The “Next” Pandemic : How States Can Avert It.

Posted on July 10, 2020 by Nicholas Robinson

The “next” pandemic in the USA is not a question of “if” but of “when.” Just as States scramble to win or shore up their victories against  COVID-19, a second front appears. Can the USA win a two-front war with microbes?

Two parallel infections now afflict separately humans and pigs. A new strain of the H1N1 swine flu virus, which killed 285,000 people when it merged in 2009, is now spreading among humans working on pig farms in China. The National Academy of Science reported this new threat in June  ( https://www.pnas.org/content/early/2020/06/23/1921186117). How can the risks to humans from this new virus, G4 EA H1N1, be contained? This human infection is emerging at the same time that  the world experiences the raging animal pandemic of African swine fever virus (AFS). AFS is forcing Asians to kill their domestic pig herds. AFS is now in 17 European nations and threatens to spread across all continents. No one knows now how to contain the AFS Pandemic among animals.

Once early surveillance detects such threats, what  precautions are essential to avert the “next” pandemic? Much is at stake. Since February 18, 2020, when ACOEL published its first Blog on COVID-19, (at http://www.acoel.org/post/2020/02/18/CORONAVIRUS-We-Thought-We-Knew-Ye!-The-Wuhan-Potential-Pandemic.aspx ), the virus SARS-CoV-2  has stolen lives and livelihoods. Its impact has vastly exceeded that of the costly HIV-1/AIDs pandemic, or the 2009 H1N1 epidemic. 

Like the plague, these diseases, along with SARS, EBOLA or West Nile virus, are the result of infections  that spill over from the wild animal kingdom, transmitting disease to  humans. This is known as zoonosis. HIV-1/AIDS came from primates in Africa, and since 1983 has killed 38 million humans, and currently sickens 36.9 million persons.  When COVID-19 first appeared, it was thought to have come via Pangolins, but now is linked to bats (Rhinolophus), which live in habitats across SE Asia and China. Earth holds perhaps 700,000 different viruses, most not yet discovered.  Of the 335 human diseases identified between 1960 and 2004, 61% are of zoonotic origin, and 72 % of all recent diseases are zoonotic.

The frequency of human infections from zoonotic diseases is increasing. Illnesses like Denge, chikungunya, or Zika have shown up in the Americas, and will be joined by others in the future. In 1999, West Nile virus, transmitted to humans by mosquitoes, made its first appearance in the Western Hemisphere in New York, after a drought followed by heavy rains. Since then, over 1,600 people have died of the disease.

Simultaneously while coping with COVID-19, it is evident that governments need to organize to avert a new zoonotic infections. Some are already here, others are coming. For example, Lyme Disease is a continuing threat. Other novel microbes can arrive quickly. Locally infected people travel, and airplanes bring the diseases to distant lands. It took months for rats to bring Bubonic Plague, the medieval “Black Death,” to Europe on sailing ships. Today a virus jumps continents in a few hours. As the economy restarts after COVID-19, governments will need new regimes of phyto-sanitary measures for trade, transportation, and tourism. 

Zoonotic diseases are on the rise for several reasons. Escalating declines in  biodiversity are the root cause. Biodiversity loss is a health risk multiplier.  As populations of species thin, many to the point of extinction, the viruses and bacteria that they host spread out looking for new hosts. Deforestation, and other unsustainable developments, disrupt habitats for many species, which in turn shed their viruses. A zoonotic disease, whether bacteria like Lyme Disease, or a novel coronavirus like SARS, then finds new animal hosts, including eventually human beings. Building new roads or suburban subdivisions fragment the landscape,  severs  migration corridors, and disrupt ecosystems, thereby exposing more humans to zoonotic microbes. Since humans interface with these disturbed natural  habitats,  their likelihood of being infected increases. 

Climate Change impacts are exacerbating biodiversity loss and augment humanity’s interface with zoonotic infections. Extreme weather events cause a cascade of other effects that influence disease. Heat and droughts create dry conditions, providing fuel for forest fires that end up fragmenting forests and driving wildlife closer to humans. Increased rainfall and humidity provide favorable conditions for mosquitoes to breed and for adult mosquitoes to survive.

If society waits for hospitals and health departments to cope with a zoonotic disease, it is too late. The most effective way to prevent or minimize zoonotic spillovers from animals to humans is to keep all animals healthy. Doing so requires greater attention to veterinary science and the health of domesticated animals and agriculture.  For environmental law, it means enhancing nature conservation programs that sustain ecosystem health, everywhere. We reduce the likelihood of zoonotic spillovers by sustaining resilient ecosystems in wetlands, in suburbs, in rural countryside, as well as in parks and wilderness. 

An inter-agency, or “whole of government” collaboration, is required. Such collaboration runs against the grain. We promote agriculture as commerce, with insufficient attention to veterinary health of farmed  animals. The pandemic of AFS has destroyed the pork industry in China and impacts food supplies worldwide. Animal health is treated apart from human health. Humans and animals exchange TB, zoonotic tuberculosis. Developed economies tend to forget that the well-being of all plants, animals and humans is intrinsically connected, and profoundly affect by human activity. The reality is that there is only “One Health.”

The World Health Organization (WHO) and Food & Agricultural Organization (FAO) endorse a “One Health” approach. The US Centers for Disease Control does too. Consensus favoring a “One Heath” approach has grown, but has been too marginal to make much of a difference. The  Wildlife Conservation Society and German government’s  2019 “Berlin Principles,”  or the 2017 UN Environment Assembly recommendations, and proposals from the EcoHealth Alliance, have all proposed  the “One Health” approach as essential to successfully manage risks of zoonosis.

To date, however, none of the “One Health” advocates  translate this policy construct  into meaningful action. At most they urge that veterinarians and public health  agencies should cooperate. In truth, cooperation between veterinarians, public health agencies, and nature conservation authorities, whether locally or globally through the International Union for the Conservation of Nature (IUCN), today does not exist. All these entities largely ignore the tools that environmental law offers to effectuate the “One Health” approach.

To avert the spillover of viruses or bacteria from wild animals, it is essential to keep natural habitats healthy.  At the outset, “One Health” should formally recognize the conservation of wild nature as its foundation. Conservation is too often discounted or deemed merely an amenity. Yet if governments at all levels fail to maintain healthy wild habitats, they invite spillovers of virus and bacteria seeking human hosts. Human incursions are increasing disrupting habitat in the forests of Africa, Southeast Asia the Amazon, or the woods of suburban North America. Disease spillovers increase in turn.

Sustaining biodiversity requires maintaining intact and functional ecosystems. These are the fundamental infrastructure for all of life, our health and our socio-economic well-being. Stemming current losses in biodiversity is the front line for protecting human health. Governments need to mainline biodiversity conservation to manage zoonotic disease risks.  

Virtually all governments neglect these tasks. Government budgets reflect an ignorance about the measures that prevent zoonotic spillovers. Budgets invariably assign to Departments of Health more than twice the resources provided for nature conservation and they allocate exponentially more when funding  military or police security.  COVID-19 reveals the folly of this imbalance.  Zoonotic diseases are non-traditional security threats, causing incalculable human and economic loss. The upshot: “Pay me now or pay me later.”

To avert the “next” pandemic, governments can deploy  a number of environmental laws to implement  a “One Health” approach. Environmental laws provide a suite of policies and best practices exists to avert the “next” pandemic. Given what COVID-19 has taught us, there is some urgency in deploying these tools. Would it not be irresponsible to fail to do so?” Will we? The war on COVID-19 has so far precluded debate about preparing to avert the “next” pandemic.  We face  the risk of “business as usual,” and choosing not to learn, as happened after the experience of SARS in 2003-2004. 

Since the “next” zoonotic spillover is underway, it is essential to actively manage the interface between humans and animals. Surveillance of emerging diseases requires collecting data constantly, as a priority. To ensure that warnings from this surveillance are  acted upon,  each level of government needs to provide a strategic, high level coordinating council or executive body to oversee these efforts. Many governments do so now (See the 2019 Trilateral Guidance by WHO, FAO, OiE, at http://www.fao.org/3/ca2942en/ca2942en.pdf).  The USA briefly had such a strategic unit, begun after the Ebola crisis by the Obama Administration. The White House Directorate for Global Heath and Security in the National Security Council addressed these non-traditional security issues.  President Trump discontinued this unit. While the President’s Council on Environmental Quality (CEQ) could be tasked with these coordinating roles, CEQ’s weakened capacity means that Congress and future Presidents will need to do even more in order to coordinate all federal agencies to protect domestic health. 

Every State government should have a gubernatorial body to prepare for and coordinate zoonotic risk management. Such bodies exist already in some cases. For example, New York State can and should activate the Governor’s Council of Environmental Advisors, as is authorized under Article 7 of the Environmental Conservation Law. A statutory body is needed to prevent a future executive from neglecting this strategic cockpit for “One Health.” Where no such authority exists, the legislature should provide for one.  

A top priority for any executive coordinating body will be to address how to manage zoonotic risks while addressing the impacts climate change. For example, New York’s Climate Leadership & Community Protection Act of June 2019 provides tools that could be used to provide “One Heath” safeguards. In §75-0109 of the Environmental Conservation Law, this Act provides for off-setting carbon emissions through extending forests and other ecosystems to enhance the photosynthesis that removes carbon dioxide from the atmosphere. The same healthy habitats serve to avert zoonosis spillover. 

The same Act amended New York State’s Community Risk And Resilience Act in ways that directly also could be deployed to protect against zoonotic diseases.  § 17-A mandates that the Department of Environmental Conservation (DEC)  address impacts on public health and species and to identify the most ”significant climate-related risks,” along with measures to mitigate those risks. § 17-B requires applicants for all permits to identify physical climate-risks and how to handle them and authorizes DEC to mandate mitigation measures. Increased disease spillovers are climate risks. 

Environmental Impact Assessment (EIA) is another readily available tool. The data from environmental assessments can be harvested to identify zoonotic risks. Although President Trump is currently seeking to limit the role of the National Environmental Policy Act, the NEPA Regulations can and should address potential environmental impacts from zoonotic risks. Half the States also have their “little NEPAs” and assess zoonotic risks. The California Environmental Quality Act (CEQA) and the New York State Environmental Quality Review Act (SEQRA) are prime examples. They require all state and local governmental agencies to make a holistic evaluation of potential environmental impacts and risks. EIA effectively enables a “One Health” approach. Beyond collecting data on ecological zoonotic risks, EIA can identify options for sustaining health of ecosystems to contain spillovers of bacteria and viruses, identify the cumulative impacts exacerbating biodiversity loss, and identify how to fragmentation of intact ecosystems and restore migration corridors for species.

State building codes also serve a role to contain the spread of viruses within buildings.  Codes can be revised to mandate “healthy buildings.” For example, ventilation and filtration systems should be retrofitted to reduce risk of airborne exposures to communicable diseases. See Joseph G. Allen and Joseph D. Macomber, Healthy Buildings: How Indoor Spaces Drive Performance and Productivity (Harvard University Press, 2020).  

Ultimately, “One Health” is all about sustaining biodiversity. The federal systems of National Parks, Wildlife Refuges and National Forests provide opportunities to enhance stewardship of natural areas. State park systems, and state wetlands laws, do the same. Zoning and land use laws at the state and local level also can provide for care of natural systems to manage zoonotic risks. Municipal land use laws can provide, for example, for migration corridors through overlay zones, or obliging property owners to control mosquito breeding, all to minimize infection risks. When ecological habitats remain undisturbed, the bacteria and viruses in wild nature tend to remain relatively stable in their natural hosts, which dilutes the chances of spillovers to humans.

Finally, the federal government and the states can establish and enhance phyto-sanitary safeguards for their agricultural sectors, and control animal products  imported into or through the states. Since 1947, the General Agreement on Tariffs and Trade (GATT) has respected the rights of countries to impose such safeguards. California has done so for many years to protect its agricultural sector. Theses phyto-sanitary norms need to be expanded robustly to address zoonotic risks. Precautions to prevent microbes entering in our airports and at State borders can be established.   

Once a “One Health” approach is made operational, many state agencies will discover how they help  avert the “next” pandemic. There are key roles for agencies regulating agriculture, produce markets, public health, environmental protection, forestry, wildlife conservation, transportation, and other State agencies are key parts of the “One Health” approach. States have substantial expertise in their universities, organizations like the Wildlife Conservation Society, as well as across their public health sectors. Each state and local agency needs to undertake continuous biodiversity-related heath surveillance in order to detect and manage emerging zoonotic disease spillovers to avert health emergencies. Each can be alert to end habitat fragmentation, and can provide buffer zones that manage disease-risk from human interfaces with animals in shared ecosystems.

Even in the middle of this COVID-19 Pandemic, governments need to be building back better, to be anticipating and preparing for the “next” pandemic. As Ben Franklin said in 1736, “An Ounce of Prevention Is Worth A Pound of Cure.” States cannot wait for Washington, D.C. They each must build their own resilience. Leadership from the States can pilot the nation toward the security of “One Health.”

A New Map of Climate Resilient Landscapes

Posted on July 1, 2020 by Philip Tabas

After 12 years of work by more than 150 Nature Conservancy scientists we now have an interactive map of resilient lands that can withstand climate impacts AND protect biodiversity. Using ground-breaking science, conservationists identified a network of special places across the U.S. that have unique topographies, geologies, soils, temperatures and other characteristics that, if properly protected, could provide safe havens for species migrating away from growing climate threats.

We know that plant and animal species are disappearing at an alarming rate as their habitats are altered or destroyed by warmer temperatures, increased flooding and other impacts from the changing climate. One-third of animal and plant species could face extinction in the next 50 years due to climate change, according to a study from scientists at the University of Arizona. We know too that nature is on the move to escape these climate impacts. For example, in North America, studies show that species are shifting their ranges an average of 11 miles north and 36 feet in elevation each decade. Many species are approaching – or have already reached – the limit of where they can go to find hospitable climates. Research has also shown that more than half – nearly 60% – of US lands and waters are fragmented by human development, blocking species movement and preventing species from finding new and more hospitable habitat. 

The Resilient and Connected Network Map (see: http://maps.tnc.org/resilientland/) for the contiguous U.S. provides a new way to prioritize lands for land conservation action. This model offers a roadmap for preserving a network of resilient sites and connecting corridors that could sustain North America's natural diversity by allowing species to adapt to and thrive in the face of climate impacts. By protecting the most resilient landscapes, conservationists hope to double their environmental impact by 2050.

By providing safe havens for diverse species, this network of lands could also protect important sources of fertile soils, clean drinking water, economic resources and other vital services people rely on for survival. Conserving such a resilient network has large benefits for both people as well as nature. For example, resilient areas identified in Eastern North America not only serve as home to more than 30,000 species of plants and animals but also support a $25 billion outdoor recreation industry.  Additionally, protecting these resilient areas would secure over 66 million acres of high-value source water supply land, provide 1.8 billion tons of oxygen annually, and mitigate over 1.3 million tons of air pollution avoiding $913 million in human health costs. Resilient lands could also capture and store higher amounts of carbon than other areas and thus help offset greenhouse gas emissions; in the Eastern US, these lands could store an estimated 3.9 billion tons of carbon.

Of the total acreage represented in the network, approximately 301 million acres are already in some form of protected status. To protect the remainder, we will have to protect as much land as we have protected in the last 100 years of previous land conservation action. Although challenging, if government agencies, land trusts, the private sector and others can be persuaded to use this new science to direct conservation action and resources to these most important lands, it can maximize the impact of conservation funding and actions. Recent Senate passage of the Great American Outdoors Act or "GAOA” which would fully and permanently fund the Land and Water Conservation Fund with $900 million annually for the first time since the program's creation in 1964, gives some hope that we will be able to meet this challenge.

By conserving these environmental strongholds, we can protect the lands best-equipped to sustain threatened species -- and mitigate the adverse effects of climate change in the process. Saving nature from the effects of climate change might seem to be a daunting task. But, by focusing on conserving naturally resilient lands, we can keep the planet habitable for a vast array of species, including our own.

Schrödinger’s Climate

Posted on May 18, 2020 by JB Ruhl

Question: Will we meet the goal of holding the rise of mean global temperature to below 2°C?

Answer: Yes and no, simultaneously.

Welcome to Schrödinger’s climate, a paradox in which commentary on climate change policy assumes we will meet the 2°C goal, for that is the motivation behind aggressive emission controls and other mitigation measures, but at the same time assumes we will not meet the 2°C goal, for that is the motivation behind aggressive measures to adapt to the impacts of climate change.

Austrian physicist Erwin Schrödinger famously described a paradox that follows from quantum physics theory, which posits that particles in a quantum system exist in multiple states at the same time, assuming a final position only when observed from the external world. In his scenario, a cat is placed in a sealed box with a quantum particle and, through a contraption that reacts to the state of the particle, will either live or die depending on the state of the particle. Under quantum theory, Schrödinger argued, the cat would be simultaneously alive and dead until the lid of the box was unsealed and lifted off, at which point the observer would see the cat as either alive or dead.

It is important for climate change mitigation policy to have a goal. Whether expressed as parts per million of atmospheric carbon dioxide or average global temperature rise, the goal is used by mitigation policy commenters to rally support for emission controls. The goals used to be 350ppm and 1.5°C. Those are history now. The Paris accord moved the upper limit to 2°C. “We will hold the rise to below 2.0°C!”

At the same time, climate change adaptation policy commenters use scenarios built around different temperature rises to motivate action. While it is not as if no adaptation will be necessary in a 1.5°C or 2.0°C scenario, things start looking really messy above 2.0°C. If we are honest, 2.0°C may be a best-case scenario, so adaptation policy needs to get rolling. “We will not hold the rise to below 2.0°C!”

The Schrödinger’s climate paradox arises from the necessity of pursuing both mitigation policy and adaptation policy at the same time. There was a time when talk of adaptation was frowned upon, lest it lead to complacency on mitigation policy. Even modest sea level rise, however, threatens island nations and developing nations with large coastal populations, pushing adaptation into the international climate policy discourse. As it became clearer and clearer that climate change will have a wide range of nasty effects in many parts of the world—developed and developing—the need for adaptation policy became increasingly apparent. The urgency of mitigation policy depends on meeting the 2°C goal. The urgency of adaptation policy becomes more salient above the 2°C goal. To engage in the broad climate policy discourse these days—to advocate action across the board—one must enter the box of Schrödinger’s climate. 

Yet this leads to awkward conversations between those focused on mitigation and those focused on adaptation. “We need to prepare for massive human migration,” says the adaptationist. “Oh my,” says the mitigationist, “But we’re going to hold it to below 2.0°C, right?”  “Uh, sure,” says the adaptationist, “But we really need to prepare for bad stuff happening.” “Um, right,” says the mitigationist, then changes the topic. Tension between mitigationists and adaptationists remains in the air inside the Schrödinger climate box.

We do not have the luxury of lifting the lid off the box to observe whether the future is above or below 2°C. We are a world in dire and present need of aggressive mitigation and adaptation policies. Adaptation cannot be portrayed as a contingent policy for mitigation failure. Acting as if adaptation policy need only prepare us for the worst if we don’t meet the 2°C goal means we won’t be prepared for the worst. We need to shape mitigation policy around the idea that we will attain 2°C, and we need to shape adaptation policy around the idea that we will not. Ironically, this means climate policy must behave as if 2°C is both alive and dead.  This conundrum should no longer be cause for uncomfortable conversations.  “Embrace the paradox of Schrödinger’s climate!”

Earth Day 50: Have We Made any Real Progress?

Posted on April 22, 2020 by Christopher Davis

April 22, 2020 marks the 50th Anniversary of Earth Day. The coronavirus pandemic has consumed the world’s attention, and thus it seems likely that Earth Day and environmental issues will unfortunately get less attention than otherwise might have occurred.

The first Earth Day in 1970 changed my life. In particular, Garrett Hardin’s essay, The Tragedy of the Commons, and a little book called The Environmental Handbook, had a powerful influence on my thinking and career path.  I decided my calling was in solving environmental problems, stopping pollution and protecting nature. Over the last 50 years, this has taken me through a brief career in environmental engineering, a rewarding 30 years in environmental law, and most recently economic advocacy to leverage private sector solutions to climate change.

So where are we now, as we celebrate the 50th anniversary of Earth Day? There has certainly been progress in building environmental consciousness, institutionalizing environmental protection, developing environmental laws, building a global cadre of environmental professionals, reducing at least the most obvious forms of air and water pollution and cleaning up hazardous waste sites. In most places, at least in the developed world, the air and water are cleaner.

Yet on a macro scale, many indicators of environmental quality have declined significantly since 1970. Global greenhouse gas emissions continue to rise, the physical impacts of climate change are accelerating, and we are making little progress in implementing the Paris Agreement’s goal of limiting average global warming to well under 2 degrees Celsius. Deforestation continues to shrink the world’s tropical forests, biodiversity is being lost, species extinction is accelerating, wetlands are disappearing, and our oceans are becoming degraded. Groundwater and surface water resources are being depleted and nonpoint sources threaten water quality. Toxic pollutants are ubiquitous. By most accounts, the world’s ecosystems are in worse shape than they were in 1970. Our expanding human population has exceeded the carrying capacity of the world’s natural systems on which we all depend.

So, while we have won many battles in environmental protection and the implementation of environmental laws, we are losing the war. The imperatives of economic growth and resource consumption have overwhelmed the forces of environmental protection and conservation. Our generation has been responsible for many great technological and social advances. Yet as we mark the 50th Earth Day, our environmental legacy is troubling.

Perhaps the lessons of the coronavirus crisis—and the need for prevention, global collaboration, and commitment of resources necessary to anticipate and combat such crises-- will enable the kind of concerted action needed to successfully confront the systemic risks of climate change and global ecological degradation. We have the tools and knowledge to solve these problems; we lack only the moral imperative and collective political will to do so--and the sense of urgency that inspired me and so many others on that first Earth Day.

Nothing But Blue Skies?

Posted on March 31, 2020 by Robert Uram

As a result of the measures put in place to flatten the curve for the coronavirus pandemic, California is experiencing an unprecedented improvement in air quality. The combination of work from home, layoffs and reduced automobile travel by people sheltering in place has reduced vehicle miles traveled by as much as 70 percent.  Nearly everyone in California is now experiencing good air quality. Nearly everyone in California will wake up to bluer skies and cleaner air so long as the pandemic restrictions remain in place.

Californians have not seen this high level of air quality since before World War II. Even this brief improvement in air quality will help those who suffer from asthma, bronchitis, lung irritation and heart disease. As an added benefit, congestion has been reduced and there will likely be a significant decline in deaths and injuries from accidents. The reduced emissions are also a down payment on emission reductions desperately needed to address climate change.

In medicine, randomized studies are the gold standard for determining the efficacy of a new drug or device. In the air pollution arena, the California Air Resources Board can’t do randomized studies. It can’t order people not to drive so the Board can measure the effects of reduced vehicles miles traveled or substituting electric vehicles for fossil fuel vehicles. Instead, it does computer modeling to estimate these effects. But computer models are meaningless to most people. They can’t read a computer model and see how their lives will be better if they have bluer skies and healthier air. It’s too abstract. The crisis is not only giving the Board valuable information on the actual effects of less vehicle pollution, it is giving millions of people first hand experience of seeing and understanding how much better of their lives will be with less pollution clouding their sky.

What to do? How do we assure that Californians will see blue skies sooner rather than later once the crisis has abated? How do we assure that Californians will step up in the battle against climate change? And, how do we assure California will leap ahead and create jobs to ameliorate the devastating economic effects of the coronavirus pandemic.

California has roughly 24 million cars. California’s current goal is to have 1.5 million electric vehicles on the road by 2025. My hope is that the millions of Californians who are now experiencing better air quality will push the state to far exceed the current goal. California should place a moratorium on new fossil fuel powered vehicles as soon as possible and provide the regulatory climate and financial support conditions to build millions of electric vehicles here in California without delay. We all should enjoy blue skies and a better economy as soon as possible.

Think Globally, Act Locally?

Posted on March 10, 2020 by Mark W. Schneider

In Washington State, some legislators and regulators have been acting locally.  But are they thinking globally?

Our two-term governor sought for years, unsuccessfully, to persuade our legislature to authorize a statewide program to reduce carbon emissions.  After several unsuccessful attempts, his Department of Ecology passed the Clean Air Rule (Chapter 173-442 WAC), which attempted to accomplish by regulation what he couldn’t accomplish by legislation.  The Clean Air Rule imposed requirements on direct and indirect emitters, with the goal of reducing carbon emissions in the state.  Predictably, it was challenged.  The trial court invalidated the Clean Air Rule in its entirety, and the Washington Supreme Court, by a 5-4 vote, ruled in January that the Washington Clean Air Act (Chapter 70.94 RCW) authorized Ecology to regulate direct emitters, but not indirect emitters. Ass’n of Washington Business et al. v. Washington State Dep’t of Ecology, 455 P.3d 1126 (Wash. 2020).  Our legislature, with a different makeup of senators and representatives than in the past, is now considering several bills expressly authorizing Ecology to regulate indirect emitters.  And in next year’s legislative session, the Governor, who is likely to be elected for a third term, may ask the legislature to pass a comprehensive cap and invest bill to govern emissions from Washington State sources.

Is this thinking globally?  Does imposing carbon emission limits in Washington State lower or raise global emissions?  Many observers, including Energy Intensive Trade Exposed entities (“EITEs”), have demonstrated that the state-only limits on carbon will lead to “leakage” - a reduction in emissions of greenhouse gases within the state that is exceeded by an increase in emissions of greenhouse gas emissions outside the state.  Some of the EITEs engage in operations with far less “carbon intensity” (tons of carbon emitted per unit of product produced) than their competitors in other states and countries.  With carbon emission limits, and resulting costs, imposed only on entities operating in Washington State, the EITEs may lose business to out-of-state competitors, many of which emit more carbon per unit of product.  More carbon pollution.  That’s local action that, along with other things, may contribute to global harm.            

Or will this local action lead to global benefits?  In the face of federal government inactivity on carbon, some states have already taken action on a statewide level.  Will Washington State legislative or regulatory action induce more states to follow suit, and will that result in lower emissions of carbon in the country?  And, if that happens, will other countries take action to lower global emissions? Or will it incentivize US companies to operate elsewhere in countries with less stringent emissions?

As this state/national/global tension continues to build, we need to think globally and act locally in a way that will result in reductions of global carbon emissions. In Washington State, one thoughtful step would be to regulate EITEs in a way that allows them to grow but doesn’t contribute to leakage.  That could include measuring compliance for them based on output of emissions per unit of production, rather than mass of emissions. It could also mean recognizing past beneficial conduct and crediting EITEs for prior efficiency improvements that reduced the carbon intensity of their operations.  And it could mean providing a variety of compliance pathways for EITEs, rather than simply requiring an inflexible linear reduction in emissions.

That’s one step.  We need many others.

Get Off of My Cloud – Online Storage is Not as Environmentally Sustainable as I Thought

Posted on February 5, 2020 by Jonathan Ettinger

I read an article last week in Fortune magazine (free registration required) about the large amount of energy actually consumed by cloud storage and thought that must only apply if you are actively uploading, changing, or downloading documents and pictures.  But I was wrong.  With a little digging, I was able to determine that all of those family photos and videos of your cats (not to mention huge folders of environmental analyses) automatically uploaded to iCloud, Google Drive, Box.com, DropBox, and Amazon actually consume lots of electricity even when they are just sitting idle.  Apparently the servers, which are energy hogs because they require lots of cooling, are actively managed on a regular basis to prevent loss or degradation of data, regardless of whether we are accessing the information or not.

According to one source, uploading data and storing it in the cloud consumes 3-7 kWh per gigabyte, roughly a million times more than storing it on your hard drive.  So storing 100 gigabytes of data in the cloud for one year (maybe a few thousand photos or a few hours of video) would result in the emission of roughly 0.2 tons of CO2

I am not suggesting we all stop using the cloud for storage.  After all, it is convenient, largely safe, and probably more environmentally sustainable than paper file storage.  It’s just that it isn’t carbon neutral.  Everything has trade-offs.  For me, I will keep uploading videos of my dogs playing (turn on the sound) – primarily because I am not sure how to stop it – and sending links to classic rock songs.

Children’s Climate Case Coming to a Close

Posted on January 23, 2020 by Rick Glick

In an extraordinary opinion issued January 17, the Ninth Circuit U.S. Court of Appeals concluded that the redress sought by the Juliana v. United States plaintiffs is beyond the power of federal courts.  It is not the conclusion that is extraordinary, which was widely expected, but rather the court’s extended expression of dismay in having to reach it. 

Plaintiffs in this case are a group of young people alleging that through policies promoting or acquiescing to fossil fuels use, the federal government has violated their constitutional rights to a “climate system capable of sustaining human life.”  The court never reaches the merits of the case.

The basis for the court’s conclusion is that the plaintiffs lack standing, meaning the right to prosecute their case in federal courts.  There is a three-part test for standing.  First, the plaintiffs must show “concrete and particularized injury.”  Second, plaintiffs must show that their injury is caused by defendant.  Third, the plaintiffs must demonstrate that the alleged injury can be redressed by court order.  The court found that plaintiffs satisfied the first two prongs, but not the third.

The court noted that the “plaintiffs have compiled an extensive record” that the government “affirmatively promotes fossil fuel use in a host of ways,” from tax credits to extraction leases on public lands.  These policies “will wreak havoc on the Earth’s climate if unchecked.”  The court had no trouble finding particularized injury to specific plaintiffs and that there is a genuine issue as to whether these government policies are a “substantial factor” in plaintiffs’ injuries.  The harder question is what a court could or should do to remedy the problem.

The court found that the scope of the desired remedy—an injunction to end pro-fossil fuel policies and to direct the government to prepare a plan to reduce emissions—is better left to the political branches to resolve.  The court recognized the harm from government policies, which the government does not refute.  However, such an order is problematic because:

  • Plaintiffs own experts acknowledge that the injunction would not “suffice to stop catastrophic climate change or even ameliorate their injuries. . . . Rather, these experts opine that such a result calls for no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world.”
  • “As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”
  • “Although the plaintiffs’ invitation to get the ball rolling by simply ordering the promulgation of a plan is beguiling, it ignores that an Article III court will thereafter be required to determine whether the plan is sufficient to remediate the claimed constitutional violation of the plaintiffs’ right to a ‘climate system capable of sustaining human life.’ We doubt that any such plan can be supervised or enforced by an Article III court. And, in the end, any plan is only as good as the court’s power to enforce it.”

The plaintiffs have indicated the case is not over, that they will seek reconsideration of the three-judge panel’s decision before the entire Ninth Circuit en banc, and possibly the Supreme Court.  Reconsideration rarely overturns decisions and bringing the case to the Supreme Court is risky.  If the Court accepts the case, the result may be an even more adverse standing ruling for such cases.  There are cases pending in which the relief sought is not so broad as in Juliana, cases in which states are asking for money damages for harm caused by government fossil fuel policies.  The Ninth Circuit’s denial of standing based on redressability may not be as limiting in those cases, as courts are accustomed to cases seeking damages.

Even if the Juliana case ends here, it will have served an important public service.  The plaintiffs’ tenacity—and the extraordinary advocacy by their attorney Julia A. Olson—have shone a spotlight on the abject failure of the government to address climate change.  The court expressed its sympathy to that effort and its regret at the limited ability of the judiciary to correct the government’s failure:

The plaintiffs have made a compelling case that action is needed; it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions. We do not dispute that the broad judicial relief the plaintiffs seek could well goad the political branches into action. We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box. That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.

It was always unlikely that U.S. courts would feel empowered to issue orders to address so complex and global a problem.  The Trump Administration’s open hostility to aggressive action to restrain fossil fuels use—reaffirmed by the President at the Davos conference just this week—coupled with congressional inaction, suggests leaving the matter to the legislative and executive branches is a slim reed indeed.  But as the court concludes, Juliana and other climate cases make it harder for politicians to ignore the catastrophic consequences and get reelected.  The question is, how much more time do we have to take meaningful action?

Being On the Eve of Destruction Does Not Provide a Basis for Judicial Relief

Posted on January 23, 2020 by Seth Jaffe

Last week, the 9th Circuit Court of Appeals ruled that the plaintiffs in Juliana v. United States do not have standing.  Given where we are, this is about as momentous a decision as I can imagine.  I get the majority opinion.  Under traditional standing doctrine, it may even be right, though I think it’s a close call.

However, this is not a time for timidly falling back on the easy jurisprudential path.  Extraordinary times demand something extraordinary, from our judges as well as our elected leaders.  If our government is even around in a hundred years, I think that this decision will likely be seen as of a piece with Dred ScottPlessy v. Ferguson, and Korematsu

The cruel irony underlying the opinion is that it is the very scope of the climate problem and the comprehensive government response that it demands that is the basis of the court’s decision that courts are not in a position to oversee the response.  Is this the first case ever brought before our nation’s courts in which the court ruled that it could not grant relief, precisely because relief is so necessary?

I’ll note one other issue.  The majority opinion was clearly sympathetic to the plaintiffs, but ultimately concluded that:

the plaintiffs’ case must be made to the political branches or to the electorate at large.

What if, however, our legislative and executive branches are literally incapable of addressing climate change?  That’s pretty much the view of my intellectual hero, Daniel Kahneman.  If we are truly on the eve of destruction and Congress can’t do anything about it, must the courts remain powerless to step in?  And so I’ll leave you with the conclusion of the dissent:

Were we addressing a matter of social injustice, one might sincerely lament any delay, but take solace that “the arc of the moral universe is long, but it bends towards justice.” The denial of an individual, constitutional right—though grievous and harmful—can be corrected in the future, even if it takes 91 years. And that possibility provides hope for future generations.

Where is the hope in today’s decision? Plaintiffs’ claims are based on science, specifically, an impending point of no return. If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly. When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?

COURT-ORDERED REDUCTIONS OF GREENHOUSE GASES? THE URGENDA AND JULIANA DECISIONS

Posted on January 22, 2020 by John C. Dernbach

Two major climate change cases were decided in the last month—State of the Netherlands v. Urgenda (Dec. 20, 2019) and Juliana v. United States (Jan. 17, 2020).  They illustrate sharply contrasting views about the role of courts in forcing reductions in greenhouse gas emissions.

The Urgenda decision, issued by the Supreme Court of the Netherlands, upheld lower court decisions in 2015 and 2018 requiring the national government to “reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990.”  The government’s current goal of a 20% reduction by 2020, the Court held, violates Articles 2 and 8 of the European Convention on Human Rights (ECHR), a human rights treaty to which 47 nations are parties, including the Netherlands.  As our colleague Michael Gerrard has pointed out, this is the first judicial decision anywhere in the world to explicitly require a government to reduce its greenhouse gas emissions.  

Article 2 of the EHCR ‘protects the right to life,” and means that a nation has a “positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction.”  Article 8 “protects the right to respect for private and family life,” which includes a nation’s “positive obligation to take reasonable and appropriate measures to protect individuals against serious damage to their environment.”  Finally, and significantly, Article 13 “provides that if the rights and freedoms under the ECHR are violated, there exists the right to an effective remedy before a national authority.” 

Climate change science, the Court said, compels the conclusion that there is a “genuine threat of dangerous climate change,” and that the “lives and welfare of Dutch residents could be seriously jeopardized.”  In addition, “there is a high degree of international consensus” on the need to achieve at least a 25% reduction of greenhouse gas emissions by 2020 to prevent dangerous climate change.  The government violated its duties under the ECHR with a less ambitious short-term goal, the court held.  (The 2019 Dutch Climate Act sets a 49% reduction goal for 2030 and a 95% reduction goal for 2050, and there was no dispute about long-term goals.) 

The Supreme Court rejected the government’s argument that “it is not for the courts” to make political decisions “on the reduction of greenhouse gas emissions.”  ”The protection of human rights…is an essential component of a democratic state under the rule of law,” the Court said.  “This case involves an exceptional situation. After all, there is the threat of dangerous climate change.”  The government, not the courts, will decide which measures to employ to achieve the required reduction, the court explained.  

In the Juliana case, 21 young people are the principal plaintiffs in a lawsuit against the United States, claiming, among other things, a right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.”  They developed a “substantial record” establishing the severity of existing and projected climate change impacts, and showing that the government had not only failed to act but that it “affirmatively promotes fossil fuel use in a host of ways.”  They sought declaratory and injunctive relief requiring the “government to implement a plan to ‘phase down fossil fuel emissions and draw down excess atmospheric [carbon dioxide].’”

The U.S. Court of Appeals for the Ninth Circuit, by a 2-1 vote, “reluctantly” held that youth plaintiffs did not have standing.  All three judges agreed that climate change caused by human activity presents grave, even existential, risks.  For the majority, Judge Andrew Hurwitz wrote that the plaintiffs met the first two requirements for standing—some had suffered concrete and particularized injuries, and their injuries were “fairly traceable to” carbon emissions.  But even assuming that there is a constitutional right to a “climate system capable of sustaining human life,” the court said, they do not meet the third requirement because “it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan.”

The plaintiffs had argued that the legislative and executive branches of government can figure out which particular measures to employ to “phase down fossil fuel emissions and draw down excess atmospheric [carbon dioxide].”  But even then, the court said, a court would have to decide whether the government’s response is sufficient.  There is no “limited and precise” standard, the majority wrote, by which a court could determine the adequacy of the government’s response.

Judge Josephine Staton’s lengthy dissenting opinion states that the plaintiffs are seeking to “enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction.”  The discernible standard, she wrote, is “the amount of fossil-fuel emissions that will irreparably devastate our nation.”  This is a scientific question, she said, not a political one.  

Julia Olson, co-counsel for plaintiffs in the case, issued a statement saying the next step would be a petition for en banc review in the Ninth Circuit. 

As both cases indicate, there is no universal answer on the authority of courts to order reduction of greenhouse gas emissions, and this issue is not going away.

MAKING MIRACLES HAPPEN

Posted on January 21, 2020 by Charles F. Becker

I’ve known Drew Tierney since I was 10. I’d call him a friend, but he’d find a way to argue about it.  You know the type, they live to disagree – you desperately want to prove them wrong, but it never happens.

DT (as his friends call him) and I met for lunch last week. He was in fine form and clearly ready for a fight.  We ordered a beer and food and started watching a game.

DT: “So, it’s a good thing we finally got that Soleimani dude, right?”

DT is one of those people that put “right” at the end of every sentence so that you have to agree or become bait. I wasn’t in the mood.

Me: “I suppose, but we’ll just have to see where it goes.”

That seemed to satisfy him as he took a bite out of his chicken sandwich, then said:

“Does it really count as an impeachment if nothing is sent over to the Senate? That wouldn’t be fair, right?”

I chomped down hard on a piece of celery causing a neighboring table to stop talking for a moment. But I bit my tongue at the same time.

Me: “I’ll leave that one to the scholars.”

I could see DT process my comment and he apparently decided that yet another impeachment debate wasn’t worth the effort. He took another bite and said:

“It’s a real shame that the Dems can’t get their act together on that climate change thingy.”

He kind of spit out the word “thingy.” He knew that would do it  . . . and it did.

Me: “Climate change thingy? Are you kidding me? Climate change is a disaster, and everyone knows it!”

DT: “Really? Everyone?”

Finally!  One I could win.  I knew this stuff.

Me: “Do you know that 69% of all Americans believe that we need to take aggressive action to fight climate change?  And that includes 56% of Republicans and 71% of independents.  That’s pretty impressive.”

DT: “Yeah, but 43% say they wouldn’t pay a dime to deal with climate change.  And only 28% overall would be willing to pay even an extra $10 a month to help.  That’s $120 a year!  That means about two-thirds of your support will talk the talk but won’t walk the walk.

Me: “Well, OK, but from 2014 to 2019, the people who saw climate change as an actual crisis went from 23% to 38%. That means more than one-third of the country see it as critical.”

DT: “But for Republicans, it started out at 12% and stayed at 12%. Not what I’d call a burning issue, is it? In fact, the polls of all the voters in 2012, 2016, and 2019 show that of the top issues for voters, climate change has always ranked right near the bottom.”

Me: “That’s because Republicans skew the results!”

I had him. 

Surprisingly, DT seemed unpersuaded.

DT: “I don’t think that word means what you think it means. I think you mean to say Republicans participated in the results. There are as many Republicans as Democrats. The problem is you keep forgetting that. “

Me: “I can’t help it if 88% of them can’t read.”

DT:  “Let me suggest that telling Republicans they’re illiterate doesn’t seem to be a particularly persuasive argument, right?”

This wasn’t going exactly as I planned.

DT: “Whether you like it or not, the difference in the parties’ view on climate change has the biggest gap of any of the priority issues -- there’s a 46% difference between the parties in how important climate change is to the country. Heck, Trump shut down the government over a border wall and the difference between the parties on immigration is a measly 28%.  You’re not going to close the gap by pounding your fist and saying ‘you just don’t get it’ to the people whose vote you need.”

Me: “But DT, it doesn’t matter what the difference is . . . what about our children?”

DT stopped eating, looked at me, and sighed.

DT: “Well, there it is. The ‘you’re-killing-our-children’ argument. The last bastion of the self-righteous. But you know what, I’ll give you that argument. You’re right, we might be killing our children, but all you’ve succeeded in doing is to make both parties dig in deeper. The problem is you believe that climate change is a moral issue.  Maybe it was at one time, but not anymore. You know that whatever the solution is going to be, it will have to be instigated by the federal government. You keep telling me it’s going to cost billions of dollars and will go on for decades.  It seems to me that makes it, by definition, a problem for Congress.  Like it or not, you’ve made it political, right?  And once you make it a political problem, in this day, good luck.”

That really was a show stopper.  DT was right about it being a money issue.  And at this scale, it was going to have to be done by Congress, so clearly it was political. In years past, maybe some sort of middle ground was possible, but not today – or tomorrow.   So does DT win again?

But then I saw it.  I realized DT wasn’t really a bad person, he was just a good arguer.  And he was a good arguer because he always forced you to argue in his ballpark.  The real problem was we were just in the wrong stadium.

Me: “OK DT, you’re right.  The costs are really big.  I doubt that we’ll ever agree on a solution, so it’s not worth arguing about.”

DT was puzzled for a moment, but he seemed satisfied.  We ordered another beer and continued to watch the game.

Me: “By the way, how’s your daughter doing at Southeastern?”

DT: “Don’t get me started.  The cost of that place is killing me.”

Me: “I hear ya.  I’ve got the same problem.  I’m just happy the investments are working out.”

Next to politics, DT’s favorite topic is money and he’s nothing if not a creature of habit – thankfully.

DT: “Really?  What’s working for you?”

Me: “I put a lot into Sunkist Dynamics a few years ago. They’ve been going nuts!”

DT: “What do they do?”

Me: “Solar panels, and they’re American made.  It’s sort of like buying Exxon at $5 a share.”

DT: “So, there’s really money there?”

Me: “Ohhh, yeah.”  And I added an eye roll that implied that you were an idiot if you weren’t already on this gravy train.  DT looked around, leaned over and sort of whispered to me:

“You think I can I get in?”

Me: “Oh, no.  Sorry DT, it was a private placement deal.”  I took a sip of beer and let that sink in for a moment.  “But I do know about a group of investors that are going to fund a wind farm.  The possibilities are huge.  Think about it – you make money whenever the wind blows.”

I saw DT stop for a moment and sort of gaze into the distance.  He was calculating how much money he might make when the primary input was free. 

DT: “That sounds like a pretty good buy . . . right?”

Me: “Well, it’s up to you.  Just don’t tell a lot of people – I want to keep this between us.”

DT: “Not a problem – I get it – too many cooks kind of thing.”  He ran his two fingers across his lips and added: “Zipped tight.” 

Then a minor miracle happened:

DT: “By the way, lunch is on me today.”

I ordered dessert.

It’s Not Going to Be Easy to Be Green

Posted on January 8, 2020 by Seth Jaffe

The New York Citizens Budget Commission has released a report regarding the state’s ability to meet its ambitious GHG reduction targets.  It’s sobering reading.  The CBC states that it is “uncertain” whether New York can meet those goals.  It identifies four reasons:

Immense scaling up of renewable generation capacity is necessary and is likely infeasible by 2030.

The focus on building renewable resources, particularly offshore wind, and entering into long-term power contracts limits flexibility and diminishes consideration of other cost-effective approaches.

State policies on nuclear, natural gas, and hydropower are counterproductive.

The focus on other sectors—particularly transportation—is insufficient.

I understand that some people think that natural gas’s time has passed.  I understand that some people don’t like nuclear power.  I understand that some people don’t like hydropower.

However, I also understand, as the report points out, that some people also don’t like the transmission lines necessary to bring large-scale wind to consumers.  And, indeed, some people don’t even like wind power.  At the same time, people do like their iPhones and their cars, and fresh fruit from foreign places.  In short, even if you don’t like some of the conclusions of this report, it’s a valuable reminder of just how difficult this is going to be.

It’s not easy being green.

Jersey Girl ‘Cause down the shore everything’s all right, You and your baby on a Saturday night….

Posted on December 23, 2019 by Virginia C. Robbins

These lyrics from the Jersey Girl tune on Bruce Springsteen’s 1984 single echo the summers of his youth spent at the New Jersey shore.  I was reminded of Springsteen while reading the book “The Geography of Risk, Epic Storms, Rising Seas, and the Cost of America’s Coasts” written by the Pulitzer Prize-winning journalist, Gilbert M. Gaul, that was published earlier this year.  Gaul’s book makes clear that today everything is definitely not all right at the shore.

Gaul’s well-researched and engaging book presents, among others, the cautionary tale of development and post-storm restoration on Long Beach Island, a barrier island located midway along the 141-mile-long New Jersey coast. Gaul introduces us to an industrious New Jersey character, Morris Shapiro, a Lithuanian immigrant who arrived in the U.S. in 1899. In 1926 Shapiro bought 53 acres on Long Beach Island between the ocean and the bay. Over time, Shapiro, his sons, and others built thousands of small summer homes on Long Beach Island and along the bay coast behind the barrier island. These modest homes were not built for the wealthy, but for teachers, postal employees, and auto assembly workers in a nearby Ford plant. If a storm knocked one of the tiny houses down, it would be replaced with another small cottage.

By 1962 there were 5,361 homes on Long Beach Island. The tax base from this development allowed the local communities to flourish. On March 6, 1962, a mega-storm known as the Ash Wednesday Nor’easter obliterated much of the island. One thousand homes were severely impaired and 600 were destroyed. The storm caused $2 billion in damage in today’s dollars. In the immediate aftermath of the storm, rather than giving serious consideration to whether reconstruction in such a vulnerable location would be prudent and sustainable, town leaders wanted to know how quickly the homes could be rebuilt in time for Memorial Day weekend.

At the time, New Jersey’s Governor Hughes tried to slow down the redevelopment by proposing a 6-month moratorium on new building while a plan for protecting the coast was prepared. The U.S. Army Corps of Engineers agreed with the governor and suggested a 50-foot wide buffer along the barrier island to protect its sand dunes. But the beach-town mayors and other politicians would have none of this. They were focused on the economic disaster that would occur if the shore were not up and operating by the summer season.

Gaul says his book, in part, is a meditation on the question of risk: How much should be private; how much public? He states that the cost of storm damage that was once borne by beach towns and homeowners is now largely paid for by federal taxpayers. In the 1950s, the federal government paid for 5 percent of the cost of rebuilding after hurricanes. Today it covers 70 percent, or in some cases 100 percent. Federal government subsidies created a moral hazard by encouraging development and reconstruction in fragile coastal ecosystems not only in New Jersey, but also in North and South Carolina, Florida, Louisiana, Alabama and Texas. Gaul’s narrative includes insights on the political and business leaders in these states whose economic and political interests encourage reconstruction after storm events. In contrast, Gaul speaks with Duke’s Emeritus Professor of coastal geology, Orrin Pilkey, who describes the relentless development along our shores as “madness and hubris of unbelievable proportions.”

The author describes the hurricanes that have recently devastated the U.S. coast and how U.S. taxpayers living far from the coastline pay for federal programs that grant disaster relief, issue flood insurance and pay claims, and recreate beaches. Gaul explains that by law federal flood insurance premiums are not based on an assessment of the risks associated with the location of a particular insured property, but rather on national blended averages that overstate the risk for some inland homes and understate it for coastal homes. This makes little sense given that, since 2000, the federal program has paid more than $45 billion in claims for coastal floods, and many of these for second homes, but only $5 billion for all other types of floods. The federal flood insurance program is underfunded and owes the U.S. Treasury about $24 billion.

Gaul calls the failure to slow unrestricted coastal building one of the most costly and damaging planning failures in our history with about $3 trillion worth of property now at risk. To create resiliency to protect this property, there are funding demands being made now for extraordinarily expensive infrastructure projects: $20 billion to protect New York Harbor and lower Manhattan; and $61 billion for the coast of Texas, including Galveston and the Houston Ship Channel. But can we ever build enough surge gates, barriers and levees to protect our cities and industries in coastal areas or will the water win in the end? This book suggests that we have no choice but to attempt to protect the heavily developed and valuable properties in coastal areas. At the same time, we should consider a more equitable way of charging for the resiliency projects, rather than simply passing all the costs on to taxpayers.

What impact will this book have? It should prompt serious public debate and action at the local, state and federal levels to restore natural resiliency along our coasts, but I doubt it will. The history of government funding of reconstruction in fragile coastal ecosystems over the past 60 years leads me to believe that the forces profiting from the current policy are far stronger than wrecking-ball rain and wind. To avoid economic disaster, I believe coastal communities will continue their infrastructure resiliency efforts using local, state and federal funds (raising roads, elevating homes, constructing better bridges). That might be acceptable if we devise an equitable way of allocating the costs of these projects in large measure to those who benefit most from them. But sadly, this approach ignores any land ethic, as in the words of Aldo Leopold from his A Sand County Almanac: The land-relation is still strictly economic, entailing privileges but not obligations.

There are communities that appear to be reaching a sustainability breaking point because of rising sea levels. One example is the barrier island of Ocracoke, NC, at three feet above sea level. Hit hard by Hurricane Dorian, some residents retreated after being traumatized by rising flood waters. In a November 9, 2019 article about Dorian’s impact to Ocracoke, The Washington Post reported that local and state officials are committed to rebuilding the island even though they recognize that long-term recovery does not appear sustainable. Orrin Pilkey is right – madness and hubris.

Cutting Carbon While Feeding People: The Role of Food Rescue in Slowing Climate Change

Posted on December 11, 2019 by Adam Kahn

The Natural Resources Defense Council reports that up to 40% of all food in the United States is wasted, even as 40 million Americans lack consistent access to adequate and nutritious food. Donation of useable food has palpable and obvious social benefits.  Recovering (or rescuing) edible food from restaurants, groceries and institutions that would otherwise go to waste can help “bridg[e] the gap between abundance and need.”  Reduction in food waste (through food rescue or otherwise) will also yield big reductions in carbon emissions.

From an environmental regulatory perspective, managing food that has been deemed unsalable has traditionally been considered a solid waste problem.  Four northeastern states (Connecticut, Massachusetts, Rhode Island, Vermont) and California limit the disposal of “food waste” or other organics in conventional waste streams that go to landfills or waste to energy facilities.  Getting usable food out of the waste stream, for the most part, satisfies most existing regulatory schemes, regardless of how it is done.  However, these rules do not create a clear preference or incentive for “rescuing” food so that it can be eaten by people. 

This is not to suggest that regulators are ignoring benefits of food waste reduction in setting solid waste policy.  The USDA and US EPA have presented inverse pyramids of priorities for preventing or diverting wasted food; food rescue is number two, right after prevention of food waste at the production level.   These efforts and similar efforts may be having some effect:  In my home state of Massachusetts, the current draft Solid Waste Master Plan appropriately highlights the 60% increase in rescue of fresh and perishable food between 2010 and 2018.  The non-profit ReFED has developed an impressive Food Waste Policy Finder that compiles ways in which food wastage can be reduced, and an equally impressive Roadmap to identify cost-effective regulatory, policy, and business solutions to reduce food waste.  Outside of solid waste rules, food waste can be reduced by improving “sell by” or “use by” date labeling requirements, food handling practices and regulations, usage and waste tracking information, packaging and portion sizes, consumer and business education, and donation-related tax incentives.  

Food rescue and other forms of food waste reduction can also reduce greenhouse gas emissions.  The Intergovernmental Panel on Climate Change (IPCC) has concluded that 8-10% of total anthropogenic carbon dioxide equivalent (CO2e) emissions result from food loss and waste.  In 2011, the Food and Agriculture Organization of the United Nations (FAO) similarly found that food wastage accounted for 3.6 billion tons of CO2e, or as FAO put it “if food wastage was a country, it would be the third largest emitting country in the world” (right after China and the US and right before India and Russia).  Of that figure, about 35% comes in the distribution and consumption phases of the food supply chain, which are the stages where food rescue comes into play.  Similar statistics abound in other reputable publications.

So, what role can environmental law serve to help realize the climate benefits of food rescue, apart from continued improvements in solid waste policy?

Jurisdictions that regulate carbon emissions, or have carbon emission caps or reduction targets, should consider providing tradable credits for rescue of food or other beneficial reuse.  This will be complicated, particularly in the absence of economy-wide regulation of carbon emissions.  Nonetheless, an administrable system would create a new avenue to enable would-be producers of food waste to monetize their good deeds through tradable carbon-avoidance credits.  As a first step to any of this, we should agree on a transparent and understandable standard for measuring the carbon impact from food rescue.  The Food Loss and Waste Accounting and Reporting Standard is one potential example.  Once a methodology is accepted, the carbon benefits of food waste reduction can be quantified and then rewarded. 

Even in the absence of tradable credits, requiring carbon offsets in the form of food waste reduction could form part of a jurisdiction’s larger carbon reduction plan.  For example, state and local regulatory authorities with mandates to minimize environmental impacts could require development projects (particularly those involving the food industry) to offset incremental greenhouse gas emissions through food waste reduction.  Similarly, environmental regulators that retain the ability to consider supplemental environmental projects could consider food waste reduction as part of resolution of environmental enforcement actions.

These ideas will take time and collective will to put in place.  But individual action does not need to wait: reducing food waste today will have carbon benefits today even if no one is measuring, regulating, or rewarding it. 

12 Legal Tools to Push Climate Preparedness

Posted on December 4, 2019 by Michael Gerrard

We know that, mostly as a result of climate change, extreme weather events are becoming more frequent and severe.  Reducing greenhouse gas emissions should be the highest priority, but that won’t be enough to prevent severe impacts, some of which are already occurring. Here are twelve ways the law can help society cope with these impacts.

1. Flood maps – The Federal Emergency Management Agency should update its flood maps and make them reflect anticipated future climate conditions, not just past experience.

2. Disclose flood risks – Prospective buyers of property should be given information about any flood risks faced by the property.

3. Environmental impact assessments – Environmental reviews under the National Environmental Policy Act and its state counterparts should consider the climate conditions expected at the end of a project’s useful life, not just at the start, to help ensure the project can withstand those conditions.

4. Public utility regulation – Other states should follow the lead of the New York Public Service Commission in requiring major utilities (in this case, Con Edison) to study expected future climate conditions going out decades, and prepare plans to cope with those conditions in order to maintain reliability.

5. Permit conditions – Several statutes require permit holders to have and implement plans to prepare for extreme events – e.g., Clean Air Act; Clean Water Act; Oil Pollution Act; Resource Conservation and Recovery Act. The Conservation Law Foundation is pushing these requirements in lawsuits in Massachusetts and Rhode Island.

6. Securities disclosure – As required (but not enforced) by the Securities and Exchange Commission, and as advanced by the Task Force on Climate-Related Financial Disclosures, public companies should disclose the physical risk to their facilities and operations from climate change.

7. Heat – To cope with the dangerous heat conditions to come, cities should require landlords, including of public housing, to provide air conditioning or otherwise keep apartments cool enough to not endanger health.  They should also require suitably-shaped roofs to be white, green, or topped with solar panels; and they should require large-scale tree planting.

8. Building codes – Codes should require buildings to be designed and built so as to withstand anticipated flooding, wildfires, and other risks.

9. Inspections – Flooding-vulnerable infrastructure such as levees and dams should be inspected frequently and repaired when needed.

10. Toxic sites – The remediation of contaminated sites under the Comprehensive Environmental Response, Compensation and Liability Act and other programs should reflect future flood risk.

11. Architects’ training – The states’ architects licensing boards should require architects to take continuing education courses on climate risks.

12. Managed retreat – Though politically toxic almost everyone, cities that are vulnerable to future extreme flooding should begin planning to retreat from shorelines and riverbanks that will become uninhabitable, and to relocate uses to safe areas.

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

Posted on November 7, 2019 by Susan Cooke

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

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

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

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

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

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

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

COAL

Posted on October 8, 2019 by Donald Stever

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

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

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

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

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

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

There is the Capitol floatin’ away

Congressmen wailing “it’s a mighty fine day”

Tell me, how long does it take to investigate

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

Song lyrics by John Perrault © 2013 John Perrault

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

Posted on October 2, 2019 by Kevin Poloncarz

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

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

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

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

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

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

A Green New York State of Mind

Posted on September 26, 2019 by Gail Port

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

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

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

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

Here are some of the highlights of the CLCPA benchmarks:

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

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

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

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

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

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

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

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

Posted on September 12, 2019 by JB Ruhl

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

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

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

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

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

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

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

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

Posted on August 27, 2019 by Peter Van Tuyn

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted on July 18, 2019 by Jeffrey C. Fort

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

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

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

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

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

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

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

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

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

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

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

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

Over/Under—Great Environmental Fiction/Nonfiction

Posted on July 10, 2019 by Dick Stoll

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

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

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

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

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

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

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

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

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

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

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

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

A Hard Look at the Environmental Rule of Law

Posted on June 20, 2019 by Leslie Carothers

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

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

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

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

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

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

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

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

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

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

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

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

Some Labor Principles for Climate Change Legislation

Posted on May 20, 2019 by Eugene Trisko

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

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

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

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

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

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

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

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

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

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

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

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

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

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