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

Posted on August 26, 2020 by Gail Port

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

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

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

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

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

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

EV Make Ready Program

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

Competitions

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

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

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

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

Posted on August 12, 2020 by Seth Jaffe

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

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

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

Justice Gorsuch, are you listening?

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

Judge Rogers was not amused.

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

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

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

Hats Off to the Green New Dealers

Posted on August 10, 2020 by Leslie Carothers

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

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

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

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

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

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

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

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