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

Posted on June 14, 2017 by Leslie Carothers

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

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

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

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

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

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

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

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

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

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

Categories:  Sustainability, Climate Change

Tags:  Population, Environment

 


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

Posted on June 5, 2017 by James B. Witkin

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

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

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

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

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

States Challenge Trump Administration’s Approach to Climate Change Through Energy Efficiency Rules

Posted on May 26, 2017 by Chester Babst

When President Trump issued his energy-related Executive Order in March directing further review by the EPA Administrator of, among other things, the Clean Power Plan, it signaled the death knell for what was arguably President Obama's centerpiece domestic action on climate change. But while the Order's likely intent to neutralize this and other rules would have appeared to pave the way for a flurry of lawsuits filed by environmental groups and States particularly concerned about global warming, the federal dockets have thus far been somewhat quiet with respect to the Trump Administration's handling of prior climate change-related rulemaking.

A group of 10 states have begun to push back, though, by filing a petition in the Second Circuit. The rule that is requested to be reviewed? It doesn't involve coal-fired power plants. Nor wellpads or compressors. Rather, the petition involves rulemaking aimed at the ominous ... ceiling fan. The rule, enacted by the Department of Energy in January, establishes minimum energy efficiency standards for fans manufactured after January 2020 pursuant to the Energy Policy and Conservation Act.  According to the DOE, the rule is projected to reduce carbon dioxide emissions by over 200 million tons and methane emissions by 17 million tons through 2049.  Some 12 days after the rule was finalized, DOE delayed the effective date by 60 days with the stated intent of conducting further review and consideration of new regulations, consistent with the Freeze Memo. In March, DOE subsequently pushed back the effective date even further until September, with the basis being that DOE Secretary Rick Perry was, perhaps unsurprisingly, unable to accomplish the review and consideration of the rule within the 60-day timeframe.  Additional energy efficiency rulemakings finalized but not published under the Obama Administration currently remain unpublished.

The significance of the lawsuit is not so much about its substantive impact on climate change. After all, the projected GHG reductions under the ceiling fan rule are only a small fraction of those projected as part of the Clean Power Plan, which itself left some wondering whether it could meaningfully affect climate change on a global level.  Further, the Clean Power Plan’s vitality was already in question following the Supreme Court’s stay.  Rather, the petition carries broader implications for the Trump Administration's apparent strategy of stalling, as opposed to directly revising or withdrawing, environmental rulemaking that it fundamentally opposes. The strategy is not a wholly illogical one, especially considering the possible legal and practical limitations that some commentators have expressed the Administration might initially face if it were forced to provide, on-the-record, a definitive basis for full-fledged withdrawal of notable climate change regulations.

One of the key figures for the petitioners, New York Attorney General Eric Schneiderman, has contended that the DOE's delays violate the Administrative Procedure Act in that they constitute a substantive revision to a final rule without going through proper notice and comment. He is joined by nine other states (California, Connecticut, Illinois, Maine, Massachusetts, Oregon, Pennsylvania, Vermont, and Washington) as well as New York City. If the petitioners prevail, it will likely force EPA and other agencies to confront existing rulemaking head-on, and would otherwise challenge the viability of President Trump's energy-related Executive Order, including associated OMB guidance for implementation of the rule review procedures.  Further pressure could also come as a result of a challenge to the so-called “2-for-1” Executive Order, which environmental groups have claimed also directs arbitrary repeal of rulemakings.  But until then, neither industry nor environmentalists should be surprised if climate change or other significant environmental regulations carried over from the Obama Administration remain in an infinite loop of administrative review.

BUSINESS AND PARIS: CAN WE TALK?

Posted on May 16, 2017 by Charles F. Becker

Addressing environmental issues on a world scale will always be a difficult proposition.  The most recent attempt, the Paris Climate Accord, was no exception.  Every nation, leader and business had an opinion on what needed to be done.  Eventually, enough countries signed on to allow the Paris Agreement to be deemed “in force.” 

What was surprising about the discussions leading up to the Agreement was that 81 companies chose to publicly declare they would take action to reduce their emissions.  The companies included Wal-Mart, Mars, IKEA, Siemens, Amazon, GE, GM and Best Buy.  Not a bad group of supporters.  The declarations were, of course, prior to the election and President Trump is now deciding whether the United States is better served being out of the Paris Agreement.

One would think that after the election, there might be some changes in corporate support for the Accord.  But not so.  Most of the signing companies, and hundreds more, have reaffirmed their commitment to reduce their emissions.  Even coal companies have expressed support.  In making his decision on Paris, the President might want to consider the viewpoint of those businesses.  For example, in a March statement to Bloomberg, representatives of Apple, Amazon, Google and Microsoft said:

We believe that strong, clean energy and climate policies, like the Clean Power Plan, can make renewable energy supplies more robust and address the serious threat of climate change while supporting American competitiveness, innovation and job growth.

 

A common theme from all of the corporate supporters is to acknowledge that climate change is real and that they want to do something about it for the good of the planet. 

I have to say, however, if that’s really what the businesses believe, they aren’t helping their cause by saying it to a President who has very publicly advanced a contrary view.  The good news is, these businesses didn’t really mean it.  They were just setting out alternative facts.  Businesses care about “shareholder value” -- what action will be best for the bottom line.  That’s not a shocking concept and it provides a very understandable basis for supporting the Paris Agreement.  They just need to be willing to explain it better.  I believe this is the letter the companies really meant to send: 

Dear President Trump:

 

Regarding your consideration of withdrawing from the Paris Climate Agreement, please don’t do it.  We know you’ve got our best interests at heart, but you’ve done enough.  Let us explain.

 

We sell things—steaks, trucks, drain pipes, wigs, designer clothes.  You know, stuff people can’t live without.  It’s a whole different world from selling real estate.  You get by with a Phase I every once in a while, but we have regulation on everything we do.  And it’s been that way for a long time.

 

The difficulty is that we have discovered two simple truths.  First, people (and by that we mean our customers, your voters) actually want environmental regulation.  Even now, after all of your great efforts to explain why climate change was invented by the Chinese and late night talk show hosts, Pew Research says that 74% of the people (our customers, your voters) believe that the country should do whatever it takes to protect the environment.  We know, that’s made up of 52% Republicans and 90% Democrats, but we did our own research and discovered that we sell coffee and cola and cars to Republicans and Democrats.  We’re as shocked as you, but there it is.

 

Second, and this is really important: Quit changing the rules!  We were just getting used to the regulations.  We have already taken steps to address future goals, like those in the Paris Agreement.  For example, many of us have converted our facilities from coal to gas.  We’re not going back. 

 

Don’t get us wrong.  We’ll vote for you and we wish you nothing but the best.  But Here’s the Thing (sorry, couldn’t resist): we’re going to outlive your time – by a lot.  In a few years, you’ll be gone from office.  Sooner or later the Democrats are going to be back in power.  Sure, they all have really small hands, but what do you think they’re going to do with them?  You guessed it – they’re going to change your rules and go back to where we are now.  We’ve seen it over and over.  And they are going to make up for lost time with 74% of the people (our customers, your voters) saying it’s a great idea. 

 

What we’re trying to say is THIS WHIPSAW REGULATION IS KILLING US!

 

Only you can make it stop and leaving us in the Paris Agreement would be a great place to start.

 

We can’t tell you how appreciative we are of your attempts to reconsider some of the regulations for a few years.  Really, thank you.  But we need to make money and it’s a lot harder to do when we have to keep changing all our procedures and equipment that 74% of the people (you know) said they wanted in the first place.

So, if you could see your way to just switching your focus to getting that really important wall built and put these environmental changes on the back burner, that would be huge . . . believe me.

                                                            Most Sincerely,

 

                                                Your Friends Making Incredibly Great Stuff

Should Courts Defer to EPA’s Scientific Expertise if EPA Gets Rid of Its Expertise?

Posted on April 6, 2017 by Seth Jaffe

Earlier this week, the 9th Circuit Court of Appeals rejected challenges to the Federal Implementation Plan EPA promulgated after finding that Arizona’s regional haze State Implementation Plan was inadequate.  I think that the result is both correct and unsurprising.

However, one part of the opinion – a recitation of black-letter law – caught my eye.  In discussing the standard of review, the court noted that the arbitrary and capricious standard is “highly deferential.”  No surprise there.  It also noted that courts are particularly deferential when reviewing agency scientific determinations.  Also no surprise.

And yet….

What happens if EPA eliminates all of its climate science expertise, and then eliminates the Endangerment Finding?  Certainly, a court could still recite the traditional level of deference, but then note that “deference is not abdication” and rule that EPA’s decision must be reversed even under the deferential threshold.

And yet….

What happens if the Trump administration repeatedly makes regulatory decisions based on a “scientific” viewpoint that is so broadly rejected by the scientific community that “scientific” must be put in quotation marks?  Might courts at some point conclude that EPA has forfeited the deference normally given to agency scientific decisions?

Just asking.  It’s purely a hypothetical, of course.

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

Posted on March 31, 2017 by Seth Jaffe

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

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

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

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

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

Earth Day Texas—People, Planet, and Profit—Key Legal Issues for a Protective and Productive Future

Posted on March 27, 2017 by Jeff Civins

On March 16th, Reuters reported that President Trump’s administration has proposed a 31 % cut to EPA’s budget, explaining: “Consistent with the President’s America’s First Energy Plan, the budget reorients the EPA’s air program to protect the air we breathe without unduly burdening the American economy.”  In this time of change and uncertainty, perhaps more than ever, there is a need for a measured dialog among diverse viewpoints. 

With over 130,000 participants attending last year’s  Earth Day Texas celebration in Dallas, its organizers decided a Legal Symposium of prominent representatives from environmental organizations, business, academia and the government might help policy makers grapple with fundamental environmental issues such as how best to balance economic development with environmental protection.  Several members of the College assisted the organizers in the development of that symposium.

On April 20-21, that Symposium will bring together those thought leaders to discuss: (1) how to integrate science into regulatory decision making; (2) how to reconcile energy and economic development with protection of public health and the environment; (3) how to facilitate environmental dispute resolution; and (4) how to integrate sustainability and ethical considerations into corporate decision-making. 

Consistent with the objective of having diverse viewpoints represented, the Thursday evening keynote speaker will be General Wesley K. Clark, discussing Climate Change as a Major Security Concern, and the Friday luncheon keynote speaker will be EPA Administrator Scott Pruitt, discussing the new administration’s objectives and goals.  For further information and to register, go to http://earthdaytx.org/legal-symposium/.

Energy Storage and Transforming The Grid in New York

Posted on March 21, 2017 by Virginia C. Robbins

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

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

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

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

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

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

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

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

Rifle Shots – Unleashing the Power of the Tweak

Posted on February 24, 2017 by JB Ruhl

Here’s a thought exercise: I’ll give you a budget of 25 words (including conjunctions, articles, and all the other little ones). You use up a word by either deleting, adding, or replacing one in an existing federal environmental or natural resources statute. How much could you transform the field of practice with just those 25 word edits? The answer is, quite a lot.

When we think of statutory reform, we usually think big, right on up to “repeal and replace.” But after more than 25 years of very little legislative action on federal environmental and natural resources statutes—the National Wildlife Refuge Improvement Act, Sustainable Fishing Act, and the recent Toxic Substances Control Act reforms are a few exceptions since the 1990 Clean Air Act amendments—much rides on the accumulations of judicial and agency interpretations of the meaning of a word here and a phrase there. As we enter a period of potential legislative volatility in this field, therefore, the rifle shot may be just as much in play as the nuclear bomb.

Like any statutory reform, rifle shots can make regulatory statutes either more or less regulatory. For example, one could add “including carbon dioxide” or “excluding carbon dioxide” in just the right place in the Clean Air Act and with those three words put an end to a lot of debate and litigation. Given the current political climate, however, it’s reasonable to assume any rifle shot would be aimed at reducing regulatory impacts. But even with just 25 words in the clip, one could transform the impact of several regulatory programs before running out.

For example, delete the words “harm” and “harass” from the statutory definition of “take” in the Endangered Species Act (ESA) (16 U.S.C. 1532(19)) [LINK 1] and you have a very different regulatory program. Much if not most of the land use regulation impact under the ESA stems from the inclusion of those two words; without them, the ESA’s prohibition of unpermitted take would restrict actions like hunting, killing, shooting, and wounding, but could not reach indirect “harming” from habitat modification.   Of course, the interagency consultation program under Section 7 (16 U.S.C. 1536(a)(2)) [LINK 2] would still be in place, prohibiting federal agencies from taking actions that “jeopardize” the continued existence of species. But just add “substantially” before “jeopardize” and the practical effect of that prohibition is greatly reduced.

I’ve managed to transform the ESA, vastly reducing its regulatory impact, with just three word tweaks. Twenty-two to go. Here are some more examples.  I’ll let readers evaluate the impacts.

·         Speaking of evaluating impacts, the environmental impact review process of the National Environmental Policy Act (NEPA) can really slow things down (42 U.S.C. 4332(B)). [LINK 3] To “streamline” the process, add the word “direct” before “environmental impact” in subpart (C)(1), which would eliminate the current practice of requiring analysis of indirect and cumulative impacts, and delete subpart (C)(iii), which requires agencies to evaluate “alternatives to the proposed action,” to remove a factor that bogs down much NEPA litigation. (Six more words down, sixteen to go.)

·         Heard all the commotion about which “waters” are subject to the Clean Water Act? Clear that up by changing the statutory definition of “navigable waters” (33 U.S.C. 1362(7)) [LINK 4] to read “waters of the United States subject to navigation.” That would be pretty extreme—it would remove most wetlands from jurisdiction—so one could control how far jurisdiction extends over wetlands by adding and their adjacent wetlands.” This would draw the line much closer to navigable water bodies than current interpretations reflected in Supreme Court opinions and agency regulations—Rapanos and the Water of the United States Rule become history. (Seven more words down, nine to go.)

·         And if you also want to put to rest the question whether the Clean Water Act applies to groundwater, edit the front end of the definition to read “surface waters.” (Another word down, eight to go.)

·         The Circuits are split over whether the Migratory Bird Treaty Act’s list of prohibited activities (16 U.S.C. 703(a)), [LINK 5] which includes to “take” or “kill,” sweeps within the statute’s reach any “incidental” taking or killing—injury or mortality that is not the direct purpose of the activity, such as strikes by wind turbines. Easy to solve! Add the word “purposeful” before the list of prohibited activities. (Another word down, seven to go.)

·         And, while we’re at it, let’s go ahead and add “excluding carbon dioxide” to the Clean Air Act definition of “air pollutant” (42 U.S.C. 7602(g)). [LINK 6] Adios, Clean Power Plan. (Three more words down, leaving just four to go.)

I’ll leave it to readers to think about how to use the last four words. The point here is that the system of environmental and natural resources law has become quite fragile. With Congress out of the picture for so long, courts and agencies have built up an interpretation infrastructure under which a single word or phrase often carries a tremendous burden of substantive and procedural program implementation. As a consequence, a mere tweak here and there can have dramatic effects on the program.

Granted, anyone who closely follows the statutes tweaked above will quickly appreciate the impact of any of the tweaks, and I’ve chosen some powerful examples unlikely to slip by any such experts. But subtler tweaks buried deep in a larger bill could more easily fly below the radar.

It remains to be seen whether Congress takes this rifle shot approach or goes bigger.  Rifle shots don’t eliminate or “gut” entire programs, which may be the current congressional appetite, but the above examples show the potency of this approach. I for one will be keeping my eyes out for rifle shots in bills every bit as much as I will be following the big bomb reform efforts. Do not underestimate the power of the tweak!

Bumble Bee Buzzkill

Posted on February 14, 2017 by Richard Horder

Citing its deep decline in numbers, on January 10, 2017, the U.S. Fish and Wildlife Service (“FWS”) listed the rusty patched bumble bee, Bombus affinis, as endangered under the Endangered Species Act (“ESA”).  FWS estimates the rusty patched bumble bee population has seen as much as a 91 percent reduction since the mid to late 1990s.  Twenty years ago, this species was practically ubiquitous in eastern North America, spanning across 28 states.  Now its territory covers only small regions in 12 states: Illinois, Indiana, Maine, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, and Wisconsin.

This listing is the first for bees under the ESA, but unlikely the last.  Like the rusty patch bumble bee, other bee species are facing steep declines in their respective populations.  Declining bee populations are troubling, because bees, as pollinators, are vital to the U.S. agricultural industry.  According to a study conducted in 2010 by Cornell University, bees and other pollinators are estimated to contribute a total of $29 billion to the industry, with $16.35 billion attributed specifically to pollination. 

The direct cause of these dramatic declines in bee populations is undetermined and likely due to a multitude of factors.  FWS states the threats to the rusty patched bumble bee include disease, exposure to pesticides, habitat loss, and climate change.  This listing will likely intensify the debate over commonly used pesticides, including neonicotinoids, which have undergone additional scrutiny after a 2016 study published in Nature linked the use of neonicotinoids to the decline of wild bee populations in England.

FWS published the proposal for this listing in the Federal Register on September 22, 2016 and the final listing was published in the Federal Regulation on. January 10, 2017. However, due to the Trump administration’s Inauguration Day memorandum halting or delaying any new federal regulations, the ESA’s protection for the rusty patch bumble bee is delayed until March 21, 2017-a stinging result.

WORRIED ABOUT OUR CLIMATE FUTURE? LOOK TO YOUR PLATE

Posted on December 15, 2016 by Peter Lehner

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

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

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

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

GLOBAL CALCULATOR

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

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

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

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

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

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

For PEAT’s Sake! Another Pathway Averting Climate Change

Posted on December 1, 2016 by Nicholas Robinson

After the smoke clears, damage still emerges from last spring’s wild and vast fires around Fort McMurray in Alberta. The NYT Science Times  (August 9, 2016) reported how fires like these are destroying Earth’s peat deposits, releasing volumes of greenhouse gases into the atmosphere.  Long-dead plant material in peat holds ancient carbon, which photosynthesis removed from the air. Worldwide, buried peat holds 30% of all carbon dioxide.

Most know peat only as dried “peat moss” used to enrich flowerbeds. Canada harvests 40,000 acres of peat moss, exporting 90% to the USA for gardeners. Peat is dried when mined. Exposed to the air, the peat oxidizes and its stored carbon is released. In Alberta, peat covers 65% of the oil sands. Cleared to permit surface mining, Alberta’s peat releases upwards of 47.3 million tons of stored carbon into the air. The wild fires ignited this exposed peat, and set peat in the ground ablaze. Fires are still smoldering, awaiting winter rains and snows.

Peat fires burn all around the world until rains extinguish them. Beyond billions of dollars in economic damage, natural systems are impaired. NASA provides an online observatory revealing the extent of these fires. This summer’s Siberian wild peat fires burn on.

Companies unlawfully burn peat in Indonesia to convert wet peat forests to palm oil and pulp plantations. Indonesia’s greenhouse gas emissions from burning peat are today equal to all the climate-changing emissions of China or the USA. Each year since 1997, the smoke from these fires causes air pollution locally in Riau and across the Straits of Malacca in Kuala Lumpur and Singapore.  Southeast Asia’s peat emissions are adding one gigaton of carbon dioxide a year. The Indonesian “Haze” is well documented, as in NASA’s 2014 recorded images.

Although peat deposits exist in all Earth’s regions, peat covers only 3% of the land surface. Peat has accumulated to depths of 30 feet or more. While drained or degraded peat areas are found today on 0.4% of the lands, these areas currently contribute 5% of total greenhouse gas emission. Their volume of emissions grows daily.

Mining of peat is an additional cause of the destruction of peat deposits and carbon emissions.  Peat is mined like coal in Ireland and in each Scandinavian country to fuel electricity generating plants. A new peat-fired power plant has opened in Uganda. The untapped peat in Central Africa is huge. Peat bogs in the Congo exceed the entire landmass of Great Britain. 

Some countries are taking steps to limit disturbance of peat deposits.  Finland, New Zealand and Great Britain are debating ending their exploitation of peat in order to help stop global warming.  Since 1989, Kew Botanical Garden in London has banned the use of peat, although the U.K.’s annual emissions  of carbon dioxide from mining peat for use in compost remain at 400,000 tons.  To stop air pollution of Moscow and halt ongoing greenhouse gases releases, Russia is re-wetting peat areas drained in the 1920s by the USSR. Russia’s protected wilderness areas hold the world’s largest preserved peat habitats.  Peat is protected in federal parks lands of Alaska.

Alternatives exist for every use of peat. Countries could legislate to ban peat sales and restore damaged peat deposits. States like New York or Massachusetts have already done so by adopting strict wetlands laws. The need to reduce greenhouse gas emissions provides a strong reason to ban sales of peat moss, and prohibit peat mining in Minnesota and nationally.  Emission-trading schemes can help finance transitions from peat abuse to peat preservation.

Peat preservation is critical. Paleoecologists mine peat for knowledge, learning how plants thrived and died over the 11,000 years since the last Ice Age. Peat reveals how climates change.  Accumulating slowly at 1 mm/year, peat is an irreplaceable record of life on Earth. Peat areas also host essential biodiversity.  Indonesia’s peat loss jeopardizes its Orangutan and Sumatran tiger habitat. In less than ten years, the Kampar Peninsula lost 43% of its peat, releasing 1.9 gigatons of greenhouse gases.  Indonesia has lost 18.5 million hectares of forests, an area twice the size of Ireland.

United Nations climate negotiators so far have ignored the plight of peat. At the 2015 Paris climate negotiations, Singapore stated that, “emissions of these fires by errant companies in Indonesia are more than the total CO2 emissions of Germany. This is comparable to the emissions of Japan.”  It is sobering to reflect that Southeast Asia’s peat emissions are matched by those in Canada and elsewhere.

This month, the World Conservation Congress of the International Union for the Conservation of Nature met in the USA for the first time. The 5,000 IUCN delegates in Hawai’i adopted a call for the worldwide protection of peat. Some efforts have begun. The United Kingdom is studying a “Peat Code” to finance peat restoration and preservation by payments to offset other gas emission. In Germany, “MoorFutures” are being offered in Bavaria for investors to finance peat offsets.

Much is at stake. If the climate warms and the peat is allowed to dry and burn across Africa, Asia, Siberia and elsewhere, run-away emissions can result. Aware of mounting environmental degradation, a year ago the nations in the UN General Assembly adopted a new Sustainable Development Goal, to “protect, restore and promote sustainable use of terrestrial ecosystems” by 2030.  For peat’s sake, let us get on with it.

MITIGATING CLIMATE CHANGE WITHOUT THE CLEAN POWER PLAN

Posted on November 29, 2016 by Stephen L. Kass

President Obama’s Clean Power Plan is in trouble, both in the courts and politically. I believe that Plan is a lawful exercise of EPA’s regulatory power and deserves support from the public. But it is far more likely that by January 21, 2017 the new EPA Administrator will, at the direction of the White House, seek to rescind or eviscerate the Clean Power Plan because of both  aversion to regulatory action in general and campaign promises to the coal industry.  That would be a disaster for the U.S. (and global) environment since coal plant emissions are the largest single source of Greenhouse Gas (GHG) emissions in our nation and our refusal to reduce them will lead other nations to slow their own efforts to cut GHG emissions. The resulting international reaction, perhaps including threatened carbon charges on U.S. exports, will put intense pressure on the White House to take climate change more seriously.

There is, however, a way for the new Administration to reduce GHG emissions even more effectively than the Clean Power Plan – and without EPA regulatory action.  The White House could simply ask Congress for authority to purchase the nation’s approximately 350 operating coal plants and then promise to close half of them in five years and the balance in 10 years.  Such a plan would do far more than the Clean Power Plan to eliminate coal as a major source of GHGs in the US, and would do it faster and with more certainty than EPA’s complex and potentially unenforceable regulations.  Investors in renewable energy projects would also have a clear path forward, without the prospect of continued coal competition, so that such projects could once again accelerate even without large-scale subsidies.    

This purchase alternative, which I call “Plan A,” could also be attractive both to existing coal plant shareholders and their workers.  Coal plant shareholders and lenders now face the prospect of near-term loss of their entire investment as bankruptcies ripple across the nation’s coal fields.  Workers too face near-term unemployment with or without the Clean Power Plan.  Under Plan A, workers would receive generous compensation as part of the purchase of their plants, along with assistance in meeting outstanding mortgage, car loan and medical bills, scholarship assistance for themselves and their children at nearby community colleges and priority in filling jobs at new renewable energy projects.

Given the age and condition of the coal plants being purchased and the relatively small number of coal workers still active in the country,  the total cost of  this Plan A alternative would likely be less than or equal to the public health benefits that EPA estimated would result from closing down only a portion of those plants under  the Clean Power Plan.  In short, Plan A could be a win-win solution for GHG emissions without relying on EPA regulations but on Executive and Congressional action that would dramatically improve the global environment and challenge other nations to do the same.     

TRUMP POWER: PROSPECTS FOR DE-REGULATING (AND UN-ENDANGERING?)

Posted on November 18, 2016 by Richard G. Stoll

Q&A

Q:  What two things do Jeb Bush, John Kasich, Marco Rubio, Rand Paul, Chris Christie, Carly Fiorina, Mike Huckabee, Bobby Jindal, Ted Cruz, and George Pataki have in common?

A:  (1) None of them ever claimed that climate change is a Chinese hoax; and 
(2)  Every one of them promised to revoke the Obama Clean Power Plan (CPP) if elected.

How Bad Is Bad?

I’ll come back to the CPP.   But first, the question so many are asking:  how terrible is Mr. Trump’s election going to be for the environment?  Let me begin by reminiscing.  In 1980, I was in EPA’s Office of General Counsel when the “killer trees” President was elected.  I don’t remember actual tears in the office the next day, but people were pretty distressed and many were threatening to leave the agency.

Things really did look bad for a while.  Remember Anne Gorsuch Burford, Rita Lavelle, James Watt and many others with similar agendas?  But then remember the intense and angry public reaction when it appeared that core environmental protections for clean air and clean water were in jeopardy.  These people were forced out of office.  William Ruckelshaus returned at the top of EPA, and the ship was essentially righted.

With that history as a guide, I don’t think the Trump Administration (disclosure:  I neither supported nor voted for him) will try to make any significant changes to the vast bulk of protective air, water, waste, etc. rules now on the books.  I once calculated there are over 20,000 pages of EPA regulations in the C.F.R.  That’s millions of words.  I think that after four years of a Trump Administration, fewer than 1% of those words will be deleted or amended.

Top Target

Now back to the CPP.  I am pretty sure that will fall into the 1%.  Others have written about what might happen to the CPP on judicial review and I won’t try to add to that guessing game.   The key thing to remember is that the CPP is currently stayed by the Supreme Court, and that stay will remain in effect until any final Supreme Court disposition – which will be many months from now.

There is a good chance that the Trump EPA will not wait for any final judicial review but rather will soon undertake a rulemaking to revoke at least the more far-reaching and controversial elements of the CPP (i.e., the provisions “going beyond the fence-line” to force wind and solar in place of coal).  As explained in one of my recent blogs, there would be no need to develop a new factual record in such a rulemaking.  So this process may take a couple of years, but for much of that time the CPP will remain blocked by the Supreme Court stay and the earliest CPP standards aren’t scheduled to take effect until 2022. 

As also explained in my blog, thanks to a recent 3-0 D.C. Circuit opinion authored by Judge Merrick Garland (and the Supreme Court precedent that he relied upon), those in the Trump EPA should have smooth sailing on judicial review if they take the time to clearly articulate their policy and legal rationale.

And what would public reaction be to such actions?  Cutting the most controversial parts out of the CPP would not jeopardize the legal basis for core clean air and water protections as the early Reagan cutbacks were perceived to do.  So even if revisions to the CPP provoke lots of noise from traditional public interest groups opposing any cut-backs in GHG regulation, that noise may not resonate much with  a general public much more interested in jobs, health care,  and public safety. 

Un-endanger Me?

Public reaction could be far different, though, if – as indicated in some press reports --  the Trump EPA were to go beyond significantly cutting back on the CPP and deploy a nuclear option:  reversing the Obama EPA’s 2009 GHG “endangerment finding.”  By doing this EPA would be trying to free itself of any obligation to regulate GHGs under the Clean Air Act.  (Note:  I am not addressing the more limited August 2016 aircraft emission endangerment finding.)

I think such a reversal would be extremely unwise.  First, I think it would be far more vulnerable on judicial review than a significant CPP cutback.  Reversing the finding would require the building of a massive new factual record.  And with the growing scientific consensus that man-made GHGs are causing at least some adverse effects, even conservative judges may have difficulty upholding such a decision.

Second, having EPA in effect deny there is any climate problem from air emissions could more easily foment the kind of intense and angry public reaction that the early Reagan EPA suffered.   Recall from the above that none of the other Republican candidates gunning for the CPP ever said global climate was a Chinese hoax.

Finally, I believe such a reversal is entirely unnecessary as a legal matter.  As long as EPA keeps some form of GHG controls on the books, it will have carried out its legal obligations stemming from the endangerment finding.  Nothing in the CAA or any judicial decision requires that the degree of GHG regulation be driven by an endangerment finding.  There is nothing remotely like the MACT mandate to achieve limits being met by the best 12% in a source’s category.  In short, EPA does not need to touch the endangerment finding to accomplish the goal of amending the CPP to remove its more far-reaching and controversial provisions.

More Targets and Concerns

Getting back to the basic question of how much the Trump EPA may change things, there will certainly be more rules targeted in the 1% -- the Obama Clean Water Rule for almost sure.  And there are valid concerns about how much EPA’s funding and enforcement efforts may be cut back even if most rules stay on the books.  Spoiler alert:  I may do blogs on these topics soon.

But my main concern for  people at the Trump EPA now is that they remember what happened when the Reagan EPA tried to de-regulate in a manner that was perceived as threatening core values of clean air and clean water.

Does Trump Election Boost Children’s Climate Crusade?

Posted on November 14, 2016 by Rick Glick

As reported here, Oregon is among a group of states in which groups of school age plaintiffs are suing to force the government to do more about climate change.  On November 10, U. S. District Judge Ann Aiken adopted the magistrate judge’s April Findings and Recommendations in Juliana et al. v. United States to deny the government’s motion to dismiss. 

Plaintiffs seek a declaration that U. S. policies and actions have substantially contributed to climate change—even though the government was aware of the climate consequences—and an injunction to reduce greenhouse gas emissions.  Plaintiffs allege that the government’s failures violate plaintiffs’ substantive due process rights and violate the government’s public trust obligations.  

The judge found that plaintiffs have presented facts sufficient to state a cause of action, stressing that the context of her ruling is a motion to dismiss in which she must assume the truth of the pleadings.  In her 54-page opinion, Judge Aiken recognizes and embraces that this case breaks new ground, concluding:  “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.”

In my earlier post, I suggested that the case is not likely to succeed, as climate change is so complex, diffuse and political a problem as to render the case nonjusticiable.  Although Judge Aiken was undeterred by these considerations, I still believe that to be true.  Still, did the election of Donald Trump give new impetus to the case?

The president-elect believes human-induced climate change is a hoax perpetrated by the Chinese, has pledged to walk from the Paris Accords and to undo the Obama Administration’s executive orders and rulemakings to curtail greenhouse gas emissions, and has chosen climate change skeptic Myron Ebell to head his EPA transition team.  This, combined with a solidly Republican Congress with no inclination to address climate change, makes it pretty clear that the only action we can expect by the federal government is to roll back any forward progress made over the past eight years.

It seems the case to force action is more difficult where the government is appearing to grapple with climate change, as Obama attempted to do despite congressional hostility.  Could it make a difference in this case that the government not only takes no action, but denies the overwhelming scientific evidence of rising global temperatures resulting from GHG emissions?  Could the election create a sense of urgency that a court may feel the need to address?  Maybe, but this still strikes me as tough case to sustain.

A more likely result of the election is to see some states pushing harder for some kind of carbon pricing, like a cap and trade program or a carbon tax.  Washington State voters just rejected a carbon tax initiative, but the issue is far from dead there.  California has a cap and trade system, and Oregon is expected to take up the issue in next year’s legislative session.  Local environmentalists think the chances of a successful local climate initiative are high.  The election results very likely improve those chances, at least on the West Coast, and perhaps in other regions convinced of the need to act.

Climate Change Displacement and Dislocation-Coming to a City or Town Near You!

Posted on November 3, 2016 by Wendy B. Jacobs

It is time not only to plan and prepare, but also to bring human rights and land use policies together into the discussion and much-needed governance reforms. When one thinks of population migrations, one often thinks of international movements. The issues of human rights are front and center in that context, but we don’t yet have a developed language or set of principles to apply when thinking it through here in the U.S. Hence, last week, I co-hosted a 2 and ½ day workshop on the subject with my colleagues in the International Human Rights and Immigration Clinics. We brought together experts on human rights from all over the world to focus on 4 case studies. One was the Horn of Africa where pastoralists are on the move to escape drought conditions; one was Central America/Mexico from which people are fleeing not only gang violence and poverty but increasingly severe climate conditions; a third case study focused on Native Alaskan communities; and, a fourth on coastal cities in the U.S.  In addition to international experts, also participating were government representatives of several coastal cities, an expert on the Hurricane Sandy property buy-outs, several climate justice activists (including the NAACP), and people working to relocate Native Alaskans. 

Together we brainstormed how to build on the Nansen Initiative and other internationally-developed principles for creating governance structures and funding mechanisms to implement plans to protect displaced persons. (Brief mention was made of imposing a carbon tax and then applying the funds to adaptation measures.) A key point of consensus was the need to use “bottom up” approaches (including local referendums) to ensure that policy makers and decision makers understand the needs of affected communities when pursuing much needed legal reforms and to begin planning now for ultimate displacement instead of waiting for disaster to strike. Many barriers exist, however. A major barrier to effective and cost-efficient planning for and management of dislocations in the U.S. (and elsewhere) is the “siloing” of jurisdiction and expertise between the many tiers of government (domestic and international). Another is the dependency of municipalities on a strong tax base which leads many to resist the notion of “retreat” or “relocation” of at-risk populations. Furthermore, land-use planning is managed separately from disaster relief planning in the U.S. More resources are (inefficiently) disbursed for responding to disasters than avoiding them. Indeed, the sinking of communities into the sea is not even considered a “disaster” under current U.S. law. Many legal reforms are needed, ranging from zoning policies to building codes to jurisdictional issues to preemption. One example: the National Flood Insurance Program not only creates perverse incentives to continue building and re-building along the coast, but it does not require that municipalities adopt zoning codes that take sea level rise or storm surges into account. We discussed legal and policy mechanisms for managing infrastructure in communities that will need to be abandoned and creating infrastructure elsewhere to support people forced to relocate. Alaskan communities are caught in a terrible Catch 22: some still lack fundamentals, such as running water, but the government does not want to invest in infrastructure in communities that will have to relocate and yet the government has been tied up in knots and unable to build the necessary infrastructure in the areas to which these peoples will relocate. And, we discussed climate change gentrification and the need to ensure affordable, sustainable, safe and healthy housing for the dislocated poor.

There is much work to be done. If any member of the College is interested in working on any of these issues with us, please let me know!

FWS Goes Back to Square One On Listing the Wolverine. It’s Not Going to Be Any Easier This Time Around.

Posted on October 27, 2016 by Seth Jaffe

In April, Judge Dana Christensen vacated the Fish and Wildlife Service’s decision to withdraw its proposed listing of a distinct population segment of the North American wolverine WolverineSnowas threatened under the Endangered Species Act (“ESA”).  Bowing to the inevitable, the Fish and Wildlife Service ("FWS") has published in the Federal Register a formal acknowledgement that the Court’s vacatur of the withdrawal of the proposed listing returns the situation to the status quo.

In other words, the proposed rule that would have listed the wolverine distinct population segment ("DPS") is back in play.  Specifically, the FWS announced that

"we will be initiating an entirely new status review of the North American wolverine,hugh-jackman-wolverineto determine whether this DPS meets the definition of an endangered or threatened species under the Act, or whether the species is not warranted for listing.

FWS also reopened the comment period on the proposed listing and invited the public to provide comment, identifying nine specific areas in which it sought comments, including

"Information on the projected and reasonably likely impacts of climate change on the wolverine and its habitat, including the loss of snowpack and impacts to wolverine denning habitat.

This is all well and good and certainly required under Judge Christensen’s order, but neither Judge Christensen nor FWS has the tools necessary to address the core issue here, i.e., the unwieldy nature of the ESA.  It simply wasn’t designed to solve all of the ecological problems resulting from climate change.

It would be nice if Congress weren’t completely dysfunctional.

Cuba Delegation Part 3: Environmental Law and Policy Wonks Wanted

Posted on October 11, 2016 by Mary Ellen Ternes

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

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

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

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

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

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

Cuba Delegation Blog 2: Notes from Our Informal Meetings

Posted on October 10, 2016 by David B. Farer

Jim Bruen, Eileen Millett, Mary Ellen Ternes and I remain energized from the dynamic set of informal meetings in which we participated while in Cuba.  I thought you might find useful the following notes and points from four of those meetings, as we explore the potential for ACOEL pro bono projects there.  We certainly have the capacity and will to help in Cuba, and I am optimistic that the College and its Fellows will find a path to do so.

One overall note on the tone and content of the meetings – and of our casual conversations with Cubans we met during our time there – is that most people had both positive and critical things to say about the government, the system and quality of life.  Most, though, expressed optimism for the future of their country.

You may find some of the notes below inconsistent or contradictory.  I think that’s reflective of the differing viewpoints and experiences to which we were exposed.

Sept 7, 2016:  Meeting with Political Scientist /Publisher/Editor

•    Cuba in transition; you are here at a special time

•    Changes had already occurred before December 2014; more changes since then, and more to come

•    Electoral system:  Citizens vote for representatives to the  National  Assembly/ Assembly chooses President and Vice President

•    Raul Castro has committed to step down in 2018

•    Current VP, Miguel Diaz-Canel, is a 55 year old engineer; 30 years younger than Raul Castro

•    Most in assembly are engineers, economists and teachers who serve in government at no additional salary while also pursuing their professional careers

•    Power will be passing to a much younger generation of legislators and leaders; and that generation consists of highly educated professionals

•    In order to travel outside of the country, Cubans need only their passports and any necessary visas from the countries to be visited.

•    Government publications remain narrow in point of view; but that is not the case with private publications, where dissenting opinions are published.

•    The outside perception of Cuba may be that Cubans have the least available access to world views through the internet.  However, even though lack of internet may be the case at home, computers and the internet are commonly available at work and school and most people now also have internet-connected smartphones.

•    Human rights issues remain, including prohibition on founding political parties

•    Approximately 170,000 Americans visited Cuba last year; that is 705 more than the year before.

  • This year: expecting the total to be more than 500,000

•    Key issues for updating the Cuban socialist model:

  • Have to confront increased social inequality & poverty
  • About 20% suffering from poverty; 4 times more than 20 years ago
  • Yet others are achieving higher overall income with salary plus additional sources of income.  Income differential and poverty must be dealt with.
  • Severe housing shortage is a critical problem.
  • Housing in bad condition/ and housing shortage
  • Super centralization as a defensive posture
  • Overextended bureaucracy
  • Water supply/ energy supply problems
  • 20% of Cubans are over 60; by 2025, that will be up to 25% 
    • Life expectancy is about 80 years
    • Population growth rate = -1.5%
    • Birth rate has been low since early 70s
  • Surge of migration.  65% more than the year before.  Up by 45,000 this year.
  • Media:  all media is currently government media
  • Inconsistent economic system 
  • High dependency on imports
  • Low domestic food production and industrial output

•    Last of the key issues/problems:  U.S. policy toward Cuba

  • Negative impact of embargo
  • Fortress mentality
  • Travel restrictions for U.S. citizens

•    Cuban culture is closer to American culture than that of any other country in the region

Sept 7, 2016:  Meeting at the Fundacion Antonio Nuñez Jimenez de la Naturaleza y el Hombre (“Cuba Nature Foundation”) with an Engineer of the Foundation, a Faculty Member of the Instituto Geografia Tropical, and a Representative of the Ministry of Science

•    The Foundation is the only scientific foundation/ NGO in Cuba (there are other NGOs that are cultural foundations).

•    Among other things, it manages protected areas in Cuba.

•    Foundation has collaborated with foundations/NGOs  in U.S., and there have been visits back and forth

•    Biggest problem is that the embargo gets in the way of funding from U.S. institutions

•    Over 50 international cooperative projects over the past 21 years

•    Goal of conservation of Cuban biodiversity and geographical diversity             

•    Problems:  invasive species/ pollution/ climate change/mining   

•    Existing environmental legal framework:

  • National environmental policies, strategies and legislation
  • Article 27 of the Constitution on protecting environment
  • Law number 81:  Approved 1997

•    Cuba has entered three treaties/conventions:  on bio diversity, climate change, and drought.

•    Most important current issues are seen as:

  • Soil degradation
  • Loss of biodiversity
  • Damage to forest cover and lack of water
  • Climate change vulnerability

•    Where does Cuba go from here?  Varying views expressed:

  • Process of last 60 years for environment has been good/big question is how to preserve going forward as things change     
  • Having to redefine behavior and economy
  • Problem of dealing with laws on the books that reflect a former reality
  • We are a country rich in spirit and ideas, but we are poor in our economy
  • How to organize the economy?
  • Challenge:  don't take the same directions that others took 100 years ago
  • Everything to be done from an environmental perspective depends on how you organize your financial structure and financing
  • Existing environmental act should be sufficient for big picture, but we need the legislation to implement it.
  • Right now it is reactive, not preventive.

•    General discussion among them:

  • Need to access financing and technology to protect the environment and human settlements 
  • Existing law based on national/fed strategy and structure.  No local structure. 
  • No legal framework to determine the information you need and which set of regulations applies.   There can be conflicting regulations from one ministry to another.  This needs to be combined and systemized.
  • No unity on legislation, on what it means; you get lost looking for information.
  • Same on pollution controls:  different regulations from different ministries.  Cleanup standards as example:  One ministry comes up with standards/ another comes up with methodology and other aspects, but there is no master plan to compel a combination of the two.
  • Implementing ministry does not itself have the power to enforce.  Other institutions may have power to enforce.  So there is an issue on means of enforcement.
  • Current law already has a way to incentivize local application of laws or enforcement  of them, but in practice it is not happening, and dissemination of information on the regulations and methods of enforcement is not occurring

Sept 7, 2016:  Meeting with Former Official at the Ministry of Science, Technology and Environment (CITMA)

•    The official worked at CITMA until she retired in 2014.  Her work had different aspects, including ecology, assisting companies on decision making at high levels, and environmental communication.

•    Overview of environmental law in Cuba:

  • Until 1990, done empirically
  • But after 1990, determined to be in interest of the  state and the agency to control environmental issues
  • Before 1990, several agencies were dealing with protection of the environment, but then new system was established in 1990 - directed from CITMA (or “Ministry of Science”)
  • Continues under Ministry of Science
  • Within the Ministry, there is an Agency on the Environment
  • There are several other institutions within the environmental agency.
  • Local administrations propose areas to protect: geographic areas/not topics
  • The Ministry analyzes what has to be done about local efforts to develop in these geographic areas.
  • Ministry works together with local government
  • When a company wants to work in one of these areas, it has to pass consideration by  a commission that considers what company wants to do
  • Ministry of Science issues permits to companies to work in these areas.
  • Ministry's model for development requires compliance with permits:  risk, air quality etc. within one permit roof
  • Ministry follows UNESCO standards for protection of biosphere
  • Other ministries also have an interest:  geographical and others including tourism
  • Other involved institutions:  Ministries of Mining, Energy, Tourism, for example, depending on project.

Sept 9, 2016:  Roundtable Meeting with Law Professor and with Engineers Connected with the Ministry of Science, Technology and the Environment

•    They find a basic harmony in the existing environmental structure; but they are not saying the harmony is perfect; can always be better

•    But there are many disparate environmental regulations that have been implemented over time based on urgencies and commitments; often, environmental regulation in Cuba is based on international commitments

•    Since 1992, Cuba has been on path to amend laws to meet international commitments

  • As a result of those commitments, have to revamp institutions:
  • Such as sustainable development
  • But need a clearer legal framework to make it work better

•    Biggest problem here has been adaptation, as opposed to remediation

•    But now:  a delicate balance must be reached between development and environmental protection, and need a strong legal framework for this

•    Per the Paris Accord, we have to deal with adaptation as well as mitigation

•    Have to regulate technology to regulate environment

•    Should look to integrate all of the different laws

  • Right now, each agency issues its own regulations
  • Would be good to integrate and facilitate within one unit       

•    Specific focus could be to introduce a legal framework for  the verification of  remediation, mitigation and adaptation.

•    Currently, each ministry issues resolutions:  their own general determinations to be followed

•    Vertical governmental structure:

  • Municipal/provincial/ national
  • Local decisions cannot contradict national or provincial decisions
  • They don't have equivalent of state legislation

•    CITMA decisions have to be observed all over the country

•    Each province also has experts in each area, representing the Ministry in the region

•    Same at municipal level

•    There are civil and criminal penalties in the current environmental laws

•    The environmental laws are meant to be preventative but there have been sanctions

•    Ministry of Justice tends to have all fines and sanctions in one single act.   And they do find efficiencies here, having fines and sanctions centralized within one act.

•    There are administrative sanctions; plus potential taking over of / confiscation of materials and closure of establishments

•    Almost everything needs an environmental license of some degree:  Whether biotech/ chemical / nuclear/ industrial activities in general; license seen as critical

•    Mariel Port district being dealt with very firmly and strictly

•    There are municipal/ provincial/national courts, including specialty courts like the environmental court

Stop the Presses: Nuclear Power Still Does Not Emit Greenhouse Gases

Posted on October 6, 2016 by Seth Jaffe

On Monday, the TVA announced that Watts Bar Unit 2 watts-barhad successfully completed what is known as its final power ascension test.  It is now producing 1,150 MW of power in pre-commercial operation.  Though EnergyWire did report it (subscription required), I would have thought this would have received more coverage.  It’s been 20 years since the last nuclear facility came online in the United States.

In case anyone has forgotten, we’re trying to reduce GHG emissions in this country.  Nuclear power – still – does not produce GHG emissions.  Nuclear power’s role in combatting climate change seems only to be more salient in light of the recent study by Washington State University researchers concluding that hydroelectric dam reservoirs are a significant source of GHGs.  According to the study, reservoirs produce the equivalent of 1 gigaton of CO2 annually, or 1.3% of all GHGs produced by humans.

If we want to be carbon-free in our energy production, that leaves solar and nuclear.  Solar has a huge and growing role to play.  But are we really going to turn our back on nuclear power as an option?  As Robert Heinlein and Milton Friedman noted, TANSTAAFL.

Is You Is Or Is You Ain’t Transformative?

Posted on October 4, 2016 by Andrea Field

More about that title later, but first let me set the stage.  On September 27, 2016, the D.C. Circuit, sitting en banc, heard argument in West Virginia v. EPA, in which state, industry, and labor petitioners challenge EPA’s Clean Power Plan (CPP, the Plan, or the Rule).  The Plan regulates carbon dioxide emissions from existing power plants under Clean Air Act (CAA) §111(d).  I will refrain from addressing issues on which the trade and mainstream press have opined at length (e.g., the judges’ frustration at being asked to make policy decisions because Congress has failed to act and that participants – judges, lawyers, parties, reporters, the public – had to sit through almost 7 hours of argument in one day, in addition to the hours many spent waiting in line).  Instead, I offer an ACOEL-centric tour, in non-chronological order, of the five “segments” of the September 27 argument. 

Argument Segment #2:  The Battle Between CAA §§112 and 111(d).  Aficionados of the College’s 2014 white paper on EPA’s §111(d) regulatory authority will recall the difference of opinion over whether – under the 1990 Amendments to the CAA – EPA is prohibited from regulating power plants under CAA §111(d) if EPA already regulates power plants under CAA §112.  Plan challengers point to the plain meaning of §111(d)(1)(A) as it appears in the U.S. Code.  Plan supporters point to the existence of a “conforming amendment” to §111(d)(1)(A) found in the Statutes at Large but omitted from the U.S. Code, and they argue that EPA’s approach is a valid attempt to reconcile that amendment with the U.S. Code.  After listening to the judges express frustration at not being able to satisfyingly reconcile the two versions, I recalled D.C. Circuit Judge Leventhal’s concurring opinion in Citizens to Save Spencer County v. EPA, in which he concluded that contradictory CAA provisions should be viewed as “countermanding.”  Quoting from Eugene Field’s poem “The Duel” – about the fight between the gingham dog and the calico cat – he summed up the irreconcilable differences as follows:  “The tension between the two animals culminates in these final lines of doggerel:  ‘The truth about the cat and pup is this, They ate each other up.’ ”

Argument Segment #3:  Constitutional Issues.  If forced at knife-point to articulate the first portion of this argument, which began at 2:35 p.m., right after the lunch break, I would be unable to do so, other than to say that the word “commandeering” cropped up a lot.  More interesting was how the second advocate for petitioners on this point – Professor Laurence Tribe of Constitutional law fame – was able to expand his separation-of-powers argument into a further analysis of issues argued during the morning session. 

Argument Segments #4 and #5:  Notice and Record-Based Issues.  At the end of a very long day, the panel heard arguments on (a) whether EPA’s standards are “achievable” and whether parts of the Plan’s approach have been “adequately demonstrated” under §111; and (b) whether the final rule is so different from what was proposed that the public lacked notice and an opportunity to comment.  Petitioners arguing the former point (the unachievability of program requirements) faced a weary panel, which pondered what the options for state and source relief would be if the Rule is upheld but later turns out to be a train wreck.

A colleague describes as follows the situation that gives rise to parties complaining that they had no notice of what a final rule would require because EPA’s proposal was so different:  “EPA may propose an apple and finalize an orange.  That’s OK; they’re both fruits.  What EPA may not do (and what petitioners argue EPA has done here) is to propose an apple and finalize a pork chop.”  Dick Stoll passionately argued – in his June 7, 2016 post for ACOEL – that previous 3-judge panels in the D.C. Circuit have not properly dealt with this lack-of-notice issue.   Those panels refused challengers’ attempts to overturn pork chops, saying challengers of pork chops must first file administrative petitions for review under CAA §307(d)(7)(B) and then wait (for what could be years, if ever) for EPA to act on those petitions.  Dick argued that the only way the previous 3-judge panel decisions would ever be overturned was by action of the entire court, sitting en banc.  I cannot promise Dick the entire court will overturn the previous panels’ reading of §307(d)(7)(B), but I can say that Tom Lorenzen teed up the issue.  When asked by Judge Griffith whether this argument appeared in petitioners’ briefs, Lorenzen said it did not because when petitioners wrote their briefs, the case was going to be heard by a 3-judge panel.  But said Lorenzen, looking up at Judge Griffith, “Now we are here.”  To which Judge Griffith replied, “And who else to ask but an en banc court?”  “Exactly,” said Lorenzen. 

Argument Segment #1:  Core Legal Issues.  Although I visit Argument Segment #1 last, the fate of the Clean Power Plan may well rest on how the panel addresses the issue raised at the very beginning of the day:  whether or not the Plan is “transformative.”  The Supreme Court, in UARG v. EPA, held that EPA cannot engage in a “transformative expansion” of its regulatory authority absent “clear congressional authorization” to do so.  Petitioners argue that EPA’s Clean Power Plan amounts to a transformative expansion of EPA’s explicit regulatory authority and thus is illegal.  EPA argues the program is not “transformative”; indeed, says EPA, the Rule is very similar to other CAA programs that the D.C. Circuit has upheld.  So, is the Rule “business as usual” or is it “transformative”?

And so we return to the title of this post.  I cannot predict what the D.C. Circuit will decide, but I think its determination will revolve around how the en banc panel answers the following question about the Clean Power Plan:  Is You Is or Is You Ain’t Transformative?  And that question prompts me to offer these final lines of doggerel in memory (and honor) of Judge Leventhal:

 

To predict the end here, it’s informative

To know if C-P-P is transformative.

To prevail in this Court,

One must prove that the sort

Of change caused by that Rule is enormative.

RGGI Is a Success Story. When Will It Be Obsolete?

Posted on September 29, 2016 by Seth Jaffe

When RGGI rggilogo2was first implemented, I heard Ian Bowles, then Secretary of Energy and Environmental Affairs in Massachusetts, say more than once that the purpose of RGGI wasn’t really to reduce greenhouse gas emissions or jump start the clean energy economy.  Instead, the goal was much more modest; it was simply to demonstrate that a trading regime could work.  The RGGI states were to serve as a model, to be the laboratory of a GHG allowance system.  The hope was certainly that RGGI would succeed its way into obsolescence.  Surely, by 2016, there would be a federal statutory basis for GHG regulation.

It’s now September 2016 and a federal statutory basis for a GHG trading system remains a seemingly distant hope (this post is definitely not about the Clean Power Plan).  We may still be waiting, but we do at least have substantial data from the laboratory that is RGGI.  In fact, yesterday, RGGI released its analysis of The Investment of RGGI Proceeds through 2014.  Some highlights:

  • Power sector GHG emissions have decreased by more than 45% since 2005, while regional GDP has increased by about 8%.
  • The total value of RGGI investments reached $1.37 billion through 2014.
  • Energy efficiency has taken up 58% of RGGI investment. The report states that the expected return is $3.62 billion in lifetime energy bill savings.
  • Clean and renewable energy make up 13% of investments, with an expected return of $836 million in lifetime energy bill savings.

One can quibble with these numbers.  They don’t really provide a reliable comparison to what would have happened in the absence of RGGI.  Nonetheless, it’s pretty clear that RGGI does work.  We can reduce GHG emissions without giving up on economic growth, and we can use the regulatory process to move our energy economy where it needs to be.

Now, if someone could just figure out a way to make RGGI obsolete, that would be true success.

A Lumber Mill Biomass CoGen Need Not Consider Other Fuels In Its BACT Analysis. Other Sources Should Be So Lucky.

Posted on September 8, 2016 by Seth Jaffe

Ever since EPA began considering how BACT analysis would be applied to greenhouse gas emissions, there has been concern that EPA would use its BACT authority to “redefine the source” – with the particular concern that BACT for a coal plant would now be to burn natural gas instead.  In Helping Hands Tools v. EPA, the 9th Circuit Court of Appeals this week gave some protection to biomass plants biomassfrom such redefinition of the source.  However, other types of facilities will get no comfort from the decision.

Helping Hands Tools involved a challenge to a PSD permit issued to Sierra Pacific for a cogeneration plant to be located at one of its existing lumber mills.  Under EPA’s BACT Guidance, Sierra Pacific stated that the purpose of the CoGen plant was to use wood waste from the mill and nearby facilities to generate electricity and heat. Relying in part on the 7th Circuit decision in Sierra Club v. EPA, which held that it would impermissibly redefine the source to require a mine-mouth coal generating plant to consider different fuels in its BACT analysis, the 9th Circuit found that EPA was reasonable in determining that, because a fundamental purpose of the CoGen plant was to burn wood waste, it would impermissibly redefine the source to require Sierra Pacific to consider solar power as part of its BACT analysis.

Importantly, the Court also rejected the plaintiffs’ request that Sierra Pacific consider greater use of natural gas.  The Court concluded that very limited use of natural gas for the purposes of startup, shutdown, and flame stabilization did not undermine the fundamental purpose to burn wood waste.  This is critical to source-located biomass facilities, because EPA’s GHG Permitting Guidance specifically says that greater use of an existing fuel should be considered in the BACT analysis:

"unless it can be demonstrated that such an option would disrupt the applicant’s basic business purpose for the proposed facility."

Unfortunately, the language of the decision appears to me to give EPA substantial leeway in future BACT analyses to redefine the source in other cases.  It seems to me that, building on the 7th Circuit decision, the Court has simply created an exception to potential source redefinition in circumstances where the location of the facility justifies a very narrow fuel selection.  If a coal plant intends to burn coal from the mine next door, ok.  If a lumber mill intends to burn its own wood waste, ok.  Otherwise, however, all bets are off.

What is particularly troubling was the Court’s acknowledgement that the GHG BACT guidance is vague, and its deference to EPA’s application of its own vague guidance. This is precisely the concern I noted when the Guidance was first issued.  Time will tell, but I foresee some fairly extreme BACT determinations being blessed by some very deferential courts.

Who Moved My Cheese?

Posted on August 31, 2016 by Michael Hardy

Spencer Johnson’s classic came to mind when I learned of new plans for the Burger power plant on the Ohio River.  The Burger plant has had a makeover from an electric generating facility to a massive chemical plant feasting on the abundant natural gas in the Marcellus and Utica regions of Western Pennsylvania and Eastern Ohio.

When I returned from active duty, my employer said, you will practice environmental law. Because I was accustomed to taking orders, I said "yes sir". That led me to cooling towers for the Davis Besse and Perry Nuclear plants on Lake Erie. More dramatically, however, it led me to years of dealing with coal-fired generation in Ohio.  Rich with coal and numerous coal-fired plants on Lake Erie and the Ohio River (and other rivers as well), I thought Ohio would supply cheap, coal-fired energy for many people for years.  Unfortunately, I did not predict the obsolescence of coal-fired electric generation or the recent emergence of natural gas as the leading source of fuel for power. I saw clients invest billions of dollars in pollution control equipment only to see the emission reduction goal posts moved beyond reach as regulators adopted progressively more stringent measures to address new national ambient air quality standards, lake breeze fumigation, long range transport, acid rain, regional haze, hazardous air pollutants, and greenhouse gas emissions.

When I started my  practice, virtually all of the Ohio base load units burned coal. And thousands of Ohio miners worked and their families prospered. Barges carried coal down the Ohio River or unit trains took coal to the Lake Erie plants.  I saw Little Egypt take big bites of coal and overburden in southeastern Ohio. I remember when an interstate (77) was closed to let the mammoth excavator proceed to the next seam of coal on the other side.

I have stood on the air pollution control deck of a massive Ohio River power plant that spans a highway. I have wiped the floor with white gloves of a coal fired plant on Lake Erie. I have worked with the dedicated professionals who took pride in maintaining those plants. So it saddens me to read that talented engineers are being laid off from engineering companies in Akron, and major utilities are selling megawatts on the Ohio River.  AEP and First Energy have announced plans to auction generating units.

Some of us remember that our success was measured in jobs retained while reaching a reasonable accommodation with the environment.  I hope my successors have that opportunity .

So with  sadness and regret – but also an appreciation that my career started in 1973, at the beginning of the burgeoning practice of environmental law, when "Coal Was King" and the Burger plant was alive and well – I hope you watch this short video of the demolition of the Burger coal-fired power plant to make way for a natural gas cracker.  Here is the demise of the Burger "tall stack." May Burger rest in peace.  

ALL SPECIES MATTER

Posted on August 25, 2016 by Stephen Herrmann

GONE. The Bramble Cay melomys is no more.  The small rodent, the only mammal endemic to the Great Barrier Reef, is the first documented extinction of a mammal species due to contemporary climate change.  So says Luke Leung, a scientist from the University of Queensland.  “The key factor responsible for the death of the Bramble Cay melomys is almost certainly high tides and surging seawater, which has traveled across the island” destroying the animal's habitat and food source, said Dr. Leung.

Australia’s most isolated mammal had not been seen since 2007.  The report confirming the extinction of the Bramble Cay melomys, however, was not released until June 2016, in order to give scientists time to verify the loss of the species.  Upon release of the report, Dr. Leung said it was the first such extinction due to contemporary climate change.  He said his team “collected data, looked at other research and left no stone unturned” before making that assertion.  Dr. Anthony Barnosky, a professor at the University of California at Berkeley and a leading expert on climate change's effect on the natural world, said the claim seems “right on target to me”.

Both Drs. Leung and Barnosky believe that the climate change responsible for the demise of the melomys is caused by humans.  Whether caused by humans, aided and abetted by humans or merely not abated by humans, the extinction of the Bramble Cay melomys is, sadly, unlikely to be the last species loss to be caused by the effects of contemporary climate change.  How many more?