Climate Change | Environmental Law Institute

New Book Arms Policymakers, Lawyers, Private Sector With Tools to Combat Climate Change in the United States

Read more about New Book Arms Policymakers, Lawyers, Private Sector With Tools to Combat Climate Change in the United States

March 2019

Washington, D.C.: With Democrats and Republicans arguing over the virtues and pitfalls of a Green New Deal, and with President Trump’s latest budget proposal cutting many environment- and energy-related programs, climate change policy in the United States is as divisive as ever. But a comprehensive new resource from leading climate attorneys released Monday lays out a myriad of legal pathways available to policymakers at every level of government and in private governance to reduce greenhouse gas emissions.

The Global Climate Change Talks Are Moving On — and So Am I

Read more about The Global Climate Change Talks Are Moving On — and So Am I

Author

Robert N. Stavins - Harvard Kennedy School

Harvard Kennedy School

Current Issue

March-April 2019

Issue

It has been 15 years since I began writing this bimonthly column offering an economic perspective on the environment. Over that time, I have come to focus more and more — in my research, my teaching, and in this column — on the ultimate environmental policy challenge faced by the United States and, for that matter, the world, namely the threat of global climate change. I say this because of two dimensions of the science of climate change, each of which leads to profound economic implications, and thus to great political challenges.

First, greenhouse gases mix in the atmosphere, and so the location of emissions has no effect on impacts — climate change is a global commons problem. Any jurisdiction taking action incurs the costs of its actions, but the climate benefits are distributed globally.

Therefore, for virtually any jurisdiction, the climate benefits it reaps from its actions are less than the costs it incurs, despite the fact that the global benefits may be greater — indeed much greater — than the global costs. This presents a classic free-rider problem, which is why international, if not global, cooperation is essential.

Second, there is a temporal dimension that takes us from science to economics to politics. Greenhouse gases accumulate in the atmosphere, lasting more than 100 years in the case of carbon dioxide, and the damages are a function of the stock (accumulated concentrations), not the flow of emissions. The most severe consequences of climate change will be in the long term, but climate change policies and the attendant costs of mitigation will be up front.

This combination of up-front costs and delayed benefits presents a great political challenge, given that the incentive in democracies is for elected officials to give benefits to today’s voters, and to place costs on future generations. The climate problem asks politicians to do precisely the opposite.

Together, the global commons nature of the problem plus this temporal asymmetry make climate change an exceptionally difficult political challenge, possibly without precedent. It is for this reason that I have increasingly turned my attention to policies to address this problem.

In my final message to you, I will reflect briefly on the most recent international negotiations intended to reduce the risk of a fundamentally changed climate.

During two weeks of boisterous plenaries and energetic backroom meetings, the 197 members of the 24th Conference of the Parties of the UN Framework Convention on Climate Change, meeting in Katowice, Poland, in December, sought to reach consensus on rules and guidelines for implementing the 2015 Paris Agreement. The fault lines at the Katowice negotiations were, as usual, largely between two groups: the 43 industrialized countries, and the 154 developing nations.

At the end, consensus was reached on a 156-page rulebook, which represents a transition from an expression of global solidarity in the Paris Agreement to a set of practical mechanisms that can deliver results.

Was this a success? There were dozens of aspects of the Paris Agreement on which the delegates to the Katowice meetings wanted to make progress by filling in details in the skeletal 2015 accord, but one area stood out: transparency, which refers to the credibility of each nation’s measurement of its own performance — in terms of its emissions and its policies.

The Paris Agreement gave significant wiggle room to the 154 developing countries by granting them great flexibility in this regard. But in Katowice, a remarkable consensus was achieved that all countries will follow uniform standards for measuring emissions and tracking the achievement of their respective targets.

Conceivably, this could make it easier for the Trump administration to remain in the Paris Agreement (if the president were to become convinced that such action would be politically advantageous in the run-up to the 2020 presidential election). And, likewise, it will make it easier for a future administration of either party to rejoin the agreement if the current president follows through on his promise to withdraw. That is a significant achievement.

Of course, any firm judgment of the ultimate success of the Katowice talks on climate change — and more important, the success or failure of the Paris Agreement — will depend upon future negotiations and upon the actions of individual countries in addressing this global problem. The climate negotiations will continue, as will my work in this realm, but — in my case — in venues other than these pages.

The global climate change talks are moving on — and so am I.

Reports Say Dire Effects Will Be Starting Soon. How Can the Economy Quickly Shed Carbon?

Read more about Reports Say Dire Effects Will Be Starting Soon. How Can the Economy Quickly Shed Carbon?

Author

Joseph E. Aldy - Harvard Kennedy School

Ann Carlson - UCLA/Emmett Institute on Climate Change and the Environment

John C. Dernbach - Widener University

Mary Nichols - California Air Resources Board

Anne Pramaggiore - Exelon Utilities

Mike Quigley - House of Representatives Sustainable Energy and Environment Coalition

Harvard Kennedy School

UCLA/Emmett Institute on Climate Change and the Environment

Widener University

California Air Resources Board

Exelon Utilities

House of Representatives Sustainable Energy and Environment Coalition

Current Issue

March-April 2019

Issue

Reports Say Dire Effects Will Be Starting Soon. How Can the Economy Quickly Shed

With the influx of new members of Congress in January, suddenly everybody is talking about a Green New Deal that would address greenhouse gas emissions and a bunch of other social ills via a suite of related policy instruments. Proponents are talking about ridding the American energy economy of carbon, and on a short timeline — perhaps by 2030. Even before the recent change in Congress, policymakers and stakeholders had been talking about what has come to be called deep decarbonization. A benchmark proposal calls for eliminating at least 80 percent of greenhouse emissions by mid-century, with further reductions to follow.

The Trump administration’s National Climate Assessment released in November predicts global warming will soon have a significant impact on the American economy. A few weeks earlier, the Intergovernmental Panel on Climate Change forecast severe effects starting in the next 10 to 20 years — and getting worse thereafter — and argued for a maximum temperature increase over pre-industrial levels lower than the 2 degrees Celsius established in the 2015 Paris Agreement. The White House’s plans to withdraw from the accord and to roll back regulations aimed at reducing greenhouse gas emissions are the exact opposite of what these reports conclude is required.

Into this policy void have stepped a number of key players who are advocating a rich array of approaches, with the Green New Deal being merely the most famous one. A group of conservative leaders have proposed a carbon tax, an idea endorsed by many academic economists, including 2018 Nobel Laureate William Nordhaus. States such as California, Hawaii, and most of the Northeast have charted their own path toward removing carbon from their energy systems. And the private sector has begun to innovate, with power companies announcing ambitious emission goals, including some planning to go 100 percent carbon-free, and car companies like Tesla and Volvo giving up internal combustion engines.

This Debate in Print concentrates on the U.S. energy system and asks, How should public policy move forward to promote the decarbonization of the American economy? And what blend of law, economics, science, and technology will get the job done?

With the influx of new members of Congress in January, suddenly everybody is talking about a Green New Deal that would address greenhouse gas emissions and other social ills via a suite of interlinked policies. Proponents are talking about ridding the American energy economy of carbon, and on a short timeline — by 2030.

Climate and Controversy

Read more about Climate and Controversy

Author

Joel B. Stronberg - The JBS Group

The JBS Group

Current Issue

March-April 2019

Issue

There are few public forums to debate the causes and consequences of climate change where the participants won’t find themselves mired in a political maelstrom. On the federal level, where national policies are worked out, partisan gridlock in Congress has taken the legislative branch of government out of play. The current administration has by acts and deeds indicated it has no intention of combatting climate change — quite the opposite. That leaves the fortunes of U.S. climate policies largely dependent upon the composition of the courts, the branch that is concerned only with matters of law and immune from politics.

Carbon emissions in the United States and other big economies like China, India, and elsewhere are on the rise. According to the Trump administration’s Fourth National Climate Assessment, released in November, neither global efforts to mitigate the causes of climate change nor regional efforts to adapt to the impacts currently approach the scales needed to avoid substantial damage to the U.S. economy, our natural heritage, and the health and well-being of Americans. The conclusions reached by the 13 federal agencies and 300 scientists contributing to the assessment reflect the overwhelming consensus of the science community. They affirm the October report of the UN’s Intergovernmental Panel on Climate Change, which set the maximum safe level of warming at only 1.5 degrees Celsius.

Both reports emphasize the urgent need for government action. They identify — with a high degree of confidence — the costly consequences of climate change. These include not only more frequent and intense weather events but also higher rates of morbidity and mortality and lost jobs and investment opportunities in industries affected by carbon emissions, such as fishing, farming, forestry, and insurance.

As the U.S. government fails to put in place policies to combat global warming and adapt to its repercussions, the courts are emerging as the preferred venue in which to debate climate science free of partisan bias and bickering. Citizens are calling for action, and the number of climate-related lawsuits is increasing globally, and nowhere more than in the United States. The cases fall into four broad categories. Some would force government to increase (or some decrease) regulatory oversight and enforcement of existing laws. Others characterize climate change as a rights-based issue. Still others seek to establish climate change as a financial concern. And a final category of cases are designed to contribute to the public debate about the changes to the Earth’s climate system. Naturally there is some overlap, but these distinctions are useful in evaluating the judiciary’s response to global warming.

The most common climate-related cases brought before the courts in the United States continue to be those questioning government regulatory actions involving emissions from coal-fired power plants. Challenges to government regulatory actions have been bidirectional. Obama’s aggressive efforts to combat climate change and protect the environment prompted fossil fuel interests, for instance coal mine operators, to challenge the government’s regulatory authority under existing legislation such as the Clean Air Act, Clean Water Act, and Endangered Species Act. Plaintiffs in the Trump era, however, are predictably suing to prevent the administration from rolling back existing regulations.

Regulatory litigation relies heavily on court precedents, particularly the Chevron doctrine establishing judicial deference to expert agencies, as well as conformity with the Administrative Procedure Act’s requirements for proper notice and public input, and interpretation of legislative language to yield enumerated or implied agency authority. Science in these types of cases plays more of a supporting role. In Massachusetts v. EPA, for example, the Supreme Court was asked in 2007 if the Environmental Protection Agency has the authority to regulate emissions of greenhouse gases from new motor vehicles.

It was the Court’s opinion that EPA is obligated under the CAA to regulate auto emissions which in the administrator’s “judgment cause[s], or contribute[s] to, air pollution . . . reasonably . . . anticipated to endanger public health or welfare.” The Court directed the agency to reconsider its conclusions — although the majority opinion left little doubt about the dangers of vehicle emissions. “The harms associated with climate change are serious and well recognized,” the Massachusetts court said. “The government’s own objective assessment of the relevant science and a strong consensus among qualified experts indicate that global warming threatens, inter alia, a precipitate rise in sea levels, severe and irreversible changes to natural ecosystems, a significant reduction in winter snowpack with direct and important economic consequences, and increases in the spread of disease and the ferocity of weather events.” Still, the Court’s instructions to EPA were to consider whether the above events rise to the threshold required to make an endangerment finding under the CAA and the basis for any regulation of the vehicle emissions at issue. That has left combating climate change up to the political branches, which have been deadlocked on the issue for decades.

Into the breach, a new class of cases claiming the right of citizens to a habitable environment is gaining entrance into state and federal courts, and other cases are inviting the judiciary to be more involved in resolving the controversies surrounding climate change. After all, the Constitution grants to the courts the power and ability to decide “cases and controversies,” and that is exactly what is happening here.

In 2015, a U.S. district court judge in Oregon granted standing to 21 youthful plaintiffs claiming that future generations have a substantive right to be protected from the ravages of climate change under the Due Process Clause of the Constitution. The youths fault the government for inaction in the face of hard evidence. The relief sought by the plaintiffs is science-based policies and regulations to mitigate the impacts of global warming.

The case, Juliana v. United States, has survived multiple attempts — including two before the Supreme Court — to have it dismissed as a political question. Administration attorneys contend that EPA is charged with regulating greenhouse gas emissions, and the court’s intervention confounds the separation of powers on which our political system is based. The case is back before the Ninth Circuit Court of Appeals after the trial judge certified the government’s request for an interlocutory appeal. A decision is expected by the end of March.

Juliana has inspired a host of similar cases — particularly in state courts, where the Public Trust Doctrine has more foundation — around the nation. Should Juliana or other rights-based cases continue to survive dismissal motions, it will be the first time climate science is put on trial.

Another series of cases making it onto court dockets are those based on common law nuisance theory — tortious negligence. Examples of these types of cases are the recent — and so far, unsuccessful — lawsuits by cities, counties, and states seeking compensation from major oil companies for infrastructure damage and other losses attributable to climate change. Many wastewater and drinking water plants are affected by sea-level rise, as are roadways, ports, etc. These cases are similar to the tobacco suits by state governments of the 1980s and 1990s.

In late 2018, in a rare case in which two private entities were party to a climate suit, a food industry sued fossil fuel companies. A California court has granted the Pacific Coast Federation of Fishermen’s Associations standing to sue major oil producers. The petitioner is the largest commercial fishing trade group on the West Coast. On behalf of Dungeness crab fisheries, the organization is seeking $445 million in compensatory damages as a result of toxic algae blooms. The blooms, caused by warming Pacific waters, delayed the opening of the crab season off the California and Oregon coasts, creating economic losses for which recovery is sought. (The Department of Commerce has already allocated $15 million from available disaster assistance funds to help the industry.) The plaintiffs in the crab fishing case, like the state and local governments, are claiming the defendant companies have known for nearly half a century that unrestricted production and use of their fossil fuel products create greenhouse gas pollution. The case may open the door to future negligence suits by private companies against the fossil fuel industry.

Major oil companies and the federal government are not the only ones being sued for knowing the causes and consequences of climate change and choosing to do nothing about it. In 2013 a deluge that overwhelmed a labyrinth of aging sewers and giant tunnels, forcing a noxious mix of sewage and stormwater into local waterways and Lake Michigan, resulted in a lawsuit by Farmers Insurance Company against Chicago-area municipalities for negligently failing to upgrade their systems. An insurance industry expert said of the suit that the companies are in the business of covering unforeseen risks, from accidents. But we’re now at a point with the science where climate change is a foreseeable risk. Thus, a common thread running through the tort cases is establishing what the defendants knew and when.

Importantly, the litigation involves establishing and apportioning liability to monetize damages. These are acts that rely heavily on understanding and accepting climate science as it has grown over the years, and are areas where courts are particularly able to sort out the issues. Theoretically, a courtroom should be the most trusted venue for a rigorous climate-science debate. The judge in City of Oakland v. BP P.L.C., a district court common law nuisance case against major oil companies decided last year, asked the litigants to conduct a two-hour briefing on the science of climate change. In the briefing the opponents in the case all agreed that climate change is as real and damaging as the overwhelming majority of the world’s scientists say it is. The case was dismissed, however, on the grounds that the matter at issue is a political question for the legislative and executive branches to answer. Judge William Alsup, however, articulated his belief that temperatures are rising: “This [court] order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea-level rise.”

The growing appeal to the judiciary to accomplish what the legislative and executive branches are politically incapable of doing is understandable. As a practical matter, however, the courts alone offer a less than ideal alternative to congressional and executive action. Lawsuits, at one level, are zero-sum. A plaintiff is granted standing to sue or told to go home. Dismissal of a case may be for procedural reasons having nothing to do with the scientific substance of the allegations. Moreover, these emerging classes of cases can take years to reach a conclusion, as the Juliana plaintiffs are finding out nearly four years into their litigation, with a trial yet to be held.

However, long before the last gavel is struck, and the final decision read, climate-rights and liability cases have much to contribute. Through discovery, evidence, testimony, and cross examination, the lawsuits are becoming rich troves of information that may have equal or greater probative value in the court of public opinion than in a court of law.

In the wake of the recent dismissal in City of Oakland are records of the defendant oil companies having agreed with plaintiffs’ factual statements on the causes and consequences of global warming. No matter the outcome in Juliana, the Trump administration has accepted the truth of the mainstream climate-science community and the reality of Earth’s warming.

Notwithstanding the possibility these cases may never be victorious in terms of a binary winning or losing, they present an opportunity for climate defenders and deniers to face off in a moderated, nonpartisan venue governed by longstanding rules of evidence and procedure. Sworn testimony subject to cross-examination offers a counterpoint to ipse dixit pronouncements of opinion in partisan legislative hearings or presidential tweets.

According to Gallup’s last available poll, Republican trust in the judicial branch has gone from 48 percent in 2016 to 79 percent in 2017. At the same time, Republicans, in general, hold the lowest opinions of climate science and climate scientists, according to the Pew Research Center. The distrust of scientists based on their perceived political leanings makes it nearly impossible to expect that deniers will become believers when confronted with hard scientific evidence. So a neutral means of deciding issues concerned with climate science is absolutely essential to convince those who still doubt humanity’s role in warming and required actions.

In Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, the U.S. District Court for the District of Vermont upheld the state’s plan to approve greenhouse gas emission regulations for new motor vehicles. Vermont’s plan was consistent with the Clean Air Act’s California exemption clause. The litigants both called upon expert testimony concerning the causes and consequences of climate change.

The Green Mountain court noted the Supreme Court’s 1993 conclusions in Daubert v. Merrell Dow Pharmaceuticals, in which the High Court enumerated a list of four non-exclusive considerations bearing on whether a theory is scientifically sufficient to constitute reliable evidence. As stated by the Daubert court, a sufficiency analysis is quantitative rather than qualitative, and “facts or data” may include reliable opinions of other experts and hypotheses that are supported by the evidence. In addition to the four factors listed in Daubert, courts consider whether the expert is testifying about matters based on research independent of the litigation.

To be admitted into evidence an expert’s opinion must be derived by recognized scientific methodologies. Courts are not required to “admit opinion evidence that is connected to existing data only by the ipse dixit of the expert,” as stated in General Electric Co. v. Joiner (1997). An example of such testimony is President Trump’s recent comment that he has a “natural instinct for science” and his uncle was a scientist at MIT, and therefore he knows that climate change is a bogus theory.

Still, climate science isn’t as well-founded as the physics of celestial bodies, for example. But if most scientists are to be believed, immediate action is necessary. A practical consequence of evidentiary rules is the judiciary’s acceptance of reliable testimony that need not be “known to a certainty.” As the judge in Green Mountain wrote, “There are no certainties in science.” Thus, actions to avoid a highly likely risk are called for in the case of climate change, just as we minimize risk of exposure to chemicals that we only suspect of carcinogenicity.

Documents in the Juliana case are now available; they include reports by the litigants’ respective experts. The reports vary in length and detail and are a preview of what the experts will be testifying to in open court. Consider the report of scientists Susan Pacheco and Jerome Paulson, who were retained by the plaintiffs. Their opposite on the defendant’s side is Arthur Partikian. Note when reading the excerpts below that standing requires that a plaintiff must have suffered an actual injury or harm, traceable to the actions of the defendant, and capable of redress by the court.

Although children are not considered a suspect class under the law, the age of the Juliana plaintiffs is integral to their allegations. Pacheco and Paulson state: “Children are uniquely vulnerable to the impacts of climate change due to their physiological features, including their higher respiratory rate, lung growth, and development, immature immune system. . . . [C]ertain populations of children are especially vulnerable. . . [including] children with preexisting medical conditions, children from communities of color, and economically disadvantaged children.”

Partikian responds: “While I do not contest the general concept that factors mentioned by the plaintiffs’ experts as potentially associated with climate change. . . I do not find adequate documentation in the available records and reports.”

Other experts called to the witness stand will testify on whether the nation can run solely on low-carbon technologies like wind and solar. The economic and monetary costs of the transition to a clean energy economy will be debated, as will the social cost of carbon. Ultimately, a jury will have to decide the value of the evidence and what actions, if any, are required by the parties.

In reading through the voluminous motions, complaints, and reports in the novel-legal-claims cases, what is most startling is what they seem not to be about — whether global climate change is real or a hoax. The Trump administration in Juliana has stipulated to the plaintiffs’ statements about the existence of global warming, recognized its harmful consequences, and acknowledged that humans are contributors to the problem in much the same manner as the oil companies are doing in the nuisance cases. The issues, rather, are fault, apportionment, and appropriate response.

The willingness of oil companies and the Trump administration to accede to the petitioner’s climate characterizations reflects a shift in the public position of “mainstream” climate-deniers in recent years. That change was on prominent display during the confirmation hearings of Scott Pruitt to EPA, Ryan Zinke to Interior, Rex Tillerson to the State Department, and other of Trump’s nominees. The new tactic accepts, with certain caveats, that climate change is afoot and acknowledges that human activity is “somehow” a contributor.

In recent months the Trump administration has added a closing statement to the acknowledgment. Buried in a draft environmental impact statement supporting the proposed freeze of auto emission standards at 2020 levels, the administration indicates that any meaningful effort to combat climate change “would require substantial increases in technology innovation and adoption compared to today’s levels and would require the economy . . . to move away from the use of fossil fuels, which is not currently technologically . . . or economically feasible.”

The statement is not made as a call to arms but as a fatalistic foreboding of what the future will hold. The “yes, but there is nothing that can reasonably be done about it” protestations of deniers in public policy arenas is a version of the challenges plaintiffs face in a trial. Should deniers lose in court, they will find there is something to be done and at a price.

It is arguable that the court’s order to do the inventory and in essence draft what for all intents and purposes would be Obama’s Clean Power Plan on steroids could be slowed, if not stopped, by a hostile Congress and White House. In any event whatever would come of the order would be back in the courts from the moment a notice of intent was published in the Federal Register.

Realistically combating climate change will take more than a court’s ordering EPA to write regulations. Absent political considerations of deployment, technological solutions only work on paper. It is not to say that the government is right and that Juliana and other novel-theory cases should be dismissed because the courts would be stepping out of their co-equal role and doing the job of policymaking that is reserved for the legislature and the executive.

Bringing policy considerations into the courtroom will prove as valuable to the public debate as taking validated scientific evidence established in the courtroom and putting it into the court of public opinion. An understanding of the political context — in reality, and not as a hypothetical construct — will help to guide the courts in their consideration of redressability, for example, by allowing the government flexibility to attack the problems from multiple directions.

Synergies exist between court proceedings and public policy debates. Courts are loathe to consider future injuries both because of their speculative nature — there is no guarantee that injuries will arise, and there is difficulty in monetizing the damage that might occur 20 years into the future. In contrast, it is natural for public policies to anticipate and respond to problems likely to pop up in the future, such as increasing a community’s resilience to extreme weather events.

The court testimony of the Juliana medical experts would naturally address the potential damages of cumulative exposure to a climate altered by the release of carbon dioxide, methane, hydrofluorocarbons, and other GHGs. Testimony in the fishing damages case will not only speak to the consequences of warming oceans from carbon released by burning oil but will convert climate concerns into dollar and cents. Although courts may not account for anticipatory damage in their orders and opinions, the information introduced into evidence during the trial would strengthen the public policy debate outside of the courtroom, even if the case is dismissed.

The hyper-partisanship preventing a balanced discussion on climate science in the halls of Congress and the White House also prevents a balanced and rational discussion on possible cures. The value of the courts is not simply to be measured in terms of final outcomes. Under partisan circumstances, the judiciary remains the only venue in which an honest and objective climate debate can occur.

In answer to the government’s claim that a courtroom is not the proper setting in which to weigh the evidence in support of climate change theory, the magistrate judge in Juliana stated: “Whether . . . climate change is occurring, whether . . . human induced, and the degree of its severity and impact on the global climate, natural environment, human health is quintessentially a subject of scientific study and methodology, not solely political debate. The judicial forum is particularly well-suited for the resolution of factual and expert scientific disputes, providing an opportunity for all parties to present evidence, under oath and subject to cross-examination in a process that is public, open, and on the record.”

Redressing the harms alleged by plaintiffs is time constrained. It has already taken the youthful petitioners in Juliana several years to get to trial. How many more years will go by before the Supreme Court makes the final judgment in the case? How many years after that will be required for EPA to do the emissions inventory and draft and implement a new power plan? Should the defendant government and companies in these novel-theory cases start losing in court, they will find there is something to be done and at a price. Yet the latest findings of climate science make it clear that immediate, large-scale actions are required.

Neither the Juliana plaintiffs nor others in pending or anticipated climate-science cases should be expected to carry the burden of a livable environment alone. The growing number of climate-related lawsuits based on novel legal theories will continue to expand at least as long as the government fails to put partisanship aside and do what is necessary to stem Earth’s warming and increase the nation’s resilience to the effects already being experienced.

As different as the emerging novel-legal-theory cases are they share the same objective — a livable environment. Win or lose each can contribute to the overall efforts of climate defenders. What was the role of science in each case? What arguments swayed judges and jurors? Where do the litigants’ experts agree; were there gaps in a plaintiff’s arguments that need to be filled? Did the public rallies in support of the Juliana plaintiffs change the community’s perception of global warming? Is the relief asked for in one case duplicative or additive to what was requested in another? Can the cases be better coordinated to create more holistic solutions to global warming?

Although each climate case is unique, they all share the same objective — a habitable global environment. Legal and policy advocates need to come together to develop an integrated strategy designed to prevail in the court of public opinion as well as of law. Even if a plaintiff loses a case, pursuing it may be validated if the court’s decision includes statements that may be useful for the larger purpose of convincing the public and prodding the political branches to action as a result. TEF

LEAD FEATURE ❧ As a locus for fact-finding and evaluating competing claims while the political branches are deadlocked, the courtroom can be the perfect neutral venue for debating climate science, policy responses, and who should pay. Current litigation could tee up such conclusions.

How Best to Govern Geoengineering in the Race to Save Earth's Climate

Read more about How Best to Govern Geoengineering in the Race to Save Earth's Climate

Author

Robert N. Stavins - Harvard Kennedy School

Harvard Kennedy School

Current Issue

January-February 2019

Issue

I want to comment on a topic that is rather controversial — at least among environmentalists and climate policy wonks — but at the same time is important: the governance of solar geoengineering deployment.

Solar geoengineering (which we’ll call SG) refers to the deliberate alteration of the Earth’s radiative balance in order to reduce the risks attributed to the accumulation of greenhouse gases in the atmosphere. According to my Harvard colleagues David Keith and Peter Irvine, technically plausible methods include adding aerosols to the stratosphere, where they reflect a small percentage of incoming sunlight back to space; adding cloud condensation nuclei, such as sea salt, to specific kinds of low-lying clouds over the ocean in order to increase their reflectivity or longevity; adding ice nuclei to high-altitude cirrus clouds in order to reduce their density; placement of space-based reflectors; and tropospheric aerosols.

Some types of SG will be associated with incentive structures that are the inverse of those associated with efforts to reduce greenhouse gas emissions. The latter is a global commons problem, which requires cooperation at the highest jurisdictional level (international) in order to advance significant mitigation. But, in contrast, certain types of SG can — in principle — be implemented effectively at relatively low financial cost — low enough to be borne by small states or even non-state entities acting on their own.

The impacts of such actions, however, might be substantial, at regional or even global scales. These could include the intended beneficial impacts — decreased global average surface temperatures — plus other, potentially adverse side effects. Given the incentive structure associated with SG, its potentially substantial impacts, and the uncertainty surrounding it, the governance of deployment will be challenging, to say the least, and is a very important topic for research.

With this in mind, last September the Harvard Project on Climate Agreements hosted a workshop on the “Governance of the Deployment of Solar Geoengineering,” with collaboration and support from Harvard’s Solar Geoengineering Research Program. Participants included 26 leading academic researchers addressing the workshop’s topic — as well as leading scholars who had considered the governance of other international regimes that might provide lessons and insights.

The workshop began with overviews of research on SG governance from two disciplinary perspectives — economics and law. Subsequent sessions addressed seven key questions, which arise, in part, from the incentive structure of SG governance.

First, who ought to or will specify criteria for SG deployment, and who ought to and/or is likely to decide when they are satisfied? Second, what will or should these criteria be? They might include regulations developed by policymakers; specifications by those who might engage in SG deployment; and physical, engineering, social, economic, ethical, and other perspectives. Third, how should decisions about deployment be made, and what decisionmaking process should or will be utilized?

Fourth, what institutions, either existing or new, are appropriate as decisionmaking venues? What will or should be the legal framework of such institutions? Fifth, how might SG complement or undermine national, regional, and multilateral institutions and policy to mitigate or adapt to climate change — and, more broadly, to manage climate risks? Sixth, SG is both a hedge against uncertain but potentially catastrophic risks of climate change, and has its own associated risks, known and unknown. How can we better understand these uncertainties and incorporate them into useful decisionmaking processes? Finally, how might we best define a research agenda for the governance of SG deployment?

In addition, a panel of international relations scholars discussed a set of global regimes — including nuclear arms control and cyber security — that may provide lessons for and insights into SG governance.

Given the very early stage of thinking about the issue, we did not attempt to provide definitive answers but sought to advance understanding of this issue and move the research community some steps further toward better identification of sound options for the governance of SG deployment.

Currently, each participant in the workshop is preparing a brief on an aspect of the topic of his or her interest. These briefs are designed to be readily accessible to environmental professionals — policymakers, climate negotiators, and leaders in the business and NGO communities. The entire volume will be released by the Harvard Project on Climate Agreements in February.

How best to govern geoengineering in the race to save Earth's climate.

Why Institutions Don't Respond to a Clear and Present Danger

Read more about Why Institutions Don't Respond to a Clear and Present Danger

Author

Craig M. Pease - Scientist and Law Professor

Scientist and Law Professor

Current Issue

January-February 2019

Issue

Politicians, lawyers, policymakers, and the popular media often focus not on scientific knowledge, but rather scientific uncertainty. Yet the cumulative knowledge codified within science, math, and engineering is immense.

The science and math of climate change have now been certain for over half a century. In the late 1950s, the science author Isaac Asimov calculated that “if the present carbon dioxide level should double, the overall temperature of the Earth should rise by 3.6°C.” Two decades later, the Charney report of the National Research Council concluded, “We estimate the most probable global warming for a doubling of CO2 to be near 3°C with a probable error of ± 1.5°C.” The most recent assessment from the Intergovernmental Panel on Climate Change is entirely consistent: “Equilibrium climate sensitivity is likely in the range 1.5°C to 4.5°C.”

The most pressing climate change problem does not concern scientific knowledge — which we have in spades — but rather institutional incompetence, which we also have in spades. Why is it that for many decades, science has accurately and consistently described the central climate change problem and offered sensible solutions, yet our legal, political, and social institutions have utterly failed to implement a solution?

Institutional incompetence is by no means unique to climate change. Even in the face of immense and obvious threats, large institutions are often remarkably resistant to sensible response. To cite one prominent example, by the early 1950s there was unassailable science showing cigarette smoking causes cancer, and yet today tobacco remains an immense global health scourge.

Thus, while we might criticize individual politicians or corporate officials for responding inadequately to climate science, I do not think that the fundamental problem lies either with individual bad actors, or with our not yet having found just the right statute, rule, or program to solve the climate problem. Lots of really smart and talented folks have taken a whack and gotten nowhere.

We need to dig deeper, viewing institutions as systems, and ask why large institutions have properties that seem consistently to cause them to fail to take appropriate action in response to scientific knowledge. Should not a large institution be able to marshal the brains and computational ability and rational analysis of all its members, to reach a course of action consistent with reason and science? Perhaps. But in my experience, and that of many other scientists, often large institutions do not.

One might offer diverse answers. One overlooked perspective is that in these battles of individual scientists and large institutions, one might compare the evolutionary history and system properties of a human brain versus a large institution.

The reason and rational analysis of science relies on the cerebral cortex. Logic is not easy or native for the human nervous system. But rational thinking is quite doable, with training such as received by any STEM graduate, and using various tools including computers, equations, and those found in any molecular genetics lab. Moreover, scientists collaborate a lot in small groups, thereby strengthening what a single individual might accomplish.

Critically, there has been strong evolutionary selection on the human brain, literally over the millions of years since we diverged from other primates (and indeed even before the divergence). Beyond that, for most of history, we lived in small groups, a form of social organization that also dates back millions of years and that evolved over time to help make humans successful ecological competitors. Thus, there has been considerable evolutionary pressure, responding to the feedback of natural selection, for small groups to make sensible decisions. Very roughly, human groups seem to make decent decisions provided group size is below the Dunbar Number of about 150 people.

In sharp contrast to the millennia of selection involving the brain and behavior in small groups, humans have only a few hundred years of experience with decisionmaking in large institutional structures such as parliaments, agency bureaucracies, multinational corporations, and certain large NGOs, which institutions often encompass literally millions of people. Observe that these large institutions that we ask to solve the problem of climate change are themselves creatures of the very same fossil fuels that have created the problem in the first place, as they arose and came to be dominant and pervasive only when humans learned to mine and use coal and oil over the last couple hundred years, causing our population to explode.

Critically, unlike the millennia of selective pressure on the human brain and small tribes, those large institutions have not been time tested and subject to any selective pressure. It is not at all surprising they are failing.

Why institutions don't respond to a clear and present danger.

Signs of Opposition

Read more about Signs of Opposition

Author

Jeremy Bernstein - InsideEPA

InsideEPA

Current Issue

January-February 2019

Issue

Democrats may have picked up a record number of seats on their way to controlling the House of Representatives but don’t expect an ambitious environmental legislative agenda when the 116th Congress convenes this January. Taking a page from her 2007 playbook, when Democrats last won control of the House, incoming Speaker Nancy Pelosi has set her sights low when it comes to climate and environmental policy. Her campaign manifesto, “A Better Deal,” calls for small-ball advances bolstering clean energy and water infrastructure as part of an ambitious though unlikely $1 trillion infrastructure deal Democrats hope to cut with Senate Republicans and the White House. Pelosi promised that any infrastructure deal would preserve National Environmental Policy Act review requirements. “Our plan will ensure [infrastructure] projects advance quickly, while maintaining key environmental protections,” the document says.

Ambitious legislating may be off the table for now, but aggressive oversight of President Trump’s deregulatory agenda and his administration’s ethical lapses is very much on the Democrats’ plate. Top officials at EPA, the Energy and Interior departments, and other agencies are already gearing up for a busy winter and spring responding to oversight requests and appearing at hearings — a significant change from the Republican-controlled House, when administration officials faced limited scrutiny.

From the other side of the Hill, where Democrats are still in the minority, the mandate for the new House majority is being cheered on. Trump’s appointees have been in “the witness protection program,” says Massachusetts’ Democratic Senator Ed Markey. He opines, “You don’t see them. You don’t know them. You’d have a hard time picking them out of a lineup.” That may still be true on the Senate side, but after grilling in the lower chamber, those officials “are going to become as famous as James Watt and Anne Gorsuch,” the Reagan-era officials who resigned amid scandals.

Energy and other industry leaders are also lawyering up as they brace for investigations that Democrats plan to use to spell out a narrative that highlights their view that the administration’s deregulatory agenda favors special interests. “Controversies that combine alleged corporate abuses or greed, leniency, or laxity by regulators, and harm to average Americans, present a potent political trifecta that often leads to congressional scrutiny,” says Brian Smith, a partner at Covington & Burling who served in the Clinton White House.

Representative Elijah Cummings, the Maryland Democrat who will lead the powerful Oversight and Government Reform Committee, has already made clear he plans to carefully use his subpoena power to investigate ethical lapses by disgraced former EPA Administrator Scott Pruitt and other administration officials as he makes the case for stricter ethics legislation. “My concern with the EPA is how was Mr. Pruitt able to get away with all he got away with and remain there,” Cummings says. “A lot of this is the process. If you had the right guard rails, people pretty much have to stay on track.”

Such messaging legislation may help bolster their candidates going into 2020 but Democrats are taking a different approach on affirmative environmental policy, favoring oversight of the administration’s rollbacks as a way to preserve existing protections, force Republicans to take tough-but-symbolic votes in support of the administration’s agenda and lay the ground for more aspirational policymaking when favorable political conditions exist. “Simply by holding hearings, asking questions, and releasing information, Congress can have a major impact on national policy. In fact, oversight can be particularly influential in periods of divided government,” Phil Barnett and Greg Dotson, top aides to former California Representative Henry Waxman, who have been advising Pelosi and other Democrats, wrote recently. “When the new Congress convenes in January, oversight may be one of the best ways for a more progressive House of Representatives to advance its agenda — including advancing environmental and public health protections and taking action on climate change.”

Representative Frank Pallone, the New Jersey Democrat slated to lead the Energy and Commerce Committee, along with other incoming committee chairs have already announced plans to hold hearings on the Trump administration’s failures to address climate change despite growing evidence of its adverse effects. “The days of denial and inaction in the House are over as House Democrats plan to aggressively address climate change and hold the administration accountable for its backward policies that only make it worse,” Pallone said after the November release of the administration’s latest climate assessment, which spells out growing economic, environmental, and health risks and calls for stepped up mitigation and adaptation efforts. But a Democratic aide says that for now, there is no legislative push behind such oversight. “There isn’t right now any sort of Democratic climate bill. Leadership is going to have to work this out.”

While Democrats may not legislate on climate change, there will certainly be much discussion of the issue. Pelosi plans to recreate the Select Committee on Climate Change that she first formed the last time Democrats took back the House from Republicans, in 2007, but which GOP representatives shut down after they came back in charge four years later. Its goal: “Prepare the way with evidence” for energy conservation and narrow climate mitigation legislation, while raising the profile of California’s wildfires, Florida’s sea-level rise, and other already-noticeable effects of global warming to help Democrats in the 2020 election.

In addition to the climate panel, Democrats are planning to create a new infrastructure subcommittee on the powerful Ways and Means Committee that will make the case for a carbon tax as a way to fund new projects. Oregon’s Earl Blumenauer, who is expected to lead the subcommittee, says it will also investigate ways that the tax code favors fossil fuels and disincentivizes cleaner sources. “We’ll be dealing realistically with areas of the code that impact carbon,” he says. And Representative John Yarmuth, the Kentuckian who will lead the budget committee, says the majority will consider both a carbon tax and a gas tax as a way to pay for their infrastructure bill, though prospects are likely limited. “I imagine a carbon tax bill will be discussed. I don’t have a feel for where the caucus would be on that. But I think it would certainly be brought up,” he says.

That may be about as much as Democrats will be able to achieve, given that a Trump White House that strongly supports fossil fuels will almost certainly veto any carbon legislation — even if it were to make it through the Republican-controlled Senate. Rather than pursuing quixotic, partisan measures, Democrats are insisting on bipartisanship. “Democrats recognize that climate change is a significant national security and public health concern that must be addressed,” says Steny Hoyer of Maryland, Pelosi’s top lieutenant. “Instead of denying climate change is real and taking steps to exacerbate it, we ought to take bipartisan steps to address it.”

Hoyer and other Democrats may have made bipartisanship a criterion for any climate legislation but they are unlikely to have many Republicans with whom to negotiate, despite the findings of the administration’s recent climate assessment. Released the day after Thanksgiving, the assessment concludes that “global warming is now affecting the United States more than ever,” according to the New York Times. “And the risks of future disasters — from flooding along the coasts to crop failures in the Midwest — could pose a profound threat to Americans’ well-being.” Despite these bombshell findings, the president continues to doubt scientific conclusions that anthropogenic greenhouse gas emissions are responsible for climate change — and that the risks are increasing. “I don’t know that it’s man-made,” Trump told 60 Minutes recently, adding that the warming trend “could very well go back.”

Given a divided Congress and little in the way of legislation, Trump and his administration are likely to double down on their deregulatory efforts. According to EPA’s unified agenda, the agency plans to complete 30 deregulatory actions in 2019 — a three-fold increase over 2018 — including rollbacks of major Obama-era rules such as the Clean Water Act jurisdiction rule, the Clean Power Plan, vehicle greenhouse gas standards, methane limits on oil and gas production, and others. Many of those rules are slated for final action in March — just as Democratic oversight is ramping up. Given the administration’s relatively dismal record defending its deregulatory actions in court so far, efforts in 2019 will almost certainly face lengthy and perilous litigation — a scenario that will only get worse given the duress officials will face from a Democratic House.

Ironically, Trump may also be less likely to compromise, given growing concerns that his deregulatory agenda is doing little to save the struggling coal industry. With natural gas production remaining high and prices low, an estimated 15.4 gigawatts of coal-fired generating capacity is expected to shutter at 22 plants in more than a dozen states in 2018 — easily exceeding the record 14.7 GW that closed in 2015. If anything, Trump’s top energy nominees are scrambling to figure out a way to subsidize struggling coal plants.

But the trend is not positive for the dirtiest fossil fuel. EPA’s Affordable Clean Energy rule, intended as a replacement for the Clean Power Plan, “made clear that the Trump administration has officially conceded the argument over man-made global warming and the need to reduce carbon dioxide emissions,” says Paul Tice, an adjunct professor of finance at the Leonard N. Stern School of Business at New York University. “This capitulation will seal the fate of the domestic coal industry over the coming years and have broad negative implications for U.S. energy policy over the longer term.”

Things are marginally better in Congress, where GOP lawmakers may be willing to acknowledge the science but are unwilling to consider any mitigation that undercuts fossil fuels. “There’s no question that for a variety of reasons and regardless of where one stands on the issue of climate change that the burning of fossil fuels does emit into the environment a number of things that aren’t the healthiest,” Utah Republican Senator Mike Lee said in response to the recent climate assessment. But Lee ruled out a carbon tax or any other limitation that would “devastate” the economy and have “little or no” demonstrable benefit. “I think if we’re going to move away from fossil fuels, it’s got to be done through innovation. And innovation can be choked out through excessive government regulations. We can’t let that happen.”

In addition, the number of Republicans willing to consider a carbon tax has shrunk. Steve Scalise, the Louisianan who will be minority whip in the 116th Congress, is a leader in the opposition to a tax. The House Climate Solutions Caucus, a bipartisan group, lost at least 20 GOP members — almost 50 percent — as many of its most prominent Republicans did not run or failed to win re-election. Republicans who are likely to remain in the group include Matt Gaetz, a conservative from the Florida Panhandle who opposes a carbon tax and has introduced legislation to eliminate EPA. Despite dwindling GOP ranks, some returning Republicans are planning to raise the bar for future membership in the group. “It is important that the caucus not be seen as an ‘in name only’ group, but actually works toward effective bipartisan solutions,” says Florida Representative Francis Rooney, who co-sponsored a carbon tax bill.

Prospects for bipartisanship may be similarly limited in the Senate, where Republicans narrowly increased their majority by knocking off Democrats in states that Trump won in 2016. A case in point: Kevin Cramer, the North Dakotan who defeated Democrat Heidi Heitkamp, has made clear he will strongly back the Trump administration’s deregulatory agenda. “I would say the most significant accomplishment for the energy industry and good environmental law in the last several years, frankly, has been the election of President Trump.”

Republicans’ slightly increased Senate majority likely means an even-closer alignment with the White House, as GOP leaders now have more flexibility in the event they lose support on key votes from more moderate senators who face re-election in 2020 in states won by Hillary Clinton in 2016, such as Colorado’s Cory Gardner and Maine’s Susan Collins.

While they may lack GOP negotiating partners on climate change, Democrats’ commitment to bipartisanship may help preserve their majority in the 2020 election, where they will have to defend dozens of seats in Republican-leaning districts. Pelosi and others in her caucus have learned their lesson from 2010, when their failed cap-and-trade bill gave Republicans a potent campaign issue that helped defeat 63 House Democrats.

According to one analysis, about one third of the more than three dozen seats Democrats picked up in 2018 are in rural, energy-producing districts whose constituents are unlikely to look kindly on robust environmental policies. For example, in New Mexico’s Second District, where Democrat Xochitl Small won a long-held Republican seat, oil-and-gas jobs in the Permian Basin contribute almost 13 percent of local payrolls. Even newly elected Democrats in urban areas, like Houston’s Elizabeth Fletcher and Oklahoma City’s Kendra Horn, have major oil-and-gas interests headquartered in their districts.

Forcing these lawmakers to vote on a costly and controversial climate bill would almost certainly box them in and give Republicans easy targets in 2020. “We all remember the cap-and-trade vote that helped prevent Democrats from keeping the majority [in 2010],” says Darren Soto, a Florida Democrat. “That’s why we have a responsibility to find areas of compromise with Republicans without a big, bold bill. It doesn’t have to be all or nothing.”

Many environmentalists agree with Democrats’ long-term approach. “You have to hit some singles and doubles to load the bases to hit a grand slam. I think Democratic leadership will be trying to get those bases loaded, even as some others in the caucus will be trying to point to the fences and lay out a big vision,” says Ana Unruh Cohen, managing director of government affairs at the NRDC Action Fund.

Still, Democrats’ cautious approach on climate change has already sparked a raucous debate in the incoming caucus. Progressives like New York freshman Alexandria Ocasio-Cortez and more-senior lawmakers like Oregon’s Blumenauer and Georgia’s John Lewis are pushing for a Green New Deal that would make the economy carbon-neutral within 10 years by phasing out fossil fuels and ramping up renewable energy. Rather than Pelosi’s oversight committee on climate change, Ocasio-Cortez — who joined a grass-roots climate protest in Pelosi’s office shortly after the election — is calling for a new legislative committee to flesh out the details of her Green New Deal, a plan that is expected to cost more than $2 trillion to implement.

But Pallone, along with Arizona’s Raul Grijalva, who will chair the Natural Resources Committee, and Texas’s Eddie Bernice Johnson, who will lead the Science Committee, have already made clear they see no need for a new committee. Calling themselves climate “champions,” they have announced coordinated plans for hearings that would be held over two days early in 2019 “to assess the effects of climate change and the need for action.”

“We plan to hit the ground immediately with a series of hearings early in the next Congress on how best to combat this growing global crisis. Our committees plan to work closely together to aggressively assess the public health, economic, and environmental impacts of climate change and to explore the best solutions to combat this challenge,” the two lawmakers say.

Even before taking their gavels, Pallone and other incoming committee chairs publicly released a series of oversight requests that will begin to target a lengthy list of Trump administration deregulatory actions. Together with Representative Diana DeGette of Colorado and Paul Tonko of New York, who are slated to lead two key subcommittees, Pallone is already digging into the details of EPA proposals aimed at rolling back greenhouse gas controls for vehicles, power plants, and the oil-and-gas sector. Tonko, who will lead the environment subcommittee, has also announced plans to investigate the Trump EPA’s implementation of the revised Toxic Substances Control Act, which was reenacted with broad bipartisan support in 2016. Planned EPA limits on the use of science are also likely to be featured. With DeGette and Bobby Rush, who will lead the energy subcommittee, Pallone has also initiated an investigation into Energy Department efforts to roll back appliance efficiency standards.

And Grijalva has launched one of what is likely to be several investigations into industry influence into the Interior Department’s leasing programs. He has also promised tough scrutiny of Secretary Ryan Zinke, who is facing ethical woes over a travel scandal and is widely expected to be replaced. Together with Representative Betty McCollum, the Minnesotan who will oversee appropriations for EPA, Interior, and other environmental agencies, Grijalva is asking why the Forest Service and Interior Department suddenly ended a multi-million-dollar environmental assessment that could have led to a 20-year moratorium on copper and nickel mining in the Superior National Forest and nearby Boundary Waters Canoe Area. For her part, McCollum is promising a close look at White House budget requests and plans to use the power of her purse — an estimated $35 billion — to limit rollbacks. “We’re going to look at the budget carefully, look at oversight carefully, and make sure that we fulfill our mission of protecting people’s health,” she says. “That’s the air they breathe and the water they drink.”

While Senate Democrats lack subpoena and other investigative powers their House colleagues will enjoy, a series of pending nominations will give them an opportunity to weigh in — though without GOP support, they will almost certainly lack the votes to block nominees. Trump has already nominated Andrew Wheeler, a former energy industry lobbyist, to permanently replace Pruitt as EPA’s administrator, as well as respected professional Alexandra Dunn to lead the agency’s toxics office. And Trump’s recent nomination of White House deregulatory czar Neomi Rao to fill the seat left open on the U.S. Court of Appeals for the District of Columbia Circuit by the elevation to the Supreme Court of Brett Kavanaugh will renew a debate on the administration’s regulatory rollbacks.

At a minimum, Democrats hope their scrutiny of the agencies’ policy decisions will slow them down, though it remains to be seen whether they can stop them. Markey, who led the select climate committee when he served in the House, said recently that Democratic oversight can make a difference. “Ultimately we can put a brake on all of the dangerous climate rollbacks the president is engaged in. That would be a fundamental difference from today.” But Democrats like McCollum and several former Republican officials doubt oversight will make much of a difference to the administration’s deregulatory agenda. Democrats will have “zero ability to affect the agenda and only a modest ability to affect the result,” says one former GOP aide.

Even Democrats appear to be setting their sights low, hoping only to hold officials “accountable” for their decisions, even as they pay lip-service to restoring requirements that have been gutted. Such accountability could even include use of the Congressional Review Act, the 1995 Newt Gingrich creation that GOP lawmakers and Trump used to rescind a host of Obama-era regulations by simple majority votes. While Democrats’ resolutions will not make it through the Senate, nor win Trump’s signature, their disapproval resolutions could provide an important messaging tool that could force Republicans to vote on climate and other dergulatory actions. “I think that is going to be a tactic that is used quite often,” says Cliff Rothenstein, a former Democratic staffer and Clinton appointee at EPA who is now a government affairs advisor at K&L Gates.

While a divided Congress may be off limits for policymaking and the agencies may be stymied via House oversight, some of the most ambitious environmental policies are likely to be developed in states, where Democrats made significant electoral gains. In all, Democrats picked up governorships in seven states — Illinois, Kansas, Maine, Michigan, Nevada, New Mexico, and Wisconsin — where they are expected to tighten environmental regulations and their enforcement. Democrats also flipped attorneys general posts in four states — Colorado, Michigan, Nevada, and Wisconsin — providing more resources to the AGs of California, New York, and other states who have been leading litigation against the Trump rollbacks. Democrats also made significant gains in state legislative chambers, picking up more than 300 seats that gave them control of seven new chambers, though Republicans still control 61 of 98 legislative bodies. [For a summary on the success of state environmental ballot initiatives, see Linda Breggin’s Around the States, page 11.]

Democratic efforts at the state level will push back on Trump deregulatory measures — for example, by codifying Obama-era standards in a state or accelerating their states’ renewable energy ambitions. At least five of the new Democratic governors have promised to raise their renewable energy targets to 50 percent or more. In New Mexico, new Governor Michelle Lujan Grisham is one of those Democrats promising to raise renewable energy goals while also vowing to clamp down on methane emissions from the oil-and-gas sector. As the Trump administration rolls back federal rules there, Grisham is planning to bring together industry, environmentalists, and others to negotiate a consensus approach. “I have already signaled, well before I was elected, that I want to take that kind of a platform,” she says, adding that the state would “fight” administration efforts to expand drilling on federal land.

Such plans for ambitious environmental policies are likely to test Trump’s commitment to cooperative federalism, as states advance environmental policies that clash with his deregulatory agenda. A case in point: Colorado recently adopted California’s vehicle greenhouse gas standards at the same time as administration officials signal they plan to block them. A group of 11 Northeast and Mid-Atlantic states are currently considering plans to impose a regional carbon price to cut greenhouse gases from the transportation sector, much as the Regional Greenhouse Gas Initiative has for power plants. Virginia and New Jersey, where Democratic governors were elected in 2017, are on track to join RGGI’s cap-and-trade program for utilities.

In a divided federal government, expect tension as the Democratic House exercises its dormant oversight muscles and Republicans in the Senate try to muscle through White House appointments, while the president continues to avoid the kind of bipartisanship that might yield useful progress as the agencies under his command continue their deregulatory agenda. TEF

COVER STORY ❧ While the election won't reverse the Trump administration's deregulatory agenda, oversight in the House is likely to slow such efforts by casting a public light on their consequences and the means and motives of the president's agency appointees.

Be Prepared!

Read more about Be Prepared!

Author

Joel Scheraga - Environmental Protection Agency

Environmental Protection Agency

Current Issue

January-February 2019

Issue

Communities across the United States are coping with more frequent and intense storms, droughts, heat waves, coastal storm surges, wildfires, and sea-level rise. These events are having costly impacts on public health, the environment, and local economies. City, state, and federal budgets are being over-stressed, as resources are increasingly being spent on emergency response and, then, rebuilding activities. Since 1980, the United States has incurred over $1.5 trillion in damages from weather and climate disasters, each of which cost at least $1 billion. 2017 was the most expensive year on record, with $306 billion in total damages. The economic impacts have become so severe that the vulnerability of local communities to future impacts is now influencing credit ratings for municipal bonds.

Mayors, county executives, and other local government officials are becoming increasingly aware of the need to anticipate and prepare for these events, particularly since they are expected to occur more frequently, and in some cases with increased intensity, as the Earth’s climate continues to change. Also, local government officials whose communities are rebuilding following major disasters (a major hurricane; a wildfire) increasingly recognize the benefits of “rebuilding smarter” so their communities are more resilient to future impacts. They understand that adaptation is smart government and helps ensure investments made with scarce taxpayer dollars are effective even as the climate changes. The National Institute of Building Sciences estimates investments in climate resilience and adaptation can save the nation six dollars in future disaster costs for every dollar spent on hazard mitigation.

Anticipating, preparing for, and adapting to a changing climate is also critically important for environmental protection. Many of the outcomes EPA, in partnership with states, tribes, and local communities, is trying to attain — clean air, safe drinking water, Superfund remediation — are sensitive to weather extremes and future changes in climate. For example, more frequent and intense storms can cause combined sewer systems to overflow, spilling raw effluent into rivers and streams. Sea-level rise and storm surges can inundate Superfund sites, increasing the risk that toxic material will be released into the environment and local neighborhoods. More intense and prolonged heat waves can increase tropospheric ozone pollution in certain regions and make it more difficult to attain health-based air quality standards.

Some communities are already acting. The Massachusetts Water Resources Authority anticipated the impacts of climate change when it redesigned and upgraded the Deer Island Wastewater Treatment Plant in Boston Harbor between 1989 and 1998. It recognized that sea levels would rise over the lifetime of the facility (through 2050), and thus it would be prudent to adapt the design to protect the $3.8 billion investment. The MWRA raised key portions of the facility by 1.9 feet in anticipation of future increases in sea levels.

Investments like these are already yielding significant benefits. Washington, D.C., has a combined sewer system that dumps raw waste into the Anacostia River when the capacity of the system is exceeded during severe storms. New controls that will be completed by 2023 are being put in place that will reduce the risk of overflows. As part of this effort, a new seven-mile-long, 23-foot-wide tunnel was completed last March. During its first two months in operation, it prevented overflows that would have poured about a billion gallons of raw sewage into the Anacostia, leading into the Potomac River near the national capital’s key monuments and then into endangered Chesapeake Bay.

Despite these proactive efforts, many communities across the country are still struggling to adapt. Coping with climate risks can be particularly challenging for middle- to smaller-sized communities, which often lack the technical expertise and experience with anticipating and preparing for the future impacts of climate change. They also often have limited resources to devote to climate adaptation.

In 2016, the Environmental Protection Agency launched an innovative web-based Climate Change Adaptation Resource Center to help all 40,000 communities across the nation anticipate, prepare for, and adapt to the impacts of climate change. Located at epa.gov/arc-x, what we call ARC-X is designed to support local government officials throughout the country, from those with extensive experience and expertise dealing with the impacts of climate change, to those working in communities just beginning to meet those challenges. The goal, consistent with EPA’s mission and statutes, is to help ensure localities continue to protect public health and the environment even as the climate changes.

There is, in fact, already a huge volume of information available to help decisionmakers understand the risks climate change poses to the things they care about, and to develop and implement adaptation strategies. Websites such as the U.S. Climate Resilience Toolkit, Georgetown Climate Center, Climate Adaptation Knowledge Exchange, Kresge Foundation “Climate Adaptation: The State of Practice in U.S. Communities,” ICLEI Local Government Climate Adaptation Toolkit, and others are rich with information. The problem is that these websites often contain a wide array of disparate information which can be overwhelming for a decisionmaker with limited or no experience dealing with climate adaptation. It can be challenging for officials to integrate the different types of information available in any of these sites into a single package that will provide them with a complete recipe for how to evaluate and prepare for the risks posed by climate change.

In meeting this challenge, the ARC-X is unlike any other resource currently available to the public. The ARC-X provides users with an integrated package of information tailored specifically to their needs, based on where they live and the issues of concern to them. Users are given an opportunity to self-identify by indicating the region of the country in which they live and the specific issues of concern to them. The system then provides them with a complete package of information that includes insights about the implications of climate change for the things they’ve indicated they care about in their region and their community; adaptation strategies to address the risks posed by climate change; case studies that illustrate how other localities with similar concerns have already successfully adapted, along with instructions on how to replicate their successful efforts; tools available from EPA to help implement the adaptation strategies; and sources of funding from EPA and other federal agencies. Users can follow a thread through the package, eliminating the need to figure out how all the relevant information fits together. The ARC-X does that for the user.

To help ensure the effectiveness and usefulness of the ARC-X, the agency sought input from potential users as soon as it began designing the system. EPA engaged its Local Government Advisory Committee, whose members include mayors, county executives, and other administrators. The agency also benefitted from comments received in other forums. Several key insights emerged from these discussions.

For instance, we learned that local government officials are overwhelmed by the multitude of websites containing huge volumes of information, much of which is irrelevant to the issues of concern to them. In too many cases, policymakers must search for and piece together the specific information of interest to them. This is a particularly serious problem for the thousands of officials with limited or no expertise with climate adaptation.

The tendency of websites to overwhelm users with information not relevant to their needs was starkly illustrated by a county executive trying to sift through the wide array of adaptation tools that have been developed. The official stated at a climate leadership conference, “We don’t need any more stinkin’ tools. What we need is the technical assistance to understand which tools are the right ones for us to use given the issues of concern to us, and the technical assistance to understand how to use the tools.” For this reason, the ARC-X system was designed to first elicit the specific issues of concern to the user, and then provide relevant information in a manner that meets this official’s needs.

Policymakers also wanted a system that is non-prescriptive. Local government officials need a resource that will inform their decisions, not tell what the decisions should be. It is the prerogative of the communities to decide what, if any, adaptive measures they want to take.

In that vein, there is no question that adaptation is smart government and helps local agencies deliver critical services to their communities even as the climate changes. For example, it helps ensure investments made with scarce taxpayer dollars to clean up Superfund and brownfield sites are resilient to future extreme weather events. But the future is uncertain and decisions about the margins of safety communities want to build into their systems are value-laden choices that must be made by local government officials given available resources. Do they want to ensure Superfund remediation is effective if a 100-year storm hits, or do they want to be more risk averse and spend to prepare for the possibility of a 500-year storm? These are social choices. The challenge is to empower community leaders to make more informed decisions.

“Thank you so much for developing a program . . . from the bottom up, instead of the top down,” Mayor Bob Dixson of Greensburg, Kansas, told us upon reviewing the completed ARC-X system. “It is more receptive to all areas of the United States than . . . just what the Beltway says is going to happen.”

The functionality of the ARC-X system can be illustrated with a real-world problem confronting many coastal communities: the potential impacts of sea-level rise and storm surge on wastewater treatment plants located along the coast. For our illustration, let’s assume the user is a mayor in a small coastal community in the Northeast who is new to thinking about climate change adaptation. The community’s wastewater treatment facility is already protected from flooding by a seawall, but the mayor is concerned the level of protection it provides may prove inadequate in the future. Unfortunately, the community lacks the necessary expertise to assess the risks posed by sea-level rise and worsening storms to develop adaptation strategies.

Let’s follow the thread that leads the mayor through the ARC-X system. When the mayor enters the portal, she is immediately presented with a “Tailor Your Search” option to have the system deliver a complete package of information designed specifically to her needs. She is then asked to self-identify by indicating the geographic region in which her community is located (since impacts vary by region) and citizens’ specific issues of concern. The areas of interest from which she can choose are those related to EPA’s statutory authorities and mission of protecting public health and the environment — air quality, water management, waste management and emergency response, public health, and adaptation planning. Multiple areas of interest can be chosen. In this example, the mayor indicates her community is concerned with the implications of “Sea-level Rise” for “Water Management.”

The ARC-X immediately provides information designed for her locale and specific concerns under the heading “Results Tailored to Your Interests.” The first item in the package addresses the foremost questions the mayor is likely to ask: Why should I care? Why does climate change matter for the things my community cares about? The system explains that climate change is causing sea levels to rise more rapidly across the country, amplifying the magnitude of storm surges in coastal areas. The storm surges could flood or damage water infrastructure that is located along the coast or tidally influenced water bodies. These threats will worsen over time as sea levels increase and the magnitude of storm surges increase.

One can imagine the mayor then asking, What can I do about it? What adaptation options exist that I might consider implementing? In response, the system provides a list of adaptation strategies from which she can choose. The mayor is introduced, for example, to the possibility of building flood barriers like levees, dikes, and seawalls; relocating the utility infrastructure to a higher elevation; developing coastal wetlands as buffers to storm surge; and retrofitting the facility with stronger pumps to prevent wastewater outlets from backflowing.

Since the ARC-X is non-prescriptive, the mayor must decide which, if any, adaptation strategies she is interested in implementing. Since her community’s wastewater treatment facility is already protected from flooding by a seawall, she would like to consider an adaptation option that would raise the wall (the ARC-X adaptation category she might choose is labeled “Plan for climate change: Integrate climate-related risks into capital improvement plans”).

At this point, the mayor is likely to ask the practical question, How can I do it? The ARC-X answers with case studies to demonstrate how other communities concerned with protecting coastal water infrastructure from sea-level rise have successfully implemented the adaptation option she has chosen.

One of the case studies might be the Blue Plains Wastewater Facility in Washington, D.C. The facility is vulnerable to flooding because it is located adjacent to the tidal Potomac River. The mayor learns that Blue Plains has also historically been protected from flooding by a seawall built to withstand a 1-in-100-year flood. She then discovers the local water and sewer authority has assessed the risks posed by sea-level rise and decided to raise the height of the wall. It is investing $13 million in the construction of a 17.2-foot-high sea wall that will surpass the recommended 1-in-500-year storm level. The construction project is due to be completed in 2021.

If the case study stopped here, it wouldn’t help the mayor understand how to replicate the steps taken by the wastewater authority to assess the vulnerability of the Blue Plains facility to sea-level rise and to determine an appropriate height for the sea wall. But the case studies in the ARC-X are different than case studies on other websites. The mayor discovers the ARC-X case study includes a “How did they do it?” section containing the key steps her community would have to take to replicate the actions being taken at the Blue Plains facility. The ARC-X then identifies specific tools available to implement each of the key steps, training materials to help the mayor’s staff understand how to use the tools, contact information for people at EPA who can answer any questions, and financial support available from EPA and other federal agencies to help defray costs.

Recall the ARC-X planning insights gained from the county executive who stated, “We don’t need any more stinkin’ tools.” In our example, the mayor in the Northeast along the coast who is facing flooding of her wastewater plant has been led by the portal to tools her community can use, along with technical support to understand how to use them, meeting the concern of the exasperated county executive. Indeed, all the material provided to the mayor is in non-technical terms. The website then provides links to more technical documentation that can be used by staff to whom the job of implementing the adaptation strategies will be delegated.

Looking ahead, EPA is expanding the number of case studies. A major source of new information will be the communities themselves as they increasingly adapt to the risks posed by climate change. A mechanism therefore exists within the ARC-X for communities to share their experiences and work with EPA to develop new case studies.

The agency recognizes the ARC-X is a nationwide system that lacks a lot of detailed case studies for any one state. EPA is therefore actively looking for opportunities to work with states to develop their own state-level versions of the portal that would contain more detailed content relevant to their communities. EPA is prepared to share the entire system (content and computer code) with states at no cost so they can use it as a platform for building their own state-level versions of the ARC-X. The first state-level version was launched by Indiana University last year. The school’s system, the Environmental Resilience Institute Toolkit, is tailored to the specific needs of communities in Indiana and the surrounding midwestern states.

EPA continues to enhance the ARC-X to make it useful to a wider base. A new component is being developed that focuses on the information needs of businesses. Climate change poses risks to the assets and operations of many businesses across the country, and can have adverse environmental and public health outcomes. Since businesses are important partners in state and local efforts to protect public health and the environment, empowering them to make more informed investments in climate adaptation is warranted.

The initial success of the ARC-X suggests its unique user interface and system for producing integrated packages of tailored information can be a model the designers of other adaptation websites may wish to adopt and adapt. Replication of the ARC-X approach could help enhance the usefulness of the huge volume of information about climate impacts and adaptation that is already available to the public. TEF

CENTERPIECE ❧ What can EPA do to help communities confront the impacts of climate change? Resilience and adaptation are the key words driving the agency's web-based portal that informs and empowers local decisionmakers as they encounter the environment of the future.

New Book Arms Policymakers, Lawyers, Private Sector With Tools to Combat Climate Change in the United States

Read more about New Book Arms Policymakers, Lawyers, Private Sector With Tools to Combat Climate Change in the United States

December 2018

(Washington, DC): Quietly released on the day after Thanksgiving, the Fourth National Climate Assessment presented a stark picture of the United States’ fate due to climate change. While the forecast is grim, one thing is clear: we need to act now.

“Losing Earth” - The Golden Moment for Climate Change

Read more about “Losing Earth” - The Golden Moment for Climate Change

Author

Oliver Houck - Tulane University

Tulane University

Current Issue

November-December 2018

Issue

“For of all sad words of tongue or pen, The saddest are these: “It might have been!” — John Greenleaf Whittier

The saddest words of tongue or pen attend what happened with America and climate change. This is the thesis of Nathaniel Rich’s provocative history, published on line and as the sole article in its Sunday magazine with stark photos and considerable fanfare by the New York Times as “Losing Earth: The Decade We Almost Stopped Climate Change.” It is as well-grounded as any narrative today and it reads like a pop thriller, shaping a story that has already begun to reshape the world... the rest of the world be damned. For better or for worse, America owns this one.

Rich dispenses with what we know about climate change today in a prologue. It is a grim stage. In recent decades we hoped to arrest the phenomenon by 2020, then by 2050. As it now stands the odds of limiting a rise in global temperatures to 2 degrees Celsius are only 1 in 20, at which point the tropical reefs are extinct, sea levels are up several meters, and coastal development on every gulf is no longer tenable. That may be the best case. As the phenomenon hits 4 degrees from various feedback loops, we have Europe in permanent drought and entire subcontinents of desert, including the American southwest.

Although the vastness of these impacts is newly appreciated, their mechanics have been an open secret for a long time. Scientists were predicting global warming since the rise of industrial Europe over a century ago, coal emissions blackening households along the way and eating away at stone buildings. Today the greenhouse effect is found, as Rich writes, in any Introduction to Biology textbook (unless deleted by state agencies). To which America, with the world in tow, was at least facially responding... until suddenly it wasn’t. What happened?

The focus in this sense is narrow, from 1979, when American responses seemed on course, to l989, when, as if by wand, they went off the radar. Each succeeding chapter, as punchy as a short story, tracks a few major players and their pieces of the frame. They include Rafe Pomerance, a broadly skilled environmentalist who fell into the issue and never left it; James Hansen, the NASA scientist, quiet, unassuming, and deadly factual, who would become the bete-noir of climate change deniers; Al Gore, then in the House of Representatives, who made climate change the driver of his political life; John Sununu, President George H.W. Bush’s chief of staff, who had quite different ideas (including of his own expertise); industry chiefs and agency heads who saw threats to their missions; and the ever-present Office of Management and Budget, which went so far as to neuter Hansen’s testimony to Congress and then rewrite parts of it out of whole cloth. (Hansen would present the edited testimony and then reveal both the intervention and its inaccuracies — which caught headlines.) In short, a preview of the war and tactics that would dominate U.S. climate policy ever since.

Rich describes these events with wit and depth, but never quite answers his own question. Sifting through the narrative it seems to have been a perfect storm, unwittingly abetted by a blue-ribbon National Academy of Sciences panel asked to determine both what was happening and appropriate responses. True to the caution of their discipline, however, sensitive to the slightest unknown, after three hard days of dialogue its members could not even agree that the situation was “urgent,” only that it “could be.” Somewhere buried in their report were alarming data, but the take home was that science was working on it, and in any event nothing very bad was going to happen very soon. Which of course is what made the evening news. Ironically, an exercise intended to elevate the issue freed Americans to stop worrying about it instead and return to the backyard grill.

At the same time, throughout the 1980s President Reagan was making government a dirty word. For their part, the carbon industries, led by oil and gas, turned hostile to the issue as soon as it became apparent that they were in the bullseye and would be expected to change; changing the most profitable enterprises in the world was not exactly their business model. National leadership then fell to President Bush, who had apparently decided to put climate change into his campaign after seeing something about it in a magazine. When push came to shove, with his EPA urging action, he left the field to Sununu. As a colleague told Administrator William K. Reilly, “You can’t win against the White House,” and he didn’t. Exactly what lesson can be drawn here is rather opaque. What seemed extraordinary then, from testimony-tampering to quashed initiatives and pandering to Big Oil, seems par for the course today — even mild.

The blowback to this piece has been considerable. It was encouraged by the very title of its promo video, “Almost nothing stood in our way — except ourselves.” As if to confirm the we’re all to blame implications of this statement, Rich goes on in an epilogue to conclude: “It’s not the oil industry; it’s not Republicans, it’s not capitalism: it is all of us. It’s democracy. It’s the human species.” At which point he has exculpated even the most self-interested climate change deniers, and thrown up his hands. As the author Naomi Klein writes in a response to Rich in the Intercept, “Capitalism Killed Our Climate Momentum, Not ‘Human Nature.’” It is simply wrong to use the royal We to describe “a screamingly homogenous group of U.S. power players.” They, and not all that many of them, were at the controls, not us.

Another response entitled “How Not to Talk About Climate Change” also takes Rich to task for failing to pin the tail on the very donkeys identified in his piece. It was the oil industry, which had in fact begun undercutting climate initiatives at the same time Rich saw them on-board, and soon went viral with one of the most successful disinformation campaigns in American history; it was the Republicans under the lead of Sununu and, later, the second President Bush’s vice president, Dick Cheney, who made carbon fuels a national priority and labeled energy conservation an obstacle to progress; it was unregulated capitalism that rose to promethean heights in the 1980s, removing all obstacles in its way, and again in the 2000s, and again today. It was Grand Old Party politico-linguist Frank Luntz, who a few years later would advise party leaders on a winning strategy: as the science on climate change was closing in, they needed to inject uncertainty into the debate. “A compelling story, even if factually inaccurate,” he noted, “can be more emotionally compelling than a dry recitation of the truth.” Even if factually inaccurate — how prescient.

The fact is that U.S. action on climate change was not killed in the 1980s, and although Rich’s “golden moment” was lost, there was never reason to believe that meaningful responses would come easily, if at all. Indeed, it is all the more remarkable that U.S. initiatives survived and came back off the mat, twice, only to suffer setbacks equally abrupt and yet more bizarre. The first came in the 2000 election, in which the most visible and outspoken advocate for climate action on the national scene lost the presidency of the United States to a Supreme Court decision so tinged with politics and based on reasoning so flakey that we are admonished never to cite it as precedent.

The second came in 2015, when every nation on the planet, to even their own surprise, signed onto the Paris Agreement that set the stage for worldwide carbon reductions, only to run into a U.S. presidential candidate who claimed climate change a hoax and, with the aid of well-timed interventions from the Russian government and ill-timed statements from the FBI, would win office by a whisker later that year. Following which America has announced it will withdraw from the agreement and taken every step possible (some of questionable legality) to eliminate domestic climate change controls.

And yet, as an issue, it cannot die. California is on fire, the Southwest is already a dry canteen, Louisiana is sinking like a shipwreck, natural cycles have lost their clocks (as the Cree say, “The geese have lost their way”), and the big changes have yet to come. Rich has written a gripping narrative backgrounding this, and to be fair his epilogue alludes to much of it, but he ends with no more satisfactory an explanation than “human nature” — as if the strong positions taken on climate change in Europe, Latin America, and even Africa come from another species. Perhaps he, too, became overwhelmed by its enormity and ended up blaming all of us. “Losing Earth” is, nonetheless, a deep plunge and an important read. Rich is a gifted writer, but has he finished the job?

In his prologue, Rich calls the “inaugural chapter” of the climate change saga “Apprehension,” our understanding of the phenomenon. He identifies a second chapter called “The Reckoning,” the meaning of which is less clear. If it consists of a one-decade foray into what happened, then “Losing Earth” becomes, at journey’s end, simply a well-written lament. If, however. he means a reckoning of responsibility, then he has failed to close. One of these days a lawsuit is going to break through the impasse (current decisions notwithstanding, damage claims in tort and fraud are not “political questions”), or a state like California will (and it is trying), or a rising generation (also trying), or perhaps something as bizarre as what we have now going on in Washington, and I hope Rich is on hand to describe it. He is clearly primed.

To me, at the least a reckoning means people and institutions are taken to task. This has yet to happen. Until it happens, there will be no reckoning at all. “Losing Earth” is a great start, but blaming “human nature” doesn’t count.

Oliver Houck on "Losing Earth" in the 1980s.

Subscribe to Climate Change