Tag: climate change

The First Cut is the Deepest: EPA Proposes First GHG Cuts for Power Plants

MOUNTAINS_Mountains_Montana_MHoldenBy Cecilia Segal — Oct. 9, 2013 at 2:14pm

On September 20, 2013, EPA issued a notice of proposed rulemaking to set standards of performance for GHGs emitted from new stationary sources. The proposal calls for new natural gas-fired plants to be built with an emissions limit of 1,000 lb CO2/MWh for smaller units and 1,100 lb CO2/MWh for larger units. New coal-fired plants must not exceed an annual average emission rate of 1,100 lb CO2/MWh. Alternatively, coal plants may elect to meet a 1,000 or 1,050 lb CO2/MWh/yr average over a seven-year period.

This rule proposal comes on the heels of a similar rule that was proposed in April 2012 but withdrawn on September 20, 2013. That earlier rule proposed a uniform standard for both natural gas- and coal-fired plants. Given new information discovered and the number of public comments received – over 2.5 million –in response to the 2012 rule, EPA felt substantial changes to the proposed standards were warranted and thus rescinded the 2012 version.

At first glance, the 2013 rule seems modest at best. It impacts only new plants being built, to the exclusion of existing, modified, or reconstructed sources. EPA also asserts that due to current industry trends – where low natural gas prices will encourage the construction of new natural gas, and not coal, power plants that already meet the emissions limits proposed – this rule “will result in negligible CO2 emission changes, quantified benefits, and costs by 2022.” With no declared costs or benefits, why then are environmentalists celebrating this rule and coal industry representatives condemning it?

There are a few reasons for this rule’s polarizing effect. For starters, this rule will in fact prevent the construction of any new coal-fired power plants that are allowed to emit an unlimited amount of CO– a huge win for environmentalists. Instead, such plants must incorporate partial implementation of carbon capture and sequestration (CCS) technology to reach the emissions limits. This is the piece that worries industry advocates. Because of its limited implementation to date, CCS is a young, expensive technology. Indeed, a coal plant with partial CCS will cost either 109 or 110 dollars per Megawatt hour, compared with 92 or 97 dollars per Megawatt hour without CCS technology. However, the main benefit of regulating CCS technology is that it will encourage technological innovation and widespread commercialization, which will in turn lower costs.

A bigger cause of the rule’s controversy is its symbolic effect. With this rule proposal, EPA is utilizing the authority granted it under Massachusetts v. EPA to regulate GHGs emitted by stationary sources for the first time ever. Moreover, this first step is a pivotal piece of President Obama’s Climate Action Plan, in which Obama intends to take executive action to evade congressional gridlock and move ahead with climate change regulation. This includes a rule imposing emissions limits on existing sources, to be proposed in June 2014. For this reason, opponents are denouncing the move as sparking a “war on coal.”

The real fight, then, is just gearing up. With standards regulating existing sources looming on the horizon, and possible Supreme Court review of Coalition for Responsible Regulation v. EPA, the D.C. Circuit decision upholding EPA’s GHG regulating authority, the next few months will mark a significant era in the U.S.’s stance on climate change.

A global solution to climate change: the possible impact of Bond v. United States

SKY_rainclouds_WY_alecharrisBy Theresa Borden — Oct. 1, 2013 at 3:33pm

New legislation to deal with the global problem of climate change may seem politically unrealistic given the current inhospitable environment in Congress, but there are reasons to think that the prospect of reaching an international agreement may be more viable now than it was in the past.  UN Secretary-General Ban Ki-Moon recently called for world leaders to meet in anticipation of the 2015 international climate meeting in Paris and the Intergovernmental Panel on Climate Change (IPCC) recently announced that humans are the dominant cause of global warming since the 1950s.  Although climate change denial still exists in the U.S., the international community generally accepts the science.  Interestingly, this could indicate that reaching an international agreement is easier than reaching a domestic agreement.  Of course, Congressional action would still be necessary to ratify any treaty, but if the enumerated shortcomings of the Kyoto Protocol are addressed in the 2015 negotiations, domestic action may be facilitated, especially if the President stands behind the agreement.

But even if the legislature and the executive get behind an international climate change agreement, there is still the judiciary.  The Supreme Court recently granted cert for Bond v. U.S., which challenges Congressional authority to enact a federal statute enforcing the Chemical Weapons Convention on the grounds that it intrudes on areas of police power reserved to the states.  The Court found that Ms. Bond lacks standing to bring a claim that applying the chemical weapons treaty to her violated the Tenth Amendment, thus avoiding revisiting Missouri v. Holland.  However, the Court did certify one question that may have implications for international climate change agreements: “Do the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations?”

Although Bond may not have a direct effect on international climate change negotiations, it could provide some guidance on how to frame the scope of the treaty and the government’s treaty obligations.  If an international agreement is reached, the U.S. must promulgate implementing legislation that will pass not only the political process, but also judicial review — it is possible that climate change deniers will try to undermine any climate change agreement in court.  Bond, along with EPA v. EME Homer City Generation,[1] will provide some insight into how the Court determines the scope of “traditional state prerogatives” and how such considerations play out in environmental regulation.

Meaningful climate change regulation is inevitable; the question is when it will come.  Environmentalists must be aware of not only possible political solutions, but also potential fallout of judicial determinations.  If an international deal is brokered, it would be counterproductive to provide domestic dissenters with any fodder to challenge it.  Hopefully the Court will rule narrowly in Bond, and not make any pronouncements that would confuse settled federal authority to regulate interstate pollution.  Even if it would be preposterous for domestic dissenters to challenge federal authority on such grounds, the commerce clause challenge to the Affordable Care Act — which many commentators dismissed as irrelevant — cautions against completely ignoring the possibility.


[1] Specifically, the Court’s consideration of “whether states are excused from adopting state implementation plans prohibiting emissions that ‘contribute significantly’ to air pollution problems in other states until after the EPA has adopted a rule quantifying each state’s inter-state pollution obligations.”

In First Address as EPA Head, Administrator Gina McCarthy Stresses Collaboration and the “Opportunity of Climate Change”

Mountains_NH_scaravelloBy Molly Cohen — Aug. 1, 2013 at 7:47am

“Let’s talk about [climate change] as the opportunity of a lifetime, because there are too many lifetimes at stake,” newly-confirmed EPA Administrator Gina McCarthy proclaimed during her speech on this past Tuesday at Harvard Law School, her first as head of the EPA.  Addressing a crowd of nearly 300 faculty, students, environmental officials, and community members, Administrator McCarthy described how fighting climate change can spur the economy and noted the need for the federal government to partner with and follow the lead of state and local actors.

Throughout her address, Administrator McCarthy stressed the opportunities that preventing climate change offers, explaining that curbing greenhouse gases can help spark innovation, grow jobs and strengthen the economy. McCarthy urged consideration of climate change not as an ancillary environmental issue, but rather as a core economic challenge that must be faced head on. She expressed hope that the country’s dialogue can move beyond the false dichotomy of environmental protection versus economic growth, citing examples of cost-effective environmental initiatives such as the Clean Air Act, whose economic benefits outweigh its costs thirty to one, and the Brownfields Development Program, which leverages seventeen dollars of private financing for every dollar of EPA funding for cleanup and redevelopment activities.

Administrator McCarthy applauded state and local government environmental protection and climate change efforts, noting that EPA should and would follow state and local governments’ lead.  She congratulated Massachusetts, Boston and Somerville on their environmental efforts, citing the cleanup of Boston Harbor as a major local environmental success.  McCarthy stressed that EPA cannot and should not dictate solutions and instead must collaborate with state and local partners. McCarthy characterized her job as one of chief collaborator and explained, “I don’t think it is my job out of the gate to know what the path forward is. It is my obligation to let those voices be heard and listen to them.”

Throughout her speech, McCarthy was both realistic and ambitious.  “It is not supposed to be easy. It is supposed to be hard,” she explained, in reference to finding solutions to the most pressing and complicated environmental issues of the day.  She added, “climate change will not be resolved overnight, but it will be engaged over the next three years—that I can promise you.”

McCarthy was introduced by her daughter, Maggie McCarey, a Boston-area environmental professional who provided a personal portrait of Administrator McCarthy.  Harvard Law School Dean Martha Minow kicked off the remarks, lauding recent successes of the environmental community at the Law School, mentioning in particular the efforts of the Environmental Policy Initiative, the Environmental Law and Policy Clinic, and the Environmental Law Society.

Legal Neighborhoods

By Stephen R. Miller

Political and legal tools have emerged since the 1970s, and especially in the last two decades, that provide political and legal power to neighborhoods. However, these tools are often used in an ad hoc fashion, and there has been scant analysis of how these tools might work together effectively. This Article asserts that those locations in cities that evoke a “sense of place” are created not just with architectural or landscape design, but by the operation of neighborhood legal tools as well. This Article argues that cities consciously overlay the panoply of emergent neighborhood legal tools as a means of place-building. This approach is referred to in the Article as creation of a de facto “legal neighborhood.” This approach does not call for secession of neighborhoods from cities or for the wholesale privatization of public functions, as have others that argue for neighborhood empowerment. Rather, the Article asserts that the collective operation of these neighborhood tools is greater than the sum of their parts, providing a method for civic engagement at a level city-wide politicians feel comfortable serving, in which residents feel comfortable participating, and which is proven to assist the kind of place-making that makes densely settled areas attractive. These features of the neighborhood make understanding legal neighborhoods a necessary component to any effort to address the built environment’s social, political, and especially its environmental effects, such as climate change. The Article provides approaches for linking the neighborhood to city and regional affairs, and a history and theory of the concept of the neighborhood as an argument for the important role and function of neighborhoods in American life.

Cite as: Stephen R. Miller, Legal Neighborhoods, 37 Harv. Envtl. L. Rev. 105 (2013).

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Responses to Climate Migration

By Katrina M. Wyman

In recent years there have been suggestions that climate change might generate 200 million or more migrants by 2050. In response to these suggestions, and concerns that existing law and policy will be inadequate to deal with the expected displacement, there recently have been several proposals for new legally binding multilateral instruments specifically addressing climate migration.

This Article makes three contributions to the nascent literature on the legal and policy responses to migration induced by climate change.

First, it identifies the two principal gaps in existing law and policy that underpin to a significant extent the recent proposals for a new binding multilateral instrument, describing these gaps as the “rights” gap and the “funding” gap.

Second, this Article analyzes three of the leading proposals for a new binding multilateral instrument. It identifies the ways that these proposals would respond to the rights and funding gaps and emphasizes the proposals’ limitations.

Third, this Article emphasizes that addressing climate migration ultimately requires increasing the resilience of communities especially vulnerable to climate change. It then identifies ways to mitigate the effects of the rights and funding gaps by reducing existing vulnerabilities to climate change, without a new binding multilateral instrument. While a series of measures relying largely on existing legal and policy tools may seem less satisfying than proposals for a new binding multilateral instrument, these measures are more likely to address the concerns about human vulnerability to climate change that the proposals for new binding multilateral instruments have admirably highlighted.

Cite as: Katrina M. Wyman, Responses to Climate Migration, 37 Harv. Envtl. L. Rev. 167 (2013).

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Changing Climate, Unchanging Act, Improvising Agency, Enabling Court: The Story of Coalition for Responsible Regulation v. EPA

By Laura King

Coalition for Responsible Regulation v. EPA follows from and amplifies the Supreme Court’s decision in Massachusetts v. EPA. Both cases announce the Environmental Protection Agency’s power to regulate greenhouse gases under the Clean Air Act — with Massachusetts v. EPA prodding a reticent EPA into regulation of greenhouse gases under the motor vehicle provision of the Act, and Coalition for Responsible Regulation v. EPA affirming both EPA’s obedience to Massachusetts v. EPA and the agency’s new willingness to extend greenhouse gas regulation to stationary sources. The cases are significant because they together stimulated and sustained the first controls on greenhouse gases in the United States, altering a status quo in which greenhouse gas emissions were free — not taxed or regulated or otherwise constrained.

Overall, Coalition for Responsible Regulation v. EPA is a win for the environment. Its effect is to preserve permitting requirements for stationary sources that emit greenhouse gases. It also supports and extends the Supreme Court’s recognition in Massachusetts v. EPA that EPA may regulate greenhouse gases under the Clean Air Act. However, what the case reveals about the American legal system’s ability to respond to changes in the natural world is sobering. It exposes a system in need of revision: one in which lawmaking, designed to be measured, manages instead to be dawdling, and agencies and courts must summon all of their resources — prognostication, strategy, rhetorical finesse, and luck — to turn outdated statutes toward pressing threats. In this case, in an effort to provide some response to climate change and thus fulfill broader public mandates, both EPA and the D.C. Circuit held statutory language at arm’s length: EPA, by promulgating rules that “tailored” the clearest kind of statutory language — numbers; the court, by calling on standing doctrine to avoid facing — and thus having to overturn — EPA’s fast-and-loose interpretation.

These choices, which were essentially workarounds to avoid the application of straightforward statutory language, together succeeded in preserving greenhouse gas regulation, but not without risk and compromise to environmental positions. Whenever an agency departs from statutory language, it risks reversal. That risk is especially acute when the reviewing court is the D.C. Circuit and the reviewing panel includes David Tatel, who, in his capacity as a judge on the D.C. Circuit, has urged agency officials — if they are to satisfy the court and fulfill their role as responsible public servants — to “(1) [r]ead the statute; (2) read the statute; (3) read the statute!” The D.C. Circuit, for its part, preserved EPA’s workaround by doing a workaround itself, one that shrinks somewhat that cornerstone of environmental litigation: standing doctrine.

Part I of this comment puts Coalition for Responsible Regulation v. EPA in context by reviewing the history of greenhouse gas regulation under the Clean Air Act. Part II profiles the case itself. Parts III and IV use Coalition for
Responsible Regulation v. EPA as a showcase for the nimble, risky choices required of agencies and courts as they use outdated statutory frameworks to respond to new environmental challenges. Thus, Part III shows EPA balancing the danger of taking a red pen to the Act, on the one hand, against the danger of overseeing a sprawling regulatory program, on the other. Part IV shows the D.C. Circuit preserving EPA’s approach to regulation of greenhouse gases at the cost of narrowing the doctrine of standing. The trade, as we will see in the details, is not terrible, but it is a compromise nevertheless.

Cite as: Laura King, Changing Climate, Unchanging Act, Improvising Agency, Enabling Court: The Story of Coalition for Responsible Regulation v. EPA, 37 Harv. Envtl. L. Rev. 267 (2013).

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Toward an International Aviation Emissions Agreement

By Brian F. Havel & Gabriel S. Sanchez

It is impossible to predict the eventual stopping place of the climate change discourse. If current evidence is to be believed, international dialogue will intensify as we draw nearer to the hypothesized “zero hour” of irreparable catastrophe. Stepping back from any prophesies of doom, we conclude with two statements that we believe encapsulate this Article’s contribution to the discourse. First, a plausible aviation emissions reduction agreement can ensure that aviation “does its part” by reducing the sector’s emissions to a sustainable level without sacrificing its economic viability. Second, the convergence of stakeholder interests within international aviation will further ensure that the agreement can serve as a lead sector for future (and wider) international collaboration on climate change. And although the agreement framework proposed here is incremental rather than “big bang,” the principle of International Paretianism indicates that the former is more feasible than the latter. Under the canopy of a sectoral treaty among like-minded states, international aviation can responsibly reduce its environmental impact while remaining a force for dynamic economic growth in the coming century.

Cite as: Brian F. Havel & Gabriel S. Sanchez, Toward an International Aviation Emissions Agreement, 36 Harv. Envtl. L. Rev. 351 (2012).

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Carbon Offsets are a Bridge Too Far in the Tradable Property Rights Revolution

By Tyler McNish

Tradable property rights-based carbon offsets are widely used as a policy tool for combating the greenhouse gas emissions that cause climate change. However, academics, non-governmental organizations, and market participants have criticized carbon offset mechanisms’ economic inefficiency and dubious environmental benefits. This Article traces these criticisms to the microeconomic structure of the offset market. Offsets were envisioned as a way to use self-regulating market forces to stimulate investment in emissions mitigation projects efficiently, but tradable property rights are inherently ill-suited to that task. Consequently, policymakers ended up designing a Rube Goldberg-esque scheme that is neither efficient nor self-regulating. The financial intermediation industry through which offsets are certified and traded consumes approximately thirty percent of all carbon offset funding, such that less than seventy cents out of each dollar invested in international greenhouse gas mitigation reaches its target. At the same time, the private sector-led system inappropriately cabins the authority of public sector regulators — the only market participants with an incentive to ensure the environmental quality of the assets exchanged. Systemic risk is also a concern: the offset mechanism’s substitution of abstract, tradable securities for simpler contract-based lending bears an uncanny resemblance to developments in the securitized mortgage lending industry prior to the 2008 crisis. Direct subsidies issued to emissions-reducing projects by a publicly administered fund could likely achieve better environmental outcomes at lower cost.

Cite as: Tyler McNish, Carbon Offsets are a Bridge Too Far in the Tradable Property Rights Revolution, 36 Harv. Envtl. L. Rev. 387 (2012).

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