Taking Stock of the Paris Agreement’s Stocktake
Scott Fulton - Environmental Law Institute
Susan Biniaz - Department of State
Angela Barranco - Climate Group
Jennifer Huang - Center for Climate and Energy Solutions
Charles Di Leva - Sustainability Frameworks, LLP
Marshall Shepherd - University of Georgia
Environmental Law Institute
Department of State
Climate Group
Center for Climate and Energy Solutions
Sustainability Frameworks, LLP
University of Georgia
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The Paris Agreement on climate change requires parties to carry out a global “stocktake” every five years to evaluate collective progress toward achieving long-term goals and purposes. The Environmental Law Institute invited an expert group to form our inaugural Firestone Policy Forum panel, held on the afternoon of the annual Award Dinner in October, to discuss how much progress has been made nationally and globally in meeting greenhouse gas reduction targets.

The stocktake constitutes a critical moment to evaluate global progress in achieving greenhouse gas reductions and for parties to the climate convention to determine if, when, and how acceleration is needed to realize the Paris Agreement’s overarching goals.

The stocktake process has three phases: first, information collection and preparation; second, a technical assessment of information; and third, a consideration of outputs. The third phase, which the Firestone discussion previewed, included a presentation of the findings at COP28, the 2023 United Nations Climate Change Conference in Dubai, held in December.

The first global stocktake took place over several months, and the Firestone panel’s conversation summarized some of the lessons already learned from the assessment, including suggestions for strategies needed to stay on track to meet the agreement’s temperature goals.

What progress has the United States made toward its Nationally Determined Contribution to reduce net greenhouse gas emissions by 50-52 percent below 2005 levels by 2030? Where does broad international progress toward the Paris Agreement goals stand? What impact will the stocktake have on global climate policy?

Scott Fulton, moderator: Climate change has been billed as a “whole of society” challenge. Our approach will be to examine the question of progress through a number of key societal lenses—governmental/intergovernmental, the private sector, the finance sector, and civil society writ large.

Leading off will be Susan Biniaz, one of the State Department’s senior-most diplomats working on climate change. Sue is the right hand of Special Envoy for Climate John Kerry and has for more than 25 years served as the lead climate lawyer for the United States. In that capacity, she has played a central role in all major international climate negotiations, including the Paris Agreement.

Susan Biniaz: I thought I would take you back to 2015, when we were concluding the Paris Agreement, to give you background on how we ended up with the so-called global stocktake.

There were several countries on the road to Paris that called themselves the “High Ambition Coalition.” The United States joined them toward the end. They were seeking to make sure that the agreement was long-term and that it had an “ambition cycle”—so there would be some kind of collective review of how the parties were doing. That review would inform the next set of Nationally Determined Contributions and so on until the goals of the agreement were met.

The temperature goal of the Paris Agreement is to limit warming to well below 2 degrees Celsius and pursue efforts to limit it to 1.5 degrees. But the NDCs that were on the table just before the Paris meeting—there were about 185 of them—they added up to something closer to 2.7 degrees. That’s what put the global stocktake over the edge, where people realized it was untenable to have an agreement with that set of initial NDCs without structuring it with a long-term design.

So what does the global stocktake look like? Well, it was written to be a collective review, which is really important. The global stocktake doesn’t look at how each individual country is doing. That’s more of the transparency regime under the Paris Agreement, where you have to report and be reviewed individually.

The other thing to know about it is it addresses all three of the long-term goals of the Paris Agreement. The first one is of course the temperature goal. The second one is to enhance adaptation and resilience. And the third is related to finance—to align financial flows in the world with those other two objectives.

One other thing to know about how the global stocktake is structured is that it is to inform the next round of NDCs. The next targets are due in 2025 and they are to address the 2035 time period.

This first stocktake is important for a few reasons. First, it sets the precedent for what these global assessments are going to look like. It also sends the signal to the world, to the marketplace, of how the parties think they’re doing, along with what needs to happen next. And it shows whether the parties to the agreement are up to the task of reviewing themselves.

For each topic under the stocktake, we think there should be backward-looking and forward-looking pieces. So it should look at the positive progress that’s been made since 2015, then at what still needs to be done. Before the Paris Agreement, scientists said the world was on track to something like 4 degrees Celsius of warming. Now, depending on which metric you use, we’re much closer to 2 degrees. Some will say, if everything were implemented that has been committed to, we’d be on track to 1.7 degrees. So clearly we’re in much better shape than we would have been without the Paris Agreement. Two hundred countries have put in NDCs. Way over 100 have updated them already. Over 100 countries have put in long-term strategies. You can’t open the newspaper these days without seeing some reference to a Paris-aligned target or a net-zero goal. Other international fora that we work in have also tried to align themselves with the Paris temperature goal; if you go to the International Civil Aviation Organization, they’ve now taken on a net-zero goal and adopted measures to try to get there. This past summer the International Maritime Organization did the same thing. So there’s been a lot of progress.

But if you look at IPCC reports—especially the latest assessment—and reports of the International Energy Agency, we are not yet on track to keep a 1.5 degree limit within reach. Then the question is what to do about this gap. You have to decarbonize the energy sector. That has a renewable energy component. It has a fossil fuel phaseout component. Deforestation has to stop by 2030. And in terms of the next set of NDCs, in our view they need to include all greenhouse gases. Some of the major economies have only included CO2 so far; to keep on a 1.5 degree trajectory, they need to broaden the scope of their NDCs.

In terms of challenges surrounding the global stocktake, one is that it’s a consensus process. Even if you agree on the gaps, there will be disagreement about the responses and who’s responsible for those responses. Another is that there are some countries that have experienced buyer’s remorse. They signed on to the agreement, but they don’t really love the design. Paris moved beyond the developed/developing dichotomy that was in the Kyoto Protocol. It took many years to create a new paradigm. Unfortunately, there are some large countries using the global stocktake as a back doorway of trying to renegotiate the Paris Agreement. Another challenge is that, of course, it will take money to implement the kind of responses that we’re talking about.

Finally, there is the issue of “loss and damage.” At the Glasgow COP, which was two years ago, there was a push by some of the more vulnerable countries to have funding to address loss and damage. That was a completely new issue. That had not been included in the Paris Agreement and it was controversial. Fast forward another year, at the COP last year in Sharm el-Sheikh, the push went beyond that. And this past year there has been a smallish group, about 24 countries, looking into establishing a new fund. The issues include where the fund should sit, as well as who the beneficiaries should be. The Sharm el-Sheikh COP agreed that the beneficiaries of the fund would be the particularly vulnerable countries, but questions have arisen whether that includes all developing countries, whether it’s just the small islands and the least-developed countries, or whether you leave it to the board of the new fund to decide.

Then you have the issue of “from whom,” i.e., who is asked to contribute. Is it just developed countries? Our view would be absolutely not. We’re in completely uncharted waters when it comes to loss and damage. There is no donor group and everybody should be invited. But some big developing countries want to make sure that they’re not invited to contribute.

One thing that’s important, just for an American audience, is loss and damage funding is not about liability and compensation. And that’s written into the mandate because that was a sensitive issue for the United States in the Paris Agreement. When we agreed to this loss and damage article, even though it wasn’t about funding, it was very important to stipulate that—because the chances of getting funding pitched as compensation or reparations would be slim.

Scott Fulton: Let’s remind ourselves what the United States’ current Nationally Determined Contribution under the Paris Agreement is. That is to reach by 2030 a 50 percent to 52 percent reduction of greenhouse gas emissions below 2005 levels. This in turn is calibrated to a goal that the Biden administration has set of achieving net-zero emissions no later than 2050.

Our country’s positioning relative to this objective was dramatically improved by last year’s passage of the Inflation Reduction Act—generally viewed as the United States’ most important national climate legislation to date. It is expected to drive major new investment toward renewable energy.

That said, analyses of that law’s reach indicate that, while the IRA will help push us toward our own NDC goal, it can’t get the job done alone. The IRA, along with complementary electrification initiatives, sets us instead on a path to roughly 40 percent below 2005 levels by 2030 as opposed to the 50 percent to 52 percent reduction envisioned by the NDC.

So, how to make up the difference? Some had hoped that regulatory action by EPA might close the gap. But the Supreme Court recently took a big bite out of what had been seen as EPA’s primary tool for regulating greenhouse gases, the Clean Air Act, in its decision in West Virginia v. EPA. The justices are saying if Congress wants to equip an agency like EPA to transform the energy system of the country, legislators need to say it more clearly. Of course, the current Congress is not in a position to say anything clearly or not. But a key question is whether state and big city governments can pick up the slack and help close this gap between the country’s climate ambitions and its actual performance.

There’s no one better able to help us think through that than our next speaker, Angela Barranco. Angela is executive director for the Climate Group in North America. Angela has two decades of political and policy leadership experience, most recently as undersecretary of the California Natural Resources Agency.

Angela Barranco: Climate Group is a global nonprofit. We are the secretariat of Under2, which is the subnational governments’ group. We have over 173 individual states, regions, provinces, and other subnational governments that are part of a global coalition—including many here in the United States. The co-chairs who guide the direction of that action are very actively involved in every COP. It is an interesting, very action-oriented group that has been coming together since the Paris Agreement defined this whole new world called “subnational action.” Paris changed the paradigm not only around subnational but also around private-sector engagement and bringing a lot of those folks to the table as equal actors in mitigation and resilience.

In addition to our subnational initiatives, Climate Group also runs several mitigation strategies in different industries with our corporate partners. We break down the silos and work in industry, transportation, built environment, food, and energy.

The traditional barriers between public and private sector are tumbling down. With Paris, it was about putting concrete thoughts and ideas about this global stocktake and the other actors that must come to the table. Everyone has to collaborate and move together. So this is where state governments especially become a really interesting and important driver of ambition and action.

There has been a paradigm shift in who is at the table. The Inflation Reduction Act changed so much of that framework. It’s now embracing critical pathways for economic development and critical pathways for work forces. It has become the bread-and-butter economic underpinning of these governments.

Whether they are city leaders, governors, county leaders, or other entities, they are all focused on how they make this a just transition. Bringing them to the table is going to ensure that this incredible transition is really rooted in these communities. The ideal we are working toward is that climate isn’t just a mitigation strategy, it’s a whole new way of looking at the world in a way that benefits everyone.

In the United States in particular there’s a very interesting moment involving Justice40 and some of the work that has been done in the Inflation Reduction Act, the Bipartisan Infrastructure Law, and the Infrastructure Investment and Jobs Act. All this climate work has also prioritized investments in impacted communities.

Our economic development is a model for others across the world and within our governors coalition we’re seeing a lot of interest in policy mechanisms to ensure that these transitions are fruitful for all.

In addition, methane and other greenhouse gases have to be addressed. One, the scale of the problem is growing, and we need to address it a lot faster. And two, things like agriculture and waste diversion are handled at the local level. So, a city like New York can make a decision about organic waste that has broad impact on methane in the atmosphere. If a lot of cities come together and make some big choices, it can have a real impact. The same goes with agriculture. The same goes with deforestation.

Another piece of this is resilience and adaptation. Again, big governments can set big policies and sometimes have big dollars. But those resilience and adaptation projects are going to be done at that local level. So it is critical to have governors and city officials at the table being ambitious in terms of how they want those communities integrated into the climate response.

The adoption of a lot of this forward action at the state and local level is resilient in many ways to those large political challenges. That is true not just in the United States but across the globe. We have 16 governors in Mexico that are a part of our coalition. What we hear time and again is the federal government in Mexico has not prioritized climate as much as some of those governors would hope. But those governors are taking on a lot of this work, whether it be building up the work force of the future so that they can build and transition and do all that great work—or just adapt. Whether it’s heat island effects or other things, they’re making those investments in their communities at that level regardless of what the federal government is doing. It’s an incredible place of opportunity.

But we are not moving fast enough. Our governors and our mayors are just getting organized, just getting to the table, so there’s a lot more work we can do there. The partnership has to be public-private. IRA will have an impact of like 40 percent. We still need the rest. That’s all going to come from a whole lot of places, including public-private funding, and we must start moving in synch together. Breaking down those barriers is something that I’m sure we are all working on in one respect or another.

Scott Fulton: You talk about breaking down the barriers between the public and private sectors. Do you think, based on your work with the states and what’s happening with the renewable energy trend lines, there is potential to break down barriers a bit between red and blue states?

Angela Barranco: Absolutely. Indiana is one of the leading renewable energy producers in the country. They love wind energy and they believe in all sorts of other incredible opportunities, but just don’t say the word “climate.” They’re more than happy to talk about the benefits of renewables and how the investment in Indiana is achieving great progress and producing great Indiana jobs. So, let’s use whatever language we need to use. But when it comes down to jobs and people’s work and their pocketbook issues, people will be on the right side of things.

Scott Fulton: If you look back over the last decade or 15 years, it feels like government performance on climate change has been sort of a stutter step. It’s been very difficult to maintain continuity in the face of political change and shifting priorities at the national level. We’ve seen that here at home. But it’s equally true in countries all around the world.

The fact of the matter is that it’s been hard for all governments, democracies and autocracies alike, to maintain the course when it comes to climate change, and to increase ambition. This has led to increased focus on the contribution of so-called non-state actors, some of which Angela has just been talking about, and in particular the business community. The belief and hope is that businesses aggressively decarbonizing their own operations and supply and value chains can be a key ingredient in reaching our climate goals and compensating to some degree for government unevenness in this area.

To focus some light on what’s happening in the private sector is Jennifer Huang, who is associate director of the international program at the Center for Climate and Energy Solutions. C2ES is of course a leader on climate change and is at the vanguard of work with companies to inform and educate business leaders, strengthen corporate climate action, and mobilize business support for effective climate policies. Jennifer facilitates dialogue among international policymakers and manages C2ES’s own global stocktake project. She also tracks and researches international climate policy focusing on the key issues in the UNFCCC.

Jennifer Huang: At C2ES, our international work focuses on the UNFCCC negotiations. I’ve been managing our project on the global stocktake. We also work with a number of stakeholders, particularly on the domestic side, including businesses and cities.

I will speak to C2ES’s theory of change for the global stocktake and our hopes and expectations for that outcome at COP28. And I’ll touch on the non-party stakeholder engagement in the global stocktake as well in this kind of moment for accountability that we find ourselves in. It’s going to be at the end of a two-year process that will inform new Nationally Determined Contributions. But another important aspect is that it’s meant to enhance international cooperation, which is a theme that I’ll touch on.

Global stocktake is actually still a negotiated outcome. The conclusion of this process is happening during an evolving political landscape. Parties had a really difficult meeting in June and were unable to address the substance of what this stocktake decision will look like. They don’t have a lot of time to work on this at COP28. So some more progress was made at a recent negotiator meeting in Abu Dhabi, but we still don’t have a text and there’s very little time left to do this.

What Sue had mentioned as their ideal global stocktake is really not that far away from what we see as well. What we really don’t want is what some parties may think of as the global stocktake: just being a Paris “report card,” just telling us what we already know, just telling us we maybe have a failing grade at meeting our goals. But it can be a moment to inspire us. It can be an opportunity to course correct and to direct us into a better future.

So to add real value, we think that COP28 and the global stocktake outcome should identify a limited number of very specific operational transformative signals. They should be across mitigation, adaptation, loss and damage, and means of implementation. But it should also speak to all stakeholders—national governments, local authorities, civil society, the private sector, national-level practitioners, multilateral-organizations, UN agencies, among others.

The greatest momentum we see right now is behind this potential target to triple global renewable energy capacity by 2030. It’s part of the COP presidency’s vision. It’s also part of the recent outcome of the G20 meeting. But we think, if you call for an increasing share of renewable energy and electricity generation to reach about two-thirds of the energy supply by 2030 with the aim of full decarbonization by 2050, it could be a really useful way to nuance that signal. But it also should be matched with a commitment by parties, multilateral development banks and international financial institutions, and non-party stakeholders to at least triple that proportion of finance and investments in renewable energy by 2030 as well. Together this could be a useful package that directs parties and civil society in their actions over the next few years and enhances international cooperation.

But it’s still far from certain that we would get this kind of energy target. So we need to build momentum around this ahead of COP28, including by activating existing relevant coalitions and initiatives around them, in particular the work of the High-Level Climate Champions. But even if this target is agreed at COP28, it’s not going to be useful or operational unless there’s some sort of follow through to implement it.

We hope that COP28 sets out a clear plan for what will happen next so that all parties and non-party stakeholders are clear as to what’s expected of them in an effective response year and to implement that renewable energy target. So you could do something like a series of ministerial and technical meetings in 2024 to follow up. Then COP28 should require that COP and global stocktake outcomes are clearly linked to this process of submitting new NDCs due in 2025.

I want to focus a little bit more on the engagement and accountability of non-party stakeholders. Even in the UNFCCC space, the stocktake is unique for allowing a fairly open engagement of non-party stakeholders. They were able to sit at the same tables with climate negotiators and speak freely during the technical dialogues. Their input and contributions are part of that historical record for the global stocktake and were taken up in the synthesis report that came out recently.

But there is interest in tracking nongovernment actors’ public commitments, despite the global stocktake being largely about collective progress of parties toward the goals of the Paris Agreement. There is still interest in tracking the progress of nongovernment actors toward the commitment that they have publicly made. The global stocktake sits in this wider moment of desiring greater accountability by those who have put forward commitments to address and act on climate change.

Angela did a great job of speaking to this incredible evolution and engagement of non-state actors from just before the Paris Agreement until now. We have countless net-zero pledges, large coalitions of actors who’ve joined campaigns like the Race to Zero, an explosion of initiatives that are also dedicated to deforestation, nature-based solutions, and other efforts to address climate change. But these pledges have also been accompanied by a proliferation of criteria, and benchmarks, and narratives with varying levels of robustness. It gets confusing. It can generate a lot of confusion for consumers, investors, and regulators.

So I’ll speak to two separate but related initiatives that are building momentum right now and generating a lot of interest in that non-party stakeholder space. The first is the UN High-Level Expert Group on Net-Zero Emissions Commitments of Non-State Entities. The secretary-general established HLEG to develop clearer, more rigorous standards for net-zero pledges by non-state actors, and to speed up their implementation. This group of experts delivered on their mandate in a report titled “Integrity Matters: Net-Zero Commitments by Businesses, Financial Institutions, Cities and Regions” at COP27.

The report is meant to serve as a guide. It provides 10 recommendations on how to set credible, accountable net-zero pledges and considerations. Then the secretary-general also called on these entities to put forward credible and transparent transition plans and to submit them before the end of the year. The secretary-general asked the UNFCCC to present a plan to address the lack of universally recognized credible third-party authorities that can conduct verification and accountability processes.

At COP27 parties responded to that request by inviting the secretariat of the UNFCCC to ensure greater accountability of the voluntary initiatives that come through this portal called the Global Climate Action Platform. Last June the UNFCCC launched consultations on something called a “recognition and accountability” framework and draft implementation plan. They propose to apply those principles from the HLEG to individual non-party stakeholder and net-zero pledges that are registered in that Global Climate Action Portal.

These consultations are co-chaired by Sarah Bloom Raskin, the former deputy secretary of the U.S. Treasury, and Bing Leng, a member of the International Sustainable Standards Boards. Through this framework, the UNFCCC can strengthen this accountability framework for voluntary initiatives to have more ambitious and credible climate action that’s supported by international cooperation.

But there is ongoing debate—this is a very sensitive topic right now—about how much of a role the UNFCCC should and can have in transparency and accountability of voluntary initiatives. There’s a strong concern that, if you take a very prescriptive approach, you can stifle the ambition and the willingness to do more.

Scott Fulton: One of the hopes is that the finance sector can play an important role in leveraging, incentivizing, and enabling transformation of energy and other carbon-intensive sectors. And in much of the world that leverage is expressed through development banks—like the World Bank—that can condition access to capital on climate-safe behavior.

We have with us an expert on climate finance and the development bank sphere, Charles Di Leva. Now an independent sustainability advisor, Charles was for many years the World Bank’s principal presence on all matters environment through his roles as chief counsel for environmental law and chief officer for environmental and social safeguards. He represented the bank in international treaty negotiations, including with respect to climate. He also played a key role in the development and implementation of the bank’s environmental, social, and climate policies.

Charles Di Leva: I’m going to start by speaking to the issue of carbon markets. One proposal to set up a market for carbon offsets is to include carbon dioxide removal as an activity that would be financed—and then the financier of those activities that remove carbon from the atmosphere gets credit for that offset. There is a controversy whether these removals can meet the integrity that Jennifer was talking about in terms of demonstrating permanence of the removed carbon and what test is put in place over the life of that carbon to ensure it stays out of the atmosphere.

Because if you remove or store carbon but it leaks 10 years from now or 50 years from now, you may defeat the very purpose of that offset. So under the Paris Agreement there is a supervisory body that has a working paper on whether removals can be included in what’s called Article 6.4 carbon market activities.

The multilateral development banks have an increasingly important role in tackling the climate crisis. The global stocktake has highlighted the role of MDBs as have recent G20 communiqués. In fact, if you go back to the UNFCCC, it’s always been understood that international organizations have a role, and the World Bank has certainly been a part.

Under the new World Bank president, Ajay Banga, there is a deep commitment to collaborate with the other multilateral development banks. Collaboration among the banks to tackle the urgent climate crisis has now been agreed upon. Almost everybody understands the urgency to act sooner. Indeed, starting this year the World Bank has committed that all of the public-sector financing of the bank, 100 percent, would be Paris-aligned. For the private-sector part of the World Bank, the International Finance Corporation and the Multilateral Investment Guarantee Agency, they will do so by the beginning of 2025.

But you need private-sector capital multifold beyond what’s capable of being generated through the public sector. And we’re talking on the scale of an estimated eight times more. President Biden wants to ask Congress to appropriate an extra billion dollars for callable capital into the World Bank because it’s recognized that multilateral development banks can stretch public finance to enhance bringing in the necessary private money that the global stocktake says is essential.

The World Bank is trying to put in place measures to do that. The new president has spoken about the essential element of de-risking private capital’s entry into the field of climate finance. If private capital is going to address the fact that today 63 percent of greenhouse gas emissions are coming from emerging markets and developing economies, you need to help deal with the various risk factors that private capital faces when they go into unstable markets. There is political risk, currency risk, extreme weather risk. All these risks can benefit from tools and instruments that the multilateral development banks are setting up through their different arms to try to address.

We have a historical set of crises that development institutions are being called upon to address. There’s still the need to deal with high unemployment with the recent pandemic. Many of the regions in the world are dealing with food insecurity. We have a biodiversity crisis that has not generated the kind of finance that’s coming out in the climate world.

Some powerful voices are coming from the Global South to point out the challenge of generating capital to deal with the climate crisis when so many of these countries are under staggering debt. That’s not just low-income countries. It’s often middle-income countries as well. The debt inhibits the renewable energy investment that the IPCC is saying is necessary to get to 1.5 degrees. So the wealthy countries, including China, need to find a way to work on debt relief to free capital. There have been some good examples. Recently, China’s willingness to work with the multilateral community in Zambia is seen as one good step in the right direction.

Fatih Birol, the head of the International Energy Agency, has said very clearly that we should be reaching peak oil by 2025. At the same time, there is interesting coverage in the last couple of weeks that you can see in the Financial Times about Exxon purchasing Pioneer Shale for $60 billion. Then even more recently Chevron purchasing Hess for a similar amount. In each case, it is investment in increased extraction. Hess has a high degree of ownership on the Guyana Basin, which is seen as one of the largest untapped oil reserves in the world. So if these are to be developed, then the concept of peak oil is challenged.

Many in the environmental community are worried there is a sense among some participants in this global debate that it can be okay to “overshoot” 1.5 degrees. Because removal activity is going to somehow enable us to go beyond 1.5 and come back to that temperature by eventually taking the excess carbon out of the atmosphere. What types of technologies is the world willing to consider to be acceptable market approaches to be used to offset emissions?

Let me just step back to Sue’s comment about the Kyoto Protocol. The United States was a tremendous force in designing the Kyoto Protocol’s market mechanisms. The Clean Development Mechanism was created under the protocol to set up means for purchasing reduction offsets in the developing world. Well, today under the Paris Agreement there is the Article 6.4 mechanism. That’s trying to build on the CDM and improve its credibility and integrity.

We need to do a better job of identifying market activity that is credible, that is permanent, that avoids leakage, and that is truly additional from what otherwise would happen. So the carbon market discussion is a critical one to follow. It’s one where the multilateral development banks are trying to bring the credibility of their operations into those types of activities because they operate from beginning of the operation and continue to monitor it through to the end.

So the role of the multilateral banks in looking at these emerging markets and developing countries that are critical, if we’re going to start to reduce emissions as much as we want to, is to help these countries track and authorize emission reductions in a way that the market is going to feel confident.

That if they invest in this type of activities, they aren’t going to be subject to greenwashing claims or, as we saw recently with Delta Airlines, brought into a class action lawsuit by passengers who felt that they were misled by the claim that they were flying on an airline that was carbon neutral. That case was followed by one against KLM not long after. So if we’re going to have the private sector do this, we need to help set the rules and the credibility of the carbon market so they can really achieve that ambition.

There are two types of market structures under the Paris Agreement. One is set up for bilateral deals with developing countries. So, for example, Japan and Switzerland can support wind, solar, green hydrogen activities in those countries. Then they can claim under Article 6.2 they have offset emissions reductions and will claim credit under that as part of their NDCs.

One incentive the World Bank has been talking about is that, if an investment is really delivering environmental benefits, perhaps they can lower the interest rate that would normally be charged to the borrower for entering into that type of investment. So I think it’s important not to let the fact that the marginal cost curve is coming down between the renewables and traditional fossil fuel investments discourage what would otherwise be an important renewable investment.

Scott Fulton: Perhaps the ultimate player in a whole of society pursuit is society itself—all of us. In response to this daunting problem of climate change, civil society is being asked to care more and at times make different choices than we might have made in the past. Collective clarity within civil society and a shared sense of purpose in dealing with this problem can enable improvement in all the systems that we have been talking about here. It can help clear out the political underbrush that impedes government action. It can help create consumer demand that accelerates the move to market of climate-sensitive products and services.

The challenge of arriving at a greater common accord on climate change is a function of public education and moving hearts and minds. Who better to help us think about how we can up our civil society game than our next speaker, who is someone already deeply involved in informing public understanding of climate change. And that’s this year’s ELI Environmental Achievement Awardee, J. Marshall Shepherd.

Originally a research meteorologist at NASA and later deputy project scientist for the Global Precipitation Measurement’s space mission, Marshall is currently director of the Atmospheric Sciences Program and professor of Geography and Atmospheric Sciences at the University of Georgia. In November he becomes associate dean of research scholarship and partnerships in the Franklin College of Arts and Sciences at the university. Marshall is one of the world’s leading thinkers, teachers, and advisers on weather and climate science. He is also a host of the Weather Channel’s award-winning podcast Weather Geeks, a senior contributor to Forbes magazine, and a regular guest on CBS’s Face the Nation, PBS’s Nova, the NBC Today show, CNN, Fox News, and other media outlets.

Marshall Shepherd: As I look at it, science has done its job in marshalling public opinion and appropriate responses. The climate is doing what our models said it would do. Now economic policy and law need to rightfully take front and center as we deal with this crisis. I think carefully about that because, as I thought about my remarks here and tonight, the Environmental Law Institute—many of you in this room—will need to lead, to charge forward.

Just this morning I was on the Hill. I’m part of the American Academy of Arts and Sciences commission that released a report, “Forging Climate Solutions.” This report is a readable, actionable, approachable set of ideas put forth by a very ideologically diverse group of scholars, CEOs, and stakeholders. And so we were marching it around to the various policymakers.

This afternoon, I want to also talk about another report that I co-authored for the National Academy of Sciences back in 2016. Because the science has moved to a point where we can say that climate change is certainly happening, the extreme events that we face are becoming more extreme, and they have a particularly high impact on certain segments of our society. But nature is making the case for us and, as I told Congress when I testified before the House Science Committee in 2019, it’s the extremes that people, our infrastructure, and our economy feel more than the average.

I want to circle back to vulnerable communities, the marginalized communities. I’ve done studies. We published a report in 2021 looking at what communities in the United States would be vulnerable to climate change by 2040. It’s a publication that looks at various factors, both social vulnerability, economic vulnerability, policy levers, and the extreme events themselves. What we know is that communities of color, elderly communities, and certain communities living in poverty will disproportionately bear the brunt of the challenges that we face.

These days my job as a scientist isn’t enough. What I mean by that is, when I talk to my students or when I talk to stakeholders or when I talk to a senator or someone at the White House, I often talk about how our scholarly system from the science perspective is broken. We teach scientists to be scientists, but we’re in an era where end-to-end science is needed.

As I think about the discussion today, this is end-to-end science. You have a scientist at the table. We have policymakers and policy advocates at the table. We have economists at the table. We have attorneys at the table. Our collective action is what will be needed. Because I can tell you this, Canton, Georgia, a rural community that I grew up in, or Cascade Road in southwest Atlanta, where my wife grew up, they’re not thinking about anything that any of us are saying today. They just know that it’s 107 degrees and their power is out and there’s no access to a cooling station, or the variability in the production of pecans or peanuts or cotton in our state has been disrupted. They don’t speak any of this language used here because at the end of the day they see things as a local issue. They might not even call it climate change for goodness’ sake.

So when I think about the work that I have evolved to do—and I said I’m a card-carrying physical scientist because, if you go and look at my publication record and the things that have gotten me into the National Academies, they’re very much science theory, models, development of new satellite techniques. But in the last ten years much of my work evolved to think about taking on this climate crisis as this wicked challenge that we face.

I’m thinking about it from the lens of vulnerable communities. Amid the destruction of New Orleans during Hurricane Katrina was the disruption of one of the most petrochemical-intense regions in the United States. Many people were vulnerable, but the people that we stared at in our television screens at the Super Dome was the community that was highly impacted but likely had the least amount of impact on carbon emissions when we’re thinking about the global stocktake.

Resolving this crisis, it will take local, regional, national, and international action. I think about some of the things that we’ve done in the state of Georgia when we were talking about needs for gap-filling activities here at the table. I’ve been involved in a funding that came from a private foundation called the Ray C. Anderson Foundation. Ray was a former CEO of Interface Carpets and he calls himself an “environmental industrialist.”

We took the broader project drawdown framework that some of you may be familiar with. We looked at it because they talk about a hundred-plus solutions for reducing carbon emissions to get us to hit our targets. But what that effort did not do is what works in Georgia. So we quantified what it would take and we estimated that we can reduce carbon emissions in Georgia by 67 megatons by 2030 with 20 very focused solutions rather than a haphazard approach. We looked at what solutions make sense for Georgia given our landscape, and our transportation infrastructure, and our building infrastructure and so forth.

When I was just on the Hill talking to people, there are still basic misunderstandings about aspects of the science. I lived and worked here in the D.C. area for 12 years. Every time I come here I realize I don’t talk D.C.-speak anymore. I’ve lost that art because I used to know it well. But yet, as I think about where we go going forward, we’ll need to engage.

The good news is my daughter is in pre-law and she wants to go into environmental law. So hopefully she will help to engage in this. It’s really ironic when I got this award because I said, I’m speaking to a bunch of environmental lawyers, so let me know if you need a reference.

THE DEBATE The 1985 agreement on climate change requires parties to carry out a global “stocktake” every five years to evaluate collective progress toward achieving long-term goals and purposes. The Environmental Law Institute invited an expert group to form our inaugural Firestone Policy Forum panel, held on the afternoon of the annual Award Dinner in October, to discuss how much progress has been made nationally and globally in meeting greenhouse gas reduction targets.

The Court’s Anti-Innovation Doctrines
J.B. Ruhl - Vanderbilt Law School
Vanderbilt Law School
Current Issue
Parent Article
J.B. Ruhl

I was in private practice representing public and private land development projects in Austin, Texas, during the early 1990s, when it became an epicenter of controversy under the Endangered Species Act. Between listings of migratory songbirds, karst invertebrates, salamanders, and plants, it became difficult not to bump into the ESA in any direction. The statute quickly became a tinderbox of conflict. But that local controversy, coupled with congressional sword-rattling threatening statutory reform, also led Austin to become a crucible of ESA innovation.

Bruce Babbitt, then secretary of the interior, recognized the need to take the pressure off by making the ESA less threatening to landowners. He and his advisors used Austin as one of the testing grounds for administrative reform initiatives leading to broader use of Habitat Conservation Plans and important refinements of Safe Harbors, Candidate Conservation Agreements, and other new programs aimed in that direction. It was policymaking at its finest. Not everyone was happy, but Congress took a pass on reform and Austin moved forward with a regional plan for ESA compliance.

The act soon after faced a threat far more daunting than Congress and landowner unrest—climate change. Wisely, successive administrations have declined to position the ESA as a regulator of greenhouse gas emissions, focusing instead on identifying and doing what can be done to help species threatened by climate change—what I have called “building bridges to the no-analog future.” With policy falling far behind what is needed to slow climate change, we will need a lot of those bridges. It seems unlikely that the existing tools, including those Babbitt introduced, are up to the task. It is even more unlikely that Congress is up to the task—I long ago gave up on the fantasy of congressional reform of the ESA directed toward implementing modern conceptions of biodiversity conservation, much less in response to climate change.

That leads to administrative reform. We need another Bruce Babbitt, someone at the ESA helm willing to think outside the box, accept tradeoffs, and innovate around the goal of assisting species through the next decades of climate disruption.

Alas, this is not the 1990s. Bold administrative innovation like that Babbitt was able to pull off is today a target for attack. Consider two pathways such an initiative could take.

The first would be to strengthen regulatory protections for climate-threatened species, facilitate their climate-induced migration, secure habitat beyond the leading edge of range shifting so it’s there when they get there, and similar measures. But nowhere in the ESA did Congress address climate change—and using the act to protect species from climate change would be a big undertaking and have widespread impacts. This approach, I fear, would run headfirst into the Supreme Court’s three new anti-innovation doctrines of administrative law. First, after West Virginia v EPA, the role of the ESA in climate change policy could easily be branded a “major question.” Second, after Sackett v EPA, the impact of these measures on property could easily run afoul of the Court’s demand that Congress must use “exceedingly clear language” when it wishes to alter the federal power over private property. Third, after the inevitable and imminent demise of the Chevron doctrine, creative agency interpretations of the ESA would receive no deference.

As a thought experiment for how different the times are for ESA administrative innovation, consider if the Sweet Home litigation—in which the Court in 1995 upheld the agencies’ definition of the statutory use of the term “harm” to include significant habitat modification—had not been brought until today. When compared to the narrow interpretation Justice Scalia advanced in his dissent, which would have functionally rendered the ESA a hunting statute, the habitat modification interpretation would easily be portrayed as a sweeping property regulation program inviting major question critique under West Virginia. Notwithstanding the agencies’ long practice under that interpretation, as also in Sackett, that would count for little. Forget about deference. I foresee the same demise for any bold climate change administrative innovation initiatives going forward.

The other pathway is to assist climate-threatened species by facilitating renewable energy and other decarbonization infrastructure. Permitting reform is in the air these days, focused primarily on the National Environmental Policy Act. The potential conflicts between the ESA and speeding up renewable energy infrastructure have been postulated for over a decade, including by me, and now are becoming very real. Yet efforts to develop regional plans for the Midwest to facilitate wind power production have dragged on, and not much other innovation has bubbled up as of yet.

I would encourage the agencies to focus on this kind of innovation as a theme, which seems far less likely to be at risk under the Court’s new anti-innovation doctrines. Like Babbitt’s reforms, this may not be popular with environmental protection groups, but tradeoffs are inevitable, and this “green” infrastructure is urgently needed not only for humans, but for the species the ESA is intended to protect from threats like climate change. Many legal practitioners and scholars have offered suggested reforms. Maybe Bruce Babbitt has some ideas, too.

J. B. Ruhl is David Daniels Allen Distinguished Chair in Law, director, Program on Law & Innovation, co-director, Energy, Environment, and Land Use Program, Vanderbilt University Law School.

A Do-Over for Power Plant Regulation Under the CAA
Bob Sussman - Sussman and Associates
Sussman and Associates
Current Issue
Bob Sussman

The signature domestic climate initiative of the Obama administration was the 2015 Clean Power Plan, an innovative application of the Clean Air Act designed to shift U.S. power generation away from coal and toward non-emitting renewables and lower-emitting natural gas. However, implementation of the plan was blocked by the Supreme Court in 2016 and it was then revoked by the Trump administration. The knockout blow was the Court’s decision last year in West Virginia v. EPA, which held that the CAA does not authorize emission reduction measures “beyond the facility fenceline.”

Undaunted, the agency is again seeking to use its CAA authorities to lower greenhouse gas emissions from fossil-fuel power plants—but is advancing a new framework that it hopes will pass muster under the West Virginia decision. This time around, the stated goal is not fuel switching but requiring facility modifications—installation of carbon capture and storage units and/or substitution of hydrogen for natural gas—that qualify as “best available control technology” and would be implemented within facility boundaries.

Despite the regulatory void following the demise of the Clean Power Plan, decarbonization of the electric power sector has progressed rapidly in the last decade. Between 2011 and 2021, emissions from the sector declined by 28.5 percent, greatly exceeding the CPP’s targets. This has occurred through the retirement of numerous coal plants and the dynamic growth of wind and solar generation. Utilities formerly wedded to fossil fuels have announced ambitious low and zero-emission goals for their fleets by mid-century or earlier. Economics and public opinion, not the threat of regulation, appear to be driving this transformation.

The Inflation Reduction Act greatly reinforces these drivers by providing $369 billion in tax incentives and subsidies not only for renewables but for nuclear power, carbon capture, hydrogen, energy efficiency, and more. The IRA has already stimulated a sharp uptick in new project announcements, as investors and developers adjust their business models to factor in the new inducements provided by Congress. Projections show that the new law will catalyze large greenhouse gas reductions by 2030 beyond those expected from existing policies.

Do we really need to impose a new layer of regulation on top of the inducements for reducing emissions created by the IRA? Proponents of the power plant rule say yes. They emphasize projections that the IRA will reduce economy-wide GHG emissions to 32-42 percent below 2005 levels in 2030, leaving the United States short of its current Paris Agreement target of a 50-52 percent reduction. To close this gap, they argue, the IRA needs to be backstopped by enforceable reduction requirements for our two largest emitting sectors—transportation and electricity generation.

Despite the gains of renewables, fossil fuels remain the dominant generation source in the power sector: in 2021, 21.8 percent of electricity was generated from coal and 38.3 percent from natural gas. Most climate advocates argue for the total replacement of coal and natural gas by non-emitting energy sources. The new EPA proposal, however, assumes that, if required to dramatically reduce emissions, fossil fuel plants will continue to operate and invest in capital-intensive retrofits (carbon capture or co-firing with hydrogen) that meet EPA’s targets. To mandate these reductions under the CAA, EPA must determine that the two methods are the “best system of emission reduction.” This finding is warranted, EPA says, by the IRA’s sizable incentives for these technologies, recent reductions in their cost, and the growing number of projects demonstrating their commercial viability.

Whether this position is legally and politically defensible is already a subject of sharp debate. As the battle lines form, advocates on both sides will face hard questions.

The coal and gas industries lobbied hard for expanded IRA incentives for carbon capture and hydrogen fuels and argued that these technologies would enable coal and gas to remain viable in a carbon-constrained world. Will they now say that widespread deployment is unrealistic and premature even with the IRA’s large tax credits and the substantial lead-time for compliance afforded by EPA’s proposed rule?

At the same time, the Biden administration will face skepticism that the proposed rule is an honest effort to assure the longevity of coal and natural gas plants or merely a calculated maneuver to craft a legal position that might withstand challenge under the West Virginia decision. A perception that EPA expects coal and natural gas plants to close rather than comply with its rule, and that this is the administration’s unspoken goal, could be the deciding factor for a Supreme Court majority predisposed to rein in expansive environmental regulations.

A Do-Over for Power Plant Regulation Under the CAA.

EPA Power Plant Proposal Boosts Carbon Capture and Hydrogen
Ethan Shenkman - Arnold & Porter
Arnold & Porter
Current Issue
Ethan Shenkman

The Environmental Protection Agency has, once again, rolled out an ambitious plan to reduce carbon emissions from power plants under Section 111 of the Clean Air Act. This new proposal is issued against the backdrop of the agency’s two previous attempts, which struggled in the courts.

The legal saga dates back to 2015, when the Obama EPA released the Clean Power Plan, which relied on a system of “generation shifting” from fossil fuel to lower or zero-carbon sources of energy. But the Supreme Court stayed the rule and struck it down last year under an aggressive application of the Major Questions Doctrine in West Virginia v. EPA. The Trump EPA issued its own regulation, the far-narrower Affordable Clean Energy Rule, but it was set aside by the D.C. Circuit. Although that opinion was reversed and remanded by West Virginia, the Biden administration had no interest in resurrecting ACE. Instead, it designed a power plan of its own, one that is intended to significantly accelerate decarbonization of the nation’s electricity grid while staying within the confines of the high court’s opinion.

The Biden EPA’s proposed rule—issued in generic form, with no fancy acronym or moniker—is certain to set off another round of legal battles, leaving practitioners to wonder: will the third time be the charm?

One of the proposal’s most notable features is its endorsement of clean energy technologies that are centrally featured in the Inflation Reduction Act: carbon capture and sequestration, or CCS, and green hydrogen. In essence, while the IRA provides the carrot, through tax incentives and other funding mechanisms, to help accelerate the development of technologies at scale, EPA’s new rule provides the regulatory stick to require the use of these technologies in certain applications.

Section 111 directs EPA to determine the “best system of emission reduction” “that has been adequately demonstrated,” taking into account costs, non-air quality health and environmental impacts, and energy requirements. For several important categories of electric generating units, EPA has identified CCS and/or low-GHG hydrogen (co-fired with natural gas) as the best system. For example, for new and existing large natural gas-fired power plants that run frequently (i.e., base load units), operators may choose a CCS pathway, which is based on installation of the technology with 90 percent capture by 2035. Alternatively, these units may choose a low-GHG hydrogen pathway, which is based on highly efficient combined cycle technology coupled with co-firing 40 percent low-GHG hydrogen by 2032 and 96 percent by 2038.

The proposed regulation’s treatment of coal-fired power plants also relies in part on CCS, with different standards applying to units based on their expected remaining lifetimes. For existing coal-fired units that plan to operate beyond 2040, the best system is CCS with 90 percent capture by 2030. Coal plants planning to retire by 2040 or earlier have less stringent standards that do not require CCS, with the least stringent standards for plants retiring by 2032, thus incentivizing the phaseout of coal beyond downward trends.

All told, EPA estimates that the new regulations would avoid 617 million metric tons of CO2 emissions through 2042, resulting in $85 billion in climate and public health benefits. EPA also highlights the importance of its proposal for decarbonization of other sectors being electrified, including the transition of automobiles to electric vehicles and of oil and gas heating in buildings to electricity. The proposal is also expected to reduce emissions contributing to particulate matter and ozone pollution, including in communities that have expressed environmental justice concerns.

EPA will ultimately need to persuade the courts that the technologies it relies on have been “adequately demonstrated.” The utilization of CCS has increased with many new projects waiting for permits, but its application in the power sector has been limited to date. EPA’s proposal is optimistic that recent decreases in the cost of CCS, combined with the bump in the tax credit for CCS in the IRA, will translate into increased deployment.

Similarly for hydrogen, the agency cites to IRA tax credits and an influx in funding from the Infrastructure Investment and Jobs Act to provide a significant boost for the technology’s economic feasibility. EPA proposes to define “low-GHG hydrogen” narrowly, with a specified emissions intensity. This mirrors the eligibility criteria for the maximum tax credit available, typically applied to “green” hydrogen produced from electrolysis using renewable electricity sources. Opponents of the rule will likely question whether EPA has authority to set a standard that imposes a carbon-intensity requirement on upstream production of hydrogen.

These are only a few of the many issues that practitioners will be watching, as EPA strives to finalize the rule by June 2024.

EPA Power Plant Proposal Boosts Carbon Capture and Hydrogen.

Much Remarkable, but Insufficient, Progress Decarbonizing the World
Joseph E. Aldy - Harvard Kennedy School
Harvard Kennedy School
Joseph E. Aldy

The 2015 Paris Agreement established the goal of limiting global warming to “well below 2°C above preindustrial levels.” The pact also provides for a periodic assessment of progress toward this objective through a “global stocktake.” In November of this year, the United Ar

The 2015 Paris Agreement established the goal of limiting global warming to “well below 2°C above preindustrial levels.” The pact also provides for a periodic assessment of progress toward this objective through a “global stocktake.” In November of this year, the United Arab Emirates will host the UN climate change talks that will include the first such worldwide assessment.

Over the eight years since the Paris conference, national governments have enhanced their near-term reduction ambitions. The United States has since pledged to cut its emissions at least in half by 2030, compared to its 2015 pledge of a 26-28 percent cut by 2025. The European Union has pledged to reduce its emissions by 55 percent by 2030, compared to its previous pledge of a 40 percent reduction. And about 140 countries have proposed, pledged, or enshrined in domestic law net-zero emission targets for 2050 or soon thereafter.

Governments have also advanced their mitigation actions, driving substantial gains in clean energy. In 2015, 10 percent of the world’s greenhouse gas emissions were covered by a tax or cap-and-trade program; by 2022, this share had increased to 25 percent. The average price on emissions has increased significantly since then across these carbon pricing systems. Over 2015-21, global renewable energy consumption—led by wind and solar power—more than doubled.

The Inflation Reduction Act’s clean energy subsidies are forecast to reduce U.S. carbon dioxide emissions by about 10 percent over the next seven years. The rapid growth in investment in clean energy manufacturing signals the potential to deliver accelerating deployment of next generation technologies. Last year, global installed manufacturing capacity for batteries grew by 72 percent, solar photovoltaics by 39 percent, and electrolyzers by 26 percent.

Despite this progress, fossil fuels still comprise more than 80 percent of global energy consumption. With the exception of 2020, fossil fuel consumption has been higher every year since 2015. Fossil fuel consumption may peak soon—McKinsey’s “Global Energy Perspective 2022” suggests peak consumption by 2025. But this peak will likely occur later and higher than is consistent with the Paris Agreement’s temperature objective.

Last year, the UN Environment Programme estimated that global greenhouse gas emissions would reach about 58 gigatons based on current policies. This level would be 15 gigatons higher than what is necessary to limit warming to 2°C, and 23 gigatons higher than would be consistent with a 1.5°C temperature goal. Cutting the level of annual emissions by at least 15 gigatons over 7 years is daunting. To put this in perspective, the largest single-year decline in global energy carbon dioxide emissions was about 2 gigatons in 2020, primarily reflecting the COVID pandemic.

The emergence of low-cost renewable power has displaced much of fossil fuels in meeting growing energy demand, but has not meaningfully driven existing fossil fuel-related infrastructure into retirement. A 2019 paper in the journal Nature estimated that if current fossil fuel infrastructure continued operating through their expected economic lifetimes—with no new fossil fuel-powered power plants, factories, vehicles, etc. coming online—then the world would likely exceed warming of 1.5°C and could go beyond 2°C. Since this analysis was undertaken, new fossil fuel-powered facilities and transportation systems have entered the market and, in many economies around the world, new fossil fuel infrastructure projects are planned for future investment.

This reflects the political challenge of designing and implementing aggressive decarbonization policies and the associated difficulty of raising the price of fossil energy. Given continued subsidies in developing countries and European energy subsidies in response to the energy shock induced by the Russian invasion of Ukraine, global fossil fuel subsidies exceeded $1 trillion last year for the first time. Outside of California, the vast majority of U.S. climate policy operates through clean energy subsidies, with little if any cost penalty applied to sources of carbon dioxide emissions.

The bottom line is that the global climate will very likely overshoot 1.5°C and likely go beyond 2°C. Even with unprecedented growth in clean energy, atmospheric concentrations of greenhouse gases will exceed levels consistent with these temperature goals. Returning to these temperature levels would require large-scale negative emission technologies, such as the direct air capture of carbon dioxide coupled with underground storage, or the deployment of solar geoengineering to reduce incoming solar energy to the planet’s surface. As temperatures rise, there will be a growing public debate about the potential role of these novel technologies and the need to manage the risks during this period in which we overshoot our temperature goals.

ab Emirates will host the UN climate change talks that will include the first such worldwide assessment.

Over the eight years since the Paris conference, national governments have enhanced their near-term reduction ambitions. The United States has since pledged to cut its emissions at least in half by 2030, compared to its 2015 pledge of a 26-28 percent cut by 2025. The European Union has pledged to reduce its emissions by 55 percent by 2030, compared to its previous pledge of a 40 percent reduction. And about 140 countries have proposed, pledged, or enshrined in domestic law net-zero emission targets for 2050 or soon thereafter.

Governments have also advanced their mitigation actions, driving substantial gains in clean energy. In 2015, 10 percent of the world’s greenhouse gas emissions were covered by a tax or cap-and-trade program; by 2022, this share had increased to 25 percent. The average price on emissions has increased significantly since then across these carbon pricing systems. Over 2015-21, global renewable energy consumption—led by wind and solar power—more than doubled.

The Inflation Reduction Act’s clean energy subsidies are forecast to reduce U.S. carbon dioxide emissions by about 10 percent over the next seven years. The rapid growth in investment in clean energy manufacturing signals the potential to deliver accelerating deployment of next generation technologies. Last year, global installed manufacturing capacity for batteries grew by 72 percent, solar photovoltaics by 39 percent, and electrolyzers by 26 percent.

Despite this progress, fossil fuels still comprise more than 80 percent of global energy consumption. With the exception of 2020, fossil fuel consumption has been higher every year since 2015. Fossil fuel consumption may peak soon—McKinsey’s “Global Energy Perspective 2022” suggests peak consumption by 2025. But this peak will likely occur later and higher than is consistent with the Paris Agreement’s temperature objective.

Last year, the UN Environment Programme estimated that global greenhouse gas emissions would reach about 58 gigatons based on current policies. This level would be 15 gigatons higher than what is necessary to limit warming to 2°C, and 23 gigatons higher than would be consistent with a 1.5°C temperature goal. Cutting the level of annual emissions by at least 15 gigatons over 7 years is daunting. To put this in perspective, the largest single-year decline in global energy carbon dioxide emissions was about 2 gigatons in 2020, primarily reflecting the COVID pandemic.

The emergence of low-cost renewable power has displaced much of fossil fuels in meeting growing energy demand, but has not meaningfully driven existing fossil fuel-related infrastructure into retirement. A 2019 paper in the journal Nature estimated that if current fossil fuel infrastructure continued operating through their expected economic lifetimes—with no new fossil fuel-powered power plants, factories, vehicles, etc. coming online—then the world would likely exceed warming of 1.5°C and could go beyond 2°C. Since this analysis was undertaken, new fossil fuel-powered facilities and transportation systems have entered the market and, in many economies around the world, new fossil fuel infrastructure projects are planned for future investment.

This reflects the political challenge of designing and implementing aggressive decarbonization policies and the associated difficulty of raising the price of fossil energy. Given continued subsidies in developing countries and European energy subsidies in response to the energy shock induced by the Russian invasion of Ukraine, global fossil fuel subsidies exceeded $1 trillion last year for the first time. Outside of California, the vast majority of U.S. climate policy operates through clean energy subsidies, with little if any cost penalty applied to sources of carbon dioxide emissions.

The bottom line is that the global climate will very likely overshoot 1.5°C and likely go beyond 2°C. Even with unprecedented growth in clean energy, atmospheric concentrations of greenhouse gases will exceed levels consistent with these temperature goals. Returning to these temperature levels would require large-scale negative emission technologies, such as the direct air capture of carbon dioxide coupled with underground storage, or the deployment of solar geoengineering to reduce incoming solar energy to the planet’s surface. As temperatures rise, there will be a growing public debate about the potential role of these novel technologies and the need to manage the risks during this period in which we overshoot our temperature goals.

Much Remarkable, but Insufficient, Progress Decarbonizing the World.

Lost and Never Found
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
The aftermath of Typhoon Nina in Iriga City, Camarines Sur, Philippines, in December 2016. Photo from Shutterstock.

In 1975, New Zealand set up a tribunal to distribute billions of dollars in cash and land settlements to Maori people, recognizing a long history of brutal colonization. From 1945 to 2018, Germany paid close to $87 billion to Holocaust survivors and their descendants. In 1988, the United States allotted $20,000 to each living Japanese American person who had been wrongfully detained in “internment” camps.

As Noah Gordon at The New Republic points out, “Reparations aren’t radical, and they aren’t without precedent.” Making reparations—financial or other forms of compensation to those who have been wronged—is not only feasible, it has been done. Yet despite long-standing activism movements, “Notably absent from a list of U.S. reparations are payments to enslaved people or their descendants,” Gordon writes.

But a lack of progress is by no means an indication that the global struggle for reparations is dormant. Last November, world leaders at the annual UN climate conference, COP27, in Sharm El Sheikh, Egypt, reached a landmark agreement to create a new “loss and damage” fund. The facility will distribute money from developed countries to nations that are most vulnerable to—and least able to cope with—climate disasters.

“Loss and damage” is UN lingo for the range of devastating climate impacts countries experience, including droughts, floods, crop failures, sea-level rise, and heat waves. Activists have referred to the new fund as a form of climate reparations, recognizing that, as Barry E. Hill writes in ELR—The Environmental Law Reporter, “Those who are least responsible for climate change suffer its greatest environmental and public health consequences.”

To confirm this logic, one only needs to look out the window or glance at today’s headlines. Climate change has been linked to “a historic drought in East Africa, which is pushing millions of people to the edge of starvation,” the Washington Post reports. In Uganda, last summer’s prolonged drought left more than half a million facing starvation. The Philippines, facing rising sea levels and increasingly severe typhoons, has been named the country most at risk for climate impacts by the Institute for Economics and Peace. And for participants at COP27, the devastating floods in Pakistan last summer, which affected more than 33 million and killed 1,500 people, were a fresh reminder of our climate realities.

“An estimate of damage and loss has exceeded 30 billion dollars,” Pakistan Prime Minister Shehbaz Sharif said at the UN climate conference. “This all happened, despite our very low carbon footprints. . . . We became a victim of something with which we had nothing to do.”

Developed countries are responsible for about three-fifths of historical fossil fuel-based carbon emissions, based on data published by the Global Carbon Project. When you get down to the granular level, the disparity is even more pronounced. “Consider that Pakistan generated 0.6 percent of the world’s CO2 emissions in 2021. Uganda produced 0.02 percent. . . . These countries are almost carbon neutral,” writes Émile P. Torres in Salon. The Philippines stacks up at only 0.39 percent, according to Our World in Data.

The new fund is the result of a decades-long battle to recognize this injustice. In 1991, Vanuatu, an island nation in the South Pacific, first proposed a global insurance pool to provide funding for countries dealing with sea-level rise. The idea was rejected, and loss and damage didn’t show up in UN climate language until the Bali Action Plan 16 years later. The Paris Agreement of 2015 mentions loss and damage, but includes a clause (added by developed countries) that clarifies that the concept “does not involve or provide a basis for any liability or compensation.”

COP27 was the first time parties agreed to put loss and damage on the official agenda, and reaching agreement brought negotiations down to the wire. Now that the fund has been established, many basic details still need to be hammered out. Which countries will contribute, and how much? Who will receive the funds? And in what form will funds be transferred? These questions “may sound technical to the lay reader, but it literally means life or death for our children and grandchildren, and for generations yet unborn,” writes Pakistan Foreign Minister Bilawal Bhutto Zardari. To provide answers, a 24-member transitional committee will deliberate during this year and make recommendations for countries to adopt at COP28 in November.

To understand the opportunities this new fund presents, we first need to consider the current landscape of loss and damage financing. According to preliminary research by the World Resources Institute, existing funding sources are “extremely difficult to identify.” One reason is the lack of an official definition for loss and damage, which means funds may not be properly classified. Yet upon a review of a wide range of potential sources, WRI concludes that at every turn, existing funding “is not enough.”

One potential source, humanitarian assistance, is clearly falling short. Research by Oxfam has found that humanitarian aid appeals for extreme weather events have gone up eight-fold compared to 20 years ago. Over the past five years, half of those appeals haven’t been funded, totaling an unmet need of $3 billion.

Other multilateral funds are also found wanting. In 2009, developed nations pledged that by 2020, they would funnel $100 billion a year in public and private climate finance to developing countries. As a part of this effort, parties to the UN climate talks created the Green Climate Fund to help developing countries adapt to climate change and decarbonize energy systems. Today, countries have failed to reach that pledge by at least tens of billions of dollars. Furthermore, only 16 percent of all Green Climate Fund projects explicitly tie loss and damage to their main activities, according to the Intergovernmental Panel on Climate Change. Remaining UN sources, including the Least Developed Countries Fund, the Special Climate Change Fund, and the Adaptation Fund, “only seemed to provide funding for adaptation,” WRI reports.

Another potential funding source is disaster risk financing. As Mary Boyer, disaster risk management specialist at the World Bank, tells me, “Disaster risk financing is about arranging financial instruments ex ante so that you can have access to quick and cost-effective liquidity when a disaster happens and prepare institutionally for how to allocate and implement the resources.”

Boyer describes a layered approach that multilateral organizations like the World Bank use when working with a country on disaster risk. For events at the lowest level of risk, countries could prepare a rainy day fund within their government, earmarked for disaster response or other shocks. At the medium level, countries could access contingent loans or lines of credit from donors—in the Caribbean region, for example, that donor might be the Inter-American Development Bank or the World Bank. Finally, for the most severe disasters, countries could use risk transfer instruments, an umbrella term for different methods to “transfer risks to the market through some kind of financial institution, like insurance.”

The Caribbean Catastrophe Risk Insurance Facility and the African Risk Capacity Group are examples of regional bodies that offer disaster insurance and other risk-transfer mechanisms. Insurance schemes made headlines recently when a climate risk initiative called the Global Shield was launched ahead of COP27 by the G7, a group of industrialized countries, and the V20, a group of finance ministers from climate vulnerable countries. Like the new loss and damage fund, specific details for how the Global Shield will operate have yet to be finalized. The initiative will likely provide insurance programs and other forms of financial assistance.

Critics of disaster insurance schemes argue that countries need more direct forms of funding for loss and damage. The advocacy group Loss and Damage Collaboration states that insurance usually “only pays out a small proportion of the loss and damage,” and “is ill-suited to address non-economic loss and damage and slow onset climatic processes.”

Regardless of funding structure, a central question remains: How will the new fund get enough money? The fundamental challenge lies with the voluntary nature of most international commitments. Countries will need to give up money of their own volition, and in a nation like the United States, where appropriating money for its own citizens regularly results in gridlock, the proposition can seem out of touch with reality. At a New York Times event only two months before COP27, U.S. climate envoy John Kerry responded incredulously to the idea. “You think this Republican Congress . . . is going to step up and do loss and damage? Good luck!”

There’s also the issue of debt. As philosopher and scholar Olúfémi O. Táíwò points out in Reconsidering Reparations, funds directed to developing countries often come in the form of loans, “saddling recipients with debt rather than relief.” One solution proposed by Táíwò is to convert “sovereign debt into fuel for climate relief.” In fact, the government of Barbados has proposed a similar plan to simultaneously relieve government debt and fund climate resilience.

Some have proposed innovative sources to fund loss and damage. Scholars Margaretha Wewerinke-Singh and Diana Hinge Salili suggest imposing a climate damages tax on fossil fuel companies based on how much carbon is embedded in extracted oil and gas. Divestment from fossil fuels, a popular movement on college campuses in the United States, is another possibility. Meanwhile, in September, UN Secretary-General António Guterres urged “all developed economies to tax the windfall profits of fossil fuel companies.” He asked world leaders to instead redirect fossil fuel subsidies and profits “to countries suffering loss and damage caused by the climate crisis, and to people struggling with rising food and energy prices.”

The new loss and damage fund signals a seismic shift in the political climate. Guterres says “Polluters must pay”—and the global community seems to agree. It’s no longer a question of if climate vulnerable countries should receive compensation, but rather “how much” and “in what form.”

But when it comes to any form of reparations, “The devil is often in the details,” as Táíwò reminds us. The loss and damage transitional committee will need to grapple with many tough questions, both practical and existential. On a procedural level, how will the UN assess the amount of loss and damage? How will non-quantitative losses, like the loss of cultural heritage, be accounted for? How will funds be used, monitored, and evaluated for effectiveness once received? Perhaps most fundamentally, as Gordon asks in The New Republic, “How do you put a price on monumental human suffering?”

In communities that need loss and damage compensation the most, some members maintain a reasonable amount of doubt that world leaders will actually follow through. After all, this would not be the first broken promise from the UN climate proceedings. “How are we to ensure that there are direct resources to the communities that have experienced these losses and damages, as opposed to just new mechanisms for states to further entrench our communities into more loss and damages in our homelands?” asks Eriel Tchekwie Deranger, executive director of Indigenous Climate Action, as reported by Democracy Now!

These concerns underscore a crucial component of meaningful reparations: self-determination. The principle recognizes “everyone’s rights to pursue the political programs that fit their situation, culture, and values,” Táíwò writes. “Different people will come up with different actions and approaches fitting different cultural contexts and strategic situations.” For a challenge as wide-ranging, complex, and context-dependent as climate losses and damages, only a “deeply pluralistic” approach will suffice. TEF

Akielly Hu is associate editor at The Environmental Forum. Views expressed are her own.

THE BRIEFING The new UN loss and damage fund aims to compensate developing nations for climate impacts. Will it live up to its promise?

A Destabilized, Dystopian World: A Future Foretold If We Don’t Act
Bruce Rich - Attorney & Author
Attorney & Author
Current Issue
Bruce Rich

The 27th Conference of the Parties to the climate convention that met last November struggled with unresolved tensions that have persisted since the first COP in 1995. Most major emitters have failed to deliver on reduction commitments, and richer nations have come up short in aiding poorer nations transition to a carbon-neutral economy. What we are seeing is a world where nation states and international institutions are unable to cope with a myriad of interconnected and accelerating environmental, economic, technological, and political changes.

A sobering guide to these stresses can be found in the global trends reports of the U.S. National Intelligence Council. The NIC was established in 1979 to facilitate collaboration of the intelligence community with policy experts and researchers inside and outside the government. Every four years since 1997 the NIC has published these reports.

The most recent, “Global Trends 2040,” foresees a destabilized, “more contested world.” Environmental, social, and economic costs of climate change will fall disproportionately on the world’s poorer nations, creating new global “vulnerabilities and exacerbating existing risks to economic prosperity, food, water, health, and energy security.” Environmental stresses combined with aging populations in developed and middle-income nations (e.g., China) will slow world economic growth—and exacerbate existing trends of economic inequality in most countries, fostering increased geopolitical competition. The power of international corporations will increase, but face political movements for regulation and protectionism.

Within populations, pessimism and distrust will grow vis-a-vis the ability of governments to cope with global challenges increasingly experienced at the local level. The trends report predicts many will seek refuge within ethnic, national, and religious identities, as well as in populist political movements that offer specious solutions. Advanced information technology and social media risk promoting an increasingly siloed information world that fuels these social trends, with growing threats to democracy. Rich countries may have less resources and political capital to deal with a world of failing states, as environmental disasters stress their domestic financial and institutional resources.

According to the report, emerging energy technologies with falling costs can speed up the transition to a climate-friendly economy. Examples include solar photovoltaic and wind energy; advanced energy storage systems; and small-scale modular nuclear reactors. But the successful deployment of these technologies is very much a function of the political economy of nations and the international system.

Technology will not save us, unless we save ourselves by reforming political and economic systems mismatched to deal with global challenges. As national and international institutions and multilateral agreements are “overwhelmed or sidelined” by the challenges, the trends report warns, nations, or even individual corporations and billionaires, may take reckless unilateral actions, with unforeseen consequences. Geoengineering, for example, could entail unintended catastrophic side effects on global weather patterns.

“Global Trends 2040” concludes with five scenarios offering different outcomes depending on the evolution of political and economic factors. The optimistic “Renaissance of Democracies” scenario envisages a renewal of the rules-based, western-led international order, both within nations and internationally, spurred by rising economic growth and technological advances. Global challenges will be met, as wealth and technology is shared more equitably with poorer nations. In “A World Adrift,” current trends continue, the international political system and global economy atrophy, and the world spirals into greater turbulence as climate change pushes humanity closer to the edge. In “Competitive Coexistence,” the United States, China and other states cooperate in setting rules for peaceful competition, but “long term climate challenges remain.” “Separate Silos” portrays an Orwellian future where the international order disintegrates into economic and military-security blocs, trade is reduced, more poor countries become failed states, climate change is unchecked, and global problems multiply. Finally, “Tragedy and Mobilization” envisages a future of worldwide environmental catastrophes, causing global food shortages, and mass famine. Violent calls for political change create the political will for the European Union, China, and the United States to effectively act together.

Only one of these scenarios is hopeful for avoiding climate catastrophe and mitigating social and geopolitical risk. Effective action in that direction depends on a growth of trust that governments can address, and together will address equitably, these synergistically interconnected environmental, economic, and social challenges.

A Destabilized, Dystopian World: A Future Foretold If We Don’t Act

Preparing for Climate Hellscape—Federal Agencies Advance Resilience
David P. Clarke - Writer & Editor
Writer & Editor
Current Issue
David P. Clarke

Are we “on a highway to climate hell with our foot on the accelerator,” as the UN secretary-general declared last November at COP27, the annual meeting of the parties to the climate convention? While the U.S. Department of Defense’s recent Climate Adaptation Plan 2022 Progress Report wasn’t quite so dramatic, it did state, “No country can find lasting security without tackling the climate crisis.”

DOD was one of 20 agencies that published first-ever climate “adaptation-and-resilience plans” in 2021. In comprehensive comments on the plans, the Union of Concerned Scientists lauded the department’s recognition that “no entity” has the luxury of “opting out” of climate change’s impacts, and singled out DOD’s statement as “perhaps the strongest language” on the subject of any federal agency’s climate plan.

In describing the significance of the agency plans overall, Shana Udvardy, UCS’s senior climate resilience policy analyst, says it’s important for the federal government and agencies “to walk the talk,” offering “a model for the nation” as climate-related disasters increase. Moreover, adaptation-and-resilience investments are money well spent, Udvardy says, citing a 2019 report from the congressionally chartered National Institute of Building Sciences. Since 1995 federal mitigation grants have cost taxpayers $27 billion but will ultimately save $160 billion. An even greater 16:1 benefit-cost ratio would be provided by Gulf Coast building upgrades to protect against severe weather.

The federal progress reports came shortly before the COP27 meeting in Egypt, making them especially timely, Udvardy says. At the meeting, delegates overcame longstanding U.S. and E.U. objections to placing “loss and damage” on the agenda—a demand that richer nations responsible for planet-warming emissions should fund poorer countries’ efforts to achieve greater resilience—as flooding, drought, and other disasters are worsening. CNN reported that money quickly surfaced as COP27’s “key issue” and “the most difficult to resolve.”

Showcasing how adaptation and resilience can be done is important internationally, as well as for the United States at the national, state, and local levels, Udvardy adds.

The fact that DOD’s 2021 adaptation-and-resilience plan and 2022 progress report stand out is not surprising. After all, as early as 2010 DOD’s Quadrennial Defense Review cited the U.S. Global Change Research Program’s findings that heavy downpours, rising temperatures, and other “climate-related changes” were already being seen worldwide, including in this country.

Then in 2018, Hurricane Michael slammed Tyndall Air Force Base, inflicting “catastrophic” damages and prompting the Air Force to invest an estimated $5 billion to build Tyndall as an “installation of the future” that will meet strong reliability and sustainability standards. Across Florida the hurricane’s total damages were $18.4 billion, which were far exceeded by last September’s Hurricane Ian, which inflicted damages of more than $50 billion from Florida to the Carolinas.

In its progress report, DOD describes five “lines of efforts,” starting with LO1, “climate-informed decision-making,” and concluding with LO5, “enhance adaptation and resilience through collaboration.” In 2021, according to LO1, the department published a climate adaptation plan and created a climate working group to track the department’s implementation of its climate directives and progress.

In critiquing the progress reports, Udvardy says agencies should provide more quantitative metrics of progress toward “closing the resilience gap,” or reducing the degree to which a community or nation is unprepared for climate effects. She applauds metrics associated with DOD’s Climate Assessment Tool for evaluating the exposure to eight climate hazards, including flooding, heat, drought, wildfire, and historic extreme weather events. The tool has been used to assess all major domestic defense installations and is being expanded to all major international installations, which will help prioritize resources.

The reports are of uneven quality. Generally, DOD clearly took time to detail its engagement with climate change as a national security threat. In contrast, the Department of Homeland Security’s report has a slapped-together quality. All of the reports could use more metrics, Udvardy comments.

Although resilience planning lacks the punch of greenhouse gas regulatory mandates, concerns have begun shaping some agency policies in important ways, Udvardy notes. For example, the Federal Emergency Management Agency updated its National Flood Insurance Program’s risk-rating method for the first time in 50 years.

And there’s money for resilience—at least $50 billion in the 2021 Bipartisan Infrastructure Law and more than $37 billion in the Inflation Reduction Act. Consider the funds down-payments as we brace for climate hell.

David P. Clarke is a writer and editor who has served as a journalist, in industry, and in government. Email him at davidpaulclarke@gmail.com.

Preparing for Climate Hellscape—Federal Agencies Advance Resilience

Is It the Law or Us? We Must Do Better
Sharon Buccino - Natural Resources Defense Council
Natural Resources Defense Council
Current Issue
Parent Article

Flooding is increasing, while in many parts of the country water is scarce and becoming scarcer. Heat waves are growing more intense and more frequent. So are wildfires. All these adverse trends can be tied to climate change triggered by human-induced warming. We know we need to act—and to act quickly.

Where We Need to Go: Fighting climate change by cutting carbon pollution and expanding clean energy is the best way to build a better world for our communities and for generations to come. A clean energy future can create jobs. It can improve public health. It can diversify local economies.

To avoid the most catastrophic impacts of climate change, we must end our dependence on fossil energy. While oil, coal, and natural gas have served us well for many generations, they do not anymore. We do not have to—and cannot—stop using fossil fuels overnight. However, we must make investments for the future in other sources of energy. The Natural Resources Defense Council has laid out a pathway to a safer climate future. Like most other pathways, NRDC’s proposal calls for a dramatic increase in wind and solar power generation, as well as new transmission lines to deliver the power to where it is needed.

How We Get There: We need to build a lot and we need to build it fast. But how we build matters and some of our core environmental laws can help us build well. Take NEPA—the National Environmental Policy Act, signed into law by President Nixon in 1970. It requires the federal government to assess the environmental impacts of a proposed action before taking it. More than an environmental law, NEPA provides a foundation for democracy. NEPA requires federal agencies to cooperate “with state and local governments, and other concerned public and private organizations.”

Some blame NEPA for getting in the way of building the infrastructure the nation needs. The law, however, is not the problem. We still need what it promises: integration, information, and inclusion.

The problem is in the implementation. We do not need environmental impact statements that spend hundreds of pages covering every possible issue in minute detail. We do need analysis that identifies issues critical to affected communities. This is especially true when these communities are the same ones that have borne environmental burdens in the past, including air pollution, toxic waste, and neglect.

Importantly, the Environmental Justice for All Act, a bill now being considered in the House and the Senate, offers specific ideas about how to involve affected communities efficiently and effectively. It requires notice and outreach to community-based organizations, senior citizen organizations, business associations, public health clinics, and local religious organizations. But agencies do not need new legislation to put these ideas into practice.

NEPA is about the big picture; let’s not lose sight of it. The law speaks of the nation’s commitment “to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” Who opposes this?

We have become lost in details. Early environmental impact statements were a few dozen pages long. They were succinct, focused, and even eloquent. It is not the law that needs fixing, but how we use it. The law should be a mechanism to identify tradeoffs and discuss how to make them.

We’ve got to roll up our sleeves at the local level to get projects done. All parties involved need to put the issues on the table early. Agencies need to engage diverse stakeholders through robust and creative public outreach. The Inflation Reduction Act provides some of the resources necessary to do this. Project proponents need to work through key community issues, rather than bulldoze over them. Creative mitigation across a landscape in which a proposed project sits can help. Projects that cause less harm can move quickly.

It’s not the law; it’s us. We can and must do better.

A Time for Triage
Michael B. Gerrard - Columbia Law School
Columbia Law School
Current Issue
A Time for Triage

The world is desperately behind in the energy transformation needed to avoid the worst impacts of climate change. Catching up requires a massive buildout of wind and solar power and associated infrastructure, but in the United States many impediments stand in the way. Among them, ironically enough, are environmental laws. Here I argue that we must accept difficult tradeoffs, sacrificing some of what we consider precious in order to avoid far worse impacts.

The Intergovernmental Panel on Climate Change says that avoiding catastrophic climate change requires keeping global average temperatures within 1.5 Celsius degrees above pre-industrial levels. In May, the World Meteorological Organization said there is a 50/50 chance that we will hit that level in just five years. We are now at around 1.2 degrees, and we are already seeing record-breaking heat waves, wildfires, droughts, and flooding; every added notch on the thermometer makes things worse.

According to the Climate Action Tracker, if all countries fulfill their latest pledges pursuant to the Paris climate agreement, the world will be between 1.7 and 2.6 degrees hotter by 2100. Unfortunately, many countries—including the United States—are far behind in meeting their pledges, and the actual policies and actions underway would take us to 2.0–3.6 degrees by the end of the century. Especially at the upper end of that range, such an increase would be an unimaginably terrible world, with large areas rendered uninhabitable and billions of people (that’s billions, with a “b”) displaced from their homes and looking for some place, any place, to live.

Every scenario for staying even at a fallback position of 2 degrees at century’s end includes the all-out construction of renewable energy projects, primarily wind and solar. The United States in particular needs a World War II-scale mobilization. That era saw a huge investment in research and development, and a nationwide commitment to meeting defense workforce and production goals.

This renewable energy is needed not only to replace fossil fuels in generating electricity, allowing the country to shut down all of its coal plants and almost all of its natural gas plants. Along with other countries, we also need to electrify transport, heating, buildings, and much of industry. U.S. electricity demand would about double, even after aggressive efforts to improve energy efficiency.

To get all this electricity from where it will be generated to where it is used, we also need a massive expansion of transmission—a tripling or quadrupling in capacity under some scenarios.

One attempt to quantify all of this was undertaken by Princeton University’s Net Zero America project in 2021. It sets forth several scenarios for the United States, of which only one does not rely on a large number of new nuclear power plants along with carbon capture and sequestration to allow continued use of natural gas for electricity. That scenario involves 3,085 gigawatts of wind generating capacity and 2,750 gigawatts of solar. This would require an estimated 4,000 square miles of land for the wind and 21,000 square miles for the solar (though much of this land could simultaneously support agriculture or other commercial or industrial uses). That adds up to about the land area of West Virginia.

The reason so much land is required is power density: it takes one or two orders of magnitude more acreage to produce a given amount of electricity with wind or solar than with coal, natural gas, or nuclear power, even considering the land disturbance to acquire their needed fuel.

Several studies conclude that achieving the needed level of wind and solar requires building on the order of 100 gigawatts a year out to 2050. To put this in perspective, one good-sized nuclear power plant, or a very large wind farm, has a capacity of about 1 gigawatt. So we would have to build the equivalent of around 100 of these every year.

The principal way to reduce the amount of new wind and solar required under these scenarios would be large-scale deployment of technologies that are not yet and might never be at a commercial scale. These include small modular nuclear reactors, fusion power, tidal generators, carbon capture, geothermal, or perhaps other energy sources that are not yet on the horizon. These may work out, and a great deal of research and development is being pursued, as it should, but we cannot assume success and relax other efforts.

The worsening projections about future climate conditions also mean that we will need to build more infrastructure to adapt to those conditions—sea walls, larger drainage systems, elevated buildings and roads, and much else. We may also need to build new cities and expand old ones to accommodate those who are displaced from drowning coastlines, parched lands, and forests that have become tinderboxes. This may be millions or tens of millions of Americans, without doing anything for the far greater numbers of people in other countries who will be displaced in large part because of historical emissions from the United States.

There are many impediments grounded in law to achieving this level of wind and solar and the needed adaptation infrastructure. Each one could become, if not a veto point, a cause of years of delay that can kill a project, or a specter that keeps it from serious consideration in the first place.

Local zoning and building codes are high on the list. So are various federal statutes—the Endangered Species Act and other species protection laws; the National Environmental Policy Act and its state equivalents, with all of their procedural intricacies; and the wetlands and coastal protections in Section 404 of the Clean Water Act. We also have the laws protecting public lands and marine habitat. Concerns of environmental justice communities and Indigenous peoples must be considered. Labor and human rights conditions along the supply chains must be addressed. Property rights and trade protections will play important roles.

Each of these factors is entirely legitimate. Each has its own strong constituency that understandably does not want to budge on its particular issues. But cumulatively they contribute to preventing us from building what is needed at the pace and scale essential to address the climate crisis. So do many other financial, engineering, labor, supply chain, and other considerations. When all this is added up, it is difficult to imagine how the United States can build the renewables capacity needed to come even close to our temperature targets.

The Inflation Reduction Act, which President Biden signed on August 16, provides for approximately $370 billion over the next decade in energy and climate spending, including tax credits that will make it much less expensive to build renewables and other elements of clean energy infrastructure. The law provides a great deal of money for agencies to hire staff or consultants to prepare environmental impact assessments and to process applications, but otherwise it does little to clear away the obstacles to all this construction. The deal between Senators Joe Manchin (D-WV) and Chuck Schumer (D-NY) that allowed the passage of the law also included the enactment this fall of separate “permitting reform” legislation; the inevitable fight over that bill will feature loudly competing voices on how much needs to be given to the fossil fuel industry, and what environmental procedures need to be relaxed in exchange for an easier path for clean energy.

This brings me to my point. Rather than climate denial, the environmental community has tradeoff denial. We don’t recognize that it’s too late to preserve everything we consider precious, and to linger in making decisions. Society has run out of time to save everything we want to save, and to mull things over for years. Had the emissions curves peaked and started falling in the 1980s, when an increasing number of scientists were trying to sound the alarm about climate change, we might not have been forced into these tough choices. But that didn’t happen; we squandered the time. We have to acknowledge that we need to be in an era of triage, where we save what we can but recognize that there are things we’ll have to give up.

The United States has a special obligation to accelerate the clean energy transition—we have the world’s greatest financial and technological resources, our per capita greenhouse gas emissions are much higher than those of almost any other country, and our cumulative emissions and consequent climate damage are still the world’s largest.

All this leads me to what will certainly be a number of very unpopular suggestions.

One of the things I’d like to put on the table for debate is that sometimes we need to intrude into the critical habitat of an endangered species if that habitat is where we need to put our wind farms, solar arrays, transmission lines to carry the power, or the mines to extract essential minerals for the manufacture of the new clean energy equipment. We should certainly look for sites with the smallest impacts and also strive to mitigate the impacts that remain. But if despite reasonable measures some birds, bats, or plants will die as a result of building the necessary clean energy projects, that is the hard choice we need to make. Because if we don’t make this choice, far more birds, bats, and much else will die from the ravages of climate change.

We will need to give up some scenic mountain and ocean vistas. It’s wonderful to look at unadorned nature, but the best places for wind turbines are where winds are strongest, such as on top of ridge lines or off the coasts. I would rather see wind turbines on the horizon than know that coastal cities are drowning and millions of acres of human and species habitat are flooded or on fire. The wind and solar facilities in the Princeton scenario could be visible from an area the size of Texas and California combined; if we are precluded from putting these turbines and panels anywhere that people can see them, we’re totally sunk.

We also need to find ways for NEPA to take a lot less than the current average of 4.5 years to go through the environmental impact statement process. (The first section of the New York City subway system was built in less time.) The average approval time for new transmission lines (without which many wind and solar farms are useless) now exceeds 10 years. EISs shouldn’t have to rival War and Peace in length.

We also need to re-examine the demand for local consent. My work has found that in nearly each of the 50 states, cities and towns have enacted zoning or building laws to block renewables. (That’s why in 2019 I founded the Renewable Energy Legal Defense Initiative, which provides pro bono legal assistance to community groups and others that favor wind and solar but that are facing local opposition.) We have to preempt a lot of these laws that block renewables—in other words, to allow a higher level of government to nullify restrictions imposed by a lower level. New York adopted a law in 2020 giving the state sole authority to approve utility-scale wind and solar projects; Albany needs to consider local restrictions but does not have to follow them. New York had adopted a prior law in 2011 on renewables siting, but no project was approved under that law until 2018. Since the enactment of the new law, New York has approved 17 projects; few required going against local restrictions, but the hanging sword of that possibility no doubt sped up some of the projects, as did other expedited procedures under the law. California adopted a similar law last summer.

We also can’t afford to spend years negotiating every project until everyone is happy. To meet our renewables targets, we will need to reform public participation (important as it is) to keep it from paralyzing clean energy development until some elusive form of consensus is reached. And while it may be desirable to compensate neighbors who suffer losses as a result of these projects, this should not be asymmetric; clean energy projects should not have to pay for their negative externalities while (in the absence of a carbon tax) fossil fuel projects do not.

So I think we need to have a serious conversation about what does and does not survive the triage that we must undertake. What do we absolutely, positively have to preserve regardless of everything, and what might we have to sacrifice? These are tough and painful choices. There is no objective, right answer. It depends on a series of normative judgments. We environmental professionals will not be the ones making those judgments, but we can influence them. At a minimum, when there is an important clean energy or climate adaptation project that has some negative impacts and we know how to block or delay it using the environmental laws we have mastered, maybe we should instead refrain from doing that, and get out of the way. When an agency official is curious about some possible obscure impact, maybe she shouldn’t insist that the environmental impact statement study it, and perhaps the courts should excuse the absence.

For many years much of my law practice included litigating against things like highways, landfills, and incinerators. I used to say that I never met an EIS that I couldn’t sue. But the worm has turned. The task before us now is to quickly build a massive amount of clean energy and climate adaptation infrastructure. For these sorts of projects, we need to set aside our tools of obstruction (though of course we should continue using them against fossil fuel projects that have clean substitutes).

This is not all about making sacrifices. The needed energy transition will confer many benefits in addition to slashing greenhouse gas emissions and helping to solve the climate crisis. It will also lessen the conventional air pollution that takes millions of lives globally every year, and the water pollution from many forms of fossil fuel extraction. It will reduce reliance on imported fuels and on the countries that produce them, such as Russia and Saudi Arabia. It will cut down the use of fuels whose prices can fluctuate wildly; high energy prices are one of the core causes of today’s inflation. It will create many jobs; according to the Princeton study, the all-renewables scenario would lead to a net increase of about five million jobs in the United States (after subtracting the jobs lost in fossil fuel industries— mostly gasoline station employees).

I think we also need to set aside a number of illusions about easy solutions that appear to be just around the corner but actually allow us to avoid tough choices such as those mentioned above.

In theory, we could create much of the renewable electricity capacity we need by putting solar panels on rooftops, parking lots, and similar surfaces. In reality only a small fraction of building owners, especially homeowners, will put panels on their roofs, certainly if they have to pay for it themselves up front. We can require new structures to have them, but there is little discussion of mandating their placement on existing buildings that are otherwise not undergoing major work. Cumbersome local approval processes also stand in the way. (In Australia, these installations can be approved online in as little as a day; in the United States it can take months.) Abandoned agricultural and mined land may have greater potential, if it is available for sale and otherwise physically suitable, and solar panels can be floated on reservoirs (“floatovoltaics”). So far at least, “distributed” solar costs around three times as much as utility-scale solar for the same generating capacity, so choices are needed about what to subsidize.

In theory, a price could be put on carbon that will percolate through the economy and transform our energy and consumption patterns; but in reality our political leaders are spooked by increases in the price of gasoline and electricity, and there is little if any indication that they’ll ever agree to impose a carbon price—certainly not one of the magnitude that economists say is necessary to do the job, despite protestations by advocates that the carbon revenues can be distributed in ways that can offset the pocketbook impact. The Inflation Reduction Act of 2022 demonstrates that Congress is all about carrots, not sticks—and not a single Republican member of the House or the Senate voted for even the carrots.

In theory, we could shut down our existing nuclear power plants even though they are operating well, and replace them with renewables and efficiency. In reality, whenever we’ve shut down a nuclear power plant, its electricity has mostly been replaced by natural gas. And much of the new renewables that have been brought on line aren’t able to aid in decarbonization since they’re having to stand in for a reactor that, until it was shut down, was a close to zero-carbon power source.

In theory, we could avoid having to build hundreds of millions of electric cars (with all the minerals needed to build them and the electricity to run them) by switching to mass transit and bicycles. In reality, mass transit and bicycles are wonderful in parts of some cities, but in few suburbs and almost no rural areas, where the densities are too low to support transit and the distances are too great for bicycles except for the hardiest (though the new generation of electric bikes certainly helps). There are many reasons to try to achieve greater densities (reducing racial segregation, improving affordability, consuming less land, encouraging physical activity through more walking and biking), but that is a campaign that has already been fought for decades and has its own withering battles with limited success. In sum, we can reduce the number of car trips, but there are real limits.

After Pearl Harbor, Congress gave immense powers to the War Production Board, and U.S. industry mobilized with stunning speed to produce the airplanes, tanks, and other materiel needed to win the war. But very few Americans were standing in the way. Indeed, the era saw unprecedented unity, and people of all kinds joined the war effort, including women and racial minorities who had previously been excluded from many roles. Unfortunately, today we have a major political party doing everything it can to block action on climate change. Anti-renewables organizations have sprung up, and right-wing media are amplifying their false messages.

Several academics have written about what we need to do to speed up the process. Among them are J.B. Ruhl, Jim Salzman, Jeff Thaler, Alexandra Klass, John Dernbach, Uma Outka, and John Ruple. Some of the suggestions that have emerged are more federal preemption of state and local control over renewables and transmission; more centralized decisionmaking, not just coordination, so that individual agencies can’t hold things up; broader allowance of mitigation when adverse impacts are found; and extensive use of eminent domain, especially for transmission lines.

We could have more use of programmatic EISs (which cover multiple similar projects, not just one) and regional assessments of species habitat and historic sites (necessarily accompanied by considerably greater agency staffing to do all of this) so that individual projects within the studied regions can move quickly. We should also adopt standard assessment and mitigation measures and permit conditions, so that the wheel doesn’t have to be reinvented and renegotiated every time, and impose tighter timelines for project reviews, with default approvals if those timelines are exceeded. Congress could provide for limits on judicial review, perhaps requiring all challenges to projects to be brought in the D.C. Circuit on the administrative record, with a short statute of limitations. Early engagement with disadvantaged communities, tribal governments and Indigenous peoples has also been found to be helpful.

A major challenge is that, in the hands of a pro-fossil fuel president or Congress, most of these tools could as readily be used to hasten the approval of dirty as well as clean energy projects. This further highlights the central importance of electoral politics in addressing the climate crisis.

We can’t afford any more obstacles. I think it’s incumbent on all of us who do understand the frightening magnitude of the climate threat to work to clear the path for the energy transformation we need.

There are some models of laws that have achieved speedy approvals for certain kinds of projects—the Telecommunications Act of 1996 for cell phone towers; the Defense Base Closure and Realignment Act of 1990; the Second War Powers Act of 1942. Whatever it is, I believe we need to move forward in this fashion, and not just plod along with business-as-usual environmental regulation toward a world of killing heat and mass human migration and species extinction. We need to end tradeoff denial. TEF

COVER STORY 2 It’s too late to protect everything. To save the climate, we need to build so much wind and solar that some will go in bad places. Not doing so would be much worse. Rather than climate denial, the environmental community has tradeoff denial.