FINDING LEGAL PATHWAYS TO DEEP DECARBONIZATION IN THE UNITED STATES

Posted on July 21, 2016 by John Dernbach

On December 12, 2015, in Paris, France, the parties to the U.N. Framework Convention on Climate Change—a total of 196 countries—unanimously agreed to a goal of net zero greenhouse gas emissions by the second half of this century.  For the United States, the technical and logistical challenge of achieving the goal of the Paris Agreement (as it is called) is enormous, but so is the legal challenge.

The U.S. short-term emissions reduction objective, stated in a submission made in the run-up to the Paris conference, is “to achieve an economy-wide target of reducing its greenhouse gas emissions by 26%–28% below its 2005 level in 2025.”  This objective, the U.S. says, “is consistent with a straight line emission reduction pathway from 2020 to deep, economy-wide emission reductions of 80% or more by 2050.”   Achieving the short-term goal depends on the outcome of the presidential election as well as litigation involving the Clean Power Plan.  And there was, until recently, no roadmap for deep U.S. reductions by 2050. 

The absence of long-term analysis, in the U.S. and other countries, is being filled by the Deep Decarbonization Pathways Project, which is led by the Sustainable Development Solutions Network and the Institute for Sustainable Development and International Relations.  It is based on the work of research teams in 16 countries that are responsible for 74 percent of the world’s greenhouse gas emissions--Australia, Brazil, Canada, China, France, Germany India, Indonesia, Italy, Japan, Mexico, Russia, South Africa, South Korea, the United Kingdom, and the United States.  DDPP says in a report synthesizing the findings of the project to date that most of these countries “had never developed pathways consistent with a global 2°C limit, nor were they actively considering this question.”   (The purpose of the Climate Change Convention is to keep the increase in global temperatures from human-caused greenhouse gas emissions below a “dangerous” level.  That level is widely regarded as 2°C, or 3.6 °F, above pre-industrial levels, although the Paris Agreement seeks to keep the increase “well below” that level.  The temperature increase to date is already about 0.9 °C above 1880 levels, when temperatures were first recorded.)

DDPP has conducted a technical analysis and policy analysis of pathways to deep decarbonization for the United States.  These reports, prepared by E3 (an energy consulting firm), the Lawrence Berkeley National Laboratory, and the Pacific Northwest National Laboratory, appear to be the most detailed studies of how to achieve deep reductions in U.S. greenhouse gas emissions by 2050.  

Perhaps the DDPP’s most important finding “is that it is technically feasible for the U.S. to reduce [carbon dioxide] emissions from fossil fuel combustion” by 85% from 1990 levels by 2050, which is “an order of magnitude decrease in per capita emissions compared to 2010.”  If the U.S. did that, it could reduce its overall greenhouse gas emissions by 80% below 1990 levels by 2050.  

Enormous changes would be required in the U.S. energy system to make those reductions happen.  Because it is difficult to decarbonize gasoline and liquid fuels, the researchers said, meeting the 2050 objective would require almost complete decarbonization of electricity and, among other things, switching a “large share” of end uses that require gasoline and liquid fuels over to electricity (such as electric cars).  It would also be necessary to produce fuel from electricity itself, they said, citing the production of hydrogen from hydrolysis as an example. 

Decarbonizing electricity and producing fuel from electricity itself would double electricity generation but reduce its carbon intensity to 3% to 10% of current levels, requiring a vast increase in either renewable energy (as much as “2,500 gigawatts (GW) of wind and solar generation (30 times present capacity))” or carbon capture and sequestration.  The average fuel economy for light duty vehicles such as cars would need to be over 100 miles per gallon, and these vehicles would need to be fueled almost entirely by electricity and hydrogen.  

The challenge of translating these technical and policy pathways into a workable legal framework is considerable.  Assuming, for example, that the U.S. can achieve 54.5 miles per gallon as a fleet-wide average for new vehicles by 2025, as the current Corporate Average Fuel Economy standard requires, how does the U.S. achieve a fleet-wide average of more than 100 miles per gallon for all vehicles by 2050? As DDPP explains, “[t]his would require the deployment of roughly 300 million alternative fuel vehicles by 2050.”  A similar conundrum exists in reliance on renewable energy sources: what legal changes are needed to guide the development of the grid so that it can continue to be reliable while it accommodates a vast increase in intermittent electricity sources such as solar and wind energy?

Michael Gerrard, who directs the Sabin Center for Climate Change Law at Columbia Law School, and I have begun work on an edited volume that will identify and analyze a wide variety of legal pathways to decarbonization in the United States, based on these reports.  We have assembled an excellent team of legal scholars and practitioners and are aiming for publication in 2017.  We hope to inspire similar efforts in other countries.  

An essential part of the decarbonization challenge is proposing, analyzing, and comparing various legal decarbonization pathways in each individual country, including the U.S.  In the face of a daunting challenge, there exists a real possibility that lawyers can help improve human quality of life throughout the world by facilitating the creation of a legal framework that accommodates zero-carbon development.

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. 

District Court Sharpens ESA’s Teeth in Wolverine Decision

Posted on May 31, 2016 by Gregory Bibler

In an 85-page decision filled with rebuke, Defenders of Wildlife v. Sally Jewell, the U.S. District Court for the District of Montana found in April that the U.S. Fish and Wildlife Service’s decision to withdraw its proposeda listing of the wolverine as “threatened” under the Endangered Species Act was arbitrary, capricious, and contrary to the ESA’s requirement that decisions be based on the “best available science.”

The court criticized the Service for mischaracterizing scientific consensus as “substantial disagreement,” and for employing an inappropriately high standard of absolute certainty.   The court suspected the Service’s sudden loss of confidence in its listing decision resulted not from scientific diligence but, instead, from “immense political pressure” exerted by a handful of western states. 

Although the decision is replete with references to wolverine denning statistics, sophisticated snow cover assessments based on satellite imagery, and emerging climate models, the court made clear that the Service changed its decision based on policy considerations, not science. That the wolverine depends on persistent snow cover to reproduce, and “relies on snow for its existence at the most fundamental level,” the court said, was not disputed.  That climate change is occurring, and will in the future result in reduced snowpack and loss of denning habitat, within the wolverine’s U.S. range also was not disputed.  The western states, however, questioned how reliably the Service could predict either the pace or the foreseeable impacts of climate effects far into the future.  The states, and many senior staff within the Service, also questioned whether the ESA is an appropriate or workable tool to address the large-scale effects of climate change on North American ecosystems. 

Alaska, for example, linked the wolverine listing decision to what it claimed were equally flawed decisions to list the polar bear and various species of ice seals, based on what it said were dubious models and speculative future climate effects.  Idaho questioned whether the Service’s use of models and projections would eventually lead it to list every species in the U.S., based on predictions of widespread and pervasive climate impacts throughout the country.  Two of the Service’s own Regional Directors echoed the refrain, saying that demands for listing particular species based on predicted effects of climate change “will become a common source of petitioned actions and threaten the Service’s resources to address priority issues.”

The court dismissed these concerns without hesitation:  “It is the undersigned’s view that if there is one thing required of the Service under the ESA, it is to take action at the earliest possible, defensible point in time to protect against the loss of biodiversity within our reach as a nation.” 

If the Service reinstates its prior listing decision, the wolverine will join the polar bear, ringed and bearded seals, and other species listed because they rely on snow and ice “for existence at the most fundamental level.”  The policy challenges at the core of the Service’s listing decision, however, remain unresolved.  Species affected by climate change are not limited to those dependent on snow and ice.  If climate trends continue, the list of species affected will grow and grow.  The ESA can do nothing to reverse or decelerate those impacts.  The Service cannot build an ark to save every species ultimately displaced or threatened.  Any realistic hope for slowing the loss of biodiversity in the U.S. must depend, therefore, on comprehensive and lasting reforms to address the underlying causes of climate change, and not the predicted effects of climate change at the species level.

President Obama Can Dramatically and Cost-Effectively Cut Carbon Pollution from Power Plants Using the Clean Air Act

Posted on June 7, 2013 by Peter Lehner

On the night of his re-election, President Obama told the nation that he wanted “our children to live in an America…that isn’t threatened by the destructive power of a warming planet.”

In the past year, we’ve seen extreme weather, fueled by carbon pollution, cost hundreds of American lives and nearly $100 billion in damage across the country. Yet right now we have no national standards to control carbon pollution from the biggest emitters—the 1500 existing power plants which are responsible for 40 percent of U.S. carbon pollution. NRDC has developed a plan for how the President could use his existing authority under the Clean Air Act to cut this climate-changing pollution from power plants, quickly and cost-effectively.

In a 2011 Supreme Court decision, American Electric Power v. Connecticut, the court ruled that it is the EPA’s responsibility to curb carbon pollution from power plants, new and existing. Carbon pollution limits for new power plants have been proposed and the EPA needs to make them final.  But the step that will make the biggest difference is cutting pollution from existing power plants. Under section 111(d) of the Clean Air Act, the EPA could set state-specific standards for average emissions from existing power plants based on each state’s current energy mix. Then states and power plant owners would have broad flexibility in deciding how to meet those standards, using a range of cost-effective measures and technologies.

Not all states line up at the same starting point when it comes to carbon emissions—some are heavily coal dependent, while others rely more on lower-carbon fuels and clean, renewable energy. Developing state-specific standards will give heavily coal-reliant states more realistic targets, while still moving them toward a cleaner energy supply. In addition, states and power plant owners can keep costs down by using a variety of measures to achieve compliance, whether it’s installing a new boiler in an old coal-fired plant, or investing in a home-weatherization program to reduce energy demand. These efficiency measures will help keep energy bills low and also create thousands of jobs that can’t be outsourced.

All in all, NRDC’s flexible, cost-effective proposal can achieve a 26 percent reduction (from 2005 levels) in carbon pollution from power plants by 2020, according to modeling done by the same firm the EPA uses for much of its air pollution modeling. The cost of compliance, about $4 billion, is comparatively low, and is vastly outweighed by the benefits--$25 to $60 billion in savings. These benefits come in the form of 3,600 lives saved, and thousands of asthma attacks and other illness prevented each year due to less air pollution, as well as the value of reducing carbon pollution by 560 million tons. This is twice the reduction that will be achieved by clean car standards.

The President has been very clear about the need to do something to curb global warming. This cost-effective proposal could be his biggest opportunity to take decisive action. He can dramatically reduce carbon pollution from power plants--while creating major health benefits and jobs--using his existing authority under the Clean Air Act.

EU Carbon Permits Cheaper Than A Cup of Starbuck’s Cappuccino!

Posted on May 9, 2013 by Stephen Herrmann

The world’s biggest carbon permit market was left in disarray after the European Parliament on April 16, 2013 rejected an emergency plan that would have forced companies to pay more for polluting.

Permits are a key part of the EU Bloc’s cap-and-trade plan to tackle global warming.  The European Parliament rejected a proposal to reduce the short-term supply of carbon permits as a way of pushing up the price.  At the launch of permits in 2005, the cost of a permit was nearly €30 for each ton of carbon emitted.  Following the vote on April 16, 2013, the price plummeted to a little over €2.5 a ton.

Making matters worse, following the vote, the European Parliament’s Environment Committee coordinators failed to set a date for a vote on an amended version.

Not only is the collapse of the cornerstone of its climate policy an embarrassment to the EU, but its failure resonates in other areas of the world.  Australia has fixed a carbon price of $23 a ton until moving to a floating market price following the EU model in 2015.  But, that is being reconsidered.  The EU situation, coupled with the U. S. Senate’s rejection on March 22, 2013 of a bill to impose a fee on carbon, means that the Obama Administration will have an uphill battle for any future proposals for a fee or tax on carbon emissions.

Climate Change: Emerging Law of Adaptation

Posted on January 2, 2013 by Ralph Child

An earlier post noted that adaptation to climate change is inevitable and is finally emerging as a priority for public policy.  Long overshadowed by campaigns to prevent or slow global warming, federal and state initiatives and efforts by many professionals have resulted in efforts to start to collect data and promote serious planning for ocean rise and other effects of climate change.

Storm Sandy has more than reinforced that trend: it has established a much wider recognition that planning, design, engineering and regulatory decisions must incorporate the expected impacts of climate change and can no longer rely on historic weather and temperature conditions.  That shift will have broad implications throughout the legal system, amounting to an emerging law of adaptation to climate change that is distinguishable from the emerging law of greenhouse gas controls. 

As often is true, the legal academy is in the vanguard – there is a surge of law review articles and also a recent compilation published by the ABA.

For example, utility regulators have broad authority to require public service companies to prudently operate and maintain their systems.  It is common for regulators to require emergency response plans, and, in some states, to impose significant penalties for overly delayed restoration of service after storm events. 

Now, regulators are likely to require utilities also take account of changes because of global warming effects, not just based on historic conditions.  Environmental groups recently petitioned NY regulators to so require. 

But how exactly can this step be done?  Modeling of the timing and extent of climate change effects can only produce broad ranges and generalities and are indefinite about effects at particular locations.  What retrofitting is needed to assure reliable service to far future ratepayers and at what expense to current ratepayers? Ratepayers, regulators and utility stockholders will not reach agreement without significant dispute.

Existing zoning for flood plains should be modified to account for climate change.  Making those changes will trigger large disputes as previously settled expectations are overturned.  Until the rules are changed, are zoning bodies tied to outdated flood control maps incorporated into their regulations, or can they consider supplemental, updated information? 

Environmental impact reviews for proposed projects typically address the effects of a project on the environment.  Now must they consider the effects of the environment on the project?  How?   It will be litigated.

Also, as noted in an earlier post, the public trust doctrine might not serve to require regulatory agencies to regulate greenhouse gas emissions.  But will it successfully undergird a state’s assertion of authority to regulate activities on or affecting lands subject to the public trust in order to account for changes and threats to shorelines?  As beaches recede, will public trust lands start to incorporate currently private property?

The common law of property, too, will be affected.  A landowner can lose title to land if it slowly disappears by reliction due to changes in a water body’s natural behavior, whereas a sudden loss by avulsion allows the landowner to keep title and restore the land.  But what if the sudden loss is due to a storm event that is part of a slow rise in ocean levels?

Finally, at what point will it become clear that professionals must take account of global warming in designing structures or else experience risk of liability for unanticipated effects?

NO GLOBAL WARMING? ARCTIC SUMMER SEA ICE DOWN ALMOST 50% SINCE 2004

Posted on September 21, 2012 by Stephen Herrmann

The August 2012 preliminary results from the European Space Agency’s CryoSat-2 probe indicate that 900 cubic kilometers of summer sea ice has disappeared from the Arctic ocean over the past year.  This rate of loss is 50% higher than most scenarios from historic information outlined by polar scientists.  The summer figures provide a real shock.  In 2004 there were about 13,000 cubic kilometers of summer sea ice in the Arctic -- now only 7,000 cubic kilometers were measured.  If the current annual loss of around 900 cubic kilometers continues, summer ice coverage could disappear in about a decade in the Arctic.

The new sea ice measurement was set on August 26, 2012, a full three weeks before the usual end of the melting season, according to the National Snow and Ice Data Center.  So more melt in 2012 is predicted.  Every major scientific institution that tracks Arctic sea ice agrees that new records for low ice area, extent, and volume have been set.  These organizations include the University of Washington Polar Science Center (a new record for low ice volume), the Nansen Environmental & Remote Sensing Center in Norway, and the University of Illinois Cryosphere Today. 

The consequences of losing the Arctic’s sea ice coverage, even for only part of the year, could be profound.  Without the cap’s white brilliance to reflect sunlight back into space, the region will heat up even more than at present.  As a result, ocean temperatures will rise and methane deposits on the ocean floor could melt, evaporate and bubble into the atmosphere.  Scientists have recently reported evidence that methane plumes are now appearing in many areas.  Methane is a particularly powerful greenhouse gas and rising levels of it in the atmosphere are only likely to accelerate global warming.  And, with the disappearance of sea ice around the shores of Greenland, its glaciers will melt faster and raise sea levels even more rapidly than previously predicted.

Fiddling While Rome – and the World – Burns: An Update on Climate Change

Posted on June 1, 2012 by Jeff Thaler

How can each of us leave the world to our children and grandchildren at least as healthy as when we were born? How can we more quickly move from fossil-driven economies to ones more based on renewable sources, in an increasingly carbon-stressed world? And how can policy makers, at various governmental levels, make changes in how energy projects are evaluated and developed before we use up too much of the atmosphere’s and oceans’ capacities to safely absorb carbon dioxide?

These and similar questions were tackled at two recent conferences in which I participated: a small climate change justice forum at Chicago Law School, and the much larger World Renewable Energy Forum in Denver. In Chicago, participants tackled approaches to bridging the who-pays-how-much gap between developing and developed nations – should it be per capita, or total carbon shares based on past emissions (if so from when), or a polluter-pays approach bridging past and future (next 20 years) CO2 emissions? Some say the US should pay less than China and India, others say more. Ultimately, all agreed that human-induced climate change is the single greatest threat facing human society—not just environmental, but also posing huge economic, public health, and military security costs.

Denver discussions focused on how to quickly increase the amount of renewable energy used for electricity, heat and transportation. My presentation, “U.S. Renewable Law and Policy: Catch Up or The Clock Strikes Midnight”, provided an overview of existing and predicted impacts from the still-increasing carbon dioxide emissions accumulating in our air and oceans; a comparison of the direct and indirect costs of different fossil and renewable energy sources; a summary of the permitting and regulatory hurdles facing renewable energy projects; and a roadmap to level the regulatory playing field to help renewables catch up.
Brief high (or low) lights: In April 2012, the International Energy Administration warned that, under current policies, energy use and CO2 emissions will increase by a third by 2020, and almost double by 2050 – sending global temperatures at least 6⁰C higher. What would the world look like with such an increase?

What are the “true” costs of energy to be factored into pricing?  In 2009, the National Research Council’s “Hidden Costs of Energy: Unpriced Consequences of Energy Production and Use” estimated in 2005 dollars (higher now) that non-climate damages from our use of fossil fuels exceed $120 billion, with climate damages possibly being equally as large – and both numbers exclude ecosystem, infrastructure, insurance,  and national security costs.

Those bucks stop with each of us and this generation.

China Points To Population Control As Climate Change Strategy

Posted on July 26, 2010 by Stephen E. Herrmann

The population issue has not received much comment when countries discuss ways to mitigate climate change and slow down global warming, according to Zhao Baige, Vice Minister of National Population and Family Planning Commission of China (NPFPC).

 

 

“Dealing with climate change is not simply an issue of CO2 emission reduction but a comprehensive challenge involving political, economic, social, cultural and ecological issues, and the population concern fits right into the picture,” said Zhao.

 

 

Zhao cites studies that link population growth with emissions and the effect of climate change, saying:

 

“Calculations of the contribution of population growth to emissions growth globally produce a consistent finding that most of past population growth has been responsible for between 40 percent and 60 percent of emissions growth,” citing the 2009 State of World Population report, released earlier by the UN Population Fund.

 

 

Although China’s family planning policy has received criticism over the past three decades, Zhao said that China’s population program has made a great historic contribution to the well-being of China’s society.

 

 

As a result of the family planning policy, China has seen 400 million fewer births, which has resulted in 18 million fewer tons of CO2 emissions a year, Zhao said. The UN report projected that if the global population would remain 8 billion by the year 2050 instead of a little more than 9 billion according to medium-growth scenario, “it might result in 1 billion to 2 billion fewer tons of carbon emissions.”

 

 

Meanwhile, she said studies have also shown that family planning programs are more efficient in helping cut emissions, citing research by Thomas Wire of London School of Economics that states: “Each $7 spent on basic family planning would reduce CO2 emissions by more than one ton” whereas it would cost $13 for reduced deforestation, $24 to use wind technology, $51 for solar power, $93 for introducing hybrid cars and $131 for electric vehicles."

 

 

Zhao admitted that China’s population program is not without consequences, as the country is entering the aging society fast and facing the problem of gender imbalance.

 

 

Whether, and, if so, how, population control should be an active part of a country’s climate control is certainly a difficult political and cultural issue – but one that fast-growing economies such as China, India, and Brazil may have to face in the coming years.