On the Environment
Environmental Law & Governance
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.
Tuesday, July 12, 2011
By Guest Author, Yaron Schwartz, Research Assistant, Yale Center for Environmental Law and Policy
The U.S. Environmental Protection Agency released this past Friday the Cross-State Air Pollution Rule (CSAPR), a new and potentially powerful regulation that limits the amount of sulfur dioxide (SO2) and nitrogen oxides (NOx) that can cross state borders. CSAPR is a response to the environmental dilemma created by airborne pollutants that can disperse widely and across state boundaries, a dilemma that particularly afflicts the eastern half of the United States (for instance, sulfur dioxide emissions from a Pennsylvania power plant creating acid rain in New York’s Adirondacks). Under CSAPR, 27 states will be required by 2014 to cut their SO2 emissions to 2.4 million tons per year and their NOx emissions to 1.2 million tons per year, down from 8.8 million tons and 2.6 million tons in 2005.
CSAPR’s public health and environment benefits could be vast. The EPA announced that they expect the rule to prevent 34,000 premature deaths, 15,000 nonfatal heart attacks, 19,000 cases of acute bronchitis, 400,000 cases of aggravated asthma, and 1.8 million sick days a year beginning in 2014. The EPA also estimated that CSAPR’s benefits will overwhelmingly outweigh its costs. The following graphic tells the story well.
For more information about the EPA’s new rule on cross-state pollution, please visit: http://www.epa.gov/airtransport/.
Wednesday, June 22, 2011
By Guest Author, Yaron Schwartz, Research Assistant, Yale Center for Environmental Law and Policy
In a creative effort to curb carbon emissions, six states, along with New York City and several land trusts, decided to pursue a different policy tactic than previous environmental campaigns. Rather than lobbying for Congressional legislation, this coalition sued five major electric utilities and the Tennessee Valley Authority in 2004, claiming that their emissions constituted a public nuisance and, therefore, should be regulated by the courts under federal common law. The case eventually reached the Supreme Court, bringing national attention to this environmental campaign and issue.
This week, however, the Supreme Court unanimously ruled in favor of the defendants in American Electric Power v. Connecticut. The Court stated that it was the responsibility of the Environmental Protection Agency (EPA) as charged under the Clean Air Act to regulate US carbon emissions, not that of the courts. As Justice Ruth Bader Ginsburg argued, "Congress set up the EPA to promulgate standards for emissions, and the relief you're seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super EPA."
While undoubtedly a setback for those who desire real reductions in U.S. carbon emissions, this case may still have a silver lining. By highlighting the responsibility of the EPA to set standards for carbon emissions, the Court has placed renewed pressure on the EPA to take meaningful action on climate change. The Court’s decision has also clarified the stakes for all concerned. As long as Congress refuses to address climate change through new legislative solutions, the EPA will remain the only national policymaking body in the United States with the ability to tackle the problem. Efforts to impede or constrain EPA’s regulatory authority under the Clean Air Act now seem doubly dangerous.
Read the Court’s official decision in American Electric Power v. Connecticut.
Tuesday, April 05, 2011
By Josh Galperin, Associate Director
Sobering look at sea level rise in the Northeast and the hard choices it puts before us. Do taxpayers pay to defend coastline with expensive sea walls in what looks to be a losing battle? Do emotionally-invested homeowners on the coast retreat now while their property may be at its optimal value? What can we save from the sea's rise, if anything? How will we as a society triage the many victims of this climate change harm?
I detect no real sense that policy makers have a good handle on how to resolve, or even approach, these kinds of terrible choices. Unfortunately, going forward blindly is also a choice, and one that usually doesn't end too well.
Friday, April 01, 2011
By Josh Galperin, Associate Director
There are many valuable lessons to be drawn from the Regional Greenhouse Gas Initiative (RGGI), the nation's only operational, and mandatory, cap-and-trade program. One worth dwelling on is the effectiveness of RGGI's CO2 emissions cap. Recent analysis suggests this cap is much too forgiving -- not just now, but, more importantly, also over the next two decades.
The whole point of the RGGI emissions cap is to create a market for CO2 emissions from power plants that will ultimately drive down those emissions over time in the most economically efficient way possible. A relatively harder cap - one set below actual CO2 emissions, for example - should make RGGI's tradeable CO2 pollution allowances more scarce and thus more valuable to polluters, resulting in higher prices per allowance than a cap set above actual emissions would. The key idea here is that RGGI's cap on CO2 emissions from its regulated entities - electric utilities basically - creates a new market that has the potential to push those utilities towards low- or no-carbon generation. Where policy makers set the cap can therefore matter a great deal; a relatively tough one pushes harder than a relatively lenient one. This chart, produced on behalf of RGGI, strongly suggests the RGGI cap is not hard enough now, nor will it be hard enough in the future:
The important lines to look at for our purposes are the dashed one - that's the RGGI cap as set by agreement of the RGGI members - and the solid black line - that's both historical and projected total CO2 emissions from RGGI's regulated entities. You can see that presently, the cap is simply way too high (and to be fair, some of that is on purpose). The factors behind the recent massive drop in actual CO2 emissions are several (more on that later). The recession undoubtedly plays a huge part. Nevertheless, the cap just does not appear to be exerting real pressure on utilities right now. Maybe that's not a problem. There's an argument that a soft cap is just fine early on, as we refine and tweak RGGI. That argument might be even stronger in the current economic climate. No need to clamp down on utilities in the midst of the recession.
So perhaps the short-term performance issues of the cap are okay to put aside for the moment. That's not at all true for the long-term performance issues. Here's the major problem, and one policy makers should make an urgent focus of their thinking: According to these projections, the cap doesn't appear to really bite until maybe 2030 or later, and that's just too late in the scheme of things. Climate science tells us we need meaningful CO2 reductions much much sooner than that to avoid catastrophic harms. So what's the point of an emissions cap if it doesn't drive change when we need it? It's time to give serious thought to how best to tighten the RGGI cap to make it better correspond with the scientific reality we find ourselves in.
Wednesday, March 30, 2011
As oil prices increase and energy security becomes a concern in the US, more is being done to explore cleaner burning fuels such as natural gas. Natural gas has seen big increases in the number of wells and total production as shale gas extraction, in particular, intensifies. The EPA projects that 20% of US gas supply will come from shale gas by 2020.
An EPA report in 2004 found that "there was little to no risk of fracturing fluid contaminating underground sources of drinking water during hydraulic fracturing of coalbed methane production wells." But public concern over the process by which shale gas is extracted known as hydraulic fracturing, or "fracking," has escalated with the growing number of wells. Each well requires the pumping of tremendous amounts of fracking fluid into the earth and, according to the EPA's 2004 report, "[t]here is very little documented research on the environmental impacts that result from the injection and migration of these fluids into subsurface formations, soils, and USDWs." Until last year (when the EPA called for the voluntary reporting of chemicals used in fracking fluids), many of the chemicals used in fracking were unknown. Chemicals now known to sometimes be involved in the process include: diesel fuel (which contains benzene and other toxic chemicals), polycyclic aromatic hydrocarbons, methanol, formaldehyde, ethylene glycol, hydrochloric acid, and sodium hydroxide. Given this situation, the EPA has announced another study to examine the effects of hydraulic fracturing on drinking water and groundwater. The EPA aims to issue preliminary findings in 2012 and a full report in 2014. The draft study plan is available at here.