Lawyers, Climate Change and Coal

Posted on December 4, 2014 by Stephen L. Kass

In December 1952, John W. Davis, the senior name partner in one of the nation’s most prominent law firms and the Democratic candidate for President in 1924, appeared before the Supreme Court.  He was defending the long-established Constitutional doctrine of “separate but equal” in public education and urged “judicial restraint” in any effort to overturn the Court’s 1896 decision in Plessy v. Ferguson which had blessed that practice as a socially and legally acceptable way of reconciling the competing claims of human equality and social stability in the United States. 

In May 1954, in Brown v. Board of Education, the Supreme Court unanimously reversed Plessy, finding that segregated schools were ‘inherently unequal”.  The decision made possible a new America that, while still staggeringly unequal, is no longer premised on officially-sanctioned segregation of people by race.

Suppose John W. Davis had won his argument?  What if the legions of respected and highly competent lawyers who represented southern states, towns and school districts had succeeded in their efforts to undermine the Brown decision by dragging out the Court’s injunction to dismantle segregation “with all deliberate speed” not simply for 20 years but for 50? 

What kind of society would we be living in today if those efforts, supported by many years of precedent, deeply-held social beliefs and substantial economic interests, had succeeded?  What role could the United States play in today’s world if we still sanctioned “separate but equal” treatment of our own citizens?  How proud would those lawyers now be of their efforts to preserve a status quo that, as many of them must have known, had to fall for our nation to free itself of the legacy of slavery?

Climate change is not slavery or de jure racial segregation, though in truth it will affect the lives of hundreds of millions, perhaps billions, of people throughout the world for decades and quite likely centuries.  But the failure of the United States to address its GHG emissions since the 1992 U.N. Framework Convention on Climate Change and the prospects for continuing litigation over even the modest EPA efforts now under way to restrict coal plant emissions can be viewed as a similar refusal to recognize the need for fundamental changes. 

I believe that lawyers must at least consider whether they wish to be part of a scorched-earth litigation strategy to defer, for as long as possible, our nation’s efforts (and the efforts of other nations) to break free of reliance on coal, which has represented the single greatest source of the Earth’s increased GHG emissions since 2000.

John W. Davis surely believed he was behaving as lawyers should in defending his clients’ actions under then-prevailing law.  However, I wonder whether, in retrospect, he would have preferred to be part of the solution instead of the continuing problem that still challenges our society. 

If our nation today fails to confront climate change and the other nations of the world follow our dubious lead, how will future generations look at our profession’s role in that tragedy?  How will we look at ourselves?

DAYS OF FUTURE PASSED…OR PAST

Posted on November 17, 2014 by Jeff Thaler

November 1967: The Moody Blues release their second album, Days of Future Passed, said to be an influential work of the countercultural, psychedelic era. May 2014: Wolverine goes back in time to rally the X-Men against the Sentinels in Days of Future Past. In between: Ed Muskie and Leon Billings roamed the Earth, particularly the U.S. Senate, and modern-day environmental law was born and thrives.

2014 also is the centennial of the birth of Muskie in the old mill town of Rumford, Maine. On November 15, almost exactly 47 years after release of Future Passed, Harvard Law Professor Richard Lazarus and Leon Billings, Senator Muskie’s former chief of staff, spoke on a panel looking back and to the future of laws like the Clean Air and Water Acts that were unanimously passed by the Senate through the guidance of Muskie and Billings.

Billings spoke of how what Muskie was able to shepherd through Congress and into law involved concepts still pervasive and taken for granted today—such as private attorneys general, nondegradation, open decision-making, the public’s right to breathe healthy air and removal of the right to pollute. He described Muskie’s insistence of and ability to achieve bipartisanship, with allies for the CAA and CWA efforts including such Senators as Baker, Eagleton, Cooper, Bayh, Boggs and Dole, as well as the exhaustive efforts to fully vet and document the need for legislation. For example, for the CWA the Senate Committee held 33 days of hearings with 1721 witnesses, 470 statements and 6,400 pages of testimony, followed by 45 sub-or-full-Committee markup sessions and 39 Conference meetings. 

Billings then focused on two concepts that he said demonstrate Muskie’s ability over 40 years ago to look to the future. The first, “waters of the Unites States” grew out of the Senator’s knowledge of the 1899 Refuse Act; he successfully convinced his colleagues that the Act supported a broad view of “waters of the US” to include, for example, wetlands. Since then, the Supreme Court has gone “at least as far as we had expected, and more broadly than we could have hoped”, said Billings.

The second concept is that of climate change and the Clean Air Act. Billings was very clear: Section 111(d) was no accident, is not being misinterpreted, and Muskie intended there to be a legislative basis for then-unknown or undefined pollution problems like CO2, what Billings now calls the “epitome of the precautionary principle”.  The phrase “selected air pollution agents” almost never made it out of the House-Senate Conference in December 1970, but a compromise was struck so late at night it never made it into the Conference reports. And while no one then envisioned CO2 and climate change, Billings said that if Muskie were alive when the Supreme Court ruled in Massachusetts v EPA that CO2 is a pollutant, he would have said, “Why do you think I put that provision in there in the first place?”

Richard Lazarus then spoke of Senator Muskie’s enduring legacy in the courts as the font of legislative intent underlying many environmental laws, including frequent references to Muskie in court opinions and during oral arguments at the Supreme Court. He also demonstrated that while President Nixon did sign the bills authored by Muskie and had the label of being an environmental President, in fact he was largely using the issue for a short time as a defensive measure to cut off Muskie’s prospects as a potential 1972 Presidential candidate. Richard then showed slides of handwritten notes made by Nixon’s Chief of Staff, H.R. Haldeman of three discussions with the President: in February 1971, even when they thought environmental protection “has to be done”, at the same time they thought it “is not worth a damn”; in June “should take on environment—it’s not a sacred cow”;  and by July 1971 they wanted to put the “brakes on pollution bills…when we can without getting caught”, and to “reexamine all pollution bills in terms of current economic impact”.

Richard also discussed the current EPA rulemaking under 111, especially referencing the term “best system of emission reduction”; EPA’s June 2014 legal memorandum in support of its rulemaking proposal used Senator Muskie’s own words concerning “system” as encompassing the potential for emission reductions to occur outside the fence, and to include more than just controls. He said that for EPA, Muskie is its “Mr. Clean”.

During Q&A, both panelists discussed the partisanship of the past 10-20 years contrasted with during Muskie’s era. Billings mentioned how during Muskie’s opening presentation of the Clean Air Act on the Senate floor, the presiding officer was Senator Barry Goldwater, who sent down a note (now lost to history) saying, “Ed, that is the finest speech I think I have ever heard on the floor of the U.S. Senate.” Turning to NEPA, the concept of an” environmental impact statement” developed through a personal compromise Muskie struck with Senator Jackson.

Afterwards I asked Billings, “If Ed Muskie and you were in the Senate now, what would you be doing?” He said, “If we were the majority party, holding a lot of oversight hearings to bring in all the scientists and evidence; if the minority party, writing speeches.”

And that is how the Past (or Days Passed) in Environmental Law still have major force in today’s many controversies. Oh, by the way: The Moody Blues recently released a new box set, “Timeless Flight”, and are still touring. Long live rock and environmental laws!

Energy Generation – A Classic Love-Hate Paradox of Choice and Conflict

Posted on October 31, 2014 by Sheila Slocum Hollis

“Elmer Gantry,” a noir classic novel by Sinclair Lewis and a 1960 film, features a tortured central character with the word “love” tattooed on the knuckles of  one hand and “hate” on the knuckles of the other hand.  The vision of the hands together intertwined as symbols of the dilemma of the conflicted protagonist’s internal battles is evocative of the disconnect between our deep and undeniable thirst for energy and our disdain for the manner by which it is produced and delivered to us.

A History of Options:

Coal fired power plants are coming under heavy fire as the U.S. seeks to significantly reduce air emissions.  Global climate change, health impacts and a series of other negative effects on the ecosystem are cited as bases for accelerated retirements of these generation stations.  No doubt coal mining is a tough and dirty business; yet for two centuries it has provided the backbone of the development of electric power plants and the extraordinary benefits of electric energy.  How to reconcile this history with the current political climate?  How do we transition from coal as a major US fuel source, one that provides domestic supply and multiple benefits in employment, tax base, and economic activity? 

Likewise, hydroelectric generation is enshrined in the transformation of much of the West in the songs of Woody Guthrie, as a magnificent contribution to our development as a nation.  And, the desirability of hydroelectric generation is magnified when the only “issue on the table” is the greenhouse gas impacts of generation.  Yet, the impacts of hydroelectric development have had deleterious effects on fish, landscapes, and water supply.  And, as drought strangles much of the West, there is a struggle over whether to tear down the much admired, in fact almost “loved,” green dams of the New Deal Era.  The question at issue here is which side is good and which is evil, and the answer is “it all depends.”

Another love-hate relationship lies with the nuclear generation fleet.  From the standpoint of greenhouse gas emissions, the nuclear generation fleet is a winner.  Yet to some anti-nuclear interests, the nuclear stations (for the most part, forty years or older) are the devil incarnate, and subject to exorcism.  Yet, these facilities provide nearly 20 per cent of the electric power of the country.  So again, the desire for a clean electric supply and antipathy to the technology clash.  In this case, dealing with the aftermath of closing a nuclear generation station includes the significant and seemingly intractable problem of nuclear waste storage and disposal, leading to more profoundly difficult questions and concerns.

Another emotional “generation war” is centered on the role of natural gas fired generation.  Once again, there are epic clashes over gas.  Gas is ever more obviously abundant and relatively desirable from an environmental standpoint. However, extreme passions have been aroused by gas production-related issues like hydraulic fracturing, new pipeline capacity and fears about safety, and harmful environmental effects from natural gas drilling, production, transportation and distribution.  Despite the fact that natural gas fueled generation has filled approximately a quarter of the nation’s electric generation demand for many years, and is likely to be a major solution to the shift from coal, nuclear and some hydroelectric plants, the heated anti-fracking debate continues.  Thus, the struggle continues between “good,” (by those who see gas as a solution to the need for reliable generation) and “evil” (by those who oppose the drilling, development and delivery impacts of any form of hydrocarbon-related fuel).  Indeed, the politics, sophistication and interest of high profile opponents has elevated the bitter war of words and politics to a new level.

Finally, the role of renewables as a source of generation to replace nuclear, coal and other forms of generation would, superficially, seem to be uncontroversial.  Yet once the specifics of a project become known, opposition to the project grows.  Like politics, all projects are local.  Wind power towers, with associated land use, avian impacts, noise, reliability and transmission-related needs become the object of ire for interests that may not benefit from the projects.  Likewise, solar projects with land use, impact on wildlife water use and other hot-button issues may precipitate other battles.  The beauty of the project is in the eye of the beholder and beneficiary.

            The Paradox Ahead

Overarching all these projects are difficult issues associated with transmission capacity and cost, reliability, taxation, employment and overall local economic dependency.  And uncertainty about the need for new generation makes things worse:  why tolerate potentially disruptive technologies if efficiency increases and other factors means that new generation isn’t needed?  In light of the volatile, complicated, politically charged environment, the struggle for answers and stability will continue.  As long as our society remains conflicted, these issues will continue unabated to be “front page,” and lawyer and politician intensive.  The search for rational solutions to meet the needs of the country for reliable, safe, environmentally acceptable electric generation must continue for the nation to survive and thrive, despite the pain, cost and compromise necessary.  And like the soul of “Elmer Gantry,” we must ultimately cease to be at war with ourselves to survive.  

WHO IN 1975 WOULD HAVE THOUGHT WE WOULD HAVE AN OIL GLUT TODAY?

Posted on October 20, 2014 by Michael Hardy

In the mid-1970’s, the nation faced long gas lines,  the rationing of heating oil supplies, 55 miles per hour speed limits on the highway, the curtailment of holiday lighting, and the uncertainty of sufficient supplies of petrochemical feed stocks for industry.  Pundits routinely predicted dire forecasts of shivering residences, financial dislocations, and geo-political struggles between the United States and the OPEC suppliers.  Against this backdrop Congress banned most crude oil exports under the Energy Policy and Conservation Act of 1975.

With the emergence of unconventional drilling techniques, colloquially described by the shorthand term ”fracking”,  the nation recently began to see growing  supplies of natural gas and oil.  Last year’s Annual Meeting of the American College of Environmental Laws featured a timely panel discussion on the environmental and economic issues associated with (1) the conversion of underutilized LNG import  terminals into LNG export terminals, (2) the development of massive port terminals in Washington, Oregon, and Louisiana for coal exports to Asia, (3) the increased emission of the potent GHG methane from the higher level of drilling activity, (4) the downstream effects on rural communities that have become the homes of these “shale plays,” (5) the construction of massive mid-stream facilities and transmission lines ( like the Keystone XL pipeline in areas thought to be sensitive because of their habitat for endangered species and their location near valuable water supplies), and (6) the safety risks of the increased use of rail transport for crude oil.  An executive with one of the major oil companies reports that oil production in the United States has jumped 50% since early 2011.  The Energy Information Administration recently stated that United States oil production is expected to reach its highest level since 1970; this increase is occurring at a time when domestic oil consumption is declining.

Major oil companies, the U.S. Chamber of Commerce, the American Petroleum Institute and others have called for an end to the 40-year old ban on oil exports.  Those calls have coincided with increased congressional interest from both House and Senate members in lifting the ban.

With the “sea change” in the domestic oil production picture, the administration of President Obama has begun to look at possible repeal of the 40 year- old - ban on crude oil exports.  Energy Secretary Ernest Moniz recently addressed the Council on Foreign Relations on the current efforts to assess the “very different” oil market when the ban went into effect.  A link to his 50 minute presentation on You Tube is found below.  (The Secretary’s presentation touches on a wide range of topics, but his discussion of crude oil exports begins approximately 20 minutes into the address).  Secretary Moniz did not give a time frame for a decision, noting that the nation remains a significant importer at this time.  He said the final decision may turn on the market impacts.  As of the date this blog piece is written, the price for oil has reached a very low point, in part due to the glut of new domestic supplies, to a level that calls into question the economics of new well completions with unconventional drilling techniques.  The 50 minute speech also touches on other subjects, including the progress made in reducing methane emissions from leaking infrastructure, greater water recycling,  more effective well completion requirements, as well as the improvements in the solar energy as a way to meet the nation’s goal of a low-carbon economy, and the plans for the U.S. to announce its climate change pledge in the first quarter of 2015. 

Video: Energy Secretary Ernest Moniz on U.S. Energy Policy 

The Investors' Climate March: Divestment & Reinvestment

Posted on September 25, 2014 by David B. Farer

Momentum continues to build as investors and fund managers develop and  implement policies and investment guidelines favoring sustainability and clean energy, and disfavoring -- and in certain cases shedding --  investments in companies that are major producers of carbon emissions and greenhouse gases.

While legislators and regulators continue to grapple with the means to establish and enforce mandates to fight climate change, sectors of the investment community are weighing in by redeploying capital.

Two recent developments illustrate different approaches to investor action on climate change.

In the first, Yale University’s Chief Investment Officer, David Swensen, reportedly issued a letter to Yale’s outside investment managers requesting that they take into account climate change impacts and greenhouse gas emissions in evaluating investment options.  Yale’s Investment Office is reputed to oversee the second largest endowment in the U.S., valued last year at close to $21 billion.

The Rockefeller Brothers Fund (RBF), a philanthropy valued at $860 million this year,  announced that it is working to divest itself from fossil fuel investments.  RBF, which in 2010  had already committed ten percent of the endowment to investments consistent with the goals of its Sustainable Development program, will focus initially on coal and tar sand investments, with the goal of reducing those exposures to less than one percent of the portfolio by the end of the year, while analyzing exposure to remaining fossil fuel investments in order to implement  a strategy for additional divestments in the coming years. 

The Yale approach stops short of requiring divestment from existing portfolio holdings, and, as reported by the Yale Daily News,  Mr. Swensen’s letter came after the Yale Corporation Committee on Investor Responsibility voted against divesting the endowment’s holdings in fossil fuel companies.  Still, the Yale paper quoted the letter as stating:  “Yale asks its [investment managers] to avoid companies that refuse to acknowledge the social and financial costs of climate change and that fail to take economically sensible steps to reduce greenhouse gas emissions.”

The RBF announcement follows the growing number of individuals and  institutions that have determined to sell off their fossil fuel holdings in the last few years.  The announcement came a day after more than 300,000 participants gathered in New York City for The Peoples’ Climate March, and a day before commencement of the U.N. climate change summit in New York. 

The New York Times cites a report from Arabella Advisors that investors ranging from wealthy individual  to pension funds, and from philanthropic and religious organizations to local governments, have committed to divesting over $50 billion in fossil fuel investments and to turning to investments in cleaner energy.

Socially responsible investment strategies are nothing novel; funds dedicated to such benchmarks have been around for years.  But as the Times article pointed out, it is notable that the latest reported entrant in the fossil fuel divestment trend is a fund established by a family whose wealth was substantially derived from the oil industry. 

Or You’ll Sink Like a Stone—Changing Times Call For Revival of the Public Trust Doctrine

Posted on August 4, 2014 by Jeff Thaler

For those who may be interested in the interplay of renewable energy, climate change and the public trust doctrine, I have a new article out in the Ocean and Coastal Law Journal on how federal and state public trust doctrines can be more central in the work and advocacy of environmental lawyers. The article (co-written with one of my students, Patrick Lyons), “THE SEAS ARE CHANGING:  IT’S TIME TO USE OCEAN-BASED RENEWABLE ENERGY, THE PUBLIC TRUST DOCTRINE, AND A GREEN THUMB TO PROTECT SEAS FROM OUR CHANGING CLIMATE”, demonstrates how the public trust doctrine (PTD) can play a role in protecting ocean and coastal resources from climate change.  

More specifically, the Article proposes that both federal and state PTDs can help protect traditional trust values of commerce, navigation and fishing—in addition to modern trust values of protecting tidal wetlands, estuaries, and wildlife—through establishing ocean-based renewable energy (ORE) as a public trust value.  In addition to elevating ORE to equal footing with traditional trust values, we call for placing a “green thumb” on the scales of balancing competing trust values to explicitly guide courts and agencies alike to operate under a rebuttable presumption favoring ORE over other PTD values because of its ability to help reduce carbon and other greenhouse gas (GHG) emissions. This way, ocean based renewable energy would benefit public trust resources that are now being damaged by use of non-renewable energy sources—for example,  the National Research Council (NRC), using 2005 dollars,  that U.S. fossil fuel energy production caused $120 billion in damage, primarily through damages to human health from air pollution, and another $120 billion in damages from climate change, such as harm to ecosystems and infrastructure, insurance costs, negative effects of air pollutants, and national security risks.

The article first provides a brief overview of the history of the PTD in the United States, including its adoption from English common law and its evolution to its present status among the various states, and an introduction to the current legal framework governing federal ocean resources and sets up the argument for recognizing a federal PTD.   It then focuses on climate change, how it is currently impacting the earth’s ecosystems, and the potential detrimental effects to our planet if carbon emissions are left unabated.  We further document how climate change is affecting public trust resources and highlights the degradation and alteration these resources have already experienced, calling on all levels of government to fulfill their fiduciary obligation to protect ocean and coastal resources from the impacts of climate change.  

With that as the foundation, we move to a discussion of offshore wind, tidal and wave energy, and the variety of public trust-like language found throughout the federal legislation that has authority over the permitting and compliance of ORE projects.  We then bring PTD, climate change, and ORE together, in order to establish the basis for a federal PTD and legitimize its inception through common law, legislation, and executive order.  The Article concludes by providing examples of how ORE can be incorporated into both federal and state PTDs, providing courts and governmental agencies with a doctrine that encourages and requires the utilization of ocean and coastal resources for harnessing clean, renewable energy in an effort to mitigate the impacts of climate change.

I hope you find it useful in your law and non-law work. Ironically, it was exactly fifty years ago that one of the leading songwriters wrote and sang these words: 

Come gather around people, wherever you roam / And admit that the waters around you have grown / And accept it that soon you'll be drenched to the bone / If your time to you is worth savin’ / Then you better start swimmin’ or you'll sink like a stone / For the times they are a-changin’. 

Isn’t it well past time to heed that warning and combat the rising levels of greenhouse gases, temperatures, seas, health care costs and storm damages by making maximum use of the clean, renewable energy available and waiting off our shores?

Kids Get Their Day in Court on Climate Change

Posted on June 16, 2014 by Rick Glick

On June 11, the Oregon Court of Appeals held that two teens are entitled to a judicial declaration of whether there exists a “public trust” obligation in state officials to “protect the State’s atmosphere as well as the water, land, fishery, and wildlife resources from the impacts of climate change.”  In Chernaik v. Kitzhaber, the court reversed the trial judge’s dismissal of the case and remanded for a decision on the merits.

This case is one of dozens brought in the name of kids across the country to force government to act more aggressively to combat climate change.  The young activists—with a little help from the environmental advocacy groups Crag Law Center, Center for Biological Diversity and Western Environmental Law Center—argued that the state has displayed a frustrating lack of urgency:  “I don’t want to live in a wasteland caused by climate change,” Olivia Chernaik told the Eugene Register-Guard.

Who could argue with that?  As it happens, no one did at this stage of the proceedings.  Rather, the case turned on whether a judiciable controversy exists under the Uniform Declaratory Judgments ActPlaintiffs asked for a declaration that a public trust obligation exists and that Oregon officials have violated that trust by not preventing climate change, and they asked for an injunction to reduce greenhouse gas emissions by a prescribed amount, which plaintiffs characterize as the “best available science.”  The state countered that such declarations could not lead to practical relief by the court, and that if they did, the court would be intruding on the legislature’s prerogative to determine whether current policies are adequate and what additional measures may be needed. 

The court rejected the state’s arguments, holding that such declarations could stand on their own, which would lead the legislature to take appropriate steps without an injunction.  In other words, the kids should get their day in court to show that a fiduciary duty exists under the public trust doctrine to protect against climate change and which duty the state has failed to properly discharge.

The public trust doctrine stems from English common law, which states that some resources are so central to the well-being of citizens that they cannot be freely alienated and must be protected.  The doctrine was adopted by the U. S. Supreme Court in its 1892 decision Illinois Central Railway v. Illinois, which held that the state could not convey outright title to a substantial segment of the Chicago lakefront. 

Many such cases followed, but in 1983 the influential California Supreme Court, in National Audubon Society v. Superior Court, extended the doctrine to overlay ongoing public trust obligations to limit vested water rights.  In that case, the issue was whether the state must act to limit the Los Angeles Department of Water and Power’s appropriation of water from tributaries to Mono Lake in the face of declining lake levels.

The expansive reading given the public trust doctrine by the California Supreme Court sets the stage for court imposition of regulatory controls to protect the environment.  When the Chernaik case is restarted by the trial judge on remand, we will see if Oregon courts will pick up the baton. 

Doing so could mean big problems for the state, and perhaps lead to unintended consequences.  It would be one thing for the court to order the state to do more to limit greenhouse gas emissions, and another to force the state to find the funds.  In a zero sum budget process, which other essential programs would need to be cut?  And do we want state court judges prescribing and monitoring remedial measures?  Despite the slow pace and inefficiency of the legislative process, wouldn’t we prefer our elected leaders to develop the complex and coordinated suite of measures to address climate change? 

My guess is the courts won’t go there.  But to Olivia Chernaik and co-plaintiff Kelsey Juliana, congratulations on your win and for elevating climate change on the state’s agenda.

ACOEL Members Assist ECOS On Clean Air Act Issues

Posted on April 15, 2014 by Theodore Garrett

This week, the Environmental Council of the States (ECOS)  publicly announced a memorandum prepared by ACOEL members concerning important issues arising under the Clean Air Act.  In May 2013 ACOEL entered into a Memorandum of Understanding with ECOS to facilitate a relationship pursuant to which members of ACOEL will provide assistance on issues of interest to ECOS. 

In accord with the President’s June 2013 Climate Action Plan, EPA announced plans to use existing Clean Air Act Section 111 authority to develop greenhouse gas emissions (GHG) standards for new and existing sources.  Thereafter, ECOS contacted ACOEL and requested an extensive and neutral review of the history and background of section 111(d) of the Act.  A diverse group of ACOEL members from academia, private law firms, and public interest groups volunteered and produced the attached comprehensive memorandum, which was well received by ECOS.  This week, ECOS made the memorandum publicly available. 

In announcing the memorandum, Dick Pedersen, the President of ECOS and Director of the Oregon Department of Environmental Quality, thanked the members of ACOEL for their significant time and effort in preparing the memorandum, and added that ECOS looks forward to working with ACOEL in the future.  ACOEL hopes that this memorandum will serve as a valuable resource in connection with EPA’s anticipated rulemaking efforts in this area.

ACOEL: Memorandum for ECOS Concerning Clean Air Act 111(d) Issues pdf

Regulating Climate Change

Posted on February 20, 2014 by Annette Kovar

As I sit in my thankfully warm office on a frigidly cold winter day, I ponder the difficulty of regulating the environmental consequences of climate change. Whether a true believer or a science skeptic, it is hard not to wonder what happens if global warming believers are right. Isn’t it a good idea to work to improve air quality regardless and be ahead of the curve if systematic warming proves a fact?

Even that fairly cautious, deliberative body, the United State Supreme Court, in its 5-4 decision in Massachusetts v. EPA, made quick work of EPA’s reasons for inaction in deciding that EPA could regulate greenhouse gases under the Clean Air Act. The reader may recall that the State of Massachusetts, along with other entities, challenged EPA’s decision that the agency had no authority to regulate carbon dioxide and greenhouse gases. EPA had argued that even if the agency had authority, it could not practically regulate greenhouse gas emissions in a meaningful way to address global climate change. Thus EPA had decided to exercise discretion by not regulating—based on foreign policy considerations such as not putting the U.S. at a competitive disadvantage.

The majority of the U.S. Supreme Court, in rejecting this rationale, was favorably disposed toward taking incremental steps on climate change. The Court said: “Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop (citation omitted). They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more-nuanced understanding of how best to proceed.” Perhaps, in other words, one has to start somewhere. To its credit, EPA then initiated regulatory steps to do just that but has largely been hindered at every step by further legal challenges.

The old adage “Think globally, but act locally,” long touted in land use politics and grassroots environmental movements, might also test the global climate change debate about how best to address this collective problem. It should not come as any great surprise that efforts to address climate change globally have met with limited success. Why should one nation-state undertake costly reform while others continue as usual? One only has to look at how difficult it has been to get “started” regulating greenhouse gas emissions in the U.S. with the push-back from some states, regulated utilities, and global warming skeptics in general.

The New York Times recently reported about a new study on China’s “export” of pollution that focuses on the economics and trade implications on a global scale. That was followed by the recent announcement by the European Union, with an activist record on climate change, that it intends to scale back some of its climate change goals and regulations—citing economic problems like high energy costs and declining industrial competitiveness as reasons. The U.S. continues to raise climate change issues in its diplomatic dialogues and trade discussions with other countries, but it is hard to gain much leverage when the U.S. is unwilling to make commitments to the global community in the same way other industrialized countries have.

If the global problem seems so insurmountable, how can we get much traction taking those incremental steps on a national, state and local level? I am an advocate for addressing climate change—I just don’t know how to persuade the skeptics, if the current science doesn’t convince them. Perhaps taking a second look at economic incentives would help us draft better, fairer regulations that create greater motivation for regional and local initiatives—like carbon trading and the Regional Greenhouse Gas Initiative in the northeastern U.S. It is usually better to frame things via positive incentives. Use carrots rather than sticks.

Two other Times stories also caught my eye. One story was about corporations like Coca-Cola and Nike awakening to the threat of climate change because of a growing realization that weather conditions causing drought and crop failures will ultimately affect their bottom lines. They needed to plan for water scarcity. That reminded me of how the clothing corporations, a while back, were scrutinized for their overseas labor practices and started expressing interest in human rights—arguably with a view to their future bottom line profits. While the impact of the current stories is debatable, public attention may bring consumers and stakeholders into the debate. Some companies are worried about consumer boycotts after bad publicity; better to be ahead of the curve, improve labor rights or use of natural resources, avoid consumer wrath, and protect profits via change now. So both the soft drink industry and particularly clothiers were looking to the future, trying to anticipate negatives.

The other story was about the political debate over flood insurance and who should bear the risk of building in flood zones, another perceived cost of climate change. Broadening public attention to these climate change issues and the  probable dire consequences of no action should help improve the political and regulatory debate. The Obama administration's announced creation of seven regional “climate hubs” to help farmers and rural communities understand the potential consequences of climate change may be just such a new strategy.

So where does this leave me? Still stymied, but hopeful that by broadening my perspective I might yet see allies and alternatives on how regulating climate change might move forward, even incrementally. Two rules of thumb: 1) anticipate probable future negatives and head them off now, and 2) find more carrots and rely less on sticks. By the way, did I mention that I am a state regulator but my remarks are my own?

Keystone XL, the Old Testament and Attorney Compensation

Posted on February 13, 2014 by Keith Hopson

A former federal district judge was fond of telling his law clerks that Fifth Circuit Court of Appeals opinions were like the Old Testament. “You can find something there to support about any proposition you want.” The January 31, 2014 release of the State Department’s Final Supplemental Environmental Impact Statement for the Keystone XL Pipeline Project brought Judge Roberts’ words to mind.

The Keystone XL Pipeline Project backers tout the report’s conclusion that because the Canadian tar sands oil will be developed with or without the construction of the pipeline, it will not “significantly exacerbate the effects of carbon pollution” (to use the President’s avowed standards for pipeline permit approval). On the other hand, pipeline opponents point to the fact the report does not specifically address the project’s greenhouse gas emissions. Both are valid points, but the gist of the report appears to be the project has finally cleared its environmental hurdle. 

That said, other hurdles remain. While this long-awaited environmental impact statement is an important step in the process, it is just that, a step. Ultimately, the final decision on the pipeline permit will involve something more akin to the common standard for law firm attorney compensation, the so-called “all factors considered” standard. In this instance, that decision will involve economic and national and international political concerns, as well as how the project affects U.S. and international climate policy.

With the issuance of the report, the 90-day interagency consultation period begins. Once EPA, and the Departments of Energy, Defense, Transportation, Justice, Interior, Commerce, and Homeland Security weigh in, the Secretary of State will at some point make to President Obama a permit recommendation. The President, of course, has the final say.

Stay tuned; the project appears to have cleared another hurdle, but the five year and counting race is far from over.

Climate Change: Will Lacey Lend a Hand?

Posted on December 6, 2013 by Susan Cooke

The recent tornado in the Philippines and forecasts of severe weather events ranging from floods to fires and drought, not to mention the global loss of 50 soccer fields of forest every minute, have again focused attention on the Climate Change debate.  However, there is little consensus on what to do about it, as evidenced at the recent Warsaw Climate Change Conference and by Japan’s decision to forego participation in the eight year second commitment period (from 2013) under the Kyoto Protocol.  Indeed, one U.S. study indicates that even labeling an energy efficient product as promoting environmental protection can reduce its appeal among some U.S. citizens.  

With little chance that Climate Change legislation will be adopted in the near term, the federal government will have to rely on existing laws and regulations when it seeks to address the issue.  One law that may receive some attention is the Lacey Act, 16 U.S.C. §§ 3371-3378.  First passed in 1900 to prevent poaching of game and wild birds, the Act was later expanded to encompass plants that are not common food crops.  Since 2008, it has included wood products.  

The Lacey Act prohibits the import, transport, sale, acquisition, or possession of illegally harvested timber.  In addition, it requires the preparation of import declarations giving information about the species of wood and country of harvest.  Noncompliance with its provisions is subject to administrative fines, as well as forfeiture of the timber, with forfeiture being enforced on a strict liability basis.  In addition, both civil and criminal penalties can be imposed by a federal court for certain knowing violations or where there is a lack of “due care”.

The federal government has already used the newly expanded Act in an effort to address illegally harvested timber.  In addition to a criminal enforcement settlement agreement between the Justice Department and Gibson Guitar involving the import of Madagascar ebony, there was a federal government investigation in September of two Lumber Liquidator facilities in Virginia concerning wood imported from eastern Russia.  

In the latter case, this effort tapped into public concern about preserving the forest habitat of the Siberian Tiger, an endangered species, and it also had the secondary effect of addressing Climate Change.  When the lack of enthusiasm for tackling Climate Change efforts is contrasted with the public sympathy and favorable publicity for protection of iconic endangered species like the tiger, the Lacey Act may be an interesting addition to the federal government’s Climate Change enforcement arsenal.

And so the real question is what endangered or threatened species in an illegally logged forest is waiting in the wings for face time in the next Lacey Act enforcement effort, and how many soccer fields of forest will that save?

OMB Seeks Public Comment on Social Cost of Carbon

Posted on December 5, 2013 by Carol Dinkins

For the first time, the Office of Management and Budget ("OMB") is soliciting public comment on the Social Cost of Carbon ("SCC").  The SCC is a series of published values that represent the monetary impacts of marginal reductions in carbon emissions reductions, which are to be used by federal agencies when conducting cost-benefit analysis for rulemaking activities. 

First published in 2010, the SCC is prepared by an interagency working group and is based upon three different integrated assessment models that project the economic impacts of climate change.  The 2010 document setting for the SCC called for periodic review and update of the SCC as the science and economic understanding of climate change improves over time. The SCC values were updated in November of 2013 and have been increased to reflect improvements in the underlying integrated assessment models, including incorporation of the projected costs of sea level rise.  Although OMB guidance directs that regulatory cost-benefit analyses should normally focus upon domestic costs and benefits, the SCC is a measure of the global benefits that are projected to result from marginal reductions in GHG emissions.  The interagency working group concluded that the use of a global measure for carbon was appropriate because greenhouse gas emissions create a global externality, and the United States cannot resolve the projected impacts of climate change acting alone.

OMB is seeking public comment on the technical support document that explains how the SCC is set and specifically requests comment on (i) the selection of the integrated assessment models, (ii) how the distribution of SCC estimates should be used in regulatory impact analyses, and (iii) the strengths and limitations of the overall approach.   The SCC is likely to be increasingly important as EPA proceeds with rulemaking activities to regulate greenhouse gas emissions from various sources.  In fact, EPA employs the SCC in the regulatory impact analysis for the currently-pending proposal for New Source Performance Standards for power plants.  The public comment period on the SCC runs through January 27, 2014.

ABA Task Force to Help Mainstream Sustainability in Law Practice

Posted on December 4, 2013 by John Dernbach

After more than a decade of laying a foundation for sustainability activities, the American  Bar Association is poised to take its act to a higher level with a presidential level Task Force on Sustainable Development.  The Task Force is intended, in no small part, to help mainstream sustainable development into the practice of law. 

Within the practice of law, there is already a small group of lawyers whose work focuses intensively on sustainable development—including renewable energy and energy efficiency, biodiversity conservation, green building, climate change, and smart growth.  They are doing so in response to growing demand from clients, government, and the private sector, as well as rising public expectations about environmental and social performance.  Yet sustainable development remains something of a mystery to many environmental lawyers.  And some environmental lawyers think they understand sustainability when they do not.

The critical task of sustainable development is to integrate environmental and social considerations and goals into otherwise conventional development decisions.  Environmental goals include reduced greenhouse gas emissions, a smaller overall environmental footprint, climate change resilience, reduced toxicity or pollution, and conservation of species and ecosystems.  Social goals include workforce diversity, employee safety and development, and contribution to charitable or community activities. 

Over the past decade, the American Bar Association has developed two tools to enable lawyers to help lawyers move their offices in a sustainable direction and to recognize law organizations that use them.  They are:

•    The ABA-EPA Law Office Climate Challenge, a program to encourage law offices to conserve energy and resources, as well as reduce emissions of greenhouse gases and other pollutants.
•    The ABA Section on Environment, Energy, and Resources (SEER) Sustainability Framework for Law Organizations, in which a law organization commits to take steps over time toward sustainability.  

In August, the ABA House of Delegates, which has a significant policy-making role, adopted a resolution that builds on these and other steps toward sustainability.  The resolution — the third major resolution on sustainability it has adopted since 1991--“urges all governments, lawyers, and ABA entities to act in ways that accelerate progress toward sustainability.”  The resolution also “encourages law schools, legal education providers, and others concerned with professional development to foster sustainability in their facilities and operations and to help promote a better understanding of the principles of sustainable development in relevant fields of law.”

In conjunction with this resolution, ABA President James R. Silkenat appointed a Task Force on Sustainable Development to “focus on ways that the ABA can provide leadership on a national and international basis on sustainable development issues.”  The Task Force is chaired by Lee A. DeHihns, a member of the Environmental & Land Development Group at Alston & Bird in Atlanta, Georgia and a former chair of SEER. The Task Force has 20 members (including me), representing government, the private sector, nongovernmental organizations, and academia.   

The Task Force is planning to create a user-friendly website that contains a variety of sustainability resources for lawyers.  It is also looking at a range of different kinds of educational materials and tools for lawyers and law students on sustainability issues. 

It is increasingly important for lawyers to be able to communicate with clients about sustainability in general, the growing number of sustainability issues that are affecting law practice (including but certainly not limited to climate change), and the ways in which lawyers and others are creating tools and approaches for sustainability.  Law firm innovations for sustainability include the combined use of low income housing tax credits and renewable energy tax credits to finance low income housing that uses solar energy, and legal and financing packages for municipalities that invest in green infrastructure.   

The Task Force is also examining a wide variety of other ways that lawyers and the ABA can “accelerate progress toward sustainability.”  Because the Task Force has one year to complete its work, it is also looking at projects and activities it can complete in that year and longer term projects and activities that can be started in that year but that would need a longer time to finish.  If you have suggestions, contact Lee DeHihns or me.  And stay tuned. 

Doin’ The Dunes: What Will They Cost? - Part III

Posted on December 2, 2013 by Joseph Manko

On June 13, I posted the first blog, in what has now become a series, initially called “Doin’ The Dunes: What Will They Cost?”, exploring the way in which New Jersey’s three branches of government intended to treat compensation for the easement agreements for the construction of dunes – New Jersey’s response to climate changes (e.g., Superstorm Sandy).  At the time, the New Jersey courts had determined that the landowner would be compensated for a partial obstruction of the ocean view without any reduction for the benefit received from the dune’s protection (called a “general”, not “special” benefit). 

On July 19, I posted the second blog, which described the New Jersey Supreme Court’s unanimous decision in Borough of Harvey Cedars v. Karan, 214 N.J. 384 (2013) to reverse the prior precedents and recognize that dunes did confer storm protection as a “special benefit” to the subject landowner which would reduce the otherwise compensable amount for that portion of the award for the partial loss of the ocean view.  Since the lower courts had not calculated the amount of the special benefit, the Court remanded the case to the trial court for a determination of the amount of the “special benefit” and its resultant reduction of the amount of the takings claim.  (The case was reported to have settled with the Karans’ receiving $1.00 for the partial loss of ocean view and the parties “acknowledgement that municipalities cannot enact or enforce laws or regulations that would interfere with the state’s plans to build dunes as part of flood mitigation effort.” (Phila Inquirer, PP A-1, A-9 (Nov 9, 2013)).

In the aftermath of Karan, the Appellate Division had an opportunity to revisit the issue (of the amount of compensation to be paid for the dune’s reduction of ocean view) in Petrozzi v. City of Ocean City, argued on September 9 and decided on October 28, 2013.  Although the facts in the Petrozzi case are critical to the decision, the Court was asked to determine whether a municipality’s failure to maintain a 3 foot above sea level elevation of the dunes justified the payment of additional compensation.  In this case, Ocean City had obtained easement agreements with a number of its residents in which the City obligated itself to maintain the 3 foot elevation.  Subsequent legislation in New Jersey, administered by the New Jersey Department of Environmental Protection (NJDEP), required municipalities to obtain a Coastal Areas Facilities Review Act (CAFRA) permit for the maintenance of dunes.  Several of the plaintiffs, who signed agreements with Ocean City before the law changed, asked the trial court to determine whether the impossibility of the City to perform the maintenance (NJDEP having denied the City’s permit application) constituted “reasonable unforeseen circumstances beyond its control”, such as to relieve it of its duty to maintain the 3 foot elevation level but make no further payments for the additional partial loss of ocean view (due to the dunes exceeding the 3 foot “cap”).  (City of Ocean City v. New Jersey Department of Environmental Protection, A-5199-06 (App. Div. September 26, 2008).  Ocean City argued that it was relieved of its maintenance obligation without having to make any further payment; the plaintiffs disagreed and filed suit. 

The Court acknowledged the general rule that where one party was excused from performing a contract due to unforeseen circumstances that made performance impracticable, the other party would generally be excused from its performance.  In this case, however, since the plaintiffs had given up their rights to additional compensation for partial loss of ocean view, in reliance upon the City’s promise to protect their ocean views above the 3 foot level, they argued that were it not for this reliance, Ocean City would have had to pay plaintiffs additional money for the additional partial loss of ocean view (i.e., above the 3 foot elevation). 

The Court agreed with the plaintiffs and remanded the case to the trial court to determine the additional compensation to be paid; however, citing Karan as precedent, it acknowledged that any such amount needed to be reduced by the “special benefit” conferred by the additional storm protection provided by the increased elevation of the dune. 

In its conclusion, the Court, referring to “the admonition in [Karan] that the quantifiable decrease in the value of their property – loss of view – should [be] set off by any quantifiable increase in its value – storm protection benefits.”  The bottom line is that the special benefit principle upheld in Karan is now the “law” in New Jersey. 

Adaptation: Getting the Roles Right

Posted on November 25, 2013 by Jonathan Z. Cannon

In 2010, the National Academy of Sciences Committee on Climate Choices came out with a series of reports on the challenges facing the nation on climate change.  One of the reports dealt with adaptation – coping with the impacts of climate change that we cannot, or chose not, to avoid through mitigation. This report considered three possible models for federal-state-local relationships in adaptation. One model entailed a centralized adaptation program, “nested in a body of federal government laws, regulations, and institutions.” A second was a bottoms-up approach, largely self-driven by state and local actors. The third was an “intermediate approach,” in which adaptation decisions are largely decentralized but in which the federal government acts “a catalyst and coordinator” in adaptation policymaking. In true Goldilocks fashion, the NAS panel recommended the intermediate approach as “just right.”

It now looks as if the Obama administration is crediting that intermediate course in its climate adaptation policy – and appropriately so.  By contrast to mitigation, adaption presents as a local or regional problem, dealing with climate change effects that vary across regions and localities – wildfires in the west, flooding on the Gulf and Atlantic Coasts, tornadoes in the Midwest.  The law and policy of adaptation therefore should have a strong regional and local orientation.

Beginning in 2009, President Obama has taken a series of steps to get the federal government’s own house in order in understanding and adapting to climate change. [Reference Steve McKinney’s blog posting 11.6.2013] More recently, however, the focus has expanded to include coordination with states, tribes and localities – the decisionmakers on adaptation’s front line. The adaptation portion of the President’s Climate Action Plan announced in June of this year ordered the creation of a task force of state, local, and tribal officials to advise on key actions the federal government can take to help strengthen communities on the ground. (E.g.,“will provide recommendations on removing barriers to resilient investments, modernizing grant and loan programs to better support local efforts, and developing information and tools to better serve communities.”) 

On November 1, the President announced the members of the Task Force on Climate Preparedness and Resilience -- governors, mayors and tribal leaders -- and further elaborated its mandate: to make recommendations for steps the federal government can take to facilitate adaptive measures at the point of potential impact and to “otherwise support state, local and tribal preparedness for and resilience to climate change.”  Although the task force is set to terminate within 6 months of making its recommendations, it represents a step in the direction of NAS’s collaborative model.  Hopefully, it won’t be the last.

Hail to the Chief

Posted on November 6, 2013 by Steve McKinney

On November 1, President Obama issued an executive order organizing several task forces and coordinating councils to focus on climate change adaptation.  Among the necessary and appropriate beltway benefactions was Section 3, which orders federal departments and agencies to “complete an inventory and assessment of proposed and completed changes to their land- and water-related policies, programs and regulations necessary to make the Nation’s watersheds, natural resources, and ecosystems, and the communities and economies that depend on them, more resilient in the face of a changing climate.”  That’s quite an assignment.

The order applies specifically to Defense, Interior, Agriculture, EPA, NOAA, FEMA, and the Army Corps of Engineers. The CEQ and OMB Co-Chairs can spread the assignment to other federal agencies as need be.  If you are left out of this list, you must not be very important.  The required inventory must also include a “timeline and plan for making changes to policies, programs and regulations.”  This is all supposed to happen in the next 9 months, a rather pregnant period of time in a variety of ways. 

The scope of the task catches your attention, but perhaps the limitations should also be of interest.  The inventory assignment is not supposed to include “wish lists” that have not yet been proposed or completed.  It is supposed to focus on resiliency-enhancing land and water programs, rather than air programs that are usually the target of any climate change discussion. However, “agencies shall, where possible, focus on program and policy adjustments that promote the dual goals of greater climate resilience and carbon sequestration, or other reductions to the sources of climate change.”

It’s a big job.  It imposes new priorities for all federal departments and agencies.  Sounds almost like an Act of Congress.  Come to think of it, I wonder what Congress thinks about this?  I mean… I’m just sayin’...

Bad News in the Latest UN Report on Climate Change

Posted on October 16, 2013 by Larry Ausherman

The UN’s Intergovernmental Panel on Climate Change (“IPCC”) has more bad news for us.  Its long range forecast still looks hot, and the IPCC is more confident than ever that humans are largely the cause.  On Friday, September 27, the IPCC issued a Summary for Policymakers on the “physical science basis” of climate change.  This is the first part of the IPCC’s Fifth Assessment Report to be published.  The summary report contains numerous findings, but you may want to begin by thinking about five aspects of them.

    1.    It is “extremely likely” that we’re the culprit.  The IPCC observes that warming in the climate system is unequivocal.  But there has been debate about its cause.  Based on growing evidence, the report finds it is “extremely likely” that human influence has been the dominant cause of observed global warming since the 1950s.  In the IPCC’s previous report, issued in 2007, the IPCC was 90% certain of this conclusion.  Now it is 95% certain. 

    2.    We need a carbon budget.  For the first time, the IPCC takes a stab at calculating essentially a global limit on anthropogenic CO2 emissions.  Science has long estimated that a temperature rise of 2 degrees Celsius above the temperature of preindustrial times is the point after which the most damaging effects of global warming would happen.  The report estimates the level of total CO2 emissions since the industrial revolution that would trigger a temperature rise of this magnitude.  That number is subject to variation of course, but the report projects it is likely that no more than about one trillion tons of CO2 could be released without triggering this rise in temperatures.  We have released about one half of that amount so far, and projections are that at current rates, the other half trillion tons could be released from anthropogenic sources in the next several decades.

    3.    Temperatures of the last fifteen years are not that comforting.  Climate change skeptics have focused on the fact that the rise of global surface temperatures leveled out in the last fifteen years.  The IPCC report explains that this recent trend may be due to natural variability.  It observes that trends based on records of short duration are very sensitive to beginning and end dates and may not reflect long term climate trends.  Nonetheless, in identifying possible explanations for the fifteen year hiatus in warming, IPCC recognizes that the possible explanations for it are not proven.  It also recognizes the possibility that in some models, there may be an overestimate of the response to increasing greenhouse gas.

    4.    There is much we do not know.  We don’t know the cause of the fifteen year leveling of global warming.  We don’t know how quickly the oceans will rise.  We don’t know the likelihood and rate of extinctions.  We cannot accurately predict the localized effects of warming temperatures.  Much of the report is a detailed exercise in characterizing probabilities and confidence levels of predicted global climate trends over time.  The report characterizes the likelihoods of trends it identifies, and they range from the virtually certain to low confidence levels, depending on the trend and timeframe.

    5.    We will hear more from the UN.  The Summary Report for Policymakers focuses on the physical science basis of climate change, and the full version of this part is expected soon.  This physical science part is only the first of three that will together comprise the IPCC Fifth Assessment Report.  The Fifth Assessment Report follows the Fourth Assessment Report which was published in 2007.  In 2014, the two additional parts of this Fifth Assessment Report will be issued concerning (1) likely impacts and (2) steps to limit climate change.  As the report is issued, it likely will prompt renewed efforts for a global climate treaty.  The UN Secretary General, Ban Ki-moon, urged world leaders to work toward a new global agreement to cap greenhouse gas emissions and declared his intention to call a meeting of world leaders next year.

Coming Attractions: Sea-Level Rise, New IPCC Reports, and Floating Wind Power Projects

Posted on September 4, 2013 by Jeff Thaler

There has been a flood (no pun of course) of new stories this month about rising sea levels, acidifying oceans, drought-driven wildfires, and extreme weather events in the U.S. and globally. At the same time, with the official release of the eagerly-awaited Fifth Assessment Report of the Intergovernmental Panel on Climate Change due in several weeks, leaks of a draft portion of the Report are coming out in the media, indicating increasing confidence in the underlying science and in a substantial human role in warming, primarily as a result of burning fossil fuels. Additionally, as reported in the N.Y. Times, it appears that the draft projects that sea level could rise by only about 10 inches by 2100 under the “most “optimistic” scenario. But “at the other extreme,” with emissions continuing to swiftly increase, “sea-level rise could be expected to rise at least 21 inches and might increase a bit more than three feet” by the end of this century—which “would endanger many of the world’s great cities — among them New York, London, Shanghai, Venice, Sydney, Australia, Miami, and New Orleans.” Some believe that the FAR will still understate the likely forthcoming climate disruptions.

Coincidentally (or not?), those of you who still subscribe to the National Geographic Magazine would have seen in August a cover story entitled “Rising Seas”, which leads off with questions a panel of ACOEL members will (coincidentally?) in part be addressing at our Annual Meeting in Boston: “As the planet warms, the sea rises. Coastlines flood. What will we protect? What will we abandon? How will we face the danger of rising seas?” . And rising sea levels are especially of relevance to any ACOEL member living in a state on the Atlantic coast, because sea levels have been rising three to four times more rapidly off the Atlantic Coast than the global average, according to a recent study. For those of you living between the coasts, the San Francisco water supply and Yosemite National Park are both threatened by an out-of-control wildfire, while the western United States are experiencing significant drought.

And while forests burn and seas warm, acidify, and rise, one good news story was the recent launching in Maine of the first grid-connected floating wind turbine outside of Europe.

It also is the first concrete-composite floating wind turbine in the world, using advanced material systems with a unique floating hull and tower design.  The 65 ft tall turbine prototype is a one-eight-scale version of a 6 MW, 423 ft rotor diameter design.  Currently being developed by the University of Maine and beginning preliminary environmental and permitting work, Maine Aqua Ventus I had been selected by the Department of Energy early this year out of 70 competing proposals as one of 7 winners of $4 million in initial funding.  The project is now a finalist for an additional $46.6 million in funding. This project is critical, because floating offshore wind energy projects have the potential to generate large quantities of pollutant-free electricity near many of the world’s major population centers (but far enough away, in water depths up to 400’, to not be visible from shore), and thus to help reduce the ongoing and projected economic, health, and environmental damages from climate change. Wind speeds over water also are stronger and more consistent than over land, and have a gross potential generating capacity four times greater than the nation’s present electric capacity.

(Full disclosure:  I am legal counsel for the project)

New Frontiers of Environmental Advocacy

Posted on August 21, 2013 by Eugene Smary

Since one of the objectives of the ACOEL blog is to promote thought and discussion, I have decided to plunge in with abandon.  Hopefully the objective of promoting discourse will be met.

We all have reconciled ourselves to the fact that environmental advocacy has become very politicized on all portions of the political spectrum—so much so, that environmental advocacy oftentimes morphs into political/partisan advocacy.  In the last several years we have seen environmental advocacy reach a new level.  I leave it to the reader to decide whether that level is high or low.  I have my point of view, and I suspect the reader will see that soon enough.

Two projects, one proposed, and one still only in the realm of “contemplation” serve as lightning rods for this new form of environmental advocacy:  the Keystone XL Pipeline project and the potential Pebble Mine.  Keystone XL formally has been proposed.  The Pebble Mine has yet to have a permit application submitted but nonetheless is the subject of protracted and unique opposition.

It is becoming increasingly common to witness the advocacy relating to the Keystone XL Pipeline project—unprecedented in both its breadth and emotional intensity--from proponents and opponents alike.  Proponents have tended to follow the more traditional advocacy approach of published opinion pieces and structured meetings and association support.  The opposition has been much less traditional.  Certainly there has been a history of focused opposition to some projects viewed by some as adversely impacting the environment, but those have been very focused locally or at most regionally.  We all recall “tree sitters” opposing harvesting of redwood timber.  Street theatre is not uncommon.  Here in Michigan I have seen an individual dressed up as a skeleton in opposition to use of a school built on an abandoned municipal landfill, or dressed up as a fish in opposition to a proposed hard rock mine.  The call for civil disobedience in opposition to Keystone XL goes well beyond street theatre, however.  It is something that has not been seen, at least in my memory, since the days of the Civil Rights and Vietnam War protests.  Lost in all of the demonizing of the development of hydrocarbons in Alberta, Canada’s northern reaches (called “oil sands” by proponents and “tar sands” by opponents) is the fundamental impact that a denial of the Presidential Permit necessary to construct the pipeline will have on the diplomatic relationship between Canada and the United States.   The failure to issue a permit thus far has contributed substantially to a reconsideration of Canadian policy goals and economic development.  No longer is the Canadian policy as focused and U.S.-centric as it once was.  Canada is reevaluating the degree to which it can continue to trust its southern neighbor.  It is not a stretch of the imagination to read the tone and tenor of the “policy” discussion and advocacy antics as being officious.  An offer to “help” with the evaluation of the climate change risk of the bitumen production and methods of amelioration, while perhaps well-intentioned, certainly is capable of being seen as sanctimonious, or even arrogant.  The old images of the “ugly capitalist”, and the “ugly American” are being supplemented by images of the “ugly environmentalist.”  The increasingly strident nature of the anti-Keystone advocacy ignores or dismisses broader foreign policy considerations.

Now, if that is not enough to get discussion going, I don’t know what is.  But, on the off chance that there is need for more encouragement, let me raise one other advocacy project:  the contemplated Pebble Mine located in the Bristol Bay, Alaska, watershed.  Pebble Mine may not be as well-known nationally as Keystone XL, but some NGOs are trying to make certain that it does become known—and opposed.  If Pebble is known for anything, it is that it is the subject of an environmental assessment being undertaken by U.S. EPA, in advance of any permit application having been filed and without any proposed mining plan having been developed.  Now Pebble has a major mail order retailer using its customer-based mailing list vigorously and bluntly to oppose the Pebble project.  Within the last several weeks I received a “fly fishing” catalogue from this company, a company from which I have purchased products for well over 30 years.  I started seeing full-page advertisements opposed to Pebble in the interior of its catalogues within the last year.  This most recent mailing is the first time I received a catalogue whose cover was emblazoned with the words “Pebble Mine” inside a red circle with a slash through it and the admonition to “JOIN THE FIGHT” at the company’s website.

In an age where social issues are increasingly being highlighted in commercial advertisements, perhaps I have been lulled into thinking that subtlety makes such advertising acceptable.  There is nothing subtle about this fly fishing catalogue’s assault on a mining project. Opposition to mining in sulfide ore bodies appears to have become a focal point for the leadership of this company.

This is a free country and we all enjoy freedom of speech.  The ultimate power, of course, is to take one’s business elsewhere, but I just found this to be a rather unique “in your face” form of environmental advocacy.  If I want to receive environmental advocacy—from any quarter, I will ask for it.  If I wish to purchase goods and get on a mailing list for that purpose, I expect to get future mailings about similar products.  I do not expect—or authorize—use of my name and address to receive decidedly political advertising nor biased social commentary.  I know how and where to get plenty of that in a setting where it is both thoughtful and analytical.  Combining a commercial catalogue with a political advertisement, or rather turning a catalogue into a political advertisement, crosses the line.  Perhaps it is a line that we as a society are willing to tolerate in this age of political intolerance.  We will see.

Now, let the discussion begin.

D.C. Circuit Slams the NRC, Grants a Rare Writ of Mandamus The Next Chapter of the Yucca Mountain Odyssey

Posted on August 19, 2013 by Donald Stever

For years the nuclear power industry, which could serve as a climate neutral bridge to a more carbon neutral energy policy, has been hampered by the high cost of electricity production and difficulty in securing new licenses and license renewals.  A not insignificant contributor to the cost of nuclear power, and one of the arguments raised against relicensing of older nuclear power plants, has been the necessity for the operators of nuclear power plants to store spent nuclear fuel onsite for an indefinite period of time. This was not supposed to be the case. Years ago Congress passed and the President signed into the law the Nuclear Waste Policy Act, which mandated the Department of Energy to develop a permanent repository for spent reactor fuel.

On August 13, a panel of the United States Court of Appeals for the District of Columbia Circuit, in In Re Aiken County issued a rare order, a writ of mandamus, compelling the Nuclear Regulatory Commission to resume the licensing proceeding on the Department of Energy’s application for a permit to construct  a permanent repository for nuclear waste at Yucca Mountain in Nevada. That process was to have been completed in June of 2011 under the Nuclear Waste Policy Act, but the DOE, acting on the President’s direct order, tried to withdraw its license application in 2010 and, though the NRC Licensing Board rejected DOE’s efforts,  the Chairman  of the NRC, also acting at the President’s request, shut the process down anyway.   

The case was brought by two states, two counties, three individuals residing near current temporary nuclear waste storage sites, and the association of regulatory commissioners. The Yucca Mountain project has been controversial for years, having been opposed by environmentalists and local politicians in Nevada.  DOE’s failure to find a central long-term repository for nuclear waste has forced the nuclear power industry to continue to store spent nuclear fuel in on-site casks or water filled pools, creating what is perceived by critics as enhanced risk of release of radionuclides to the environment. The decision contains a detailed, lengthy and fascinating discussion of the Executive Branch’s authority to exercise prosecutorial discretion and how that discretion is far different than its discretion to ignore clear statutory mandates.

The majority of the panel held that the Executive Branch, including the President (and by extension executive and independent agencies like the NRC), has no authority to disregard congressional mandates based on policy disagreements with the law in question. The panel concluded that the Nuclear Waste Policy Act and Congressional funding of the NRC’s permit review process created a clear mandate to the NRC to make a decision on the permit application pending since 2011.  Finding that the NRC is “simply flouting the law, ” and has “no current intention of complying with the law,” the majority opinion by Judge Kavenaugh (joined by Judge Randolph),  flatly rejected the defenses offered by the NRC. The court rejected the argument that Congress had appropriated insufficient funds to complete the project, finding that annual congressional appropriations never provide enough money to finish a multi year project, and that over $11 million exists to continue it.  The court also rejected the argument that the NRC’s decision to ignore the law was justified because Congress might not provide funding in the future, concluding that allowing an agency to ignore a clear mandate would “gravely upset the balance of powers between the Branches and represent a major unwarranted expansion of the Executive’s power at the expense of Congress.”

The court also rejected the argument that the failure of Congress to provide future appropriations for the Yucca project demonstrates congressional intent to shut down the process. The Court opined that  the measure of congressional intent is in the laws it passes, not what it debates, and that repeal by implication is inappropriate where previously appropriated funds are not taken back and remain available to advance the project. The court accordingly concluded that there is “no justification” for ignoring the clear statutory mandate. Finally, the court rejected the suggestion that an agency’s policy dispute with Congress’s decision is “not a lawful ground” for the NRC or the President to decline to follow the law.
           
In a dissent, Chief Judge Garland argued that all the NRC did was suspend the proceeding because there were not “sufficient funds to finish the licensing process and that the court should defer to the agency on this judgment, and therefore mandamus should be denied.  The majority rejected this, noting that the NRC’s continued repeated and unjustified disregard for the law despite the repeated warnings given by the court rendered mandamus appropriate.

The D.C. Circuit mandamus order will in all likelihood be appealed, and it is certain that the Yucca Mountain project will remain the subject of intense controversy. The stakes for the nuclear energy industry in having the spent fuel storage problem resolved are large.  Stay tuned.

Doin’ the Dunes: What Will They Cost ? – Part II

Posted on July 19, 2013 by Joseph Manko

On June 13, 2013, I posted a blog regarding how to compensate New Jersey beach owners who have an easement condemned on their property to allow the Corps of Engineers to construct dunes.  In the blog, I indicated that the trial court and Appellate Division in New Jersey had excluded testimony on the value that the dunes would bring to the property as a “special benefit”, determining that dunes provided a “general benefit” for not only the property owner but all of the other owners who may be affected, as well as the state of New Jersey, and therefore would not be taken into account in determining the condemnation value for the easement.  At the same time, the New Jersey legislature was considering a bill that would specifically require recognition of these “special benefits” and Governor Christie was criticizing beach owners who would not cooperate in helping forestall the damages that such beachfront owners would incur from future “Sandy” storm events.

On Monday, July 8, 2013, the New Jersey Supreme Court, in a unanimous decision, reversed the Appellate Division and remanded the case for the jury to consider the value of the protection afforded by the dune, a “special benefit”, which obviated the need for the legislature to speak to the issue. 

The bottom line is that in constructing dunes on the 127 mile coastline, the property owners are “not going to be paid a windfall for [their] easement[s]”, according to Governor Christie.

While it remains to be seen how the lower court will now value the easement, from the standpoint of protection against rising sea levels and catastrophic floods, the recognition that dunes will benefit coastal owners appears to this author to be a step in the right direction.  

A Blueprint for a Resilient New York City

Posted on July 17, 2013 by Gail Port

Mayor Michael Bloomberg and the Special Initiative for Rebuilding and Resiliency recently promulgated a 438-page report titled “A Stronger, More Resilient New York” (the “Resiliency Report”) in the wake of Hurricane Sandy’s devastating destruction on October 29th, 2012. The Resiliency Report emphasizes the inevitable effects of climate change and rising sea levels, opening with a climate analysis conducted by the New York City Panel on Climate Change (“NYCPCC”). According to the NYCPCC, 25% of New York City’s land mass, home to 800,000, will be in the floodplain by 2050. The Resiliency Report is part of Mayor Bloomberg’s PlaNYC, an unprecedented program initiated in 2007, which currently has 132 initiatives to make New York City (“NYC”) more sustainable and adaptable to the effects of climate change. Given the historic impact of Hurricane Sandy and the concern that future weather events could be just as devastating—or even worse—the Resiliency Report was commissioned to build on the momentum of PlaNYC.

The Resiliency Report contains over 250 proposals, implementation of which is estimated to cost $19.5 billion. Approximately $15 billion has been or is expected to be appropriated from federal and city sources, but the remainder of the required funding may be dependent on whether further aid will be available from the federal or state governments. Among other things, the Resiliency Report calls for the restoration of dunes, widening of beaches, and erection of localized surge barriers, levees, and floodwalls in particularly vulnerable areas. The Report also calls for amendment of the Biggert-Waters Flood Insurance Reform Act, which currently only allows for premium reductions if the house is elevated, to allow for flood insurance premium reductions if the homeowner makes other flood-related improvements. Additionally, a Building Resiliency Task Force (established by the Mayor and City Council Speaker Quinn) recently issued a separate Building Resiliency Report, focusing in greater detail on building structural and infrastructure resiliency. The Building Resiliency Report has 33 specific recommendations based on four central themes: constructing stronger buildings, securing backup power, providing essential services, and developing building-specific emergency plans.

Numerous issues have already been raised regarding recommendations in the Resiliency Report. One such example is the controversial proposal of a SeaPort City, which has already spawned community resistance. SeaPort City would be an artificial expansion of the lower east side of Manhattan modeled after Battery Park City, which was highly successful in reducing flood-damage from Hurricane Sandy on the lower west side. Although it has been emphasized as a resiliency initiative, SeaPort City would serve the dual purposes of acting as a protective barrier and providing highly coveted residential and commercial real estate. Nearby South Street Seaport residents and businesses, which were devastated by Hurricane Sandy, argue that this massive landfill would harm wildlife and would have an adverse effect on preservation of the historic neighborhood. Since the plan for SeaPort City is still in its infancy, the costs for such a development have not been calculated into the already staggering $19.5 billion costs to implement the other Resiliency Report proposals.

The Resiliency Report opens with an invigorating foreword by Mayor Bloomberg, stating that “[w]e are a coastal city—and we cannot, and will not, abandon our waterfront.” In contrast, on the state level, Governor Cuomo’s floodplain buy-out program provides an incentive for private homeowners to relocate from the coastline. This $400 million purchase program offers to buy houses in flood-prone areas, specifically in Staten Island, with the value offered depending on the vulnerability of the particular neighborhood. The houses would be demolished and the properties would remain undeveloped to act as a natural buffer for future storms. Governor Cuomo stated that “there are some parcels that Mother Nature owns . . . and when she comes to visit, she visits.” Though the buy-out program still awaits federal approval, it has garnered substantial support from Staten Island representatives. The governor’s proposal is consistent with the views of members of the NYCPCC who have urged for a retreat from coastlines.

Regardless of methodology, all parties agree that some changes must be implemented soon to address the growing threat of climate change and rising sea levels. The success of the recommendations in the Resiliency Report and the continuing success of PlaNYC will hinge predominantly on the initiatives of Mayor Bloomberg’s successor. The Bloomberg administration has five months left to lay the foundation for these programs, but the responsibility to implement both the Resiliency Report recommendations and PlaNYC ultimately will fall on the next mayor. The incoming mayor must have the will, dedication, funding and community support to ensure the programs’ continued success. Will the new mayor be willing to commission studies of the SeaPort City proposal? Will the new mayor be able to secure the funding required to implement recommendations in the Resiliency Report? Will the new mayor build on the successes of PlaNYC? Will the new mayor become the flag-bearer for the adaptation of New York City and its coastal metropolitan areas to address growing environmental concerns? These and other questions have already become an important part of the campaign dialogue as voters form their positions for the upcoming mayoral election in November.

Doin’ the Dunes: What Will They Cost?

Posted on June 13, 2013 by Joseph Manko

How appropriate was the name “Sandy”, which hit the New Jersey shore, leaving in its wake a $30 billion cleanup/rebuild price tag.  Climate change experts agree that such catastrophic storms will continue to occur in the future and that adaptation is essential to confront repetitions.

So it is in New Jersey where all 3 branches of government have suggested ways in which to do so.  First, Governor Christie has gone on record as being “not in favor of using eminent domain to kick people out of their homes”.  He therefore proposes to spend $300 million to acquire key beach homes on the Ocean and Monmouth County shorelines.

Second, and most interesting to environmental and land use attorneys, is the U.S. Army Corps of Engineers’ (Corps) pursuit of acquiring easements along the New Jersey shore lines on which to construct and maintain 2-story high sand dunes.  This program, begun in 2003 and contemplated to last 50 years, is focused on 14 miles of New Jersey’s barrier islands at an estimated cost of $144 million. (The Corps’ estimate does not recognize the issues raised here.)  The wild card in the Corps’ approach is how much needs to be paid in compensation for the property owners’ easement, including a partial loss of ocean view.  This is the issue moving through the New Jersey legislature and, more importantly, its courts. In the most recent case, Borough of Harvey Cedars v. Harvey Karan and Phyllis Karan, Judge E. David Millard, the lower court judge, was faced with the question whether the compensation award for an easement on 1/3 of the Karans’ beachfront property, on which the Corps built a 22 foot high sand dune which partially obstructed their ocean view, should be reduced by the resultant benefit of protection from future storms provided by the dunes – or whether the general benefit to others, and the entire state of New Jersey, made such a “special benefit” to the Karans not recognizable under existing New Jersey case law.   Finding such “special benefit” not consistent with prior law and extremely speculative to calculate, Judge Millard  instructed the jury not to make any such reduction in the $375,000 award.  The New Jersey Superior Court Appellate Division affirmed the result, Borough of Harvey Cedars v. Harvey Karan and Phyllis Karan, 45 A.3d 983 (2012) .  The New Jersey Supreme Court granted certification to the Borough and heard two hours of argument on May 20, 2013.

Third, while all this was going on, a bill was introduced in the New Jersey Senate in March 2013 which, if enacted, would allow the Court to consider the “special benefit” which dunes would afford to the affected homeowners.  Whether the bill ever becomes law, as well as questions as to its constitutionality and its effect on New Jersey case law would certainly emerge – as will be the question as to whether the New Jersey Supreme Court will take notice of the bill in rendering its decision.

Issues such as these will clearly impact the cost of climate change adaption, especially so with the threat of the anticipated rising of sea levels and recurring coastal storms to island properties.  Stay tuned.

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

Posted on June 7, 2013 by Peter Lehner

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

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

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

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

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

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

Religion and the Environment: Reconciling Apples and Oranges

Posted on June 5, 2013 by James Holtkamp

Setting policy for environmental protection is a bit like mediating the discussion between a father and daughter about her shaggy-haired boyfriend.  Each has a very different perspective – the father looks at the boyfriend with the cold eye of logic (does he have a job- will he ever get a job?) and the daughter sees her suitor as a warm and caring individual (but I love him, Daddy!).  Neither is willing (or sometimes even able) to understand the point of view of the other.

Project proponents often cite additional jobs, taxes and other material benefits in response to concerns about environmental damage from the project.  Opponents argue that the protection of environmental values is important because- well, they are just important.  Quantification of inherently unmeasurable values, such as the cost of illness or death or the extinction of an obscure species resulting from human activities, is at best a clumsy exercise, notwithstanding the legions of PhDs in economics that have tried.  Thus, comparison of the economic benefits with the environmental disbenefits of a particular project or policy is at bottom an unsatisfying exercise because neither side is willing or able to speak the “language” of the other.  This has been especially true in the conversations about climate change, and given the staggering implications of climate change for human society and the environment, those conversations need to be mutually understandable.

So, what common “language” can mediate conflicting world views on environmental issues?  Religion is increasingly serving as a framework for mutual understanding and communication to facilitate resolution of environmental issues.  The debate over man’s impact on the earth under this approach is cast in terms of the sanctity of all creation coupled with a divine mandate for mankind to care for it. 

The notion that human beings have an innate, solemn and God-given responsibility to care for each other and the world they live in is expressed in all of the great religious traditions. For example, in Genesis, God sees that his creation was “very good” and gives man “dominion” over it. (Genesis 1:26, 28, 31).  The Koran commands, “Do no mischief on the earth, after it has been set in order.” (7:56).  Indeed, there are some who suggest that environmentalism is itself a religion insofar as it “shapes a person’s very concept of his or her purpose and meaning in the world and other core beliefs relating to human existence.” 

Can a religion-based ethos of stewardship over creation and care for one’s neighbor solve environmental conflicts?  It can certainly help restore the words “balanced” and “responsibility” to their normal meanings.   It can provide a framework for talking about economic, health and lifestyle benefits to individual human beings, as well as protection of vulnerable ecosystems and esthetic values, based on something other than blind adherence to the laws of economics on the one hand and reflexive opposition on the other.