>In September 2017, with Manhattan’s skyscrapers rising behind him, New York City Mayor Bill de Blasio announced that he wanted to cap the amount of fossil fuels that large buildings in the city can use each year. He was two months away from easily being re-elected, and he may already have been thinking ahead to the run he would make in 2019 to be the Democratic presidential nominee against President Trump. At the time of de Blasio’s announcement, during Trump’s first year as president, regulating fossil fuel use in large buildings was not only a means of decarbonizing New York City’s largest source of GHGs, but also a way of signaling resistance to Trump and his skepticism about climate change.

>Under de Blasio’s proposal, large buildings—including those owned by the Trump family—that exceeded their caps would be fined, and the fines might be substantial, up to millions of dollars per year. Although de Blasio did not release draft legislation when he made his announcement, over 18 months later the city council overwhelmingly passed Local Law 97, capping greenhouse gas emissions from large buildings along the lines de Blasio had first sketched. The emissions limits take effect starting in 2024. With de Blasio no longer in office, the implementation of LL97 has fallen to his successor, Eric Adams, a more real-estate friendly mayor who has expressed concerns about fining building owners for not complying with the law.

>In recent months my colleague Danielle Spiegel-Feld and I have been researching the history of LL97 and other 21st century environmental laws and policies in New York City—and pondering their fate. Although there was a lot of talk about cities and states acting to limit climate change to counter the Trump administration as it was rolling back environmental regulations, we are somewhat unusual among teachers at law schools in devoting significant scholarly attention to local environmental law. As has been the case since the 1970s, environmental law in the United States is reflexively assumed to be federal law, or law in a few progressive states, such as California. Municipal laws like LL97 tend to fall under the radar. Perhaps many observers instinctively dismiss the potential for local and state governments to do much to protect the environment in light of their celebrated failures in the 20th century on air and water pollution. After all, these failures are part of what led to the passage of robust federal environmental statutes in the 1970s.

>Yet within New York City’s environmental policy community, LL97 is widely regarded as a signature climate law, and a model for other jurisdictions. Pete Sikora, an advocate who helped get the law through the city council, describes it as “the city’s world-leading climate and jobs law” because he hopes that the mandates will create employment in upgrading buildings to reduce their use of fossil fuels. Costa Constantinides, who oversaw the drafting of the bill as chair of the city council’s environmental protection committee, has publicly defended the law since leaving the council. Mark Chambers, who headed the Mayor’s Office of Sustainability while LL97 was drafted, is now senior director for building emissions and community resilience in the Biden administration’s Council on Environmental Quality. There he has helped to form a National Building Performance Standard Coalition to spur the adoption of similar laws in cities and states throughout the country.

>Non-New Yorkers might be tempted to dismiss the pride of some of these people as over-claiming, another example of the city’s penchant for bluster. Still, since New York City passed LL97, a small number of other cities, including Boston, Denver, and St. Louis, and states such as Colorado and Washington have passed similar laws for their building sectors. To its credit, Washington, D.C., actually passed a law requiring improvements in building energy efficiency before New York City.

>LL97 has also been noticed by people engaged with cities outside the United States on climate change. David Miller, the managing director of the C40 Center for City Climate Policy and Economy, and a former mayor of Toronto, wrote about LL97 as an example of a bold local solution to reducing greenhouse gas emissions in his 2020 book Solved: How the World’s Great Cities Are Fixing the Climate Crisis.

>As the growing number of advocates for decarbonizing buildings emphasize, removing fossil fuels from buildings will be an important component of societal decarbonization. Buildings account for over two-thirds of greenhouse gas emissions in many large U.S. cities; nationally, residential and commercial buildings account for almost 31 percent of GHGs. (These statistics incorporate emissions from fossil fuels burned on site in buildings, for example from burning natural gas for heating, and emissions from generating the electricity used in buildings, for example in coal- or natural gas-powered plants.) Removing fossil fuels from buildings also stands to improve public health: evidence is accumulating that burning them in buildings, for example by using gas stoves, contributes to asthma and may cause cancer.

>Nonetheless, the potential benefits of building performance laws such as LL97 have yet to be realized. No building in New York City will be subject to fines until 2024. Mayor Adams is almost certain to be under increasing pressure from real-estate owners in the coming year. A small number of building owners have even launched a Hail Mary legal challenge to the law on preemption and other grounds.

>Ironically, whether LL97 and other similar laws become a key technique for decarbonizing buildings may depend in part on whether the tax credits, rebates, and grant programs in the federal Inflation Reduction passed in 2022 are defined so as to shift onto federal taxpayers some of the costs that building owners will face to comply with the local and state laws. If building owners are able to use some of this federal largesse to reduce the costs of complying with the subnational laws, the combination of mandatory local and state building laws and federal tax credits and subsidies for satisfying them may mollify real estate opposition. More significantly, it also may establish a new form of cooperative environmental federalism—combining local and state regulation with federal subsidies paid directly to individuals as well as state and local governments—that could be scaled to promote decarbonization in other economic sectors where there are obstacles to aggressive federal regulation of greenhouse gas emissions.

>In considering the potential for performance standards to become a tool for forcing fossil fuels out of buildings, it is useful to start with a brief description. LL97 works as follows: Large buildings in the city (25,000 square feet and over) are grouped into different categories based on their types of use (multifamily housing, office, hospital, etc.). Each of these types is permitted to emit up to a specified amount of CO2 equivalent per square foot (for example, under draft regulations released by the city in October, laboratories are allowed to emit more per square foot than bowling alleys). A building’s limit, that is the volume of greenhouse gas emissions that it can emit each year, is based on multiplying the square footage of the building by the allowable amount of CO2e for the structure’s use type. Owners that exceed their emissions limits are liable to pay up to $268 per ton of excess emissions, a penalty that was designed to incentivize upgrades. To calculate a building’s annual emissions to determine if it is under its limit, owners must multiply the total amount of energy purchased for the building by the carbon intensity coefficient that the city assigns for the relevant type of energy (i.e., electricity procured from the grid, natural gas, fuel oil, etc.). Buildings’ emissions are first limited in 2024 and more stringent limits take effect starting in 2030. The limits gradually ratchet down until 2050, by which point, buildings are expected to be carbon neutral.

>Like many environmental laws, LL97 also contains some flexibility mechanisms. To protect low-income tenants from rent hikes, buildings with a specified share of rent-regulated apartments can opt to implement a list of measures to improve energy efficiency rather than comply with greenhouse gas emission limits. This is an example of a local government prioritizing housing affordability (in a city with a perennial affordability crisis) over limiting global warming. To fully decarbonize its building stock, New York City will need to find a way of decarbonizing the many rent-regulated and publicly owned apartment buildings in the city. Until it does, the environmental benefits of building decarbonization—including reducing on-site emissions that cause asthma, which is more prevalent in communities of color and low-income neighborhoods in the city—will not be equitably shared.

>Another flexibility mechanism that environmental advocates are currently seeking to limit allows building owners to buy Renewable Energy Credits for solar and wind energy and other carbon-free electricity delivered to New York City. When the law was passed, its sponsors thought that allowing buildings to comply by buying RECs might encourage large players in New York City’s real estate industry to support introducing more renewable energy into the city. The bill’s sponsors did not anticipate that the ability to use RECs to comply would be a major loophole. But after LL97 was passed, New York state adopted aggressive targets for fully decarbonizing the state’s electricity supplies by 2040 and has approved massive projects to bring renewable energy to the metropolitan area. As a result, there will be an abundance of RECs available for building owners to buy in the future. Whether the city takes action to limit their use will be an indication of how committed it is to decarbonizing buildings.

>There is a small cottage industry of literature going back to the 2000s examining why cities and states have sought to reduce greenhouse gas emissions. The literature generally starts from the premise that these local actions are puzzling, because cities would appear to be imposing costs on local actors for the benefit of the outside world. Various economic explanations might be offered for these local actions: maybe the cities are merely posturing to enhance their reputations and not planning to actually enforce costly requirements on local actors to decarbonize; or perhaps cities are attracted to the side benefits of reducing emissions, such as lower energy costs for residents, or the new jobs and industries that decarbonization might generate. These economic considerations contributed to the passage of LL97, but they don’t fully explain it. Climate activists fighting for the good of the planet, union officials, social justice-oriented groups representing low-income tenants, and a few key do-gooder politicians—all played a critical role in getting the law across the finish line.

>Enacting legal obligations on buildings to reduce greenhouse gas emissions required overcoming the political power of the real estate industry, which had thwarted Michael Bloomberg from mandating that the city’s large buildings improve energy efficiency when he was mayor. Overcoming real estate’s opposition this time around took a combination of committed insiders within the city council and mayoral administration, and interest groups that pushed through mandates. Their task was made easier in the late 2010s by having a climate skeptic president born in New York to a real estate developer who was wildly unpopular in his home city. Few people could better rally progressive Democrats in New York City behind a climate bill that took aim at real estate than President Trump.

>Those favoring building performance mandates had some other helpful facts on their side as well. By 2017, it was apparent to anyone seriously committed to addressing climate change in New York City that mandating building upgrades would be necessary to decarbonize the sector that accounted for an overwhelming share of the city’s GHGs. Bloomberg-era laws like a benchmarking law that in theory might have spurred buildings to reduce their emissions by showing them how inefficient they were compared to other buildings had not incentivized the aggressive decarbonization that it was clear would be needed to address the climate crisis.

>Among the insiders who recognized the urgency of mandating upgrades was Constantinides, the chair of the city council’s environmental protection committee who oversaw the drafting of LL97. Fiercely committed to passing environmental laws in the city—he has a son with asthma—he had worked in 2009 for the chair of the environmental protection committee, when Bloomberg dropped the idea of requiring building upgrades due to real estate opposition. When Mayor de Blasio announced his support for building mandates in 2017, he had few details of what these mandates would look like. It was Constantinides who supplied the law.

>But even someone as committed as Constantinides probably couldn’t have passed a law imposing potentially costly obligations on a powerful economic sector like the real estate industry in New York City without the support of outsiders. In the fights over LL97, a constellation of local interest groups helped provide that needed support, campaigning for the bill, and signaling to New York City’s overwhelmingly Democratic city council members that they should pass it. Among the most important was the Climate Works for All Coalition. Organized in 2014 by ALIGN, an alliance of community and labor groups, the coalition included District Council 37, the largest public-sector union in the city; the union-backed Working Families Party, which strives to move Democrats to the left through involvement in party primaries; and New York Communities for Change, a community group that works on economic and social justice as well as climate change. NYCC’s staff includes Pete Sikora, whose climate work seems to be premised on the theory that in a blue city in a blue state such as New York City, a multiracial coalition of “activists from communities of color” and “white progressive climate activists” can persuade the city’s government to adopt climate policy by targeting key municipal decisionmakers. Sikora recognizes that activists like himself can exert such power because local Democratic politicians in early 21st century New York City pay attention to groups that can credibly claim to influence the outcomes in the low-turnout Democratic primaries that largely determine who wins political office in the city. For this coalition, building mandates promised to reduce greenhouse gas emissions and create jobs for low-income New Yorkers. Meaningfully, mandates also represented a tangible way of opposing Trump—ALIGN published a report cataloging the energy inefficiency of Trump buildings using data disclosed under the Bloomberg-era benchmarking law. As progressive Democrats such as Alexandra Ocasio-Cortez won primaries and elections in New York City in the second half of 2018, centrist Democrats moved to the left and the building mandate bill seemed more politically palatable.

>What does this history suggest about the potential for other jurisdictions to pass building performance standards? One lesson is that it is possible to pass a law that, on paper at least, imposes the substantial cost of decarbonizing buildings on historically politically powerful real estate owners. Indeed, the Real Estate Board of New York, the main group representing owners in the city, did not outright oppose the law at the main city council committee hearing on it; the board emphasized its support for the bill’s goals and then listed serious concerns with its design. But 2019 was also a special time, with Trump in office and progressive Democrats in ascendance. To mandate that buildings decarbonize in more places across the country it may be necessary to find ways of spreading the cost beyond building owners of removing fossil fuels from people’s homes and workplaces.

>A classic way of overcoming opposition to a new law is for the government to offer subsidies to those who are opposed to it. Cities have some resources that they can devote to easing the burden on building owners of transitioning away from fossil fuels, but even a large city such as New York is not in a position to pay for switching out oil and gas boilers and gas stoves in the thousands of buildings in its borders. The Inflation Reduction Act may help lower the costs to owners of making some of these changes, and perhaps make it politically feasible for jurisdictions like New York City that already have laws to decarbonize to enforce them, and for other local and state governments to adopt such laws.

>Many of the tax credit provisions in the IRA are intended to spur the expansion of renewable energy such as solar and wind so that renewables can displace fossil fuels. While building owners will not directly benefit from these tax credits for electricity generation, they could benefit indirectly. Insofar as these credits help to decarbonize electricity buildings buy from the electric grid, this will reduce their emissions without owners having to invest in other measures. Because commercial buildings like large office buildings in New York City already get a lot of their energy from the electric grid, the decarbonization of grid-supplied electricity will particularly help commercial building owners to meet their LL97 emission limits.

>The owners of large residential buildings in the city will also benefit from greening grid-supplied electricity. But they tend to burn more fossil fuels on site in their buildings, so they may face higher costs to decarbonize because they have to remove gas and oil powered boilers and furnaces and gas stoves. The IRA could help these building owners too.

>To get a feel for how useful the IRA might be to the owners of residential buildings, I listened in October to a webinar on the IRA organized by Bright Power, a company that helps large building owners in New York City manage their energy use, and that has clients working to comply with LL97’s emission limits. Bright Power identifies government incentives for its clients to help them defray the costs of the projects that Bright Power manages for them, and so it has a strong incentive to understand under what circumstances the IRA could financially help building owners in the city. The webinar laid out the multitude of tax credits and government grant and rebate programs in the IRA. It also gave some concrete examples of the micro-level determinations that the Department of Treasury, Internal Revenue Service, other federal agencies, and state policymakers will need to make, and how important their decisions will be for the extent to which the IRA will help reduce the costs of taking out fossil fuels from buildings in New York City. As Amanda Clevinger, policy and programs manager at Bright Power, emailed me afterwards, “Although several states already offered incentives for building decarbonization prior to the passage of the IRA, the federal subsidies have the potential to offer consistency, scale, and accessibility unmatched by existing programs. For instance, New York City’s program for heat pumps ran out of money three years ahead of schedule, and most states don’t have any incentives available for electrical upgrades” which are needed to put in heat pumps. “The IRA could fill many gaps for buildings across the country,” Clevinger explained. How the uncertainties about the IRA subsidies are resolved will determine whom the IRA helps and how much, and the extent to which it helps to make politically palatable laws such as LL97 that mandate building decarbonization.

>Widely touted as a breakthrough because it is the first federal legislation to aggressively incentivize decarbonization, the IRA also may be historically significant because it could be seen as setting up a new model of cooperative federalism in environmental law. The 1970s-era environmental laws often require the federal government to set standards that states may assume responsibility for implementing instead of the federal government. Early in the history of these laws, the federal government provided considerable funding to help defray the costs of building sewage treatment plants and the like that were necessary to meet some of the federal standards.

>The IRA also proposes to transfer large sums of money to states and local governments and tribes for environmental purposes, some of which they could distribute to individuals as rebates. What is novel about the IRA is that much of the federal spending that it appropriates may come in the form of tax credits that flow directly to individuals and businesses without any role for states and local governments. These tax credits could help to decarbonize sectors whose emissions the federal government has had difficulty regulating, most notably the electric power sector, but also potentially buildings. Against the backdrop of these federal subsidies, local and state governments will hopefully be better positioned to set aggressive targets to decarbonize large buildings because owners and occupants will have access to federal subsidies to defray the costs of the transition, assuming that the promise of the IRA is fulfilled through its implementation. If successful, the tacit combination of state and local standards and federal subsidies for individuals to meet those standards would be a novel way of achieving environmental improvements in the United States. TEF

During the Biden presidency, Congress has appropriated billions of dollars for EPA to award as grants supporting clean water, environmental justice, climate action, and other priorities. While many are elated at the funding, some observers suggest the agency will be highly challenged to spend it all effectively.

Last November, EPA released a “Year One Anniversary Report” describing its activities so far under the 2021 Bipartisan Infrastructure Law, which provides the agency’s largest-ever appropriation: $60B over five years to support environmental projects. The BIL expanded EPA’s traditional role from conducting scientific research and writing regulations to now serving as “a large-scale funder of critical infrastructure,” the agency says.

In its first year, EPA awarded only $6.4B in grants of the $14.1B that Congress appropriated for fiscal year 2022. But states, tribes, or territories can receive distributions from the FY22 appropriation “on a rolling basis” until the end of FY23 in line with their Clean Water State Revolving Fund timeline, an agency spokesperson says. Since November an additional $7.1B has been distributed.

The BIL appropriation, while far-reaching in itself, was followed by the 2022 Inflation Reduction Act, which created a $27B Greenhouse Gas Reduction Fund as a new Clear Air Act section. Until the end of FY24, EPA can award GHGRF grants, including $7B for zero-emission technologies in disadvantaged communities, and the rest for “green banks” that will invest in clean technologies for reducing GHGs and other pollution, especially (once again) in “low-income and disadvantaged communities.” With the 2024 deadline, EPA will have about a year “to dole out $27B,” notes one observer.

After IRA passage, the massive new funding led EPA Administrator Michael Regan to write, “This is a moment unlike any other in our history.” Also, after years of shrinking budgets, the agency’s 2023 appropriations included $575 million in new funding. The EPA spokesperson adds that the agency “is committed to distributing the funds equitably, responsibly, and impactfully,” working closely with regions, states, tribes, and territories. EPA’s new technical assistance programs will identify infrastructure needs and help applicants navigate federal funding processes to give everyone “their fair share” and unlock the IRA’s possibilities.

According to the Natural Resources Defense Council—which responded to EPA’s request for public comments on how it should design and implement the GHGRF—the $20B reserved for green banks and other “nonprofit lenders” could produce up to 80,000 investments. While recognizing the $27B total as a “critical down payment” on an equitable, low-carbon future, NRDC notes that the agency faces “a clear challenge” in designing a program that can efficiently and equitably deploy the money. A key decision will be to accurately define “low-income and disadvantaged communities” whose benefit the law emphasizes, NRDC and others note. The definition will shape how grant recipients spend funds to achieve the law’s goals.

A second core question concerns which technologies to direct funds toward. NRDC suggests that the law’s goals would be best met by funding “distributed” technologies to cut carbon, such as decarbonizing buildings, moving to electric vehicles, and the like. Another commenter, the Center for Biological Diversity, urges EPA to devote “a large portion” of its GHG grants to support EV charging stations to enable widespread adoption.

The American Water Works Association—representing more than 4,300 drinking water utilities—points to numerous GHG-reduction opportunities at water facilities and makes a case that its members should be eligible to receive GHGRF funds. Likewise, the American Chemistry Council, representing 190 chemical manufacturing companies located in communities nationwide, calls on EPA to allow fund leveraging for public-private partnerships involving communities, businesses, manufacturers, and industrial facilities.

The nonprofit Coalition for Green Capital, a green-bank leader, notes that its members, along with private-sector investors, have funded more than $9B in clean energy projects. Citing a letter from congressional GHGRF authors calling for that fund to capitalize a single “national climate bank,” the coalition comments to EPA that it intends to seek GHGRF funds to capitalize a national green bank.

To achieve President Biden’s goal of reducing GHG emissions 50-52 percent by 2030, the coalition writes, in the coming decade “at least $1 trillion” must be invested, with disadvantaged communities needing at least one fifth of that amount.

Clearly, EPA has an opportunity to turbocharge decarbonization across the economy. With so much at stake, and so many watching critically, transparency and accountability will be crucial.

Governments may choose among three types of policies to promote carbon dioxide emission reductions. They can prescribe specific low-emission technologies through regulatory mandates. They can raise the price of fossil energy through carbon tax and cap-and-trade systems. And they can subsidize investment and operation of low- and zero-emission technologies. In the United States, the most politically viable of these types have been subsidies, especially through the tax code.

Since 1992, the federal government has subsidized the electricity output of wind farms and other renewable power plants through the production tax credit, ranging up to about 2.5 cents per kilowatt-hour. In recent years, this subsidy is equal to about half of the average price the wind farm receives from selling its power. The federal government has also used investment tax credits, such as subsidies equal to 30 percent of the costs of installing solar panels and $7,500 for a new electric vehicle.

Subsidies for clean energy technologies have historically faced challenges in delivering the biggest bang for the climate buck. In order to claim tax credits, a business typically needed to have tax liabilities at least as great as the value of the tax credits.

To unlock access to these tax credits, financial companies began providing “tax equity”—financing for a renewable project in which the equity supplier gains returns by claiming the project’s tax credits. A large bank, such as JP Morgan or Bank of America, would then become a financial partner for the project and effectively monetize the tax credits to enable the project to move forward. Providing this financial service comes at a cost: as much as 15 cents of each dollar of taxpayer subsidies for renewable power went to a large bank for this financial engineering instead of the renewable developer.

In the wake of the 2008 financial crisis—and of banks, such as Lehman Brothers, exiting the tax equity market—the American Recovery and Reinvestment Act gave renewable power developers the option of claiming a grant equal to 30 percent of investment costs—effectively equal to the value of the investment tax credit without the need for tax liability to monetize the subsidy. For the first time, wind project developers could claim a subsidy for their investment, instead of their output.

This policy innovation jump-started a decade of unprecedented growth in U.S. wind and solar power investment. On the downside, subsidizing wind power investment, as opposed to wind power output, weakened incentives for wind farm maintenance and optimization necessary to maximize electricity generation. In my research with Todd Gerarden and Rich Sweeney, we find that investment subsidies caused wind farms to produce about 10 percent less electricity than they would under output subsidies.

Recent legislative proposals have attempted to circumvent the need for tax equity without such adverse incentives for output through “direct pay” of tax credits. Under these proposals, a firm with a qualifying renewable project would be deemed as having sufficient tax liability such that the government would directly pay the subsidy under the applicable tax credit. As a result, a wind farm would receive its subsidy for production without having to give up some of its value by entering into a financial arrangement with a tax equity supplier.

The other barrier to maximizing the climate bang for the taxpayer buck lies in the uncertainty about what these subsidized renewable projects displace in the electricity system. If a new wind farm’s output substitutes for electricity generated by a coal-fired power plant, then that delivers twice the emission reductions than if it displaced power from a gas-fired power plant. And if the wind farm displaces power from a nuclear power plant, then it would deliver no incremental emission benefits. Exploiting high frequency, high-resolution spatial data and power system modeling tools could enable the design of modified subsidies that target and value power generation that delivers the greatest emission reductions.

In the absence of more ambitious carbon pricing legislation and in the wake of the Supreme Court’s West Virginia v. EPA decision, constraining Clean Air Act regulations, subsidies may be the most viable near-term policy tool for decarbonization. Modifying such subsidies to be more cost-effective will contribute to deeper decarbonization for a given amount of federal spending, which is critical given the political constraints—especially in a period of relatively high inflation—on public spending.

In the last issue, I addressed the recent run-up in fossil fuel prices resulting from demand outpacing production of oil and gas. In the longer term, however, as governments pursue more ambitious energy policies and consumers shift to new, climate-friendly technologies, the demand for fossil fuels will decline. As a result, energy costs will likewise decline. In the presence of falling fuel prices, how governments design climate policies will have important implications for the pace of decarbonization.

The vast majority of energy and climate policy in the United States focuses on the carbon intensity of new products. Tax expenditures subsidize new wind and solar power, new electric vehicles, and new energy-efficient windows. Regulations imposing the latest fuel economy and appliance efficiency standards apply to new items. As households and businesses buy new products and equipment subject to these subsidies and standards, they reduce their demand for fossil fuels.

These policies, however, do not influence the use of existing fossil fuel-reliant technologies. Indeed, absent policies directly targeting the price of gasoline, for example, as electric vehicles take over a larger fraction of the new-car market, someone who already owns and drives an internal combustion vehicle may soon find it cheaper to operate over time. This could slow the electrification of transportation, and reduce the scrappage rate of old, polluting gasoline-powered cars. This bifurcated market—a fast-growing new EV market and a used gas-engine market —could occur in the United States, with larger public health benefits accruing to those communities taking up EVs—typically those composed of higher-income households.

This phenomenon could also occur across countries, if one set of governments moves rapidly with policies that drive down their fuel demand while a second set does little to promote vehicle electrification. As a result, a form of emission leakage occurs—the emission reductions associated with the set of countries pursuing ambitious policies are offset some by drivers in the second set of countries who may drive gas cars more intensively and for a longer time in response to lower fuel prices.

In the meanwhile, the potential for long-term declines in natural gas prices—resulting from the transition toward building electrification—has a more complicated impact on residential consumers. Rapid electric heat pump adoption could reduce demand for natural gas and depress the price for the fuel. This could lower the cost to keep a house warm for those relying on natural gas furnaces or boilers.

Heat pump adoption, however, would reduce the number of gas customers on a given distribution network. Over time, the natural gas utility would likely need to increase rates per customer to cover the fixed costs of the local system. This could offset the fall in fossil fuel prices. The question is whether those slow to adopt heat pumps have the resources to make a large up-front investment in a new unit. Households with financing constraints may bear the higher costs of being the last movers to the new technology, and these costs could be regressive, given the socio-demographics of early heat pump adoption.

The functioning of energy markets coupled with incomplete climate policy that focuses primarily on new investment highlights two decarbonization challenges. First, those slower to adopt new technologies may find it economic to continue to delay clean energy adoption as fuel prices fall. This would slow the transition away from fossil fuels. Second, the distribution of the net benefits of decarbonization may continue to skew toward higher-income households and communities. This could weaken public support for an aggressive decarbonization program.

Policymakers could expand the climate policy toolkit to address these challenges. First, directing electric vehicle and heat pump subsidies to lower-income households could enhance the progressivity of decarbonization and target slow adopters of zero-carbon technologies.

Second, an economy-wide carbon price—through a cap-and-trade program or a tax—would ensure that fossil fuel markets don’t work against decarbonization. Carbon pricing provides incentives to decarbonize both new technology and existing technologies. This is in contrast to subsidies and regulations for electric vehicles and heat pumps—which influence only the carbon intensity of new investment.

Carbon pricing can also accelerate the timing of new investment and facilitate the transition away from fossil fuels. This occurs because the carbon price raises the retail price for fossil fuels, while decreasing the price paid to fossil fuel producers. In contrast to subsidies and regulations, which do not raise revenues, a carbon pricing policy could raise significant monies. Returning these revenues to households would promote progressivity and public acceptance of higher fuel costs.

An August United Nations scientific assessment concluded that “unequivocal” evidence shows human activities have inflicted “widespread and rapid changes” across the planet. In September, another UN report prompted the secretary general to warn, “The world is on a catastrophic pathway” even if all Paris Agreement commitments are met. To the Union of Concerned Scientists’ Rachel Cleetus, her organization is now “beyond concerned,” with members’ feeling “heartbroken” by worsening climate damage and “alarmed” and “angry” at policymakers’ failure to act.

Frustration runs deep, not only because the climate crisis is mounting but also because major policy advances are so tantalizingly close and hold out prospects for win-win actions.

In September, following an intensive two-day markup, the House Energy and Commerce Committee passed a major portion of the Democrats’ $3.5 trillion budget reconciliation package. The bill included a $150 billion Clean Electricity Performance Program that environmentalists and Democratic sponsors argue would generate almost eight million jobs, $1 trillion in economic activity over the next 10 years, and serve as the “most powerful tool” for decarbonizing the power sector. The Department of Energy would offer electricity suppliers grants if they increase their clean supply by four percent compared with their previous year’s performance, and would penalize generators that fail to.

But Senator Joe Manchin (D-WV), whose vote is indispensable for Democrats to pass a reconciliation bill in the 50-50 divided Senate, opposes both the CEPP and the Democrats’ $3.5 trillion package full of clean energy funding.

Another significant clean energy proposal that has galvanized attention is a DOE study described as “the most comprehensive review to date” of solar energy’s potential role in decarbonizing both the U.S. electricity grid and broader energy system. The study concludes that solar energy could “power all of the homes in the U.S. by 2035 and employ as many as 1.5 million people in the process,” said Energy Secretary Jennifer Granholm in a statement. But Granholm emphasized that “strong decarbonization policies” will be needed to raise solar energy’s level from its current 3 percent to 40 percent (or 1,000 gigawatts) by 2035, and as high as 3,000 gigawatts by 2050.

However, as noted by the CEO of the Solar Energy Industries Association, Abigail Ross Hopper, “policy, plain and simple” will be the greatest hurdle to raising solar to 40 percent. “The blueprint is there, the American people support it, and now it’s up to policymakers to make it happen,” she says.

Greg Wetstone, CEO of the broad-based nonprofit American Council on Renewable Energy, expresses optimism that legislation can move forward, despite the challenges of “default partisanship on every issue.” DOE’s solar study demonstrates that the United States can make the needed clean energy transition “rapidly enough” without increasing electricity costs to consumers, “two really important conclusions.” Democrats’ reconciliation bill policies will be “foundational” both for achieving the study’s targets and for driving national economic growth, he adds.

SEIA’s Hopper also emphasizes the solar study’s significance in helping to “make it clearer than ever that solar is a real solution to the climate crisis.” With the right policies, the U.S. can decarbonize its electric grid using solar and storage while keeping electricity costs low and generating hundreds of thousands of new career opportunities across the country, she says.

Among necessary policies are the CEPP and a 30 percent investment tax credit for solar. The House panel’s September markup includes investment tax credits for solar and for storage, and other provisions that SEIA and more than 700 solar companies called for in a letter to President Joe Biden and congressional leaders. Although SEIA is “encouraged” by the “sweeping climate and energy legislation” approved by the House Energy and Commerce and Ways and Means committees, says Hopper, she cautions that “there is a long road ahead in getting legislation to the president’s desk.”

Doubtless, intense legislative fights can be expected. But Wetstone underscores reasons to be hopeful that “some version of the CEPP” and other critical policies will proceed, including Biden’s unprecedented presidential commitment to climate action, as well as the increasingly visible “horrific, immediate implications” of climate change. Moreover, he says, the Federal Energy Regulatory Commission is signaling “a really dramatic change” in rules allowing renewable energy to compete in electricity markets. But the movement toward clean energy has to be “accelerated on a climate time frame,” he adds.

Here’s hoping climate evidence and redoubled legislative efforts make 2021 a year of win-win policy breakthroughs.

Tempting as it is to seek a “silver bullet” in climate policy, it doesn’t exist. Policymakers must utilize a mix of regulatory, fiscal, market-based, investment, information and disclosure, education, and innovation policies to achieve a more globally competitive, low-carbon, resilient economy by mid-century. Compared with other countries, the United States has an incoherent, often contradictory approach to climate policy, and it shows. While U.S. emissions peaked in 2007, they remain 2 percent above 1990 levels. By comparison, the United Kingdom plans to achieve a 78 percent reduction below 1990 levels by 2035.

It’s important to set forth some principles for American climate policymaking. First, American policies must be predictable and durable so that private firms and individuals can make informed decisions about their investments. This will require bipartisanship so that policies don’t sharply zigzag depending on which political party is in office. Ideally, new climate legislation will be developed and passed with Republican, independent, and Democratic support because we must stop vacillating if we are to take advantage of the genuine economic opportunity in a low-carbon transition. The United States must be a real contender in the race for low-carbon markets around the world.

The economic transition must also be taken seriously. For workers who rely on carbon-intensive industries, vague assurances of clean energy jobs are hardly reassuring. It is not so simple for a parent to pick up and move to another town or state because a new job happens to be there. Moreover, many local towns, counties, and even states rely heavily on tax revenue from certain types of industry. If the local school or hospital depends on royalties to provide its services, then new sources of revenue must be found. Planning for the transition must thus begin now, town by town, city by city, county by county, and state by state. A recent National Academy of Sciences study on accelerating decarbonization called for the establishment of a new National Transition Corporation together with a National Transition Taskforce, regional planning offices, and a net-zero transition office in every state capital.

This transition must be genuinely fair and requires a new social compact. Fairness needs to be considered, among other dimensions, in terms of race, income, age, gender, and geography. Certain communities are much more vulnerable to climate change itself and others are vulnerable to the economic transition to a low-carbon economy. Others are fortunate to live in less risky places or to already be employed in a clean, low-carbon industry. Those more fortunate must recognize that they have a responsibility to help those at risk.

We need to be disciplined in our approach to climate policy. We need to set goals, performance metrics, and budgets and stick to them. Net zero by 2050 means we have 29 years to get from the 5,769 million metric tons in 2019 to no net emissions. We need a carbon budget and we need to hold ourselves accountable to it, just as most American families live within their own household financial budgets. An independent body should be established to track progress against our goals and recommend revisions to policy as needed. Congress needs to appropriate sufficient financial resources to achieve our goals.

Let’s invest wisely and efficiently. Every public dollar invested and new policy announced should get the most bang for the buck in terms of economic gain, climate mitigation, and resiliency. Let’s stop siting new infrastructure in flood-prone areas. Let’s rebuild houses, schools, and hospitals to be energy efficient and low carbon. Integrating distributed renewables and battery storage cannot only help reduce emissions but can provide power after strong hurricanes when the grid is down. We need an American infrastructure or development bank so that we can ensure that financing is available for all communities to invest in low-carbon, resilient infrastructure.

Finally, we must recognize that climate policy is really economic, labor, and social policy. The U.S. competitive position in low-carbon technologies and industries has eroded, and American firms and workers are not economically benefiting as they should from the global energy transition. China is doing a better job than the United States in domestically deploying and exporting renewable energy technology, building new nuclear capacity, and launching a thriving electric car industry.

America must invest in innovation and construct a market-based industrial policy that supports U.S. firms and labor while holding them accountable for performance. Public and private investments in research, development, and demonstration must be greatly increased, commensurate with the scale of the challenge of climate mitigation and resilience. Just as important is investment in our human capital so that we have the people to invent the new technologies, the entrepreneurs who can bring the ideas to reality, the workforce that can manufacture advanced technologies, and the government officials who can devise and execute smart policy.

Kelly Sims Gallagher is professor and director of the Climate Policy Lab at The Fletcher School, Tufts University.

WE ARE now into our second half-century of environmental and natural resources law. President Nixon signed the National Environmental Policy Act on New Year’s Day 1970, making it a convenient marker for the birth of modern environmental protection. NEPA has been called the Magna Carta of environmental law, and it heralded a new era of federal legislation, including the Clean Air Act later that year and a whole roster of laws to follow. The federal acts, along with complementary state environmental statutes, have substantially reduced pollution, resulting in cleaner air, water, and soils. And species like the brown pelican and bald eagle have been brought back from the brink.

While critical progress has been made, significant gaps in environmental laws remain if the country is to achieve a more sustainable economy. Understanding that, the authors of this article convened a diverse group of leading environmental law experts to consider how the field might need to evolve to meet current challenges and those expected over the next decades. We characterize this effort as “Reimagining Environmental Law.” In many ways, it means as well reimagining the future.

Toward that end, ELI and George Washington University Law School convened two dialogues, first at the Wingspread Conference Center in Racine, Wisconsin, in March 2019, and second at Airlie House Conference Center in Warrenton, Virginia, in November 2019. Both centers have been settings for environmental conferences for decades, with Airlie House hosting a conference in September 1969 that recommended the creation of ELI. (Information about the meetings and the attendees can be found at https://www.eli.org/environmental-governance/reimagining-environmental-law.) This article reflects the discussions at Wingspread and Airlie House, subsequent discussions with participants, and research conducted by ELI and GW Law.

In consultation with our experts, the authors concluded that among the key challenges remaining for environmental law are climate change and decarbonization, nonpoint sources of pollution, materials conservation and reuse, and ecosystem degradation and biodiversity loss. In addition, environmental justice presents both an area of needed focus alone as well as attention in cutting across all the other challenges.

The climate change problem is well-known and well-documented. The participants saw the major challenge for environmental law as finding a way to support dramatic decarbonization of the economy to avoid potentially catastrophic impact of warming and supporting needed adaptation to change. While the pathways for a transition to a low-carbon economy are known, reaching the goal of 80 percent emissions reduction by 2050 will require legal changes at all levels of government, as well as accompanying economic, political, and social changes.

Essential to the transformation needed is an economy-wide price on carbon to provide the economic incentives to make the shifts necessary to reach zero emissions. This means imposing a direct cost on each ton of greenhouse gas emitted. To accomplish this, policymakers must create a system at the national level to achieve the necessary economy-wide shifts. The participants did not express a clear preference for a tax or a trading system that caps emissions from GHG sources, though an internationally agreed system would be preferable. Any such pricing or trading system will also need to mitigate the disproportionate effect it will have on those with lower incomes, due to the higher costs of fossil fuels coupled with higher proportions of income spent on energy. It likely will also require regulatory measures to assure that environmental justice communities do not continue to disproportionately bear the risks associated with co-pollutants, like sulfur dioxide and mercury.

Given the decades-long effort to place a price on carbon and the urgency, immediate action is needed using the tools already available to reduce GHG emissions. The nation will need to address this issue across the economy through a comprehensive approach like those identified in ELI Press’s Legal Pathways for Deep Decarbonization book, which lists more than a thousand recommendations for legal instruments covering all forms of GHGs and how they are generated and released.

We also need a comprehensive and just policy for adapting to the risks — and impacts — of climate change and for helping communities become resilient. This will require an appropriate model for assessing risk. Decisions must be based on the possibility of the uncertain but potentially massive catastrophic outcomes related to natural disasters, sea-level rise, drought, and biodiversity loss. Many of these processes will require legal tools, like the model laws being produced by volunteer attorneys based on the recommendations in Legal Pathways, but others will require public investment such as transit projects, and in making buildings safer, healthier, and more energy efficient. Electrifying and investing in grid updates will also be essential in this effort, creating a more robust, resilient, and efficient network. Government agencies need to plan for how they will deliver essential services amidst climate disruptions, and how they will coordinate with partners at other levels of government. In addition to significant adaptation actions, the law must account for the liabilities associated with unintended consequences of adaptation measures.

Federal, state, local, and tribal governments need to remove subsidies, including tax breaks and other incentives, for fossil fuels and carbon-intensive industries. These governments will also need to reduce or remove regulatory barriers related to decarbonization of the economy while promoting social equity at every stage and level.

Government policies are needed to provide incentives for innovation and investment toward a carbon-free future. This will be particularly important in the absence of a price on carbon to promote development of the necessary technologies. Means to remove or sequester carbon from the atmosphere may be necessary if mitigation efforts do not advance at a sufficient pace.

An effective climate governance regime will require the engagement of the private sector in a multi-tiered system with distributed roles and accountability mechanisms. The regime must capitalize on and encourage private-sector initiatives to meet climate change goals. This can include supply chain systems that rely on a variety of approaches, including certification, auditing, labeling, and reporting programs enforced through contracts.

An equity lens will be critical in designing these polices to ensure that affected and especially vulnerable communities are meaningfully involved in designing and implementing these measures. If policies are designed to protect against the greatest potential risk, in many cases this will result in just outcomes. An updated and enhanced conception of the duty of care in both government and the private sector will help to facilitate this.

THE nation has made major strides in controlling water pollution from point sources. But many of the sources of impairment to water quality are from nonpoint sources — runoff and discharges from areas of land and operations that are not subject to direct federal regulation under the 1972 Clean Water Act. Even though these uncontrolled sources of pollution were recognized in the statute, they were not regulated because of concerns with federal legislative intrusion on state and local land use prerogatives and solicitude for such industries as agriculture, forestry, and land development.

The Wingspread and Airlie House participants preferred a more watershed-health-focused system over the status quo, which concentrates permit-by-permit on individual sources and on effluent limits on pollutant discharges. An alternative future could be far more focused on land quality and water quality results.

Given the major contribution of diffuse sources to the remaining water pollution problems, a new sense of urgency is needed for dealing with it. One way to accomplish this result could be to recharacterize these sources as “uncontrolled pollution” rather than using the innocuous term nonpoint pollution. The public and institutional motivation necessary to support advancement in law needs to be defined as achieving better environmental and public health outcomes — not controlling nonpoint sources.

State regulators should create a new structural framework for dealing with uncontrolled pollution. Simply relying on the current state water quality and waste load allocation framework has not proven effective. This new framework should capture sectors that have previously escaped requirements to reduce uncontrolled pollution. It should also focus on watersheds with major, recurrent pollution threatening public health and welfare.

Legislators can also consider funding and relying on big data, and making it publicly accessible. A great deal of data exists on water quality and more will become available as monitoring technology advances and is used by citizens. This will make it possible to define and track progress toward watershed outcomes. Sharing of data on public platforms and integration of ecological information with water quality, discharge data, geo-siting of best management practices, remote sensing, and biological sampling should be encouraged and supported.

At the federal level, officials should provide key actors with the power to create change by matching the best tool to the source of impairment. Policymakers should inventory effective regulatory and non-regulatory approaches and target these to sectors, watersheds, and problems where they have been proven. EPA or others should construct a database of tools used by the states, federal programs, the private sector, and others, and determine how these can be applied to different forms of uncontrolled pollution in different types of watersheds and settings. This resource could further be backed by supporting and funding integrated water management planning, and making funding available for implementation of the tools.

At both levels of government, policymakers should link federal and state procurement to effective management of uncontrolled pollution in the supply chain. This approach recognizes that government funding is substantial in the acquisition of food and fiber, materials, energy, and development. The reimagined approach would expressly provide for disclosures and certifications and perhaps pollution controls as conditions related to receiving funds.

All agencies at the national level need to require that federally funded land and water and development projects, and all authorized activities on federal lands, must result in net water quality improvements — or at least restoration to no net loss of water quality where there is no opportunity to achieve a net improvement.

THE European Union in its Circular Economy Plan noted, “There is only one planet Earth, yet by 2050, the world will be consuming as if there were three.” According to the United Nations, “In 2017, worldwide material consumption reached 92.1 billion tons . . . a 254 percent increase from 27 billion in 1970, with the rate of extraction accelerating every year since 2000. This reflects the increased demand for natural resources that has defined the past decades, resulting in undue burden on environmental resources.”

The United Nations’ Sustainable Development Goal 12 deals with production and consumption and notes that achieving its goal requires urgent reduction of the world’s “ecological footprint by changing the way we produce and consume goods and resources.” SDG 12 points out that “efficient management of our shared natural resources, and the way we dispose of toxic waste and pollutants, are important targets to achieve this goal. Encouraging industries, businesses, and consumers to recycle and reduce waste is equally as important.” Materials consumption is particularly challenging in the United States. In 2017 U.S. per capita materials consumption, including fuels, was 42 percent higher than Europe’s. Despite the increasingly clear adverse impacts of unsustainable materials use, the issue has received relatively little attention in U.S. environmental law.

The Wingspread and Airlie House participants built on work by the leading advocates of the circular economy, the World Resources Institute and the Ellen McArthur Foundation. The participants reimagined materials conservation and use to include a number of elements. With growing corporate, government, and nongovernment interest in the idea of a circular economy, the participants thought now is a good time to convene a national dialogue to discuss how to move to such a system in the United States.

Extended producer responsibility, or EPR, at the national level would create a level playing field across the country. A national EPR for electronics waste would help reduce environmental impacts and could make it easier for businesses to set up systems.

A national GHG policy that establishes a price on carbon would be important beyond just climate change by helping drive product redesign and reductions in materials use. A price on carbon could drive business innovation by providing a financial incentive to look carefully at energy inputs needed to extract new resources and manufacture and transport products, and to find ways to reuse them.

Federal procurement rules could be redesigned so that criteria favor products and services that are consistent with a circular economy. Further, as part of the economic recovery effort, the federal government is likely to spend a great deal on infrastructure. As a result, the new administration can have a major impact on responsible production and consumption by taking materials conservation and circular economy principles into account in procurement, perhaps through executive orders that build on available authority. Such changes could model desired behavior for state governments, universities, and other large procuring organizations.

Resource Conservation and Recovery Act regulations could be revised to reflect the circular economy hierarchy, which goes beyond the traditional reduce, reuse, recycle paradigm to include preventing the use of resources in the first instance, encouraging repairing and refurbishing, and supporting remanufacturing and repurposing. Model legislation could be developed for states to adopt this new circular economy waste hierarchy.

Materials conservation could be added as a factor to be considered in NEPA analyses. The White House Council on Environmental Quality could contribute to responsible production and consumption by providing guidance to agencies on how to consider materials use and conservation in environmental impact review.

Policymakers can explore the possibility of “fate labelling” for consumer products, so that purchasers can make more informed decisions. This could be done using QR codes or through systems in use or planned in the European Union.

HEALTHY populations cannot exist without healthy ecosystems. Driven primarily by anthropogenic activities, destroyed and degraded ecosystems threaten critical resources in significant and varied ways. Land, ocean, and freshwater systems are all affected. While legal and policy efforts have attempted to address the problem through species- or resource-specific mechanisms within geopolitical borders, the lack of coordinated efforts built around ecosystem-based solutions has meant the problem continues relatively unchecked. Without humanity changing current production and consumption patterns, along with precipitous population growth and unsustainable practices, trends will continue to worsen.

Healthy habitats provide untold benefits, sometimes called ecosystem services, which must be adequately preserved. Responses to these challenges must be direct and swift to avert the most significant impacts of development.

At least eighty countries have adopted policies to help ensure any impacts to biodiversity or ecosystem services from development projects are offset by mitigation, an approach known as “no net loss.” One important goal of the no-net-loss method is to make sure any populations affected by the development project and associated mitigation are not left worse off, but are ideally better off after the plans are completed.

In the United States, no federal statute focuses exclusively or directly on mitigating ecosystem degradation. Generally, domestic environmental laws focus on addressing a single issue rather than on ecosystems comprehensively. Unfortunately, these policies often do not account for the complex and interdependent nature of ecosystems. Moreover, these issues are typically managed based on short-term goals and primarily within distinct political and jurisdictional boundaries that do not necessarily reflect the scope of targeted resources. Even when governmental bodies work together on a project or program, their mandate and funding allocation falls short of long-term ecosystem restoration.

Policies at the federal, state, and local levels that emphasize no net loss of ecosystem services are needed to ensure these functions are preserved. This could be achieved by building on existing programs. An immediate action that could provide impetus to such a policy would be to revive the “Incorporating Ecosystem Services into Federal Decisionmaking” memo, issued jointly by the Office of Management and Budget, CEQ, and the White House Office of Science and Technology Policy in 2015. This memo called on “agencies to develop and institutionalize policies to promote consideration of ecosystem services . . . in planning, investments, and regulatory contexts.”

Policymakers should revise their environment and natural resources management frameworks with a goal of adopting a more holistic approach that prioritizes local ecosystem-level decisionmaking. This includes enacting federal legislation that requires no net loss of ecosystem services and encourages local and state-level ecosystem management. The framework would build on the existing approach to wetlands management but would provide expanded application and account for a wider array of natural benefits. Legislation should include provisions for grant funding for research and data collection, and for the development of multi‐stakeholder, consensus‐based ecosystem management. For example, federal actions subject to review under NEPA could shift focus from considering project impacts to ecosystem services impacts. Local and state land use decisions could build upon precedent set with mitigation banking under the Clean Water Act.

It is critical to emphasize that this approach could become a major equity concern if mismanaged. Communities must be involved so that the damages and benefits are spread justly across and within communities. This is especially true when addressing the legacy of discrimination faced by environmental justice communities and determining what damage is permissible under a no-net-loss framework. Making these decisions and processes more local provides an opportunity to protect residents from this potential concern.

Federal changes should be bolstered by efforts at the state level, including through revising or adopting state-level NEPA laws to include requiring an analysis of how a project will affect ecosystems and ecosystem services in the long term.

Policymakers at all levels should reform governance structures to complement ecological boundaries. Ecologically oriented governance will prioritize the entire habitat or watershed and more effectively integrate natural systems and environmental media to better ensure impacts are accounted for and degradation is mitigated. That reorganization will necessarily require inter- and intra-governmental cooperation at all levels — federal, state, local, and tribal. Throughout, these techniques should involve communities and incorporate traditional ecological knowledge.

To better align ecology and governance, the U.S. Fish and Wildlife Service should be given the authority to work with multiple levels of government and private entities to negotiate land use plans that protect or enhance ecosystem services. Such authority would be particularly useful when endangered species and critical habitat are at issue, providing a protective mechanism with widespread stakeholder engagement. Bringing together all parties with jurisdiction within a given ecological context with oversight by FWS may enhance cooperation and response to ecosystem management challenges.

New and existing regional governance bodies could be provided with “pre-authorization compacts” akin to water compacts and regional electricity grid agreements to address different parts of the same environmental event or phenomenon. While arguably less comprehensive than ecosystem-level management, compacts may be more feasible and can still help facilitate responsive coordination to environmental impacts.

INJUSTICE is manifest in several dimensions across the landscape of U.S. environmental law and policy, at all levels of governance, from local actions to state and federal decisionmaking. Communities of color and low-income communities often experience higher releases of pollutants, siting of undesirable land uses, and lack of access to environmental benefits and amenities. These same communities already bear a substantial health, social, and economic burden from pollutants, poorer access to healthy living spaces, effects of poverty, and inadequate access to health care. Even where pollutants and practices are similar to those experienced elsewhere, the addition of these burdens to existing health, socioeconomic, and community conditions can have greater cumulative adverse impacts on such environmental justice community residents.

At the federal level, the framework for environmental justice has been almost entirely based on executive orders and agency memoranda, rather than on enforceable laws and regulations. Environmental justice gained formal federal recognition in Executive Order 12898, “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations,” issued by President Clinton in 1994, and still in effect today.

But there is still no focused and specific federal statutory foundation for environmental justice. EPA’s Office of Environmental Justice has identified various provisions in federal law that can be cited by federal agencies when they desire to support an EJ-related decision. OEJ also has developed EJScreen, a mapping and information tool, to assist agency decisionmakers and permit applicants in identifying communities and implementation factors where cumulative adverse impacts may occur. In the absence of legal drivers, however, this kind of tool cannot alone produce substantive change.

A number of states have enacted environmental justice legislation or adopted regulations or policy instruments to give EJ a greater role in decisionmaking. California’s CalEnviroScreen, for example, enables decisionmakers to identify environmentally burdened communities and create indices used for permitting, enforcement, and funding prioritization.

THE Wingspread and Airlie conferees recognized the need for legal processes to obtain just outcomes and not merely more accessible procedures — especially given cumulative impacts on EJ communities. They noted that EJ initiatives, in order to be effective, must be thoroughly integrated into all decisionmaking affecting the environment. It cannot simply be an add-on or check-off at the end of a decision process.

A minority of states already have constitutional rights related to the environment, but only a few of these are self-executing and enforceable by members of the public and communities. Environmental justice may be advanced by promoting adoption of such state amendments. In those states that already have only hortatory environmental amendments on the books, the approach would seek appropriate further amendment to enhance enforceability. This approach would require careful drafting of amendments to ensure that they are self-executing and hence enforceable without the need for additional state legislation. It would also need to create or recognize a public trust in the natural resources of the state, including clean air, pure water, biological resources, and publicly owned lands and resources, and state a human right to a clean and healthy environment.

Federal and state legislation that embodies important EJ procedural and outcome elements should be adopted. Such legislation can include codification of E.O. 12898 elements, including definitions of minority and low-income communities and disproportionately high and adverse impacts, as well as meaningful engagement and other provisions. The laws could require tools such as EJScreen. There could be other requirements for new development in communities overburdened by pollution to offset any projected increases in pollution loadings, with reductions in the existing pollution inventory on a 1:1 or net-reduction basis. Statutes could mandate disclosures of information by applicants or operators that will enable communities to participate in review processes and take action to protect their health and resources. They could remove legal barriers to public participation in decisions affecting EJ communities. Finally, the laws could create a private right of action for enforcement of civil rights.

For the private sector, policymakers could promote and encourage private governance and corporate commitments and accountability mechanisms for environmental justice. Companies and groups of companies and organizations can develop best practices and codes of conduct that firms integrate into their decision processes, management systems, supply chain requirements, and internal and external accountability mechanisms.

As the country embarks on the second half-century of the modern environmental law era, it is important to recognize both the successes of the past as well as the issues for which environmental law has not been as successful. The Reimagining process was designed to focus on some of the critical issues to ensure that policymakers seriously address remaining problems and inequities. We hope that when our successors look back on environmental law at 100, they will be able to identify significant progress in the areas identified by the Wingspread and Airlie House participants as critical issues. R&P

John Pendergrass is ELI’s vice president for programs and publications, and leads the Research and Policy Division. ELI Visiting Scholar LeRoy Paddock is distinguished professorial lecturer in environmental law at George Washington University Law School.

———

The authors thank all the Wingspread and Airlie House participants, who are the true authors of this article, and James McElfish, Sandra Nichols Thiam, and Jarryd Page, who drafted the white papers that were excerpted here.

Joe Biden has aimed high on climate change. And with good reason. His proposals present the nation with a stark choice — either take radical steps to decarbonize the U.S. economy or accept irreversible warming trends that have dire consequences. It’s hard to overstate the importance of this choice. After decades of half-measures, we are nearly out of time to avoid unsustainable global temperature increases.

Given the imperative of acting against this threat, Biden’s recently announced goals for US greenhouse gas reductions — a 50-52 percent cut from 2005 levels by 2030 leading to net-zero emissions by 2050 — should be unassailable. However, reductions of this magnitude are far beyond any we have achieved before and will require an unprecedented national commitment to decarbonization.

Under President Obama, the replacement of coal with natural gas for power generation achieved a painless and largely voluntary decline in emissions. In 2015, Obama raised the stakes, committing the United States to a 24-26 percent emission reduction by 2025. But this goal was abandoned in the Trump years and emissions were only 12 percent below 2005 levels in 2019.

Making up this shortfall by 2025 and then reducing emissions by another 25 percent by 2030 are possible only with a rapid, across-the-board transition away from fossil fuels. While a hydrocarbon-free future has always been a vision of climate advocates, oil and gas still remain embedded in all sectors of our economy. A world without fossil fuels is deeply threatening to many Americans who sense upheaval and dislocation rather than opportunity. Can Biden persuade a divided public and polarized Congress to take this leap forward?

There is reason for cautious optimism. Climate science is no longer under attack and there is tacit acceptance that planetary warming is real and linked to human-induced CO2 emissions. The business community has moved from near monolithic opposition to emission reductions to measured and in some cases full-throated support. Pressure by activist investors, sensitivity to public criticism, and corporate sustainability programs have all contributed to this shift.

But the biggest factor is that, with rapid improvements in technology, mainstream companies in the electric power and transportation sector are embracing low-carbon business models and committing to ambitious goals backed by robust capital investment.

This dynamic creates an opportunity to align business with Biden’s climate agenda. To court the business community, he is pursuing a carrots-and-sticks strategy. His Jobs Act offers incentives and subsidies to build out the infrastructure — such as transmission lines and charging stations — necessary to accelerate the market penetration of zero-emission electric power and vehicles.

In return, he is proposing to set binding near-zero emission targets for 2035 that would be implemented legislatively (a clean energy standard for electric power) or under existing law (tailpipe emission standards for new vehicles under the Clean Air Act). The Biden team is banking that businesses already committed to clean energy will support these targets in order to obtain the largess of the Jobs Act and the regulatory certainty they need for long-term planning and investment.

However, Republicans are not on board and have little interest in joining forces with their traditional business allies. Their focus is on next year’s mid-term elections and they hope to rally their base by portraying Biden’s agenda as expensive, leftist, and deeply threatening to the status quo. Without explicitly denying the reality of climate change, the Republican strategy is to stoke the fears of the electorate by conjuring up dark images of job loss, energy shortages and outages, wasteful government spending, higher taxes, and less freedom of choice.

The president has a powerful answer: the clean energy transition will create new jobs and business opportunities and maintain U.S. competitiveness as China and other rivals race to achieve global dominance in electric vehicles and renewable power. But Republicans are discounting this message and betting that their supporters will see the clean energy future and its promise of economic growth as a mirage. Better to do nothing, they imply, than risk declining incomes, a lower quality of life, and heavy-handed government intervention.

As the Biden team undoubtedly knows by now, a bipartisan mandate for his climate proposals is not in the cards. However, if Democrats hang together, the Senate reconciliation process provides a narrow but viable path forward in the face of Republican opposition. This path carries political risks and Democrats could pay a price at the polls in 2022. However, the stakes for the planet are too high to retreat.

Bob Sussman is principal of Sussman and Associates, an environmental consulting firm. He can be reached at bobsussman1@comcast.net.

Some Democrats and Republicans want to end the U.S. dependence on China for rare earth elements. REEs are essential for electric vehicles, energy storage batteries, and solar panels. They are also used in jet fighters and other military materiel. At the same time, President Biden wants U.S. greenhouse gases to be slashed 50 percent by 2030, unthinkable without a massive deployment of clean energy technologies. Is this a rare opportunity for bipartisan policy?

According to U.S. representatives from Texas Lance Gooden (R) and Vicente Gonzalez (D) and others, the answer is a clear yes. “This should not be a partisan issue,” the lawmakers said in introducing their Reclaiming American Rare Earths Act in April. The bill, one of several REE proposals, would enact a permanent tax deduction for mining, reclaiming, or recycling REEs in the United States and support developing domestic supply chains for the materials. Currently China dominates 80 percent of REE supply chains.

Both Biden and former President Trump recognized the need for domestic production of these critical minerals with government support, Gooden and Gonzalez said in emphasizing the issue’s bipartisan nature.

Case in point: On February 24, Biden signed an executive order that launched a 100-day review of U.S. supply chain strengths and weaknesses across four key industries, including critical minerals.

In June 2019, the Trump State Department announced a multinational Energy Resource Governance Initiative to help build sustainable REE supply chains. At his April 23 Leaders’ Summit on Climate, Biden embraced the initiative, noting that its focus has expanded to include “greening mining operations” in addition to re-using and recycling key REEs.

Although safeguarding REE supplies should be bipartisan, Democrats and Republicans are “talking past each other,” says Joe Britton, executive director of the Zero Emission Transportation Association, a full supply chain coalition advocating for 100 percent EVs by 2030. During a May 5 House hearing on decarbonizing the transportation sector, GOP lawmakers focused on China’s REE advantage and African child labor concerns as a reason not to invest in EVs, while Democrats see dozens of reasons for doing so.

In testifying at the hearing, Britton stressed that the United States “cannot be on the sidelines” while China and other countries continue solidifying their control over sectors like critical commodities, processing, and manufacturing. He noted that Tennessee’s Republican governor called a $2.3 billion EV battery plant facility being built in Spring Hill the “largest single investment of economic activity in the state’s history.”

“That’s our opportunity,” Britton said. In expanding the EV and clean energy sectors, the United States will prioritize materials needed to achieve net-zero emissions and could support that with such policies as tax incentives. Britton believes that with “critical mass” for battery manufacturing and a “strong market signal” on the U.S. economy’s direction, investments will arise to relocate the full REE supply chain domestically, including the processing market that China now controls. Creating a domestic REE supply chain must be a top priority, he said.

But despite the minerals’ essential role in EVs and clean energy, mining and processing the materials can be environmentally damaging. It generates toxic air, water, and waste pollution that has left China wrestling with a “toxic aftermath,” a Yale Environment 360 article states.

Concerns about environmental impacts as the U.S. and allies move to recreate domestic REE supply chains prompted the Energy Department in January to announce $28.35 million in federal funding for projects to advance U.S. REE processing.

According to Jordy Lee, program manager with a Colorado School of Mines program, it is probably less difficult to create a sustainable U.S. REE sector than many believe, though “it depends on what you mean by sustainable.” Generally, “we don’t really know about the full rare earth environmental impacts,” Lee says.

When the United States was the REE world leader, environmental oversight was limited, so a lot of impact information is missing, Lee says. Today, the country lacks the expertise and infrastructure, and China is not very open about sharing environmental data from its decades of controlling production, he adds.

According to the State Department, REE demand could rise as much as 1,000 percent by 2050 as the world tackles climate change. Will urgency over the environment merge with urgency about rebuilding REE supply chains and pave a bipartisan pathway?

“We don’t really have a choice,” says Britton. The United States is poised to get REEs and clean energy right or forever cede control.

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

As the Biden administration pursues an aggressive climate change strategy, a technology that has received growing attention is hydrogen, an energy carrier that Arshad Mansoor, the CEO of the Electric Power Research Institute, recently said was “always ten years away.” But not now. In February, Mansoor told state energy regulators that hydrogen’s moment has arrived. That sentiment was echoed by Joe Biden’s climate envoy, John Kerry, who in March, at a major energy conference in Houston, urged oil and gas industry officials to seize the “huge opportunities” for producing and transporting hydrogen in less “damaging and carbon-intensive” ways.

Today’s hydrogen momentum began internationally, says Bill Zobel, executive director of the California Hydrogen Business Council, an advocacy group that is in the forefront of hydrogen development. While the United States has been blessed with abundant fossil fuels, other nations have been less fortunate and relied on imports.

But now, post-COVID-19, import-dependent nations have decided to develop hydrogen as an energy carrier that can be made from water and other sources and “integrate it into their economies in a big way” because it is applicable to almost any economic sector, says Zobel. With huge international investments underway, “We’re now starting to get into that.” In addition, with Biden’s decarbonization efforts as another driver, “We’ll continue to see a lot of different areas of the [U.S.] economy move in that direction,” he adds.

The business council’s diverse membership, including utilities, automakers, and other sectors, “all see opportunities” in hydrogen and are working together to promote policies that will open markets. That broad interest was reflected in the February 2 announcement of a new 11-company Hydrogen Forward coalition whose members include Shell, Toyota, Cummins Inc., and CF Industries, the world’s largest ammonia manufacturer.

Hydrogen is “definitely enjoying some interesting momentum” for several reasons, says Rachel Fakhry, a climate and energy analyst with the Natural Resources Defense Council. First, countries worldwide are adopting ambitious climate goals, and hydrogen is seen as a great resource to clean up challenging sectors, such as shipping, aviation, and manufacturing, to help meet national goals. Second, the costs of renewable energy have plummeted dramatically and completely changed the dynamics of hydrogen use. Cheap wind- and solar-generated electricity can be used to split water and produce emissions-free “green hydrogen,” California’s main target. And third, fossil fuel companies “are really getting behind this” because producing, storing, and using hydrogen has a lot in common with fossil fuels, thus giving the sector a lifeline to continue having a role in the emerging decarbonized economy.

While the confluence of forces is creating momentum, Fakhry says there are reasons to be cautious. A fundamental issue concerns the “forms of supposedly clean hydrogen” that are actually being incentivized, she says. Bills are being offered that encourage a wide range of low-carbon hydrogen forms rather than truly clean forms. “So, we are concerned,” Fakhry says, even though NRDC recognizes the real potential for hydrogen to clean up hard-to-decarbonize sectors. For example, in long-distance aviation clean hydrogen is “a leading solution,” and it can play a key role in shipping and long-distance trucking.

Another concern, however, is that hydrogen is so versatile that it could be used in sectors where it should not apply, such as to heat buildings, in passenger cars, and other applications. It doesn’t make sense economically or for other reasons to use hydrogen indiscriminately wherever it can be adopted, Fakhry says. Buildings can be less expensively electrified, for example. However, groups are touting hydrogen for expansive applications, thereby derailing investments in existing cheaper solutions that could be readily deployed. NRDC’s goal is to channel hydrogen into “really high-value” applications that are more cost-effective than alternative solutions.

So far, the Biden administration has been “pretty hazy” on hydrogen, expressing support for the resource while focusing mainly on lowering the cost of green hydrogen to compete with natural-gas-based hydrogen, Fakhry says. But the Department of Energy is starting to pursue an interesting “pivot” from its past interest in hydrogen-fueled passenger vehicles to how hydrogen could fit into a “whole economy-wide decarbonization” effort.

It is “a million-dollar question” what size role hydrogen will play in achieving the goal of net zero carbon by 2050. But based on studies by NRDC and others on decarbonizing the economy, hydrogen will probably play a smaller part than wind and solar. While relatively marginal, however, hydrogen’s role will be “absolutely key” in addressing aviation, manufacturing, and other areas, Fakhry says.