Nuclear Power Is Not Clean and Not Safe Enough
Author
Edwin Lyman - Union of Concerned Scientists
Union of Concerned Scientists
Current Issue
Issue
2
Parent Article
Edwin Lyman

People who argue nuclear power is essential to combat climate change stress that wind and solar power are variable resources, dismissing the potential for energy storage, transmission, and grid management improvements that could bridge gaps between renewable energy supply and demand. Yet they are bullish on nuclear energy’s ability to quickly overcome the problems that caused it to lose support and stagnate in recent decades, including high cost, construction delays, inflexibility, safety risks, nuclear weapons proliferation, and the never-ending waste-disposal stalemate. This way of thinking is rooted more in technological bias than in logical analysis.

Our low-carbon energy future is not set in stone (or uranium). But the nuclear industry hopes to make itself look indispensable while struggling to stay relevant in the face of rapidly increasing deployment of renewable energy—as costs plummet (by about 70 and 80 percent for land-based wind and utility-scale solar power since 2010, respectively). In contrast, recent nuclear projects are losing against renewables because they have not realized the dramatic cost and schedule reductions promoters promised. The $35 billion twin-unit AP1000 plant at Plant Vogtle in Georgia has famously ended up costing more than twice as much and taking about twice as long to build as initially projected.

Westinghouse’s main rationale for the AP1000, an evolutionary variant of previous light-water reactors, was to slash capital cost by significantly reducing materials, components, and the volume of buildings that must meet the highest safety and seismic standards. It didn’t work. Vogtle’s cost per megawatt dwarfs that of another budget-busting nuclear project, the Olkiluoto EPR in Finland, even though the EPR’s design offers enhanced safety over cutting cost.

Undaunted, nuclear boosters brush off the Vogtle fiasco, claiming the future lies in cheaper “small modular reactors” or even tinier “micro-reactors” that can be deployed in locations not feasible for large plants. But a lower price tag doesn’t guarantee small reactors will be more economical: Diseconomies of scale dictate they will generate more expensive electricity unless capital and operating expenses can be slashed well below any reductions obtained by simply scaling down.

And while reactor design standardization may reduce cost and speed up deployment, the Department of Energy is pursuing the opposite approach, spreading development dollars among a vast menagerie of exotic reactor concepts. Many would use specialized fuels, materials, and components that need unique supply chains and manufacturing facilities. While no one wants the government to be in the business of picking winners and losers, this scattershot policy risks adding up to a whole lot of nothing.

To cut costs and speed up deployment of these first-of-a-kind reactors, developers are irresponsibly seeking many exemptions from fundamental safety requirements, such as robust, leak-tight containments; materials and construction of the highest quality; and full complements of trained operators and security personnel. And to facilitate reactor siting near densely populated areas or hazardous industrial facilities, the industry wants to forego the emergency planning critical to protect communities from a major accident or terrorist attack. Even so, after cutting numerous safety corners, NuScale, the most mature U.S. small modular reactor project, experienced a 50 percent increase in its projected power cost and was dumped by its only viable customer in November 2023.

Developers justify their push for weakened regulations by claiming their reactors are safer than current-generation plants. But a 2021 Union of Concerned Scientists review found these experimental reactors pose novel and poorly understood risks—which will be aggravated if there is a rush to license technically immature designs under less stringent rules that do not require the same safety margins and redundant layers of protection as operating reactors have.

Although the Nuclear Regulatory Commission is significantly easing its licensing rules, pro-nuclear organizations unfairly scapegoat it for the largely self-inflicted problems that are causing nuclear to lose the race with renewables, urging the agency to even more drastically gut the regulations that have helped U.S. reactors remain meltdown-free since the 1979 Three Mile Island accident. These groups claim nuclear power is “clean” and that its safety risks have been exaggerated, downplaying the disasters that the world witnessed with horror at Chernobyl and Fukushima. While they say they act in the public interest, their anti-regulatory stance and denial of the dangers of ionizing radiation are totally in synch with the nuclear industry’s bottom line. Rigorous studies show that low exposures to radioactive materials can cause cancer and even cardiovascular disease. It is simply false advertising to label as “clean” a power source that generates copious quantities of long-lived poisons with the potential to severely damage the environment.

Nuclear safety should not be traded away to give the industry a leg up in its competition with rapidly advancing renewables. Nuclear power will succeed only if it can achieve a safety level high enough to effectively preclude another Fukushima-scale accident—or worse—that could send public support of the technology to the basement for another generation.

Edwin Lyman is the director of nuclear power safety at the Union of Concerned Scientists.

Creating a New Pathway for Nuclear Energy
Author
Jon-Michael Murray - Clean Air Task Force
Clean Air Task Force
Current Issue
Issue
2
Parent Article
Jon-Michael Murray

The recent commitment at COP28 by nearly two dozen countries—including the United States, United Kingdom, South Korea, and France—to triple their nuclear energy capacity by 2050 underscores a simple truth: expanding nuclear energy is essential for meeting decarbonization targets amidst growing global energy demand. Overreliance on a single set of technologies is not the best recipe for success. Instead, a robust portfolio of solutions is needed to meet the size and complexity of the challenge. But at the same time, cost matters. Capital must be allocated wisely in a world of scarce resources. In that light, costs must be reduced and delivery times accelerated if nuclear energy is to play a significant role in the energy transition.

Global decarbonization scenarios predict a substantial increase in electric power output by mid-century, a doubling or even tripling of current capacity. This surge will be driven by electrification of various sectors and heightened demand, particularly in developing regions. While renewables such as wind and solar will serve as cornerstones of a decarbonized electricity grid, studies consistently highlight the need for substantial amounts of non-weather-dependent, always-available zero-carbon power to maintain reliability and contain costs.

Nuclear energy is already the world’s largest source of this kind of “clean firm” power available today. And it can address several critical aspects of the energy transition. It can reduce the need to build excess wind and solar capacity many times over peak demand, as well as expensive, rarely-called-upon energy storage. Due to its energy density and siting flexibility, it can reduce critical minerals and materials requirements and ease land-use and grid infrastructure barriers. It can also reduce exposure to climate-related risks, while lessening widespread curtailments of energy demand. Finally, by avoiding the challenges of siting excessive solar and wind projects, it can accelerate the energy transition.

Despite these apparent advantages, nuclear energy development has stagnated globally. While determined minority public opposition continues to be a challenge for nuclear expansion in some locales, and for individual projects, increasingly, concerns around cost and competitiveness weigh more heavily. These concerns are not unfounded. Recent large light-water reactor projects such as Olkiluoto in Finland and Vogtle in the U.S. state of Georgia, both of which were completed nearly a decade or more late and at least two times over budget, have understandably led critics to question whether the technology has a future. Indeed, the poor cost performance and high project delivery risk is one of the reasons current nuclear investment globally is so low compared to other low-carbon energy sources. And it is obvious that current global investment in new nuclear capacity is far lower than will be required to support a global rate of scale-up sufficient to meet future clean energy demands, let alone a tripling of capacity by 2050.

Flaws in the current delivery, business, and regulatory models for nuclear energy technology bear much of the blame. Remedying these flaws becomes urgent in the context of climate and economic development goals that demand rapid, simultaneous expansion of all low-carbon energy options, including nuclear, across multiple regions of the world. This seems like a daunting task, but it has been done before. From 1980 to 2000, global nuclear generating capacity—nearly all in the form of large conventional light-water reactors—grew rapidly, with as much as 30 gigawatts being added each year in the early 1980s, a rate of growth similar in magnitude to what might be needed today. However, recognizing that the nuclear industry of today, with its high cost and slow delivery time, is not sufficient to meet modern challenges, CATF has proposed six mutually reinforcing solutions to the current nuclear industry dysfunction.

The first is productization, a shift from slow, expensive mega-projects to standardized, manufactured products to achieve economies of scale and reduce costs. Second is prioritization of large order-books, aggregating demand for repeat builds of the same design to consolidate project risk and maximize learning-by-doing. Third is plant delivery integration. Independent Nuclear Development Organizations should be formed to streamline project development and deployment. Fourth is harmonized global licensing, which involves the creation of a Global Licensing Authority to provide globally accepted Design Acceptance Certificates. Fifth is technical support for new nuclear nations, requiring the creation of an International Technical Support Organization to assist first-time nuclear countries in overcoming licensing barriers. Finally, sixth is broader access to financing, achieved by establishing an International Bank for Nuclear Infrastructure to provide financing and support for nuclear programs.

These proposed solutions represent a new pathway for nuclear energy to meet the climate and human development challenges of the coming decades. Implementing them will significantly disrupt existing industry practices, amounting to a fundamental reset in how nuclear energy is licensed and delivered, but the effort will be worthwhile if nuclear can live up to its full potential as a clean firm power source. If that is the case, then the energy transition will be much faster and far less costly.

Jon-Michael Murray is CATF’s nuclear policy manager and is responsible for developing and advocating for policies that promote the development and deployment of advanced nuclear energy technologies in the United States and globally.

The Climate Needs Nuclear Energy
Author
Jackie Toth - Good Energy Collective
Good Energy Collective
Current Issue
Issue
2
Parent Article
Jackie Toth

The world faces disaster from climate change, but building out our nuclear power capacity will help temper the the challenge. We will need more nuclear because new renewable generation alone is unlikely to supplant fossil fuels, and nascent carbon capture technologies may not mitigate environmental impacts from oil, gas, and coal.

According to the International Energy Agency, 87 percent of the total global energy supply in 1973 came from fossil fuels. In 2019, it was still 81 percent. The IEA projects that total energy demand could start declining through 2030 if all countries were to meet their climate targets on time or reach net-zero emissions by 2050. But look no further than COP28 to observe how off track the world is from these achievements.

In this landscape, nuclear alongside renewables offers key benefits. Reactors reliably produce about 10 percent of global electricity today. They release no operating emissions, and their median lifecycle emissions are on par with offshore wind.

Policymakers, including Democrats and progressives, recognize these assets and the ongoing improvements to the safety and efficiency of new nuclear designs. In a 2010 speech, President Obama acknowledged nuclear’s controversial stature while urging a fresh look at its role in meeting new energy demand and fighting climate change. President Biden is similarly supportive. When I was reporting on energy in 2019, Representative Alexandria Ocasio-Cortez (D-NY) told me the Green New Deal resolution she sponsored “leaves the door open on nuclear.” She supported the closure of the Indian Point nuclear plant north of New York City, but added that “one plant built decades ago is not emblematic of the technology that we have today.”

It’s true that renewables are less expensive to build than reactors. But the Department of Energy estimates in a recent “liftoff” report that advanced nuclear with tax credits will be cost-competitive with renewables plus long-duration storage, or with natural gas plus carbon capture, which would each provide similar low-carbon or reliability benefits.

Likewise, the least-cost transition to cleaner grids will not always maximize value for surrounding communities and workforces. Much of nuclear’s expense represents investments in local economies and labor. Today’s nuclear plants support 500-800 permanent workers across many professions and create thousands of jobs during construction. The plants also support communities with state and municipal tax payments and emergency preparedness funds. Job quality also matters: At 19 percent, nuclear’s workforce is the most unionized in the electric power generation sector, compared with 17 percent for coal, 12 percent for wind, and 11 percent for solar, according to the most recent U.S. Energy and Employment Report.

While nuclear energy has helped avoid 70 gigatonnes of global carbon emissions to date, nations like the United States still have important work to do to improve nuclear’s viability as a social and environmental tool. In some countries and communities, its wartime origins and three high-profile accidents contribute toward a prevailing sense of dread of nuclear energy. Past uranium extraction scarred landscapes. In the 20th century, U.S. officials knowingly failed to protect the indigenous Diné, who mined uranium for the government, from contamination and has yet to redress that harm. It is incumbent on both governments and developers to address public concerns about nuclear, involve potential host communities in new projects, and prioritize ethicality in sourcing nuclear fuels and materials.

And people rightly ask: What about nuclear waste? By the time of Obama’s 2010 remarks, he had directed DOE to convene experts who could recommend a comprehensive approach to managing domestic spent nuclear fuel. This was important. Although the United States has never experienced a release of nuclear waste from commercial plants, the 70-plus communities that host nuclear waste in over 30 states never agreed to hold it long-term. The experts’ first recommendation was for Congress to direct a process to site waste storage facilities based on local consent. Congress obliged. My organization, with our project partners at the University of Notre Dame, are among DOE’s awardees to propose a community-involved approach to storing nuclear waste.

One thing that new advanced reactors may not be able to do is meaningfully reduce global emissions by 2030. But the climate will not stop heating after that date. New nuclear could make a critical dent in emissions by mid-century. According to the IEA, 35 percent of the emissions reductions the world would need to achieve to reach carbon neutrality in 2050 will come from technologies like small modular reactors that aren’t yet on the market.

Pollsters at Gallup and Pew Research Center have charted recent increases in U.S. adults’ favorability toward nuclear. Hopefully for the planet, those results reflect a durable recognition that, if approached ethically, nuclear can address climate change while providing local value.

Jackie Toth is deputy director of Good Energy Collective. She is a former energy and environment policy journalist.

A Clean and Sustainable Future
Author
Kathryn Huff - Department of Energy
Department of Energy
Current Issue
Issue
2
Parent Article
Kathryn Huff

Now more than ever, the world needs pragmatic solutions that can support an equitable clean energy transition. To combat the climate crisis, we must move away from carbon-emitting energy sources as quickly and responsibly as possible. We cannot afford to leave communities behind, sacrifice system reliability, or undermine affordable access to energy. The Biden administration has made it clear that, to do this, we need nuclear energy. Analysis by the world’s key experts supports this conclusion, including assessments by the Department of Energy, the Intergovernmental Panel on Climate Change, the International Energy Agency, and the International Atomic Energy Agency.

At the recent COP28 climate summit, 22 nations, including the United States, pledged to triple nuclear energy capacity by 2050 to meet net-zero emissions goals. For the United States, that means installing approximately 200 gigawatts of new nuclear power by mid century.

Recognizing the scale of this challenge, the DOE’s Office of Nuclear Energy supports research and development to reduce reactor costs, decarbonize markets beyond electricity, and above all, build new reactors.

New, advanced nuclear reactors are poised to provide much needed clean energy relief to communities around the world. Small modular reactors and microreactors present cost-effective options for diverse energy consumers, promising reduced construction costs and timelines. The energy density of nuclear power enables compact plant sizes suitable for powering self-sufficient microgrids in remote areas, reliably supporting critical infrastructure, and replacing retiring coal plants across the nation. These advantages provide important choices for communities looking to meet increasing energy demand without sacrificing jobs, reliability, or the environment.

Many reactor technologies commercializing today are designed to adjust their electricity output to complement renewable technologies, ensuring a stable and reliable supply of energy. This is a role currently filled by natural gas peaking plants, which if replaced with nuclear energy would significantly reduce carbon emissions.

Some advanced reactor designs can generate high temperatures well-suited to decarbonize energy-intensive processes that currently rely on fossil fuels, including hydrogen production, desalination, district heating, petroleum refining, and fertilizer production. These industrial applications make up nearly a quarter of greenhouse gas emissions and cannot be fully decarbonized without the clean, thermal energy available from reactors. That’s why DOE is supporting initiatives such as the Hydrogen Energy Earthshot, which includes billions of dollars to establish Hydrogen Hubs across the country; the Industrial Decarbonization Energy Earthshot focused on applications with the hardest-to-abate emissions; and the X-energy high-temperature gas reactor demonstration in partnership with Dow.

Advanced reactors are also being designed with enhanced safety and security features such as lower power levels, reduction or elimination of safety-related human intervention, and below-ground construction. Assuring the safety of new reactor designs is vital for public trust in nuclear as a clean and reliable power source, but it’s important to recognize that nuclear energy is already safe—safer in fact than almost any other energy source.

To deliver on the promise of advanced nuclear reactor technology, we must also secure the supply of nuclear fuel and find ways to ensure sustainability in the back end of the fuel cycle. With regard to securing the supply, the United States and many of our allies have declared a commitment to expand fuel supply chain capacities to displace Russian conversion-and-enrichment supply. Domestically, this will require strategic investments coupled with import restrictions that protect those investments well into the future.

On the back end, waste management is a critical aspect of the industry’s sustainability. The development of advanced reactors offers a promising solution, with designs capable of using spent fuel, thereby reducing the material requiring disposal in repositories. DOE is investing in research to improve waste recycling and disposal technologies, aiming to make nuclear energy more sustainable. Through millions of dollars in community engagement activities, DOE has kickstarted a consent-based process to site one or more federal consolidated interim storage facilities for commercial spent nuclear fuel as a near-term action.

The social, environmental, and economic costs of the climate crisis far outweigh the costs of deploying new nuclear reactors. Nuclear energy has already saved millions of lives by avoiding air pollution-related deaths. As we face the impacts of a changing climate, including the increased frequency and strength of extreme weather and climate events, nuclear energy must be part of the solution.

A failure to implement advanced nuclear energy solutions will cost more than humanity can afford. We don’t have the luxury of time. Communities around the world deserve access to clean energy, water, and air today. Nuclear energy can, and must, deliver a cleaner, more prosperous future for all.

Kathryn Huff leads the Department of Energy’s Office of Nuclear Energy as the assistant secretary.

The Debate: Is More Nuclear Energy Essential to Combat Climate Change?
Author
Kathryn Huff - Department of Energy
Jon-Michael Murray - Clean Air Task Force
Edwin Lyman - Union of Concerned Scientists
Jackie Toth - Good Energy Collective
Department of Energy
Clean Air Task Force
Union of Concerned Scientists
Good Energy Collective
Current Issue
Issue
2
The Debate: The New Toxic Substances Control Act Is Now Five Years Old: A Report

With demands to eliminate climate change-inducing carbon emissions gaining urgency, nuclear energy is enjoying renewed if controversial support worldwide and domestically. In the United States, lawmakers and policymakers are aware that the technology has important downsides, such as resolving tricky waste disposal issues and ensuring reactor safety, with several historical disasters in the public mind. Those issues as well as cost per kilowatt-hour have led to level growth in the United States in recent decades. But now some are arguing that an energy source with virtually no air emissions deserves a new look, particularly with advanced designs on the drawing board that aim to address these and other problems.

The first new reactor in the United States in seven years started commercial operation last July in Waynesboro, Georgia, making 94 currently in operation nationwide. At present, nuclear generators provide about 20 percent of U.S. electricity consumption. To halve the utility sector’s carbon emissions by 2030 and achieve net-zero emissions by 2050—while electrifying the transportation, manufacturing, and building sectors—President Biden’s administration is promoting advanced nuclear designs and says failing to accelerate investments in reactor technology risks missing decarbonization targets.

But to successfully address climate change, and given projected growth of renewables, do we need new nuclear facilities to fill in gaps, particularly in providing baseload electricity? To meet Biden’s schedule, can we reduce the time needed to approve, site, and build reactors? Can the industry design generators at lower risk from meltdowns, terrorist attacks, and other calamities? What about the concern that nuclear fuels and byproducts can lead to proliferation of atomic weapons? And can we solve the long-term waste-disposal problem?

With demands to eliminate climate change-inducing carbon emissions gaining urgency, nuclear energy is enjoying renewed if controversial support worldwide and domestically. In the United States, lawmakers and policymakers are aware that the technology has important downsides, including waste disposal and reactor safety. But now some are arguing that an energy source with virtually no air emissions deserves a new look, particularly with advanced designs on the drawing board that aim to address these and other problems.

Taking Stock of the Paris Agreement’s Stocktake
Author
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
Current Issue
Issue
1
The Debate: The New Toxic Substances Control Act Is Now Five Years Old: A Report

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
Author
J.B. Ruhl - Vanderbilt Law School
Vanderbilt Law School
Current Issue
Issue
5
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
Author
Bob Sussman - Sussman and Associates
Sussman and Associates
Current Issue
Issue
4
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
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Ethan Shenkman - Arnold & Porter
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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.