<h4><em>Under review</em></h4>
<p>Legal efforts to address climate change, which is caused by <a href="#greenhouse-gas-emissions">emission of greenhouse gases</a>, started at the <a href="#international-initiatives">international</a> level with the 1992 United Nations Framework Convention on Climate Change, but have struggled to take root in the United States at the <a href="#federal-greenhouse-gas-efforts">federal</a>, <a href="#state-initiatives">regional and state</a> levels.</p>
<blockquote>
<p>Listen to and download materials from the ELI seminar <a href="http://www.eli.org/events/summer-school-climate-change-introduction">Cl… Change: An Introduction</a>. ELI members can listen to ELI’s Monthly <a href="http://www.eli.org/events/monthly-climate-change-briefing-april-2015">C… Change Briefing</a> live or through archived files to follow the latest climate change law, policy, and management developments. For an in-depth discussion of climate change law, see Tom Mounteer, <a href="http://www.eli.org/eli-press-books/climate-change-deskbook">Climate Change Deskbook</a>.</p>
</blockquote>
<h3><a name="greenhouse-gas-emissions"></a>Climate change and greenhouse gas emissions</h3>
<p>Climate change resulting from human activity is one of the most pressing and high-profile environmental issues today. The <a href="http://www.ipcc.ch/&quot; target="_blank">Intergovernmental Panel on Climate Change</a> (IPCC) drew international attention to climate change in its <a href="http://www.ipcc.ch/ipccreports/far/wg_I/ipcc_far_wg_I_spm.pdf&quot; target="_blank">1990 Assessment Report</a>, where it reported that increases in greenhouse gas (GHG) emissions were causing substantial warming of the Earth’s surface beyond what would naturally occur. The IPCC’s “<a href="http://www.ipcc.ch/publications_and_data/ar4/syr/en/contents.html&quot; target="_blank">Fourth Assessment Report: Climate Change</a>,” released in 2007, stated unequivocally that human activities are <a href="#" title="Moreover, the IPCC found that “Most of the observed increase in global average temperatures since the mid-20th century is very likely [greater than 90% certainty] due to the observed increase in anthropogenic greenhouse gas concentrations.”">causing</a> an increase in GHG concentrations: “The global increases in carbon dioxide concentration are due primarily to fossil fuel use and land use change, while those of methane and nitrous oxide are primarily due to agriculture.” U.S. government <a href="http://www.globalchange.gov/publications/371&quot; target="_blank">reports</a> concur with this assessment.</p>
<p>For a detailed discussion of the science behind climate change, see <a href="http://www.eli.org/eli-press-books/reporting-on-climate-change%253A-und… on Climate Change: Understanding the Science, 4<sup>th</sup> ed.</a></p>
<p><img src="/sites/default/files/images/taxonomy-climate-image-1.png" alt="Reconstructed Temperature" title="Reconstructed Temperature" border="0" height="369" width="500"><br>Figure 1 from IPCC Third Assessment. <a href="http://en.wikipedia.org/wiki/File:1000_Year_Temperature_Comparison.png"…;
<p>Six main greenhouse gases drive climate change, with the most significant contributor being carbon dioxide. Global Warming Potential (GWP) is a relative measure of the amount of heat that a specific gas traps in the atmosphere over specified time periods.&nbsp; The GWP of carbon dioxide is 1 because it is the baseline unit to which all other gases are compared. Methane has a lifetime <a href="#" title="To really understand how GWPs work, it is important to note that GWP changes depending on the timeframe over which it is calculated. A gas that leaves the atmosphere quickly may have a large short-term warming effect – and thus a high initial GWP - but over the long term the GWP may fall significantly as the gas leaves the atmosphere. The converse is true for GHGs that stay in the atmosphere for a long time. Gases with the highest GWPs both trap a lot of heat and linger in the atmosphere for a long time.">GWP</a> of 12 which means that methane in the atmosphere has 12 times the warming potential as carbon dioxide.</p>
<table style="border-color: #000000; border-width: 1px; border-style: solid; width: 100%;" border="1" cellpadding="0" cellspacing="0">
<tbody>
<tr>
<td style="border-color: #000000; border-style: solid; border-width: 1px;" rowspan="2">
<p align="center"><strong>GWP values and<br>lifetimes from<br>2007 IPCC<br>Assessment</strong></p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p align="center"><strong>Lifetime</strong></p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;" colspan="3">
<p align="center"><strong>Global Warming Potential Time Horizon</strong></p>
</td>
</tr>
<tr>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p align="center"><strong>&nbsp;</strong></p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p align="center"><strong>&nbsp;</strong></p>
<p align="center"><strong>20 years</strong></p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p align="center"><strong>&nbsp;</strong></p>
<p align="center"><strong>100 years</strong></p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p align="center"><strong>&nbsp;</strong></p>
<p align="center"><strong>500 years</strong></p>
</td>
</tr>
<tr>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>Methane</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>12</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>72</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>25</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>7.6</p>
</td>
</tr>
<tr>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>Nitrous Oxide</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>114</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>289</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>298</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>153</p>
</td>
</tr>
<tr>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>HFC-23&nbsp; (hydrofluorocarbon)</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>270</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>12,000</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>14,800</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>12,200</p>
</td>
</tr>
<tr>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>HFC-134a (hydrofluorocarbon)</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>14</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>3,830</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>1,430</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>435</p>
</td>
</tr>
<tr>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>Sulfur Hexafluoride</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>3,200</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>16,300</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>22,800</p>
</td>
<td style="border-color: #000000; border-style: solid; border-width: 1px;">
<p>32,600</p>
</td>
</tr>
</tbody>
</table>
<p>&nbsp;</p>
<p>Adapted from <a href="https://www.ipcc.ch/publications_and_data/ar4/wg1/en/ch2s2-10-2.html">h…;
<p>The human activities in the United States that contribute the largest portion of greenhouse gases to the atmosphere are electric power generation, transportation, industry, agriculture, and commercial buildings.</p>
<p><img src="/sites/default/files/images/taxonomy-climate-image-2.png" alt="Sources of Carbon Dioxide Emissions" title="Sources of Carbon Dioxide Emissions" border="0" height="274" width="500"></p>
<p>From <a href="http://elr.info//news-analysis/40/10547/implementing-behavioral-wedge-d…;
<p>While this list clearly illustrates that addressing greenhouse gas emissions requires efforts in the energy, transportation, building, industrial, and other vital economic sectors, everyday activities of the general population contribute significantly to GHGs as well:</p>
<p><img src="/sites/default/files/images/taxonomy-climate-image-3.png" alt="Sources of Green House Gas Emissions" title="Sources of Green House Gas Emissions" border="0" height="512" width="500"></p>
<p>From <a href="http://elr.info//news-analysis/40/10547/implementing-behavioral-wedge-d…;
<p>Thus, GHG regulation touches the entire economy and everyday choices we all make.</p>
<h3><a name="international-initiatives"></a>International Initiatives</h3>
<p>The <a href="http://unfccc.int/2860.php&quot; target="_blank">United Nations Framework Convention on Climate Change</a> (UNFCCC) was introduced in 1992 in an effort to control the emission of greenhouse gases that contribute to global climate change. The Convention established several principles for how the international would go about addressing climate change, including the notion that developed countries, who had contributed the most to global warming in the past, had a duty to take the lead in mitigating the adverse effects of climate change, also known as “common but differentiated responsibilities.” The parties to UNFCCC also agreed to develop national greenhouse gas emissions inventories, share scientific research and technology, and help create measures for climate change adaptation. None of these agreements, however, were legally binding.</p>
<p>In December 1997, the Kyoto Protocol to the UNFCCC established a binding commitment from 37 industrialized nations and the European Community to reduce <a href="#" title="Kyoto covers six greenhouse gases—CO2, methane, nitrous oxide, hydroflourocarbons, perflourocarbons, and sulfur hexafluoride.">GHG</a> emissions to an average of 5% below 1990 levels during the commitment period 2008 and 2012. These developed nations agreed to meet nation-specific targets to reduce their GHG emissions. In contrast, developing nations, even large developing nations such as India and China, were not required to meet emission reduction targets during this first round and would not be asked to meet emission targets.</p>
<p>In the summer of 1997, before the Kyoto Protocol was agreed to, the U.S. Senate on a 95-0 vote adopted a <a href="http://www.gpo.gov/fdsys/pkg/BILLS-105sres98ats/pdf/BILLS-105sres98ats…; target="_blank">resolution</a> to oppose any treaty that failed to impose similar duties on both developing and developed nations. Despite this vote, the U.S. president, Bill Clinton, signed the Protocol. However, the Protocol was never submitted to the Senate for ratification. By 2001, the United States announced that the Protocol would not be ratified. The Protocol entered into force in the ratifying countries on February 16, 2005.</p>
<blockquote>
<p>For a discussion of why the United States would not enter into the Kyoto Protocol and issues that constrain U.S. involvement in international efforts against climate change, see the suite of articles including Jody Freeman, “<a href="http://elr.info/news-analysis/41/10695/climate-change-and-us-interests"… Change and U.S. Interests</a>” and a <a href="http://elr.info/news-analysis/41/10726/reply">reply</a&gt; with responses by <a href="http://elr.info/news-analysis/41/10724/review-freeman-and-guzman%E2%80%… Hopkins</a>, <a href="http://elr.info/news-analysis/41/10720/critiquing-critique-climate-chan… Morgenstern</a>, <a href="http://elr.info/news-analysis/41/10717/response-climate-change-and-us-i… Sheeran</a>, and <a href="http://elr.info/news-analysis/41/10712/comment-climate-change-and-us-in… Johnson</a> as well as Richard Cooper, “<a href="http://elr.info/news-analysis/31/11484/kyoto-protocol-flawed-concept">T… Kyoto Protocol: A Flawed Concept</a>” and Robert Nordhaus, <a href="http://elr.info/news-analysis/30/11061/framework-achieving-environmenta… Framework for Achieving Environmental Integrity and the Economic Benefits of Emissions Trading Under the Kyoto Protocol</a>.</p>
</blockquote>
<p>The Protocol put in place <a href="http://unfccc.int/kyoto_protocol/mechanisms/items/1673.php&quot; target="_blank">three flexibility mechanisms</a> to help member countries reach emissions targets in addition to direct lowering of emissions: <a href="#" title="The emissions trading scheme is similar to the United States’ Clean Air Act Acid Rain Program. Under the Protocol, developed countries have an ‘assigned amount’ of allowable GHG emissions over the commitment period. Parties can buy and sell “assigned amount units” or other types of trading units, each of which correspond to the right to emit one CO2 equivalent ton.">emissions trading</a>, the <a href="#" title="The Protocol created the Clean Development Mechanism (CDM), which is the primary “offset” framework for helping industrialized countries achieve their reductions. In addition to reducing actual GHG output, industrialized countries can pay developing countries for certified emission reductions generated from projects that reduce GHG emissions in those countries—which is called an offset. CDM projects must show that the reductions achieved are above and beyond any that would otherwise occur—a concept called additionality. In other words, to get credit for reducing emission an investing country has to show the reduction was because of the collaboration and investment from an outside party and that but for that reductions would not have occurred. The CDM has met with significant controversy as implemented to date.">clean development mechanism</a>, and <a href="http://ji.unfccc.int/index.html&quot; title="Joint implementation allows two developed countries to transfer emission reductions.">joint implementation</a>.</p>
<blockquote>
<p>For a discussion of how offsets might work in the United States, see Kyle Danish, “<a href="http://elr.info/news-analysis/40/10610/international-offsets-and-us-cli… Offsets and U.S. Climate Change Legislation</a>.</p>
</blockquote>
<p>The first compliance period of the Kyoto Protocol was 2008-2012. At the <a href="http://unfccc.int/essential_background/items/6825.php&quot; target="_blank">Durban conference of the parties</a>, this was extended. The parties <a href="http://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf&quot; target="_blank">agreed</a> to negotiate by 2015 an agreement to take effect not later than 2020 that would involve both developed and developing countries to mitigate climate change and seek to keep global warming no greater than 2ºC.</p>
<p>As part of its effort to implement the Kyoto Protocol, the European Union has implemented perhaps the most advanced emissions trading scheme, the <a href="http://ec.europa.eu/clima/policies/ets/index_en.htm&quot; target="_blank">European Trading System</a> (ETS). <a href="#" title="ETS operates in 30 countries (27 EU member states plus the three additional members of the European Economic Area - Iceland, Liechtenstein and Norway) and applies to carbon dioxide (and some nitrous oxide) emissions from over 10,000 power plants, combustion plants, refineries, metal works and manufacturing facilities. In 2012, the aviation sector was added into the system, and in 2013 additional gases and industries will be added.">Europe’s</a> declared goal is for emissions in 2020 to be 21% lower than in 2005.</p>
<blockquote>
<p>For a discussion of California’s attempt to link to the ETS, see Hanna Chang, <a href="http://elr.info/news-analysis/37/10771/foreign-affairs-federalism-legal… Affairs Federalism: The Legality of California's Link With the European Union Emissions Trading Scheme</a>.</p>
</blockquote>
<h3><a name="federal-greenhouse-gas-efforts"></a>Federal Greenhouse Gas Efforts</h3>
<p>Congress has made multiple attempts to enact comprehensive greenhouse gas legislation, but so far no bill has passed both legislative houses. The most recent bill, the <a href="http://www.gpo.gov/fdsys/pkg/BILLS-111hr2454eh/pdf/BILLS-111hr2454eh.pd… Clean Energy and Security Act of 2009</a> (H.R. 2545), was passed by the House only to die in the Senate. The Act’s central mechanism was an economy-wide<a href="#" title="What is a Cap-and-Trade and How Does it Work? A GHG cap-and-trade program establishes a market whose goal is to reduce GHG emissions. The “cap” sets a limit on emissions that regulated industries can release into the atmosphere. The amount of this limit is reduced over time thus reducing the total amount of GHG emissions. The “trade” is the market that is created to allow companies to innovate in meeting their emission limit. A company that is able to adopt new mechanisms to come in under their allocated emissions limit can sell their emission credits in the market. A company that is unable to meet their emissions target must purchase credits from the market. In this way, reducing GHG emissions is economically incentivized."> cap-and-trade program</a> for greenhouse gas emissions. Under such a program, a regulatory agency sets a maximum level for annual GHG emissions and distributes emissions allowances for a specified amount of <a href="http://stats.oecd.org/glossary/detail.asp?ID=285">carbon dioxide equivalent</a>. Emitters subject to regulation must then reduce their emissions or acquire enough permits to cover their total output. The Act also included <a href="http://ase.org/resources/american-clean-energy-and-security-act-2009-ti…; target="_blank" title="Renewable Portfolio Standards set enforceable standards that require power providers to obtain energy from renewable sources. For example, in California, the goal is to have power providers in California use renewable energy sources for at least 33% of total power needs by 2020. The RPS works by 1. Setting and enforcing annual renewable energy procurement targets. 2. Approving the renewable energy procurement plans and reviewing renewable energy purchase contracts made by invester-owned utilities (IOUs). 3. Creating standard contract forms and conditions to be used by IOUs in making renewable energy purchases. 4. Determining market price referents (MPRs) for traditional, non-renewable energy sources to serve as benchmarks for pricing renewable energy.">renewable electricity generation standards</a>, a number of energy efficiency incentives, and support to industries that would be particularly affected by GHG regulation. Congress did <a href="http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bill…;, and EPA <a href="http://www.epa.gov/climatechange/emissions/ghgrulemaking.html">has implemented</a>, GHG emissions reporting.</p>
<blockquote>
<p>For a discussion of the Senate bills that addressed climate change, see Kenneth Richards, <a href="http://elr.info/news-analysis/39/10601/comparative-analysis-climate-cha… Analysis of Climate Change Bills in the U.S. Senate</a>.</p>
</blockquote>
<blockquote>
<p>For one approach to getting Congress to act on climate, and a <a href="http://elr.info/news-analysis/40/10757/genius-versus-zombies-address-cl…; to that approach, see Richard Lazarus, <a href="http://elr.info/news-analysis/40/10749/super-wicked-problems-and-climat… Wicked Problems and Climate Change: Restraining the Present to Liberate the Future</a>.</p>
</blockquote>
<blockquote>
<p>For a discussion of the EPA reporting rules, listen and download materials from the ELI Seminar <a href="http://www.eli.org/ghg-reporting-rule-so-far-lessons-learned-and-change… Reporting Rule So Far: Lessons Learned and Changes to Consider</a>.</p>
</blockquote>
<p>The <a href="http://www.epa.gov/&quot; target="_blank">Environmental Protection Agency</a> is currently regulating GHGs under the <a href="http://www.eli.org/keywords/air-1">Clean Air Act</a><a href="#_msocom_16"></a>. While the Clean Air Act regulates many forms of air pollution, it does not mention GHGs by name. On October 20, 1999, a group of private non-profit organizations petitioned EPA to begin regulating greenhouse gas emissions from automobiles as air pollutants under the Clean Air Act. After EPA determined that GHGs were not “air pollutants” subject to CAA regulation and denied the petition, these groups were joined by several states, cities, and citizens’ groups seeking review of EPA’s decision in federal court. In the landmark 2007 decision <a href="http://scholar.google.com/scholar_case?case=16923241216495494762&amp;hl… v. EPA</em></a><a href="#_msocom_17"></a>, the <a href="http://www.nationalaglawcenter.org/assets/crs/RS22665.pdf&quot; target="_blank">Supreme Court held</a> GHGs <em>can</em> be regulated under the Clean Air Act, and that the plaintiffs in the case had standing<a href="#_msocom_18">[SES18]</a> to sue EPA to ask the agency to begin regulating GHGs.</p>
<p>The result of the case was that greenhouse gases from mobile sources were officially considered “air pollutants.” Under the CAA, EPA was obligated to <a href="#" title="42 U.S.C. § 7521(a)(1).">determine</a> whether they “cause or contribute to air pollution which may reasonably be anticipated to endanger health or welfare.” In December 2009, the EPA Administrator issued an <a href="http://www.epa.gov/climatechange/endangerment/&quot; target="_blank">endangerment finding</a>, declaring that “six greenhouse gases taken in combination endanger both the public health and the public welfare,” and that emissions from new motor vehicles “contribute to the greenhouse gas air pollution.”</p>
<p>In light of the endangerment finding, EPA and the National Highway Traffic Safety Administration (NHTSA), issued <a href="http://edocket.access.gpo.gov/2010/pdf/2010-8159.pdf&quot; target="_blank">regulations</a> in May 2010 regulating emissions of these GHGs from <a href="http://www.epa.gov/otaq/climate/regulations.htm&quot; title="EPA and NHTSA have also proposed GHG emissions standards for medium- and heavy-duty vehicles that will apply to new vehicles beginning in 2014 and has proposed standards for cars and light trucks beyond 2017.">cars and light trucks</a> under Title II of the Clean Air Act.</p>
<p>With GHGs now regulated under the CAA, <a href="http://www.gpo.gov/fdsys/pkg/FR-2010-04-02/pdf/2010-7536.pdf&quot; target="_blank">EPA’s interpretation</a> of the Clean Air Act requires it to develop permitting standards for new stationary sources that are major sources of GHGs, such as power plants or manufacturing facilities. EPA is promulgating and implementing regulations for such sources under the <a href="http://www.epa.gov/compliance/monitoring/programs/caa/newsource.html&qu…; target="_blank">new source performance standards</a> and <a href="http://www.epa.gov/nsr/&quot; target="_blank">new source review</a> provisions of the CAA. EPA’s efforts are the subject of significant political controversy and litigation, although challenges to the foundational EPA GHG rulemakings failed to gain traction in court.</p>
<blockquote>
<p>For ELR articles addressing the ability of the Clean Air Act to tackle climate change, see Franz Litz, <a href="http://elr.info/news-analysis/40/10480/what-expect-epa-regulation-green… to Expect From EPA: Regulation of Greenhouse Gas Emissions Under the Clean Air Act</a>, Robert McKinstry, <a href="http://elr.info/news-analysis/41/10301/clean-air-act-suitable-tool-addr… Clean Air Act: A Suitable Tool for Addressing the Challenges of Climate Change</a>, and Brigham Daniels, <a href="http://elr.info/news-analysis/39/10837/regulating-climate-what-role-cle… Climate: What Role for the Clean Air Act?</a></p>
</blockquote>
<blockquote>
<p>Listen to and download materials from the ELI seminar <a href="http://www.eli.org/dc-circuits-rulings-epas-greenhouse-gas-rulemakings"… D.C. Circuit’s Rulings on EPA’s Greenhouse Gas Rulemakings</a> to learn how the court upheld EPA’s regulatory program and watch and download materials from a seminar immediately after the court’s oral arguments at <a href="http://www.eli.org/debrief-dc-circuits-oral-arguments-epas-ghg-rulemaki…; target="_blank">Debrief of the D.C. Circuit’s Oral Arguments on EPA’s GHG Rulemakings</a>.</p>
</blockquote>
<p>There are many other federal statutes and provisions that can be used to try to control GHGs, ranging from the <a href="http://elr.info/legislative/federal-laws/national-environmental-policy-… Environmental Policy Act</a> to the <a href="http://www.bdlaw.com/assets/attachments/Climate_Change_and_the_Clean_Wa…; target="_blank">Clean Water Act</a> and <a href="http://elr.info/legislative/federal-laws/endangered-species-act">Endang… Species Act</a> and presidential <a href="http://www.whitehouse.gov/assets/documents/2009fedleader_eo_rel.pdf&quot; target="_blank">Executive Orders</a>. In addition, some are trying to use the courts by arguing there are federal and state <a href="http://www.eli.org/keywords/governance#common-law">common law</a><a href="#_msocom_21"> </a>causes of action against emitters of GHGs as well as <a href="http://www.eli.org/keywords/governance#public-trust">public trust</a><a href="#_msocom_22"></a> doctrine claims.</p>
<h3><a name="state-initiatives"></a>State Initiatives</h3>
<p>States have taken various approaches to address climate change, including the formation of <a href="#regional-initiatives">regional programs</a><a href="#_msocom_23"></a> to address GHG emissions. Among states, <a href="#california-global-warming-solutions-act">California</a><a href="#_msocom_24"></a> has taken the most comprehensive steps toward GHG control, and many <a href="#local-initiatives">localities</a><a href="#_msocom_25"></a> have also undertaken GHG reduction initiatives.</p>
<h5><a name="regional-initiatives"></a>Regional Initiatives</h5>
<p>The <a href="http://rggi.org/&quot; target="_blank">Regional Greenhouse Gas Initiative</a> (RGGI) in the Northeast was the first regional GHG reduction effort to be formed, followed by the <a href="http://www.wci-inc.org/&quot; target="_blank">Western Climate Initiative</a> and the <a href="http://www.c2es.org/what_s_being_done/in_the_states/mggra&quot; target="_blank">Midwestern Greenhouse Gas Reduction Accord</a>. RGGI, formed in December 2005, includes several states in the Northeast and the mid-Atlantic. The agreement applies only to fossil-fuel powered electric generators above a certain size, and covers only CO2 emissions. The core mechanism of RGGI is a market-based cap-and-trade program. The <a href="http://www.rggi.org/docs/Documents/RGGI_Fact_Sheet.pdf&quot; target="_blank">agreement</a> caps CO2 emissions at 2009 levels and requires regulated power plants to hold allowances for each ton of CO2 they emit using a cap and trade program. States are given broad discretion over many aspects of implementation, including initial allocation of allowances, permitting procedures, and exemptions for certain types of facilities. All states are required to direct some percentage of allowance auction proceeds toward energy reinvestment programs that benefit consumers. For example, Maine uses a portion of auction proceeds to subsidize construction of combined heat and power units to improve energy efficiency in factories. In May 2011, New Jersey indicated it is withdrawing from RGGI, and the state legislatures in other states have attempted to withdraw other states from RGGI.</p>
<p>Two other regions have begun to take steps toward implementing their own GHG reduction programs. The <a href="http://www.wci-inc.org/&quot; target="_blank">Western Climate Initiative</a> (WCI), comprising several western states and parts of Canada, was formed in 2007. However, Mexico, Arizona, Washington, Oregon, Montana and Utah have all recently withdrawn leaving only California and four Canadian provinces in the program. WCI intended to implement a cap-and-trade program, similar to RGGI, beginning in 2012, but that is no longer likely, although California may push ahead, perhaps with Canadian partners or on its own. . The withdrawn states have all joined <a href="http://www.westernclimateinitiative.org/document-archives/general/North…; target="_blank">North America 2050</a>, a new initiative within WCI that does not include a cap-and-trade program. Seven Midwestern states and Canadian provinces formed the Midwestern Regional Greenhouse Gas Accord (MGGRA) and agreed to develop a <a href="https://web.archive.org/web/20140522105252/http://michigancondemnationb…; target="_blank">regional cap-and-trade program</a>, but the initiative has stalled.</p>
<h5><a name="california-global-warming-solutions-act"></a>California Global Warming Solutions Act</h5>
<p>California passed the <a href="http://www.leginfo.ca.gov/pub/05-06/bill/asm/ab_0001-0050/ab_32_bill_20…; target="_blank">Global Warming Solutions Act in 2006</a>, containing several major climate change initiatives. The Act’s overall goal is statewide reduction of GHG emissions to 1990 levels by 2020. The <a href="http://www.arb.ca.gov/homepage.htm&quot; target="_blank">California Air Resources Board</a> (CARB) is charged with developing and enforcing the implementing regulations of the Act, most of which are to become effective in 2012.</p>
<p>CARB’s <a href="http://www.arb.ca.gov/cc/scopingplan/scopingplan.htm&quot; target="_blank">Scoping Plan</a> outlines the implementation of the Global Warming Solutions Act, including:</p>
<ul>
<li>A statewide <a href="http://www.arb.ca.gov/cc/capandtrade/capandtrade.htm&quot; target="_blank">cap-and-trade program</a> encompassing sectors that account for over 80% of GHG emissions</li>
<li>Stricter energy efficiency standards for <a href="http://www.energy.ca.gov/title24/2008standards/index.html&quot; target="_blank">buildings</a> and <a href="http://www.energy.ca.gov/appliances/&quot; target="_blank">appliances</a></li>
<li>An increase in required percentage of renewable electricity production under the state’s <a href="http://www.cpuc.ca.gov/PUC/energy/Renewables/&quot; target="_blank">portfolio standard</a></li>
<li>Higher <a href="http://www.arb.ca.gov/msprog/zevprog/factsheets/advanced_clean_cars_eng…; target="_blank">fuel efficiency standards</a> for cars and light trucks</li>
<li>Low carbon <a href="http://www.arb.ca.gov/fuels/lcfs/lcfs.htm&quot; target="_blank">fuel standard</a></li>
<li><a href="http://www.arb.ca.gov/cc/energyaudits/energyaudits.htm&quot; target="_blank">Energy efficiency auditing</a> at industrial facilities.</li>
</ul>
<p>CARB has <a href="http://www.arb.ca.gov/cc/implementation/implementation.htm&quot; target="_blank">implemented</a> rules requiring <a href="http://arb.ca.gov/cc/reporting/ghg-rep/ghg-rep.htm&quot; target="_blank">GHG emissions reporting and verification</a> and identified “<a href="http://www.arb.ca.gov/cc/ccea/ccea.htm&quot; title="CARB has created nine early action regulations to reduce GHGs: • Low-carbon fuel standards • Methane capture from landfills • Reduction of HFC-134a, a hydroflourocarbon common in mobile air conditioning units • Reduction of GHGs produced by the semi-conductor industry • Multi-sector reduction of sulfur hexafluoride (the most potent GHG) • Limiting GHGs used in consumer products, such as aerosol propellants • Improving fuel efficiency for large semi-trucks • Regulations to encourage greater maintenance of car tire pressure to improve fuel efficiency. • Rules requiring docked ships to obtain power from sources other than their onboard diesel engines. Early Action Items (July 6, 2011).">early action items</a>” reduction measures that could be acted on quickly while the larger implementing regulations are under development.</p>
<p>To further support the goals of the Global Warming Solutions Act, California passed the <a href="http://www.leginfo.ca.gov/pub/07-08/bill/sen/sb_0351-0400/sb_375_bill_2…; target="_blank">Sustainable Communities and Climate Protection Act of 2008</a> and a companion bill <a href="http://www.leginfo.ca.gov/pub/07-08/bill/sen/sb_0701-0750/sb_732_bill_2…; target="_blank">Senate Bill 732</a>. The Sustainable Communites law requires ARB to develop regional GHG emission reduction targets for passenger vehicles and to establish targets for the State's 18 metropolitan planning organizations (MPOs). The MPOs are required to develop a <a href="http://www.arb.ca.gov/cc/sb375/sb375.htm&quot; target="_blank">“sustainable communities strategy”</a> that will meet the emissions reduction targets through adopting sustainable land use, housing and transportation policies. Senate Bill 732 establishes and funds a <a href="http://sgc.ca.gov/&quot; target="_blank">Strategic Growth Council</a> to support these sustainable planning activities.</p>
<h5><a name="local-initiatives"></a>Local Initiatives</h5>
<p>Many localities have undertaken efforts to reduce GHG emissions, such as through the <a href="http://www.usmayors.org/climateprotection/agreement.htm&quot; target="_blank">U.S. Conference of Mayors Climate Protection Agreement</a> and <a href="http://www.iclei.org/&quot; target="_blank">ICLEI</a>. Municipal government steps to address climate change have included developing climate change mitigation and adaptation plans, developing plans to encourage green development and encouraging new programs such as solar energy programs and energy efficiency drives that serve as models for other cities.</p>
<blockquote>
<p>For a discussion of the role of localities in climate law and policy, read Patricia Salkin,<a href="http://elr.info/news-analysis/40/10562/cooperative-federalism-and-clima… Federalism and Climate Change: New Meaning to "Think Globally--Act Locally"</a> and Michael Burger, <a href="http://elr.info/news-analysis/39/11161/empowering-local-autonomy-and-en… Local Autonomy and Encouraging Experimentation in Climate Change Governance: The Case for a Layered Regime</a>.</p>
</blockquote>
<h3>Climate Adaptation Efforts</h3>
<p>While many efforts to address climate change focus on greenhouse gas emission reduction, also known as mitigation, adaptation to climate change is also an important aspect of climate change governance. Increasingly, federal, state and local governments are recognizing the importance of planning for a changing climate and the effects it will have on public health, the environment, and the built environment. For example, a Council on Environmental Quality <a href="http://www.whitehouse.gov/administration/eop/ceq/initiatives/adaptation…; target="_blank">task force</a> developed recommendations for federal agencies to follow in integrating climate change adaptation planning into their regular planning activities. Many U.S. cities, such as <a href="http://www.epa.gov/statelocalclimate/documents/pdf/reed_presentation_11…; target="_blank">Chula Vista, CA</a>, and <a href="http://www.epa.gov/statelocalclimate/documents/pdf/engert_presentation_…; target="_blank">Keene, NH</a>, have begun the process of adaptation planning at the local level. <a href="http://unfccc.int/cooperation_and_support/financial_mechanism/adaptatio…; target="_blank">International efforts</a> are also beginning to focus on <a href="http://www.eli.org/climate-energy/strengthen-capacity-adapt-climate-cha…; as well as mitigation.</p>

Well-designed, Ambitious Public Policies Essential
Author
Bob Stout - BP
BP
Current Issue
Issue
5
Parent Article
Bob Stout

Our company recently joined the CEO Climate Dialogue along with 12 other firms to advocate for meaningful climate legislation based on an ambitious set of policy principles. The move is another important step in BP’s longstanding action plan to address climate change over the last 20 years. BP became the first major energy company to acknowledge the link between carbon emissions and climate change when BP’s then CEO John Browne delivered a groundbreaking speech at Stanford University in 1997.

That was then, this is now: On May 21, BP Chairman Helge Lund observed in an Op-Ed in The Financial Times that “the world is on an unsustainable path,” and “needs to move to net-zero carbon emissions in the decades to come.” BP’s most recent “Statistical Review of World Energy” for 2018 demonstrates the growing divergence between demands for action on climate change and the actual pace of progress, with energy consumption and carbon emissions growing at their fastest rate in nearly a decade.

BP has not only acknowledged but embraced what we call this, a “dual challenge“ of providing the energy needed to meet the growing demands of a developing world, but with lower emissions. Since 2016 we have reduced our greenhouse gas emissions by 2.5 million metric tons and we have achieved zero net growth in operational emissions.

BP is more than an oil company, as our slogan Beyond Petroleum has maintained for more than a decade. We maintain one of the largest operated renewables portfolios in the oil and gas industry through our U.S. wind business, produce advanced biofuels and invest in many low-carbon ventures such as solar developer LightSourcea BP and Fulcrum Bioenergy, which produces jet fuel from municipal waste.

These and other voluntary efforts are necessary but not sufficient to tackle the challenge of climate change. Well-designed and ambitious public policies are also essential — policies which are predictable and durable in the courts of law and public opinion. This is why BP has long advocated the adoption of carbon pricing globally and in the United States. In the absence of federal legislation, we have supported state policies like the cap-and-trade program in California. But we believe the most effective policy would be for Congress to pass a national carbon price.

The CEO Climate Dialogue unites BP and a diverse group of companies and environmental groups behind an economy-wide price on carbon consistent with six general principles. These principles include ambitious targets to reduce U.S. greenhouse gas emissions by 80 percent or more by 2050, as well as timelines that will allow capital-intensive industries to adjust in an economically rational manner.

BP is proud to participate with the Dialogue to bring together the business and environmental communities to develop and advocate for well-designed, bipartisan, and market-based climate policies.

Collaboration is also needed for natural gas to play its important role in the transition to lower-carbon energy in the power sector. When used in electricity generation, natural gas has less than half the carbon emissions of coal. But methane emissions must be controlled along the value chain to maximize this benefit.

Earlier this year, BP and the Environmental Defense Fund initiated a three-year strategic agreement to collaborate on projects and technologies to reduce methane emissions and share those lessons with the rest of the industry. For BP, these technologies include drones that we are now deploying with three different infrared and laser scanners to detect leaks at natural gas production sites. These and other promising new technologies could be scaled up over time to enable more frequent, effective, and efficient leak detection and repair at both new and existing natural gas wells.

As with carbon, policy is also required to reduce methane emissions across the industry. Earlier this year, BP called for the direct federal regulation of methane by EPA from both new and existing sources. Once again, the policy details really matter. To solve the problem, the regulations must be flexible enough to allow rapid deployment of technologies as they are proven to be effective, rather than rigidly bound to current tools that may become obsolete tomorrow.

Both voluntary efforts and well-designed policies need to be developed collaboratively and deployed at pace in order to meet the challenge of climate change. In his recent Financial Times op-ed on why BP supports a fast transition to a low-carbon energy system, Mr. Lund noted, “However challenging a fast-paced transition might be, it is the best option for BP and our shareholders — just as it is for the world.” Only by working together — industry, government, and society — can we solve the dual challenge of providing the energy needed with lower emissions and moving toward the low-carbon future we all seek.

The Debate: CEOs Call for Greater Federal Role in Climate Change
Author
Jonathan H. Adler - Case Western Reserve Law School
Thomas F. Farrell II - Dominion Energy
Jamie M. Gentoso - LafargeHolcim
Bob Stout - BP
Derek Walker - Environmental Defense Fund
Case Western Reserve Law School
Dominion Energy
LafargeHolcim
BP
Environmental Defense Fund
Current Issue
Issue
5
The Debate

In May, an unprecedented announcement shook the climate change policy world. A group of chief executive officers of some of the largest corporations banded together with a group of NGO advisers to call for a greater federal role in America’s response to the threat of climate change. More than a dozen CEOs representing some of the biggest energy producers and consumers in the world have decided that global warming is a crisis, imperilling their profits and humanity at the same time.

The CEO Climate Dialogue declares, “It is urgent that the president and Congress put in place a long-term federal policy as soon as possible to protect against the worst impacts of climate change.” The group of corporate officers added that “acting sooner rather than later allows us to meet the climate challenge at the least possible cost and put the necessary investments in place in time to meet our emissions targets.”

As to those targets, the group calls for federal policies that will achieve an economy-wide reduction of greenhouse gas emissions of at least 80 percent by 2050, a level also proposed by adherents of the Deep Decarbonization movement and in line with some versions of the Green New Deal and similar proposals.

Among the group’s Guiding Principles is a declaration that “policies must encourage investment and planning decisions consistent with the timeframes needed.” The group favors market-based instruments such as a carbon tax to allow the business world to respond most cost-effectively. Indeed, “policies must focus on emissions reductions outcomes, not specific resources or technologies.”

The group urges “do no harm” by ensuring that policies do not damage American competitiveness. It also wants policies that “invest in American workers, and in disadvantaged communities that have the least resources to manage the costs of climate change.”

We invited three of the Dialogue companies to describe what they are doing about climate change and to flesh out in some detail the shape of the federal role they desire, along with one of the Dialogue’s NGO partners and a scholar on the relevant federalism issues.

In May, an unprecedented announcement shook the climate change policy world. A group of chief executive officers of some of the largest international corporations banded together with a group of NGO advisers to call for a greater federal role in America’s response to the threat of climate change. We asked a group of them to tell our readers what shape the federal response to climate change should take.

Higher Ed Schools Nation, Fuels Activism on Carbon Reductions
Author
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
4
Linda K. Breggin

Colleges and universities across the country are striving for carbon neutrality — and several already have achieved it. Second Nature, a nonprofit dedicated to accelerating climate action in higher education, counts over 480 university presidents as signatories to one or both of its President’s Climate Leadership Commitments. Those are a carbon commitment to reduce greenhouse gas emissions and a resilience commitment to implement adaptation measures and build community capacity.

Four carbon-neutral colleges and universities lead a pack that includes 33 schools on track for carbon neutrality by 2025. In total, over 370 universities have committed to reaching neutrality by 2050. According to Second Nature’s 2017-18 report, in addition to the four campuses that have reduced their carbon emissions by 100 percent, two have reduced by 75 percent; nine by 50 percent; and 36 by 25 percent. Furthermore, renewable energy purchasing is on the uptake. For example, nine campuses now purchase 100 percent and four campuses purchase 75 percent renewable energy.

This leadership role makes sense, according to the Environment America Research and Policy Center: “By deploying clean energy, colleges and universities can bolster learning and research, drive innovation, attract new students, and save money — all while setting an example for the nation and reducing their own environmental impact.” Furthermore, the “physical aspects of campuses are conducive to clean energy,” such as numerous rooftops and parking lots that can support solar panels.

Campus carbon reductions on a large scale could have considerable impact. Environment America explains that because colleges and universities serve more than 20 million students and spend more than $14 billion per year on energy, “bold commitments to 100 percent renewable energy can drive big investments in solutions.”

Although only a small percentage of schools to date are on a path to carbon neutrality, Second Nature estimates that its Climate Leadership Network members procured 1.5 billion kilowatt-hours of renewable energy in the 2017-18 academic year — equivalent to powering 145,475 homes. Furthermore, network members produced 47 percent less carbon and used 27 percent less energy than non-members. On a smaller scale, American University calculates that eliminating its carbon footprint is equivalent to taking 10,000 cars off the road or 5,254 homes off the grid — or planting 1.2 million trees.

Several factors motivate schools to take climate action. Switching to clean energy can make money for a university. Environment America explains that schools both save costs and “hedge against volatile fossil fuel costs.” And, Second Nature, which helps schools develop and market carbon offsets on their campuses through renewable energy and other means, reports it has generated over $500,000 in revenue for campuses to invest in carbon-reduction projects.

Reputation is also a key driver. An annual Princeton Review survey routinely finds that over 60 percent of respondents would consider information about a college’s commitment to environmental issues, including energy practices, in making matriculation decisions. The plethora of university sustainability rankings undoubtedly influences schools as well. The Association for the Advancement of Sustainability in Higher Education recognizes sustainability performance based on data colleges and universities self-report. The Princeton Review ranks the top 50 colleges; Times Higher Education ranks schools against the United Nations Sustainable Development Goals, including climate action; and Sierra Club’s Cool Schools program marked a record year in 2018, in which it ranked 269 schools based on data they submitted.

Schools that have achieved carbon neutrality have done so in a variety of ways. But, a Massachusetts Institute of Technology class that examined college climate action plans determined that some carbon-reduction measures may not be scalable. The class concluded that most schools with small carbon footprints were rural, liberal arts colleges in states with electric grids that generated less carbon than average. In contrast, large universities with science labs or medical schools can be up to four times more carbon intensive per student than colleges; for them, the purchase of carbon offsets or other means of reducing impacts can be expensive. In addition, some approaches — reliance on gas produced from manure is a good example — are only available to a limited number of campuses.

Despite these constraints, many schools, both large and small, rural and urban, appear undaunted as they make their campuses’ carbon footprints as small as possible.

Higher ed schools nation, fuels activism on carbon reductions.

Most Green New Deal Advocates See Hope in New Policy Dynamics
Author
David P. Clarke - Writer and Editor
Writer and Editor
Current Issue
Issue
3
David P. Clarke

In declaring himself as a Democratic presidential candidate, Washington Governor Jay Inslee announced that climate action would be his top priority and declared, “This is our moment.” But is it?

Certainly, 2019 began with welcome activity around the issue. In the House, Democrats established a new Select Committee on the Climate Crisis to underscore the issue’s urgency. And at its first hearing on global warming in six years, the new chair of the environment and climate change subcommittee, New York’s Paul Tonka, hailed “the issue of our time” and touted previous calls for a moonshot program to transform the energy system. Over in the Senate, the Energy and Natural Resources Committee discussed revamping the electricity sector, its first climate hearing since 2012.

Most ambitiously, on February 7 Representative Alexandria Ocasio-Cortez (D-NY) and Senator Ed Markey (D-NY) introduced matching resolutions recognizing a federal duty to create a transformative Green New Deal. H. Res. 109 has 89 cosponsors and S. Res. 59 has 11. While nonbinding, the resolution has become the most widely discussed topic amid a flurry of climate-related activity.

Where will this momentum lead? Adoption of a Green New Deal is unlikely for now, says Rob Cowin, director of government affairs for the Union of Concerned Scientists’ climate and energy program. But, he says, the important point is that the Green New Deal is part of an undeniable new dynamism both in the field and in Congress that has “created a space” for lawmakers to have meaningful dialogue on climate change. With new momentum, near-term opportunities have opened up to make significant progress over the coming two years on a number of key building blocks necessary to comprehensively tackle climate change, Cowin says. Depending on results of the 2020 elections, more ambitious long-term measures could build on currently attainable shorter-term steps.

A low-carbon energy future will require modernizing the U.S. grid, Cowin says. He cites opportunities for major progress in areas “critical to climate outcomes we’re hoping for.” Those include grid flexibility to add more clean power capacity, energy storage, improved transmission, and others.

Moreover, members of Congress are talking about the need for climate-resilient infrastructure as a result of worsening storms, fostering a bipartisan convergence among lawmakers. Notably, leaders in both the House and Senate committees responsible for energy issues have abandoned climate denial. In March, Senators Lisa Murkowski (R-AK) and Joe Manchin (D-WV) both underscored the impacts from human-induced climate change and are calling for more innovation and grid modernization.

But climate deniers remain adamant. EPA Administrator Andrew Wheeler says contaminated water is a greater global crisis than climate and that the Green New Deal would “sink the U.S. economy.” John Shimkus (R-IL) acknowledges that climate change “presents risks,” but he nevertheless cites an International Energy Agency analysis in asserting that fossil and nuclear energy will be the dominant global fuels through 2040 and “likely beyond,” even as wind and solar increase. And, as expected, President Trump’s 2020 budget proposal seeks yet again to slash EPA funding and the Energy Department’s clean energy program.

The Green New Deal’s prospects diminished in mid-March after the AFL-CIO sent a letter to Ocasio-Cortez and Markey opposing their resolution on the grounds that it could harm jobs and was “not achievable or realistic.” Earlier, during Senate floor debates, Republicans brandished claims that the Green New Deal would cost as much as $94 trillion, a sum the Democrats hotly disputed.

Although the current momentum will not “get us all we want in one enchilada,” says UCS’s Cowin, smaller but “absolutely significant” steps toward climate solutions are definitely possible in this Congress. Besides grid modernization, the tax code presents another opportunity for bipartisan progress. Many Republicans come from states that have benefitted from pro-growth wind and solar investment tax credits, and an offshore wind industry is emerging with enormous potential to add clean, renewable capacity to the grid. Although wind and solar tax credits might not be extended outright, some policymakers are exploring tax code measures to support a technology-neutral, low-carbon approach, according to Cowin.

Clearly, climate will be a major topic in Congress this year and is already emerging as an important 2020 presidential issue. If it does figure in the election, it would be the first time the environment has been a dominant topic in a national campaign.

Most Green New Deal advocates see hope in new policy dynamics.

Taking a Risk on Resilience
Author
Ann Goodman
Current Issue
Issue
3
Taking a Risk on Resilience

We had all been warned that Hurricane Sandy might hit New York City. I had candles and a flashlight on hand, and, ever since the attacks on the World Trade Center 11 years earlier, I kept canned food in a kitchen cabinet. So the few hours of intense wind and rain were no problem, even after the lights went out.

The next morning, however, there was still no electricity in downtown Manhattan. Most buildings had no water. Public transportation was down. Fortunately, my phone was still charged and the cellular system was functioning on standby power, so I called my friend on the Upper East Side, where apparently they still had electricity. I walked all 75 blocks north.

One of Citibank’s downtown buildings at its headquarters two miles from my apartment had flooded. Many of its New York City-based employees couldn’t get to work, since there was limited transit and many streets were under water. Officials worried how long ATMs that had power would have sufficient reserves — just when customers most needed cash to pay merchants without functioning registers or credit systems that depend on the internet and phone lines. However Citi was able to mobilize quickly because its leadership had developed comprehensive continuity-of-business plans to enable it to meet the needs of its customers and communities, even in the event of a natural disaster of unprecedented impact.

Long a leader on environmental, social, and governance issues, Citi’s ESG efforts, as in many companies, had started in the sustainability office. One effect of Sandy was that awareness and engagement of issues like climate change and its effect on the bank and communities — its customer base — quickly spread to other functions in the company, including operations in far-flung locations.

In 2015, CEO Michael Corbat committed $100 billion over 10 years to finance climate resilience throughout the bank’s global activities. He stated at the time that the investment is not about philanthropy nor does it represent an add-on cost — it is integral to the firm’s business and its ability to serve its customers and make a profit in the future.

Later that year, during COP 21, where the Paris Agreement would be signed at the meeting’s conclusion, I bumped into Citi’s managing director and global head of corporate sustainability in the Metro. I told Val Smith that I was pleased that, as did so many other companies at the seminal meeting of world leaders, Citi had pledged support for the accord.

A year later, Donald Trump was elected president and announced he would pull the United States out of the agreement. But as the federal government began to walk back on so many aspects of climate policy, companies, along with states and cities, often working together, organized to fight a threat they see as threatening their future. The $6 trillion We’re Still In coalition of many such entities and other collaborations are creating a new approach to leadership on environmental policy in the absence of guidance from Washington.

There has been a political shift. Business, especially finance, was once viewed with considerable skepticism in environmental circles, but companies are becoming increasingly responsive to all stakeholders — their consumers, employees, suppliers, investors, and the communities they serve and in which they operate — on environmental and social matters. And by all accounts, climate activism by leading corporations is increasingly popular in the public mind and among business leaders.

Executives have concluded that if they don’t adapt, their firms likely can’t survive. As I saw the day after Sandy hit during my long trek up through Manhattan, a company can’t do business if its facilities aren’t functioning, if its employees can’t get to work, if it can’t transport its products to market. Recognizing the need for business continuity can be a first step toward protecting operations by lowering emissions and otherwise boosting environmental performance. The key to future prosperity for a business is for its stakeholder base to be healthy in all senses of the word. And businesses are responding.

CEOs like Michael Bloomberg support more action from business. So do shareholders. “The world needs your leadership,” investor Larry Fink of BlackRock wrote in his latest annual letter to CEOs. “As divisions continue to deepen, companies must demonstrate their commitment to the countries, regions, and communities where they operate, particularly on issues central to the world’s future prosperity.”

The second day after the storm, I trekked back south to Greenwich Village to find power was still out. Everyone in my building was huddled in the lobby with flashlights, food, and a backup generator. Many neighborhoods were still flooded, along with medical facilities. On Wall Street, financial institutions were still suffering, including the stock market, which was shuttered.

As did those companies facing an operational crisis, many of us in my neighborhood during and immediately after the hurricane rediscovered our fundamental selves: walking versus taking the subway; heating water (for those who had it) on a gas stove to wash; lighting candles to read; sharing necessities like food. It was a watershed moment when even a billionaire living on the 38th floor was humbled because elevators didn’t work.

Wandering around Union Square, I saw that utility companies had driven trucks in from all over to help out at the disaster scene. One such company was telecommunications provider Sprint. Like Citi, Sprint was already primed on sustainability issues, including climate, in fact winning prizes for its efforts. That preparation was partly the result of experiencing earlier calamities, some related to climate, including storms, fires, tornadoes, and earthquakes, after which the company continually made adjustments. As one of the first on the scene after Sandy, Sprint brought years of lessons learned — not least of which by its emergency response team — to the crisis at hand and began to restore phone and internet connections.

I had long been working on the intersection of business and environment, especially climate change. To a former editor of a financial magazine, carbon markets and corporate innovations were tremendously important, especially since I saw how they might set us on a less destructive path — while boosting the economy. Inspired by Sandy and the example set by leadership companies, I wrote Adapting to Change: The Business of Climate Resilience, published in 2016 by Business Expert Press. Firms are taking action on climate, I wrote, highlighting how they are preparing for more weather disasters, modifying products and services — and recognizing potential new markets.

In researching the book, I learned that Citibank had suffered even more than I saw in the storm’s aftermath. The bank lost $10 million in flood damage alone. Citi was by then already a widely respected sustainability leader, but Sandy rallied employees — from local and international operations, to the investment branch, to energy finance, to risk management. So when its CEO made that huge financial commitment to climate resilience, it was an affirmation of corporate will from bottom to top. Since then, other banks, including JP Morgan Chase, Bank of America, and HSBC, have made similar commitments. It’s one thing to learn from a crisis and another to take a risk on resilience before the real lesson hits hard, as it surely will.

Not that individuals, or companies, can anticipate all possibilities. As we all started to recover after the immediate crisis in the days after the storm, our attention turned to the future and how we might better prepare and insure ourselves from the worst. Governor Andrew Cuomo announced that Sandy had cost New York state citizens $32 billion in damages and loss. Sadly, in a lot of places affected by Sandy the cost of insurance, reflecting increased climate risk, has since been going up — if it is offered at all.

The insurance business has begun responding to climate risk. To this industry, risk is bread and butter. Insurers have great understanding of how to aggregate, analyze, and anticipate risk. That knowledge may deter them from coverage. Or it may prod an insurer into action if it calculates risky corporate moves may pay off against a greater climate change risk of not acting now.

The Hartford, the venerable property and casualty insurer, has learned over many years that the risk involved in forward thinking — and hence current action — can protect against far greater risks likely to come. Like Sprint, The Hartford was already attuned to potential climate disasters before Sandy, having been on the front lines of such crises. The company had partially insulated itself from such underwriting risks, along with taking measures to mitigate its own carbon emissions and changing its investment portfolio to reflect climate risks. These moves, as in the case of Sprint, had won it accolades.

The firm paid out $706 million in weather-related catastrophe loss claims the year Sandy struck. And the storm briefly threatened the company’s headquarters, heightening its awareness and reconfirming the firm’s commitment to mitigate climate change risk. The insurer continues to encourage customers through incentives to prepare for and alleviate such risks. Then, in addition to its investment in a company specializing in electric vehicle charging infrastructure, The Hartford installed charging stations for use by employees who drive to work and introduced an insurance product to promote adoption of electric cars by its customers. Significantly, the company was among the first to insure wind and solar plants in the United States. The firm offers nearly a dozen products for individual and corporate customers to encourage emissions reductions.

A few weeks after Sandy, my block association held one of its regular meetings. Some neighbors thought we might better prepare for what we saw as more frequent such events. We could organize in advance, find ways to communicate with others in the neighborhood, and take leadership to be a resilient community.

In preparation, we did everything right, including letting the association’s head know that we’d like to discuss resilience to crises at the next meeting, which she thought was a good idea. As we suspected, at the meeting neighbors who had lived through the storm concurred it was a good initiative. But then a powerful person on the board said: “I don’t want to be my brother’s keeper.” And that was the end of our effort.

As I learned from this experience, bolstered by my research, one of the biggest hurdles to climate action is collaboration for the collective good. I conclude in the book that we understand climate change well enough and have sufficient means at hand to reduce it. Yet what seems to hold us back is a persistent inability to work well together, within individual organizations but particularly among the diverse groups involved in the fight against climate change — government agencies, private companies, non-profit organizations, law firms of many kinds, consultancies, think tanks, universities — all of which have important roles to play in finding solutions.

But I am optimistic. I am inspired in part by the story of IBM’s work on climate resilience following Sandy. The company brought together multiple parties, plenty of data analytics — but also basic tools, like talking — to further mutual goals. Emphasizing communications is part of the company’s effort to establish environmentally proactive supply chains with other companies around the world. And it also stretches to its consulting with cities and other localities — a showcase is its work after Sandy on eastern Long Island.

Whatever the motives, including self-preservation and profit, there is a changing business imperative — toward ingenuity, responsibility, and alignment of corporate aims with those of the larger population, which likewise seeks positive alternatives to political, legal, and economic pressures that ignore, even harm, the interests of people and enterprises alike. We all depend on people and enterprise; without them, we languish, and that’s the risk of not being resilient. TEF

TESTIMONY ❧ After witnessing Hurricane Sandy’s assault on the Mid-Atlantic region in 2012, I wrote a book on the business response to climate change. From what I observed, there is nothing like a calamity to awaken an understanding of threats and the need for anticipation and preparation.

A Scientist’s View on Climate and the Courts
Author
Donald J. Wuebbles - University of Illinois
University of Illinois
Current Issue
Issue
2
Parent Article

Just as climate change is impacting every part of our lives, economically, culturally, and physically, it will also affect all aspects of the law. Vulnerability, equity, and justice are likely to become common themes for cases involving climate change in the courts.

As an atmospheric scientist, I have been studying the climate system for many decades and have been coauthor of many of the major assessments of the science. Last spring, I was asked to testify in the suit between the cities of Oakland and San Francisco and major oil companies. As I told the court, the science is clear — climate change is one of the most important issues facing humanity and our planet.

There is basically no debate about this conclusion within the science community. Our understanding is data-driven, based on extensive observations and associated analyses using many different research tools that all indicate trouble ahead. That doesn’t keep misinformation and overstatement of remaining uncertainties from appearing in the media, but to do so requires distortions and misrepresentations of the science, or denials of the underlying physics.

Global annually averaged surface air temperature has increased by 1.8°F since 1900. This is the warmest period in the history of civilization. The last four years have been the warmest years on record. Many other aspects of global climate are changing. Thousands of studies have documented the large alterations in surface, atmospheric, and oceanic temperatures, melting glaciers, diminishing snow cover, shrinking sea ice, rising sea levels, ocean acidification, and increasing atmospheric water vapor.

Last fall’s Fourth National Climate Assessment concludes “it is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century. For the warming over the last century, there is no convincing alternative explanation supported by the extent of the observational evidence.”

As I told the court, changes in the characteristics of extreme events are particularly important for human safety and infrastructure. Heat waves have become more frequent, while cold waves are less frequent. Rainfall is increasing in intensity and frequency. Large storms like hurricanes are becoming more intense.

Global average sea level has risen by seven to eight inches since 1900, and the rate of increase is accelerating. The incidence of tidal flooding is simultaneously accelerating in many coastal cities. Sea levels are expected to continue to rise — by at least several inches in the next 15 years and by one to four feet, and possibly more, by 2100.

Without major reductions in emissions, the increase in annual average global temperature relative to preindustrial times could reach 9°F or more by the end of this century. To put this into perspective, the last ice age was about 15°F colder than now. There is broad scientific consensus that the further and the faster the Earth’s climate system is pushed toward warming, the greater the risk of unanticipated changes. Impacts on lives and lifestyles are bound to be severe.

There is a significant role for the courts regarding climate change, especially relating to appropriate policy and to protecting human welfare and other life. However courts should not be judging the validity of the science; not only has that ship sailed, but lawyers and judges just don’t have the expertise to evaluate the complexity of the science — that is why the scientific assessments like the recent NCA and the report a month earlier by the Intergovernmental Panel on Climate Change are so important. It would be a shame if deniers were able to use the courts to push their agenda of misinformation and political posturing aimed at fooling the public.

At the same time, the courts can be important in protecting climate policy that is based on the science, such as EPA’s Endangerment Finding — which itself grew out of a 2007 Supreme Court decision (Massachusetts vs. EPA) that requires the agency to evaluate the science and act on it as appropriate. Also, since the Paris Agreement requires that no country can leave it for four years, the courts could perhaps be used to address compliance despite the 2017 statement by the current administration that the United States is withdrawing.

We are all responsible for climate change, but it has been shown that fossil fuel companies have known for decades about the potential impacts of their products on climate. Meanwhile, many of them were misinforming the public about this issue. Could they be subject to lawsuits? Along with mitigation, the necessity for adaptation to climate change could prove to be an important avenue for litigation.

There have been many precedents for the courts to protect ecological and human welfare in light of existing and potentially dangerous impacts on the environment. It can certainly be argued that dangerous climate change is already here.

ELI 50th Anniversary: Building on the past to secure the future, after half a century of leadership on law, policy, and management
Author
Anna Beeman - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
2

ELI 50th Anniversary Building on the past to secure the future, after half a century of leadership on law, policy, and management

In September 1969, 50 lawyers, practitioners, and academics from across the country convened at Airlie House, just outside Warrenton, Virginia. This watershed event led directly to the establishment of the Environmental Law Institute and the Environmental Law Reporter to collect and analyze developments in the newly created field.

ELI was incorporated on December 22, 1969, as a §501(c)(3) organization, the same day that Congress passed the National Environmental Policy Act. The fledgling Institute held its first educational program in late 1970 and released the first issue of ELR the following year.

Half a century later, ELI has grown into the leading environmental law think tank, offering an objective and nonpartisan perspective through its top-tier research, educational programs, and publications.

Throughout this anniversary year, ELI will look back at its history and the sharing of environmental progress with its valued community members and diverse array of supporters. The Institute is hosting special programming and events throughout the year. Each month will focus on a key issue within ELI’s work portfolio over the last five decades. This programming began in January with programs on pollution, a focal point of ELI’s work through the years, and will end in December with a focus on environmental assessment, which occurs the same month ELI and NEPA were formed in 1969.

In keeping with its January theme, programming that month featured pollution prevention and re-thinking waste. To reduce islands of plastic waste in oceans and polluted air in cities, ELI explored ways for stakeholders to consider alternatives to the traditional linear model of resource use.

The Institute hosted a panel discussion and webinar highlighting different ways to transform the traditional “take, make, and dispose” economic model into a circular economy, even when lower costs of production processes and materials have been an obstacle to such a transformation. Moderated by Michael Goo of AJW and the Circular Economy Industries Association, panelists discussed the many obstacles and benefits of fostering a production system that recoups its waste as feedstock, and whether emerging new technologies and business models can be viable in such a resource format.

In addition to moderator Goo, expert panelists included Michael Burger, executive director of the Sabin Center for Climate Change Law; Paul Hagen, principal at Beveridge & Diamond PC; Stewart Leeth, vice president of regulatory affairs and chief sustainability officer of Smithfield Foods; and Meagan Weiland, an independent researcher at Economic & Human Dimensions Research Associates and program coordinator for Science magazine.

An additional webinar in January focused on the new and innovative methods of recycling undesired material. Moderated by ELI Senior Attorney James McElfish, director of the Sustainable Land Use Program, the panel discussed ways to encourage cities, wastewater treatment plants, corporations, and other important players to improve recycling processes, especially as the number of different types of recyclable materials increases. Interestingly, this issue also creates new business opportunities for the industrial and commercial sector to explore.

ELI’s anniversary celebration will continue throughout the year. Special programming in March will focus on re-imagining environmental governance, and April will feature the role of law in climate response and energy transformation.

In the latter half of the year, stay tuned as ELI looks forward to featuring topics including wetlands protection, technology as an emerging driver for environmental behaviors and conditions, and gender and the environment.

 

Institute launches podcast series to reach out to constituencies

In January, ELI launched its new People Places Planet Podcast. The series will provide a platform for Institute staff and leadership to discuss their work covering a range of environmental topics, as well as emerging developments in environmental law both domestically and internationally.

The podcast enables ELI to remain a thought-leader of environmental law and governance in the 21st century. It is a means to communicate the Institute’s cutting-edge, and thought-provoking, insights in a new medium to our growing international audience.

The inaugural episode hosts a discussion between ELI President Scott Fulton and Director of the Technology, Innovation, and the Environment Project David Rejeski on their co-written ELR Comment, “A New Environmentalism: The Need for a Total Strategy for Environmental Protection,” which was featured in the September ELR.

Fulton and Rejeski guide listeners through their theoretical framework, discuss why they focused on this topic at this time, and consider how their framework could be applied to environmental policymaking.

Rejeski remarks that despite the cluster of progress in environmental protection during the late 20th century, moving the agenda forward now requires asking questions about the four emerging drivers of the environmental protection movement: law, risk management, technology, and community.

Fulton and Rejeski urge environmental policymakers to continue to think about how these drivers will interact with the development of new technology, big data, and private environmental governance.

Identifying these drivers is just the first step; Fulton and Rejeski reflect that there are many remaining issues to pursue in the future, which raise a host of questions.

To what extent can these new drivers compensate for government failure or inability to act? How does the fast pace of technology interact within the slower changing, legacy law and policy systems, and how might one design the interface between them?

These questions are certainly important for the future of environmental protection. People Places Planet will continue to move these types of conversations forward.

Podcasts are available for download on the ELI website or from your favorite podcast app.

 

Deep cuts in carbon emissions require workable legal pathways

ELI was involved in producing two landmark publications in early 2019. The First Global Report on Environmental Rule of Law and the full version of Legal Pathways to Deep Decarbonization (a summary version of which was released last year) address the pressing issues of worldwide environmental protection and avenues for progress in the coming decades.

Over the past two years, ELI engaged with UN Environment to develop the first report. Environmental rule of law is critical for worldwide sustainable economic and social development, protects public health, contributes to peace and security by avoiding and defusing conflict, and protects human and constitutional rights.

UN Environment released the report to offer frameworks to address the gap between environmental laws on the books — and what is actually in practice — for countries around the world. The report is available for free download on the ELI web page.

In addition, the full version of Legal Pathways to Deep Decarbonization will be released in March 2019. The book equips policymakers and practitioners with over 1,000 recommendations for legal pathways to reduce U.S. greenhouse gas emissions by at least 80 percent from 1990 levels by 2050.

Edited by Michael Gerrard, professor at Columbia Law School, and John Dernbach, professor at Widener University Commonwealth Law School, the book is based on two reports by the Deep Decarbonization Pathways Project. The project discusses the technical and policy pathways for dramatically reducing greenhouse gas emissions. The carbon abatement goals are often referred to as deep decarbonization, a charted pathway that requires systemic changes to the energy economy.

Deep decarbonization is achievable in the United States using laws that exist or could be enacted. These legal tools can be employed with significant economic, social, environmental, and national security benefits. The book provides legal and policymaking leaders the means to begin implementing these tools to tackle emissions reductions in the coming years.

 

Field Notes: Profession loses two leaders in enviro protection

ELI has learned with great sadness of the passing of two giants in the implementation of environmental law. Both were integral to the Institute’s mission, offered great knowledge and wisdom, and were important members of the ELI community.

Douglas Keare passed away on January 8 at 84 years old. He was an important member of the ELI family as part of the Leadership Council, and in shaping and supporting the ELI-Miriam Hamilton Keare Policy Forum each year.

The annual policy forum honors his mother, a noted environmentalist, and focuses on bringing key stakeholders together to discuss the most urgent environmental issues and advance solutions. Keare was an important thought leader for the forum due to his avid interest in the topics. He often pitched interesting ideas for discussions in the planning stage and asked the resulting panel engaging questions during the annual event.

Keare received his B.A. from Dartmouth College and a Ph.D. in economics from Princeton University. His career and passions were shaped around his belief in the power of cities to spark progress and secure the future.

Keare was the first head of the World Bank unit responsible for urban research and policy and led it for 25 years. He also held important positions in Malaysia and East Pakistan (Bangladesh) with the bank.

Keare also was involved in work for the Harvard Institute for International Development and the Lincoln Institute for Land Policy. He retired in Boston, Massachusetts, at which point he became a generous donor and involved with ELI’s research and program activities.

Judge Patricia Gowan Wald died in January at age 90. Wald received the ELI Environmental Achievement Award in 2000 for her central role in creating modern environmental jurisprudence during her long tenure on the United States Court of Appeals for the District of Columbia Circuit, including five years as chief judge.

After retirement from that position, she served as an international jurist in The Hague on the tribunal adjudicating war crimes in the former Yugoslavia.

Her legacy remains in her legal and environmental work and in her determination to pave the way for women in the legal profession.

In her award acceptance speech, Wald discussed the intersection of concerns she addressed over domestic environmental statutes and those in international criminal cases. She emphasized that ultimately, quality of life depends on peaceful and non-destructive relationships with one another, and harmony with the environment.

Wald graduated from Yale University Law School in 1951. She began her legal career as the only female law clerk in the Second Circuit. During the Carter administration, she served as the assistant attorney general for legislative affairs at the Justice Department, and soon after was nominated as the fourth woman on the D.C. Court.

Although the 1970s was the primary period for passing landmark statutes, Wald’s position in the D.C. circuit court during the 1980s allowed her to make a lasting impact on how to interpret and apply the statutes passed by Congress. Her opinion in Sierra Club v. Costle in 1981, upholding EPA emission standards for coal-burning power plants, quickly grew to be a frequently cited opinion to support presidential rulemaking.

Her lifetime of achievement was honored by Barack Obama in 2013, when she received the Presidential Medal of Freedom.

ELI continues its work in China through environmental training workshops at universities in Beijing. In January, over one hundred NGO workers, judges, prosecutors, and public interest lawyers attended ELI’s workshop at Renmin University, taught by ELI Vice President John Pendergrass and Visiting Scholar Leslie Carothers.

ELI teamed with Latham & Watkins and the Policy Research Center for Environment and Economy to hold the second Chinese International Business Dialogue on Environmental Governance roundtable on January 15 in Beijing. Launched last year, the dialogue is a working group designed to facilitate discussion between multinational businesses and Chinese authorities regarding best practices in government and industry in the area of environmental regulation, as well as the forward movement of environmental protection in China.

ELI launches 50th anniversary program series.

The Global Climate Change Talks Are Moving On — and So Am I
Author
Robert N. Stavins - Harvard Kennedy School
Harvard Kennedy School
Current Issue
Issue
2
Robert N. Stavins

It has been 15 years since I began writing this bimonthly column offering an economic perspective on the environment. Over that time, I have come to focus more and more — in my research, my teaching, and in this column — on the ultimate environmental policy challenge faced by the United States and, for that matter, the world, namely the threat of global climate change. I say this because of two dimensions of the science of climate change, each of which leads to profound economic implications, and thus to great political challenges.

First, greenhouse gases mix in the atmosphere, and so the location of emissions has no effect on impacts — climate change is a global commons problem. Any jurisdiction taking action incurs the costs of its actions, but the climate benefits are distributed globally.

Therefore, for virtually any jurisdiction, the climate benefits it reaps from its actions are less than the costs it incurs, despite the fact that the global benefits may be greater — indeed much greater — than the global costs. This presents a classic free-rider problem, which is why international, if not global, cooperation is essential.

Second, there is a temporal dimension that takes us from science to economics to politics. Greenhouse gases accumulate in the atmosphere, lasting more than 100 years in the case of carbon dioxide, and the damages are a function of the stock (accumulated concentrations), not the flow of emissions. The most severe consequences of climate change will be in the long term, but climate change policies and the attendant costs of mitigation will be up front.

This combination of up-front costs and delayed benefits presents a great political challenge, given that the incentive in democracies is for elected officials to give benefits to today’s voters, and to place costs on future generations. The climate problem asks politicians to do precisely the opposite.

Together, the global commons nature of the problem plus this temporal asymmetry make climate change an exceptionally difficult political challenge, possibly without precedent. It is for this reason that I have increasingly turned my attention to policies to address this problem.

In my final message to you, I will reflect briefly on the most recent international negotiations intended to reduce the risk of a fundamentally changed climate.

During two weeks of boisterous plenaries and energetic backroom meetings, the 197 members of the 24th Conference of the Parties of the UN Framework Convention on Climate Change, meeting in Katowice, Poland, in December, sought to reach consensus on rules and guidelines for implementing the 2015 Paris Agreement. The fault lines at the Katowice negotiations were, as usual, largely between two groups: the 43 industrialized countries, and the 154 developing nations.

At the end, consensus was reached on a 156-page rulebook, which represents a transition from an expression of global solidarity in the Paris Agreement to a set of practical mechanisms that can deliver results.

Was this a success? There were dozens of aspects of the Paris Agreement on which the delegates to the Katowice meetings wanted to make progress by filling in details in the skeletal 2015 accord, but one area stood out: transparency, which refers to the credibility of each nation’s measurement of its own performance ­— in terms of its emissions and its policies.

The Paris Agreement gave significant wiggle room to the 154 developing countries by granting them great flexibility in this regard. But in Katowice, a remarkable consensus was achieved that all countries will follow uniform standards for measuring emissions and tracking the achievement of their respective targets.

Conceivably, this could make it easier for the Trump administration to remain in the Paris Agreement (if the president were to become convinced that such action would be politically advantageous in the run-up to the 2020 presidential election). And, likewise, it will make it easier for a future administration of either party to rejoin the agreement if the current president follows through on his promise to withdraw. That is a significant achievement.

Of course, any firm judgment of the ultimate success of the Katowice talks on climate change — and more important, the success or failure of the Paris Agreement — will depend upon future negotiations and upon the actions of individual countries in addressing this global problem. The climate negotiations will continue, as will my work in this realm, but — in my case — in venues other than these pages.

The global climate change talks are moving on — and so am I.

Climate Litigation Has at Least for Now Dodged a Possibly Fatal Blow
Author
Richard Lazarus - Harvard University
Harvard University
Current Issue
Issue
2
Richard Lazarus

This past fall, the “Trial of the Century” was scheduled to commence in a federal court in Oregon. The plaintiffs? Twenty-one children. The defendant? No less than the United States. And the accusation? That the federal government had violated the children’s constitutional rights by “creating, controlling, and perpetuating a national fossil fueled based energy system, despite long-standing knowledge of the resulting destruction.”

The remedy sought by the plaintiffs was no less ambitious than their claim that the Constitution’s Due Process Clause confers on individuals the right to “a stable climate system capable of sustaining human lives and liberties.” Plaintiffs sought a court order directing the government to implement “an enforceable national remedial plan to cease the constitutional violations by phasing out fossil fuel emissions and drawing down excess atmospheric CO2.”

The 50-day trial seemed unstoppable only days before its start date. The judge had repeatedly denied the government’s motions to dismiss the complaint. No less significantly, by declining to certify the case for interlocutory appeal, the judge had refused to allow the federal government the ability to appeal those rulings before trial.

Nor had either the Ninth Circuit or the Supreme Court been willing to come to the federal government’s rescue. The Ninth Circuit had twice denied the Department of Justice’s mandamus petitions to hear their arguments for dismissal before trial. And the Supreme Court in July had rebuffed the solicitor general’s request to stay the trial court proceedings.

Everything shifted, however, on the eve of trial. The case was postponed and its future remains uncertain. Reversing herself in late November, the trial judge agreed to certify the case for interlocutory appeal and the Ninth Circuit has scheduled the case for expedited consideration.

So what happened? What prompted the trial judge to change her mind?

When the justices denied the solicitor general’s request for a stay in July, too little attention was paid to the order’s fine print. While formally denying the government’s requests, the High Court simultaneously left little doubt it believed that the trial judge should have certified the case for interlocutory appeal. The July order set forth the central statutory touchstone for certification — a case raising a “controlling question of law as to which there is a substantial ground for difference in opinion” — and then offered the Court’s clear view that the “striking breadth of the plaintiffs’ claims present substantial grounds for difference in opinion.”

That is why when the trial court failed to take the initial hint and continued to insist on trial, the justices double-downed when the solicitor general a few days before trial filed a mandamus petition with the Court and again asked the justices to stay the trial. This time Chief Justice Roberts immediately stayed the trial to allow the full Court to consider the motion. And, although the Court once again denied the stay request, here again the fine print of the Court’s order left little doubt that it wanted the Ninth Circuit and trial judge to clean up this mess so that the Supreme Court would not have to take the extraordinary step of intervening.

The exclusive reason the High Court gave for denying a stay was not that mandamus was unwarranted but that the Supreme Court need not be the one to grant mandamus because there was good reason to believe the Ninth Circuit would. In Supreme Court-speak, that is about as close as one can get, short of a formal reversal, to the Court telling the Ninth Circuit to fix the problem. The wording was no doubt a compromise reached by the chief and some of more liberal justices seeking to avoid a worse outcome.

The Ninth Circuit plainly got the hint. A few days later, the appeals court stayed the district court proceedings and asked the trial judge to “promptly resolve” the government’s motion to reconsider the denial of interlocutory appeal. And, while insisting that it had not changed “its belief that this case would be better served by further factual development at trial,” the district judge subsequently made clear she understood what she was being asked to do, and certified the case for interlocutory appeal.

Indeed, the entire turnabout was so head-spinning that one of the three Ninth Circuit judges dissented from that court’s decision to hear the appeal. Judge Michelle Friedland wrote she did not believe the trial judge was truly “of the opinion” that interlocutory appeal was warranted but had “felt compelled to make that declaration.”

As disappointed as the plaintiffs no doubt are, I suspect climate litigation has at least for now dodged a fatal blow. Had the lower courts not retreated and the justices been forced to act, it is not hard to imagine the harsh ruling that would have likely resulted in such an extravagant case — with negative repercussions affecting all climate jurisprudence.

It is not hard to imagine the harsh ruling that would have likely resulted.

Climate litigation has at least for now dodged a possibly fatal blow.

A Transition in Energy Use Is a Moral Imperative
Author
Mike Quigley - House Sustainable Energy and Environment Coalition
House Sustainable Energy and Environment Coalition
Current Issue
Issue
2
Parent Article

It didn’t take the recent release of the fourth National Climate Assessment or the Intergovernmental Panel on Climate Change’s latest report to alert us to the not-so-slowly unfolding ecological and economic catastrophe that is anthropogenic climate change. I’ve witnessed these impacts firsthand through my climate change tours in our national parks. Anyone observing the world and following the science with even a shred of intellectual honesty has long known the dangers that a rapidly warming world presents to modern civilization, and supporting ecosystems, around the world. It has become even clearer that the transition to a climate-resilient, low-carbon economy is a moral imperative.

Recent enthusiasm behind the concept of a Green New Deal, a massive legislative effort to create clean energy jobs, modernize the electric grid, decarbonize the transportation sector, and transition to renewable energy sources, stems largely from dissatisfaction with the federal government’s response to the climate crisis, especially during the Trump era. In addition to his withdrawal from the Paris Agreement and rollback of keystone protections for clean air and water, President Trump has spent an inordinate amount of time and money propping up shrinking fossil fuel industries at the expense of good-paying jobs in clean energy. He has been a singularly damaging figure, standing in the way of responsible environmental stewardship and improved public health.

But bad environmental policy did not start in 2016. Congress has long been an impediment to a proactive approach, and the Republican Party’s hostility to even the most marginal action to reduce emissions is both irresponsible and dangerous. However, the new Democratic House majority is in a strengthened position to stop the current backsliding on environmental protection and clean air regulation.

It is my hope that the recent dire reports of coming climate impact help galvanize the energy needed to achieve a sweeping, economy-wide policy solution: namely, pricing carbon.

Taking a free market approach to emissions reductions, and supplying regulatory certainty by putting a price on carbon pollution that reflects its social cost, is the most effective way to deal with greenhouse gasses across the economy. It lets firms find the emissions solutions right for them. Perhaps more importantly, a carbon price makes the costs of climate change more real and more relevant, which will undoubtedly inform consumer choice and inspire behavioral change from the world’s largest emitters. If consumers start making purchasing decisions based upon the global impacts of those purchases, we’ll see the economy reform much more quickly than through regulation.

Luckily, pricing carbon isn’t the only solution on the table.

As we continue to produce greenhouse gases at an unsustainable pace, the likelihood that we will need to rely on technology to help dig us out of this mess increases. Through its annual appropriations, Congress, frequently in a bipartisan fashion, has provided substantial funding for crucial R&D programs within the Department of Energy. These include the energy efficiency and renewable energy office and ARPA-E, the energy equivalent of the Pentagon’s advanced innovation incubator that spawned, among other things, the internet.

More focus on fostering innovation is needed, and the public sector is best positioned to make the investments necessary to get that done. With government support, private companies have led the way on innovations like direct air carbon capture, grid efficiency, and clean power generation to great effect. U.S. emissions have successfully decoupled from GDP growth, thanks in large part to a reduction in power consumption despite an increase in the number of users.

Perhaps more than any other potential innovation, improved energy storage can revolutionize our approach to climate change. Battery technology has only improved at the margins for nearly a generation, but significantly improved storage can open the door to massively scaling up of variable power generation sources like wind and solar, make electrification of the transportation sector more viable, and provide the energy reliability that proponents of fossil generation claim only resources like coal can provide.

One of our most important assets in the fight against climate change is our ability to attack the problem from multiple angles at once, and improved technology is an important piece of the puzzle.

It should be abundantly clear that we are well past the time for equivocation and inaction on climate change. 2018 was an abject failure in both policy to address the climate crisis and in real-world emissions reductions to combat it, both in the United States and globally. We cannot afford another year like that. Behavior change, perhaps spurred by a price on carbon, is the ultimate goal and the long-term solution, but technological advancements, funded by Congress and overseen by scientists and inventors in the federal government, can give us more time to take the steps needed to curb emissions in the direction of a low carbon, high-growth economy.