On the Environment
Environmental Law & Governance
Monday, November 26, 2012
By Guest Author, Angel Hsu, Project Director, Yale Center for Environmental Law & Policy
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.
Tuesday, November 20, 2012
By Guest Author, Marissa Knodel, Yale F&ES '14, and Omar Malik, Yale F&ES '13
This month, a group of enthusiastic Yale students will take part in the ongoing drama of climate change negotiations in Doha, Qatar. They will participate in the 18th Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC), the global stage where countries have been meeting to tackle climate change since 1992. While the experience will be new for the students, seasoned diplomats are prepared for a familiar scene: from Cancun to Durban to Doha, efforts to mitigate the adverse impacts of climate change and prevent harm to millions of vulnerable people around the world have instead turned into deliberations over the process itself.
Even if developed countries were in full compliance with their Kyoto Protocol greenhouse gas mitigation pledges, the global average temperature would only be reduced by 0.03°C by 2100. It turns out that this would not be enough to prevent severe economic, environmental, social, political, and cultural consequences from being felt around the world. Small island nations, in particular, will face existential threats that include off-island migration and the massive displacement of people. Failure to reach agreement threatens to render the UNFCCC a mere rhetorical aspiration.
The Doha conference presents an opportunity to buck the intractability of the negotiations. At the previous COP in Durban, countries declared that they would “raise the level of ambition”, and, at the same time, they created an open-ended structure for future agreements. The future agreement, to be negotiated by 2015, may either be a “protocol, legal instrument or outcome with legal force” and will start to become formulated at Doha. The concept of “common but differentiated abilities” isn’t mentioned in the Durban Platform, however, meaning that the official division between developed and developing countries isn’t as clear as it once was in Kyoto Protocol and the UNFCCC. This opens up a potential avenue for change. In the words of the climate change scholar Daniel Bodansky, “[The Durban Platform] is an empty vessel that can be filled with whatever content the parties choose.” All in all, the future pathway of negotiations remains uncertain.
Last month, we visited met with UNFCCC Executive Secretary Christiana Figures, who shared some of her insights as to the keys for success in Doha:
- The negotiations in Doha are an opportunity for countries to extend the Kyoto Protocol and will help pave the way for a new treaty regime.
- Consumers, civil society, and the private sector must play important roles in reaching the low-carbon economy.
A closed-room conversation with Ms. Figueres gave us a chance to ask frank questions that were of interest to the up-and-coming diplomats in the room. She started off with a discussion of where we currently are at in the negotiation process, noting that progress has been made despite the fact that movement has been, in her words, “excruciatingly slow.” However, she was cautiously optimistic overall and thought that the future offers a critical chance to change the psychology of the UNFCCC process; participants must go from a perception of “burden-sharing” to one of "opportunity-sharing.” At the next conference, a Doha Amendment will be needed to bring about the “seamless continuity” of the climate regime for all countries, including a second commitment period for the Kyoto Protocol.
Ms. Figueres also advocated a more decentralized and approach to solving the climate problem. She told us that we can’t leave all of this work to governments—consumers, civil society, and the private sector are essential to making the new low-carbon economy a success. She urged us to change our personal habits by re-evaluating our transportation means, electricity demands, and purchasing choices. As our time with her drew to a close, she called on all of us to take personal responsibility and holistically change our carbon-consumptive lifestyles. "Move it!” she said, as she banged on the table. “This country is paralyzed! The problem is going to be in your laps.”
Though most citizens will not have the opportunity to attend an international climate change negotiation or meeting, they may nevertheless wield power through influence on politicians, delegates, and the nature of the negotiations. Looking ahead to Doha, nations face the option of negotiating an outcome more ambitious than the Durban Platform that takes the commitment to prevent dangerous climate change seriously or continue the pattern of “a meta-negotiation about what to negotiate.” By raising public awareness, consciousness, and activism, participants at both the “top” and “bottom” hope to make people rather than process the focus of negotiations.
William D. Nordhaus & Jospeh Boyer, Warming the World: Economic Models of Global Warming, 152-153 (2001).
Working Group II of the Intergovernmental Panel on Climate Change. Cambridge: Cambridge University Press, 2001. p. 845-870. Accessed online.
The Durban Platform (CP.17), Paragraph 6.
The Durban Platform (CP.17), Paragraph 4.
Daniel Bodansky, “The Durban Platform Negotiations: Goals and Options,” Viewpoints, Harvard Project on Climate Agreements. July 2012.
Daniel Bodansky, “The Durban Platform Negotiations: Goals and Options,” Viewpoints, Harvard Project on Climate Agreements. July 2012.
Thursday, November 15, 2012
By Josh Galperin, Associate Director
In his first post-election news conference President Obama put to rest the speculation that he might be preparing to take serious and comprehensive action to combat climate change.
While acknowledging that global climate change is a real danger and agreeing that his administration has not done enough to fight the threat, the President declined to offer any specific plan or even general commitment for how the United States might address climate change in the next four years. Instead, President Obama reminded the public that crafting a political solution to climate change is a difficult task, saying:
“I don’t know what either Democrats or Republicans are prepared to do at this point because this is one of those issues that is not just a partisan issue. There are regional differences. There’s no doubt that for us to take on climate change in a serious way would involve making some tough political choices.”
Although the Obama administration took some actions in its first term, including first-ever standards for new coal plants (although very few new coal plants are planned) and fuel efficiency standards for motor vehicles, there has been speculation and hope that the Administration would make a push for broad Congressional action.
The political difficulties of such action are no secret. On the other hand, the President has taken on and succeeded at other difficult political tasks such as passing his healthcare reform law. Of course that effort happened with a Democratic majority in the House of Representatives, which no longer exists. The healthcare battle may, in fact, have been the very reason that the Democrats lost control of the House.
The President did not rule out any new effort in the next term, but he did put an end to the almost giddy expectations. Luckily, there is still hope for mitigating climate change even without the United States. The Yale Center for Environmental Law and Policy, Yale Climate and Energy Institute and the Oscar M. Ruebenhausen Fund at the Yale Law School co-hosted the international conference “Global Climate Change Policy Without the United States: Thinking the Unthinkable.” The conference took for granted that the U.S. will not enact national climate legislation and then offered many technologies, legal mechanisms, sub-national programs and private sector initiatives that could move the globe in the right direction.
The Yale conference, perhaps, offers an implicit suggestion that as President Obama reflects on his “tough political choices” he should remember that many other nations, with less responsibility on their shoulders, have managed to surmount the politics and take action. Sooner or later the United States will either have to act or admit that our leaders simply do not have the courage or creativity to move forward.
Thursday, November 08, 2012
By Josh Galperin, Associate Director
Early Wednesday morning President Obama mentioned climate change for the first time in a long time. Couched in a list of problems that the next generation will face, President Obama briefly mentioned “the destructive power of a warming planet” in his victory speech on Wednesday morning. Later in the day Senate Majority Leader Harry Reid also said that he hopes the U.S. Senate can address climate change.
Even overlooking this limited enthusiasm, it is difficult to believe federal climate action will be a major theme in the next Congress – but perhaps that doesn’t matter.
Amid the talk of climate action yesterday the Yale Center for Environmental Law and Policy and the Yale Climate and Energy Institute (YCEI) co-hosted Dorothy Barnett as part of the climate policy speaker series, “The ‘C’ Words: Addressing Climate Change Without Talking About Climate Change.” Dorothy is the executive director of the Kansas-based non-profit Climate and Energy Project (CEP), which works throughout the lower Midwest.
Dorothy’s region is consistently hostile toward federal or even state climate policy; however, as Dorothy explained last night, there are plenty of effective local and regional tactics for dealing with climate change (without talking about climate change).
CEP has created successful programs such as the Take Charge Challenge, Kansas Interfaith Power and Light and HART, the Heartland Alliance for Regional Transmission, all of which build non-traditional partnerships to address things such as economics, jobs, faith and energy independence.
The Take Charge Challenge, for example, was a competition between residents of six Kansas towns to save the most energy over the course of a year. Building on the spirit of friendly competition and the money that individuals can save by reducing their energy use, the towns and local electricity providers worked with residences to switch light bulbs, install programmable thermostats and undertake home weatherization, among other energy saving measures. The winning town reduced energy use by 5 percent over the course of a year. More importantly, the competition showed that people are willing to take the personal action necessary to address climate change, but they do not need to take action because of climate change.
In response to an audience question last night, Dorothy said she was hopeful for federal climate action, but as her experience shows, there is more than one way to make progress. President Obama and Majority Leader Reid have a big and important task ahead of them, but they will have (unwitting) help from political opponents and climate skeptics in places like Kansas where personal steps to save money and create local jobs will move us all in the right direction.
Wednesday, October 31, 2012
By Josh Galperin, Associate Director
Cost benefit analysis (CBA) is a much touted and much debated tool for environmental policymaking. At its foundation, the premise is simple; CBA uses analytical formulas to determine whether the monetized benefits of a proposed regulation outweigh the monetized costs. Where the benefits outweigh the costs, the policy proposal should become a reality. It is the seeming objectivity of CBA that makes it attractive to its proponents.
One such proponent is Professor Ben Trachtenberg of the University of Missouri School of Law. In an article forthcoming in the November/December issue of the Environmental Law Institute's Environmental Forum, Professor Trachtenberg argues that CBA has flaws, but that they are superficial flaws, which can be addressed through tweaks to the process. Specifically, Professor Trachtenberg looks to the way that the value of future human lives are discounted when conducting a CBA. Discounting is based on the economic understanding that people value money more today than in the future. For instance, if I offered $100 in 1 year, or $94 today, most people would accept a smaller sum today. Thus, if an environmental regulation will save a human life not today, but in the future, we need to calculate the value of that life and then discount it to its present value.
Professor Trachtenberg's article argues that CBA would more accurately reflect the costs and benefits of environmental policy if the discount rate were lower, that is, if the value of future lives were reduced less when converted to present value. To support this argument Professor Trachtenberg point to two items: increasing healthcare costs and increasing gross domestic product. As people are willing to pay more to avoid death and as future generations become richer, their theoretical lives become more valuable. Where future lives are more valuable, they should be discounted at a lower rate.
Professor Trachtenberg's assessment is accurate. However, Professor Kysar and I co-authored a brief response, forthcoming in the same issue of the Environmental Forum in which we argue that efforts to mend rather than end CBA in environmental policymaking will not ultimately result in better environmental governance. Efforts such as Professor Trachtenberg's are arguments for changing CBA, but more importantly they are demonstrations of how fragile CBA is.
While CBA is proffered as an objective tool, the tweaks that Professor Trachtenberg identifies are just two among many potential changes, all of which can be subjectively used and abused to change the outcome of a given analysis. CBA, therefore, creates a veil of objectivity over yet another subjective process. This sort of marginal effort will work to marginally improve policy, but it will also work to solidify the role of CBA, for better or worse. In other words, those who strive to give future generations more consideration in environmental rulemaking should take care not to relinquish alternative tools, which rest on more principled grounds, in exchange for temporary relief from the limited capabilities of CBA.
Monday, October 08, 2012
By Guest Author, Aaron Reuben, Yale School of Forestry & Environmental Studies, '12
This spring the US Department of Transportation has, with the stroke of a pen, changed longstanding federal policy. In the past, retired Naval vessels potentially contaminated with dangerous toxins had been made available for the creation of artificial fish reefs. Now vessels built before 1985 – those potentially contaminated with polychlorinated biphenols (PBCs) - will no longer be considered for use in artificial reefs. This is a victory for human health and the health of our oceans.
This policy change resulted from, among other actions, research undertaken by graduate students in the Environmental Protection Clinic at the Yale Law School and Yale School of Forestry & Environmental Studies, who worked with the Natural Resources Defense Council to oppose efforts to sink a particularly troubling former Naval vessel, the ex-USS Kawishiwi, off the coast of California.
The USS Kawishiwi was a uniquely American vessel: named for a Minnesota river, built in a New Jersey shipyard, and commissioned in a Philadelphia Naval base, this seven million gallon oil carrier served the 7th Fleet in the Pacific for more than 30 years of the Cold War. In 1979 it retired from active US duty. In 1992 it entered the Suisun Bay Reserve Fleet (one of three federal storage sites for America’s mothballing “national defense reserve” ships). And in 2011 it became available for artificial reefing. In ancient Japan, stones were rolled into the ocean to provide substrate for reefs and new homes for reef fish. Now we sink ships.
In addition to the hydrocarbon residues of a half-century of marine diesel fuel to be found in its tanks, the ex-USS Kawishiwi likely contains heavy metals (mercury, lead, barium, and cadmium) in its guidance systems, light switches, radar displays, and hull paints. Hydrocarbons and heavy metals are, respectively, carcinogens and neurotoxins. Polychlorinated Biphenols (PCBs) – carcinogenic, mutagenic, and teratogenic bioaccumulators (meaning they are passed upward in food chains) - will be found in the ship’s boiler rooms, radio rooms, engine rooms, and weapons rooms, as well as in its adhesive tapes, switchboards, insulators, capacitors, and transformers. Anything made of plastic in the ship will likely contain PCBs.
If it had been sunk in California state waters this year, as planned, the former USS Kawishiwi would have been the 9th such ship intentionally sunk off California, and the 5th sunk to create a reef, in the last 30 years. Though it is unclear what effect this new reef would have had on fish communities, or the dive enthusiasts who supported its creation, it is clear that any contaminants that would have survived a ship cleaning (there would have been many) would have sloughed from the ship, leeched into the ocean, and settled comfortably in the fatty tissues of marine organisms throughout the nearby water column. Eventually these contaminants would have made their way back onshore, to accumulate in the bodies of the terrestrial mammals that first commissioned them to the sea.
Through a letter of complaint based on our research, sent to the Department of Transportation’s Maritime Administrator, the Natural Resources Defense Council officially opposed the planned sinking. Through a Freedom of Information Act request we have now learned that not only will the USS Kawishiwi no longer be considered “available for reefing” but federal policy has also officially changed - all ships owned by the Department of Transportation (there are more than 40 left in reserve) cannot be considered for reefing if they were built before 1985 (the year at which PCBs are no longer likely to be ubiquitous onboard) and will, generally, be locked into recycling plans if recycling is possible. This is a policy change guaranteed to better protect human health and the health of our oceans. And these ships are now, incidentally, more likely to create jobs (through recycling) and save taxpayers money (reefing is expensive).
Miles to go
Though old, toxic naval vessels will no longer be available for use in artificial reefs, our government is still sinking decommissioned vessels at an alarming rate. The Navy training program SINKEX, or “sinking exercise,” uses former vessels for target practice and ordinance tests. Over the last fifty years dozens of potentially contaminated vessels have been sunk in US waters under the SINKEX program. Last summer the Navy sunk three off the coast of Hawaii. This fall holds plans for another sinking.
Though these ships are often cleaned to the best EPA guidelines, full removal of dangerous toxics is impossibly difficult. The toxins that went down with a recently sunk ship, the ex-USS Oriskany, have now been found in the tissue of fish surrounding the wreck.
Is the SINKEX program worth the risks it poses to human health? Are there better ends for these ships (including recycling, which creates jobs and drives economic activity)? These are the questions at the heart of an open lawsuit against the EPA, filed by Earthjustice on behalf of a coalition of environmental groups late last year, which demands that the agency better regulate potentially harmful ship sinks.
With high uncertainty surrounding the safety of these sunken vessels, now might be time for more debate and fewer reefs. The Department of Transportation’s policy change was movement in the right direction, but we still have miles to go.
Monday, October 01, 2012
By Guest Author, Josh Galperin, YCELP Associate Director
These days it seems there is constant release of new information about hydraulic fracturing. Recent news from a federal court in New York, however, is a departure from this trend. A September 24th ruling in State of New York v. U.S. Army Corps of Engineers has rejected an attempt to require officials at the Delaware River Basin Commission (DRBC) to gather and release potentially valuable new information on the anticipated effects of hydraulic fracturing on the Delaware River Basin.
The Delaware River Basin is a coveted landscape that provides drinking water to New York City and Philadelphia, among other locales. Because the water resources of the Basin are important to multiple states and communities, they are cooperatively governed by the DRBC.
Underlying much of the Delaware River Basin is the Marcellus Shale, a rich source of natural gas that has only recently become available and economic to exploit. Recognizing the potential environmental, economic and cultural impacts of significant new shale gas development, in 2010, DRBC began the process of developing regulations regarding natural gas extraction within the Basin. DRBC also determined that it would not permit any gas extraction in the Basin until such time as it adopts final regulations. Over the past two years DRBC has drafted and proposed – but not yet voted to adopt – new regulations that would lift the current ban on natural gas extraction in the Basin and permit regulated drilling.
In this interim period, the State of New York and a number of NGOs sued DRBC (and a series of federal partners) claiming that the National Environmental Policy Act (NEPA) requires DRBC to prepare an Environmental Impact Statement (EIS) detailing the potential impacts of its proposed gas drilling regulations.
Generally speaking, NEPA requires federal agencies to prepare an EIS whenever they are undertaking a project that will have significant environmental impacts. In the EIS, the federal agency considers the environmental implications of its project and evaluates possible alternatives. One important benefit of the EIS is that it is a single, comprehensive source for an abundance of data and information on the environmental impacts of a proposed federal project or program.
Unfortunately, the U.S. District Court for the Eastern District of New York ruled on September 24th that New York State and the other plaintiffs cannot continue a lawsuit that might have forced DRBC to complete an EIS at this stage. This decision not only delays DRBC’s potential obligation to perform environmental review, but ratifies DRBC’s poor planning, which so far has proceeded with development of regulations without the benefit of an environmental review.
The primary question that the court addressed was whether New York State and the other plaintiffs would suffer injury if DRBC did not complete an EIS. In similar situations, other courts ruled that failure to complete an EIS could lead to “uninformed decisionmaking,” which amounts to an injury, and, because of this injury, past lawsuits were allowed to move forward. However, the court here looked critically at the past cases and found that “in each case, the government had acted in the form of a final order, regulation, plan, denial of a request, or statute.” In other words, the court determined that failure to complete an EIS could only injure a plaintiff when it is attached “to an actual agency action,” which, according to the court, has not yet occurred in the DRBC case.
This reasoning appears strained. NEPA is designed to inform decisionmaking, and most federal agencies, at a minimum, recommend that the required environmental review happen at an early stage of project development. Here, the court found that a review is not required before an “actual agency action.” Yet there is no reason that issuance of draft regulations could not be considered sufficiently “actual.” Issuance of proposed regulations should suffice because it is at this point that potentially injured parties will become fully aware of the existence and scope of the impending injury. In fact, at least one other court has specifically agreed that proposed action is enough to present a real threat of uninformed decisionmaking.
The court here sets up a straw man, saying that it “believes that the reasoning [of other courts, allowing plaintiffs to sue for failure to complete an EIS] cannot be extended indefinitely backward, to embrace internal agency deliberations, drafts or legal analysis . . .” But the official public issuance of proposed regulations is certainly more substantial than internal drafts, deliberations or legal analysis.
In reality, the threat of uninformed decisionmaking arises as soon as decisionmakers begin to consider regulations without the benefit of an EIS. As the court noted, it is not practical to require an EIS at very early stages, in part because there is not any concrete government action associated with early deliberations. Conversely, though, when an agency officially issues proposed regulations without an EIS, it is clear that the agency developed these regulations without complete information, and this is when the actionable threat emerges.
Aside from the legal arguments, the real trouble here is that the basis for this lawsuit was not merely a battle of pro- and anti-fracking factions. Rather, it was an effort to gather information, to put as much transparent analysis as possible into the public sphere, and to improve decisionmaking. As it stands, the fracking debate is heated but largely under-informed. A great many questions about fracking’s air quality, climate, community, water use, wastewater, groundwater, economic and electricity generation impacts are still unanswered. Had this lawsuit turned out differently, it could have led to important new insights.
Thanks to Bruce Ho, Research Scholar in Law, Coca-Cola World Fund Faculty Fellow, and Clinical Lecturer in Law at Yale Law School for his contributions to this post.
 State of New York v. U.S. Army Corps of Eng’rs, United States District Court for the Eastern District of New York, 11-CV-2599 (Sept. 24, 2012).
 Sierra Club v. U.S. Dep’t of Energy, 287 F.3d 1256, 1265 (10th Cir. 2002).
 See, e.g., Sierra Club v. U.S. Army Corps of Eng’rs, 446 F.3d 808 (8th Cir. 2006).
Monday, June 18, 2012
By Guest Author, Aaron Reuben, Yale School of Forestry & Environmental Studies '12
It’s been thirty years since the Third United Nations Conference on the Law of the Sea (UNCLOS III), a treaty establishing international rules for the collective governance of the world’s oceans, was first signed by the assembled nations of the UN in Montego Bay, Jamaica. Since that time its ratification by Congress has been debated every few years with new fervor, vainly.
As Mark Landler of the New York Times recently reported, UNCLOS is back on the docket in Congress, as Senator John Kerry, chairman of the Foreign Relations Committee, called Secretary of State Hillary Clinton and Defense Secretary Leon E. Panetta, among others, to testify before the Senate in the first of what will be many hearings on the importance of US ratification of UNCLOS.
Though there have always been strong arguments in favor of ratification, now has never been a better time to truly consider joining our country with the nearly 200 states that have ratified this treaty (161 states plus the EU to be precise). Here are three reasons we should ratify UNCLOS right now:
1. The Arctic is Opening
Anthropogenic climate change is driving measurable loss of sea ice and warming of surface waters across the Arctic Ocean, meaning the Arctic is now more accessible to ocean vessels and deep-sea exploration than it has ever been before.
UNCLOS can provide the framework for the five Arctic states identified in the treaty – the US, Canada, Denmark, Norway, and Russia – to collectively manage the ocean in this newly exploitable and fragile realm. This, importantly, is one of the nine priority objectives of our new National Ocean Policy, a hallmark environmental initiative of the Obama Administration.
Perhaps more saliently for those concerned with America’s domestic economic interests, UNCLOS also includes a process for Arctic states to claim mineral and oil extraction rights in the Arctic seabed (under the jurisdiction of the International Seabed Authority) in areas beyond their existing national claims. Until the US ratifies UNCLOS it will not have access to these provisions and it will be unable to have its rights to these new resources recognized by the international community.
2. Ecosystem Tipping Points Are Being Reached
According to a new study published in this month’s issue of Nature, the possibility of a large, planet-scale ecosystem shift (wherein the natural world as we know it alters quickly and irrevocably) is theoretically possible and increasingly likely.
In explaining this increasing likelihood of “shift,” the authors point to a range of human-led drivers of global ecosystem instability that are, cumulatively, moving our planet towards a “tipping point.” Such drivers include the conversion of large portions of the planet towards agricultural production and urban development, the generation of new hypoxic dead zones across the world’s oceans (which is directly related to the first driver), and the mass release of climate forcing greenhouse gases.
The result? The authors report that, “the biological resources we take for granted at present may be subject to rapid and unpredictable transformations within a few human generations.”
Aside from calling for increased bio-monitoring and forecasting to better anticipate this shift, the authors call for improved management of our planet’s ecosystems and it’s biological communities, particularly the world’s oceans.
Once again, UNCLOS provides a framework for this task: the convention establishes obligations for protection of the marine environment by signatory states and offers a system for resolving conflicts around marine resources (under the International Tribunal for the Law of the Sea).
Until the US ratifies UNCLOS it will not be an active participant in global discussion about ocean management. Particularly in high seas regions, where management must be collectively overseen by multiple nations, this means we are abdicating our responsibility for solving problems we’ve helped create.
3. Rio + 20 Will Need Help
This week marks the beginning of the United Nations Conference on Sustainable Development in Rio De Janero, Brazil, which itself marks the 20th anniversary of the landmark Earth Summit that was held in Rio in 1992 (hence Rio+20).
This conference of world leaders, scientists, and members of civil society and the private sector represents the best-concerted effort by the global community to lay the groundwork for the economic and social advancement of the developing world in a manner that can reduce humanity’s cumulative impacts on the environment. Plans for improved management and protection of the oceans are one of the main achievements hoped-for in a successful Rio outcome.
But unfortunately, early reports from the conference are not good: the pace of agreement on the issues is slow, and many attendees are voicing skepticism that binding commitments are achievable.
It will be many months before the US ratifies UNCLOS, if indeed it ever does. But signing this historic treaty after a successful Rio conference will signal to the world America’s readiness to become a leader in the global effort to repair and safely manage our environment. This in turn will give more momentum to the hard work of actualizing the agreements of Rio+20, turning whatever new principles we’ve created into goals, turning those goals into plans, and turning those plans into actions. It will be a long, complicated, and expensive process. And, for America, ratifying UNCLOS must be one of the first steps.
Aaron Reuben is a research assistant at the Yale Center for Environmental Law & Policy, where he studies the policy impacts of environmental health indicators. He holds a Masters of Environmental Management from the Yale School of Forestry & Environmental Studies and is a former Editor-in-Chief of the Yale environmental journal, SAGE Magazine.
Monday, January 30, 2012
By Guest Author, Sandy Aylesworth, Yale School of Forestry & Environmental Studies, MEM '13
It is late November and I am bombing across the Mediterranean in a 15-foot Zodiac en route to Fourni, one of Greece’s 1,400 islands, for meetings with the mayor and local fishermen. I share the Zodiac with Anthony Moffa and Adele Faure, two students from Yale Law School, Thodoris Tsimpidis, a retired Naval captain and founder of Archipelagos—Institute of Marine Conservation, and Anastasia Miliou, head scientist and director of Archipelagos. The other students and I are enrolled in the Law School’s Environmental Protection Clinic, and Archipelagos is our client.
We turn sharply into a cove and stop abruptly. “And this,” says Anastasia, “is Anthropofagos Island.” Anastasia is gesturing toward a tall, shrubby island that will serve as an enforcement and research base for Greece’s second no-take marine zone, where fishing is completely forbidden.
Ideally, Anthropofagos Island and the no-take zone that borders it will also be an integral piece of the first Fisheries Protected Area (FPA) in Greece. A FPA is a management scheme wherein different stakeholders of a fishery partner to manage their resource sustainably. FPAs are gaining worldwide recognition as a viable fisheries management tool because of their success in achieving sustainable, locally managed fisheries—a triumph given the depressing reality of the world’s dangerously overfished stocks and failed fisheries management.
In response to declining catches over the last two decades, Fourni’s fishermen, Archipelagos, and Fourni’s mayor, Ioannis Maroussis,are forming a FPA. All three parties are confident that the management structure they envision will enable them to halt illegal fishing, enforce existing regulations, and implement the Anthropofagos no-take zone. The Clinic’s Archipelagos team will abet this effort by drafting a memorandum of understanding (MOU) and policy paper in support of the Fourni FPA. Ideally these documents will enable the FPA to secure European Union funding and official recognition.
In contrast to the stark white of the denuded island, the water beneath the Zodiac is a rich periwinkle. The clarity of the water is shocking and allows a clear view of fish, seagrass beds, and a smattering of invertebrates. Nearby an elderly woman, her son, and husband fish from an intricately painted wooden boat. The boat’s toy-like size and primary colors belie the gravity of these fishermen’s problems: Despite practicing the same artisanal fishing methods their family used for hundreds of years, their resource is in danger of becoming commercially extinct—only 10 percent of Fourni’s fishermen are able to fish fulltime and elders bemoan the exodus of the island’s youth, who are leaving in pursuit of profitable marine jobs elsewhere.
The necessity of improving the existing fisheries management in Fourni was particularly glaring last year when Archipelagos scientists found a 50-percent to 80-percent decline in total fish landings. The fishermen, mayor, and Archipelagos attribute paltry fish landings to rampant illegal trawling in the Fourni archipelago.
Near-shore trawling decimates seagrass beds, which provide the nursery for the vast majority of the island’s juvenile fish. The seagrass is also a crucial food source for mature fish. Although Greece forbids trawling on the beds, and they are protected habitat under an EU directive, trawling regulations are not enforced.
Fourni’s coastline and tall mountains protect trawlers from detection. Even if the trawlers were visible, the local coastguard would have a difficult time apprehending illegal fishermen: it does not own a boat. The fishermen say that illegal trawling occurs daily, yet only one fine for illegal trawling was administered in Fourni last year. The pervasiveness of this problem was wholly evident when we observed several illegal trawlers fishing after spending just two nights on Fourni.
Another obstacle to implementing existing regulations is the politically and financially potent trawlers’ union that lobbies aggressively in Athens. Even if approval for an FPA overcame political obstacles, Greece’s financial crisis likely will preclude national funding for an FPA.
But there is cause for optimism: the EU has dedicated funding for sustainable fisheries projects and the proposed Fourni FPA will be a strong candidate.
In Fourni our extensive meetings made clear that the fishermen are ardently protective of their resource and truly dependent on the sea for their livelihood and way of life. Though feta, calamari, and souvlaki enlivened our meetings, the fishermen became somber when they talked about the lack of control they feel over the resource that has sustained the island for thousands of years. They firmly believe that the FPA is their only means of restoring their marine ecosystem to health.
Yale’s Environmental Protection Clinic continues to work closely with Archipelagos. For more information on Archipelagos and the Institute’s research and projects visit http://www.archipelago.gr/.
Friday, December 09, 2011
By Guest Author, Angel Hsu, Max Song, and Jonathan Smith
The following post is republished from China FAQs: The Network for Climate and Energy Information.
One of the most persistent themes so far at Durban has been how to bridge gaps - the divide between the developed and developing countries, many of whom disagree about whether the Kyoto Protocol should be extended into a second commitment period; the hole in climate finance pledges from developed countries; and the ambition or emissions gap between the Copenhagen pledges and the stabilization of global temperatures below a 2 degrees Celsius increase from pre-industrial levels.
These three major gaps must be addressed in Durban. One major question will be whether developing and some developed countries, Europe in particular, can work together to find a solution that enables the Kyoto Protocol to be extended. When it comes to money, there are questions about where some $2 billion USD out of the $30 billion promised to developing countries at Copenhagen and Cancun to assist them in mitigation and adaptation efforts will come from.
Perhaps the most prominent issue being discussed in Durban is the emissions or ambition gap between Copenhagen emission reduction pledges and the goal to limit global temperature rise to 2 degrees Celsius. To help facilitate the negotiations, the United Nations Environment Programme (UNEP) released a report Bridging the Emissions Gap which concludes that even if countries fully implement their Copenhagen commitments, the world would only be about halfway towards the emission reductions necessary to ensure global temperatures do not warm more than 2 degrees Celsius. However, the good news is that we have the technological and financial capacity now to achieve the emissions reductions necessary to avoid such an increase. Focusing on projections of global greenhouse gas emissions in the year 2020, the report looks at the “emissions gap” between:
the level of emissions needed to ensure an average global temperature increase below 2 degrees C; and
the level of global emissions in 2020 we’re likely to see given the voluntary emission reduction pledges in the Copenhagen Accord.
The report finds that even if all Copenhagen reduction pledges are met, total emissions would still exceed the level necessary to prevent a 2-degree increase by 6 to 11 gigatonnes. This is about 1 gigatonne greater than last year’s gap, an increase brought about by some countries such as Australia and Brazil having clarified how they calculate the baseline emissions from which their reductions would be made - effectively weakening their Copenhagen pledges.
But on the bright side, the full implementation of current technologies could more than make up for the gap, and at an economically feasible price. Existing energy efficiency technologies, renewable energy sources, and agricultural practices will be enough to put us back on the right track. In other words, we no longer need to wait for the next great technological breakthrough, just the next great policies to deploy the technology we have now. The report also emphasizes the need to improve measurement and accounting for market-based incentives such as the carbon reduction projects through the Clean Development Mechanism and from land-use, land-use change and forestry (LULUCF).
Negotiators here in Durban have been actively discussing the report and referencing the emissions scenarios that show global emissions must peak sometime before 2020 if temperature rise is to be contained below 2 degrees C. Delegates have been referring to the 6-11 gigatonne gap on the plenary floors and in the working groups over the last week.
We had the opportunity to speak with Dr. Kejun Jiang of China’s Energy Research Institute and a lead author of the UNEP report, about their analysis and what China can do here in Durban to help bridge the gap.
Q: The UNEP report concludes that global emissions will need to peak before 2020 if the “emissions gap” is to be closed. How likely do you think it will be for countries to agree on this here in Durban and what about the time frame for when China’s emissions will peak?
A: It’s necessary for the world to see emissions peak by 2020. We can get there supposing China’s emissions peak in 2025, and developed countries will have significantly reduced emissions by 2025. This way, it’s still possible to control global average temperature rise below 2 degrees Celsius. It’s not quite possible to observe the global peak before 2015. For China, emissions are expected to peak around 2030. However, if we look at clean tech development in China now, the speed is very fast and it’s still possible to see major changes coming from China in 3 to 4 years to help close the gap.
Q: So is China’s Copenhagen pledge to reduce carbon intensity 40-45 percent enough to help bridge the emissions gap?
A: Actually, the 12th-Five Year Plan was made according to a target of 45 percent carbon intensity reduction. There are a lot of policies and actions in the plan on energy efficiency and non-fossil fuel energy. If all this work could be done well, it is possible for China to do better than the target.
Q: Technology transfer continues to be a very hot-button issue in the UN climate negotiations. Will China be pushing for technology transfer to contribute to their ability to help close the emissions gap?
A: There is much capital from China looking for investment opportunities, however domestic investment has been pretty much saturated, and they are now looking at overseas investments. Clean tech investment is a good choice because China has the most competitive technologies that can bring down the cost of wind and solar power. So this is what we want to convey here in Durban: it’s not just emission reductions, it’s also about the country’s future competitiveness in the clean tech sector.
China will have a lot of capital in the future, like I just said, and China is not really in need of CDM money, which is only a tiny little part of GDP. What China needs is high-end technology.
The Durban Agenda
Q: What do you think can be accomplished here in Durban?
A: So here are my suggestions for us observers this time in COP-17. First, we want to leave some more room for the negotiators. Copenhagen was about debating; Cancun was about moving forward, and Durban is a working conference where countries don’t really want to fight each other but to finish the “homework” left from Copenhagen and Cancun. Also, countries in Durban want to nail down some technical details. For example, the EU wants to promote a “road-map” this time, and countries like China are waiting for that proposal to see how much it can be promoted. If Durban fails again, then countries will start to doubt UN’s capability.
Also China is changing very fast, and the negotiators need time to follow up. For example, China expected financial support in Copenhagen, but this time, this is not a major issue for China.
Q: If Parties fail to decide on a second commitment period before the Kyoto Protocol expires next year, what do you think China’s response will be?
A: I think this [failure to agree on the Kyoto Protocol] would be unimaginable. Without the KP - the minimum-level of agreement - it would be a mess. Ideally, we should have an improved KP, both considering the needs from G77+China and developed countries. China can also compromise on some issues here in Durban.
Q: If a new agreement can only be made for 2020, do you think that would be too late?
A: Certainly too late. There is possibility for some countries to make new adjustments to their 2020 emission goals. So I think countries should start to make targets for 2025 and 2030. If those targets are made very clear, then we can start to place less emphasis on emission targets for 2020.
Angel Hsu is a PhD candidate at Yale School of Forestry and Environmental Studies and a contributing expert to ChinaFAQs.org; Max Song is a MEM student at the Yale School of Forestry and Environmental Studies; and Jonathan Smith is a JD/MEM candidate at Yale Law School and the Yale School of Forestry and Environmental Studies. They are all attending COP-17 in Durban.
Thursday, December 08, 2011
By Guest Author, Angel Hsu, PhD candidate, Yale School of Forestry and Environmental Studies
The following post is republished from China FAQs: The Network for Climate and Energy Information.
When China launched its first official pavilion at a UN climate conference last week, UN Framework Convention on Climate Change (UNFCCC) Secretariat Cristiana Figueres was there alongside China’s NDRC Vice Minister Xie Zhenhua to cut the ribbon. Swarmed by journalists in the standing-room only conference center of the China pavilion in Durban, Figueres applauded China for being a “trend-setter” in global renewable energy, resonating around the world and during the first week of climate negotiations in Durban.
“As I look at what has happened here at Durban in the negotiations this past week, what I see is a sailboat that has been sailing over very difficult waters, but with the wind blowing the right direction. And now that you have arrived, that boat now has a powerful motor behind it,” she said. The motor propelling talks forward into the second and final week of negotiations here in Durban may be developments in China’s negotiation position that emerged last week. An announcement that made waves was with regards to China’s willingness to consider signing on to a legally-binding agreement with binding climate targets after 2020 for the country.
Lead Chinese negotiator Su Wei told media last Friday that, “We do not rule out the possibility of legally binding. It is possible for us, but it depends on the negotiations,” Su is quoted as speaking in English rather than Chinese, presumably to make his point clear.
Although China made similar noises in Cancun, Su’s statement is the first time in the international climate negotiations that China has made this type of overture so clear with regards to a willingness to consider placing its post-2020 action into a legally binding instrument. This willingness to discuss the legal nature of post-2020 targets comes directly counter to the United States’ position put forth in Durban last week in which Jonathan Pershing, Deputy Envoy for Climate Change, said that a legally binding post-2020 agreement would be unacceptable unless other major economies also agree to be legally bound. Indeed it would seem to fulfill one of the US’ main conditions for moving forward.
If China is indeed open to placing its post-2020 commitment into an internationally legally binding instrument, it has just opened a pathway forward to both securing the Kyoto Protocol for the post-2012 period and building a bridge, with all Parties, to a legally binding regime in the near future. The impact of this is not to be underestimated.
Vice Minister Xie Zhenhua confirmed China’s stance when he spoke at a briefing for international NGOs immediately following the China Pavilion’s launch. “We can start the process for a legally-binding framework for issues after 2020,” Xie said, clarifying five conditions that must be met before China can make its commitments legally binding in an international agreement. These conditions are:
Parties must continue the Kyoto Protocol through a second commitment period;
Developed countries must meet financial commitments to provide developing countries $30 billion in fast-start financing and $100 billion per year by 2020 through the Green Climate Fund;
Institutionalization of consensus on finance, technology transfer, REDD+, adaptation, and transparency measures;
Commitment to completion of the review of adequacy of long-term goals scheduled to take place between 2013 and 2015.
Define a framework for a post-2020 agreement that upholds common but differentiated responsibilities, equity, respective capacities, and environmental integrity.
If all conditions are met, Xie says, “We are open to the process.”
Implications – Will China’s move bolster the EU mandate?
The question remains as to whether these major developments in China’s position here in Durban will have a significant impact on the negotiations in Durban. The European Union has stated its openness to placing its 2020 targets into the legally binding Kyoto Protocol if it is part of a package. The package includes a roadmap that would clearly show the way forward for all major economies to be in a binding regime in the post-2020 time period, the negotiations for which would end in 2015. China’s statements agreeing to internationally-binding emissions limits in a post-2020 framework might galvanize other major emerging economies such as India and Brazil to do the same.
Jennifer Morgan, the Climate and Energy Program Director at the World Resources Institute, explained the significance of China’s new posture:
“If China is indeed open to placing its post-2020 commitment into an internationally legally binding instrument, Europe and the most vulnerable countries are now its key allies. If these Parties can work together this week, Durban has a good chance of success,” Morgan added.
It is not yet clear what kind of commitment China would be willing to bind, and that level of specificity does not appear to be part of the current discussion.
Jonathan Smith (JD‘12/MEM’12) and Max Song (MEM’12) contributed to this piece.
Angel Hsu is a Phd candidate at Yale School of Forestry and Environmental Studies and a contributing expert to ChinaFAQs.org; Max Song is a MEM student at the Yale School of Forestry and Environmental Studies; and Jonathan Smith is a JD/MEM candidate at Yale Law School and the Yale School of Forestry and Environmental Studies. They are all attending COP-17 in Durban.
Friday, November 18, 2011
By Susanne Stahl
Dale Bryk, Director of the Energy & Transportation Program and a senior attorney with the Natural Resources Defense Council, recently spoke at the Yale School of Forestry & Environmental Studies about the future of climate change regulation on a panel with Dan Lashof, Director of NRDC’s Climate Center, and Vera Pardee, senior attorney in the Center for Biological Diversity’s Climate Law Institute.
YCELP: What is the future of cap-and-trade as a policy solution in the United States?
DALE BRYK: It already exists as a policy in the United States: the 10 Northeastern states launched the Regional Greenhouse Gas Initiative in January 2009. That program has some flaws, but in general I think the states are really happy with the benefits it delivers. The program provides a mechanism to shift gears from sending energy dollars out of state -- to West Virginia for example -- to import coal and instead keeping those energy dollars in the states, in the local communities to drive investment in efficiency, local construction jobs, and that has huge economic development benefits, in addition to lowering pollution and energy bills.
I think the states didn’t realize – even when they were designing that cap-and-trade program – how good it was going to be for them in terms of making that shift to clean energy and what the larger economic benefits would be within the states. California’s planning to launch its program next year, and there are probably 10 other states in the wings – so that’s all going to happen even though we don’t have comprehensive federal climate legislation, or a national cap and trade program. The programs in place at the state level are going to change the way people think about that policy, and I think that’s how we’re going to pave the way to doing something similar at the federal level.
YCELP: What do you see as the policy or regulatory mechanisms most likely to provide the largest greenhouse gas reductions?
DALE BRYK: We just got the vehicle standards. If you think about the wedges analysis a lot of people have done to show where we’re going to get these greenhouse gas reductions, the vehicle standards put us on track for significant reductions in the transportation sector.
Energy efficiency standards for vehicles, and then efficiency on the stationary side for residential, commercial, and industrial buildings and for appliances and equipment -- those policies represent the biggest, fastest, cheapest way to reduce pollution. It’s already cost effective, but there are all kinds of market barriers – so it’s just a matter of scaling up the policies that have been effective in the states where they’ve been implemented.
More has been done in residential and commercial buildings than industrial facilities – so scaling up in the industrial sector to make motors and industrial processes more efficient – and businesses more competitive -- is a key area for growth, as are existing buildings . A lot of the work that’s been done historically on efficiency has focused on new buildings, homes and offices, but now we are seeing New York and other cities working with the real estate industry on strategies to attract private sector financing for deep energy efficiency upgrades in existing buildings.
While efficiency is by far the quickest way to make reductions, especially since it pays for itself, there are a lot of market barriers, for example landlords do not have an incentive to purchase efficient appliances if tenants reap the rewards of those investments in the form of lower electric bills. And efficiency is more difficult to visualize so it doesn’t get the same public attention– people know what a wind farm looks like but they can’t imagine how better lighting, heating and cooling systems, windows and insulation can save more energy than a nuclear power plant produces, much less avoid the need for dozens of power plants. And then you have things that are politicized like the light bulb standards, which have actually created a lot more choice in the market place including a more efficient traditional lightbulb, and which will lower our national energy bill by $10 billion a year. So there’s a lot of misunderstanding – and efficiency is not as glamorous as renewable energy and even as climate policy was a few years ago (now it’s more of a mixed bag in terms of it being a political win for local and state politicians).
If Congress was functional, we could have something like a federal energy efficiency investment requirement for utilities that would just require them to invest in efficiency when it’s cost effective, but it’s hard to imagine such a policy, even if it was supported by industry, because things are so politicized. Industry, consumers and environmental groups strongly support the lightbulb standards and they are under fierce attack by the right wing of Congress. That leaves us with a state-by-state, industry-by-industry approach. The utility industry is further along than most other industries in their thinking on these issues but they still have a long way to go.
YCELP: Are there other measures or legislation pending that could prove to be a real push forward in reducing greenhouse gas emissions?
DALE BRYK: You have the straight-up state energy-efficiency and renewable energy policies and energy-efficiency resource standards in places like Ohio, which you might not think of as the hotbed of clean energy investment. But Ohio has both a huge number of solar manufacturing facilities – it’s a bright spot on the state’s economy on the manufacturing side – and they also have energy efficiency investment policies on the utility side. And you have a relatively new governor who didn’t come in with any particular interest in clean energy who I think we’re seeing embrace this sector as an economic driver in the state. Michigan also has a governor who’s very interested in clean energy. These things are on the cusp: there are policies in place, but they are just starting to deliver the fruits of the enormous potential they have to create jobs and save money for people, in addition to lowering pollution.
The other thing, not so much on the policy front, is working directly with the real estate sector and the finance sector to scale-up energy-efficiency retrofits, working more with the private sector on existing buildings and developing models like the one we have in New York City.
There is a policy element to it – they have city legislation that requires all large building owners to do retro commissioning, which is basically just making sure all the systems in their buildings work as they’re supposed to so you don’t have your air conditioning and your heating fighting against each other. Then you need to line up financing, and of course it helps to have a very powerful and active mayor like Mayor Bloomberg to encourage large building owners to demand efficiency investments. The policy element requires people to look at these issues and proves to them the huge opportunity they have to mine existing buildings as an energy resource, but then we need to line up everything so that it’s very easy for them to move forward.
That’s something that we’re working to replicate in other cities so it’s a ground-up approach that’s more focused on direct collaboration with the private sector than just straight-up policy work where you’re relying on the policy to be the primary driver.
YCELP: Are there measures pending that could be a real setback?
DALE BRYK: The Environmental Protection Agency is under court order to issue their regulations for greenhouse gases for power plants and industrial sources, and yet they have Congress threatening to pull their authority to do so under the Clean Air Act out from under them. And there’s interplay between what the states are doing, sort of pushing the envelope, and what EPA is doing where they can encourage each other. If a lot of the states are going to move forward on their own anyway, it’s not so scary for EPA to do that. And if EPA is going to move forward anyway, then it’s easier to get more states on board to do even more than that as they start to realize the economic benefits of shifting to a clean energy economy, as the Northeast states and California have done and as some Midwest states are starting to do. That could go in a virtuous cycle, or it could go in a vicious cycle. If EPA loses its authority, the state-level initiatives could be affected as well.
YCELP: Anything else you’d like to add?
DALE BRYK: We want to have climate regulation; we want to limit carbon dioxide with a pollution cap. When we sit in the think tank part of work looking at what’s the best policy and what’s the most efficient way to get the most reductions for the least cost, that’s all something that we want to achieve, but there are a lot of other ways to move the ball until we can get that.
So all the policies we can adopt on efficiency, on renewables, on vehicles, on alternative fuels, including expediting the commercialization of electric vehicles – there’s a huge opportunity to start moving down the road to 80-percent reduction by 2050 with these policies, all of which have traction now at the state level or in federal agencies, including EPA and the Department of Energy, where we can get things done. We have to put more of our thinking on how to move those balls faster and further because we certainly don’t want to rely on a polarized, dysfunctional Congress to create the policy framework we need to enable us to compete in the global clean energy market; we can’t put all our eggs in that basket, so we have to make the other baskets do even more than we thought they could in the past. As more and more people realize the benefits of clean energy in their own lives – lower energy bills, lower unemployment rates in their communities, lower asthma rates and an improved quality of life – it will be more difficult for ideologues in Congress to vote against their constituents’ best interests, and then we will start to see some opportunities open up for federal action.
DALE BRYK is the Director of the Energy & Transportation Program and a Senior Attorney with the Natural Resources Defense Council, where she oversees a team of 50 lawyers, scientists and technology experts working to develop policy solutions that will dramatically improve energy efficiency in buildings, appliances and industry; expedite commercialization of emerging renewable energy technologies; increase vehicle efficiency; drive investment in low-carbon fuels; and reduce vehicle miles traveled. Her expertise is in the area of energy and climate policy, including utility regulation and energy efficiency and renewable energy programs. She was integrally involved in the development of the Regional Greenhouse Gas Initiative, the cap-and-invest program launched by 10 Northeast states in January 2009.
Dale joined NRDC in 1997, prior to which she practiced corporate law at Davis Polk & Wardwell in New York. From 2002-2010 she also taught the Environmental Law Clinic at Yale Law School. Dale has a J.D. from Harvard Law School, a Masters Degree in international law and policy from the Fletcher School of Law and Diplomacy and a B.A from Colgate University.
Thursday, October 06, 2011
By Guest Author, Jonathan Smith, Yale Law School, J.D. '12; Yale School of Forestry and Environmental Studies, M.E.M. '12
The binding international greenhouse gas emissions reduction targets of the Kyoto Protocol are set to expire next year, but global greenhouse gas emissions show no signs of halting themselves. All eyes are focused on this December’s Conference of the Parties of the United Nations Framework Convention on Climate Change in Durban, South Africa to see how, if at all, the emissions reduction targets of Kyoto will be extended past 2012. The Yale Center for Environmental Law and Policy invited NRDC’s International Climate Policy Director, Jake Schmidt, to talk about recent developments in international climate negotiations, and what we can expect from Durban, as part of the Center’s new Climate Change Solutions: Frontline Perspectives from Around the Globe webinar series.
Jake’s presentation, entitled Key Steps on Global Warming Agreed in Cancun… Now What? (recording available here) focused on the major unresolved issues from last year’s conference in Cancun that are likely to be discussed and negotiated at Durban, including the transparency of each country’s emissions data, accountability of each country’s emissions reduction targets, and new funding pathways such as the Green Climate Fund. But of course, the elephant in the room is the conclusion of the Kyoto Protocol obligation period. With Kyoto as the ostensible driver of national greenhouse gas emissions reduction commitments the world over, significant changes to, or non-continuation of, Kyoto has the potential to throw a wrench in the best-laid plans of politicians, negotiators, and activists.
But, as Jake highlighted, many countries have recently been taking decisive emissions reduction action seemingly without direct relation to obligations under Kyoto. For example, neither of the top two emitting countries, China and the United States, has binding reduction targets under Kyoto, but both are nevertheless taking political action to reduce domestic greenhouse gas emissions. China is a party to Kyoto but not listed as an Annex I country, and thus has no binding emissions targets. Yet its most recent Five-Year Plan has made emissions reduction promises formed at the Copenhagen conference into binding domestic law, and Chinese investment in clean energy technologies continues to rise. The United States, which has not ratified the Kyoto Protocol, is nevertheless also following through with policies to reduce emissions such as higher fuel efficiency standards and revising emission standards for power plants. The U.S.’s energy-related CO2 emissions have decreased since 2005, and the U.S. Energy Information Administration predicts that just with the policies of today, emissions will stay below 2005 levels until at least 2035.
Globally, clean energy investments increased 30% from 2009 to 2010, and 2010 was the first year that nearly half of new energy capacity was non-fossil in nature. It is statistics like these, and proactive national emissions reduction actions like those above, that provide glimmers of hope for climate policy post-Kyoto. As Jake notes, the question is no longer if countries will take action, but rather how much action will they take?
Friday, September 02, 2011
By Guest Author, Jasmine Hyman, PhD candidate, Yale School of Forestry & Environmental Studies
Siem Reap, home of the Angkor Watt temples, is among Cambodia's poorest provinces . Four out of ten villages lack access to clean drinking water; literacy rates are among the lowest in the country; 53 percent of all children are malnourished, and average incomes hover just above $1.80 USD per day . The tourism industry here brings in over $640 million USD per year, yet foreign revenue streams do not ensure (and may indeed extract from) local development -- though the draw of external revenue streams is understandably attractive for Least Developed Countries such as Cambodia.
But a different form of foreign investment has dramatically changed Arun and Mlis Keo's  economic outlook. The couple, who farms just 20 kilometers from the Angkor Watt heritage site, acquired a biodigester through the National Biodigester Program (NBP) run by the Ministry of Agriculture, Forestry and Fisheries of the Cambodian Royal Kingdom (MAFF) and the Netherlands Development Organisation (SNV-Cambodia). The biodigester, which converts livestock dung to biogas, fuels their cooking and household lighting needs and has decreased their energy bill by $14.39 per month -- while saving them one and a half hours per day in fuelwood collection. The slurry waste from the biodigestion process substitutes for chemical fertilizer, generating an extra annual savings of $52 per year.
The Keo family represents just one of 8,000 Cambodian rural homes, spanning nine provinces, that have qualified for a flat $150 subsidy and soft private loans to invest an average of $472 into a household-scale biodigester. Considering that the average annual Khmer income is $412, the NBP's popularity (and zero loan-default rate) deserves investigating .
When talking about the biodigester, the Keos do not mention the environmental or health benefits of the project. The best part of owning a biodigester is the convenience, Mlis Keo said. She no longer needs to collect firewood or buy charcoal, and cooking rice on a gas stove is much easier than building and maintaining a fire.
But reductions in household soot and atmospheric methane from the livestock waste are certainly points of interest for NBP, which is trying to convert those benefits to carbon credits for international sale.
Carbon finance -- foreign investment in greenhouse-gas-reducing projects in developing countries that generate, in turn, carbon credits that developed countries may buy and use for their own climate commitments -- has been a source of controversy in international headlines and academic debate since the Kyoto Protocol launched a global carbon market in 2005. Proponents point to an estimated $141.9 billion market value in 2010  while critics underscore imbalanced regional investment patterns  and uncertainty regarding the final destination of the revenue streams.
While much has been said on the shortcomings of carbon finance, the market's local successes are poorly understood and may, in fact, be hindered by current market rules. Further, while the future of the Kyoto Protocol is uncertain, international enthusiasm for carbon-financed cookstove programs is on the rise with the launch of the Global Alliance for Clean Cookstoves. But how can carbon finance truly benefit the poor? And are current requirements for defining a carbon offset project relevant for development objectives?
These are just a few of the issues driving my research. Through funding by the Yale Center for Environmental Law and Policy and pilot support from the Yale Institute of Biospheric Studies, I am collaborating with the Nexus Alliance of small-scale project developers to trace benefit flows and to identify principles for success when designing pro-poor cookstove and kitchen interventions.
Jasmine Hyman, M.Sc. (LSE), B.A. (Columbia) is completing a doctorate at the Yale School of Forestry & Environmental Studies, where she holds a doctoral fellowship from the National Science Foundation. Her research seeks to identify design principles for global climate finance schemes that promote equitable development and social justice.
 Kosa, Chea and Mara, Yos (2006), "Children's Empowerment through Education Services (CHES) Project in Siem Reap Province," in Winrock International (ed.), (Phnom Penh).
 Doherty, Ben (2010), "Angkor Butterfly Hunters Tell of Poverty Amid Tourist Wealth," The Guardian.
 Names have been changed.
 van Mansvelt, Rogier (2011) "Biodigester User Survey 2009-2011," for NBP, Phnom Penh
 Capoor, Karan and Ambrosi, Philippe (2010), "State and Trends of the Carbon Market 2010," (Washington DC: The World Bank).
 UNEP RISOE, CDM in Charts, Accessed July 2011.
Wednesday, August 31, 2011
By Guest Author, Angel Hsu, PhD candidate, Yale School of Forestry and Environmental Studies
In March, China released its 12th Five-Year Plan – a blueprint outlining the key economic and development targets for the country over the next few years. Unlike previous Plans, climate change and energy are featured prominently, and a strong emphasis is placed on a slower, more sustainable growth trajectory. Not only is the 12th Five-Year Plan the first to mention climate change, but it adopts as part of national, binding law the climate pledges China first made at the United Nations Framework Convention on Climate Change (UNFCCCC) Copenhagen climate summit in December 2009. Binding targets for a range of other environment and energy issues are also included in the Plan, including important air and water quality pollutants that were previously absent.
Part of the country’s ability to achieve these targets will be in its capacity to measure and track progress toward its goals. The Chinese government has pledged implementation of “well-equipped and statistical and monitoring systems” and “index evaluation systems” in the 12th Five Year Plan, indicating an increasing awareness of the importance of data, information and robust infrastructure to ensure targets are met. However, while there are signs of China’s move toward a more “data-driven” approach to decision-making in the formulation of the latest Plan, political sensitivities around pollution information still persist, meaning China may still confront challenges when trying to improve environmental conditions.
The 12th Five-Year Plan comes at a time of growing recognition from the Chinese government regarding the importance of information for environmental decision-making. In 2010 the Chinese government completed its first national census of pollution, requiring more than $100 million U.S. dollars, 570,000 staff and nearly two years to complete. The survey mapped more than 6 million sources of residential, industrial, and notably agricultural pollution, which had been previously absent from measures of water contamination. The survey found that previous measures of water pollution – specifically chemical oxygen demand – had neglected to include non-point agricultural sources of pollution, from fertilizer and pesticide effluent as well as landfill leakage. Including these non-point sources of discharge meant that prior measures of water pollution had been missing over half of the baseline data for chemical oxygen demand – from 13.8 million tons in 2007 to 30.3 million. At the time, Chinese officials noted that the targets would not be revised based on the new data, while still touting China’s success in meeting COD reduction targets in the 11th Five-Year Plan. However, the findings from the survey did lead to the adoption of a binding reduction target for a critical water pollutant – ammonia nitrogen – and continued reduction goals for Chemical Oxygen Demand (COD) in the 12th Five-Year Plan. The adoption of these new water pollution targets were largely due in part to the survey results, which allowed for the government to set new targets and refine previous ones based on this new information.
While this example speaks to the progress China is making in terms of measurement and performance tracking, political sensitivities surrounding other environmental data still prove to be barriers to policy changes. Earlier this year, the Chinese Ministry of Environmental Protection (MEP) released draft proposals to amend its Air Pollution Index (API)  to an Air Quality Index (AQI) that more closely resembles the U.S. version . While the proposed amendments include significant improvements – such as including ozone measurements, improved calculation methodologies, and standardizing color-coding schemes – PM 2.5  is notably absent.Experts, such as Ma Jun, Director of the Institute of Public and Environmental Affairs (IPE), a Beijing-based NGO, and former Yale World Fellow, have suggested that leaving out PM 2.5 is due to political rather than technical concerns. “Government agencies feel the index may hurt the image of many cities that want to attract investment or that they may not be able to improve PM 2.5 pollution in a short time,” Ma told the Global Times. U.S. diplomatic cables have also revealed that lack of measurement of PM 2.5 and other dangerous air pollutants could be due to fear of political consequences.
So while we can see evidence that China is embracing improved data-based decision-making, the results are mixed because political vulnerability toward environmental pollution is still a serious concern amongst Chinese leadership who fear citizen unrest and social instability. What China must realize are the benefits from knowing risks and exposures to environmental harms and pollutants, which is not possible without measurement. Failing to incorporate critical pollutants in national environmental policies only pushes serious concerns under the rug, in a type of “act now, apologize later” mentality that in many cases have led to dire political ramifications for Chinese government officials when harmful pollution disasters surface .
Therefore, while the 12th Five-Year Plan makes important inroads in establishing more comprehensive environment and energy-related targets, equal progress needs to be made in terms of data transparency and a shift toward a government culture that doesn’t fear data and numbers.Only then can the Chinese leadership expect to formulate sound policies and robust systems to drive environmental results.
 PM 2.5 refers to air particulates with a diameter of 2.5 microns or less; known to have serious health implications such as asthma, lung cancer, and cardiovascular disease, due to their ability to penetrate human lungs.