You may know that Washington State Governor Jay Inslee is a climate champion, first as a long-serving member of Congress and now as Governor.  But you may not know that he just finished leading a bipartisan effort that succeeded in passing climate change legislation. 

His climate action bill passed the State House March 25th on a bipartisan 61 to 32 vote. The bill earlier passed the Republican-controlled State Senate on a 37 to 12 vote. And a few days ago it headed to Governor Inslee’s desk for a well-earned signature.
 
The bill commissions an independent evaluation of climate pollution reduction programs in other states and Canadian provinces, and of opportunities for new job-producing investments in Washington relating to cleaner energy and greater energy efficiency. Then it requires the Governor and legislative leaders to use that survey data to plot out together what set of policies will get the State to hit its climate pollution limits established by earlier legislation, including a greenhouse gas emission reduction to 1990 levels by the year 2020.

“The Governor’s climate action bill keeps our state in the game – requiring leaders to map out a strategy to grow our clean energy economy and reduce climate pollution,” said Joan Crooks, executive director of Washington Environmental Council.

And here — in sharp contrast to the other Washington — Republicans and conservative Democrats agreed.

Climate Change and the deficit are at the top of the legislative and policy agenda for the country.  Some economists love the “carbon tax.”  Senators Sanders and Boxer recently proposed the Climate Protection Act of 2013 -- to impose a tax on fossil fuels and high carbon intensity products sold in the US.  Many in the popular press are now advocating for a carbon tax, to reduce the deficit and to provide for reductions in carbon emissions.

Rather than believe that a tax can create just the right mix of incentives and funds to promote de-carbonization measures, I would argue that the ability to offset ought to be included in any such measure.  Carbon offset credits are based on one of the most significant legislative changes in the 1977 Clean Air Amendments --the requirement to get Emission Reduction Credits.  While ERCs were limited to requirements for a new or modified major emitting facility in a “non-attainment area,” the principles of ERC of ERCs can be found in the documentation now known as “carbon offsets.”  Scores of methodologies or protocols are now recognized as scientifically valid for activities which are not required by law and which do not represent business as usual. The proof required to earn a valid carbon offset credits is considerable, at least as exacting than even what EPA requires for ERCs.  Because it is the regulated industry which chooses whether to use an offset or not, offset credits have another level of proof -- that of the end user - to satisfy.  And Innovation and entrepreneurs are characteristic of carbon offset credits.

Not only are carbon offsets a recognized cost containment tool in many GHG control programs, it allows different approaches to carbon reduction to compete against each other.  The most efficient and most effective will have the lower price; and hence be more attractive than other ways of reducing. And it will bring in sectors with GHG emissions which would not be reduced otherwise.  From livestock wastewater operations to improved forestry management, from rice cultivation practices to coal mine methane, emission reductions will occur which would not otherwise. A more detailed discussion of this topic can be found at www.Dentons.com.

According to the recent U.S. Drought Monitor, approximately 65% of the contiguous United States is currently experiencing “abnormally dry” to “exceptional drought” conditions. In my part of the country, a recent projection indicates that a reservoir supplying a significant portion of our municipal water supply could dry up within 3-4 years if severe drought conditions persist. Although an “Aquifer Storage and Recovery” program was previously developed to enhance the available supply of groundwater, it is only designed to replenish the drinking water aquifer from excess river flow during flood conditions—a rare occurrence during a severe drought.

I am not capable of allocating percentages of fault for this persistent drought between anthropic climate change and extreme climatic occurrences that are “normal” in the context of geologic time. However, I am persuaded by the argument that “climate change,” by whatever definition you choose to give it, is a problem not only of causation and prevention, but also of adaptation. A previous posting on the need to prioritize adaptation to climate change states the argument well. Is it time we give more thought to groundwater replenishment as an adaptation tool?

My practice includes representing clients at various hazardous substance release sites, under both state and federal law. The default remedy for contaminated groundwater at many of these sites remains extraction and treatment (commonly using air stripping technology) to both contain and clean up the extracted groundwater to “unrestricted use” quality. At most of these sites, however, treated groundwater is discharged to a ditch, creek or similar conveyance where the value of the groundwater as a critical natural resource is largely lost.

An environmental consultant at one such site recently calculated that, over the period of two years, the pump and treat system had removed and discharged to a nearby ditch approximately 110 million gallons of treated groundwater. During a period of severe drought, the system was depleting a drinking water aquifer by over two feet annually. In addition, it was estimated that the quantity of groundwater being treated, and largely wasted, was equivalent to the water used by 1,850 residents (27% of the population) of the city in which the site is located.

Beneficial reuse of “contaminated” water resources is obviously not a new concept, particularly the reuse of nonpotable water. Examples include the reuse of treated nonpotable water for industrial, municipal and agricultural purposes. Potable water reuse is less common for reasons related to water quality requirements, technical issues, cost and community and regulatory acceptance.

Notwithstanding the obstacles and additional costs, it may now be time for environmental professionals, regulators and attorneys to more systematically and creatively consider potable reuse options at contaminated groundwater sites. This would include an evaluation of discharging treated groundwater through infiltration basins, infiltration galleries and injection wells to replenish the drinking water aquifer from which it was extracted. Consideration should be given to partnering site regulators and responsible parties with nearby municipalities to revitalize drinking water aquifers or supplement other potable water resources. Another issue worthy of discussion is community acceptance, which may be more likely when treated contaminated groundwater is beneficially reused indirectly through aquifer replenishment, rather directly through discharge into water supply pipes.

I submit that all too often we accept without much thought the default option of permitted surface discharge of groundwater that has been treated to “non-detect”. Potable reuse through groundwater recharge and restoration involves significant cost and technical issues. But in our effort to add weapons to the climate change adaptation arsenal, all interested parties should more carefully consider such options notwithstanding the challenges.

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

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

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

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

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

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

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

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

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

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

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

The attached article will be published in the upcoming issue of the Lewis & Clark Law School Environmental Law Review.  The article is among the first to integrate current climate change science, particularly ongoing impacts and predicted impacts, with a detailed roadmap for substantial reform of our environmental processes for reviewing proposed renewable energy projects.
 
Most existing articles either focus only on climate science or on minor modifications to the regulatory system. Using offshore wind power as a case study, this article demonstrates how, in an increasingly carbon-constrained world, our existing environmental laws and regulatory process no longer achieve their underlying goals of long-term ecosystem conservation. To the contrary, these laws and regulations are supporting a system with increasing greenhouse gas emissions that is annually costing trillions of dollars.

We have little time left to create a practical path to achieving an 80% reduction in greenhouse gases by 2050—with failure resulting in average global temperatures rising more than the internationally-agreed targeted ceiling of 2°C. After examining the obstacles confronting a potential developer of offshore wind, this article clearly lays out why and how the existing regulatory process should be quickly reformed so that offshore wind and other clean renewable energy sources can help us escape the escalating consequences of our carbon-intensive economic system.

A prior post by Michael Rodburg described New Jersey’s coastal regulatory programs, Sandy’s impact on that state and the policy choices it now must face.  This alert will focus on Connecticut’s experience with Storm Irene and Super-storm Sandy and the challenges for government at all levels that the storms have presented.

Connecticut is known as the “land of steady habits,” but after being hit by two significant storms within a fourteen month period, many people are beginning to question the sustainability of the state’s historic coastal growth patterns and the ability of the current regulatory scheme to address the challenges that climate change is bringing to coastal states like Connecticut.

The impact on Connecticut from Sandy was not as great as the impact on New Jersey, because the storm atypically turned West as it approached Long Island, and the eye of the storm hit the New Jersey coast head on.  However, Connecticut was not spared, because Sandy’s peak easterly winds occurred during a spring high tide event.  This combination of factors pushed a record high storm surge into western Long Island Sound, which narrows as it approaches its westerly outlet through the East River separating Manhattan from Brooklyn.

Due to this constriction, the water had no where to go but up in the western Sound, and it over-topped seawalls and flooded many residential areas in Fairfield County which had not historically been subjected to flooding.  It also threatened several utility sub-stations in Bridgeport and other urban centers, which were only saved by emergency flood proofing efforts.  Sadly, for many East-facing shorefronts, Sandy flooded out structures that had just been re-built following the ravages of Irene.

Ironically, like the programs in New Jersey discussed in Michael Rodburg’s post, Connecticut has had a decades old and robust coastal regulatory program.  The first legislation in 1939 was prompted by the deadly 1938 Hurricane.  In 1969, legislation was adopted to regulate and protect tidal wetlands.  These two programs have evolved since their initial passage and now require State permits respectively for dredging, installation of structures, and placement of fill in tidal and navigable waters, and for similar regulated activities in tidal wetlands.  The legislature strengthened the coastal programs in 1979 by authorizing a comprehensive coastal zone management program which required government agencies to make permit decisions in the coastal area consistent with the goals and policies of the Coastal Management Act (“CMA”).

Despite this expansive regulatory edifice designed to provide natural resource protection, minimize armoring, and offer preferred regulatory status to water-dependent uses in the coastal area, Sandy clearly challenged the adequacy of the current scheme.  One problem is that the statutes, particularly the CMA, have come decades too late to effectively steer development away from the coast.  A second is that the CMA’s goal of encouraging only water-dependent uses to be located in the coastal area has not been followed by the 34 towns in the coastal area which have the power to determine land use patterns through zoning.

The flaws in the current regulatory scheme prompted some environmental groups after Irene to call for a phased “retreat from the coast,” which immediately drew fire from property rights advocates in the legislature, and a legislative Shoreline Protection Task Force was created in the 2012 legislative session to study the issues.

Aside from the property rights issues involved in a governmental strategy of retreat, a significant problem in Connecticut would be that many coastal communities have a limited industrial/commercial tax base.  As a result waterfront properties comprise a disproportionately large share of the municipal grand list.  For government to try to force property owners out, or buy them out would leave many communities with a major revenue hole.  At a time of declining state revenues and a looming budget shortfall, it will be interesting to see how Connecticut’s General Assembly reacts to the impacts of Irene and Sandy in the legislative session beginning in January of 2013.

Perhaps the most surprising aspect of Superstorm Sandy’s destruction of the Jersey Shore is that some people were taken by surprise.  For decades, a central focus of coastal zone management and waterfront development restrictions has been to protect the fragile and shifting barrier islands, wetlands, and estuaries of the 130 miles of New Jersey at the intersection of land and ocean.  New Jersey’s Coastal Areas Facilities Review Act and its Waterfront Development Act contain among the toughest limitations in the nation to control growth and development and protect an environmentally sensitive ecosystem.  Over the decades, thousands and thousands of decisions have been made by legions of bureaucrats on projects big and small regarding application of land use regulations and the terms of permits and other approvals intended to preserve dunes, reduce beach erosion, prevent flooding and avoid loss of life and property as well as protect the environment.  Sandy seems to have made a mockery of the effort in the blink of an eye.

Sandy was not a black swan event—something heretofore not even contemplated and hence, unforeseeable.  The USGS modelers and their European counterparts had it right almost from the beginning.  Scientists have modeled not only storm tracking itself with better and better forecasts and therefore more warnings, but even the severity and effects of storm events.  These models have predicted the height and location of the storm surges and the resulting erosion and flooding with reasonable accuracy.  Plug in the real time coordinates and other data, and the models told us that the waves would attack the dunes and erode them back into the sea; that storm surge would carry the sand inland and that inundation would occur once the beach and dunes had surrendered to the sea and storm.

In Sandy’s immediate aftermath, two related themes have emerged to justify rebuilding in place.  Many have advocated continuing business as usual; after all, if this was the storm of the millennium, we have a thousand years before we have to worry about a similar event occurring again.  Others have suggested that by undertaking protective measures, we humans are still capable of living anywhere we choose. We just need bigger and better sea walls, flood gates, and other barriers; let the engineers figure it all out.  Eventually, however, these views will inform a more deliberate discussion about our ability to adapt to changing climate conditions—how and where shall we choose to confront Nature and how and where will we let her do as she is wont to do.  With billions of dollars at stake, this debate will get contentious, to be sure.  Climate change and weather volatility will not be easily accommodated.  The role of government in the process—as regulator, facilitator, first responder and insurer of last resort—will come under review.  The two character Chinese pictograph for the word “crisis” consists of the characters for “danger” and “opportunity.”  The crisis that is Sandy should remind us that we should not squander the opportunity to rethink our priorities and arrive at a better way to confront this danger in the future.

Massachusetts’ ambitious plan to address greenhouse gas emissions on a state-wide basis attracted private money last month to measure its success and costs.  Boston-based Barr Foundation’s grant of $230,000 will establish a “performance management tool” to track and measure the success of initiatives undertaken under Massachusetts’ Global Warming Solutions Act (“GWSA”). Supporters expect it to “serve as a national and regional model that other states can adopt to analyze” their own greenhouse gas reduction efforts. The GWSA, enacted in 2008, requires extremely ambitious reductions in greenhouse gas emissions within Massachusetts in the coming decades: an 80% emissions reduction goal by 2050 and 10-25% by 2020 from a 1990 emissions baseline  The act directed the Secretary of Energy and Environmental Affairs to set the 2020 reductions and adopt a plan for achieving them.

The planning and regulatory documents issued since enactment recognize that the success of a single state’s effort to address the causes of climate change cannot be measured by the impact of its own reductions in greenhouse gas emissions in effecting changes in the global climate. The effect will simply be too small to measure.  Instead, the state’s plan touts the beneficial effects of spurring economic development through the encouragement of green energy and other high tech businesses, the reduction of localized pollution, and the stabilization of energy prices. The success of the program in “bending the curve” of rising greenhouse gas emissions, however, rests entirely on its ability to serve as an example to other political entities – states mainly but, ultimately, geopolitical entities through broader global participation.

In December 2010, the Secretary of Energy and Environmental Affairs released the Massachusetts Clean Energy and Climate Plan for 2020 setting the reduction target at 25% below 1990 baseline. The Executive Summary summarizes reductions anticipated from existing and expected programs (table at page 6).  Policies relating to Buildings (9.8% or more than one third of the 25% reduction), Electricity (7.7%) and Transportation (7.6%) account for the vast majority of the reductions.  Within each sector, reductions are characterized as either “Existing Policy” (e.g., Federal and California vehicle efficiency and GHC standards – 2.6% reduction), “Expanded Policy” (e.g., advanced building energy codes – 1.6% reduction), or “New Policy” (e.g., Green DOT, the Massachusetts’ transportation agencies fulfillment of their sustainability commitment – 1.2% reduction).  The Barr Foundation’s grant will help create the “dashboard” that presumably will take into account the likelihood of adoption of new programs or the expansion of existing ones and the ultimate efficacy of any of the programs, as it tracks the progress of the Massachusetts program.

Efforts to track the success of the Massachusetts program will build on the work done by MassINC, a Boston-based “independent think tank” that earlier this year released a book-length report titled “Rising to the Challenge/Assessing the Massachusetts Response to Climate Change.” This very thoughtful work looks specifically at Massachusetts’ progress to date and likely future success in emission reductions in various sectors; it provides useful capsule descriptions of other state’s programs and of regional and foreign initiatives. And it discusses the crucial issue of the economic costs and benefits of the program, as that will be a prime determinant of the program’s ability to be a role model for other jurisdictions. 

The MassINC report recognizes that data on the subject of economic costs and benefits are subject to extremely complex and differing interpretations.  The report notes there is general agreement in Massachusetts that “it is desirable to reduce greenhouse gases and develop clean energy [,] it is more difficult to reach consensus when the subject turns to the cost of addressing climate change ….”   Id. at 75.  Nonetheless, a convincing explanation of the specific costs and benefits of various courses of action is a necessary component of any successful program because the ultimate effectiveness of a state’s program rests on its attractiveness as a model for other jurisdictions – including those with different views of the appropriate tradeoffs between environmental protection and economic development.

Sunday’s New York Times had an op-ed piece by Cass Sunstein, recently departed head of the Office of Information and Regulatory Affairs, advocating for sensible measures to address global climate change. Sunstein’s argument is that

"Economists of diverse viewpoints concur that if the international community entered into a sensible agreement to reduce greenhouse gas emissions, the economic benefits would greatly outweigh the costs."

I don’t disagree with anything he says; I only wonder whether anyone is paying attention. On one hand, while Sunstein notes that President Obama supports cost-benefit analysis, Democrats in Congress – and many environmentalists – have long been skeptical, treating environmental questions as moral issues that should not be subject to something as crass as cost-benefit analysis.

Republicans used to support cost-benefit analysis. Indeed, Sunstein opens the op-ed with a discussion of the Reagan administration’s support of the Montreal Protocol on ozone-depleting chemicals. However, for the past ten years or so, Republicans have abandoned cost-benefit analysis for something much simpler – cost analysis. Today, if regulations cost too much – whatever that means – then they are “job-killers” and thus bad, even if the benefits exceed costs, sometimes by several multiples.

Maybe four years at MIT brainwashed me into blind acceptance of quantitative analysis, but this stuff doesn’t seem that hard to me. It is profoundly depressing that a significant number of environmentalists look only to the benefits of environmental regulation, while a similar percentage of conservatives now only look at its costs.

Somehow, we’ve got to get the twain to meet.

In February 2010, the U.S. Securities and Exchange Commission (“SEC”) issued interpretive guidance that clarified corporate disclosure obligations regarding climate change-related risks and opportunities. While the guidance didn’t create any new legal requirements, it indicated that climate-related issues can have a material impact on companies that requires appropriate disclosure. It also offered examples of the ways in which companies may be impacted, including from regulations, international accords, litigation, and physical impacts from water quality and quantity issues. 

A recent Ceres report, “Physical Risks from Climate Change: A Guide for Companies and Investors in Disclosure and Management of Climate Impacts,” released in May 2012, highlights the economic impacts of extreme weather events on companies and their supply chains in seven key sectors.

More than two years after the release of this guidance, what is the state of corporate disclosure on climate change issues? Two recent reports by Ceres examined climate-related disclosure in multiple sectors.

“Clearing the Waters: A Review of Corporate Water Risk Disclosure in SEC Filings,” released June 18, 2012, examined corporate disclosure on a key climate-related issue—water risks—to see what impact the interpretive guidance had on disclosure practices. The report analyzes changes in water risk disclosure by more than 80 companies in eight water-intensive sectors: beverages, chemicals, electric power, food, homebuilding, mining, oil and gas, and semiconductors. It found that significantly more companies are disclosing exposure to water risk in 2011 compared to 2009, with a focus on physical risk. For example, 87 percent of companies surveyed now report physical risk exposure versus 76 percent in 2009, with the biggest increases coming from the oil and gas sector. There was also a meaningful increase in the number of companies connecting water issues to climate change as part of a long-term trend.

The report recommends, however, that companies make further efforts to include quantitative data and performance targets in financial filings to clarify how they are actually responding to these water-related risks. Without this level of specificity, as well as more information on water management systems, it remains difficult for investors to incorporate these factors into their decision-making. 

Another new Ceres report, “Sustainable Extraction? An Analysis of SEC Disclosure by Major Oil & Gas Companies on Climate Risk and Deepwater Drilling Risk,” released August 2, 2012, examines climate change disclosure in one carbon-intensive industry: oil and gas. The report examined the financial filings that ten of the world’s largest oil and gas companies filed in 2011, a year after the interpretive guidance was issued. While six of the ten companies provided fair disclosure on efforts to manage their own greenhouse gas emissions, the disclosures reviewed in the report were generally disappointing. Particularly on regulatory risks—both direct and indirect—the level of specificity, comprehensiveness, and quality of analysis varied widely across the ten companies’ filings, showing a clear need for further attention and due diligence on material climate risks.

Climate change is a complicated issue for companies to address in their financial filings, particularly with emerging and shifting regulatory regimes and the complexity of modeling the physical impacts of a changing climate. Good climate disclosure that meets the requirements of the SEC guidance and is useful to investors requires the collaboration of a company’s senior legal, environmental, financial and operational managers and advisors. The above-referenced Ceres reports provide a window into the current state of climate-related disclosure and offer recommendations for companies to improve how they address their climate-related risks.

Last week, the District Court for the District of Columbia dismissed the so-called “public trust” climate change law suit. I will certainly give the plaintiffs in these cases credit for both originality and persistence. Legal merit and good public policy are another matter.

In any case, the plaintiffs sued EPA and various other federal agencies, seeking a finding that the agencies have failed adequately to protect a public trust asset, also known as the atmosphere, from climate change. The plaintiffs requested an injunction requiring that the agencies take actions necessary to reduce CO2 emissions by 6% yearly, beginning in 2013.

It did not take the Court long to dismiss plaintiffs’ arguments – and the case. The Court’s opinion has two critical holdings. First, since there can be no diversity action against the United States, the plaintiffs do not have access to federal courts unless there is a federal question. However, as the Court noted, the public trust doctrine is a creature of state law; there is no federal public trust doctrine.

Secondly, the Court concluded that, even if there ever had been a federal public trust doctrine, any such doctrine has been displaced by the federal Clean Air Act. Here, the Court relied squarely on the Supreme Court’s recent decision in American Electric Power v. Connecticut. The plaintiffs here tried to limit AEP to displacement of public nuisance claims, but the Court was having none of it, pointing out that AEP clearly stated that it was not federal public nuisance claims that were displaced by the CAA, but federal common law claims generally that were displaced.

Moreover, notwithstanding the plaintiffs’ creativity, the Court noted that:

"The question at issue in the Amer. Elec. Power Co. case is not appreciably different from the question presented here—whether a federal court may make determinations regarding to what extent carbon-dioxide emissions should be reduced, and thereafter order federal agencies to effectuate a policy of its own making. The Amer. Elec. Power. Co. opinion expressed concern that the plaintiffs in that case were seeking to have federal courts, in the first instance, determine what amount of carbon-dioxide emissions is unreasonable and what level of reduction is practical, feasible and economically viable."

And that really is the issue. Even if one believes that the government should be taking more aggressive action on climate change – and I certainly am among those who think it should be doing so – having the courts decide what level of reductions are necessary, and by when, is nuts. It’s just not a way to make public policy on the most complex environmental issue of our time.

Back to the drawing board for citizen plaintiffs. I can’t wait to see what they come up with next.

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

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

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

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

Those bucks stop with each of us and this generation.

April 22, 2012 was the 42nd Earth Day, an event that passed with limited notice by most Americans and the news media. For all but a few of us who work in the field, the environment is no longer a “top 10” issue. Yet objectively, the planet is in materially worse shape than it was on the first Earth Day in 1970. As a species, we are collectively destroying the earth’s natural systems, plundering its resources and squandering its natural capital at an accelerating and unsustainable rate. The “Tragedy of the Commons” that Garrett Hardin wrote so eloquently about in advance of the first Earth Day is rapidly unfolding just as he predicted.  

On a global scale, the earth’s ecosystems are under siege.  With a human population of 7 billion, and headed for at least 10 billion fairly soon, growing greenhouse gas emissions and resultant climate change, increasing regional water scarcity, and growing global competition for dwindling resources, the trends are to put it mildly, not looking good.  It has been estimated that we are now consuming the planet’s resources, emitting pollutants and generating waste at about 1.5 times the earth’s carrying capacity. The “externalities” of our ever growing global economy are overwhelming the earth’s ability to assimilate them.
[For a fairly comprehensive and sobering account of the causes, effects and trends of global environmental degradation, I recommend Paul Gilding’s recent book, The Great Disruption.]

If we continue on our present course, our environmental, social and economic systems appear to be headed for collapse, or at least some very rough sledding with unacceptably high (and of course, inequitably distributed) human and ecological casualties.  Catastrophic and irreversible climate change is a growing possibility, if not a probability, without fundamental changes in how we use energy.  After more than 40 years of effort, and a proliferation of “green” policies and initiatives, we are clearly losing the war of environmental protection and conservation.  This is particularly disquieting for those of us who work in the environmental profession, supposedly understand these issues, and presumably care about the real world outcomes.

READ FULL POST

There is no alternative.  Whatever the causes, pace or impacts of climate change, people, cultures, economies and eco-systems will adapt to climate change as it occurs.  What’s in question is where, how much and when adaptation will occur and with what strategic planning, distribution of costs and injury.

To date, the inevitability of adaptation has been over-shadowed by the attention to efforts to prevent global warming.  Scary projections of flooded coastal cities and wholesale ecological change have been used more to support campaigns to reduce CO2 emissions than to promote serious planning for ocean rise and changed eco-systems.  Adaptation planning has not been the priority and has even seemed a cop-out.  But as hopes to prevent or slow climate change are not realized, adaption planning is emerging as a priority.

Indeed, behind the headlines efforts to plan for adaptation are already underway.  President Obama’s initial support for cap and trade got the attention.  But he also issued an Executive Order establishing a Climate Change Adaptation Task Force that is coordinating very significant federal efforts to gather data and plan for adaptation.   Many of those efforts are collected at EPA’s webpage on adaptation.  More than a dozen states have commissioned adaptation plans, e.g., the Massachusetts Climate Change Adaptation Report.  Some universities have developed programs focused on adaptation planning, e.g., UNC’s Center for Law, Environment, Adaptation and Resources (CLEAR).  Insurers and re-insurers, public authorities responsible for long-term infrastructure, and societies of professionals such as engineers and others are putting serious consideration into what adaptation will require over time by way of changed standards for public works and buildings. 

These efforts do not yet amount to a broad plan, but are laying the foundations for adaptation planning to seep broadly into capital planning and resource protection efforts across all facets of our economy.  Compulsory central planning is probably not a politically acceptable option – but the inevitability and breadth of adaptation efforts mean that millions of decision-makers still will plan for adaptation over time.

For some advocates of greenhouse gas regulation, tort law has become the primary vehicle to achieve their goal.  Dissatisfied with their progress in the political branches, they’ve begun presenting their claims to courts as tort lawsuits.  When the claims are rejected, they repackage them in different common-law wrappings and sue again. 

The first of these suits was Connecticut et al. v. American Electric Power Co. et al. (“AEP”) (dismissed by the U.S. Supreme Court earlier this year), in which several States and land trusts sought to declare greenhouse gas emissions a common law “nuisance” and secure an injunction capping emissions from a small group of national electric utilities at levels the plaintiffs deemed “reasonable.”  Next came Comer et al. v. Murphy Oil USA et al., where a group of Mississippi landowners sued the same utilities, and scores of other companies, for damages caused by Hurricane Katrina, claiming that the defendants’ greenhouse gas emissions constituted a common law “nuisance,” a “trespass,” and “negligence.”  (After dismissal by the district court and Fifth Circuit, the plaintiffs simply refiled the case—motions to dismiss again are in briefing).  Next, in Native Village of Kivalina v. ExxonMobil Corp. et al., an Alaskan village relied on many of these same common law theories, with allegations of a “conspiracy” added for good measure, suing many of the same defendants for costs the village would purportedly incur protecting itself from storms and other risks they attributed to climate change.  (The district court’s dismissal was recently argued to the Ninth Circuit.)  While courts have thus far rejected all of these suits at the pleading stage, the complaints reflect a continuing trend towards regulation by litigation, in which individual groups of plaintiffs endeavor to advance policy goals through common law actions.

The most recent case is Alec L. et al. v. Jackson et al.  Casting aside even the pretense of a traditional tort case, where one party seeks relief for damages caused by another party’s conduct, the plaintiffs in Alec L. are suing five federal Executive Branch agencies (the Environmental Protection Agency, Department of Defense, Department of the Interior, Department of Commerce, and Department of Agriculture), and explicitly seek an order directing those agencies to promulgate regulations addressing greenhouse gas emissions.  Relying on the “public trust doctrine,” an archaic common law concept rarely cited in modern court decisions, the plaintiffs assert that the federal government holds the atmosphere “in trust” for the public, and that these agencies therefore have a fiduciary obligation to protect the atmosphere from greenhouse gas emissions.  In particular, they ask the court to order the agencies to impose immediate and drastic restrictions on greenhouse gas emissions in this country (6% annually), with the ultimate goal of virtually eliminating the use of conventional fuels by the end of the century.

There is no reason to think that the claims in Alec L. will fare any better than those in the other tort cases discussed above.  All of these claims seek to impose liability for global climatic conditions that are attributable (if at all) to greenhouse gas emissions from billions of sources around the planet over the course of centuries, not to any particular, small group of defendants.  Moreover, they would all put a federal court in the position of making fundamental policy determinations regarding the proper regulatory approach to issues of national and international importance, ordinarily reserved for the political branches.  Indeed, in this respect, the claims in Alec L. are even more difficult to rationalize than those in AEP, as Alec L. asks the court to commandeer and control agencies of the federal government in a manner directly contrary to pre-existing statutory mandates and executive directives.  However, what Alec L. does show is that advocates for greenhouse gas regulation, undiscouraged by their lack of reception at the Supreme Court earlier this year, will continue re-wrapping their claims to send them to more courts.

According to news reports of the December 21 opinion rendered by the European Court of Justice, the ECJ’s decision upheld imposition of the European Union’s Emission Trading Scheme (“ETS”) upon non-EU airlines that take off or land at airports in an EU member state.  However, those news reports fail to note what the ECJ did not decide.

In December 2009 the Air Transport Association of American and three US member carriers brought suit in the UK against the UK Secretary of State for Energy and Climate Change to reverse inclusion of non-EU airlines in the EU ETS.  They argued that such inclusion violated the US/EU Open Skies Agreement precluding the signatories from imposing import restrictions, taxes, duties, and similar fees and charges on fuel used by air carriers in international air transport.  They also argued that such inclusion violated the Chicago Convention and the Kyoto Protocol.

The Chicago Convention provides for adoption of international standards and recommended practices on air navigation “safety, regularity, and efficiency” by the International  Civil Aviation Organization (ICAO), a United Nations specialized agency that oversees civil aviation.  The ICAO has adopted aircraft noise and engine emission standards in Annex 16 to the Convention.  The Chicago Convention also provides for resolution of signatory country disagreements over interpretation or application of the Convention and its Annexes by decision of the ICAO Council which can then be appealed to an arbitral tribunal or to the Permanent Court of International Justice (now the International Court of Justice).  The Kyoto Protocol in turn provides for signatory states to address limitations on or reductions to greenhouse gas emissions from aircraft fuels through the ICAO.

For several years member signatories to the Chicago Convention have been considering mechanisms to address greenhouse gas emissions from commercial carriers.  Spurred on by EU plans to impose its ETS on non-EU airlines, the ICAO hopes to have a mechanism in place by the end of 2012 for ICAO decisionmaking at its 2013 meeting.  At the present time a number of market based mechanisms are being considered, including some form of emission trading, carbon taxes on fuel use, levies on departing passengers and cargo, and carbon offsets.  The EU has said that it would exempt non-EU carriers from the EU ETS if they adopt “equivalent” measures.

In its decision the ECJ concluded, in the context of the UK court’s preliminary ruling, that it cannot examine the validity of the ETS under the Chicago Convention because the EU (as opposed to the EU member states who would perform their obligations under that Convention) was not a signatory to, and thus not bound by, the Chicago Convention.  It also concluded that the Kyoto Protocol provisions for addressing greenhouse gas emissions from aviation fuel through the ICAO “cannot . . . be considered to be unconditional and sufficiently precise” to be relied upon by the plaintiffs in contesting application of the EU ETS.  Thus, its rulings were limited to consideration of the Open Skies Agreement and customary international law.  With respect to the former, the ECJ concluded that the tax and fee exemption for aircraft fuel used by carriers engaged in international travel between the EU and the US does not prohibit implementation of the EU ETS.  The court likewise concluded that the EU Directive imposing the ETS was valid under customary law principles.

It remains to be seen what path the plaintiffs, or other interested countries or carriers, may choose to take regarding the court’s interpretation of the Open Skies Agreement and customary international law as they apply to the EU ETS.  Even more interesting is the question of how the ECJ interpretation relates to the decisionmaking power vested in the ICAO.  It is of course possible that the ICAO will implement “equivalent” measures for addressing greenhouse gas emissions before any further judicial decision is rendered.  Nevertheless, additional legal action is highly likely, given the number of interested parties.

The 17th Conference of the Parties (COP 17) under the United Nations Framework Convention on Climate Change (UNFCC) ended last Sunday, December, 11, 2011, in Durban, S.A.  Some commentators have condemned the outcome as a sham that allows nations to continue emitting greenhouse gases (ghgs) at will for the indefinite future; others have celebrated it as a major step toward binding emissions limits for both developed and developing nations.  Only time will prove which view is correct. 

 In force since 1994, with over 190 parties, the UNFCC established the objective of stabilizing concentrations of ghgs in the atmosphere “at a level that would prevent dangerous anthropogenic interference with the climate system,” which the current consensus translates as  an increase of no more than a 2 degrees Celsius (2C) above pre-industrial levels.  The UNFCC made a sharp distinction between the commitments of developed countries (listed in Annex 1 of the agreement and often referred to as “Annex 1 countries”) and those of developing countries, including major greenhouse gas emitters such as China and India.  The UNFCC obligated only developed countries to take steps to limit their greenhouse gas emissions, and that obligation was unquantified and unenforceable. 

The 1997 Kyoto Protocol quantified emission reduction targets for Annex 1 countries and included a provision for holding Annex 1 parties accountable for missing their targets.  Nevertheless, the Protocol addresses less than one-third of global ghges.  Those outside its jurisdiction include not only the United States, the world’s second largest ghg emitter, but also China and India, now the world’s first and third largest ghg emitters respectively. 

Developing countries’ resistance to binding limitations has been formidable, based on their claim to economic development comparable to that already enjoyed by Annex 1 countries and on their smaller historic contribution to increased ghg concentrations.  But at Durban, that resistance cracked, with help from a bit of lawyerly wordsmithing.  An early draft of the decision document outlining a “platform for enhanced action” called for negotiation of an agreement to reduce ghg emissions in the form of “a protocol, another legal instrument or a legal outcome under the [UNFCC] applicable to all Parties.”  Reportedly India had insisted on including “legal outcome” in this wording in order to make room for voluntary commitments.  That brought objections from others insisting on binding commitments from all parties.  In the negotiating huddle, someone suggested “outcome with legal force” as an alternative, and the parties bought it.  The Washington Post identifies the source of the key compromise language as State Department lawyer Susan Biniaz.  With that inspired piece of lawyering, she opened the door to the next phase of global climate change negotiations.

There is still much uncertainty going forward.  The agreement reached at Durbin is only an agreement to negotiate and is itself non-binding, as economist Robert Stavins has pointed out.   The targets remain to be negotiated.  Non-binding “pledges” of reductions through 2020 previously submitted by the parties would affect future emissions only modestly.  The United Nations Environmental Programme estimates that, even if carried out, these pledges would fall well short of reductions consistent with limiting global warming to 2C.  And finally, there is the uncertainty about the key phrase – “outcome with legal force.”  Does it resolve differences, pointing the way toward binding commitments while giving developing nations some cover, or does it merely paper over disagreements about the nature of the undertakings expected of the parties that will emerge again in force when the negotiations get serious?  Time will tell, but at least the lawyer’s work has given us room to hope. 
 

By Joseph Manko - Manko, Gold, Katcher & Fox, LLP

While climate change skeptics continue to dispute the linkage between climate change and greenhouse gas emissions, others throughout the scientific community continue to report on problems being caused by climate change and to call for a serious assessment of what can be done to adapt to these changes in climate.  The following are a few examples of recent reports on climate change impacts and calls for adaptation to those impacts.

The National Oceanic and Atmospheric Administration (NOAA) concludes that the temperature in the first decade of the 21st century (2000-2010), averages 1.5 degrees Fahrenheit above that of the 1970s.  Without including the record high temperatures in the first half of 2011, satellite data indicate that the earth’s groundwater is being depleted.  In addition, a report by the PEW Center on Global Climate Change concludes that climate change is increasing the frequency of extreme weather events (e.g., wildfires in the southwest, flooding in North Dakota and myriad tornadoes, heat waves, and heavy precipitation) and calls for the entire community to join with the scientific community not only to determine the resultant damage and debate its causes, but also to decide how best to respond by means of adaptation.

Areas of adaptation include reducing our reliance on fossil fuel and our demand for electricity while increasing green practices (to further reduce the emission of greenhouse gases).  Those leading the “adaptation discussion” also call for efforts to make certain that our infrastructure is protected from climate change by focusing on its repair, restoration, and -- in some instances -- relocation.

Accomplishing these adaptive practices in “normal times” would be tough.  It is even more difficult to make progress, though, in the height of a recession, with legislators at both the federal and state level facing persistent gridlock and reduced budgets for infrastructure improvements (e.g., EPA’s Federal Clean Water and Drinking Water State Revolving Funds).

Reversing the Second Circuit, the U.S. Supreme Court held that the Clean Air Act displaces any federal common-law right to seek abatement of carbon dioxide emissions from fossil-fuel fired power plants. American Electric Power Co., Inc., et al. v. Connecticut et al., (No. 10–174, June 20, 2011).

Two groups of plaintiffs including eight states filed complaints in a Federal District Court against five major electric power companies. The complaints alleged that the defendants are the largest emitters of carbon dioxide in the U.S. and that the defendants’ emissions substantially and unreasonably interfered with public rights by contributing to global warming, in violation of the federal common law of interstate nuisance. Plaintiffs sought for a decree setting carbon-dioxide emissions for each defendant. The District Court dismissed both suits as presenting nonjusticiable political questions, but the Second Circuit reversed and held that the plaintiffs had stated a claim under the “federal common law of nuisance” and that the Clean Air Act did not “displace” federal common law.

In a decision announced on June 20, 2011, the Supreme Court reversed. The court started from the proposition that, since Erie R. Co. v. Tompkins, a new federal common law has emerged for subjects of national concern, citing Milwaukee I. But recognition that a subject is proper to be governed by federal law does not necessarily mean that federal courts should create the controlling law.

The test for preemption by Federal legislation, the court held, is whether the statute “speak[s] directly to [the] question” at issue. Here, Massachusetts v. EPA made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Clean Air Act. The Act directs EPA to establish emissions standards for categories of stationary sources that, “in [the Administrator’s] judgment,” “caus[e], or contribut[e] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Once EPA lists a category, it must establish performance standards for emission of pollutants from new or modified sources and existing sources within that category. The Act itself thus provides a means to impose the same relief plaintiffs seek by invoking federal common law.

The Court rejected the Second Circuit’s holding that federal common law is not displaced until EPA actually exercises its regulatory authority by setting emissions standards for the defendants’ plants. The relevant question for displacement purposes is “whether the field has been occupied, not whether it has been occupied in a particular manner.” Here, Congress delegated to EPA the decision whether and how to regulate carbon dioxide emissions from power plants.

Finally, the court stated that the Act’s prescribed order of decision making—first by the expert agency, and then by federal judges—is another reason to resist setting emissions standards by judicial decree under federal tort law. Echoing some of the comments during oral argument, the opinion states that the appropriate amount of regulation in a particular greenhouse gas producing sector requires informed assessment of competing interests. The expert agency is surely better equipped to do the job than federal judges, who lack the scientific, economic, and technological resources an agency can utilize in coping with such issues.

The Second Circuit did not decide plaintiffs’ claims under state nuisance law. Because none of the parties have briefed preemption or the availability of a claim under state nuisance law, the Supreme Court left that issue for consideration on remand.

Ginsburg, J., delivered the opinion of the Court, in which Roberts, J., and Scalia, Kennedy, Breyer, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined. Sotomayor, J., took no part in the consideration or decision of the case.

Perhaps the most interesting recent injection of constitutional law into environmental policy involves the use of the political question doctrine regarding common law claims. For a half decade, states and individuals have turned to common law causes of action for redress in climate litigation. See James R. May, Climate Change, Constitutional Consignment, and the Political Question Doctrine, 85 Denv. U. L. Rev. 919 (2008). Federal common-law causes of action, including those for public nuisance, provide potential—although imperfect and problematic—means for judicial cognizance of and redress for these effects. See id. Nonetheless, some federal courts have determined the seldom used “political question doctrine” bars them from “entering the climate change thicket,” reasoning the matter is consigned to the coordinate branches of government. Id. at 957-59.

This legal development is astonishing, because until recently the political question doctrine had touched only about a half dozen matters—including matters which are demonstrably committed to a coordinate branch of government, require an initial policy determination, lack ascertainable standards, or could otherwise result in judicial embarrassment—that are nonjusticiable. Baker v. Carr, 369 U.S. 186, 217 (1962). For example, the Court has recognized executive power over foreign affairs, impeachment, and treaty abrogation as political questions into which courts ought to decline jurisdiction, finding them to be consigned to the elected federal branches of government under the “political question doctrine.” James R. May, Constitutional Law and the Future of Natural Resource Protection, in The Evolution of Natural Resources Law and Policy 124, 146 (Lawrence J. MacDonnell & Sarah F. Bates eds., 2009). Climate change litigation has now entered this mix, most recently in Connecticut v. American Electric Power Co., Civ. Action No. 10-174.

In the case below, American Electric Power Co., 582 F.3d 309 (2d Cir. 2009), the Second Circuit held no aspect of the political question doctrine applied to enjoin judicial review. In particular, the circuit court found climate change is neither constitutionally consigned to the elected branches, nor prudentially left to them. The utility defendants filed a petition for certiorari to reverse the Second Circuit’s ruling, arguing (1) states and other plaintiffs lack standing, (2) federal law preempts plaintiffs’ claims, and (3) the case raises nonjusticiable political questions. Connecticut v. American Electric Power Co., Petition for Certiorari, Civ. Action No. 10-174; AEP Cert. Petition at i, 13, 20, and 26. In late August 2010, the Obama Administration filed a brief in support of the utility defendants’ petition, arguing plaintiffs lack prudential standing, and federal law displaces the need for common law causes of action for climate change. Brief for Tenn. Valley Auth. in Supp. of Pet’rs , Connecticut v. American Electric Power Co., No. 10-174. In its brief, the U.S. Solicitor General’s Office argues (i) first plaintiffs lack prudential standing under the standard articulated in the First Amendment Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) decision—and largely for the same non-justiciability reasons defendants argue in favor of applying the political question doctrine; and (ii) second, EPA activities during the last 12 months, including the final reporting rule, the proposed tailoring, cement kiln, and light duty truck emission rules, and other activities displace the need for common law causes of action under the standards set in the Court’s Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1 (1981) and Milwaukee v. Ill., 451 U.S. 304 (1981) decisions.

The U.S. Supreme Court has agreed to hear the case, with Justice Sotomayor recusing herself, which seems to increase the prospects of a 4-4 split. Oral argument in the case is set for April 19, 2011. Whatever the Court decides in AEP v. Connecticut is sure to rock the foundation of climate law and policy for many years – perhaps generations – to come.

Last year, the U.S. Securities and Exchange Commission (“SEC”) issued interpretive guidance on climate change-related disclosure, a significant step towards focusing companies on addressing this important issue and improving the quality of the information available to investors on this subject. While this guidance caused some companies to reevaluate and improve their disclosure practices, overall disclosure of the risks and opportunities presented to companies by climate change remains inadequate.

That is the finding of Disclosing Climate Risks & Opportunities in SEC Filings: A Guide for Corporate Executives, Attorneys & Directors, a new Ceres report intended as a practical guide for companies and their advisors on how they should respond to the SEC disclosure regulations and the interpretive guidance, so that they can ensure they are disclosing all material climate-related information.

Developed with input from members of the Ceres Investor Network on Climate Risk (INCR), which includes 95 investors managing over $9 trillion in assets, the report offers the investor perspective on climate-related disclosure. It closely examines the disclosure practices of over a dozen companies across multiple sectors, highlighting some industry leaders—like electric power company AES Corp. and technology company Seimens—for disclosure that quantifies material climate issues and provides additional important details.

However, in the case of every company examined, there was room for improvement. And the report found that for many companies, disclosure was non-existent or unhelpful boilerplate. The main takeaways from the report are that companies should be doing more comprehensive analysis of climate risks and opportunities applicable to their business, compiling more consistent and quantified information, and that they should be disclosing it where investors look to find it, both in their voluntary reporting and, where material, in their annual mandatory filings.

ACOEL piece on SEC guidance available here.

Disclosure report is available here.

I am sure that the many supporters of greenhouse gas regulation are depressed at the apparent failure of a comprehensive climate change law at the federal level, and guess that many of them blame corporate America and “misguided” conservatives, based on my read of the popular press. Climate change legislation has carried a substantial price tag.

“If the American people only knew how bad it was and is likely to get, the public would be willing to pay a lot,” climate change advocates might object. “And they ‘got it’ in California, and rejected the proposed suspension of the 2006 Global Warming Solutions Act until the unemployment rate fell.”

But is it the state of the national economy – a temporary phenomenon -- or is it a reflection of lack of national consensus that the costs of a climate change law are currently perceived as unbearable under most circumstances? How much are we willing to pay for environmental protection anyway?
 

Putting aside the very important questions of whether we have accurate information on risks and costs, we typically make personal decisions based on perceived risk -- and guess at costs. And we are able to do so as a society when we have consensus on those perceived risks and general cost estimates.

My view is that Americans decide to pay for environmental protection only when we are pretty confident it won’t adversely affect us economically and even then only when it is an apparent crisis. It is pretty clear there is no consensus we are in crisis over climate change, but there is a broader question on whether Americans are willing to pay costs for environmental protection even when the risks are generally acknowledged as real.

The major national environmental laws were passed when there was a national consensus that action was absolutely necessary. The Clean Air Act was adopted when air was visibly dirty and pollution inversions were not uncommon, the Clean Water Act when significant rivers were polluted or catching fire, and TSCA when PCBs were deemed an actionable threat. Costs were significant but bearable overall in the robust national economy, and there were large gains in pollution control obtainable even though the cost significantly impacted some businesses and industries. Climate change legislation has seemingly threatened significant cost increases for most consumers – you can even find blogs on it. Consumers happen to be voters, and (outside of California) until convinced there is a real problem and a solution they can afford, my guess is that national climate change legislation won’t get popular support. (The author hales from California, and therefore feels free to acknowledge that the state has only a passing similarity to, and relationship with, the other 49 states.)

What about requiring vehicle emissions testing and certifications of efficiency? Some states have such programs as required under the CAA, consistent with the fact that cost-effective air emission reductions are achieved, compared to the hammering local industry further to lower pollution. A number of states do not have vehicle emissions testing, and three states (including Florida and Minnesota) have discontinued testing. Maine tried a program years ago, but quickly abandoned it when consumers protested that they had to wait in lines, pay for testing, and in some cases got inconsistent results. No such legislation has been reproposed in the Pine Tree State. Ironically, many Mainers are proud of their (otherwise) stringent environmental laws.

Indoor radon gas has been widely recognized as a serious health issue by environmental professionals where it exists, but there is no comprehensive radon testing requirement, much less a remediation requirement. The risks are real, but how do you perceive a threat from an invisible, odorless gas?

Lead paint exposures have long been perceived as posing local but material risks for anyone living in housing stock of a certain age, given the historic use of lead paint and depending upon its condition. Most states don’t require testing or remediation or encapsulation of lead paint. Just a guess: it will cost some real money.

Watch the national environmental debate, and see if Americans are making decisions based on the condition of the family budget.
 

The climate change debate soldiers on, despite set-backs at the national level. The California Air Resources Board, for example, has released the first state level cap and trade proposal, which remained open for public comment until December 15, 2010. Despite a handful of such gallant efforts to address global warming through legislative means, few, if any, political attempts to address the issue have succeeded. Perhaps this is a reflection, as recent polls suggest, of a waning public belief, at least in some circles, that global warming is man-made. Equally likely, however, is wide spread economic distress, which takes immediate precedence in the lives of many.

Since pervasive legislative solutions to global climate change do not seem to be in the offing, perhaps the time is upon us to examine and adopt an approach to carbon emissions concerns which is scientifically effective and cost-effective alike. Rather than implementing grand political initiatives such as cap and trade, perhaps we should think about implementing measures which can be implemented by individuals and communities at the local level. Measures such as painting the roofs of buildings in hot climates white, implementation of passive solar heat collection in homes and businesses, lowering thermostats in the winter and carpooling can all be implemented inexpensively or can actually save money, while at the same time having the direct effect of reducing carbon emissions. Personally, I have always been a big proponent of the use of public transportation. It makes both economic and environmental sense and certainly reduces an individual's carbon footprint.

In short, there are measures which we, as individuals, and more collectively, as communities, can do which address climate change that can be effective yet would not have negative economic consequences. While such measures will never replace legislative solutions, they are a step in the right direction while we await the enactment of more comprehensive legislative responses.

The US hasn't licensed a new nuclear power plant in a quarter-century. Most people have forgotten the plants even exist – but they might be coming back. In the last couple of years, the Nuclear Regulatory Commission has received more than twenty new plant applications.

Are we ready to go nuclear again?

The US has about 100 nuclear plants in operation today, generating around 20% of the nation's electricity. Most plants were built in the 1960s and 1970s, and will need to be replaced before too long. Far more plants have been built abroad, and many of them will need to be replaced too.

Replacing worn-out nuclear plants with new ones is very controversial, at least in the US. Our colleague, Michael Gerrard, will explore the controversy by hosting a debate on nuclear power at Columbia Law School on Monday, November 29th from 7 to 9 PM. The debate will be webcast live, and a video will be posted on the website of the Center for Climate Change Law. Contact Ashley Rossi at arossi@law.columbia.edu for more info.

In the meantime, how can we learn what to believe — and what not to? Fortunately, in 2007 the Keystone Center conducted a "joint fact-finding" to identify facts upon which people with different policy goals could absolutely agree. The participants came from all over, ranging from utilities like Exelon and Entergy to environmental groups like Environmental Defense and the Natural Resources Defense Council. They may continue to disagree on the values implicit in their various policy goals. But it turns out that they can agree on a foundation of facts.

For example, all agreed nuclear power is in fact a low-carbon energy source that can help fight climate change. They also agreed that the global nuclear industry would in fact need to embark on a massive construction program if nuclear power is to provide even 1 gigatonne of carbon reductions (equal to just one "wedge" from the famous Sokolow & Pacala climate stabilization wedges. Here's the specific factual finding:

"The NJFF participants agree that to build enough nuclear capacity to achieve the carbon reductions of a Pacala/Socolow wedge (1 GtC/year or 700 net GWe nuclear power; 1,070 total GWe) would require the industry to return immediately to the most rapid period of growth experienced in the past (1981-90) and sustain this rate of growth for 50 years."

On another point, the participants agreed that nuclear power probably would cost between 8 and 11 cents per kilowatt/hour (kW/h) delivered to the grid. This compares to current natural gas costs of about 5 to 6 cents per kW/h. (Wind power's costs fall somewhere in between.)

On the controversial topic of using new technologies to "reprocess" nuclear fuel, participants agreed it wasn’t likely to prove economically viable:

"No commercial reprocessing of nuclear fuel is currently undertaken in the U.S. The NJFF group agrees that while reprocessing of commercial spent fuel has been pursued for several decades in Europe, overall fuel cycle economics have not supported a change in the U.S. from a “once-through” fuel cycle. Furthermore, the long-term availability of uranium at reasonable cost suggests that reprocessing of spent fuel will not be cost-effective in the foreseeable future. A closed fuel cycle with any type of separations program will still require a geologic repository for long-term management of waste streams."

Agreement on all the true facts might make it easier to resolve the debate over nuclear power's role in our energy future. To learn more about them download the Keystone Center's executive summary or the report in full.

Climate change legislation is dead for now. I won’t pretend it’s not depressing, even though I avoid the political channels and ignore the rhetoric. For those of us who haven’t refudiated climate change science, it’s a victory for the pessimists and evidence that Congress has a hard time addressing long-range problems, even if consequential.

With respect to regulation of GHG, it’s the worst of both worlds and no one should be happy (which is why I held out hope until the end that cooler heads would prevail). We’re still going to have regulation of GHG, the mechanism being EPA’s recently promulgated Tailoring Rule for GHG. One word. Ugh. Does this really make climate skeptics happy? Do they really think that they will somehow succeed in rolling back the Tailoring Rule? I don’t think so. On the other hand, we don’t have an economy-wide cap-and-trade or carbon tax regime. Are environmentalists happy? I still don’t think so. 

I’m left feeling a little like Rodney King. Certainly, the issue isn’t going to go away before the next Congress is sworn in.

As I have noted before, however, problems with climate change legislation don’t mean that Congress can’t enact legislation further regulating traditional pollutants. The three-pollutant bill now before the Senate already has a Republic co-sponsor, Lamar Alexander. Now, according to a report in E&E Daily, even Senator Inhofe is stating that he’s interested in working with Democrats to move three-pollutant legislation. Given the failure to move GHG legislation, hell is likely to get hotter before freezing over, but if Inhofe can really be brought on board, there’s no reason why legislation couldn’t pass.

Three-pollutant legislation shares one significant feature with the GHG issue. Like GHG regulation, efficient regulation is hampered by limitations in existing law, as we saw with the D.C. Circuit’s rejection of the trading regime in the CAIR regulations, and EPA’s much more limited trading program in the Transport Rule. Senator Voinovich, another Republican that three-pollutant legislation supporters would like to have with them, noted as much, saying that the transport rule would be a "stringent and inflexible regime." New legislation could provide for a more robust trading regime. We’ll see if that’s enough to bring Republicans on board.

I sure hope so. Right now, all we’ve got is a GHG regulatory program that won’t do much for climate change, but will cause my clients endless headaches, and a Transport Rule that’s probably the best EPA can do on traditional interstate pollution, but not nearly as cost-effective as it might be with new legislative authority. I remain an optimist, but sometimes it’s difficult.