IMO 2020 – A Strikeout for Sulfur, but Black Carbon Is Still on Base

Posted on November 7, 2019 by Susan Cooke

Greenhouse gas (GHG) emissions from international shipping supposedly represent 2% to 3% of the world total, about on par with those emitted by Germany.  However, there are no GHG emission restrictions covering ships on the high seas.  Moreover, even the current limits on sulfur and NOx are far less stringent than those imposed in many developed countries, although things are about to change on the SO2 front.

That is about to change.  The International Maritime Organization (IMO), which is part of the United Nations, recently announced a new and more stringent standard, set forth in Annex VI  of the International Convention on the Prevention of Pollution from Ships (MARPOL).  On January 1, 2020, marine vessels must meet a 0.5% (by weight) sulfur-in-fuel standard or install scrubbers to meet that standard.  In addition, starting March 1, 2020, such vessels without scrubbers may no longer carry heavy fuel oil on board.  Even more stringent standards are already in place within so-called Emission Control Areas.  For example, there is a 0.1% sulfur-in-fuel limit for vessels operating within the territorial waters of Canada, the continental U.S., Alaska, Hawaii, Puerto Rico, and the U.S. Virgin Islands. 

Annex VI also contains provisions for lowering NOx emissions.  Marine diesel engines above 130 kW installed on a ship constructed on or after January 1, 2011 must meet so-called Tier II standards, and such diesel engines installed on vessels constructed on or after January 1, 2016 and operating in the U.S. and Canadian waters described above must meet the more stringent Tier III standards. 

It is expected that most vessels will utilize lower sulfur fuel rather than employ scrubbers.  This move away from residual fuel oil (known as heavy fuel oil or HFO) toward low sulfur blended intermediate fuels and lighter, more refined grades will have another salutary effect – a reduction in the emission of black carbon, the sooty material resulting from incomplete combustion of fossil fuel, which comprises a significant portion of particulate matter, an air pollutant.  And while black carbon has a lifetime of only days to weeks after its release into the atmosphere, its warming impact on climate, per unit of mass, is 460-1,500 times stronger than CO2.

In 2018 the IMO adopted an initial climate strategy targeting a 50% reduction in GHG emissions by 2050 from 2008 levels through a mix of proposed measures ranging from efficiency improvements to existing vessels, speed reductions, use of lower carbon fuels, methane and VOC emission controls, national action plans, and GHG reduction initiatives implemented at ports.  While black carbon is estimated to account for 7%-21% of the overall climate impact of international shipping, this initial strategy does not include any specific measures for reducing black carbon emissions.  However, an IMO subcommittee is now considering what action might be undertaken to address this pollutant beyond the ancillary effect of the new sulfur standard. 

One particular concern is the increased shipping anticipated in Arctic waters as ice recedes, and the deleterious impact of black carbon emissions from an increased number of vessels plying those waters.  Indeed, the impact of black carbon emissions is specifically noted in Par. 70, ANNEX 2, of the IMO Note regarding adoption of its Initial Strategy.   

A new ball game – or at least the warm-up for that game – is about to commence where various measures to control black carbon emissions will be tossed out for consideration.  While the winning strategy is expected to be several years in the making, one proposal garnering interest is the mandated use of distillate fuel in lieu of HFO, which can be paired with mandated use of diesel particulate filters to remove most of the black carbon.  But this strategy will be costly and may not make it to first base.  Consequently, in the inimitable words of Yogi Berra: “It’s tough to make predictions, especially about the future”.

COAL

Posted on October 8, 2019 by Donald Stever

My blog posts have, in the past, largely focused on this or that regulation or some legal development or other dealing with chemical regulation or environmental statutes or rules in general. This one is different.

I grew up in Pennsylvania coal country. Well, actually on the border between the coal mines on the Piedmont Plateau (CO2 precursors) and the big dairy farm (methane emitters) region in the wide valleys that stretched along the Allegheny Mountains. My father was a veterinarian. As a kid I was his unpaid assistant. One vivid childhood memory I have is of going down into a deep shaft coal mine with my father; I lay on my back in an electric rail car, traveling nearly a mile into the earth where my father was called to treat an injured mule. You see, mules pulled the coal cars from the active extraction shafts to the main mine shaft. Oh, and the mules were blind. They were blinded intentionally because (a) there was no light anyway and (b) they learned to know the labyrinth by senses other than sight. Then there was the coughing. The mules coughed. The miners coughed. All were covered with coal dust. My father returned to the mine from time to time. I demurred.

Which brings me to my point. When I retired from my full-time litigation-heavy law practice I started to read books, a pastime that I had largely been denied for lack of time during the fifty-odd years of environmental law practice. Not pulp novels. Mostly not “best sellers.” Nope. I read science-based books, many of which address the environment. Two of these dealt in part with the subject of coal.  Peter Brannen, in The Ends of the World: Volcanic Apocalypses, Lethal Oceans, and Our Quest to Understand Earth's Past Mass Extinctions, neatly explains the primary cause of the last five extinctions of nearly all life on Earth, discernable from analyses of geologic strata. The culprit? Carbon dioxide emitted by the combustion of coal (fossil vegetable matter accumulated over eons of time) caused by massive flows of volcanic magma which ignited enormous coal deposits, which in turn heated up the atmosphere, which in turn heated up and acidified the oceans. So, burning coal pushes carbon dioxide into the atmosphere, which traps solar heat, heats up the earth and oceans and every complex living thing (or almost every living thing) dies.

Sound familiar? In his most recent book, Falter, Bill McKibben points to irrefutable scientific analyses concluding that human combustion of coal and its cousin oil, abetted by human agricultural emissions of methane, is on track to raise carbon dioxide levels in the  atmosphere to a concentration that is higher than the carbon dioxide levels that triggered all of the prior mass extinctions.

I have to ask: are the Trumps and the Wheelers and the McConnells and their counterparts in Asia and South America who simply deny the obvious consequences of their refusal to deal with the issue of runaway combustion of fossil carbon unable to read? Obviously, they can read, but I dare say that inability to read would at least give them an excuse for denying my three-year-old granddaughter a habitable planet on which to live.

Singer-songwriter and distinguished member of the New Hampshire Bar John Perrault perhaps says it best in his song, Carbon the Garden:

There is the Capitol floatin’ away

Congressmen wailing “it’s a mighty fine day”

Tell me, how long does it take to investigate

Oh, the oceans in the kitchen and the desert’s at the garden gate.

Song lyrics by John Perrault © 2013 John Perrault

CARB Continues Global Leadership Role on Climate with Adoption of Tropical Forest Standard

Posted on October 2, 2019 by Kevin Poloncarz

After nearly a decade of work, on September 19, 2019, the California Air Resources Board (CARB) endorsed its much anticipated Tropical Forest Standard (TFS). The TFS is a first-of-its-kind framework for assessing jurisdiction-scale offset credit programs that reduce emissions from tropical deforestation and degradation. It is widely expected to serve as a replicable model for adoption by other international greenhouse gas mitigation programs that utilize tropical forest reductions as offsets, including the International Civil Aviation Organization (ICAO) Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA).

The TFS framework ensures that reductions produced by a subnational jurisdiction’s systemic efforts to conserve its tropical forests are real, quantifiable, permanent, additional and enforceable – the hallmark criteria to ensure the environmental integrity of offset credits within emissions trading schemes, such as California’s Cap-and-Trade Program. It requires rigorous, independent third-party verification of both the emissions avoided by the jurisdictional plan and the jurisdiction’s adherence to social and environmental safeguards designed to protect indigenous communities.

Under the TFS, subnational jurisdictions wanting to issue offset credits for their overall forest conservation efforts must adhere to guiding principles endorsed by indigenous community leaders and state and regional governments whose territories include more than one-third of the world’s tropical forests. These principles mandate that indigenous communities are involved in plan development and implementation and share in the resulting economic benefits.

CARB’s endorsement of the TFS does not authorize emitters to use tropical forest offsets for compliance with its Cap-and-Trade Program at this time; CARB would need to amend its regulation to authorize such use and has no immediate plan to do so. Advocates for indigenous communities and environmental justice nevertheless opposed CARB’s action, arguing that it made it all but inevitable that CARB would soon adopt such an amendment and that doing so would allow emitters to continue emitting and consuming fossil fuels in California.

Against such opposition, leading scientists and environmental groups strongly supported CARB’s endorsement of the TFS as a critical near-term step to slow the loss of tropical forests and limit global warming to no more than two degrees Celsius. According to recent estimates, tropical deforestation now amounts to more emissions each year than 85 million cars over their entire lifetime, dwarfing California’s own anthropogenic emissions and those of all nations but the U.S. and China. As a consequence, no serious effort to mitigate climate change can exclude measures to avoid continued deforestation and degradation of tropical forests.

CARB’s action comes at a timely moment, as the impacts of climate change and slash-and-burn agriculture are resulting in an unprecedented surge in uncontrolled fires throughout the Amazon rainforest. Although the political situation in Brazil may make it difficult to crack down on illegal burning and deforestation, CARB’s adoption of the TFS may amount to one small step towards counterbalancing the incentives that promote deforestation.

A Green New York State of Mind

Posted on September 26, 2019 by Gail Port

In what has been heralded as a banner year in New York State for environmental legislation, the icing on the cake was the recent passage of the most groundbreaking climate action plan in the nation to date.  On July 22, 2019, Governor Andrew Cuomo signed the Climate Leadership and Community Protection Act (CLCPA) into law.  The CLCPA sets an admirable, albeit aggressive, statewide framework to reduce net greenhouse gas emissions to zero by 2050. Notably, while setting ambitious goals to reduce greenhouse gas emissions from all anthropogenic sources, the Act also recognized that improvements to the State’s resiliency—that is, adaptation, to address those impacts and risks of climate change that cannot be avoided ( e.g., infrastructure hardening to withstand climate induced disasters) was also necessary.

In enacting the CLCPA, the State legislature touted New York as a leader, and the CLCPA as a legislative model, in the climate change arena:  “Actions undertaken by New York to reduce greenhouse emissions will have an impact on global greenhouse gas emissions and the rate of climate change.  In addition, such action will encourage other jurisdictions to implement complementary greenhouse gas reduction strategies and provide an example of how such strategies can be implemented.”  The CLCPA’s legislative findings proclaim that “[b]y exercising a global leadership role on greenhouse gas mitigation and adaptation, New York will position its economy, technology centers, financial institutions and businesses to benefit from national and international efforts to address climate change.”  Clearly, the CLCPA is viewed as a potential economic development engine that can “advance the development of green technologies and sustainable practices within the private sector, which can have far-reaching impacts such as a reduction in the cost of renewable energy components, and the creation of jobs and tax revenues in New York.”      

Recognizing that climate change “especially heightens the vulnerability of disadvantaged communities”, the legislature made environmental justice a cornerstone of the CLCPA by providing that State actions to reduce greenhouse gas emissions “should prioritize the safety and health of disadvantaged communities, control potential regressive impacts of future climate change mitigation and adaptation policies on these communities and prioritize the allocation of public investments” in those areas.  The CLCPA calls for the formation of a twenty-two member state panel, the New York State Climate Action Council, to guide the State in meeting its progressive goals.  The Commissioner of the New York State Department of Conservation and the President of the New York State Energy Research and Development Authority (NYSERDA) are to be the Co-Chairs of the Council, and the remaining members will be the heads of certain state agencies and appointees from the Governor (two “non-agency” expert members), and the leaders of the State legislature (a total of 8 members).

In essence, the details for putting in place the plan and to propose regulations and other actions required to implement the new law will be left to the Council. Once the Council is formed, it will have three years to come up with a final scoping plan--a specific proposal to recommend mandates, regulations, incentives, and other measures to ensure New York meets the lofty carbon neutral goals outlined in the CLCPA. To fulfill its legislative mandates, the Council will receive input from to be-created subject-specific Advisory Panels, comprised of experts on transportation, energy intensive and trade-exposed industries, local government, energy efficiency and housing, power generation, and agriculture and forestry, a Climate Justice Working Group, with representatives from communities bearing disproportionate pollution and climate change burdens and a Just Transition Working Group (chaired by the State Labor Commissioner and the President of NYSERDA) giving business leaders a seat at the table to advise on workforce development and training issues and business impacts arising from New York’s “new energy economy.” Time will tell whether this structure will result in “too many cooks in the kitchen” or will function as a “well-oiled machine”.

Here are some of the highlights of the CLCPA benchmarks:

·      By 2030, 70% of New York’s electric generation has to come from renewable sources such as wind, solar or hydropower and must reach 100% by 2040. (According to the New York State Department of Environmental Conservation, 23% of New York’s electric power currently comes from renewable sources—chiefly hydroelectric).  The CLCPA incorporates Governor Cuomo’s renewable energy goals for offshore wind, distributed solar, storage and energy efficiency.

·       New York will have to cut its total green-house gas emissions—from 1990 levels—by 40% by 2030 and 85% by 2050. The remaining 15% will have to be offset by reforestation, restoring wetlands, carbon capture or certain other green projects which will make the state carbon neutral by 2050.

·       The State’s load serving entities will have to procure at least 6 gigawatts of photovoltaic solar energy by 2025 and 9 gigawatts of offshore wind energy by 2035, and to support 3 gigawatts of statewide energy storage capacity by 2030.

·     To the extent practicable, disadvantaged communities are to receive 40% of the overall benefits of State spending on clean energy and energy efficiency programs, projects and investments in the areas of housing, workforce development, pollution reduction, low income energy assistance, transportation and economic development, with a floor of receiving at least 35% of those benefits. (The CLCPA defines disadvantaged communities as “communities that bear burdens of negative public health effects, environmental pollution, impacts of climate change, and possess certain socioeconomic criteria, or comprise high-concentrations of low- and moderate- income households.”)

In recognition of the fact that climate change presents an existential crisis that must be addressed without delay, the CLCPA sets an implementation timeline that also is very aggressive.

The most significant challenge to achieving the CLCPA’s bold directives is figuring out how it will be accomplished in practice. By establishing the Council, the State, prudently, will be engaging a wide-pool of talent tasked to come up with novel and practical approaches. Nonetheless, there are significant questions that, at least as of now, are unanswered. Investments in renewables, energy storage and power generation will be necessary and costly, especially considering the projected retirements of the New York nuclear fleet.  Where will those funds come from?  Powerful incentives will be required to push the private sector towards electrifying the transportation, residential, and commercial sectors—what will those incentives look like? Is the establishment of a State-wide carbon marketplace necessary and, if so, how will it affect the pocket book of New Yorkers?  And how will New York ensure that greening its economy will be good for its business community and not scare them off? Does the statute inadvertently inject too much uncertainty into the State’s economy?

With the Trump administration on a mad dash to roll back a number of regulations designed to address and mitigate climate change, New York has embarked on a praiseworthy plan to achieve aggressive goals to address the existential crisis of climate change. Sure, there are innumerable obstacles that need to be overcome and, yes, the specific action plans have not yet been conceived, but setting these goals—and ultimately making them enforceable—is certainly a giant leap in the right direction.  Kermit the Frog once said, “it’s not easy being green” —but sometimes doing what is hard is what is necessary.

Calling Off the NEPA Hounds – The CEQ’s 2019 Draft Guidance on GHG Emissions

Posted on September 12, 2019 by JB Ruhl

On June 26, 2019, the Council on Environmental Quality (CEQ) published a Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions (84 Fed. Reg. 30097). This new guidance would replace the guidance on that theme CEQ published in August 2016 (2016 Guidance) and which President Trump extinguished by executive order, and CEQ immediately withdrew, early in April 2017 (E.O. 13783 and 82 Fed. Reg. 16576). The much shorter 2019 Draft Guidance bears some similarities to the 2016 Guidance:

  • Both advise agencies to use GHG emissions as a proxy for climate effects.    
  • Both emphasize that agencies should follow the NEPA “rule of reason” for identifying direct and indirect effects and for keeping the depth of analysis proportionate to the scale of the effects.
  • Both allow agencies to use available emission quantification tools, but also to refrain from quantification if the available information is of poor quality or if the analysis would be too complicated, provided they explain why.
  • Both advise agencies not to engage in overly speculative analysis.
  • Both emphasize that NEPA does not require cost-benefit monetization analysis.

From there, however, the two guidances look nothing alike. To begin with, the 2016 Guidance declared that “climate change is a fundamental environmental issue, and its effects fall squarely within NEPA’s purview,” and that “it is now well established that rising global atmospheric GHG emission concentrations are significantly affecting the Earth’s environment.” In short, climate change was the core focus throughout the 2016 Guidance. By contrast, the 2019 Draft Guidance refers only to “potential climate effects” of GHG emissions, and does so only twice in the document. It is perhaps remarkable that any Trump administration guidance actually recognizes that GHG emissions could have “potential climate effects,” but the CEQ skirts the issue so much that one might easily miss the point of why agencies are being asked to conduct GHG emissions analyses in the first place.

More substantively, the 2019 Draft Guidance omits three key features (among others) of the 2016 Guidance. First, there is no mention of mitigation in the 2019 Draft Guidance, whereas that was a focus of the 2016 Guidance. Under the 2019 Draft Guidance, in other words, agencies would estimate GHG emissions of the proposed action but not need to consider action alternatives that generate lower emissions or higher sequestration.

Second, the 2016 Guidance included a section on scope of the action that advised agencies to consider predicate and consequential effects of the action. For example, proposed resource extraction actions should consider GHG emissions from reasonably foreseeable predicates such as clearing land and building access roads, and from reasonably foreseeable consequences such as transportation, refining, and use of the resource. The 2019 Draft Guidance makes no mention of such analyses.

Most glaringly of all, the 2019 Draft Guidance completely ignores the need to assess the impacts of climate change on the proposed action. Recognizing that “GHGs already in the atmosphere will continue altering the climate system into the future” and that “NEPA review should consider an action in the context of the future state of the environment,” the 2016 Guidance included an extensive section advising agencies on how to evaluate the effects of climate change on a proposed action and to consider how adaptation and resilience measures might be integrated into the action. No doubt because it would require acknowledging that climate change is occurring, the 2019 Draft Guidance contains no such guidance.

The bottom line is that, if the 2019 Draft Guidance were adopted as is, agencies will conduct GHG emissions analyses but not need to consider reasonably foreseeable upstream and downstream emissions or how the action could incorporate climate change mitigation, adaptation, and resilience. Of course, that would just be CEQ guidance. The courts may have a different idea for how NEPA engages climate change.

Climate Whack-a-Mole; or How the Trump Administration Institutionalizes Ignorance in the Endangered Species Act

Posted on August 27, 2019 by Peter Van Tuyn

Given the severity and finality of the extinction of species on this planet, and the myriad adverse impacts on human society and natural ecosystems of such extinction, Congress passed the hallmark Endangered Species Act in 1973.  Since then it has helped save myriad species from extinction and recover many species to healthy population levels.  The success of the ESA in meeting its goals, and strong public support for the law, did not stop the Trump administration from targeting the ESA to ease what it perceives as its negative impact on economic growth. 

As those familiar with the ESA know, a central duty under the law is for federal agencies to consult with the experts within the federal government before undertaking any activity that might jeopardize a species listed under the ESA or adversely modify such a species’ critical habitat.  This consultation helps both to prevent jeopardy and adverse modification and to identify ways in which the activity could proceed without having such effects. 

Among the Trump administration’s controversial proposals was to change the ESA regulations to create a climate change exemption to the ESA’s expert consultation process.  This proposal would have exempted from such consultation any proposed federal action with “effects that are manifested through global processes,” a phrase that is a clear reference to climate change. 

Not surprisingly, this proposal was met with substantial criticism from ESA supporters, who asserted that there was no legal authority to excise climate change from the ESA’s consultation requirements and that to deliberately do so was extremely foolhardy.  These people undoubtedly breathed a sigh of relief when the final rule came out without this proposal, which the Trump administration abandoned “in the interest of efficiency” in the face of that stinging criticism.  

That sigh, however, was certainly followed by a gasp, as those same people found that the final regulations included a wholly new regulatory approach designed to achieve the same effect.  The Trump administration did this by controlling what the expert agencies can consider as they seek to understand the effects of proposed federal action. 

Here is how it works.  First, the final rule defines “effects of the action” as

all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action. A consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. Effects of the action may occur later in time and may include consequences occurring outside the immediate area involved in the action.

(emphasis here and elsewhere added).  One layer deeper, the final rule defines the newly-added term “consequence,” in relevant part, as follows: 

Considerations for determining that a consequence to the species or critical habitat is not caused by the proposed action include, but are not limited to:  (1) The consequence is so remote in time from the action under consultation that it is not reasonably certain to occur; or (2) The consequence is so geographically remote from the immediate area involved in the action that it is not reasonably certain to occur; or (3) The consequence is only reached through a lengthy causal chain that involves so many steps as to make the consequence not reasonably certain to occur.

The final rule also defines the term “reasonably certain to occur,” which was not defined in the prior rule, to read, in relevant part, as follows:

Factors to consider when evaluating whether activities caused by the proposed action (but not part of the proposed action) or activities reviewed under cumulative effects are reasonably certain to occur include, but are not limited to:  (1) Past experiences with activities that have resulted from actions that are similar in scope, nature, and magnitude to the proposed action; (2) Existing plans for the activity; and (3) Any remaining economic, administrative, and legal requirements necessary for the activity to go forward. 

Finally, the new rule mandates that the criteria set forth in these new definitions of “consequences” and “reasonably certain to occur” “must be considered by the action agency and the [expert agencies].” 

Although the term “climate change” is not used in the text, the intention to preclude the Services from considering climate change is evident.  To begin with, the definition of “consequences” sets forth three criteria and provides that any one of these would support a non-causation finding.  These three factors – remoteness in time, geographic remoteness, and lengthy causal chain – are classic attributes of climate change.  Indeed, climate change is a global phenomenon that has taken decades to develop from multiple sources, through what may be (or perhaps in some cases may not be) complex causal chains.  Furthermore, the definition of “reasonably certain to occur” takes a retrospective stance, emphasizing “past experiences” and “existing plans,” and thus discounts the possibility of new and novel activities resulting from a proposed action in a climate-altered world. 

By providing that the criteria in these two definitions “must be considered,” the new rule makes it clear that it is creating a mandatory duty for the expert agencies to ignore climate-related impacts in their consultations under the ESA.  Indeed, the preamble to the new rule explains that, in situations where the consequences of activities resulting from a proposed action are “remote in time or location, or are only reached following a lengthy causal chain of events,” the consequences of such activities “would not be considered reasonably certain to occur,” thus removing discretion from the experts to determine the likelihood of occurrence. 

So, the Trump administration reacted to the hammering of its proposed attempt to institutionalize the ignorance of climate change impacts on listed species and their habitat with an approach that appears for the first time in the final rule and is effectively the same. This may not be the end of the matter, however, as I suspect the gasps of ESA supporters will turn to anger, and then to action, as they likely head to the courtroom to challenge the final rule.

Carbon Taxes and Carbon Offsets -- A Path to Net Zero?

Posted on July 18, 2019 by Jeffrey C. Fort

Two recent press pieces caught my eye.  “UK Signs Net-Zero Emissions Requirement into Law,” and “GOP Pollster pitches Republicans on carbon pricing.” The first reflects recent studies with respect to a potential [or even likely] environmental calamity; the other suggests signs of political reconsideration on climate change.  As welcome as the latter is, and most economists praise the use of a carbon tax, it is likely not nearly enough.

According to the latest scientific forecast, meeting the Paris objective of no more than a 2 C increase in global temperatures from pre-industrial temperature levels will require worldwide net zero emissions of carbon-dioxide-equivalent (CO2e) gases by 2050.  In any event, the UK, France, Norway and Sweden have adopted a net-zero requirement to be achieved no later than 2050 and more than a dozen large US cities have done likewise.

How a net-zero requirement can be met, with all the extant emissions from industry, transportation and buildings, is perhaps the most important research and development task facing us.

Consider whether another approach should be considered. In a 2017 op-ed Wall Street Journal piece, James Baker and George Schultz recommended a “carbon tax” on emissions of carbon dioxide equivalent gases.   This recommendation is the centerpiece of a memorandum to “Interested Parties” by a Republican pollster and strategist suggesting that the Republican Party should heed polling results and embrace the Baker/ Schultz suggestion that the Republican Party ought to support a “Carbon Dividends” proposal. This proposal would feature “four pillars”: a tax (of $42/ metric tonne of CO2e, indexed to rise with inflation), an equivalent “dividend” to working class Americans, a border adjustment for carbon content of imported goods, and elimination of EPA’s regulatory authority concerning climate issues.  The tax revenues would be returned to private citizens with the lowest incomes, as a “Carbon Dividend” to mitigate the increased energy costs.

However, the Carbon Dividend proposal says nothing about reducing emissions other than by raising a “price on carbon.”  But will a tax achieve that goal? Some parties may choose to emit and pay the tax so there is no guarantee that emissions will be reduced and certainly not to achieve net-zero emissions. Any reduction in energy use by businesses would depend on the elasticity of the market for other inputs and competition for the output products. For businesses that have inelastic demand curves the costs just get passed through with no or little emission reduction.  In other words, a carbon tax will not yield significant environmental results, however admirable its intentions.

However, emission reduction credits, or “offsets,” is a tool which has been used for nearly 50 years under the Clean Air Act.  Verified offsets provide real reductions.   Verified offsets have been used to allow large new construction projects in dirty air areas, to reduce the costs of compliance measures in state implementation plans, and now as a means of reducing costs in most of the climate legislation around the world.  Offsets are not easy to create.  Using standard protocols, there must be a scientific method which has been adopted in a public process and adherence to that methodology then for a project to be undertaken.  Both are validated and verified by an independent third party. Only then is the “offset credit” created.  Offsets seem to attract entrepreneurs who have a “better idea” of what projects can be implemented at a much lower cost that an EPA-approved, command and control requirement.   The U.S. now has three independent offset verifiers which have produced millions of tonnes of extra reductions -- proving that the concept can work at scale.   These are real and verified reductions and the current prices are a small fraction of the $42 per tonne price in the Carbon Dividend proposal.  Verified offsets are a much better and cost-effective way to produce reduce real emission reductions.  

For a “tax” on carbon emissions, we would start with an existing and established measuring tool; those sectors covered by the Mandatory Reporting Rule (MRR).  The covered sectors have already been established as the most carbon-intensive industrial activities.  The MRR is established and tested and would not require a new system.

A proposed carbon tax systems could then allow a credit or a “deduction” for other state requirements for GHG controls.  State carbon reductions requirements (e.g. AB32 in California and RGGI in the Northeastern states or other state adopted requirements, see) could be recognized, which would reduce the taxable quantity.  Allowing offsets, including those purchased from sources “outside the [MRR] cap” would provide further reductions, and further reduce net taxable emissions.   But a complete elimination of taxable carbon emissions appears unlikely in the near term.

There are many sectors who now perform “voluntary” projects, at a cost far below $42/ metric tonne.  Among the sectors outside the MRR list, are:

  • agricultural and forestry programs (famers and foresters have produced substantial volumes of offset credits to date);
  • unregulated industrial processes, such as those emitting methane, nitrous oxides and hydrofluorocarbons, which are not subject to the MRR; and
  • abandoned coal and gas well vents.

Not only would using offsets provide an incentive for extra reductions on a voluntary basis, the existing voluntary programs are examples of innovation. Small businesses, new ideas, and new ventures have created most of the offsets now used in compliance and voluntary systems.

Carbon offsets are real reductions, and not just a fiscal policy redistribution.  In addition to providing a “dividend,” a carbon tax offset policy could stimulate new ideas and businesses as well as substantially reduce carbon emissions.  This would align sound climate policy with sound tax policy by using a tool developed long ago, updated based on recent experience.

Over/Under—Great Environmental Fiction/Nonfiction

Posted on July 10, 2019 by Dick Stoll

I just finished reading two books that I would highly recommend to anyone concerned about the environment and global climate:

—  The Overstory, a novel by Richard Powers.  It won the 2018 Pulitzer Prize for fiction.

—  Underland, a 2019 non-fiction “deep time journey” by Robert Macfarlane.  

Each book is exceedingly sweeping in scope and chock full of scientific information and details that even I (a political science and English major) could essentially understand and find captivating.   An overriding theme of each book is that humans aren’t doing much good for this planet.  

Each book may fairly be called a magnum opus, and I can’t even begin to describe their full sweep in a blog like this.   So I urge you to do a little googling for reviews.   I am linking a good review of each here:

https://www.theatlantic.com/magazine/archive/2018/06/richard-powers-the-overstory/559106/

https://www.npr.org/2019/06/03/729156788/underland-connects-us-to-dazzling-worlds-beneath-our-feet

The Overstory is mainly about trees and people — how trees interact with each other, how people interact with each other, and how people interact with trees.   Lots of bad things get done by some people, some good things get done by some people, and lots of good things get done by trees.   

After reading the book, I am paying a heck of a lot more attention to trees than I ever did before.  In fact, my current iPhone wallpaper is a close-up of a beautiful redwood I recently photographed in northern California.  

Underland primarily focuses on what goes on under the earth’s surface — today, for millions of years before today, and projectively for eons to come. The author relates how humans have used the “underland” over history in various positive and negative ways for all kinds of storage, disposal, and extraction.  He describes intriguing and dangerous underground “journeys” of his own in several places around the world.  His last journey is to a repository being readied for nuclear waste way under Finland.  

Each book is laden with concerns about the future for the global environment and climate.   The Overstory hits hard on deforestation, Underland hits equally hard on melting ice.

I am retired now and have more time to read books like these.   But I encourage those of you still practicing to find the time.

A Hard Look at the Environmental Rule of Law

Posted on June 20, 2019 by Leslie Carothers

Years in the making, the first global report on the Environmental Rule of Law (ERL) was issued by the United Nations Environment Program and the Environmental Law Institute (ELI) in January 2019.  The report is a comprehensive review of worldwide progress in the development and implementation of the key elements of environmental law and is available for free on ELI’s website.  Extensive analysis of data and statistics accompanies a series of color-coded maps showing what the nations of the world had accomplished in 1972, 1992, and 2017. (The Earth Summit of 1992 greatly accelerated the adoption of environmental laws.)   Case studies highlighted in the main text describe innovative practices such as the use of specialized environmental courts in New South Wales, Australia, and Kenya. Their Environment and Land Courts offer flexible and informal procedures that can speed dispute resolution and decisions.

The report is divided into an introduction and five substantive topics:  Institutions, Civic Engagement, Access to Information, Rights, and Justice.  The section on institutions is focused on the challenges of administration more than the specific content of environmental laws and stresses the need for “capacity, accountability integrity, and leadership” by officials.  I would add patience and persistence to those qualifications.  As a former federal and state official, I was not surprised to learn that environmental agencies in other countries deal with “regulatory overlap and underlap” and constant demands for coordination of many actors and interests in implementing environmental decisions.  They all struggle with making technical, multidimensional decisions amid intense economic, social, and political pressures. 

The section entitled “Rights” is likely to be very informative and thought provoking for U.S. lawyers.   The report states that since the 1970s, “environment-related rights have grown more rapidly than any other human right,” and that by 2012, over 66% of national constitutions included a range of environmental rights.  Such provisions usually enable citizens to seek remedies for environmental harms directly from responsible parties and agencies. The report concludes that constitutional law and human rights law can provide an important safety net where there are gaps in legislation, important norms, and forums for addressing climate change.

The report’s thorough review of the recognition of environmental rights abroad is timely.  Today, the U.S. is heading for decisions on whether the due process clause of the Fifth Amendment to the U.S Constitution and the public trust doctrine empower the young plaintiffs in Juliana v. United States to succeed in their claims that the federal government has a duty to adopt a comprehensive plan to prevent grave injury to health and the environment and special harm to their generation from climate change.   

In Juliana, District Judge Ann Aiken denied the government’s motion to dismiss, finding that the Juliana plaintiffs’ claims, though novel, should proceed to trial.  She held that a claim for a due process violation is stated “ where a complaint alleges knowing government action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten life spans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem.”  Juliana v. United States,  217 F. Supp. 3d 1224, 1250. (D. Or. 2016).

Following years of procedural twists and turns, the case was argued before the Ninth Circuit on June 4. The main issue is whether the district court correctly ruled that plaintiffs have stated a legal claim that merits a trial on the facts.  The federal government in both the Obama and Trump Administrations has opposed recognition of any legal basis for such claims warranting a trial.

By contrast, the ERL report describes decisions by courts in Pakistan and the Netherlands ordering the national governments to take stronger action to regulate greenhouse gases at the behest of citizens and organizations suing under constitutional or international conventions construed to confer environmental rights. Other non-U.S. tribunals have been similarly willing to recognize such rights and prescribe sometimes sweeping remedies. 

Will the Ninth Circuit or the Supreme Court also support the Juliana plaintiffs’ claims?  Probably not.   The substantive due process rationale for finding implied rights under the Fourteenth Amendment’s protection for life, liberty, and property cited by judges long ago to strike down state worker safeguards and other economic regulations has been generally discredited as allowing improper legislating by the judiciary. Substantive due process claims are usually successful in preventing government action rather than requiring it.  Since the 1960s, the only new implied rights recognized by the Supreme Court have protected personal privacy in sexual relations, including the choice of abortion, and supported a right to same sex marriage.  Those decisions voided contrary state laws but required little or no affirmative new action by the federal government.   

The plaintiffs’ second substantive due process claim is the common law public trust doctrine defining a duty of government to protect submerged lands and other resources,  which is grounded in historic government ownership of specific  natural resources.   The law on public trust rights and duties is too complex to explain  here.   But so far, the public trust doctrine has not yet been applied to compel action by the federal government, and it seems unlikely that the current Supreme Court, if not the Ninth Circuit, will uphold the claim for the first time in this case. 

The ERL report chapter on rights concludes  that “a rights based approach is more suitable for policy direction and for protecting people from egregious actions, rather than substitute for environmental regulation and enforcement.”  The issue in Juliana is egregious inaction. Whether or not the U.S. appellate courts are willing to break new ground on environmental rights, it will be interesting to see how the judges characterize a serious threat to the well being of the young plaintiffs that the federal government is failing to address or even acknowledge today. 

The overall assessment in the ERL concludes that notwithstanding dramatic growth in the number and scope of environmental laws, their effective implementation has not taken root in most countries   Carl Bruch, Director of International Programs at ELI and one of the ERL authors, agrees that “the culture of environmental compliance is weak or non-existent “ and that the international community and philanthropies need to do more on many fronts to strengthen environmental enforcement.   A most disturbing resistance to environmental laws is harassment and even murder of environmental defenders. In 2017 alone, 197 environmental defenders were killed.

The ERL report offers numerous good recommendations to upgrade performance and to monitor and track indicators of improvement in the environmental rule of law.  Environmental lawyers should be seeking ways to help.  All in all, this ambitious baseline report ably documents notable progress to celebrate, but reveals much more to be done to make environmental law work to secure a sustainable future. 

Some Labor Principles for Climate Change Legislation

Posted on May 20, 2019 by Eugene Trisko

The Democratic takeover of the House has rekindled hopes for climate change legislation, notwithstanding major hurdles in the Senate and the White House. While little but incremental progress is likely over the foreseeable future, the legislative concepts now being developed may gain greater traction after the 2020 general election.

Labor unions have participated in all major climate legislative developments since the 1997 Kyoto Protocol, and were involved in the drafting of the carbon capture and storage (CCS) technology and other provisions of the 2009 Waxman-Markey climate bill. Labor has consistently advocated for a comprehensive, economy-wide legislative solution to climate change. However, it is essential that any such legislation also be crafted to provide for worker adjustment assistance programs to address job displacement impacting families and communities.

Unions in the energy space are concerned about the adverse job implications of potential carbon tax legislation. Carbon taxes create uncertainties about market responses and lack assurance that advanced emission mitigation technologies such as CCS could be deployed in time to avert massive dislocation of workers in the petroleum, coal, rail, and mining sectors.

Any carbon tax legislation necessarily must include significant revenue set-asides for worker adjustment and community redevelopment assistance. Bureau of Labor Statistics data show that more than two million workers are directly employed in 14 vulnerable fossil fuel-related industries, with annual wages and benefits of some $180 billion. An additional seven million indirect jobs are in support industries and communities.

Major energy unions also are concerned about unrealistic solutions such as those advocated in the “Green New Deal” and by proponents of “Keep It in the Ground.” Legislation addressing the complex issues of carbon emission reduction must address: a) the tremendous impact such legislation will have on millions of fossil fuel-reliant jobs across America; and b) the costs and full recompense required to mitigate the effects of the loss of those jobs on workers, families and communities.

Speaker Pelosi has indicated that an emission allowance trading program such as that developed in the 2009 Waxman-Markey bill is a good starting point for discussions about future climate legislation. Updating and improving that bill could offer strong technology incentives while delivering significant longer-term emission reductions. A revamped allowance-based program could reflect the following principles:

1) All major emitting sectors (utilities, industrial, transportation) should be covered by a national trading program based on an upstream allocation of allowances  - i.e., to utility generating units, gas pipelines, oil refineries, etc.;

2) The rate of decline for any cap (sectoral or national) should to be assessed in light of the cost and availability of technologies for reducing CO2. In the case of electric utilities, a longer time frame for reductions can be justified based on lengthy engineering and construction lead-times - the transportation sector similarly requires long lead-times due to the gradual rollover of vehicle fleets;

3) A bonus allowance program for technology retrofits at utility and industrial units, similar to that employed in Waxman-Markey and the 1990 acid rain program, would complement the CCS incentives that Congress recently enacted in 45Q tax credit legislation;

4) Allowance auctions should be avoided as they constitute a form of double taxation on emitting sectors: first, compliance must be achieved through investments in control measures, and second, allowances must be purchased through an auction system;

5) Any economy-wide legislation should seek to maintain fuel diversity among "clean" fossil, nuclear, and renewable resources, with adequate 24/7 baseload generating capabilities. Reliance on large-scale battery storage to back up renewable power sources cannot provide assurance of grid stability over prolonged episodes of severe weather; and

6) Minimal limitations should be placed on emission allowance banking and borrowing to reduce overall compliance costs. Similarly, a broad variety of domestic and international offsets should be available, including initiatives to help reduce deforestation.

Legislation reflecting these principles may face fewer political hurdles than some of the more extreme proposals being advocated today. While current science informs a commitment to large-scale global reductions to meet aggressive climate targets, the U.S. should act in a manner consistent with the preservation and expansion of highly-paid skilled jobs in the energy and transport sectors. A technology-oriented path for achieving significant long-term reductions appears more politically and economically feasible than calls to eliminate all fossil fuel use within the next decade or two.

____________

NOTE: The writer is an adviser to several energy-related labor unions concerned about climate change legislation and regulation.

A Rational Counter to the Green New Deal

Posted on May 15, 2019 by Dick Stoll

For anyone serious about climate policy, I highly recommend Bob Sussman’s Comment in the May 2019 Environmental Law Reporter. Sussman, a former high-ranking EPA official in the Clinton and Obama Administrations, has produced an amazingly comprehensive review of where we have been and where – in his view – we should be going with climate policy and law in the U.S.

He recommends a detailed mix of legislative and regulatory proposals covering all sectors of the economy.  His proposals are based (necessarily) on the assumption that Democrats will control both the White House and Congress beginning in 2021.  If this happens, he says, the Democrats “will need to be ready with a fully developed and actionable climate policy agenda . . . building this agenda will take time and must begin now.”

So is Sussman – like many Democratic Presidential candidates – endorsing the Green New Deal (GND)?  Hardly!  His baseline is to seek “economically responsible and realistic” measures.  And when he says “realistic,” he means politically as well as technically.

Sussman criticizes the GND as a “wild card” formulated by “idealistic newcomers” who could “unwittingly torpedo their own efforts.”  He urges those formulating new proposals to account seriously for concerns about (1) economic disruption, (2) an expansive federal bureaucracy, (3) picking winners and losers among energy technologies, and (4) the U.S. competitive position internationally.  Democrats, he writes, “need to acknowledge these political realities.” 

These are concerns and realities, of course, that the GND essentially flaunts.  He warns that the GND “will polarize the electorate and alienate the political center,” which would lead to “yet another policymaking failure that allows GHG emissions and global temperatures to continue to rise unchecked.”

Sussman’s detailed proposals are summarized neatly in Table I to his Comment.  He is realistic in dividing proposals that will need new legislation as opposed to beefed up regulations.  For instance, he is careful to note that cap-and-trade or “beyond the fenceline” approaches would need new legislation.  In this regard, he recognizes that anything like the ambitious Obama Clean Power Plan would be unlikely to survive judicial review given the current composition of the Supreme Court.

For the power and manufacturing sectors, he endorses legislation providing an integrated cap-and-trade system.  I have one caution in this regard.  I would hope that such legislation would not look very much like the Waxman-Markey bill that passed the House in June, 2009 (and was never brought to the floor of the Senate).

As I wrote in a piece for BNA that year, the House bill contained short deadlines for dozens of new EPA regulations – deadlines that could never have been responsibly met. This would have set up an inevitable round of citizens suits forcing new deadlines coupled with massive judicial review opportunities.  All this in turn would produce tons of work for lawyers accompanied by very few tons of emission reductions.   Hopefully any new cap and trade legislation can be sufficiently specific on programmatic elements and numeric details so the program could get off the ground without suffering through years of judicial process.

Whatever Happened to the Conservative Belief in Markets?

Posted on May 3, 2019 by Seth Jaffe

After receiving an analysis showing that shutting the Jim Bridger and Naughton coal-fired electric generating plants in Wyoming would save ratepayers money, PacificCorp, the owner of the plants, announced that it would shut the plants and the mines that supply them as early as 2022.  Mark Gordon, the Republican Governor of Wyoming is not happy.

According to Greenwire (subscription required), Gordon said that:

I will advocate for a positive path where this utility and others are part of developing solutions rather than destroying communities and delaying progress on meaningful technological advances that keeps coal as part of a diverse energy portfolio and also address climate change.  The potential for early retirements of some coal-fired power plants means we drift further away from finding solutions for reducing carbon emissions.  (Emphasis very much added.)

If we stop burning coal, we’ll never figure out how to reduce carbon.  Rats.  Why didn’t I think of that?

However, I’m not here to criticize Gordon for thinking that we need to burn coal in order to reduce CO2 emissions.  I’m here to criticize him for thinking that it is reasonable for the Republican-led government of Wyoming to criticize private companies for taking economically rational decisions to reduce costs for ratepayers.  Indeed, Wyoming has not just criticized PacificCorp.  Wyoming has apparently enacted legislation requiring a utility that wants to close a coal plant to search for a buyer.  It apparently also would require the utility to purchase electricity from such a new buyer, so long as it does not increase customer bills.

Since when did Republicans start second-guessing private sector economic decisions?  Conservatives should stop worrying about the green new deal and start worrying about socialism in Wyoming!

How Carbon Pricing Could be Won or Lost in the West: Linked Cap and Trade Programs Proposed in the Pacific Coast States

Posted on March 14, 2019 by Kevin Poloncarz

On March 6, 2019, a bill was introduced in the Washington Senate, SB 5981, to establish a cap and trade program linked to the existing California-Québec program, which is implemented under the auspices of the Western Climate Initiative (WCI).  The bill mirrors many of the design elements from the California program, as amended pursuant to a 2017 law that authorizes its extension beyond 2020, and also borrows from legislation currently under consideration by the neighboring State of Oregon, HB 2020, which would establish a similar “cap and invest” program, also intended to be linked with the WCI jurisdictions. 

If both the Washington and Oregon bills were enacted, it would represent a significant step forward in the development of North American carbon markets and would help realize the original WCI vision of a broad, economy-wide trading program embracing a significant share of the North American economy.

The Washington bill contains many of the features of the California/WCI program, including:

  • Similar scope of covered entities and emissions thresholds, including for the “first jurisdictional deliverer” of imported electricity;
  • Three-year compliance periods with a requirement to surrender instruments amounting to at least 30 percent of the prior year’s emissions in the first two years of each period;
  • Auctions of allowances with a floor and ceiling price, an allowance price containment reserve, and free allocations to energy intensive/trade exposed entities; and
  • Authorization for covered entities to rely upon offset credits for a small portion of their compliance obligation, with a limitation on the number that can be sourced from projects that do not provide direct environmental benefits in the state.

Notable differences from the California program include a $200 automatic penalty (adjusted annually for inflation starting in 2025) for each compliance instrument that is not timely surrendered.  In California, the automatic penalty requires that a covered entity must surrender an additional three allowances for each instrument it fails to timely surrender. 

The Washington bill would also amend the state’s greenhouse gas reduction goals, requiring a 40 percent reduction below 1990 levels by 2035 and an 80 percent reduction below 1990 levels by 2050.  California has the same 2050 target.  For the mid-term target, a 2016 California law requires the same 40 percent reduction below 1990 levels, but by 2030, five years earlier than would be required under the Washington bill.  While the Oregon bill has the same 2050 target as both California and the Washington bill, it sets a mid-term target for Oregon of reducing emissions to 45 percent below 1990 levels by 2035.  These disparities among the mid-term targets pose some question regarding whether the programs are equivalently stringent, which is a requirement for linkage imposed by a 2012 California law.  California’s approval of linkage with Ontario (which has since cancelled its program) was premised upon an Ontario goal of reducing emissions to 37 percent below 1990 levels by 2030; so linkage clearly doesn’t require uniformity of goals.

The Washington bill would also exempt emissions from a coal-fired power plant in Centralia, Washington, which is subject to a prior agreement that it must shutdown by the end of 2025. That exemption, as well as an exemption in the Oregon bill for power exports from an in-state gas-fired power plant, could pose additional obstacles to linkage and be the subject of legal challenges.  The attorneys general of Montana and Wyoming featured a similar exemption that had appeared in a 2018 Washington carbon tax bill as a basis for asserting in a letter to Governor Inslee that application of the tax to imported electricity would be unlawful.    

Obstacles aside, linking the Pacific coast states’ market-based programs would fulfill a fundamental goal of a 2013 agreement between the three states and British Columbia.  Additionally, California’s implementation of its cap and trade program in isolation of other western jurisdictions has been observed to result in emissions “leakage” in the Energy Imbalance Market, as zero-carbon power elsewhere in the west is directed to California and then back-filled by higher-emitting generation.  In response, the 2018 bill establishing California’s state policy of supplying 100 percent of retail sales from renewable and zero-carbon resources by 2045 mandates that the transition to a zero-carbon electric system must not cause or contribute to emissions increases elsewhere in the western grid or allow for resource shuffling.  That could prove challenging in the absence of equivalent price signals in other jurisdictions.  For that reason alone, the motivation for California to pursue linkage could be even stronger than when the Western Climate Initiative was launched over a decade ago.

The Answer is Blowin’ in the FAMGs

Posted on February 19, 2019 by Charles F. Becker

It is well known that Des Moines is, among other things, the most popular city for millennial home buyers and, according to Forbes, the fifth best place for businesses and careers.  However, these accolades are not the reason for Facebook, Apple, Microsoft and Google (“FAMG”) choosing to invest billions of dollars in data centers in the Des Moines area. They are building here because they want to be able to say they are “green” – their services are powered by renewable energy. They can say that because Iowa is the third largest producer of wind energy in the country.

FAMG seem to recognize two fundamental truths: 1) Customers want to purchase from green companies, and 2) renewable energy is cost effective and goes a long way to satisfying #1. In short, environmental awareness means profits.

A 2018 study from Deloitte Resources provides some interesting insights:

1.      69% of businesses said customers are demanding more environmentally considerate solutions – up 7% from one year earlier;

2.      70%  said customers are demanding businesses procure at least some of their energy from renewable resources – up 9% from a year earlier; and

3.      79% of businesses actively promote their environmental efforts to their customers – up 5% from a year earlier.

When you combine these statistics with polling that shows 75% of adults ages 18 to 29 say wind and solar power should be a “more important priority” than fossil fuels, the message is clear – satisfied customers mean more green (both environmentally and monetarily).

Moreover, giving customers what they want also makes economic sense.  Wind and solar power have received a lot of attention, and made a lot of progress, over the past fifteen years.  As a result, the cost of renewable energy is dropping so fast that by 2020 it will be a cheaper source of power than fossil fuels.  At the same time costs are dropping, coal-fired power plants are concluding their life cycle.  In 2018, 42% of the coal-fired power stations worldwide were running at a loss.  By 2030, that number will be 96%. 

In the very near future, it won’t really matter whether businesses want to tout their green credentials by saying they use renewable energy because a least cost power system without coal is an “economic inevitability.” The early adopters are just taking credit (and customers) for what’s coming.

Despite the numbers, the President and a significant number of conservative politicians are doing everything they can to deny climate change, promote coal and increase the cost of renewable energy.  The question is why?  Certainly the politicians recognize that businesses (i.e. donors) are moving away from coal, so the answer must be something else.  Turns out, it’s mostly perspective.

Studies done by the Pew Research Center found that Democratic support for renewable energy is based primarily on environmental protection (it is good for mother earth).  Conservative Republicans reject it because it runs counter to a need to support more coal mining/fracking and because environmental solutions do more harm than good.  This Republican viewpoint, however, is not universally held.  A growing number of Republicans support renewable energy and do so on the basis that it promotes self-sufficiency and is a financially wise decision.  When couched in these terms, Republicans have not only been able to switch positions, but have successfully challenged the President’s position on renewable energy and been elected.  

My point to all this is not to extol the superiority of Des Moines as a city or to praise the environmental impacts of renewable energy. It is to say that perhaps Democrats have been going about the promotion of renewable energy all wrong.  Forget chest beating and yelling “everyone must be green.”  That is a position not everyone believes and using it means the people you want to persuade have already stopped listening.  Instead, talk about how renewable energy reduces costs, promotes self-sufficiency and is what consumers and businesses want.  The side benefit of environmental protection shouldn’t even be mentioned. 

There’s nothing wrong with telling someone what they want to hear . . . if it’s true.

A LAWYER’S GUIDE TO ADDRESSING CLIMATE DISRUPTION

Posted on February 14, 2019 by John C. Dernbach

Co-authored by Michael B. Gerard

Recent scientific reports by the U.S. Global Change Research Program and the Intergovernmental Panel on Climate Change depict the present and future consequences of climate disruption in increasingly urgent terms.  At the same time, according to a new poll, record numbers of Americans believe that climate change is real, that it is human caused, and that it affects them personally. 

But there is good news.  It is possible for the U.S. to dramatically reduce greenhouse gas emissions.  We also have the legal tools to do the job—more legal tools, and a greater variety of tools, than we may have imagined. 

In 2014 and 2015, the Deep Decarbonization Pathways Project (DDPP)  published a technical report and a policy report on deep decarbonization in the United States—reducing U.S. greenhouse emissions by at least 80% by 2050.  The DDPP is a global effort to assess the technological and economic feasibility of deep decarbonization in 16 countries representing 74% of the world’s greenhouse gas emissions.

The U.S. reports conclude that “it is technically feasible” for this country to reduce its greenhouse gas emissions by 80% from 1990 levels by 2050.  They also conclude that the cost of this effort would only be one percent of U.S. gross domestic product, not including the many benefits that would come from doing so.   

Enormous changes would be required to achieve this level of reduction, the reports said.  The U.S. would more than double the efficiency with which energy is used.  Nearly all electricity would be carbon free or use carbon capture and sequestration.  Electricity production would also need to double because gasoline and diesel fuel for transportation, and oil and natural gas used for space heating and cooling and water heating, would be mostly replaced by electricity.  

These reports do not, however, discuss what legal tools would be necessary to achieve these outcomes.  In response, in late 2015, we began planning an edited volume to comprehensively analyze and explain the various laws that could be employed, building on the DDPP reports. The resulting book, Legal Pathways to Deep Decarbonization in the United States is being published by the Environmental Law Institute Press in March.  You can order a copy here.  In 35 chapters authored by 59 experts, adding up to 1,200 pages, the book identifies more than 1,000 federal, state, local, and private legal tools for deep decarbonization.   

To get the key messages of the book to the broadest possible audience, ELI has also published a Summary and Key Recommendations volume.  This book includes a thumbnail summary of each chapter, key recommendations by chapter, and a separate listing of recommendations organized by actor.  You can download this book here without charge.

Legal Pathways describes a dozen different types of legal tools.  As explained in greater detail here, these are not just the usual suspects (additional regulation, market-leveraging approaches, tradable permits or allowances), but also reduction or removal of legal barriers to clean energy and removal of incentives for fossil fuel use.  They also include information/persuasion, facilities and operations, infrastructure development, research and development, insurance, property rights, and social equity.  The wide range of types of legal tools provides great opportunity for building consensus.  One particularly important category, for example, is reduction or removal of legal barriers.

The book is thus a playbook for deep decarbonization.  In fact, various legal tools could be designed and combined to achieve quicker and deeper reductions than 80% by 2050, and even negative overall emissions.

This book is also a resource for lawyers because the laws it describes need to be proposed, drafted, and implemented on behalf of a wide variety of clients in many contexts.  The many types of tools also make clear that a variety of lawyers are important in this effort, including not only energy and environmental lawyers, but also finance, corporate, municipal, procurement, contracting, real estate, and other types of lawyers.

While both the scale and complexity of deep decarbonization are enormous, the book has a simple message: deep decarbonization is achievable in the United States using laws that exist or could be enacted. These legal tools can be employed with significant economic, social, environmental, and national security benefits.

Toward that end, we are launching a project to turn the recommendations into legal language—drafting federal and state statutes and regulations, model ordinances, guidance documents, transactional agreements, and the like.  We are well aware that a great many lawyers are already doing this kind of work, and that many more are feeling the need to respond to the challenges that climate disruption imposes.  We welcome lawyers from all backgrounds to join in our effort, and plan to work with ACOEL as well.  If you are interested, please contact us.

Carrying Coals to Newcastle … and Katowice

Posted on January 3, 2019 by Zach C. Miller

When Newcastle was the largest British exporter of coal, talk of “carrying coals to Newcastle” meant engaging in something senseless, superfluous, or foolish.  The Trump administration’s recent actions on coal use and climate change have taken the expression to new heights – or depths.

In June 2017, the Trump administration isolated the U.S. by making it the only country in the world to announce plans to withdraw from the 2015 Paris Agreement on climate change.  Last month the administration made things worse by its actions at the U.N. climate conference in Katowice, Poland – an historic, heavily polluted coal mining area.  Instead of joining the signatories to the Paris Agreement in negotiating the “rule book” for implementing that Agreement, the U.S. delegation presented a “side-event” (some say “side-show”) promoting the use of coal and fossil fuels.  Use of innovative, cleaner technologies to burn coal and fossil fuels would be laudable if combined with sound strategies to transition to cleaner, sustainable energy sources, but that was not the thrust of the side-show.  The coal “pep rally” in Katowice thus highlighted that the U.S., as represented by the current administration, is tone-deaf and no longer a leader in international climate discussions. 

The Trump administration staged a similar coal-booster event at the 2017 U.N. climate conference in Bonn, but with important differences.  In Bonn, U.S. representatives worked extensively with other countries on the Paris Agreement’s rule book, with an eye towards the U.S. possibly not withdrawing from the Agreement.  But most of the key Trump administration insiders who then favored staying in the Paris Agreement are now gone, including Secretary of State Rex Tillerson, national security advisor H.R. McMaster, energy adviser George Banks, and economic advisor Gary Cohn.  They’ve been replaced by Paris Agreement opponents:  Mike Pompeo, John Bolton, Wells Griffith, and Larry Kudlow.  As a result, the participation and influence of the U.S. in international climate discussions has become increasingly leaner, weaker and less relevant.

Meanwhile, at the G-20 Summit last month in Buenos Aires, countries led by France and China further isolated the U.S. when the Summit’s final communique stated that all 19 other countries “reaffirm that the Paris Agreement is irreversible and commit to its full implementation.”  The U.S. stuck out like a sore thumb by reiterating there its decision to be the sole nation to withdraw from the Paris Agreement, and instead touting “its strong commitment to economic growth and energy access . . . .”

These U.S. actions come directly on the heels of three significant studies, two from the Trump administration itself, that directly refute the administration’s positions.  The October 2018 Report of the U.N. Intergovernmental Panel on Climate Change warned that the world’s use of coal for generating electricity will need to be reduced dramatically by mid-century – from 40% down to 1-7% – to prevent catastrophic droughts, fires, floods, and storms resulting from climate change.  Then the recent report of DOE’s Energy Information Administration concluded that regardless of the climate debate, over 500 plants and 75 gigawatts of coal-fired power have been or soon will be retired and U.S. coal use is expected to continue to decrease (44% less than 2007 use), due mainly to market forces such as cheaper natural gas and renewable energy.  Finally, the November 26, 2018 Fourth National Climate Assessment – issued by 13 federal agencies and the Trump administration’s own White House – unequivocally states that climate change is already occurring, is partly caused by human activity, and must be urgently addressed to prevent catastrophic impacts.  President Trump’s only response to that overwhelming evidence from his own office: “I don’t believe it.” 

Why does this matter?  Two reasons.  First, if climate change is the severe and urgent problem virtually all climate scientists (and the White House’s own report) conclude it is, the failure of the U.S. to respond to it is an enormous and possibly irreversible blunder.  Second, taking such a position has caused the U.S. to cede its leadership role in the international debate on climate change and the design of creative and appropriate responses to it.  Because others – including China and Russia – are stepping into the resulting void and steering the direction of future actions in this and related environmental and economic fields, the U.S. may never recover that leadership role. 

The Trump administration’s Katowice side-show and similar superfluous actions may pander to the administration’s base.  But these senseless acts are merely “carrying coals to Newcastle” and accomplish nothing, while our most critical environmental problem goes unaddressed by the federal government.

The Rubber Begins to Hit the Road on Adaptation

Posted on November 6, 2018 by Seth Jaffe

I gave up some time ago on the idea that focusing on adaption was just a means of weaseling out of necessary measures to mitigate climate change.  As the extraordinary becomes commonplace, it’s evident that we’ve ignored the externalities of carbon longer than was prudent.

It’s thus great to see Boston’s Mayor Walsh release Resilient Boston Harbor.  Even for those who follow these issues for a living (and I have a personal stake, since my wife and I are about to move to Fort Point Channel, ground zero for climate change flooding impacts in Boston), what’s really amazing is the granularity of both the analysis and the recommendations.

If you want to understand just how granular the analysis must be in order to develop specific recommendations, you might take a look at this figure from the full Climate Ready South Boston report.  Don’t just skim the Executive Summary on this one.

I find this work both inspiring and discouraging.  There is so much to do.  Among other tasks, environmental lawyers have to figure out how to make these recommendations feasible in light of existing environmental regulations that would actually prevent implementation of some of the recommended adaptation measures.

I had thought of closing with a nice climate-inspired haiku.  Instead, I think I’ll leave you with this:

It is not your responsibility to finish the work of perfecting the world, but you are not free to desist from it either.

We May Not Always Have Paris, But Perhaps We Can Do Better Than Paris

Posted on September 20, 2018 by Seth Jaffe

Last week, the Climate Leadership Council released an analysis demonstrating that the “Baker Shultz Carbon Dividends Plan” would result in greater reductions in greenhouse gas emissions than the US committed to attaining under the 2015 Paris agreement.  (And a shout out to ACOEL fellow Pam Giblin, who is a Senior Policy Advisor at the CLC.) 

I don’t doubt that the CLC analysis is right.  If I had to guess, I’d predict that they probably underestimate the reductions that would be reached with a robust carbon tax.

I understand the difficulty in convincing what passes for the GOP base at this point – and the GOP members of Congress – to endorse the carbon tax.  Oops, I meant dividend.  I’m hopeful that enough members will come around at some point.  My real worry is that the environmental movement will reject the plan because it calls for elimination of current regulations concerning carbon.

Years ago, Gina McCarthy used to say quite freely that the Obama administration would get most of its carbon reductions, not from direct regulation of GHG emissions, but instead from all of the other air regulations it was promulgating, such as the power plant MACT standards.

What environmentalists have to remember is that the reverse is also true – any robust program to reduce carbon emissions will also lower emissions of conventional pollutants.  Indeed, in defending the Clean Power Plan, environmentalists have made that very argument.  Why not acknowledge the same point in connection with a carbon tax and give up on a set of regulations that have always been clunky at best, are nowhere near as efficient a regulatory tool as a carbon tax, and which, as compared to a carbon tax, really benefit no one other than environmental lawyers and consultants?

God, wouldn’t it be a breath of fresh air to see Congress actually get something big done for the American people?  Let’s not screw this one up.

Managing Interdependence in a World of Chaos

Posted on August 8, 2018 by Dan Esty

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

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

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

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

Von Humboldt's Gifts

Posted on August 6, 2018 by David B. Farer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fear of Forward Looking Statements: Climate Reporting and the TCFD

Posted on July 18, 2018 by Christopher Davis

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

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

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

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

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

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

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

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

Posted on July 3, 2018 by Seth Jaffe

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

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

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

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

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

The Dutch Government Also Doesn’t Like Citizen Climate Litigation

Posted on July 3, 2018 by Seth Jaffe

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

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

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

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

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

Posted on June 28, 2018 by Jeff Civins

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

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

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

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

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

The Decision Record explained:

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

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

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

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

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

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

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

Posted on June 21, 2018 by Eileen Millett

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

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

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

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

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

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

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

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