<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>

Assess Proposals in the Context of Climate Risks
Author
Edward A. Parson - UCLA Emmett Institute on Climate Change and the Environment
UCLA Emmett Institute on Climate Change and the Environment
Current Issue
Issue
6
Parent Article

The risks climate change poses to human societies and ecosystems are severe. Yet pursuit of cuts in global greenhouse gas emissions has stalled for so long that it is probably too late for emissions cuts alone to limit risks to acceptable levels. This stark reality provides essential context for all discussion of the potential contributions, costs, and risks of geoengineering.

Human activities have already heated the Earth by 1ºC, bringing impacts whose severity grows clearer each year. The 2015 Paris Agreement adopted targets to limit heating to 1.5 to 2ºC, but current policies and actions are far too weak to achieve these. Absent much stronger action, the Earth is headed for 2.5 to 5ºC heating this century, bringing likely disruption to lives, livelihoods, and ecosystems at a scale human societies have never experienced.

Stopping climate change requires cutting emissions to zero. Stopping it near the Paris targets requires cutting to zero within a few decades. This means going from today’s 80 percent reliance on fossil energy to a fully decarbonized economy, plus profound changes to eliminate emissions from agriculture, forestry, and other land-use, and multiple industrial processes.

Some models say 2ºC is still technically feasible, but only with multiple favorable assumptions, including rapid emission cuts starting immediately, low global energy demand, and fortunate outcomes on major scientific uncertainties. This doesn’t mean deep emissions cuts aren’t essential, or that they can’t reduce coming climate change risks: they are, and they can. But today’s efforts are probably fighting to reduce heating of as much as 5ºC to maybe 2.5ºC, still more than the Paris goals.

If this situation is unacceptably dangerous but emissions cuts can’t do much better, what can be done? This question is the reason to discuss geoengineering. It might be able to substantially reduce climate risks. It also presents new risks and challenges, including potentially serious problems of governance. Whether these problems are manageable or severe, they must be considered in the context of the risks of climate change.

The two main geoengineering approaches have different profiles of benefits and risks. One approach removes CO2 from the atmosphere and puts it in some stable reservoir. Proposed methods range from large expansion of familiar forest or soil-conservation practices, to novel chemical methods of direct air capture. Specific methods differ in state of development, potential scale and limits, and environmental and socioeconomic impacts, but have two things in common. First, they act slowly: sucking CO2 out of the atmosphere is draining a swimming pool through a straw. Second, if done at large enough scale they can make net emissions negative and thus reduce atmospheric CO2, not just slow its increase, and so run climate change backwards.

The second approach, solar geoengineering, would reflect away a little incoming sunlight to change the Earth’s energy balance. Promising methods include spraying reflective mist in the upper atmosphere, and making low-level ocean clouds denser and whiter. Unlike carbon removal, this approach does not target the cause of climate change, but instead makes an offsetting change. It is thus an imperfect, incomplete correction for greenhouse-driven climate change, but it has the unique advantage that it can be started, controlled, or stopped over time periods of a year or less. It would also bring its own impacts and risks. Early research suggests the most obvious impacts are surprisingly moderate and potentially correctable, but this is far from a clean bill of health.

Neither approach can replace efforts to cut emissions and adapt to coming climate changes. These both remain essential. But both approaches can complement these to further reduce climate risks. Both need research to characterize how and how well they could work, what risks they would carry, and how these could be mitigated. Both also need serious consideration of how to develop needed capacity for governance, able to make competent, prudent, and legitimate decisions on whether and how they are used, to manage associated impacts and conflicts, and to integrate them into an effective overall climate strategy.

Neither approach is getting the serious investigation and critical scrutiny it needs, but in nearly opposite ways. Assumptions of enormous future carbon removals have quietly become a mainstay of climate planning, heavily relied on in nearly all 1.5 and 2ºC scenarios, with little examination of feasibility, limits, or impacts. Solar geoengineering has been marginalized in climate assessments and policy debates, based on presumptions of severe harm or impairment of climate policy that have also received inadequate research or critical scrutiny.

This has to change. To bet the future on carbon removal working at the required billion-ton scale with acceptable impacts is a reckless gamble. To exclude solar geoengineering from consideration based on untested intuitions that it would be a cure worse than the disease is equally reckless. For all their challenges, these approaches may make things less bad than they otherwise will be, for human society, for vulnerable people and communities, and for ecosystems.

Transparency Needed for Public Trust Globally
Author
Arunabha Ghosh - Council on Energy, Environment, and Water
Council on Energy, Environment, and Water
Current Issue
Issue
6
Parent Article

The world remains on track for more than 3°C of average warming by 2100. That will trigger calls for drastic measures to combat a climate emergency, including carbon removal from the atmosphere or solar radiation management. Geoengineering urgently needs governance — and transparency lies at its heart.

Undeveloped or untested geoengineering technologies are likely to have impacts on rainfall, the hydrological cycle, tropical forests, the ozone layer, and the oceans. Uncertainties abound about the shock if solar geoengineering were deployed at scale and then stopped suddenly. The risk of unilateral action worries those unable to regulate independent scientists, or any country or alliances who choose to experiment or possibly deploy measures. Even if global average temperature were to be controlled, how could responsibility be assigned and liabilities imposed for adverse regional consequences?

There are also ethical concerns about intentions and legitimacy. By reducing incentives to mitigate emissions, geoengineering potentially creates a moral hazard. There is a related worry that investments in research could build momentum down a slippery slope toward deployment. Another concern is the difficulty in ascertaining intent behind geoengineering research or deployment. The ostensible reason could be a response to climate emergencies. But adversely impacted countries or regions would claim a legitimate right to verify if there were malafide intentions. The legitimacy of any experiment or deployment would rest on who has a say over how transborder impacts are assessed.

The long list of risks and uncertainties generates the demand for regulating geoengineering. Answering these concerns implies that research must continue. But effective outdoor research may require large-scale testing, bordering on deployment. Imposing a moratorium only on deployment while permitting research would be challenging to enforce. Thus, not just deployment but also research needs to fall within the ambit of governance.

Transparency must occupy a central role in geoengineering governance. But toward what end? Transparency is needed to minimize public risk. Impacts at a planetary scale need governance arrangements that are more risk-averse than for technologies that have limited physical impacts. In the absence of national or international regulation, a code of conduct for geoengineering research could serve as a stop-gap to control public risks, until more formal governance mechanisms are established. Information on research proposals, risk assessments, and disclosure of research results would be essential components of such a code.

Transparency is also needed to build public trust. This is critical to the sequential unfolding of research stages, from laboratory to field research to large experiments. Academic networks and peer-reviewed journals are insufficient to effectively communicate scientific findings to the public. Research registries might contribute to building trust but cannot replace political processes. National scientific assessments and public and parliamentary hearings would be necessary to effectively engage the public about geoengineering, within the broader context of climate responses.

In order to make transparency work for geoengineering, it has to be institutionalized, not ad hoc. A well-designed information system would perform three functions: disseminating information about national policies and research activities; promoting compliance with codes of conduct via peer pressure among research groups, member countries, explicit sanctions, or pressure from non-state actors; and evaluating the impact of geoengineering research and experiments.

Self-reporting is the most efficient way to disseminate but carries the risk that some information might come too late for regulation. Eventually, there should be mandatory state-to-state disclosure, via a globally negotiated agreement, to empower countries to make informed choices. Moreover, legitimate public engagement requires a bidirectional flow of information between project proponents and stakeholders. It can be long, hard, and sometimes inconclusive, but would be a necessary step in enforcing compliance with codes of conduct.

For overall assessments of geoengineering activities, progressively inclusive governance could be pursued. It would begin with national assessments and national-level consultations to yield governance and transparency templates for different stages of research and experimentation. Thereafter, national policies on geoengineering could be reported to international forums. A combination of government and nongovernmental entities could coordinate for independent peer reviews and international consultations. Accordingly, international assessments of the progress and risks of geoengineering research could be conducted in select multilateral forums.

If these steps increase public trust and minimize risks, an international geoengineering research program could be envisaged, taking account of research capacities, funding, intellectual property, and rules for accountability and liability. Without transparency, there will be more contestation. With transparency, conditions of distrust could be marginally abated.

The Time for Abatement Alone Is Passing Us By — Should Humanity Consider Geoengineering?
Author
Arunabha Ghosh - Council on Energy, Environment, and Water
Edward A. Parson - UCLA Emmett Institute on Climate Change and the Environment
Cynthia Scharf - C2G2/Carnegie Climate Geoengineering Governance Initiative
Simone Tilmes - National Center for Atmospheric Research
Council on Energy, Environment, and Water
UCLA Emmett Institute on Climate Change and the Environment
C2G2/Carnegie Climate Geoengineering Governance Initiative
National Center for Atmospheric Research
Current Issue
Issue
6
The Time for Abatement Alone Is Passing Us By — Should Humanity Consider Geoengi

Scientists have begun to hedge their bets and not count on society decarbonizing in time to avoid disruption to the Earth’s climate system. Even if the dreams of the Paris Agreement are fully realized, the planet may become uncomfortably warm in the near term, bringing severe conditions. Consider current events.

Houston has been hit with two 500-year rainstorms this decade alone. The American West has turned into a tinderbox, with water running out and wildfires devastating populated areas every summer. Miami along with a lot of the rest of southern Florida is slowly slipping into the sea. Russian cargo ships are sailing from Vladivostok to Europe by way of an ice-free Arctic Ocean.

Enter a once-taboo topic shunned by greens and governments alike — geoengineering, a suite of technological remedies to solve the climate crisis or at least buy humanity more time to rid our energy and agricultural systems of greenhouse gas emissions. AT&T’s Braden Allenby wrote about such intervention in these pages 18 years ago. In “Global Warning,” he declared that international efforts at emissions abatement were doomed to failure and that “society should actively manage the entire carbon cycle, using a broad array of technologies and policies to achieve climate stabilization.” What seemed like science fiction then has become today’s unfortunate reality.

The proposals are as diverse as they are serious. One of the most-touted solutions is to reflect incoming solar radiation, perhaps by injecting sulfur particles into the upper atmosphere. Or water droplets injected into clouds could make them more reflective. Another method would attempt to increase heat leaving the Earth by seeding the atmosphere with particles to thin high cirrus clouds that block energy outflow. Engineers have even suggested a huge mirror in solar orbit that would reflect a significant percentage of the sun’s incoming heat.

Other possibilities revolve around removing greenhouse gases from the atmosphere, which can be accomplished through engineering techniques or even seeding the oceans with iron to cause algae blooms that sequester carbon on the seabed. More naturally, planting trees locks up carbon, and silicate rocks can be granulated to enhance their uptake of atmospheric carbon.

All well and good, but scientists are also aware that these techniques could play havoc with the planet’s natural systems, disrupting flows of energy and elements that are vital to habitability. In addition, effects may perhaps worsen some conditions, and may be uneven, creating winners and losers. These unpredictable downside risks as well as climate-saving opportunities imply some sort of international body to manage geoengineering, but society has had some bad experiences in regulating technologies of much less consequence.

Is geoengineering necessary? What techniques will be the most successful while minimizing risks? And who will answer these questions and begin any needed interventions in the Earth’s climate system?

Scientists around the world have begun to hedge their bets and not count on society’s decarbonizing in time to avoid disruption to the Earth’s climate. Enter a once-taboo topic shunned by greens and governments alike — geoengineering, a suite of suggested technological remedies to solve the climate crisis or at least buy humanity more time to rid its energy and agricultural systems of greenhouse gas emissions.

An Unlimited Expansion of the Public Trust
Author
Jeremy Talcott - Pacific Legal Foundation
Pacific Legal Foundation
Current Issue
Issue
6
Parent Article

This case represents a contentious means of trying to address a contentious issue. Plaintiffs maintain that, by virtue of the Due Process Clause or the common law doctrine of the public trust, they have the right to prevent government activity that threatens a life-sustaining climate, and to demand government activity to maintain such a climate. The claims have somewhat tenuous roots in precedent. But their acceptance would represent a substantial step beyond case law. The result would be the creation of vast, unlimited duties for the federal government.

Consider the precedent-setting, and radical, nature of what the Juliana case asks of the federal judiciary. A handful of plaintiffs request that a district court judge make a climatological determination, and then use that finding to decide controversial issues of national policy and foreign relations. Although the court may try to temper plaintiffs’ prayer, the nature of their claims may result in a remedy entailing judicial direction to Congress and the Executive Branch to legislate and to negotiate treaties. The threat to the separation of powers posed by such a remedy should give any reviewing court pause.

Although proponents of those claims paint them as logical outgrowths of existing doctrine, such a “domesticating” characterization is implausible. To be sure, incorporation of explicit textual protections in the Bill of Rights has progressed relatively continuously (if not rapidly) under the Due Process Clause. But federal courts have historically been reluctant to identify new unenumerated fundamental rights, like the climate right advanced in Juliana. And those unmentioned rights that have been recognized are alleged to be rooted in the protection of individual liberty and personal choices: the right to parent one’s children, the right to marry a person of a different race or the same gender, and the right to privacy. A purported right to a life-sustaining climate does not track readily to this pattern. Instead, it takes the due process analysis one step broadly back to encompass interests that are necessary for life itself, regardless of political and social concerns.

Although a right to a life-sustaining climate might seem attractive as necessary to the exercise of all other rights, it unmoors substantive due process from the protection of the individual, and constitutionalizes almost every aspect of human survival — as for instance a governmental obligation to eradicate preventable diseases.

While some will argue that global warming is a unique threat, it’s not difficult to imagine a lawsuit challenging the government’s failure to prepare for imminent comet or asteroid bombardment, which “will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem.”

The public trust argument advanced in the Juliana case fares no better. Historically, the doctrine in America was limited to the preservation of certain public uses of navigable waters: commerce, navigation, fishing, and bathing. The doctrine required governments to consider impacts to those uses before making public — or approving private — land-use decisions that might harm those uses.

In the early 1980s, environmental litigators successfully obtained the doctrine’s expansion in many jurisdictions to cover new trust uses, such as recreation and environmental protection. The expansion of the public trust doctrine to the atmosphere — apparently what the Juliana plaintiffs want — would de facto establish judicial review of almost every government decision.

So far, the district court has okayed the public trust theory only because of global warming’s impacts to coastal waters, tidelands, and navigable waters. But this is not much of a limitation. There are relatively few land-use activities that have purely localized impacts. Development, landscaping, grading, agriculture; all have complicated effects that can eventually impact complex environmental systems that are hydrologically connected to navigable waterways. Courts are ill-placed to make the tough policy trade-offs required to balance economic development and property rights with environmental protection.

Such questions — which are especially thorny in the context of global warming — make the efforts of the Juliana plaintiffs all the more worrisome. The explosion of wealth and progress over the last 150 years represents a triumph of humanity. The increase of greenhouse gases during that period was the trade-off. We now have a complex and difficult question before us: what will we trade for a world-wide reduction in carbon dioxide levels? The question is far from an easy one, and may become the defining question of the next generation. The Juliana lawsuit seeks to craft an answer through negotiations with a handful of plaintiffs and attorneys, and a single judge. That should frighten us all.

A Safe Environment is a Constitutional Right
Author
Irma S. Russell - University of Missouri - Kansas City School of Law
University of Missouri - Kansas City School of Law
Current Issue
Issue
6
Parent Article

In Juliana v. United States, one of those cases brought as part of the Atmospheric Trust Litigation, a group of 21 young people sued the federal government for failing to act to protect plaintiffs against risks the defendants “have known for more than fifty years.”

In the trial, which was set to begin in late October in the federal District Court for the District of Oregon, the plaintiffs will seek to show that government actions such as permitting of fossil fuel sources destabilize the global climate system and endanger lives, including the lives of the plaintiffs. Rather than suing for damages, plaintiffs seek a court order to require the federal government to use science-based regulation to combat climate change.

Arguing that the government has an affirmative duty to act, plaintiffs invoke the public trust doctrine and the constitutional rights to life, liberty, property, and a clean and healthful environment. They seek judicial redress in the face of legislative failure to protect these rights of people. They allege that “affirmative aggregate acts of defendants have been and are infringing on plaintiffs’ right to live [with a] stable climate system.”

Specifically, plaintiffs claim that government policies and actions undermine the capacity of people to “provide for their basic human needs” and to safely raise families, practice religious beliefs, maintain their bodily integrity, and “lead lives with access to clean air, water, shelter, and food.” In finding the lawsuit may proceed, the court stated: “Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” This statement by the district court mirrors the Supreme Court’s test for fundamental, constitutional rights.

To obtain judicial relief, plaintiffs need to show that a fundamental constitutional right is at stake. Absent such a showing, conventional wisdom is that the political process would be plaintiffs’ only recourse. In assessing the question of fundamental rights (and, thus, the possibility of judicial redress) the District Court will examine our history, legal traditions, and practices. Using this analysis, the Supreme Court has recognized a range of fundamental — that is, inalienable — rights, including privacy rights and rights of personal autonomy such as the right to marry and have a family.

In Obergefell v. Hodges, the Supreme Court recognized the fundamental right of same-sex couples to marry inherent in liberty and arising “from the most basic human needs.” Courts apply this analysis to actual circumstances of present controversies. Indeed, because of the “case or controversy” requirement, constitutional rights are not stated except when a court finds the denial of the right. For example, no “right to marry” decision would have been recognized (or needed recognition) but for the state laws denying the right of same-sex couples to marry.

The founders of our country promised protection of specific rights against government oppression and, in the Ninth and Tenth Amendments, rejected a reductive reading that would limit the rights of the people and states to those named. The Founders relied on the touchstone of the public good as a foundation for personal freedom and political stability, and they set in place a system of separated powers in three co-equal branches of government to sustain the public good for future generations.

The preamble to the Constitution states its purpose of serving the public good: “To establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” It echoes the maxim Salus populi suprema lex esto, “The good of the people is the supreme law.”

Government action is often couched in terms of political choice rather than responsibility. Importantly, however, the legislature consistently recognizes the principle of serving the public good. In passing the Clean Air Act, for example, Congress pointed to “mounting dangers to the public health and welfare” as the basis for its action.

While people look first to the legislature to provide protection against threats to the general welfare, taking the science of climate change seriously means that the legislature is not the last place to look. All three branches of government are responsible for securing the fundamental rights of the people and serving the public good. The Juliana case requests regulation of greenhouse gases. Plaintiffs seek judicial imposition of positive requirements to protect the plaintiffs and others against the urgent threat of climate change. In so doing, they raise the question whether a right to a healthful environment — like the right to marry and other personal rights — is central to personal autonomy.

Blaming Workers "Very" Poor Policy
Author
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
5

Since moving to Washington almost 40 years ago, I’ve had two main editorial gigs. In addition to my current post, I was editor of the American diplomats’ magazine, the Foreign Service Journal, during the Reagan years. Most of the Journal’s audience are Foreign Service officers, who sign after their names, “Esq.” Most of The Environmental Forum’s audience are lawyers, who also sign, “Esq.”

That was just an amusing coincidence between two professional magazines, but now both of the agencies they mainly cover, the State Department and the Environmental Protection Agency, have been threatened with having their budgets and staffs savaged. To date, Congress hasn’t gone along, but the danger is causing poor morale at these agencies and hundreds to already quit voluntarily. As these workers’ longtime chronicler, critic, and champion, I feel compelled to respond.

It seems the esquires and other professionals at State and EPA are now deemed to be a “deep state” conspiring to its own ends and disloyal to the new administration and its policy priorities. Suspicion of career officials is not new, but over time all previous presidents have come to respect the civil service; they recognize that, bureaucratic inertia aside, its ranks are loyal to their country and eager to carry out mandates designed to better the lot of Americans.

A cost-benefit analysis of American diplomacy would note that since the end of World War II, an unprecedented era of worldwide peace and prosperity has grown and endured. Experienced diplomats established the financial and trade institutions that underpinned a huge expansion in wealth driven by improvements implemented by workers, business, and agriculture. Since 1960, global per capita GDP has increased 22 times in constant dollars. Human life spans have leaped from 48 years in 1950 to 71 years in 2015 — and a decade more in developed countries.

Professional diplomats were also at the epicenter during the Cold War and kept the pressure on the Soviet Union via containment until it collapsed. And the Foreign Service helped create the military alliances whose might created the environment for that implosion.

The Foreign Service can only take partial credit, for helping to create the framework and oiling the gears, but the United States has benefited hugely from its tiny investment in fielding a professional diplomatic corps whose numbers couldn’t even fill a hockey arena.

Now the international system they have helped to build is subject to attack. “Other presidents have understood,” the Washington Post said, “that the United States has gained, disproportionately, from a system in which it helps keep the peace without keeping crabbed accounts on its national ledger.” The same can be said about Trump’s attacks on the world trading system, where he sees other countries as robbing the American “piggy bank.” He blames the situation he beholds on his Oval Office predecessors and especially the weak professionals at State.

According to Foreign Policy, a Trump acolyte in the department is combing through social media to compile a list of officials who have supposedly been disloyal. Trump has experienced diplomats processing FOIA requests and has refused to name ambassadors to key countries or to fill other crucial posts. Trump also nearly tweeted away diplomatic immunity, exposing our government workers to real danger.

The fact that 99 percent of foreign affairs — of maintaining “our first line of defense” — is at the level of daily transactions among professionals serving in hundreds of countries has not occurred to him. Or as Defense Secretary James Mattis has said, if State’s budget is reduced, “Then I need to buy more ammunition.” But when asked about Trump’s proposal for a 30 percent cut, Secretary Mike Pompeo said cryptically, “I’ll make sure we have every single dollar we need and not one dollar more.”

Likewise, EPA is a useful and good agency Trump wants to ravage to upend its successes. The benefits of environmental protection have vastly outweighed the cost to American businesses and taxpayers, by between $113-741 billion a year, according to 2014 OMB data. Yet Trump and his first agency administrator came into office seeing the skilled professionals who helped accomplish this as an enemy — it was time to “deconstruct the administrative state.”

Scott Pruitt began the process by measuring his success using a different yardstick than his predecessors: beating down the professionals who dutifully implement and enforce the statutes passed by Congress and signed by the president, as detailed and directed under law and under careful court scrutiny. “When you look at what’s going on at the EPA, that agency has been a bastion of liberalism for years and years and years,” Pruitt told a radio host. He said the agency “was weaponized historically” against business. Representative Betty McCollum (D-MN) countered, “‘Staff has been under attack during your tenure’ and ‘there’s documented retaliation, as far as I’m concerned,’” according to the Washington Post. In fact, “the U.S. Office of Special Counsel is investigating whether . . . Pruitt retaliated against staffers who questioned his spending and management decisions.”

Pruitt is gone. According to E&E News, acting Administrator Andrew Wheeler “has signaled an increase in press access and engagement with career staff,” both principles that were anathema to his predecessor. And at State, Pompeo, who succeeded the dour institutional decimator Rex Tillerson, is said to be more popular among the Foreign Service employees and other civil servants who staff the department headquarters and overseas posts.

If they care to listen to professionals who want nothing more than to uphold their oaths of office, Wheeler and Pompeo will be well served in implementing the president’s policies.

Notice & Comment is written by the editor and represents his views.

 

Critics Call Bailout of Coal, Nuclear Plants “Trump Socialism”

The Trump administration’s plan to bail out the beleaguered nuclear and coal industries continues to draw sharp reaction from critics, with activists now claiming it will cost Americans as much as $34 billion more a year for electricity.

Meanwhile, Howard Learner, executive director of the Chicago-based Environmental Law & Policy Center, claims the directive that was announced June 1 is largely a result of lobbying on behalf of FirstEnergy Corp. by President Trump’s former campaign manager, Corey Lewandowski. . . .

Murray Energy is a major mining company that supplies coal to many affected power plants.

“Clearly, FirstEnergy and Bob Murray of Murray Energy have been aggressively lobbying the Trump administration for a bailout,” according to Mr. Learner, who said the directive would interfere with the marketplace to ensure cash flow for executives from noncompetitive corporations.

“President Trump is asking the public to subsidize the losers,” Mr. Learner said.

Former U.S. Nuclear Regulatory Commission board member Peter Bradford [said], “This is about favors and political paybacks. . . . It’s not Bernie Sanders socialism. It’s Trump socialism, because the benefits aren’t going to the public at large.”

The Toledo Blade

 

“Scott Pruitt’s . . . claim that benefits have been inflated in EPA regulatory decisionmaking is simply not borne out by the facts, and in today’s far-reaching announcement, he is doing nothing short of cooking the books so that polluters always win, and people always lose.”

— Sara Chieffo, vice president of government affairs, League of Conservation Voters

 

The Tragedy of the Commons Writ Large

Maybe planet-wrecking behavior is generic to technology, or so says astrophysicist Adam Frank, as reported in Popular Science. The venerable publication cites an article in a more obscure journal, Astrobiology, and notes, “A generic feature of any planet evolving a species that intensively harvests resources for the development of a technological civilization” is what biologists, geologists, and anthropologists call the Anthropocene, the era in which Earth’s environment has been shaped by humans.

“Frank borrowed from population ecology to devise models that represent the relationship between a civilization and its planet, using mathematical equations similar to those used by anthropologists to represent the rise and fall of ancient civilizations, like the one on Easter Island.” The result? “When you get advanced enough, and start consuming resources and energy at a fast enough clip you necessarily start to change your home planet on a global scale.”

Frank says that because of feedback loops that allow civilizations to respond to environmental stressors, dystopia isn’t the necessary result. Disturbingly, however, it’s the immutable outcome in three out of four scenarios. He labels the three bad results on graphs showing the declines as either a gradual die off, a brutal collapse without resource change, and a still severe collapse with resource change. In other words, if humanity does nothing, we all die, either in a cataclysm or slowly. But even if we do alter course, chances are the collapse still occurs.

The fourth outcome is sustainability. Strangely, the popular magazine doesn’t define what that means or how to get there, which makes sense because The Environmental Forum has also puzzled over sustainability. It would appear that humanity needs to recognize its resource constraints, but faster and more aggressively than in the outcome in which constraints are recognized but there is still a collapse.

But let’s not fault Popular Science here for not describing sustainability. Gro Brundtland laid down the challenge to humanity in 1987’s Our Common Future. Her definition suffers from tautology, however: sustainability is living such that you do not deprive succeeding generations of the resources they will need. Maybe surviving means we sustain the means of survival.

Right now we are using resources at a rate equivalent to two planet Earths, so we are outside Brundtland’s boundary. That is a challenge to environmental professionals, who are in the best position to inform policymakers and the public about defining sustainability and how to get there.

Christie Manning is an assistant professor of environmental studies and psychology at Macalester College whose field encompasses “how people respond to information about climate change.” She says, “If you want to encourage action, fear is often counterproductive.” Further, it “narrows our thinking and makes us less willing to work with those who are different.”

Blaming Workers "Very" Poor Policy

Take on Tackling Carbon Emissions by Charging True Cost to Society
Author
Kathleen Barrón - Exelon Corporation
Exelon Corporation
Current Issue
Issue
5
Kathleen Barrón

Recently, the Federal Energy Regulatory Commission and regional grid operators have considered how to address the effects of state clean energy policies on electricity markets. These actions have highlighted the challenges in reconciling state preferences for low-carbon generation with the least-cost dispatch system used in competitive markets.

Often states incentivize clean generation with technology-specific procurement requirements, which have increased the supply of preferred zero-carbon capacity. However, this approach can overlook opportunities to reduce emissions by switching from carbon-intensive sources to sources that emit less. An alternative is to price the cost of the unwanted pollution into the market and use the power of competition to find the most effective solution.

In a 2017 column, I provided a survey of state efforts to price carbon in the absence of federal action. As these efforts move forward and calls for federal action resume, an example worth examining more closely is the New York Independent System Operator’s effort to price carbon emissions directly in wholesale electricity markets.

Using both logic and innovation, NYISO has established the Integrating Public Policy Task Force to develop a straw proposal for how the state could accomplish this. The charge to NYISO is simple, elegant, and potentially revolutionary: harmonize the state’s ambitious energy and environmental public policies with wholesale markets. In other words, NYISO is evaluating whether and how competitive markets can support rather than impede New York’s ambitious clean-energy goals, including a 40 percent reduction in carbon dioxide emissions by 2030.

NYISO’s proposal is, on its face, quite simple: charge carbon-emitting generation resources their true costs of emissions, and dispatch generators according to their real marginal costs. The elements of the proposal are establishing a carbon price, integrating it into generation dispatch, and collecting the revenue and returning it to customers. However, there are important policy decisions underlying each step.

An initial decision is to settle on a value of avoided carbon emissions. In another proceeding establishing a clean-energy standard, the state already formulated the social cost of carbon, which provides NYISO with a clear statement of policymakers’ value of avoided emissions. Once the SCC is established, each individual generator would add it to their other costs of generation to calculate their energy bids. Higher-emitting resources would reflect higher costs, and zero-emitting resources would reflect lower costs, thus supporting New York’s goal of achieving lower emissions.

For example, if the SCC were $50 per ton, the unit-specific value for a coal plant would be approximately $40 per megawatt-hour. Thus, if its bid before the carbon adder were $20 per megawatt-hour, its bid would now be $60, and it would run and emit much less.

Importantly, unlike under other regulatory options, the coal plant would not be prevented from running if needed to preserve grid reliability; however, the true cost of doing so would be known and the plant would only be called on after less-polluting options were exhausted. This solution will reduce emissions over time and send an investment signal for cleaner generation. As a variable cost, a carbon adder integrates well with the current energy market framework. This is analogous with NYISO’s current practice of dispatching units that have paid a variable carbon cost via allowances under the multi-state northeastern Regional Greenhouse Gas Initiative.

A key difference from RGGI, however, is the need to address emissions leakage caused by import and export inequities with neighboring regions or control areas. Often short-handed as border mechanisms, these policies need to be established to ensure higher-emitting, out-of-state resources do not supplant in-state resources, leading to a shifting of generation and emissions to states with a lower assessed cost of carbon. This leakage would lead to an export, rather than reduction, of emissions. To prevent this, NYISO is evaluating several options to effectively charge imports the same carbon price faced by in-state generation and conversely, credit exported electricity.

Given the urgency of the climate challenge, we commend NYISO for undertaking this nation-leading effort to properly valuing generators’ environmental attributes and achieving New York’s carbon reduction goals. The climate can’t wait.

The author is grateful for the assistance of Kathy Robertson in developing this column.

Take on tackling carbon emissions by charging true cost to society.

Linkage Will Prove Essential for Ultimate Success of Paris Agreement
Author
Robert N. Stavins - Harvard Kennedy School
Harvard Kennedy School
Current Issue
Issue
5
Robert N. Stavins

The hybrid design of the Paris Agreement was key to its successful enactment in 2015, as well as its coming into force a year later. The combination consists of centralized and decentralized elements. The top-down elements include the requirement that countries state their national contributions every five years, a schedule which is binding under international law for those jurisdictions that have ratified the agreement. The key bottom-up element is the set of individual Nationally Determined Contributions (or NDCs), which are not part of the agreement itself but rather are listed in a separate registry. These are not binding under international law, but rather are left to the domestic authority of the respective parties.

It was primarily this dual structure that led to the achievement of one of two necessary conditions for ultimate success of the Paris Agreement, namely adequate scope of participation, which includes countries accounting for 97 percent of global emissions, compared with the 14 percent that are covered by the Kyoto Protocol.

But adequate participation is only one of two necessary conditions; the other is adequate collective ambition. Unfortunately, the fundamentally voluntary nature of the NDCs — which, as I noted above, is precisely what facilitated the exceptionally broad scope of participation — works against adequate ambition to address this global commons phenomenon, which is plagued by the free-rider problem.

This raises the key overall challenge that will face the negotiators in Katowice, Poland, in December at the 24th Conference of the Parties of the United Nations Framework Convention on Climate Change: What can they do to encourage countries to increase over time the ambition of their individual contributions? That is where carbon markets and cooperation among jurisdictions potentially come in.

Largely because cooperation among jurisdictions — including through carbon markets — can lower abatement costs, it may be essential for the ultimate success of the agreement. This cooperation might take the form of international linkage, where by linkage I mean connections among policy systems that allow emissions reduction efforts to be redistributed among those systems.

Such linkage is typically framed as between cap-and-trade systems, but regional, national, and subnational policies are and will be highly heterogeneous, including not only cap-and-trade, but offset systems, carbon taxes, performance standards, and technology standards. We already see this sort of heterogeneity within the European Union’s own set of climate change policies, as well as within California’s suite of climate initiatives.

The good news is that linkage among highly heterogeneous policies is eminently feasible, as I have written about previously in this column, drawing on my research with Michael Mehling of MIT and Gib Metcalf of Tufts University. The even better news is that one part of the Paris Agreement provides a potential home for such international cooperation, linkage, and carbon markets — Article 6.

Provision for markets and such cooperation is implicit in Article 6.2, which allows for approaches involving Internationally Transferred Mitigation Outcomes, which can function as an accounting mechanism for trades, exchanges, and other forms of cooperation among countries.

There are important advantages to such cooperation, including financial savings by allowing firms to take advantage of lower-cost abatement opportunities in other jurisdictions, but there are also real concerns about linkage, including distributional impacts within and across linked jurisdictions.

Thinking about the ongoing climate convention negotiations, most types of heterogeneity — of policy instruments, level of political jurisdiction, and nature of NDC targets — do not present insurmountable obstacles to linkage, but some do present real challenges, and indicate the need for specific guidance as the Paris rulebook is written. But if guidance extends much beyond basic accounting rules, then restrictive requirements could actually impede effective cooperation. True to the nature and spirit of the agreement, less can be more!

So, as the negotiations proceed, a combination of common accounting rules and an absence of restrictive conditions can accelerate linkage, allow for broader and deeper climate policy cooperation, facilitate the emergence of a robust global carbon market, and — most important — increase the latitude of the parties to scale up the ambition of their long-term emission reductions.

Whether any or all of this will come to pass, we simply do not know as of now. As usual, only time will tell.

Linkage will prove essential for ultimate success of Paris Agreement.

Trump's Coal Mandate Ignores the Real Threat to National Security
Author
David P. Clarke - Writer and Editor
Writer and Editor
Current Issue
Issue
5
David P. Clarke

Scientists understand that climate change looms ever more urgently as a cataclysmic threat to both the Earth’s biodiversity and human society. Rejecting the issue, however, the Trump administration isn’t content to merely halt or weaken Obama-era carbon regulatory programs and to withdraw from the global Paris climate agreement. In June we learned that the Department of Energy is weighing a proposal to help prop up failing coal and nuclear power plants that market forces would shut down, a policy DOE suggests is needed to avoid a power-generation shortage that might threaten national security.

But the closure of uneconomical plants “is not a national security issue,” says retired Vice Admiral Dennis McGinn, an advisory board member of the Center for Climate & Security, a nonpartisan institute guided by military and security experts. While perhaps once vital to U.S. national security, coal-fired power is no longer essential, and skewing markets to help the fossil-energy sector is generally a bad idea for the U.S. power portfolio and overall economy, McGinn says.

The Defense Department has long recognized climate change as a genuine threat to national security, McGinn adds. In the West, multi-year droughts and resulting possible wildfires hamper the ability of Army and Marine Corps bases to conduct realistic live-fire training. West Coast beach erosion and shifting harbor contours also constitute a threat. At the Hampton Roads military complex in Virginia, sea-level rise as well as the growing frequency and intensity of mid-Atlantic hurricanes are top concerns. Globally, climate change is a threat multiplier for instability, as recognized by the CNA Military Advisory Board in 2007 and again in 2014, when 11 retired generals and admirals concluded climate-related national security risks are “as serious as any challenges we have faced.”

When it comes to national security, DOD civilian and military leaders need the best possible data and objective analyses to understand security environments in which the military will have to operate five to 20 years into the future, McGinn says. For example, when various stresses destabilize societies, para-military groups, drug cartels, terrorist organizations, and others exploit the resulting power vacuum, and a U.S. military engagement could result or resources vital to national security could be threatened.

Regarding the proposal to bail out failing coal and nuclear plants, McGinn notes that an overlooked consequence of DOE’s reliance on the 1950 Defense Production Act’s authority as a basis for supporting the continued operation of uneconomical electricity plants is that billions of dollars would likely be diverted from defense budgets under such a policy, siphoning off more traditional national security funds.

While the Federal Energy Regulatory Commission’s June 12 hearing made clear that no grid reliability emergency exists, and diverse groups including conservative think tanks, Big Oil, and other energy organizations oppose DOE’s proposal, activists remain concerned that it nevertheless could have traction.

It is troubling that the administration has wrapped its proposal “in the national security flag,” says Gillian Giannetti, staff attorney with the Sustainable FERC Project, a clean-energy coalition, because “certain deferential standards can come with that.” But, even if DOE’s security assertions could make immediately defeating the proposal more difficult, the proposal lacks factual and legal support that ultimately will make it untenable, she adds.

According to Giannetti, dozens of reports have shown that grid outages are the result of distribution system weaknesses and grid elements outside of FERC’s direct authority that could be addressed at state and regional levels. Fuel security is not the reason the lights go out, she says, noting that less than 1 percent of outages were caused by fuel shortages. Real security issues, such as climate change impacts and cyber invasions, could take out distribution systems. But grid resilience and security could be enhanced by encouraging a broader, robust energy system that fully integrates distributed resources, such as wind and solar, with large-scale power generation, Giannetti says. DOE’s proposal would divert finite government resources from the real issues, she concludes, and ultimately consumers and taxpayers would pay for any bailout.

As DOD seeks objective information to understand the climate threat, a recent report by the progressive Center for American Progress, “Burning the Data,” finds that Trump requests would have cut federal climate and energy data and research funding 16.8 percent. Thankfully, appropriators rejected those cuts, though Trump is still trying.

Meanwhile, according to the National Oceanic and Atmospheric Administration, in 2017 the U.S. spent $306.2 billion on weather and climate-related disasters.

Almost no security or energy analysts support the president’s generation policy.

William O. Douglas's Former Clerk Sitting on Key Climate Change Case
Author
Richard Lazarus - Harvard University
Harvard University
Current Issue
Issue
4
Richard Lazarus

A path-breaking climate case now pending in federal district court, The People of the State of California v. BP P.L.C., has surprising roots in the environmentalists’ most celebrated Supreme Court justice. William O. Douglas was an uncompromising green. He served on the Court for almost 37 years, longer than any other justice. Yet, to his great unhappiness, failing health compelled Douglas to resign in 1975 just when modern environmental law in the United States was emerging in full force.

Justice Douglas’s former law clerk, Judge William Alsup, is the presiding judge in the BP case, in which San Francisco and Oakland are suing under California public nuisance law the largest producers of fossil fuels. The complaint’s gist is that the defendants, “despite long-knowing that their products posed severe risks to the global climate,” nonetheless “produced fossil fuels while simultaneously engaging in large scale advertising and public relations campaigns to discredit scientific research on global warming.” The complaints seek an “abatement fund” to pay the costs of addressing rising sea levels.

The case before Judge Alsup is one of several such state common law climate cases recently brought by private tort plaintiff firms. The lawsuits are modeled after the successful multimillion-dollar litigation brought by states against the tobacco industry. Like the tobacco litigation, the climate complaints allege that the relevant industry knew and hid from the public scientific studies that demonstrated the harm its product was causing.

The new litigation is deliberately different from the climate nuisance cases rejected by the Supreme Court in American Electric Power Co. v. Connecticut in 2011. In AEP, a unanimous Court held that the federal Clean Air Act displaced the availability of a federal common law nuisance action for injunctive relief to limit the greenhouse gas emissions from the nation’s power plant industry.

First, these latest lawsuits are expressly based on state, not federal common law. They accordingly both avoid AEP’s holding that the federal common law of nuisance has been overridden by the CAA and take effective advantage of the act’s express preservation of state law causes of action.

Second, the defendants are the largest fossil fuel producers and not, as in AEP, the largest emitters. The suits accordingly do not, as in AEP, seek redress on the theory that the defendants themselves emitted unreasonably high levels of greenhouse gases. They instead allege that unduly high levels of greenhouse gas emissions resulted from defendants’ knowing concealment of scientific information that might well have prompted the public to demand, and the government to require, significant emissions reductions decades ago.

It is far too soon to discern whether these ambitious theories of tort liability will be successful. But, in early skirmishes, there has been a noteworthy development.

In February, Alsup granted the defendants’ motion to remove the cases from state court. The plaintiffs had argued removal was inappropriate because their cases relied exclusively on state and not federal law. Alsup held that removal was appropriate because plaintiffs’ complaint, though couched in terms of state nuisance law, must be understood to be based on federal common law. Relying on the Supreme Court’s 1972 ruling in Illinois v. City of Milwaukee, Alsup reasoned that it made no sense to have a lawsuit with such a broad geographic and national sweep be governed by state rather than federal common law.

Yet, the defendants who won their removal motion may regret their victory. The plaintiffs seem to be embracing their defeat. The likely reason for the reversal is that, in granting removal, Judge Alsup indicated that, unlike in AEP, a federal common law of nuisance action against fossil fuel producers might not be displaced by the CAA. Alsup’s suggested distinction is that the current cases base tort liability on concealment of information, which, unlike emissions levels, is not regulated by the federal statute.

Nor did Alsup stop there. He further ordered the parties to provide his court this past March with a five-hour “global warming and climate change tutorial.” A math major in college, Alsup pummeled the scientists and Chevron’s attorneys with specific questions on climate science.

Whether Alsup’s initial embrace of the case will lead to a favorable ruling for plaintiffs remains unclear. A different federal judge in California rejected an identical removal petition filed in another batch of municipal climate nuisance cases. What is clear, though, is that Judge Alsup’s former boss would be pleased. The author of the Supreme Court ruling in Illinois v. City of Milwaukee upon which Alsup relied for his ruling endorsing federal common law of nuisance was Douglas, of course, and Alsup was his law clerk at the time of that 1972 ruling.

William O. Douglas's former clerk sitting on key climate change case.