policy?  That is the key recommendation of the American Bar Association’s Task force on Sustainable Development.  The July 31, 2014 Task Force report recommends that the ABA strengthen its ability to provide leadership on sustainability by creating a sustainability entity within ABA that is directly responsible to the ABA president.  “First and foremost,” the report said, "[the ABA] should establish a permanent infrastructure for integrating sustainability within the ABA over the long term.” 

As recommended by the Task Force, the sustainability entity  would engage "the entire organization and membership, and convey the ABA’s ethic for economic, social and environmental responsibility" under a “leadership team that reports directly to the ABA President.” 

The sustainability leadership entity would be guided by a short “written statement of ABA’s vision and values on sustainability relevant to the legal profession.”   It would be responsible for issuing an “annual report on ABA’s progress toward achieving sustainability” and on “law-related developments” on sustainability.  In addition, it would run an “ABA-wide program of annual awards for exemplary sustainability efforts by lawyers, law organizations, and others.”   Finally, it would be responsible for “[m]aintaining and enhancing the Resource Center” by, among other things, “making it prominently accessible from the ABA homepage.” 

The Task Force recommendation follows from then-ABA President James R. Silkenat’s 2013 charge to the Task Force to “focus on ways that the ABA can provide leadership on a national and international basis on sustainable development issues.”  (See my earlier blog, “ABA Task Force to Help Mainstream Sustainability in Law Practice.”)

The report also described the Task Force’s achievements in its first year.  Chief among these is the creation of an online Resource Center "that is dedicated to provide, on an ongoing basis, sustainable development tools, links, and other information for lawyers and law organizations.” 

The Task Force, which has twenty members (including me) representing the private sector, government, nongovernmental and intergovernmental organizations, and academia, is chaired by Lee A. DeHihns, a member of the Environmental & Land Development Group at Alston & Bird in Atlanta, Georgia and a former chair of the ABA Section on Environment, Energy, and Resources.  Although the Task Force was originally established for one year, the ABA Board of Governors has approved the Task Force for a second year.  In its second year, the Task force plans to address three additional areas where greater effort is needed to foster sustainable development: legal education, the role of lawyers, and government. 

On legal education, the task force will consider, among others, a recommendation to “identify specific areas of knowledge and practice skills that current lawyers and law organizations should possess in order to assure the basic understanding of sustainability needed for the competent practice of law in the 21st century.”   It will also consider a recommendation for the development or endorsement of “sustainability education and certification programs (via law schools or [continuing legal education] providers) that would enable lawyers who have taken a specific number of hours of sustainability-related courses to obtain a certificate.” 

On law practice, the task force will consider, among others, a recommendation that the ABA encourage all lawyers to consider ways of incorporating sustainable development into their law practice.   On government, the Task Force will consider specific ways of supporting the U.S. Environmental Protection Agency in fostering sustainability, as provided by EPA’s new strategic plan. 

The report notes that lawyers tend to lag behind their clients: “Clients, including business and industry clients, as well as nongovernmental and governmental clients, have become increasingly engaged in sustainability, with growing sophistication and more intensive commitment….[Yet] the legal community has been noticeably absent from meaningful participation in many sustainability ‘communities of practice.’  The Task Force is working to change that dynamic.” 

Of course, the recommendations  in this report are just that: recommendations.  The ABA will decide how to respond to them by following its normal policymaking processes.  However, the establishment of the Resource Center makes it easier for lawyers to obtain relevant information about sustainability.  Keeping the Task Force active for a second year provides an opportunity for continued dialogue. 

What is this NY Green Bank?

Posted on May 21, 2014 by Eileen Millett

With a heap of fanfare, in mid-February, New York’s Governor Cuomo announced that the NY Green Bank is open for business.  Cuomo began ramping up his clean energy policy last summer, with the appointment of Richard Kauffman, as New York’s chairman of energy and finance, and Chair of the New York State Energy Research and Development Authority (NYSERDA).  Kauffman was the former U.S. Energy Secretary Steven Chu’s senior advisor on clean energy finance.  NY’s energy and finance chair is making it clear that government subsidies alone have not been successful in creating a robust clean energy marketplace.  Kauffman believes that government could encourage the development of private sector capital markets by helping to foster a demand for a low carbon economy.  The creation of new Green Banks could lead to permanent, steady and reliable financing for clean energy efficiency projects, and create clean-energy jobs along the way.  It’s a win- win for everyone, ensuring a low carbon future and building long-term economic prosperity.  New York is not alone, the United Kingdom has a national Green Investment Bank, and in the U.S., Connecticut, Vermont and Hawaii, have Green banks.  New York expects that NY Green Bank will advance the state’s clean energy objectives. 

Established in June 2011, Connecticut’s Clean Energy Investment Authority was the first state green bank, the first of its kind in the country.  On the federal level, the Green Bank Act of 2014 was first introduced in April, in the U.S. House of Representatives by Congressman Chris Van Hollen of Maryland, and Senator Chris Murphy of Connecticut introduced a companion bill in the Senate, as well.  In 2009 a bill passed the House, but not the Senate.  The Green Bank Act of 2014 would establish a Federal Green Bank with a maximum capitalization of $50 billion from Green Bonds and the authority to co-fund the creation of state-level Green Banks with a low-interest loan of up to $500 million. The legislation provides for the Green Bank to be supported with $10 billion in “Green Bonds” issued by the Treasury; it will have a 20 year charter and will be able to acquire another $40 billion from Green Bonds.  Passing the Green Bank Act of 2014 would give all states the option to receive funds from the federal government to assist with financing on a local level and to encourage the movement to a clean energy future.  This appears to be yet another arena where the states will take the lead and eventually the federal government will follow.

NY Green Bank is a state sponsored investment funding institution created to attract private funds for the financing of clean energy projects.  Mainly, it is a public-private financing institution having the authority to raise capital through various means ― including issuing bonds, selling equity, legislative appropriations, and dedicating utility regulatory funds ― for the purpose of supporting clean energy and energy efficiency projects.  NY Green Bank got started with an initial capitalization of $218.5 million, financed with $165.6 million of uncommitted funds raised through clean energy surcharges on the State’s investor owned utility customers, or idle clean energy ratepayer funds, combined with $52.9 million in auction proceeds from emission allowances sales from the Regional Greenhouse Gas Initiative (RGGI). The $218. 5 is meant to be a first step in capitalizing the $1 billion NY Green Bank initiative announced by the governor in his 2013 State of the State address.  

NY Green Bank is a division of the NYSERDA, a public benefit corporation aimed at helping New York State meet its energy goals: reducing energy consumption, promoting the use of renewable energy sources, and protecting the environment.  Globally, we have seen natural gas and renewables gaining ground at the expense of crude oil and coal.  

On April 10, I had the pleasure of hearing Alfred Griffin, the President of the Green Bank, and Greg Hale, Senior Advisor to the Chairman of Energy and Finance Office of the Governor of NY, speak at a roundtable sponsored by Environmental Entrepreneurs (E2).  They explained that NY Green Bank was created in December 2013, when a Public Service Commission (PSC) order, provided for its initial capitalization.  The order was issued in response to a petition filed by NYSERDA seeking clean energy funds.  Griffin and Hale see the $1 billion dollar investment fund as breaking down barriers for projects that are currently neglected.  NY Green Bank, however, is not there to provide operating capital, it is there for project capital.  They are seeking credit worthy projects and looking to promote standardization.  These types of clean energy projects will be a bridge to private markets, eventually not requiring any public subsidy, and ultimately becoming sustainable.   NY Green Bank will need impactful deals to demonstrate market success.  In the clean tech space, investors are setting investment targets for private equity activity.  Residential rooftops are among the type of projects being considered.  The bank, for example, would work with a private partner to seed investment in a solar power company for solar panel construction at a specific site.   The money would be directed for the panels not salaries or operating expenses.  Given the global makeup of energy consumption, energy investors here and abroad are looking to leverage growth opportunities to decide where to invest growing dollars to take advantage of shifts in the energy market.  New York state, although, not first, is situated right where it should be. 

ExxonMobil Admits Climate Change Is Real. It also Imposes an Internal Cost on Carbon. Still Not Enough to Get Any Love From the Greens (Interesting Reading, Though)

Posted on April 14, 2014 by Seth Jaffe

Last week, in response to shareholder requests that it disclose information regarding how climate change might affect it in the future, ExxonMobil released two reports, one titled Energy and Climate, and one titled Energy and Carbon – Managing the Risks.  They actually make fascinating reading and seem to represent a new tack by ExxonMobil in its battle with those seeking aggressive action on climate change.

The reports do not deny the reality of climate change.  Indeed, the reports acknowledge climate change, acknowledge the need for both mitigation and adaptation, acknowledge a need to reduce fossil fuel use (at some point), acknowledge the need to set a price on carbon, and acknowledge that ExxonMobil in fact already is making future planning decisions utilizing an internal “proxy” price on carbon that is as high as $80/ton of CO2 in the future.

The reaction of the shareholder activists who pushed for the disclosures?  They are not happy.  Why not?

Because ExxonMobil has said explicitly that it doesn’t believe that there will be sufficient worldwide pressure – meaning government regulations imposing very high carbon prices – to reduce fossil fuel use sufficiently quickly enough to limit global temperature rise to 2 degrees Celsius.  It also does not believe that worldwide carbon regulation will leave it with any “stranded assets.”

I understand the moral case against fossil fuel use.  Personally, however, I’d rather rely on a carbon price that provides the appropriate incentives to get the reductions in CO2 emissions that we need to mitigate climate change.  On that score, sadly, it’s not obvious to me at this point that ExxonMobil’s analysis of likely outcomes is actually wrong.

My biggest complaint with the reports is the refusal to recognize that markets react dynamically to new regulatory requirements.  The history of big regulatory programs is that they pretty much always cost less than the predictions made before the regulations are implemented.  The lesson then is that the current projections of energy cost increases resulting from a high cost of carbon are likely to be overestimated.

Time will tell.  At least I hope so.

ABA Task Force to Help Mainstream Sustainability in Law Practice

Posted on December 4, 2013 by John Dernbach

After more than a decade of laying a foundation for sustainability activities, the American  Bar Association is poised to take its act to a higher level with a presidential level Task Force on Sustainable Development.  The Task Force is intended, in no small part, to help mainstream sustainable development into the practice of law. 

Within the practice of law, there is already a small group of lawyers whose work focuses intensively on sustainable development—including renewable energy and energy efficiency, biodiversity conservation, green building, climate change, and smart growth.  They are doing so in response to growing demand from clients, government, and the private sector, as well as rising public expectations about environmental and social performance.  Yet sustainable development remains something of a mystery to many environmental lawyers.  And some environmental lawyers think they understand sustainability when they do not.

The critical task of sustainable development is to integrate environmental and social considerations and goals into otherwise conventional development decisions.  Environmental goals include reduced greenhouse gas emissions, a smaller overall environmental footprint, climate change resilience, reduced toxicity or pollution, and conservation of species and ecosystems.  Social goals include workforce diversity, employee safety and development, and contribution to charitable or community activities. 

Over the past decade, the American Bar Association has developed two tools to enable lawyers to help lawyers move their offices in a sustainable direction and to recognize law organizations that use them.  They are:

•    The ABA-EPA Law Office Climate Challenge, a program to encourage law offices to conserve energy and resources, as well as reduce emissions of greenhouse gases and other pollutants.
•    The ABA Section on Environment, Energy, and Resources (SEER) Sustainability Framework for Law Organizations, in which a law organization commits to take steps over time toward sustainability.  

In August, the ABA House of Delegates, which has a significant policy-making role, adopted a resolution that builds on these and other steps toward sustainability.  The resolution — the third major resolution on sustainability it has adopted since 1991--“urges all governments, lawyers, and ABA entities to act in ways that accelerate progress toward sustainability.”  The resolution also “encourages law schools, legal education providers, and others concerned with professional development to foster sustainability in their facilities and operations and to help promote a better understanding of the principles of sustainable development in relevant fields of law.”

In conjunction with this resolution, ABA President James R. Silkenat appointed a Task Force on Sustainable Development to “focus on ways that the ABA can provide leadership on a national and international basis on sustainable development issues.”  The Task Force is chaired by Lee A. DeHihns, a member of the Environmental & Land Development Group at Alston & Bird in Atlanta, Georgia and a former chair of SEER. The Task Force has 20 members (including me), representing government, the private sector, nongovernmental organizations, and academia.   

The Task Force is planning to create a user-friendly website that contains a variety of sustainability resources for lawyers.  It is also looking at a range of different kinds of educational materials and tools for lawyers and law students on sustainability issues. 

It is increasingly important for lawyers to be able to communicate with clients about sustainability in general, the growing number of sustainability issues that are affecting law practice (including but certainly not limited to climate change), and the ways in which lawyers and others are creating tools and approaches for sustainability.  Law firm innovations for sustainability include the combined use of low income housing tax credits and renewable energy tax credits to finance low income housing that uses solar energy, and legal and financing packages for municipalities that invest in green infrastructure.   

The Task Force is also examining a wide variety of other ways that lawyers and the ABA can “accelerate progress toward sustainability.”  Because the Task Force has one year to complete its work, it is also looking at projects and activities it can complete in that year and longer term projects and activities that can be started in that year but that would need a longer time to finish.  If you have suggestions, contact Lee DeHihns or me.  And stay tuned. 

The Water Rich Adjust to a New Water Reality

Posted on November 13, 2013 by Andrew Brown

Water management issues have become much more serious in recent years.  Even Minnesota – the Land of 10,000 Lakes – is coping with limited water resources.  Recent state reports have warned a growing number of parts of Minnesota will soon face groundwater shortages, especially during drought periods due to increasing water use and the potential effects of climate change.  

In Minnesota, the responsibility to ensure the State maintains an adequate supply of water resources falls primarily upon the Department of Natural Resources (“DNR”).  Since 1937, the DNR Commissioner has regulated water use through a water appropriations permit program.  In implementing the appropriations program, the DNR Commissioner is granted broad authority to assess cumulative impacts and sustainability.  Although there is no specific definition in state law, the DNR has defined “sustainable water use” as “the use of water to provide for the needs of society, now and in the future, without unacceptable social, economic, or environmental consequences.” 

To manage groundwater conflicts, the Minnesota Legislature in 2010 authorized the DNR to designate “groundwater management areas” and develop water use plans for these designated areas.  The DNR is now in the process of implementing this new law.  Last year, the DNR undertook a process to develop a groundwater strategic plan to designate and implement groundwater management areas.  In kicking off the planning process, the DNR acknowledged that both the Department and water users have traditionally operated under the assumption that water was plentiful and limits were seldom necessary.  The DNR now recognizes, however, that it has the authority to change the permitting system to shift away from such generous assumptions and to make determinations intended to promote sustainability even if those determinations result in the denial of some allocation requests.

The DNR is now seeking input from stakeholders in the development of the state-wide strategic plan.  The DNR has also identified three potential groundwater management areas but the specific boundaries have not been delineated.   In fact, defining the groundwater management boundaries will be one of the toughest issues in implementing the new law, as DNR is weighing whether boundaries should be based on underlying aquifers, distribution of current and future use, watershed boundaries, or even community boundaries.  

As water management issues become more serious, Minnesota’s groundwater management area program presents one potential model for other policymakers and regulators who must tackle these tough issues.