On Tuesday, February 12, the Yale Center for Environmental Law and Policy invited Jeffrey Logan from the U.S. Department of Energy’s National Renewable Energy Laboratory (NREL) to present a webinar on “Natural Gas and U.S. Electric Power Futures” as part of our ongoing Policy Workshop Webinar Series on Emerging Issues in Shale Gas Development.
In his presentation, Mr. Logan discussed research that he recently completed through the Joint Institute for Strategic Energy Analysis (JISEA), a partnership between NREL and five universities, on “Natural Gas and the Transformation of the U.S. Energy Sector: Electricity.” The JISEA report helps answer some key policy questions about shale gas, including: (1) the lifecycle greenhouse gas (GHG) emissions from shale gas as compared to conventional natural gas and other fossil fuels; (2) the need for new regulations and best management practices; and (3) the role that shale gas could play in the U.S. power sector – including a transition to a clean energy future – over the next several decades.
You can watch Mr. Logan’s full presentation below, in which he discusses the potential role of shale gas in a variety of U.S. power futures (i.e., Chapter 4 of the JISEA report). You can also download his presentation slides here and the full JISEA report here.
While Mr. Logan covered a variety of potential shale gas futures, I will focus the rest of this post on the potential role of shale gas in meeting a clean energy future, which is a topic that I also addressed in a previous entry.
The Role of Shale Gas in a Clean Energy Future
If we look at clean energy within the context of climate pollution, the question of whether shale gas can play a role in a clean energy future has two parts: (1) What are the lifecycle GHG emissions associated with shale gas? (2) What effect will shale gas have on adoption of even cleaner, renewable energy, such as wind and solar? EDF’s Dr. Ramon Alvarez discussed the first issue, which is largely a question of methane leakage, with our webinar participants last fall. Because you can review his webinar and a summary of it here, I won’t re-hash methane leakage issues again in this post, but I will note that Chapter 1 of the JISEA report includes interesting new research on methane leakage, and is well worth the read.
In his presentation last Tuesday, Mr. Logan looked at the second question and presented some fascinating model results that can help answer whether shale gas is likely to coexist with, complement, or crowd out the development of renewable energy. To address this issue, JISEA modeled a power sector future subject to a Clean Energy Standard (CES), which is a policy that reduces power sector GHG emissions by requiring that a certain percentage of total power production comes from clean energy and then ratcheting up this percentage over time. A CES is similar to a renewable portfolio standard (RPS), but unlike an RPS, a CES also counts nuclear energy and natural gas toward its clean energy target.
The CES modeled by JISEA would require that 80% of all energy come from clean sources by 2035 and 95% from clean sources by 2050. Because natural gas is not carbon-free, a natural gas power plant would receive less credit toward meeting the CES targets than a wind or solar farm. The crediting system that JISEA modeled would work as follows:
- Renewable energy and nuclear energy would receive full credit (i.e., 100%) toward meeting the CES targets.
- Natural gas combined-cycle plants would receive 50% credit.
- In the future, if carbon capture and sequestration (CCS) technology is developed, then natural gas with CCS installed would receive 95% credit while coal with CCS would receive 90% credit.
- All other power plants (e.g., coal without CCS) would receive no credit (i.e., 0%).
Here’s an example: in a hypothetical year, if total power output is 100,000 MWh, of which 40,000 MWh is from renewable energy, 10,000 MWh is from nuclear, 30,000 MWh is from natural gas combined cycle, and 20,000 MWh is from coal, then the percentage of clean energy would be 65%: (40,000 * 1 + 10,000 * 1 + 30,000 * 0.5 + 20,000 * 0) / 100,000 * 100% = 65%. On the other hand, eliminating all of the coal and replacing half of it with renewable energy and half with natural gas combined cycle would raise the percentage of clean energy to 80% – i.e., the goal for 2035. The numbers here are examples only, but show that natural gas could play a role in a CES future.
In fact, JISEA’s model, which is more sophisticated than my hypothetical and, among other things, includes modeling and optimization of energy system costs, suggests that natural gas could play a key role in meeting the CES through about the year 2030. At that point, generation from natural gas would start to decline, though not disappear. As the CES targets rise, gas’ 50% credit would be too low to contribute meaningfully to the targets, and it would be necessary to replace some gas plants with even cleaner renewable or nuclear energy. (JISEA’s model suggests that renewable energy would fill in most of the gap here because it would be more economical than more expensive nuclear energy.) However, the model also suggests that CCS could become a technologically and economically viable option in later years, out past 2040, which would allow natural gas to make a resurgence later in combination with CCS, which would be credited at 95%.
Two additional modeling results are worth noting here. First, JISEA’s results suggest that meeting the hypothetical CES, including the highest clean energy targets in the later years, would increase electricity prices by only about 8-10% (to say nothing of the benefits that society would gain from cleaner energy, most notably the chance to avoid the worst potential impacts of climate change). Thus, a clean energy transition is not only environmentally necessary but also economically achievable. Second, in a separate model, JISEA looked at the potential impact of additional environmental and social protections (modeled as an increase in the price of natural gas) to reduce or eliminate many of shale gas production’s negative impacts, and found that these protections would not appreciably reduce future shale gas use. In other words, more environmentally and socially responsible shale gas production would not require an end to the shale gas boom. These results support efforts to develop shale gas in a more responsible manner, such as those discussed by Southwestern Energy’s Mark Boling in our webinar last month.
The Role of Shale Gas Today
JISEA’s modeling provides support for the idea that shale gas, if developed responsibly, could be a “bridge” to a clean energy future, but does so within the context of a yet-to-be-adopted CES. What about in the context of today’s power sector in which carbon remains a largely unregulated pollutant?
On this point, Mr. Logan provided both a pessimistic and an optimistic vision. The pessimistic vision is that without carbon policies, if natural gas prices remain low and renewable energy does not become cheaper, cheap natural gas could well stall the future development of renewable energy. Mr. Logan noted, for example, that high oil prices in the 1970s and early 1980s led to significant renewable energy growth, but when oil prices later crashed, renewable energy slowed substantially. The optimistic vision is that while natural gas prices have been low for the past few years, renewable energy – particularly wind, but also solar – continues to grow rapidly, suggesting that advancements in renewable energy technologies are simultaneously reducing the costs of renewables and allowing these clean energy sources to compete in the marketplace.
Whether current trends will continue, however, is hard to know, and while JISEA’s models suggest that shale gas could possibly play a role in a clean energy future, getting there efficiently and in time to avoid the worst impacts of climate change will almost certainly require policies that account for the full climate impacts of our energy choices.
Next Time in Emerging Issues in Shale Gas Development
The Emerging Issues in Shale Gas Development webinar series will next consider shale gas issues from a state perspective with a presentation by Tom Hunt from the State of Colorado’s Energy Office on “The Future of Oil and Gas Production in Colorado.” Mr. Hunt’s webinar, which will take place on Thursday, March 7, from 1-2pm EST, will examine the history, economic impacts, policy responses, and future of oil and natural gas production in Colorado, and will focus on how Colorado is seeking to access the economic and energy security benefits of oil and gas production while honoring the environmental protection and diverse property uses that the state’s citizens value.
To register for this webinar, please click here. As always, the webinar will be free and open to the public, but registration is required to participate.
The Environmental Performance Index (EPI) featured prominently in the recent debate between Peter Foster and David Boyd in Financial Post (The nature debate part 1 and The nature debate part 2, January 25, 2013).
Over the past ten years the EPI has used measureable environmental information to rank countries based on their environmental performance. The EPI team from Yale and Columbia universities pores over data on the environment, comparing it with wealth, governance, and trade, among many other aspects of well being. First and foremost, we have learned that these relationships are complex, and that a few lines of text often lose the larger message in the data. The debate between Messrs. Foster and Boyd is no exception, and in this case, losing the message of the EPI means losing perspective on the nature of Canada’s environment and economy.
Wealth and the environment
Both Foster and Boyd reference theories on the relationship between wealth and the environment, with Foster arguing the two variables are correlated and Boyd questioning the strength of that relationship. The EPI provides some real-world insight.
EPI data show that although there is a relationship, a nation’s wealth only marginally explains its final EPI ranking. This means that there are other important factors influencing environmental performance. Put differently, economic development matters, but other factors are more important. Although we have not identified every variable, we are confident that environmental performance is not an accident of history and factors such as pragmatic and enforceable environmental safeguards are key.
Foster notes that Canada scores poorly in the overall EPI and blames our devotion “to official climate alarmism,” arguing that we weigh the Climate Change and Energy category of the EPI too heavily. While Canada does rank 102 out of 132 countries in the Climate Change and Energy analysis, Brunei Darussalam, Czech Republic, Luxembourg, Netherlands, Poland, and Taiwan all manage a better overall EPI rank with a lower Climate score. Furthermore, the Climate Change and Energy category actually receives less weight in the 2012 EPI than it did in 2010—a decrease from 25 percent of the overall EPI score to just 17.5 percent.
In addition, we have anticipated much of Foster’s climate-related concern by choosing CO2 emissions measures that account for his critiques— specifically, differences in wealth and in country size. The EPI indicators that address these concerns are CO2 per GDP (to account for differences in wealth between nations) and CO2 per capita (to account for differences in population size between nations). In the future, perhaps we can cut countries like Canada slack on account of higher latitudes and greater needs for heating—though energy needs for cooling in lower latitudes might balance the equation.
Foster is also concerned that our Environmental Health objective is not weighted as heavily in the final EPI score as its counterpart objective of Ecosystem Vitality. His concern is valid. Throughout the development of each edition of the EPI we consult with science and policy experts to fine-tune our methodology, and a departure from equal weights within the EPI framework is a signal that we have picked up on something important. It turns out that equal weights do not necessarily mean equal influence (something we discuss briefly in the blog post “the Science and Art of Quantification” and in our upcoming manual “How to Build Green Indices: Learning from the Experience of the Environmental Performance Index”).
For the 2012 EPI, a 50-50 weighting for Environmental Health and Ecosystem Vitality meant that the overall EPI scores were too heavily influenced by performance in the Environmental Health objective alone because of its wider distribution. Countries that perform high in the Environmental Health objective were likely to perform better in the overall EPI, regardless of their scores in Ecosystem Vitality. Both Health and Ecosystems are important and we adjusted the EPI weightings to correct for this imbalance.
Finally, Mr. Foster brushes off the significance of the Environmental Performance Index because of its “murky metrics.” The response here does not require any complicated analysis. Our entire process, from data to methods to the final ranking, is entirely available online and is free and open to the public. Nothing could be less murky. Any journalist, researcher, or policymaker who wishes to dive in is more than welcome, and we are here to help.
On that note, to Messrs. Foster and Boyd: we would like to invite you both to serve on our expert panel for the 2014 EPI. You’ll find that it’s a dynamic group of scientists and practitioners, ready for debate, eager to prepare the best set of tools possible for policymakers.
An article in a recent issue of The Economist suggests that putting effort into domestic climate change legislation is more important than pushing international climate agreements right now. The piece describes the results of a new study that assesses whether the climate change policies of 33 countries have improved, gotten worse, or remained the same as of the end of 2012. The encouraging results indicate that domestic policy action is happening even in the absence of a mandated treaty structure.
This ought to bring hope to environmentalists who advocate for a more decentralized approach to climate change policies. It should also appeal to those who bemoan the apparent political impasses of the international U.N. climate negotiations.
The new study—the third in a series by GLOBE international—was extolled by Christiana Figueres, the Executive Secretary of the UNFCCC, the U.N. body that coordinates global climate change agreements. She attended the release party for the report in London this January and issued an official statement, in which she said, “[D]omestic legislation on climate is the absolutely critical, essential linchpin between action at the national level and international agreements.” At the same time, she remarked that the ultimate goal of the study should be that it paves the way for the next U.N. climate treaty that’s supposed to be agreed upon by 2015, to take effect by 2020.
The U.S. National Climate Assessment report came out just as recently from the U.S. government. Also in its third iteration, the Assessment is open for public review until April 2013. Perhaps in a complementary way to the GLOBE study, the US Assessment focuses more on the science and evidence of climate change for one particular country and broadly touches upon the policy situation as well. Similarly, the conclusion of the report states that more U.S. policy action is necessary, but that concerted global actions would be the best way to go forward.
Both reports seem to suggest, then, that domestic policies are necessary, but not sufficient, to achieving the ultimate goals of climate action.
This is a familiar problem in the global climate policy debate: should governance move from the top down or the bottom up to reach desired outcomes? And, should success rely on individualistic actions or, rather, support from movements in concert? These tensions are the fuel for geopolitics and have led to both progress and paradox.
The need for harmonized policies in the face of trying times reminds me of a passage in The Federalist. John Jay, writing to newspapers in 1787 to argue for the adoption of the new Constitution, argued that it’s beneficial for a central government, when concerned about national defense, to “move on uniform principles of policy.” The case certainly has been made for treating climate change as an issue of national security; many politicians have already argued that climate change poses that kind of threat to the United States (both John Kerry and the US Navy have issued public statements). In this case, perhaps its management should be approached in terms of coordinated policies with the kind of logic articulated in The Federalist:
Who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence? Various difficulties and inconveniences would be inseparable from such a situation; whereas one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people.
--John Jay (Federalist No. 4, available online http://avalon.law.yale.edu/18th_century/fed04.asp)
As John Jay tells us, these debates are not new. The new climate reports show that the world’s countries do behave in the manner similar to Voltaire’s Candide, tending their own gardens; but, at the same, the reports remind countries to keep in mind that the end goal is to use those piecemeal gardens to make the wider world greener.
The Economist. “Climate-change laws: Beginning at home.” 19 January 2013.
BBC News. “Climate change measures: Report praises politicians.” 13 January 2013. http://www.bbc.co.uk/news/science-environment-20983931
The 3rd Climate Legislation Study from the Global Legislators Organisation (GLOBE International).
Homepage of GLOBE International: http://www.globeinternational.org/index.php/legislation-policy/studies/climate
UNFCCC statement from Christiana Figueres. 13 January 2013. http://unfccc.int/files/press/statements/application/pdf/201314011_globe_international.pdf
The U.S. National Climate Assessment, draft for public review. 2012.
A conservation easement is a legally binding agreement that prevents most development on a parcel of land. For instance, a landowner might place a conservation easement on their undeveloped waterfront property, requiring that the property is never developed for commercial purposes. The easement is a tool that has long been an important part of environmental protection, but it does have its downside: typically a property is taxed based on its highest possible use, not on its actual use. A swath of land on the outskirts of a city center, for example, has enormous value as a commercial development. The land may be undeveloped and producing no income, but the owner must still pay taxes for the high commercial value. This tax liability incentivizes development because landowners need to pay taxes one way or another.
In 2008 the Santa Fe Conservation Trust in New Mexico was faced with this very problem. The Trust became the new owners of a pristine parcel of land in the Pecos River Canyon in San Miguel County and their ownership included a conservation easement requiring them to hold and maintain the property for conservation purposes. The tax department wanted to assess taxes on the land, but the Trust pointed out that New Mexico’s constitution has a unique provision which states that “all property used for… charitable purposes… shall be exempt from taxation.”
On January 11, 2013 a court in New Mexico agreed with the Santa Fe Conservation Trust that environmental conservation is a charitable use, which provides a substantial benefit to the public. As such, the Trust is not required to pay any property taxes on this property.
This particular rule—that land held for conservation purposes may be exempt from all property tax—is unique to New Mexico, but the way in which it incentivizes conservation should still be good news to environmentalists. The way in which it further reduces taxation should be good news to tax-averse conservatives.
On Wednesday, January 23, Mark Boling, President of V+ Development Solutions, a division of Southwestern Energy Company, kicked off the spring line-up of our 2012-2013 Policy Workshop Webinar Series on Emerging Issues in Shale Gas Development with a presentation on “Balancing Environmental, Social and Economic Impacts of Shale Gas Development Activities.”
In his presentation, Mr. Boling provided both a defense for continued shale gas development and an acknowledgment that the gas industry needs to do a better job, on the whole, of acknowledging and addressing legitimate environmental concerns. Toward this end, he discussed Southwestern’s efforts to: (1) study the rate of methane leakage from shale gas wells in collaboration with the Environmental Defense Fund (EDF) and others (their final report is due out soon); (2) work with EDF to develop and promote a model regulatory framework for states to ensure proper well integrity; (3) develop improved well cementing technology with the University of Houston and CSI Technologies; (4) with help from The Nature Conservancy, train employees and contractors to reduce erosion and sedimentation impacts from project sites; and (5) develop new tracer technology with Rice University to help detect hydraulic fracturing fluids if they migrate into groundwater.
You can watch Mr. Boling’s full presentation below, in which he further discusses Southwestern’s views on the shale gas debate and the company’s vision of environmental responsibility and regulation.
In listening to Mr. Boling’s presentation and his responses during the subsequent Q&A, three things struck me as particularly important issues for regulatory discussions:
(1) “A Level Playing Field” – Mr. Boling noted that Southwestern strongly supports adoption of the model regulatory framework that it has developed with EDF. But he also stressed the need for a level playing field, suggesting that even companies interested in doing “the right thing” may hesitate to implement best environmental practices if doing so makes them less competitive. Companies may not always seek the lowest denominator – Mr. Boling noted that many implement best practices that go beyond regulatory minimums – but without effective regulatory safeguards, economic pressures will make it difficult if not impossible to address environmental concerns fully, even with good actors.
(2) “Straight Talk” About Regulations – In discussing what he sees as a need to “refocus the debate,” Mr. Boling recommended that his industry spend less time trying to minimize public concerns and more time communicating about the real risks involved in shale gas development and what the industry is doing to mitigate these risks. For example, during the Q&A, Mr. Boling noted that he has split with those in his industry who argue that “green completions,” which help reduce or eliminate air pollutant emissions from new shale gas wells, are too costly. New regulations adopted by the U.S. Environmental Protection Agency (EPA) last year will require green completions of all new hydraulically fractured wells by the year 2015, though Southwestern has begun this process early by participating in EPA’s Natural Gas STAR Program. Mr. Boling noted that a few years ago, green completions cost his company $20,000 more per well than simply venting pollutants to the air, but these costs have since fallen significantly, and now green completions are often profitable investments because they capture natural gas that can be sold rather than wasted. Notably, these economic benefits are purely private and do not take into account the additional public benefits that arise from reduced air and climate pollution.
Companies such as Southwestern deserve credit for leading environmentally through the Natural Gas STAR Program and other such initiatives. Southwestern’s experience also reinforces the observation that the costs of regulatory compliance are often much less than originally anticipated as new technologies and solutions develop or become cheaper to implement over time (see, e.g., here, here, and here).
(3) Politics and Science – Mr. Boling lamented what he sees as too much politics in shale gas regulation and not enough regulation based on sound science and risk assessments. The goal of science-based (or scientifically informed) regulation is a good one, and it is true that some parties on both sides of the shale gas debate have stretched the science too far in support of their agendas. As more research is published – including studies involving Southwestern – these data will hopefully contribute to an improved public understanding of shale gas’ environmental risks and impacts as well as its potential benefits.
But it is also true that science cannot, on its own, determine the best regulatory approach when faced with uncertainty or questions of socially acceptable levels of risk. Decisions about whether to move forward with resource development or to wait for science (and policy) to catch up to practice are inherently political, and thus politics will continue to play a role in determining how shale gas fits into the future energy mix.
In the context of climate change, for example, it is indisputable, scientifically, that burning fossil fuels, including shale gas, contributes to a warming planet. Yet there is a debate as to whether shale gas will exacerbate this warming in the long run or instead help reduce the total warming by helping transition us away from coal and, eventually, to carbon-free energy. Ultimately, the outcome of political decisions about energy investments and environmental risks will determine whether the former or the latter is true. Sound science, including climate science, must be a key component of these decisions, but resource outcomes and policies are rarely pure questions of scientific fact. Politics will play a role.
Next Time in Emerging Issues in Shale Gas Development
The Emerging Issues in Shale Gas Development webinar series will continue on Tuesday, February 12, from 2-3pm EST with a presentation by Jeffrey Logan from the U.S. Department of Energy’s National Renewable Energy Laboratory (NREL) on “The Role of Natural Gas in U.S. Electric Power Futures.” Mr. Logan will present research from a report he recently co-authored through the Joint Institute for Strategic Energy Analysis, an initiative between NREL, the University of Colorado-Boulder, the Colorado School of Mines, Colorado State, M.I.T., and Stanford.
To register for this webinar, please click here. As always, the webinar will be free and open to the public, but registration is required to participate.
The tiny island nation of New Zealand once again received a disproportionally large amount of media attention when the prominent and widely respected economist, Gareth Morgan, revealed his solution for saving the country's dwindling diversity and abundance of native birds: banning all cats, household or feral, in the entire country. His reason is simple. Cats are natural-born serial-killers of native birds – they have contributed to the extinction of nine birds species -- so eliminating these furry mammals would save the avian population from ruthless paws and jaws. The controversial campaign – “Cats to Go” – has been widely reported in global media outlets such as New York Times and Huffington Post.
Proponents of the proposal underscore the necessity of protecting native species at all costs, and the naysayers ridicule this idea as radical and “over-the-top.” As the New Zealander-in-residence at the Yale Center for Environmental Law and Policy (YCELP), I have been asked on numerous occasions for my position on this issue. This blog is my response (and everybody can stop bothering me now).
While I agree with Morgan on the potential benefits of his proposal, I have my reservations. My reason is also simple: it is not because I hate the native birds. In fact, I have supported their conservation efforts for a long time through volunteering on an offshore bird sanctuary island. Rather, I am simply unsure about the practicality of a non-differentiating, nationwide feline ban, especially given the potential scale of the policy instruments required to implement the ban, as well as the constraints on the current political resources.
For those not familiar with New Zealand, the country has one of the highest cat ownership rates on the planet, with 28 percent of households owning one cat, and a further 20 percent owning two or more. This means cats form an integral part of nearly half of the families in New Zealand. The fact that cats as pets can provide intimate and tangible comforts and joy is deeply ingrained in this country’s culture. In contrast, the native birds are generally more elusive, and the more intangible ecosystem services they provide are very poorly appreciated by everyday New Zealanders. So I suspect that many more people would value the companionship of their cats over the existence of some native bird species that they probably will never see, as sad and cruel as this may sound. And, unfortunately, this conflict of personal and societal interests likely would make the ban very unpopular among the mainstream, at least in the short-term. As a matter of fact, despite the international publicity, a week into its launch Morgan’s campaign has only managed to attract around 2,000 signatures, equivalent to 0.04 percent of NZ’s already small population.
From the government’s perspective, it is wise not to invest limited resources in policies unlikely to attract supports. Furthermore, alternative bird-saving options are available and are far less controversial: elimination of other predators such as possums and weasels, implementation of breeding programs, construction of pest-free sanctuaries, just to name a few. If these bird species remain endangered, the government could even consider striking a middle ground and impose some type of cat controls, such as restricting household cats to indoors while eliminating feral cats, for example. Conversely, a single-minded pursuit of a “home-run” is, in my mind, counterproductive, and will likely end in a lose-lose situation for both the campaigners and the birds they are trying to protect.
Interested in invasive species management? Attend the YCELP’s panel discussion, “Eating Invaders: A Panel Discussion on Invasive Species”, which will be held at Yale Law School at 6:10 pm on February 13.
William Miao is a first-year Master of Environmental Management (MEM' 14) candidate at the Yale School of Forestry and Environmental Studies. His research focus is on the application of integrated environmental tools and frameworks at corporate, industrial, and national levels. Originally a chemical engineer from Auckland, New Zealand, his previous work involved risk management for oil and gas production, waste to energy research, and life-cycle assessment for the steel industry.
The following is a guest post by Yale Law Student Nathaniel Loewentheil. Nathaniel recently authored a report for the Institution for Social and Policy Studies, which this post summarizes. You can find the full report here.
Two new reports out from NASA and the National Oceanic and Atmospheric Administration add to the ponderous weight of evidence suggesting that our climate is changing more rapidly than we had anticipated – and with greater consequences.
This makes for reconciling two difficult truths: first, that climate change is already affecting all of our lives, and second, that our national political institutions are doing nothing to address it. They’re not now, and they won’t be for the next few years. The environmental movement is almost completely sidelined by a recalcitrant and increasingly conservative Republican Party and, we must admit, a public concerned more with daily economic necessities than long-term ecological challenges. When that movement will again be able to capture public attention is difficult to say.
In the meantime, the movement is biding its time and plotting strategy for the future. Before it looks forward, however, it must necessarily look back at the most recent climate campaign: the failed push for a cap-and-trade bill in 2009 and 2010.
In a new report out this week from Yale’s Institution for Social and Policy Studies, I take a look at that climate campaign using historical trends in political parties, voting records, natural resource distribution and a variety of other indicators.
The report has two key findings. First, and unsurprisingly, there were a variety of forces that together blocked cap-and-trade legislation, from energy interests and political geography to polarization and the recession.
But, I believe, defeat was not inevitable.
To see this, all we have to do is look at the Affordable Care Act of 2010. The fact that a major healthcare reform bill got through Congress suggests that the climate movement might have succeeded, recession and the Tea Party notwithstanding.
Comparing the two campaigns, a key difference emerges. The healthcare campaign succeeded by combining a sophisticated insider strategy with large-scale organizing. The climate campaign, in sharp contrast, had an insider strategy only. Through the US Climate Action Partnership, organizations like Environmental Defense Fund and Natural Resource Defense Council built an impressive coalition of NGOs and corporations and laid out the policy framework ultimately embedded in the Waxman-Markey bill. But the campaign didn’t build a grassroots network or attempt to win over public opinion. In this, it erred dramatically.
I also looked back at the history of environmental policymaking, from the Wilderness Act of 1964 up through the Superfund Act of the late 1980s. In case after case, the same lesson was clear: major environmental legislation can only succeed when an organized movement makes demands and the public voices its approval. Lacking both street power and endorsement by the polls, the climate campaign was doomed to a slow death in the Senate.
The bright side is that a careful analysis of the failure of the climate campaign provides a clear lesson for the future. The movement needs to begin investing in local and state organizations that can build a strong, enduring network of activists ready to spring into action the next time a realistic climate bill is on the table. Organizing, of course, is built around action – and now is a good moment to be running campaigns at the municipal and state level for energy efficiency measures and tax breaks for green technology.
But that’s not enough. The movement also needs to begin shifting public opinion. And to that end, we need a new generation of journalists who, like Rachel Carson, can capture the hearts of Americans, not just their minds.
Read the full report here.
Doha, the capital of Qatar, is a glamorous construction – built entirely over the last 50 years – with an extravagant skyline where desert dunes meet the Persian Gulf. Attending the world’s biggest climate meeting there, the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC), was a surreal experience. The glamor of the convention center, the deference with which our hosts treated the 9,000 COP participants, and the adrenaline needed to keep up with the chaotic schedule distracted me from the reality of the situation: we were convened to negotiate an existential threat.
With support from the Yale Center for Environmental Law and Policy (YCELP), I had the good fortune of attending the convention and I did it wearing two hats. The objectives of each hat were even somewhat contradictory in nature, which, in the end, reflected my conflicting sentiments toward the multilateral climate negotiations and particularly the role of small island states.
I am enrolled in an environmental protection clinic at Yale Law School, and I work with Islands First, a New York-based non-profit organization with a small staff and a mammoth objective: to build the capacity of the Alliance of Small Island States (AOSIS), one of the groups most vulnerable to climate change. A conundrum of the negotiation process is that the most vulnerable countries generally have the least capacity to influence the negotiations. Small island countries, for example, may arrive with a delegation of six while the United States arrives with a delegation of 75. The diplomatic schedule is as demanding as it is confounding with plenaries, informals, informal informals, and drafting groups occurring simultaneously in multiple tracks, small delegations struggle to leverage their voice. Islands First helps to remediate this discrepancy by coordinating extra hands and interns such as myself to cover AOSIS priority meetings and provide research as needed. By strengthening representation, Islands First strives to bring about meaningful environmental policy reform.
In addition to my role with Islands First, I was at COP to organize an event that explored alternative routes to reducing greenhouse gas emissions, culminating a semester of research by students in the Yale Law School course, “Climate Change and the International Court of Justice”. The Ambassadors for Responsibility on Climate Change, or ARC, in 2011 began an initiative to request an advisory opinion from the International Court of Justice (ICJ). The initiative sought a judicial opinion to define a state’s responsibility to reduce harmful greenhouse gas emissions based on established international legal concepts, including the precautionary principle and the prevention of transboundary harm (for an explanation of these legal concepts, please see Christophe Schwarte’s presentation and the ICJ summary brochure).
The event featured presentations on this subject from four diverse panelists (bios provided below). ARC member Ambassador Lima of Cape Verde brought a humanitarian vision that emphasized, “We are all neighbors with joined doors” as a reminder to value solidarity. The Ambassador referenced the extreme vulnerability of small islands and least developed countries as constituting a right to ask the ICJ for an advisory opinion on state responsibility to reduce emissions.
Attorney Christophe Schwarte, executive director of the Legal Response Initiative (LRI), presented an expert’s technical evaluation of the initiative. His critical appraisal recognized that an ICJ advisory opinion is not the “silver bullet” to reducing emissions. However, the presentation’s message was that the initiative passes the legal litmus test for an audience before the ICJ. Schwarte concluded that the action would have important benefits, such as increasing public awareness and responsibility, activating political pressure, and establishing “building blocks” for principles of international environmental law, particularly in relation to the atmosphere.
For Professor Michael Dorsey, the ICJ initiative embodies proactive action to reinvigorate the “low-intensity, politically possible, morally bankrupt conversations” of climate negotiations. This revision of the negotiation process could be achieved through an ICJ opinion that, if favorable, could create a paradigm shift towards a new international norm against greenhouse gases.
Yale School of Forestry & Environmental Studies’ student Dustin Schinn explained why an advisory opinion would be in the interest of all nations, including the biggest polluters and particularly the United States. An advisory opinion, Dustin explained, would reinforce the rule of law in responding to the international threat of climate change, and in the past the U.S. has been a proponent of such interventions. Furthermore, the economic costs of inactions in addition to the threat of climate change to international security and by extension U.S. national interest call for timely and effective action.
The four diverse perspectives – humanitarian, activist, student, and legal expert – resulted in a thought-provoking dialogue, evidenced in the post-presentation enthusiasm where the audience went to meet and greet the panelists. The event was a great success, and an encouraging symbol of the growing interest in the initiative, for which YCELP and Yale Law School are providing critical momentum.
Over the last twenty years, COP accomplishments in qualitative terms are at best modest compared to the urgency and scale of action required to prevent warming of a 3- to 5-degree magnitude. The plight of small islands continues to be largely overlooked, despite the efforts of groups like Islands First. I ponder that perhaps by attending the COP, these vulnerable island states are not only distracting from other efforts, but they are supporting a process in which a worthwhile outcome is politically infeasible. We might, therefore, ask: would islands be better served by not participating in the COP at all and focusing attention elsewhere? And within the negotiations, would their abstention be louder than their input?
Ambassador Stuart Beck of Palau, a small island in the Pacific, is an informed objector to the process. I can’t help but walk away from the 18th COP admiring the Ambassador’s decision, given my own growing feeling that the negotiation outcomes are pre-ordained by the specific instructions assigned to the negotiators from their country leaders back home. If this is truly the case, then through participation alone small islands are validating a broken process. Their validation of the negotiations is important because their sheer numbers help make the COP a democratic and representative process – what deficits there may be in size and resources, small islands make up for in numbers, as AOSIS represents 20 percent of total UN membership. Furthermore, small islands command a moral authority in the negotiations, which stems from extreme vulnerability to the issue at hand. This moral high ground is leveraged throughout the negotiation process through passionate interventions – for example, in Doha, the Philippines appealed to negotiators after their country was struck by a devastating typhoon during the COP.
By abstaining from the negotiations, small islands would send a very clear signal to the international community, that the negotiations have failed to reduce emissions in a timely fashion to prevent severe, sustained, and detrimental impacts to small island nations. Scientific research supports this statement, as the fourth report by the Intergovernmental Panel on Climate Change (IPCC) identified a global peaking year of 2015 in order to mitigate the worst of the effects for island states. Proactive and creative alternatives, such as the ICJ advisory opinion, will become increasingly viable as the COP negotiations fail to deliver a meaningful reduction in emissions year after year. Given their vulnerable position, it is likely that small island states, and their sympathizers and supporters, will have to pioneer a pathway forward.
Biographical information for the moderator and four speakers on the ICJ panel
Moderator: John Foran
Dr. John Foran is Professor of Sociology and Environmental Studies at the University of California, Santa Barbara, and co-Director of the International Institute of Climate Action and Theory, or iicat.at.
Ambassador Antonio Lima
Ambassador Antonio Pedro Monteiro Lima is the Permanent Representative of Cape Verde to the United Nations. Prior to starting his current appointment in 2007, Ambassador Lima was the Political and Diplomatic Adviser to the President, a post he held since August 2001, while serving concurrently as the Head of State’s Permanent Representative to the International Organization of La Francophonie and Chairman of the National Francophonie Committee. From January 1999 to June 2001, he was stationed in Lome, Togo, as Director of the Communications, Compensation, and Development Fund of the Economic Community of West African States (ECOWAS). He was the Fund’s Secretary-General from June 1992 to December 1998. He was Secretary of State for External Affairs and Emigration from 1990 to 1991, and served as Director-General for Political, Economic and Cultural Affairs in the Ministry of External Affairs between 1988 and 1990. From 1985 to 1987 he was the Diplomatic Adviser to the Presidency.
Attorney Christophe Schwarte is the Executive Director of the Legal Response Initiative (LRI) - a network of lawyers that provides free legal advice to developing countries and observer organisations in connection with the climate negotiations. Before joining the Legal Response Initiative, Christophe worked as a senior lawyer at the Foundation for International Environmental Law and Development (FIELD) and served with the International Tribunal for the Law of the Sea for over six years. Christophe is a qualified lawyer with over 12 years of practical experience in different arenas of international environmental law. He holds an LLM from the School of Oriental and African Studies and is a member of the International Law Association's Committee on the Legal Principles related to Climate Change.
Dr. Michael K. Dorsey is Visiting Fellow and Professor of Environmental Studies in Wesleyan University’s College of the Environment and serves as a Director on the Sierra Club’s National Board. From 2010 to 2012, Michael was the Director of Dartmouth College’s Climate Justice Research Project. For more than two decades Michael Dorsey has provided strategic guidance and advice to governments, foundations, firms, and many others on the interplay of multilateral environmental, climate, and biodiversity policy, including for the Clinton administration. He was a member of Senator Barack Obama’s energy and environment Presidential campaign team, and in 2010, Lisa Jackson, the head of the US Environmental Protection Agency, appointed Michael to her National Advisory Committee. Professor Dorsey’s highly cited work seeks to understand how institutional and organizational behavior explain and inform efforts to manage the environment and to effect a just transition to sustainable development.
Dustin Schinn is a second year Master’s student at the Yale School of Forestry & Environmental Studies where he focuses on the economics, international policy and governance of climate change. Previous to that, he conducted research in the field of physical environmental sciences at the Potsdam Institute for Climate Impact Research, the Northern Rivers Institute, and the Smithsonian Tropical Research Institute. He became especially interested in sustainable development and climate change through his recent internships at the Permanent Mission of Germany to the United Nations and at the Global Environment Facility. For more information please refer to http://environment.yale.edu/profile/dustin-schinn.
This post originally appeared on ChinaFAQs.
Although major greenhouse-gas emitting countries were criticized at the latest round of climate negotiations in Doha for failing to show enough ambition, an event held during the second week highlighted leadership from Germany, China, Morocco, and South Africa on clean and renewable energy. Hosted by Peter Altmaier, Federal Environment Minister of Germany, and moderated by the President of the World Resources Institute, Andrew Steer, the panel also included Xie Zhenhua, Vice-Chair of China’s NDRC, Nandi Mayathula Khoza, Minister of Agriculture of South Africa’s Gauteng province, and Fouad Douiri, Morocco’s Energy and Environment Minister.
At first glance, the mix of countries featured at the high-level event is both surprising and unsurprising. Germany is known for being a global leader in renewable energy. Last year it reduced CO2 emissions 2.4 percent from 2010 levels, and this year boosted the amount of electricity generated from renewable sources from 20 to 25 percent in the first six months. The move away from nuclear power generation following the Fukushima-Daichi disaster has certainly accelerated Germany’s push for having a greater share of its electricity generated from renewable sources; however, this impetus has been matched by leadership from senior officials to maintain Germany’s status as a clean-energy front-runner.
“We organized this event to explain that we are not alone in the universe,” Minister Altmaier said. “What is not so well-known is that many countries around the world have similar efforts and ideas and a lot has been achieved over the last couple of years.”
China discusses achievements, challenges of equitable low-carbon domestic growth
Included in this group of countries is China, which opened the side event with prominent mention of its recent achievements with respect to increasing consumption of non-fossil energy. Minister Xie touted the rise of non-fossil sources in China’s energy consumption to 8.1 percent in 2011 and 27.7 percent of installed power generating capacity using non-fossil sources, among other figures. While Germany may surpass China in terms of installed solar capacity, China led the world last year in constructing on-grid wind power capacity, with an increase of 16 million kW and generating 80 billion kWh. Many of these statistics came from China’s recent Climate Change White Paper, which was released in advance of the Doha meetings.
Minister Xie also mentioned the development of low-carbon growth models in five provinces and eight cities across China, which he stressed is challenging given the “uneven economic development” amongst provinces. He even referenced the application of the principle of Common but Differentiated Responsibilities to allocate differential low-carbon targets to these various models – a comment that brought some levity to one of the most contentious issues between developing and developed countries in Doha.
Morocco designs to become net exporter of clean energy
Perhaps the most surprising case of the evening came from Morocco’s Minister Douiri, who announced that his country is striving to become a net exporter of clean energy. This goal is challenging, considering Morocco currently spends about US$11 million (11 percent of the country’s GDP) to import around 95 percent of its primary energy. From an energy strategy issued in 2009, Morocco’s goal is to have 42 percent of its installed generation capacity by 2020 come from renewable sources. 2,000 megawatts will come from solar; 2,000 megawatts from wind, and more than 2,000 megawatts from hydro. Minister Douiri expects that they will be able to avoid 10 million tonnes of CO2. To place these goals into perspective, in 2009 only 4.9 percent of its total energy supply was renewable.
While Minister Douiri did not provide full details as to how the country aims to achieve these goals, he did mention strong support from E.U. partners France and Germany, as well as integration into regional markets that will allow Morocco to export its energy to cover some of the costs. Such efforts were praised by WRI President Andrew Steer, who said that Morocco’s clean energy generation costs are 10 cents per kWh less than what was being predicted a year ago.
“You’re driving down costs, generating 60,000 jobs, and on the way to becoming a major exporter of clean energy,” Steer added.
South Africa challenges itself to reduce reliance on coal
Such a model – if successful – could have lessons for South Africa, which arguably has the most challenges ahead in terms of sustainable energy generation. South Africa has the 14th-highest GHG emissions in the world and one of the most energy-intensive economies due its reliance on mining and minerals processing, as well as coal-intensive electricity generation. According to the International Energy Association, over 90 percent of the South African electricity supply comes from coal, compared to around 65 percent in China and 42 percent in the United States. Therefore, South Africa has more ground to cover, although Minister Khoza did state the country’s goal for 42 percent renewable electricity generation by 2030, reducing the coal-based portion to 15 percent. A mix of public and private funds will help to achieve goals of installing 1 million solar water heaters by 2015 (to date, over 300,000 have been installed); as well as the Khi Solar One Project, which will generate 50 MW of power and create 1,400 jobs.
While South Africa’s commitment was palpable through the words of Minister Khoza and the fact the country hosted last year’s climate summit in Durban, there is no doubt that it will be difficult for the country to meet these goals. In the 2012 Environmental Performance Index, South Africa ranked last amongst countries in Sub-Saharan Africa, in large part due to its poor performance on climate change indicators and renewable electricity generation. Unemployment rates in the country are also at a staggering 25 percent, which is why Morocco’s model of clean energy job creation is particularly relevant for South Africa.
Meeting challenges through teamwork - a Renewable Energy Club?
These evident linkages between the countries present at the event are the foundation for a “renewable energy club,” as Minister Altmaeir dubbed it in the conclusion of his remarks.
“At least 118 countries worldwide have national targets for renewables,” he said. But there are very real challenges to achieving these goals, including how to reduce the costs of integration and installation, how to make investments in renewable energy more attractive worldwide, and how to give a competitive advantage to countries in a “club” for countries like those present on the panel that are proactive and demonstrate leadership. Such a club could foster much-needed alliances in “political and financial power,” in Altmaeir’s words, as well as sharing of concrete tools and strategies. His vision would include annual meetings of club member countries, in parallel fashion to the UN climate negotiations, which are often mired in nuanced technical and legal discussions, as was the case in Doha.
It was refreshing to see a diverse range of countries who are at various points in their sustainable energy trajectories discuss in Doha not only their current actions, but also future plans to tackle climate change through renewable energy. While the Doha talks were not expected to and did not result in much game-changing action, perhaps this idea of a “renewable energy club” for countries will gain traction and be a viable platform by which major emitters can raise the much-needed ambition to combat climate change.
“This event illustrates a potentially game-changing trend: leaders who are impatient with the formal processes forming alliances with others who want to act rather than talk,” reflected Steer. “This is a hugely encouraging development, and one that can in turn, by demonstrating that success is possible, encourage more ambition in the formal negotiating process.”
On December 5, as part of the Yale Center for Environmental Law and Policy’s ongoing webinar series on Emerging Issues in Shale Gas Development, Florida State Law Professor Hannah Wiseman provided a comprehensive overview of the current legal regimes governing shale gas development, including state and federal statutes, local zoning, agency directives, and the common law.
While shale gas is currently regulated at each of these levels, Professor Wiseman emphasized that states are the central hub in this process because states typically issue the primary permits required to develop shale resources. A significant issue, which Professor Wiseman referred to as the “elephant in the room,” is whether the federal government or the states should take the lead in regulating hydraulic fracturing. (And what the role of local governments should be.) Ultimately, Professor Wiseman suggested that states should continue to play a major role, but she believes that efforts are needed to improve and, to at least some extent, standardize current state regulations.
In her presentation, Professor Wiseman addressed regulatory issues at each phase of the shale gas development process, including regulation of seismic testing, development of access roads and drilling sites, drilling and casing of wells, storage and disposal of drilling waste, water withdrawal, hydraulic fracturing, flowback water, and gas venting and flaring.
This blog focuses on a few regulatory issues that Professor Wiseman discussed in the context of well drilling and casing and hydraulic fracturing. Professor Wiseman’s presentation slides and a recording of her full presentation on "Understanding and Improving Regulation of Shale Gas Development" are available here and here, respectively.
Regulating at the Drilling Stage: Well Casings and Groundwater Contamination
Preventing groundwater contamination is a high priority in shale gas regulation and requires, among other things, effective standards for well casings. In fact, Professor Wiseman noted that one of the most contentious issues that has arisen in shale gas development—the potential for methane contamination of drinking water—is primarily an issue of well drilling and casing rather than of hydraulic fracturing. (Though the term hydraulic fracturing or “fracking” is sometimes used imprecisely to refer to all stages of shale gas development, hydraulic fracturing is but one stage in the process.)
In regulating groundwater pollution from faulty well casings, Professor Wiseman noted that it is crucial to obtain baseline data. If shale gas wells are improperly drilled and cased, groundwater can be contaminated by methane and other pollutants, such as iron, manganese, and dissolved ethane. However, because some groundwater sources have naturally elevated levels of these substances, elevated levels alone are not conclusive evidence of well-related pollution. To address this issue, several states have begun to require water testing both pre- and post-drilling to verify whether well-related contamination of groundwater has occurred.
Due to the so-called “Halliburton Loophole,” which exempts hydraulic fracturing from the federal Safe Drinking Water Act (exept where drillers inject diesel fuel), states are now almost entirely responsible for addressing drilling and fracturing-related groundwater pollution, such as by ensuring that wells are properly cased and cemented. Some states have filled this gap by regulating the types of casing materials that can be used, requiring bond logs, specifying minimum pressures that casings must be able to withstand, setting lengths of time that casings must set before wells can be used, and establishing minimum depths that casings must extend below groundwater.
One regulatory dilemma that Professor Wiseman highlighted is that many states currently apply only narrative standards to shale gas activities. While narrative standards may, on their face, require that certain environmental goals be met (e.g., no leakage from well casings), such standards do not prescribe specific measures (or technologies) to meet their goals, and this lack of implementation guidance can sometimes be problematic for regulators, who must issue permits and assess compliance.
Regulating at the Fracturing Stage: Surface Spills, Air Pollution, and Blowouts
At the hydraulic fracturing stage, one issue that has received considerable public attention is whether or not operators should be required to disclose the chemicals they use during the fracturing process. Professor Wiseman noted that while most states require some type of information disclosure, many do not require full disclosure if drillers consider the chemicals that they use to be “trade secrets.” These limitations create uncertainty about the composition of fracturing fluids, which raises concerns about the full risks of groundwater contamination. Lack of disclosure may also hamper efforts to address surface spills when they occur.
Surface spills are an inherent risk during both the drilling and fracturing phases of shale gas development due to the machinery and chemicals used and stored at the drilling site and the contaminated flowback water produced after fracturing. A variety of spill response laws apply here, including, Professor Wiseman noted, the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) which kicks in if sufficient levels of non-diesel and non-gas contaminants are spilled. But effective prevention of surface spills and, when spills do occur, limitation of their harms also requires pre-drilling measures, such as mandated drilling setbacks from sensitive natural resources. As a precursor to development, some states also require development of spill prevention and control plans and/or mandate that operators obtain environmental pollution coverage in the form of insurance or bonds.
In addition to water quality concerns, well fracturing and subsequent gas production can lead to issues of air pollution. As recently discussed on this blog, states have adopted air quality regulations of varying stringencies. At the federal level, the U.S. EPA also recently issued regulations under the Clean Air Act, which will limit the release of volatile organic compounds.
Two relatively rare but critical risks during the fracturing stage are well explosions and high-pressure emissions of fluids from equipment accidently left open at the surface. To avoid such problems, many states require installation of blowout equipment at well sites, which allows pressure to be controlled and released when necessary.
To learn more about these and other shale gas regulatory issues, you can download Professor Wiseman’s presentation slides here, and view the recording of her webinar here:
What Climate Change Can Do About Property Law*
*With Apologies to Professor Doug Kysar
Harvey and Phyllis Karan are lucky that their beachfront home on the Jersey shore suffered little damage from Hurricane Sandy. Not long before Sandy hit, the Army Corps of Engineers completed a dune replenishment project, raising a dune in front of their home and providing protection from the storm surges that devastated much of the coast only one month ago.
In its aftermath, Sandy has sparked discussions about how communities along the Atlantic coast can prepare for the more frequent and more intense storms that may result from climate change. Experts have recommended constructing a sea wall to protect New York City at a cost of perhaps $6 billion, for example. Dune replenishment is a more modest effort to reduce the impacts of major storms.
But, the Karans’ situation demonstrates that even modest efforts to prepare for climate change may be no match for the nuances of property law.
When the Army Corps raised the dunes in front of their home, the Karans lost some of their spectacular view of the Atlantic and a small strip of land on which the new dune was constructed. Because this was a government project on private land, the government was required to pay the Karans compensation for the negative impact that the dune raising had on their property. The government offered $300 the Karans demanded $500,000.
Back when this disagreement arose, nobody predicted that Sandy would cause the devastation that it did, though all of the parties knew that improved dunes would protect beachfront property. To that end, the government argued that any harm to the Karans should be balanced against any benefit (i.e., storm protection) that they would get from the more robust dunes. Regrettably, property law does not account for even the house-saving benefits that the government provided the Karans.
Courts recognize two types of benefits that a landowner might receive from a government project like dune replenishment: (1) general benefits and (2) specific benefits. General benefits are those that the public at-large can enjoy. Specific benefits are those that are unique to only a single landowner. Specific benefits must be unique both in their degree and their nature.
For example, if the government builds a road across a landowner’s property, the public at-large may benefit from faster travel. The landowner herself, who is now very close to the new road, might benefit even more from quick access due to her proximity, but the nature of her benefit—faster travel—is the same for this landowner, her neighbors, and other travellers. In this example, the landowner’s added benefit is unique in degree but not in nature, and is thus a general rather than a specific benefit. Under property law, the government cannot subtract the landowner’s general benefit from the compensation it owes her for taking a portion of her property. On the other hand, if the government needed to drain a swamp to build the road, and by draining the swamp it made the landowner’s remaining land newly arable, then that landowner would also experience aspecific benefit, unique in its nature only to her. In this case the government could subtract the specific benefit of the new farmland from its compensation payment.
In the case of the Karans, the couple clearly benefitted from the dune project, which protected their home from Sandy’s damage. But protecting beachfront property from storm damage was exactly the general benefit that the government intended. Even if the Karans received a larger benefit than homes further inland, that difference is merely a difference of degree; it is not a specific benefit of a different nature.
When Sandy ravaged the Jersey coast, the Karans undoubtedly enjoyed an immense benefit insofar as their home is still standing and largely undamaged, but that is an advantage that the courts could not consider in this case. As such, the Karans benefit twice and get a windfall. The government has saved the Karans’ home and (if a pending jury award is upheld by the New Jersey Supreme Court), it must also pay the Karans hundreds of thousands of dollars for the privilege of saving their home.
Looking at the Karans alone, this legal doctrine seems unfair and no doubt terribly frustrating to those flooded by Sandy’s water rather than the govnerment’s money.
Looking at the problem more broadly, the limitations of property law could pose an insurmountably costly barrier to large-scale climate adaptation. At the scale of this particular dune replenishment project alone, 190 homeowners, including the Karans, received newly replenished dunes. If each of these homeowners received $375,000, the amount awarded to the Karans, the local government would need to pay an extra $71 millionover and above the millions of dollars needed to carry out the engineering and completion of the dune project itself. On the scale of the entire Atlantic and Gulf coasts (just two of many vulnerable areas), financing adaptation could quickly become untenable under the strictures of property law.
Yale Law Professor (and Interim Director of the Yale Center for Environmental Law and Policy) Doug Kysar recently authored an article titled “What Climate Change Can Do About Tort Law,” in which he argued that tort law, which so far has failed to address the massive threat of climate change, must evolve to account for the human demand for a legal framework and venue that addresses climate harms.
Before Hurricane Sandy, the Karans’ story may not have seemed so astonishing. But now, post Sandy, with the threat of climate-instigated property destruction more obvious than ever, the limits of property law have been laid bare. The legal doctrine that entitles this couple to hundreds of thousands of dollars seems increasingly inappropriate in a changing climate world.
With the Karans’ legal case now in front of the New Jersey Supreme Court, it may be time for jurists to think about what climate change can do about property law.
On December 11, 2012 CBS Evening News ran the following piece on the dune projects along the New Jersey coast.
This post was co-written with YCELP Fellow Bruce Ho.
On Wednesday, December 5, from 3-4pm EST, Florida State University Law Professor Hannah Wiseman will present a webinar on “Understanding and Improving Regulation of Shale Gas Development” as part of the Yale Center for Environmental Law and Policy’s ongoing Policy Workshop Webinar Series on “Emerging Issues in Shale Gas Development.”
Please click here to register to participate in this free online event.
As a lead-in to Professor Wiseman’s webinar, this blog focuses on one key area of environmental regulation—the regulation of air pollution from shale gas development—at both the state and federal levels. As Yale Professor of Hydrology Jim Saiers discussed in the Center’s first shale gas webinar earlier this fall, air pollution is one of many potential environmental concerns associated with shale gas development. Shale gas drilling can impact air quality and human health in several ways, including through the release of methane (the principle component of natural gas), which contributes to climate change; nitrogen oxides (NOx) and volatile organic compounds (VOCs), which can lead to both ground-level ozone and particulate matter (PM), which are in turn linked to heart attacks and respiratory morbidity; carbon monoxide; and hazardous air pollutants, such as benzene. This blog looks at the sources of these air pollutants and regulatory steps that states and the U.S. EPA have taken to limit this type of pollution.
Shale Gas Development and Air Pollution
In February, the National Oceanographic and Atmospheric Administration (NOAA) reported research suggesting that air pollution from natural gas operations in Colorado is much higher than previously understood. While this research is from one area only, and applies to natural gas operations in general rather than shale gas specifically, it raises concerns about the potential air pollution that could occur locally and globally as a result of the shale gas boom.
Air pollution can occur at many stages in the shale gas supply chain, from gas production to transportation, distribution, and use. At the production stage, shale gas wells can “leak” methane and VOCs into the atmosphere during the period between well drilling and hydraulic fracturing and the point at which newly drilled wells are connected to gas collection, processing, and compression equipment and pipelines. While “green completion” technology can be used to capture all or most of this methane and other gases, and thus avoid air pollution, this technology is not always used. In the absence of green completions, gas capture may be delayed until after the initial “flowback” and “produced” water flows out of the well.
In some cases, methane and other gases leaking from newly-fracked wells are burned or “flared.” Flaring converts the gas into less harmful substances, such as carbon dioxide (CO2). In other instances, methane and other well gases are simply “vented,” unchanged, into the atmosphere. Because methane is a much more potent greenhouse gas than CO2, flaring is better for the climate than venting. That being said, flaring is by no means a perfect solution since it still generates climate-polluting CO2, NOx, and other air pollutants.
Methane can also be released at other points in the natural gas supply chain, including from leaks in the pipelines used to transport the gas to market and from local gas distribution lines, as the New York Times recently reported. Dr. Ramon Alvarez from the Environmental Defense Fund discussed these methane leakage issues last month in the second installment of our webinar series. You can read a summary of Dr. Alvarez’s presentation and also view an archived recording of his webinar here.
Beyond methane leakage, other sources of air pollution associated with shale gas development include emissions from the machinery used to drill wells and transport gas and, where gas is used for energy, from the eventual combustion of this gas itself. For example, shale gas drilling involves a significant number of trucks (generally diesel) and other equipment. The internal combustion engines in these trucks, well-drilling machinery, and gas compressors produce air pollution in the form of CO2, NOx, and PM. When natural gas is combusted to generate heat or electricity, it also releases CO2. And while the CO2 emissions from natural gas are lower on a per-unit energy basis than other fossil fuels—e.g., coal and petroleum—the CO2 released during gas combustion still contributes to global warming at non-negligible levels.
Regulating Shale Gas Impacts on Air Quality
While some amount of air pollution from shale gas development is likely inevitable, the types and scales of these environmental impacts can be reduced through regulatory safeguards.
In their paper, “Regulation of Shale Gas Development, Including Hydraulic Fracturing,” Professor Wiseman and her co-author Francis Gradijan discuss current federal and state air quality regulations that aim to reduce this pollution. On the federal side, the EPA has established National Ambient Air Quality Standards (NAAQS) under the Clean Air Act for “criteria pollutants” (pollutants that are common throughout the U.S.) and technology-based standards for “hazardous air pollutants” (pollutants that are toxic or hazardous to humans).
Shale gas development produces both criteria and hazardous air pollutants. Yet Professor Wiseman notes that because the Clean Air Act focuses primarily on “major” sources, many EPA regulations do not apply to shale gas wells, which, while potentially cumulatively significant, generally do not individually emit sufficient quantities of pollutants to qualify as major sources. Professor Wiseman notes that the EPA may soon redefine its methodology for calculating major sources in a way that could bring more shale gas (and other natural gas) sites within the scope of its regulations although this step has not yet occurred.
There are, however, some situations in which EPA regulations do limit air pollution from shale gas wells. For example, Professor Wiseman explains that even “minor” gas operations may be subject to federal regulations if these operations are located in “nonattainment” areas, which are locations that currently exceed the federal NAAQS and are thus subject to more stringent requirements. Additionally, new gas compressor stations and existing stations that increase their hourly pollutant emissions are subject to technology requirements under EPA’s New Source Performance Standards (NSPS). EPA recently promulgated new NSPS for VOCs emitted from fractured and re-fractured wells, which will eventually require drillers to use green completions.
Nevertheless, the limitations of federal regulations mean that state law may often provide the only applicable air quality controls for many shale gas wells. Professor Wiseman writes that New York and Colorado currently have the strongest regulatory regimes in this respect, but that many states lack regulations to control or even monitor air pollution from shale gas wells.
As can be seen in the following table, air quality regulations for shale gas development in the five states – Texas, Louisiana, Oklahoma, Arkansas, and Pennsylvania – with the highest levels of shale gas production in 2010 (the most recent year for which data from the U.S. Energy Information Administration is available), vary widely. These regulations generally apply to both shale gas wells and conventionally-drilled natural gas wells.
The table, which draws from Professor Wiseman’s paper and research conducted by Resources for the Future (in which Professor Wiseman is also involved), shows that four of these five states regulate gas venting to at least some extent, such as by requiring flaring if emissions reach certain levels. However, Texas includes numerous exceptions to these requirements and Pennsylvania’s regulation prohibits venting only in cases “when the venting produces a hazard to the public health and safety” (e.g., due to a risk of explosion).
Most of these states also regulate emissions from other areas of the shale gas development process, though these regulations may be circumscribed in scope or, as in Pennsylvania, subject to significant exceptions.
Given that shale gas development is a relatively recent phenomenon, its air quality impacts—and the effects of specific regulations—are still uncertain. Thus, one key area of regulation is the extent to which states require monitoring and reporting, which can help policymakers better understand air quality impacts and regulatory outcomes. Monitoring and reporting are also critically important for compliance enforcement. Louisiana currently requires monitoring and recordkeeping for flaring and venting of natural gas and glycol dehydrators. Other states, such as Arkansas and Pennsylvania have conducted surveys of air pollutant emissions from shale gas development, which could help improve future efforts. Texas has implemented an air quality monitoring program in the Barnett Shale Area.
Understanding and Improving Regulation of Shale Gas Development
Whether these current regulations will ensure that air quality remains at an acceptable level is a key question for policymakers moving forward and for states that have yet to develop their own approaches to shale gas regulation. On Wednesday, December 5, we will address these issues explicitly as we discuss current local, state, and federal approaches to regulating shale gas’ air impacts; regulation of other shale gas impacts, including on water quality; and the implications of these current approaches for future regulatory regimes through Professor Wiseman’s webinar on “Understanding and Improving Regulation of Shale Gas Development.”
Fracking entails high pressure underground injection of large volumes of water mixed with chemicals, sand, and other substances, a portion of which returns to the surface as “flowback.” “Produced water” is naturally-occurring subsurface water, which also flows out of wells and may contain dissolved solids, metals, organic and inorganic compounds, and naturally-occurring radioactive material.
This post was also published by the Huffington Post.
Expectations for the global climate negotiations taking place over the next two weeks in Doha, Qatar, are dismally low, and major political transitions in China and the United States – the world’s two largest emitters of greenhouse gases – further temper hope for any kind of game-changing proposal. So what are the more than 7,000 civil society members and 1,500 journalists(myself included) in attendance going to do to make their opinions count and to hold their governments accountable for accomplishing something in Doha?
Well, there’s an app for that, and it’s called DecisionMakr.
Having attended many of these negotiations in the past, I question the value of emitting carbon to fly halfway around the world to attend another COP meeting. As an observer, I am relegated to the corridors, where I hope to bump elbows with negotiators and deliver my two-minute elevator pitch. I’ve spent hours in the back of general plenary sessions trying to make sense of diplomatese and the carefully prepared platitudes that ultimately restrict nations’ ability to compromise on difficult issues. After two weeks of these meetings, my head is spinning, and it’s challenging to distill what just happened.
When I knew I’d be attending Doha this year, I started thinking about how to make better sense of what goes on at a huge and hectic conference like these UN meetings. Technology – in particular, social media -- came to mind as a potential solution to the problem. I first started blogging and using Twitter while attending the watershed Copenhagen climate negotiations in 2009. With approximately 50,000 observers, nearly 100 heads of state, and close to 200 countries represented, it was chaotic and difficult to keep track of what was happening. With all the high-intensity drama including secret negotiation texts, exclusive back-door meetings, developing countries suspending talks and staging a walk-out, Twitter became an invaluable tool for receiving up-to-the minute updates, crowd-sourced from the multitudes of civil society observers and journalists who were “live-tweeting” events as they were unfolding.
After a conference ends, one is left with hundreds of thousands of tweets, but not a good way to hear the signal through the noise. So I pitched the idea of a smartphone app that leverages crowd-sourcing via Twitter to give observers a way to assess the quality of negotiation statements and policy proposals with ratings that can then be averaged to produce a final score. In this way, both observers and negotiators can have a real-time record of a speaker or country’s actions at a conference, and a ranking that provides an indication of how the public felt about their statements compared to others. In the Environmental Performance Index– a biennial ranking of environmental policy results in 132 countries – we’ve seen how rankings matter and how powerful they can be in terms of galvanizing action among leaders and laggards. I wanted to see if we can generate the same type of data and accountability for negotiators though an app – in a way similar to how user feedback ratings influence how we shop on retail sites like Amazon.com, where we eat using restaurant guides like Yelp.com, and where we travel and stay using feedback from other travelers at tripadvisor.com.
Teaming up with developers and engineers at Pariveda Solutions at the Social Good Forum Hackathon sponsored by AT&T, I developed a smartphone and web application called DecisionMakr that will be the start of a social (and academic) exercise in Doha to see whether we can use technology and social media to hold negotiators more accountable. One singular rating along with a log of all statements and proposals will add greater transparency to these sometimes opaque negotiations. While it is difficult to distill how two weeks or more of deliberations often end in one single negotiation text, the app will provide documentation of the shifting positions of countries to allow outsiders to better understand how the end result came to be. We hope that leaders will see their ratings and feedback, and respond as a result.
The DecisionMakr app will officially launch in Doha on Nov. 26 and is currently available at www.decisionmakr.org and free for download at the Apple iPhone App Store. All of the action can also be followed on Twitter @DecisionMakr.
This post originally appeared November 22, 2012, on China FAQs.
The next round of United Nations climate negotiations is gearing up to take place starting next week in Doha, Qatar, where countries will look to both China and the United States to see whether domestic political events will provide any momentum for the stalling talks. However, because of the proximity of the U.S. Presidential Election and the start of China’s once-in-a-decade leadership transition that will culminate in March, it is not expected that the world’s two largest emitters of greenhouse gases (GHGs) will be bringing too much by way of game-changing developments to Doha. Instead, we can expect most of the discussions in Doha to focus on securing final details for a second commitment period for the Kyoto Protocol, primarily for the E.U. and now Australia, as well as starting to formulate language for a new deal that will be decided by 2015.
1) Demonstrating Progress toward energy-intensity reduction goals.
Recently released provincial energy consumption data for 2011 shows that China is on its way to meeting the binding energy intensity reduction goals announced last year in the 12th Five-Year Plan. The new data show a 2.01 percent reduction in energy intensity for 2011, the first year of the 12th Five-Year Plan, which is significant considering that only 1.79 percent was reduced in the first year of the 11th Five-Year Plan. Although the goal for 2011 was a 3.5 percent reduction in energy intensity, Chinese officials blamed this miss on faltering hydropower due to droughts in southern China and have vowed to reach goals in subsequent years. Publishing these statistics prior to the Doha negotiations is an important step for China to demonstrate it is making substantial progress toward meeting its energy and carbon intensity reduction goals first made in the watershed Copenhagen climate negotiations in 2009 and then reaffirmed in both Cancun and Durban.
In addition to this release of data, China’s State Council revealed more specifics about how the country aims to achieve the remainder of its energy intensity reduction targets in the publication of its 2012 edition of a White Paper on China’s energy policy. In this high-level policy document, the Chinese government acknowledges challenges for China in making substantial shifts in its energy supply, reductions in consumption, and investments in renewable energy. Acknowledging that its primary energy output in 2011 ranked first in the world at 3.18 billion tons of coal equivalent, the white paper provides some insights on priorities and what the Chinese delegation may be emphasizing in Doha. For one, the White Paper definitively states that fossil energy, including coal and oil, will continue to play a dominant role in China’s energy supply “for a long time to come.” This language may indicate that conversations speculating on when China’s emissions may peak at Doha may be premature, although developed countries will surely try another push for China to include language in the next global agreement defining a peak year for its emissions. The white paper also clearly emphasizes technology innovation, technology transfer, and market mechanisms that will be critical topics discussed in Doha.
We can expect China in Doha to emphasize this progress as well as its 12th Five-Year Coal Plan released in April, which sets limits for coal production capacity at 4.1 billion tons and an annual output target of 3.9 billion tons by 2015 (read more about the Coal Plan in a previous ChinaFAQs blog). China also released more details for renewable energy targets in early August, including a goal for total renewable energy consumption set at 478 million tonnes of coal equivalent or 9.5 percent of the overall energy consumption mix by 2015. Of this goal, total installed hydropower generation capacity is targeted to reach 260 gigawatts; wind to reach 100 gigawatts; solar capacity at 21 gigawatts; and biomass energy at 13 gigawatts.
2) New alliances, such as the “Like-Minded Developing Countries” negotiation bloc.
Given how entrenched country positions and political alliances can be at these meetings, particularly between developed and developing (or Annex I and non-Annex I countries under the UNFCCC), it is encouraging that China, along with around 20 other developing countries from the G77 & China, have formed a new group called the Like-Minded Developing Countries (LMDC) that may help to push through some of previous meetings’ deadlock. Beijing hosted the first meeting of the group in mid-October and in attendance were Bolivia, Ecuador, Egypt, India, Malaysia, Nicaragua, Pakistan, Philippines, Saudi Arabia, Thailand and Venezuela – a geographically, economically, and politically diverse subset of the G77 & China that has bonded together over their “common interests and priorities,” which appear to be focused on the adverse effects of climate change and extreme weather events that have impacted their “survival and development aspirations.” With the Northeastern coast of the United States recently suffering a climate-related extreme weather event in the form of Hurricane Sandy, it will be interesting to see whether the United States will empathize with the LMDC position and form an alliance, perhaps similar to the coalition that formed between the European Union and the most vulnerable small island states and least-developed countries in the Durban talks last year. At very least, the combination of China, along with OPEC-member Saudi Arabia, in addition to Bolivia, which gained notoriety in the Cancun talks two years ago for being the lone country opposing the final agreements would hopefully help to secure consensus amongst the G77 & China for a clear strategy moving for a new global climate deal by 2015. It is nevertheless encouraging to see China playing a leadership role if this signals it is trying to think creatively about the negotiations and for solutions to break the intractable stalemate that often plagues these climate talks.
3) Emissions Trading Pilots.
China has continued preparation for the launch of seven carbon-trading pilots by next year and an eventual nationwide carbon-trading program in 2015. The emissions trading programs are currently being piloted in the cities of Beijing, Tianjin, Shanghai, Chongqing and Shenzhen and the provinces of Hubei and Guangdong. These pilots will provide inputs into the design of an eventual nationwide program, and in large part will shape the future of carbon markets in China. China’s leadership on this front may help to encourage other countries that are considering developing similar domestic carbon trading schemes, and for eventual linkage of national schemes to a global carbon market, as Australia is considering for a national registry to be launched in 2013 and connected to the EU Emissions Trading Scheme (EU ETS) by 2015. These pilots could also galvanize other emerging economies such as India and Brazil to follow suit, as well as help to shape the discussion of new market mechanisms for climate mitigation in Doha.
A key issue that will be discussed in Doha that may have bearing on China’s emissions trading pilots and its national system in 2015 is with respect to accounting rules for GHG emission baselines, inventories, and registries. The pilots have not yet released details about specifications for accounting rules. China still has a ways to go with respect to developing transparent energy and climate accounting methods that are consistent across entities both amongst regions in China and internationally. Already, a number of reports questioning the accuracy of China’s energy statistics have brought increased international scrutiny of the country’s data. High-quality GHG emissions data will also be imperative if China is to be successful in ramping up its seven emissions trading pilots to the national level. In the European experience with the EU ETS, the price of trading allowances dropped after emissions data was released – something that could have been avoided if data had been reported more transparently. It appears that the success of the pilots largely hinges on transparent and effective MRV mechanisms, particularly if China hopes to expand these programs regionally within the next few years.
It is clear that transparency and quality of data in MRV will build a foundation of international trust. This has implications not only for climate change negotiations, but also for multinational firms dealing with different MRV systems, which may also stand to benefit from improved market stability that comes with more frequent data. China has already made strides in showing its commitment to transparency with the release of its second national climate change communication to the UNFCCC earlier this month, which includes an update to its national GHG emissions inventory that includes data for 2005. GHG emissions data are disaggregated by sector and by gas, with an explanation of uncertainty estimates and methodologies used – key elements that establish China’s progress on data transparency. China will hopefully be able to incorporate further discussions on accounting rules, market mechanisms, and MRV in Doha to ensure the pilots and the eventual national scheme can effectively link globally in the future.
4) Hints from the new Chinese leadership.
A discussion of what to expect from China in Doha would be incomplete without talk of any implications China’s leadership transition could have in Doha. Unfortunately, there are so far not many indications as to how a new Chinese leadership under Xi Jinping and Li Keqiang might impact energy and climate issues. At very least, with the 12th Five-Year Plan set in stone until 2015, we can expect the new leaders to follow a course to achieve the range of energy and environmental targets in the Plan. In particular, at the 18th National People’s Congress meetings that started immediately following the U.S. Presidential Election, outgoing President Hu Jintao stressed the need to incorporate “ecological progress” into all aspects of the nation’s development moving forward. He also declared that his “Scientific Outlook on Development” first introduced in 2003 was the most important Party achievement in the past decade, cementing it as the guiding ideology for the Communist Party moving forward. Therefore, we can anticipate that the new Chinese leaders will continue to emphasize its commitments to energy, climate change, and the environment with a people-centered, scientific approach.
In Doha, China will also look toward the United States for leadership, although China may take a similar approach in its messaging as it did last year in Durban – testing several new ideas and being more proactive on discussions such as legally-binding agreements and absolute emission limits that seemed to have helped pressure the U.S. to concede to an agreement with “legal force” in the final hours of the negotiations.
Look for more of my updates coming from Doha by following the action in real-time on Twitter at @DecisionMakr and blogs on ChinaFAQs.