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Wednesday, April 20, 2011
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American Electric Power v. Connecticut: The Good News

By Guest Author, Douglas Kysar

This post by Yale Law School Professor Doug Kysar was originally published on the American Constitution Society website and is reprinted here with permission.

In one of the most, er, hotly anticipated cases of its term, the Supreme Court yesterday heard arguments in the climate change nuisance suit of Connecticut v. American Electric Power. From the beginning of this litigation, pundits have questioned the plaintiffs’ decision to seek injunctive relief gradually abating the defendants’ greenhouse gas emissions. To critics, this form of relief – as opposed to, say, monetary damages – seems to highlight the complex and value-laden aspects of climate change as a policy problem, making judges more likely to dismiss the suit as lying beyond the ken of the judicial branch.

Yesterday morning’s argument confirmed the pundits’ view, as even reliably liberal justices like Ruth Bader Ginsburg greeted the plaintiffs’ claims with palpable skepticism. Justice Ginsburg’s money quote, which is being cited around the blogosphere, came when she told the plaintiffs that their prayer for relief “sounds like the kind of thing EPA does.” Justice Kagan quickly piled on: “It sounds like the paradigmatic thing that administrative agencies do rather than courts.” Justice Breyer, ever the policy wonk, wondered aloud whether “the courts [can] set a tax” because, in his words, from “what I get from reading, these [carbon taxes] might be the best way to deal with the problem.”  (Answer: Courts set implicit harm taxes every day in the form of monetary tort awards. Bonus Answer: The Clean Air Act might well be a great way to deal with the problem, as the benefits of emissions permits have been oversold and the likelihood of a carbon tax passing Congress is nil).  For her part, Justice Sotomayor was nowhere to be found since she had recused herself from the case, even though she would have been within ethical guidelines to stay involved.

With friends like these, environmentalists might be forgiven for asking themselves, who needs Scalia?  Well, actually, even the reliably conservative Justice Scalia surprised observers this morning with just how conservative he could be. Throughout the oral argument, Scalia brazenly asked the electric utilities’ lawyer for suggestions on how to use this case to prevent climate change tort suits in both federal and state courts. (Answer: There is no appropriate way because the question of state common law climate change claims has not been raised in the present suit).  

So is there any good news for environmentalists and other progressives from yesterday's argument?  Surprisingly, yes. Let’s be honest with ourselves: Ever since the Supreme Court granted review in this case, speculation has focused not on whether the plaintiffs will lose, but on how they will lose. The narrowest ground for reversal would be on displacement, i.e., a ruling that the Clean Air Act and the EPA’s halting efforts to implement that statute with respect to greenhouse gas emissions work to effectively block federal courts from using common law principles to address climate change. The two other arguments in play – that the plaintiffs lack standing to press their claims or that their claims constitute political questions beyond the power of the court – would be much more disastrous for progressive causes if they received the blessing of the Supreme Court. They would make available new all-purpose broadsides against any tort litigation in federal court, requiring every injured party to first prevail against these arguments before they could even begin to press their claims against wrongdoers.  Arming defendants with these new SCOTUS-branded clubs would further tilt an already uneven litigation battlefield against tort claimants.

The good news, then, is that the justices were most keenly focused on displacement in their questioning, rather than on standing or political question. Apart from Justice Scalia, the justices seemed uninterested in dismissing the case on Article III standing grounds or on taking the Acting Solicitor General’s prudential standing bait. The latter resolution would be particularly pernicious as it would essentially invite judges to dismiss a case whenever they felt like it. Chief Justice Roberts appropriately swatted the argument away by noting that it “cuts off our jurisdiction at our own whim, as opposed to dealing with this on the merits.” Likewise, the political question doctrine barely made an appearance during the oral argument. Even the conservative justices seemed to recognize that the political question doctrine doesn’t really belong in the context of tort law claims. Like standing, it was developed for a much different context than common law adjudication, as I have argued with Benjamin Ewing in a forthcoming article.

Both standing and political question doctrine are crude substitutes for the merits of common law claims, a fundamental point that the all-important Justice Kennedy acknowledged throughout the argument.  (My favorite example, in response to a claim that the plaintiffs’ injunction would not solve climate change: “Well, again, that just goes to the merits. You make that argument to the district court that your injunction is meaningless, equity does not require an idle act. End of case.”).

So the good news is: We may lose this one, but at least we will lose in the least bad way.

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Wednesday, April 13, 2011
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Q & A with Steve Katona, managing director of the Ocean Health Index

By Susanne Stahl

Steve Katona, managing director of the Ocean Health Index for Conservation International, recently spoke at the Yale School of Forestry and Environmental Studies about his work on the OHI, a project founded by CI, the National Geographic Society, and the New England Aquarium. The OHI, scheduled for release in early 2012, will establish a standard for measuring ocean health and help policymakers gauge the success of efforts to improve ocean governance and health.

YCELP: When you talk about ocean health, what are you looking at?

Steve Katona: The way we define it, a healthy ocean has the ecological function and structure necessary to provide things that people value, and to provide them sustainably – now and in the future.

So it is a human-oriented view of the ocean, but the things that people want are not just extractive things like fish or other marine products. People also value the ability of the ocean to sustain cultures and traditions and to maintain subsistence … for people to fish and eat that fish for their protein. They also value, of course, tourism and recreation and the livelihoods that the ocean can produce and many other things. And, above all, they do value diversity in a broad sense, not just the species, but their interactions that produce the ecological structure and function

Underlying everything is clean water. There are buried in this loads of natural and aesthetic and existence values in addition to the things that we take from the ocean.

YCELP: As you’ve been working on the index, is there any particular element of ocean health that you’ve found most troubling?

Steve Katona: Let me start with the things that are most encouraging. Most encouraging are some very good trends and results, for example, for the protection of marine mammals. Because of protective legislation in many countries and internationally, the big whales have really done pretty well, and they’re coming along nicely as are other marine mammals of various kinds – seals, manatees in different places. Small cetaceans are having more difficulties, so there’s plenty of work to be done there – but it’s a success story for the big whales.

I think there are also some success stories in fisheries where management is applied and effective and enforced and reasonable. You can see changes fairly quickly over a decade or perhaps more. So there is hope that by really showing the political will and public will, things can get done.

There are some other things that are very slow moving, particularly climate-related things and ocean acidification. Those are going to move very slowly, and they are – for some time to come – because there’s so much carbon dioxide in the system already, so they will impact various aspects of ocean health for a long time to come. How bad those conditions become is a matter of how much we’re able to do now and how quickly we’re able to act, but even if we did everything that we could do immediately, there still will be warming and acidification coming. So those are a little discouraging, but, on the other hand, they’ll get a heck of a lot worse if we don’t take action now.

YCELP: What are a few of the things you wish people understood about how their day-to-day activities affect ocean health?

Steve Katona: We all demand quite a bit of the ocean in terms of what we eat – seafood choices we make, for sure – but there are other things, things that we might vote for, which look like they might be good – funding for a new pier, subsidy for some new fishing boats, subsidy for fishermen’s fuel, things like that. All of these kinds of things may have beneficial local consequences, but may have very detrimental broader consequences because they increase fishing pressure at a time when fishing pressure is already too heavy. Most people don’t always see that relationship.

So trying to eliminate or at least minimize what I think are harmful subsidies – that is harmful to fish stocks – that’s one thing to think about. Energy use (is another). We usually don’t think of energy use in terms of the ocean, but we should. Every watt that we use in our house, every drop of gasoline that we use in our car implies carbon dioxide production somewhere, unless we’re getting your energy from a sustainable or renewable source or nuclear, which has its own set of problems. All that comes home to roost in rising global temperature, rising sea temperatures, rising sea level and ocean acidification. So energy use is absolutely important in this and people need to be aware of that and to reduce their energy use both for environmental reasons and, more immediately, for personal financial reasons. Everything you save, you save in money, too.

YCELP: You’ve mentioned that you were affected by Rachel Carson’s books growing up, have there been any ocean-related books you’ve read recently that you’d recommend?

Steve Katona: Charles Clover’s End of the Line is a wonderful book about fisheries and the pressure on fisheries; I highly recommend it– it’s discouraging, but it’s certainly enlightening. That’s one that’s stuck with me. Another one is Joe Romm’s Hell and High Water. It’s a terrific book, and his blog Climate Progress is well worth viewing for anybody who is interested in the energy side of this equation.

On a more hopeful note, Defying Ocean's End: An Agenda For Action by Linda Glover, Sylvia Earle, and Graeme Kelleher contains some ambitious plans for restoring ocean health. I highly recommend it.

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Friday, April 08, 2011
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Balancing Biofuels and Food Prices

By Susanne Stahl

New York Times reporter Elizabeth Rosenthal wrote a piece this week outlining the complexities in the relationship between biofuel production and food prices. "The starchy cassava root has long been an important ingredient in everything from tapioca pudding and ice cream to paper and animal feed," she writes. "But last year, 98 percent of cassava chips exported from Thailand, the world’s largest cassava exporter, went to just one place and almost all for one purpose: to China to make biofuel. Driven by new demand, Thai exports of cassava chips have increased nearly fourfold since 2008, and the price of cassava has roughly doubled."

With food prices rising sharply in recent months, she continues, "many experts are calling on countries to scale back their headlong rush into green fuel development, arguing that the combination of ambitious biofuel targets and mediocre harvests of some crucial crops is contributing to high prices, hunger and political instability."

No one is suggesting abandoning biofuels, but some food experts suggest countries revise their policies so that fuel mandates can be suspended when food stocks get low or prices become too high. "It can be tricky predicting how new demand from the biofuel sector will affect the supply and price of food," Rosenthal writes. "Sometimes, as with corn or cassava, direct competition between purchasers drives up the prices of biofuel ingredients. In other instances, shortages and price inflation occur because farmers who formerly grew crops like vegetables for consumption plant different crops that can be used for fuel."

Read the full article here.

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Thursday, April 07, 2011
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The Basics of Shale Gas

By Josh Galperin, Associate Director


Want to understand the basics of shale gas? Then the U.S. Energy Information Administration has the primer for you. Key facts include:

  • U.S. shale gas plays could provide approximately 110 years of use in the United States at 2009 rates of consumption.
  • Shale gas (or natural gas extracted from shale resources) made up 14% of total U.S. natural gas supply in 2009.  The EIA estimates that this share could increase to 45% by 2035.
  • Natural gas is a predominantly domestic energy resource -- 87% consumed in the United States in 2009 was also produced in the United States.

There's much more, including links to other relevant EIA reports and some helpful visuals. This is an excellent starting point for further research.   

Posted in: Energy & Climate
Wednesday, April 06, 2011
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Natural Gas and RGGI’s CO2 Emissions Drop: The Overlooked Story

By Josh Galperin, Associate Director


According to a recent estimate, CO2 emissions in the RGGI region experienced a significant decrease from 2005 to 2009 -- approximately 33%. What's been overlooked is the key role natural gas played in that drop. Here's the relevant chart:

No doubt there are several important factors driving the emissions drop -- the recession, the weather, increased energy efficiency, and increased renewables capacity, among them. But what's worth underscoring is the 31.2% coming from fuel switching. That's all from natural gas -- specifically, generally decreasing natural gas prices that were lower than petroleum prices after 2006 and much closer to coal prices by 2009. Per another excellent chart:

This trend could be very important for our climate future. It suggests natural gas might actually be the viable transition fuel that's been heavily promised. Though of course much more research and analysis needs to be done on that front before a firm conclusion can be drawn. Nevertheless, natural gas prices are now something very much worth watching in the coming years.    

Posted in: Energy & Climate
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Cleantech Group Announces Second Highest Quarter Ever in Clean Tech Investment

By testpersona

The Cleantech Group released preliminary results yesterday from their 2011 first quarter report.  The major finding: a total of $2.57 billion in clean technology venture investment across 159 companies. While the total number of deals were down, actual dollar investments increased by 52% compared to the previous quarter.  The top investment areas were:

SOLAR - $641 million in 26 deals
TRANSPORTATION - $311 million in 8 deals
MATERIALS - $296 million in 9 deals
BIOFUELS - $148 million in 13 deals

The report also found a huge increase in investment in North America, while the UK saw a sharp drop from the previous quarter.  After the US, Canada raised the most clean tech investment dollars, followed by India.

Posted in: Innovation & EnvironmentEnergy & Climate
Tuesday, April 05, 2011
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Climate Change Triage: The Northeast and Sea Level Rise

By Josh Galperin, Associate Director

Sobering look at sea level rise in the Northeast and the hard choices it puts before us.  Do taxpayers pay to defend coastline with expensive sea walls in what looks to be a losing battle?  Do emotionally-invested homeowners on the coast retreat now while their property may be at its optimal value?  What can we save from the sea's rise, if anything?  How will we as a society triage the many victims of this climate change harm?      

I detect no real sense that policy makers have a good handle on how to resolve, or even approach, these kinds of terrible choices.  Unfortunately, going forward blindly is also a choice, and one that usually doesn't end too well.

Posted in: Environmental Attitudes & BehaviorEnvironmental Law & GovernanceEnergy & Climate
Friday, April 01, 2011
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USDA Invests in Projects Looking at the Effects of Climate Change on Agriculture, Forests

By Susanne Stahl

The U.S. Department of Agriculture's National Institute of Food and Agriculture (NIFA) is investing $20 million dollars into each of three major studies looking at the effects of climate change on agriculture and forest production.

1. Dr. Lois Wright Morton of Iowa State University will lead a research team estimating the carbon, nitrogen and water footprints of corn production in the Midwest. The team will evaluate the effects of various crop management practices when various climate models are applied. The Iowa State project, which includes researchers from 11 institutions in nine states, will integrate education and outreach components across all aspects of the project, specifically focusing on a place-based education and outreach program called “I-FARM.”  This interactive tool will help the team analyze the economic, agronomic and social acceptability of using various crop management practices to adapt and mitigate to the effects of climate change.

2. Dr. Tim Martin, of the University of Florida, will lead a team looking at climate change mitigation and adaptation as it relates to southern pines, particularly loblolly pine, which comprises 80 percent of the planted forestland in the Southeast. The team of 12 institutions will establish a regional network to monitor the effects of climate and management on forest carbon sequestration.  Research in the project will provide information that can be used to guide planting of pine in future climates, and to develop management systems that enable forests to sequester more carbon and to remain robust in the face of changing climate.

3. Dr. Sanford Eigenbrode, of the University of Idaho, willlead a team monitoring changes in soil carbon and nitrogen levels and greenhouse gas emissions related to the mitigation of and adaptation to climate change in the region’s agriculture, which produces 13 percent of the nation’s wheat supply and 80 percent of its specialty soft white wheat for export. The research team will look at the effects of current and potential alternative cropping systems on greenhouse gas emissions, carbon, nitrogen and water-levels and how that, in turn, affects the local and regional farm economy.

“Climate change has already had an impact on agriculture production," said NIFA Director Roger Beachy. “These projects ensure we have the best available tools to accurately measure the effects of climate change on agriculture, develop effective methods to sustain productivity in a changing environment and pass these resources on to the farmers and industry professionals who can put the research into practice.”

For further details, see the full press release here.

Posted in: Energy & Climate
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The RGGI Emissions Cap:  Is It Too Forgiving?

By Josh Galperin, Associate Director

There are many valuable lessons to be drawn from the Regional Greenhouse Gas Initiative (RGGI), the nation's only operational, and mandatory, cap-and-trade program.  One worth dwelling on is the effectiveness of RGGI's CO2 emissions cap.  Recent analysis suggests this cap is much too forgiving -- not just now, but, more importantly, also over the next two decades.

The whole point of the RGGI emissions cap is to create a market for CO2 emissions from power plants that will ultimately drive down those emissions over time in the most economically efficient way possible.  A relatively harder cap - one set below actual CO2 emissions, for example - should make RGGI's tradeable CO2 pollution allowances more scarce and thus more valuable to polluters, resulting in higher prices per allowance than a cap set above actual emissions would.  The key idea here is that RGGI's cap on CO2 emissions from its regulated entities - electric utilities basically - creates a new market that has the potential to push those utilities towards low- or no-carbon generation.  Where policy makers set the cap can therefore matter a great deal; a relatively tough one pushes harder than a relatively lenient one.  This chart, produced on behalf of RGGI, strongly suggests the RGGI cap is not hard enough now, nor will it be hard enough in the future:

The important lines to look at for our purposes are the dashed one - that's the RGGI cap as set by agreement of the RGGI members - and the solid black line - that's both historical and projected total CO2 emissions from RGGI's regulated entities.  You can see that presently, the cap is simply way too high (and to be fair, some of that is on purpose).  The factors behind the recent massive drop in actual CO2 emissions are several (more on that later).  The recession undoubtedly plays a huge part.  Nevertheless, the cap just does not appear to be exerting real pressure on utilities right now.  Maybe that's not a problem.  There's an argument that a soft cap is just fine early on, as we refine and tweak RGGI.  That argument might be even stronger in the current economic climate.  No need to clamp down on utilities in the midst of the recession.

So perhaps the short-term performance issues of the cap are okay to put aside for the moment.  That's not at all true for the long-term performance issues.  Here's the major problem, and one policy makers should make an urgent focus of their thinking:  According to these projections, the cap doesn't appear to really bite until maybe 2030 or later, and that's just too late in the scheme of things.  Climate science tells us we need meaningful CO2 reductions much much sooner than that to avoid catastrophic harms.  So what's the point of an emissions cap if it doesn't drive change when we need it?  It's time to give serious thought to how best to tighten the RGGI cap to make it better correspond with the scientific reality we find ourselves in.    

Posted in: Innovation & EnvironmentEnvironmental Law & GovernanceEnergy & Climate

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