Reaching an Inflection Point: What’s at Stake?
Kevin Poloncarz - Covington & Burling LLP
Covington & Burling LLP
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Like many, I started raising chickens during the pandemic. My father grew up on a chicken farm outside Buffalo, so it’s probably in my blood. For nearly two and a half years, my flock thrived. Over the halcyon days of that first summer, I’d spend a couple hours every afternoon letting them “free range” in my garden, under my watchful eye against the hawks who decimated neighbors’ flocks, while I prepared for oral argument in the D.C. Circuit.

In October 2020, I argued the main statutory point upon which the D.C. Circuit vacated the Trump EPA’s repeal of the Clean Power Plan in American Lung Association v. EPA. My clients included major power companies, which the Supreme Court would ultimately order to appear alongside federal respondents to defend the scope of EPA’s authority in last term’s blockbuster climate case, West Virginia v. EPA. I never imagined that the case I practiced with my chickens would get decided on the last day of the term.

Spending this past summer telling literally thousands via Zoom about the biggest loss of your career is not fun; I can attest. Yet, through all of this, my flock continued to thrive, producing dozens of white, azure-green, and pale brown eggs each week.

On Labor Day, I left my flock here in Napa in the early afternoon, when it was already 109 degrees. I said goodbye to all of them, including Elizabeth, a Speckled Sussex, who was always the first to greet me and demand attention. I returned 50 hours later and Elizabeth was dead, having succumbed to the punishing heat. During that time, California experienced an unprecedented heat wave, with temperatures exceeding 100 degrees for several days in a row and reaching 115 on the day she died. The electricity grid barely scraped by, with demand peaking at an all-time high that day. Somehow, through the planning and diligence of the governor’s team and creative use of the Amber Alert system, blackouts were avoided.

My grief upon losing Elizabeth was and remains immense. It’s rooted in my overwhelming sense that unprecedented heat waves lasting several days can now be expected, and can’t be characterized as aberrations. Thousand-year storms shouldn’t happen five weeks in a row as they did this summer. When I started working on climate issues over 15 years ago, I never imagined impacts like this would occur until I was either retired or dead.

My grief comes from a place of privilege; the loss of a beloved hen pales in comparison to the impacts suffered by frontline communities who can barely afford to feed their families. Yet the depths of my sorrow are likely rooted in the unavoidable admission that my generation failed miserably at taking action to avoid these brutal heat waves and natural disasters.

Passage of the Inflation Reduction Act was cause for celebration, as was a legislative package California passed in September, which codified the state’s goals to achieve net-zero emissions no later than 2045 and an 85 percent reduction in anthropogenic emissions by the same date. I had a small hand in both and know how hard it was to get them done. I also know that such monumental accomplishments are few and far between, demanding political will and compromises that are hard to muster.

And so we still need federal agencies to do the heavy lifting when it comes to hard problems like climate change. But that’s exactly what the majority’s decision in West Virginia denies them the ability to do. If an issue is too big or too important, it will almost certainly be subject to a major questions challenge. As earlier cases from this last term concerning the eviction moratorium or vaccine mandates foretold, this Court will not hesitate to clip the wings of agencies attempting to exercise broad delegations of authority to address large problems.

The Clean Power Plan ultimately proved irrelevant; its goals were achieved a decade in advance, although it never went into effect. So what, then, were we fighting for?

I’m increasingly prone to questions like this, as a childless man who turns 50 next year and whose goats and chickens can’t outlast him. Here’s my take on what the next generation of climate advocates should learn from West Virginia:

First, you’re playing a long game. Having your biggest loss end up as just an inflection point on a longer trajectory toward the ultimate goal might be okay; you’ll survive.

Second, don’t let anyone ever make you think that just because you’re the son of a chicken farmer-cum-steelworker, you’re not entitled to argue hard questions about the quasi-constitutional dimensions of statutory interpretation that the Court had not previously confronted in a majority opinion.

Third, don’t give up, back down, or let my queen Elizabeth’s death be in vain.

Kevin Poloncarz is partner at Covington & Burling LLP. He represented a coalition of major power companies in West Virginia v. EPA, and argued the main statutory point on which the D.C. Circuit vacated the repeal of the Clean Power Plan.

Court Raises More Questions Than Answers for Practitioners
Ethan Shenkman - Arnold & Porter
Arnold & Porter
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Ethan Shenkman

The Supreme Court’s opinion in West Virginia v. EPA, released on the term’s last day, was the most highly anticipated environmental law decision in years, as it would finally resolve the longstanding legal saga regarding the Clean Power Plan. Ultimately, the Court addressed a fairly narrow issue, holding that EPA cannot set a carbon emissions standard for existing power plants based on system-wide “generation shifting” from fossil fuels to renewable energy sources. But the justices did so in a way that raises profound issues for the future practice of environmental law. Here are the top six takeaways for practitioners.

First, regulation of greenhouse gas emissions is here to stay. What an opinion does not decide can be just as important as its holding. Here, the Court did not, as some had feared, call into question EPA’s fundamental authority to regulate GHG emissions; in fact, it reaffirmed the agency’s ability to regulate carbon emissions from existing power plants under Section 111(d) of the Clean Air Act. Practitioners will be grappling not with whether EPA can utilize the act to address climate change, but how.

EPA and its lawyers will move ahead with a new scheme for the power sector. Anticipating that the Court likely granted certiorari to disapprove the CPP, the agency has not been sitting still. And, as it turns out, the justices left EPA with running room. The Court stopped short of finding that Section 111(d) is strictly limited to measures that reduce emissions within the “fence line” of individual sources, as the Trump administration held. Indeed, in a white paper, the agency hinted that it may consider a wide range of technologies in fashioning its forthcoming proposal, including integration of renewable energy with fossil fuel-fired sources, co-firing of natural gas or biomass with coal, carbon capture and sequestration, and the use of hydrogen. Whichever way it goes, lawyers will play a key role in designing a defensible proposal.

Next, the major questions doctrine will keep litigators busy over the coming years. The Court rested its ruling on the doctrine, finding that the CPP represented a “transformative” expansion of EPA’s regulatory authority, requiring “clear congressional authorization.” The opinion perceived EPA as “discovering” this broad authority in a long-extant and unheralded “gap-filling” provision, using it to adopt what, in the Court’s view, was akin to the cap-and-trade program that Congress had previously rejected. For practitioners, however, the case raises far more questions than it answers. When exactly is the doctrine triggered? What kind of “clear statement” will satisfy the test? What is left of Chevron deference? These issues will be heavily litigated in the lower courts, especially in the D.C. Circuit.

Administrative law practitioners will shift from relying on agency deference to grounding regulations in historical practice. The decision will inevitably be cited in challenges to the full gamut of federal regulations. The Federal Energy Regulatory Commission’s climate change policies in review of natural gas projects, and the Securities and Exchange Commission’s climate disclosure rule—both being finalized in the next year or so—may provide some of the more high profile tests of the decision’s implications. From now on, agency lawyers will have to do more than show a new regulatory program is based on a permissible reading of the statutory text; they will need to focus, instead, on building a case that the regulation is merely an extension of the agency’s past practice, and that it won’t have earth-shattering consequences.

Legislative drafters will face a new quandary. Congress often delegates broad authority to regulators to address new and evolving environmental threats based on an agency’s judgment and technical expertise. While the Court’s decision was purportedly grounded in allegiance to congressional intent, it raises tricky questions about how “clearly” that intent has to be expressed. In particular, legislative practitioners will have to grapple with how to draft a “clear statement” that passes muster, while still leaving agencies with sufficient flexibility to resolve novel and difficult-to-predict environmental and public health challenges.

Attention will shift to the power of the purse. The Inflation Reduction Act of 2022, which directs $369 billion to spur clean energy and energy-security investments, is being heralded by experts as the most significant climate change legislation in U.S. history. If enacted, the landmark bill may signal a turning point, as focus on the Hill shifts from enacting new regulatory regimes to combatting climate change through tax policy and private sector investment, accelerating innovation and enabling clean technologies to be developed at scale. Environmental practitioners will remain busy on all fronts.

Court Raises More Questions Than Answers for Practitioners.

Add Progress, Stability to Policymaking
Caroline Cecot - Antonin Scalia Law School at George Mason University
Antonin Scalia Law School at George Mason University
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headshot of Caroline Cecot

The Trump administration’s biggest actions were often deregulatory—rescinding or modifying the prior administration’s recently issued rules. These moves frequently targeted the Obama administration’s flagship environmental protections, including the Clean Power Plan, the Waters of the United States Rule, and its groundbreaking vehicle fuel economy and greenhouse gas standards—all of which, according to their cost-benefit analyses, were expected to provide hundreds of millions of net monetized benefits each year.

Thankfully, in some of these cases, courts blocked the Trump actions, at least in part based on the administration’s shoddy reasoning for moving away from CBA-justified policies. But if the commitment to CBA and what it represents is abandoned, there will be no protection from such regulatory swings in our increasingly polarized society.

At its core, a commitment to CBA is a commitment to evidence-backed policies. The tool is meant to be a neutral aide to decisionmaking, helping highlight moves from the status quo that are net socially beneficial based on available evidence. If there’s no economic or scientific evidence to support a move away from the status quo (in either direction), then CBA will not help justify the move. In such cases, federal agencies could pursue their objectives without CBA’s support—as they often do. But if there is solid evidence to support a move, a CBA will provide a strong justification to an agency advancing such an action. The resulting policy will be more resilient, especially against a future administration with different priorities.

In Trump’s efforts to roll back Obama-era regulations, for example, the new administration was most successful when prior regulations were not supported by relatively complete CBAs, as was the case for the Hydraulic Fracturing on Federal and Indian Lands Rule. But it was least successful when prior regulations were strongly CBA-justified, such as fuel economy and greenhouse gas standards.

No one thinks CBA, as currently practiced, is perfect. Given incomplete data and underlying scientific uncertainty, CBAs today cannot produce one number to unequivocally direct policies. Instead, they often point to a range of expected values of different courses of action. And admittedly, benefits to the environment are not always easily converted into the monetary values that make CBA most useful—though great strides have been made in doing this, such as valuing the negative consequences of exposure to particulate matter and the accumulation of greenhouse gases.

Moreover, the effort to monetize benefits has sometimes revealed them to be more valuable than initially thought. Examples include the use of the Value of Statistical Life to assess mortality-risk reductions, the Reagan administration’s decision to pursue a stricter standard for phasing out lead in gasoline, and the value of additional reductions in particulate matter emissions below the cost-blind National Ambient Air Quality Standard. But, most importantly, CBA is still the best available tool for advancing sensible and resilient policies to address our most pressing environmental problems.

Pro-regulatory and anti-regulatory advocates both push for less analysis to impose their preferred policies more easily. They attack CBA simultaneously for being easy to manipulate (by the other side), anti-regulatory or pro-regulatory (as relevant), not transparent, and persistently net costly for some groups—eroding decades of bipartisan consensus around the use of the tool. But they typically fail to acknowledge that their preferred alternatives all perform worse by these same measures.

And, simply put, those who value efforts to protect the environment have more to lose in a regulatory dynamic where policy swings from one administration to the next. Many issues that are particularly important, such as seriously tackling the threat of climate change, involve sustained commitments over a long time horizon in order to realize benefits. The focus should be on fostering commitments to welfare-enhancing policies and generating the necessary evidence to obtain bipartisan buy-in. This work is difficult, no doubt, but necessary.

Biden Off to the Races — With a Boost From the D.C. Circuit
Ethan Shenkman - Arnold & Porter LLP
Arnold & Porter LLP
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Ethan Shenkman

“Policy priorities may change from one administration to the next,” the D.C. Circuit pronounced, but the Trump EPA’s “tortured series of misreadings of [the Clean Air Act] cannot unambiguously foreclose the authority Congress conferred.” In a long-awaited ruling, issued just one day before inauguration, the court upheld EPA’s broad authority to address carbon emissions from power plants under Section 111(d) of the act. The opinion will boost the Biden administration’s ambitious climate agenda, which is already underway through a day one executive order.

In 2015, the Obama EPA promulgated the Clean Power Plan as a centerpiece of its efforts to fight climate change. For the first time, EPA wielded its authority to address carbon emissions from coal- and gas-fired power plants, the largest emitting sector in the U.S at the time. The Supreme Court stayed the CPP pending appeal. Yet before any court could rule on the CPP’s merits, the Trump administration took the reigns of power and froze the litigation.

Trump rescinded the CPP, and replaced it with the much narrower Affordable Clean Energy Rule. The ACE rule was itself challenged, and the D.C. Circuit heard an astounding nine hours of argument last September.

On the day before Biden took the oath of office, the D.C. Circuit, in a 147-page opinion by Judges Patricia Millet and Cornelia Pillard, struck down ACE and embraced the legal theories underlying the CPP. But practitioners realize this is not the end of the story. A dissenting opinion was authored by a newcomer to the D.C. Circuit, Judge Justin Walker, whose conservative views may be aligned with a majority of the justices on the Supreme Court. The case was remanded to EPA, which will need to decide next steps in both litigation and the regulatory process.

Meanwhile, Biden wasted no time in coming out of the gates. Moments after inauguration, Biden issued an E.O. titled Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. The E.O. articulates key principles, including a return to science-based decisionmaking; holding polluters accountable — particularly where minority and low-income communities suffer disproportionate harm; mitigating greenhouse gas emissions; and bolstering resilience to climate change. The E.O. ordered all federal agencies to conduct an immediate, comprehensive review of any regulations and similar actions taken during the past four years. If inconsistent with these principles, the agencies must consider whether to suspend, revise, or rescind them.

Certain high profile regulations are specifically called out. For example, the E.O. directs EPA to decide by September 2021 whether to reconsider the Trump administration’s changes to the New Source Performance Standards governing air emissions from the oil and gas sector. On the same timeframe, EPA must consider proposing new regulations to control methane and volatile organic compounds emissions from existing oil and gas operations, including from the tranmission and storage segments of the industry. Implicit in these instructions is, of course, a directive for EPA to restore its legal authority to regulate methane emissions from oil and gas activities in the first place.

Also called out for rapid-fire review are the Trump administration’s light-duty vehicle fuel efficiency and greenhouse gas emissions standards; energy conservation standards for appliances; and the Mercury and Air Toxics Rule. In addition, recent rules changing the way EPA considers the benefits and costs of air regulations, and placing certain limitations on EPA’s consideration of scientific data, must be reconsidered “as soon as possible,” the E.O. says.

The E.O. gives the secretary of the interior 60 days to conduct a review of whether the boundaries of national monuments diminished by Trump may be restored. It places a temporary moratorium on all oil and gas leasing activities in the Arctic National Wildlife Refuge. And, consistent with a campaign promise, it revokes the presidential permit for the Keystone XL pipeline.

Finally, the E.O. dismantled several climate-related actions that were adopted by Trump through executive order or guidance. For example, the E.O. rescinds the Council of Environmental Quality’s proposed guidance on assessing GHG emisions in NEPA reviews, and it created a new interagency working group to revitalize the social cost of carbon. The group must publish an interim and then a final metric, so that the economic costs of climate change may be considered in rulemaking, with particular attention to environmental justice and intergenerational equity.

The questions raised by the Biden directives are too numerous to fit this page. What will the new administration decide to keep? What will it revise? What will it simply discard? And what will it create anew? A lengthy and detailed scorecard will be needed just to track developments.

Biden Off to the Races — With a Boost From the D.C. Circuit.

The Divorce of Environmental Law from Science and the Real World
Craig M. Pease - Vermont Law School Environmental Law Center
Vermont Law School Environmental Law Center
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Craig M. Pease

The Clean Air Act and the Clean Water Act are arguably the two most important federal environmental statutes, with the Endangered Species Act perhaps placing third. Since those statutes were enacted in the 1970s, there has been real progress in air, water, and biodiversity; for example, improved air quality in the Los Angeles basin, a notable scarcity of burning rivers, and the comeback of the bald eagle and peregrine falcon.

Yet with each passing decade, environmental law has become increasingly ineffective in addressing our immense remaining environmental problems. I would go so far as to provocatively assert that progress has now entirely halted on our central environmental problems: Atmospheric carbon dioxide continues to increase; runoff from agriculture continues to degrade fresh water and create oceanic dead zones; temperate zone insect biomass has been reduced by a stunning 75 percent over the last several decades, while terrestrial vertebrate biomass is now about 97 percent humans and their domesticated animals.

The sweep and scope of these environmental problems stands in sharp contrast to trends in environmental litigation. In the decades since the CAA, CWA, and ESA were enacted, environmental litigation has become increasingly hyper-technical, even picayune (standing, administrative process, classification of pollution sources, statutory definitions, deadlines). Even worse, that litigation has become ever more specific (particular to a site, species, road, or pollution source, or interpretation of specific statutory language) rather than enunciating general legal principles or protecting the environment broadly. Moreover, these various problems with environmental litigation interact with one another, causing attorneys to face a legal landscape that is frustratingly complex.

All this has caused environmental law to become increasingly divorced from science. Yet that disassociation is not the fundamental problem. Critically, science is but a messenger, the bridge connecting environmental litigation to the environmental problems of the real world that are not getting solved.

I cannot here review nearly half a century of litigation. Rather, I ask the reader to indulge me, and ponder recently decided, pending, or likely future litigation under these environmental statutes. I acknowledge that my readers will have a diversity of perspectives, but note that diversity only buttresses my point that environmental litigation is more and more about less and less. My cartoon summary:

Climate change: What legal constraints does the Trump administration face in attempting to replace the Obama Clean Power Plan? Observe also that the original CPP litigation did not entail challenges to the reality of climate change, nor were otherwise at their core scientific disputes.

Waters of the United States. The Supreme Court itself, in Rapanos, created this legal rats’ nest, with a fractured and incomprehensible opinion that increased legal uncertainty and complexity. Enough said.

Markle Interests v. USFWS. Compare how ESA Supreme Court cases have evolved from TVA v. Hill to this case. Here there are only narrow legal issues (such as statutory definition of “critical habitat”). The litigation concerns a dispute over a mere several thousand acres of dusky frog habitat, with no material broader implications.

Keeping science out of environmental law is not entirely a bad thing. I have long advocated that environmental attorneys preferentially pursue procedural (typically legal) claims rather than substantive claims (often having a science component). Procedural claims typically have a more favorable de novo standard of review, while substantive claims challenging an agency action typically have a more stringent arbitrary and capricious standard of review. Moreover, procedural claims are less costly to litigate, since they do not involve the expense of retaining and preparing an expert. And litigating a procedural claim allows an attorney to explain law rather than science to a judge, and for a judge to make a decision within his or her legal expertise.

Procedural claims are often the most economical path to a substantive result. For example, much dioxin litigation over the last several decades was procedural (missed deadlines and disputes over classification of pollution sources), yet most major sources of dioxin are now controlled.

Yet there is also such a thing as too much law, and not enough science. Environmental litigation now goes off in ever more complex, procedural, nuanced, and tangled legal jungles, wherein the litigation becomes an end to itself, rather than a means to solve real environmental problems.

And so it came to pass that the temperature continued to increase, water quality continued to be degraded, and biodiversity continued to be decimated.

The divorce of environmental law from science and the real world.

Delivering Climate Change Progress
Dan Esty - Yale University
Yale University
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Delivering Climate Change Progress

With all the challenges that humanity faces, there are huge opportunities as well.

Which is not to say that the environmental news isn’t bleak. When the world community met in Bonn last November to advance the Paris Agreement on climate change, Washington signaled it would be leaving the 2015 accord and abandoning the key domestic program for achieving America’s commitment to reduce its greenhouse gas emissions by 26-28 percent over the next dozen years, the Clean Power Plan to cut power plant emissions. But despite the new administration’s actions, the momentum behind America’s Paris pledge remains strong — and emissions reductions in general continue across the world, as 190-plus other nations move to implement the agreement.

On the downside, we face profound challenges not only at the national level with the new administration, where the pullback from environmental regulation has been well documented, but also at the state level, where budget crises are taking a toll. For example, the Connecticut Department of Energy and Environmental Protection (which I led from 2011 to 2014) faces dramatic budget cuts and staff reductions. And the CT Green Bank, which I helped to launch — bringing Republicans and Democrats together to use limited clean energy resources to leverage private capital — faces budget challenges too.

These pressures require us to pursue our environmental agenda in new and better ways. For instance, one of the most profound points of learning from ecological science over the last fifty years is that we must take a systems approach to environmental problems. Air, water, waste, and land use are all connected. Issues at the global, national, state, and local levels are all connected. Thus, we need to use the current crisis to shape a 21st century policy strategy that is more integrated and better captures the opportunities from systems thinking. 

The logic of connectedness extends to the political domain. Yet, our elected officials appear more deeply divided than ever. Clean energy can move on a bipartisan basis, but it takes hard work, it takes compromise, and it takes doing things in better ways, not simply reiterating the same old arguments that have kept people apart for so very long.

While a systems approach can and should be deployed across the environmental agenda, climate change looms as the central — even existential — challenge of our times, demanding worldwide collaboration and, at the same time, transformative change toward a clean energy future at the local, state, and national levels. As a young EPA official, I helped to negotiate the 1992 Framework Convention on Climate Change. Maurice Strong, the Canadian diplomat and businessman who chaired the 1992 Rio Earth Summit at which the convention was launched, took me aside and said, “Dan, you’ve got to remember, that when we gather all these presidents and prime ministers, only two outcomes are possible: Success and real success.” Sadly, we have not delivered real success over the ensuing 25 years. Emissions have continued to rise, and we have not transformed the energy foundation for our planet.

The 1992 climate treaty was top-down, reflecting the prevailing wisdom that national governments were the way to deliver transformative change and broad-based outcomes. In contrast, the Paris Agreement shifts toward bottom-up strategies that recognize the reality that presidents and prime ministers don’t actually control most of the decisions that determine the carbon footprints of their societies. Those decisions — about urban development, transportation, housing, and economic activity — fall more directly to mayors, governors, CEOs, university presidents, and the leaders of community organizations. The Paris accord, with its more decentralized structure, reflects the fact that they are the ones who make the actual decisions that will determine whether our society decarbonizes.

The importance of this shift in focus cannot be over-stated. Since the 1648 Treaty of Westphalia, national governments have been in charge. But what was the right structure to solve the religious wars of Europe in the 17th century might not be right for solving 21st century environmental problems. We are not one nation with one leader in one place. We have a much richer tapestry of political and societal leadership. California Governor Jerry Brown, for instance, leads a sovereign state with great potential to deliver greenhouse gas emissions reductions. Likewise dozens of other governors, mayors, and corporate leaders have committed their states, cities, and companies to climate action — thus keeping momentum behind the Paris Agreement.

I argue that this new broader leadership framework should be formally acknowledged and celebrated. In this regard, I would like to see the Paris Agreement opened to signature by mayors, governors, CEOs, and others who are steering society toward a transformed energy future. This same logic would apply, I might add, to all future global agreements where national governments alone cannot deliver successful outcomes.

More generally the game plan of the 1992 framework convention, reflecting 20th century thinking, centered on targets and timetables for emissions reductions. I call this “the lawyer’s mistake,” since those with legal training often think that if you pass a law, write regulations, sign a treaty, or issue rules, people will follow them. No one in business would have made that mistake. They would regard the treaty as a mission statement or maybe a business plan, but lacking a serious implementation strategy. The Paris Agreement gets beyond this error, shifting people’s focus from mere goals to incentives to deliver solutions — particularly new strategies for financing investments in energy efficiency and renewable power infrastructure. And it moves away from a command-and-control model that demands conformity to a single path forward to an approach that asks each country to say what it can do and how it will do it.

To that end, there is no better incentive to reduce emissions and expand the deployment of wind, solar, and other renewable power sources than to make people pay for the harm they cause — thus steering them toward clean energy options. In this spirit, many countries (and companies — and even universities) have begun to put carbon charges in place. Using price signals stands in contrast with the 20th century strategy of regulatory mandates, which require the government to figure out all the answers — and then tell business what to do. But in the 21st century we face a broad-based problem where everyone’s behavior has to change, not just large businesses but the myriad of small businesses and individuals too.

Another contrast with the 20th century is that we now live in the Information Age and have a variety of Big Data and communications tools that did not exist in the past. We can track harms with much greater precision and simultaneously gauge whether our policy interventions are working. Thus, we have the capacity today to measure performance at the national, state, local, and company scales — and to identify leaders, laggards, and best practices. The Paris Agreement reflects this new data opportunity and calls for a “stocktake”every five years to see if the actions being undertaken are delivering at the pace and scale required to mitigate climate change. 

With the Paris Agreement, I believe we have turned a corner — and the move toward a decarbonized future is now inevitable. But let me tell you the bad news. The pace of change can be affected by political leadership. President Trump’s push to withdraw the Clean Power Plan will have an impact. Likewise, the administration’s budget cuts and other regulatory changes (including the plan to pull back from using a $40-per-ton “social cost of carbon” in regulatory analyses) will slow the shift toward a clean energy future. 

But it will not stop it. Coal is not coming back. Market forces ensure that fact regardless of regulatory changes. And innovation in support of a transformed energy future continues around the world — with or without the United States. While I disagree with much of what the administration is doing, it must be said that the Clean Air Act isn’t the best vehicle for addressing climate change. Simply put, it doesn’t provide a ready way to put a price on emissions. In this regard, I would prefer a carbon charge that begins at $5 per ton of carbon dioxide or equivalent and escalates by $5 every year until the carbon charge reaches $100 a ton at year 20. We know that carbon pricing works. In the Northeast, we already pay a $5-per-ton charge through the Regional Greenhouse Gas Initiative — and top-tier clean energy results. 

The Clean Power Plan, by contrast, emerged under the old 20th century regulatory model because there was no other possibility available. Congress had signaled that it would not pass comprehensive climate change legislation. So, we ended up with a primitive tool. Within the constraints of the Clean Air Act, the CPP offers considerable flexibility. Each state has been given a target for reducing emissions. Not each power plant, each state. And which states got the hardest assignments? Those who had already done the most. As the commissioner of Connecticut’s Department of Energy and Environmental Protection at the time, I was furious about this structure that assigned the states that had dragged their feet on climate change more lax targets. I then realized the separate standards were politically shrewd. When the challengers from the foot-dragging states go to court, the judges are going to look at them and say, “Really? When other states are already 90 percent decarbonized, why can’t you take the first easy steps?”

While some might see the current political challenges as dire, I think action on climate change will continue apace — even in the United States. For one thing, President Trump is finding out that he cannot erase the CPP with the stroke of a pen. Our law says that once a regulation has been finalized, you have to take it down by the same notice-and-comment process. American administrative law requires that an agency act furthermore in a manner that is neither arbitrary nor capricious. In re-examining the Clean Power Plan, EPA must make a decision based on science and facts. There have to be hearings, citations of relevant studies, and careful review of the administrative record before a judgment can be made that a different policy would better achieve the statutory goals of avoiding emissions that endanger public health and welfare. In addition, Congress and the courts have roles to play. As the administration has already seen, these co-equal branches will not hesitate to act.

Just as governors and mayors are stepping up to the issue of climate change, so too are corporate leaders. In the wake of Trump’s pullback on climate change, the business community has not, by and large, walked back from its commitments to reduce emissions. To the contrary, nearly 2,000 companies have joined the We Are Still In climate coalition. Citizens will also be critical in delivering a sustainable future. People are putting their environmental values into action as consumers — signaling their interest in sustainability by buying green products, such as electric vehicles. Likewise, an ever-wider swath of investors are saying, “I want the companies in my portfolio to align with my values” and therefore are asking for more information on the environmental, social, and governance performance of companies, including details on corporate climate change action plans. I see this trend as continuing, with more and more of us factoring carbon footprints into all kinds of decisions, including how we do our business, how we lead our lives, how we raise our children, and how we engage with our communities.

We have entered an era of sustainability. Not everyone yet recognizes it, but a growing number of people and institutions and businesses have come to accept that we face a sustainability imperative. In this regard, we have to gauge progress not just in terms of economic results but also environmental and social outcomes. Multiple goals that entail inevitable tradeoffs makes policymaking more difficult. With this broader perspective in mind, we can achieve real success on climate change and other challenges, but it will require transformation of our environmental policies — and our politics. TEF

TESTIMONY ❧ No baseball team picks players in 2018 the way it did in 1978. Nor does any business do marketing today the same way it did in decades past. Environmental protection, however, remains stuck in a top-down 20th century regulatory model. But new tools and strategies, including carbon pricing, could unleash a sustainability revolution that drives innovation — and delivers a transformed energy future.

Changing With a Changing Climate
Scott Fulton - Environmental Law Institute
Environmental Law Institute
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Scott Fulton

The question of whether climate change is real is making the rounds again. It seems to me that this query has become unfortunate shorthand for three subordinate and fairly distinct questions: (1) Is the climate changing? (2) Are humans driving such change? and (3) If so, what should be done to mitigate the human driver?

While these questions are independently important, the dynamics that surround them are somewhat interactive, particularly with respect to questions 2 and 3. Worries about the response to question 3 can put pressure on the certainty desired for question 2. In other words, the more disruptive that one sees the proposed system for mitigating GHG emissions, the greater the tendency to scrutinize the predicate or justification for that disruption.

We are a big tent at ELI and no doubt have folks with different views on this subject, but personal views notwithstanding, it seems plain from recent developments — from the decision to step back from the Paris Agreement, to the decision to take down the Clean Power Plan — that we have not yet arrived at closure on the dynamic between questions 2 and 3 (at least at the national level). Rightly or wrongly, that debate continues.

Another concern emerges from this. The debate about questions 2 and 3 seems to be serving to gloss over and subordinate to the point of virtual invisibility, question 1: Is the climate changing? This question is fundamentally important in its own right. My suggestion is that there is basis for national consensus on this point in the here and now, and that, even as the other debate continues, we should get to that consensus as soon as possible, since we otherwise accrue risk with each passing decision that fails to account for the change that is already upon us.

There is a new report out that bears a read: “Climate Science: Special Report (2017).” As the product of an interagency process that came out on the Trump administration’s watch, it has attracted a good deal of attention. The report catalogs climate changes over the last 100 years (a nearly 2 degree Fahrenheit increase in temperature), with particular focus on more recent years (the last three of which have been the warmest on record). It describes the consequences of these changes, many of which the authors conclude we are already experiencing.

These are not new revelations, but this report doubles down on some baseline conclusions in a way that should cause us to take note, pointing to well-documented changes in surface, atmospheric, and oceanic temperatures; melting glaciers; diminishing snow cover; shrinking sea ice; rising sea levels; ocean acidification; and increasing atmospheric water vapor. The report associates these changes with coastal zone inundation, changing disease vectors, heavy rainfall, severe storm events, heatwaves, large forest fires, episodic freshwater scarcity, and a variety of other maladies.

The report’s forward look is, no surprise, more worrisome still, as these phenomena are all expected to intensify over the decades ahead. And, while there will always be difficulty attributing particular weather disasters to longer-term climate trends, many see 2017’s monster hurricanes, drought, and forest fires as harbingers or illustrations of what is ahead.

By training, most of us in the ELI community are not climate scientists. But the lawyer’s orientation strikes me as useful here. In the law, except when we are talking about the proof needed to take someone’s liberty from them, we draw conclusions based on the preponderance of the evidence. If the evidence demonstrates that a proposition is more likely than not true, then we take the thing as true in order to resolve the question at issue. If the clear weight of scientific opinion and evidence lines up on one side of a dispute, and if we find that evidence credible, then the weight of evidence determines what is taken as true.

Say what you will about questions 2 and 3, but, with respect to the question of whether climate is changing, we are lurching to a place where awareness of a changing climate is no longer the province of the science community but rather the product of objective, collective experience. Leadership is needed to ensure societal acceptance of this part of the climate reality, and alignment of our decisionmaking processes with it, so that at the very least we are making today’s decisions about where and how to construct our infrastructure, homes, and businesses, how to invest society’s resources, and how to aim our policies and programs, so that our choices are durable, resilient, and geared to the future that we expect and the present that we know. Otherwise, we put unnecessarily at risk the integrity of the decisionmaking processes that are at the heart of effective environmental governance.

Scott Fulton on changing with a changing climate.