States Step Up Regional Climate Change Gas Mitigation Markets
Author
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
March-April 2018
Issue
2

Despite an abdication of responsibility at the federal level, many states have ramped up efforts to mitigate climate change, including through collaborative initiatives such as the Regional Greenhouse Gas Initiative. RGGI, a bipartisan coalition of nine northeastern and mid-Atlantic states that participate in a voluntary cap and trade regulatory system for power sector CO2 emissions, recently lowered its regional cap by an additional 30 percent between 2020 and 2030. The new cap will be implemented through regulations, based on a RGGI model rule, in each of the participating states — Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont.

Climate change mitigation leadership is nothing new for RGGI, which estimates that since its start in 2005 the participating states have reduced power sector CO2 emissions by 45 percent. RGGI emphasizes that the nine-state region’s per capita gross domestic product grew during that period.

The regulatory scheme provides for the participating states to set an emissions budget and issue allowances consistent with the cap. Allowances, the majority of which are bought at quarterly auctions, allow regulated power plants to emit one short ton of CO2. To comply with the cap, power plants also can buy allowances from other emitters and participate in offset projects.

The auction proceeds are used by states for energy and consumer programs. For example, RGGI estimates that the 2015 proceeds that were invested in energy efficiency, clean and renewable energy, greenhouse gas abatement, and direct assistance for consumer bills yielded $2.3 billion in energy bill savings and avoided 9 million megawatt-hours of electricity use, 28 trillion BTUs of fossil fuel use, and 5.3 million short tons of CO2 emissions.

On the West Coast, the California legislature last year extended the state’s cap-and-trade program to 2030. The program, which is linked with systems in Canadian provinces, sets an ambitious goal of reducing greenhouse gas emissions to 40 percent below 1990 levels by 2030. In addition, the Oregon legislature is considering a trading program that would be linked with the California and Canadian systems.

Although trading systems are welcome during this period of federal inaction, only 20 states currently are pursuing climate mitigation policies that set quantified reduction targets, according to the Rocky Mountain Institute. And, those 20 states represent only 36 percent of U.S. carbon emissions. Similarly, the Congressional Research Service estimates that the RGGI states account for only 7 percent of national CO2 emissions from energy consumption.

Consequently, broadening current programs such as RGGI to include more stringent caps, additional states and regions, and other energy sectors, may be critical to the country’s success in reducing greenhouse gas emissions. Conservation Law Foundation President Bradley Campbell, who helped start RGGI in 2005 when he was New Jersey Department of Environmental Protection commissioner, is optimistic. He notes that RGGI “creates an infrastructure to demonstrate that we can decarbonize our energy system and save money for consumers — all with positive impacts on the economy.”

Furthermore, CLF and other non-governmental organizations support extending the model to other sectors. Campbell views transportation as the “most urgent sector for attention” and predicts that it will take two or three years to develop a sound model and conduct the necessary implementation work. He contends that “a powerful force” moving the process forward will be not only the need to reduce greenhouse emissions but to revamp the current transportation infrastructure finance system. Campbell explains that the current system, which relies on the gas tax, “Will fail as vehicles become more fuel efficient and electrification takes root.”

Membership in RGGI also is expanding. Virginia is poised to join and would be the first southern state to participate. In addition, New Jersey’s newly elected governor pledged during his campaign to rejoin RGGI. And, as a candidate, Pennsylvania’s governor stated his intent to join RGGI but reportedly has faced resistance from his legislature.

Nevertheless, Campbell recognizes that “first and foremost” the challenge is to “come up with a pathway” that can bring in states that are coal dependent or otherwise not interested in emissions reductions. He contends that economics may be the ultimate driver, noting that states that have been “hardliners against emissions reductions are now finding that their job base in fossil fuels is being dwarfed by their job base in renewables and energy innovation.”

Regardless of the motivation, it is critical at this juncture for states to step up efforts to address climate change, including expansion of existing trading systems.

It is critical for states to address climate change, including expansion of existing trading systems.

States step up regional climate change gas mitigation markets.

As Regulators Retreat, Is Corporate Sustainability Up to the Challenge?
Author
David P. Clark
Current Issue
March-April 2018
Issue
2
David P. Clark

Under the Trump administration, the era of robust federal environmental programs may be over. EPA is pursuing an aggressively deregulatory agenda that may have spurred more than 700 agency officials to leave. Regulatory retreat is also the watchword at the Energy Department and throughout the executive branch.

With federal shrinkage, voluntary progress toward high environmental standards becomes more important than ever. For years, corporations and other entities have touted their sustainability pledges. But will they live up to their commitments in the absence of a federal prod? What difference will voluntary actions make?

Because humanity needs an all-hands-on-deck response to combat climate change, biodiversity loss, and other urgent environmental challenges, says John Dernbach, a Widener University environmental law professor and sustainability authority, if the federal hand isn’t visible, then state, local, and private forces become more important.

Reasons to be hopeful are numerous. In 2017, with leadership from the America’s Pledge movement, 2,300 governors, mayors, businesses, investors, and other organizations from across the United States responded to Trump’s withdrawing from the Paris climate agreement by signing a “we are still in” statement supporting the accord. At the same time, the Center for Climate and Energy Solutions (C2ES) worked with 25 global companies to take out full-page newspaper ads urging the administration not to withdraw. Sustainable Brands, which describes itself as a community of forward-thinking business professionals, claims a membership of 348,000 sustainability business leaders who are active on climate, recycling, and other issues.

Regarding corporate sustainability, Dernbach offers a historical perspective on business leadership today compared with 1997, the five-year anniversary of the Rio Earth Summit. In 1997 only a handful of corporate and municipal leaders could be found, and such standards as forestry certification, LEED for green buildings, the Global Reporting Initiative, and many others did not exist. But now they abound, Dernbach notes, and many large companies won’t locate in places where they cannot source materials and energy sustainably. Some business interests are still fighting back, but battles are occurring on a front that today is vastly expanded compared with 1997.

“The momentum is really there” for companies to go beyond compliance, says Janet Peace, the senior vice president for policy and business strategy at C2ES. For both economic performance and reputation reasons, large businesses now see sustainability as essential. But the bigger concern is that without a policy framework post-2020, there is a lot of uncertainty, and “companies don’t like uncertainty,” Peace adds.

Committed cities and major corporate energy users — such as Amazon, Walmart, and Google — can make significant progress in reducing greenhouse gas emissions, but it is difficult to completely fill the gap without strong federal leadership, Dernbach says. In his view, Trump’s climate policies aren’t fact-based and will ultimately have limited impact, whereas companies think internationally and are driven by facts pertaining to cost reduction, consumer demand, resource availability, and other issues that are driving them toward sustainability without regulatory drivers.

Corporate performance data will be critical. In 2016, the Securities and Exchange Commission issued a “concept release” seeking public comment on corporate disclosure requirements. In response, labor and citizens groups urged the SEC to require greater corporate disclosure on environmental, social, and governance issues. But in 2017 the Business Roundtable told the White House that a top regulatory concern was to have tighter SEC rules limiting the power of activist shareholders with small stakes in public companies from pursuing social agendas through shareholder proposals.

Concerns about shareholder activism have existed for decades, Peace notes. But, despite efforts to limit that activity, participation in the Carbon Disclosure Project has risen annually, with more than 6,000 companies now on board. Additionally, 237 companies with a combined $6.3 trillion market capitalization publicly committed to supporting the Task Force on Climate-related Financial Disclosures, which last June published recommendations on governance, strategy, risk management, and metrics and targets. The task force information will be useful to disclosers, advisers, and third parties, Peace says, adding that some 200 sustainability disclosure frameworks exist. Standards, such as ISO 14001 for environmental management systems, are helping companies achieve leadership roles, Peace adds.

Many corporate, state, and local hands are on deck, but with global middle class consumers doubling by 2030, will the coming storms be overwhelming?

As regulators retreat, is corporate sustainability up to the challenge?

Changing With a Changing Climate
Author
Scott Fulton - Environmental Law Institute
Environmental Law Institute
Current Issue
January-February 2018
Issue
1
Scott Fulton

The question of whether climate change is real is making the rounds again. It seems to me that this query has become unfortunate shorthand for three subordinate and fairly distinct questions: (1) Is the climate changing? (2) Are humans driving such change? and (3) If so, what should be done to mitigate the human driver?

While these questions are independently important, the dynamics that surround them are somewhat interactive, particularly with respect to questions 2 and 3. Worries about the response to question 3 can put pressure on the certainty desired for question 2. In other words, the more disruptive that one sees the proposed system for mitigating GHG emissions, the greater the tendency to scrutinize the predicate or justification for that disruption.

We are a big tent at ELI and no doubt have folks with different views on this subject, but personal views notwithstanding, it seems plain from recent developments — from the decision to step back from the Paris Agreement, to the decision to take down the Clean Power Plan — that we have not yet arrived at closure on the dynamic between questions 2 and 3 (at least at the national level). Rightly or wrongly, that debate continues.

Another concern emerges from this. The debate about questions 2 and 3 seems to be serving to gloss over and subordinate to the point of virtual invisibility, question 1: Is the climate changing? This question is fundamentally important in its own right. My suggestion is that there is basis for national consensus on this point in the here and now, and that, even as the other debate continues, we should get to that consensus as soon as possible, since we otherwise accrue risk with each passing decision that fails to account for the change that is already upon us.

There is a new report out that bears a read: “Climate Science: Special Report (2017).” As the product of an interagency process that came out on the Trump administration’s watch, it has attracted a good deal of attention. The report catalogs climate changes over the last 100 years (a nearly 2 degree Fahrenheit increase in temperature), with particular focus on more recent years (the last three of which have been the warmest on record). It describes the consequences of these changes, many of which the authors conclude we are already experiencing.

These are not new revelations, but this report doubles down on some baseline conclusions in a way that should cause us to take note, pointing to well-documented changes in surface, atmospheric, and oceanic temperatures; melting glaciers; diminishing snow cover; shrinking sea ice; rising sea levels; ocean acidification; and increasing atmospheric water vapor. The report associates these changes with coastal zone inundation, changing disease vectors, heavy rainfall, severe storm events, heatwaves, large forest fires, episodic freshwater scarcity, and a variety of other maladies.

The report’s forward look is, no surprise, more worrisome still, as these phenomena are all expected to intensify over the decades ahead. And, while there will always be difficulty attributing particular weather disasters to longer-term climate trends, many see 2017’s monster hurricanes, drought, and forest fires as harbingers or illustrations of what is ahead.

By training, most of us in the ELI community are not climate scientists. But the lawyer’s orientation strikes me as useful here. In the law, except when we are talking about the proof needed to take someone’s liberty from them, we draw conclusions based on the preponderance of the evidence. If the evidence demonstrates that a proposition is more likely than not true, then we take the thing as true in order to resolve the question at issue. If the clear weight of scientific opinion and evidence lines up on one side of a dispute, and if we find that evidence credible, then the weight of evidence determines what is taken as true.

Say what you will about questions 2 and 3, but, with respect to the question of whether climate is changing, we are lurching to a place where awareness of a changing climate is no longer the province of the science community but rather the product of objective, collective experience. Leadership is needed to ensure societal acceptance of this part of the climate reality, and alignment of our decisionmaking processes with it, so that at the very least we are making today’s decisions about where and how to construct our infrastructure, homes, and businesses, how to invest society’s resources, and how to aim our policies and programs, so that our choices are durable, resilient, and geared to the future that we expect and the present that we know. Otherwise, we put unnecessarily at risk the integrity of the decisionmaking processes that are at the heart of effective environmental governance.

Scott Fulton on changing with a changing climate.

Pollution’s Death, Destruction Huge
Author
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue
January-February 2018
Issue
1

Pollution’s Death, Destruction Huge

As the world mourns deaths from opioid overdoses, gun violence, terrorism, and killer storms, a study reveals that “environmental pollution is deadlier than all the world’s wars, and it kills more people every year than a plethora of other ills, from smoking and hunger to natural disasters,” as E&E News reports. The research, published in The Lancet, “found that 1 in 6 premature deaths in 2015 was attributable to pollution and toxic exposure. That adds up to about 9 million deaths, with a financial cost of $4.6 trillion — more than 6 percent of the world economy.”

In Europe, “filthy air caused half a million early deaths” in 2014, reports New Scientist, citing the European Environment Agency. The biggest killer “by far” was PM2.5, which alone caused 428,000 deaths in 41 European countries. The main source of this pollution was domestic woodburning. Nitrogen dioxide from vehicles contributed another 78,000 deaths, and ground-level ozone accounted for 14,400 premature departures.

None of the deaths above is directly due to climate change, which adds to the total toll of dying and destruction. Extreme heat isn’t just an inconvenience — it can kill, according to Kim Knowlton, deputy director of the Natural Resources Defense Council’s Science Center. The organization found that 210 million Americans are potentially affected by hotter than normal days.

“Cities like New York, Philadelphia, Chicago, and Boston could each experience at least six times as many dangerously hot summer days by 2100 as they did, on average, from 1975 to 2010,” NRDC said in an email. “Collectively, 45 major urban areas in the United States could see about 28,000 more deaths each year due to extremely hot summer days by the 2090s.”

So much for deaths. As for destruction, the data crunchers at Zillow, the real estate website, are predicting that one home in fifty in the United States will be flooded if seas rise by six feet, as forecast for century’s end. The value of the affected properties, which surprisingly will be in suburbs more than the cities, is $916 billion. “While the damage caused by recent hurricanes is a devastating reminder of how quickly the weather can undo people’s lives and destroy their homes,” the report says, “the potential for damage from a slower-moving phenomenon could be even more destructive.”

Concerned about droughts, wildfires, hurricanes, and other natural disasters affecting the United States, Senators Susan Collins (R-ME) and Maria Cantwell (D-WA) requested that the Government Accountability Office assay the costs to American society. GAO found that the federal government spent $350 billion over the last decade on crop losses, extreme weather, and other natural disasters, much of the total attributable to climate change. That sum does not include the cost of the four destructive hurricanes that hit the United States last year nor the huge wildifres that plagued the West, which would push that total over $400 billion.

“These costs will likely rise as the climate changes,” the office said in its summary overview. “GAO recommends that the appropriate entities within the Executive Office of the President, including the Office of Science and Technology Policy, use information on potential economic effects to help identify significant climate risks and craft appropriate federal responses.” Good idea, but OSTP has largely been a “ghost town,” according to the New York Times, and the president has nominated a woman whose expertise is comparative literature and who believes that increased carbon dioxide is actually beneficial to head his Council on Environmental Quality.

In a report on the GAO study, E&E News found that “the document said the fiscal implications of climate change are likely to vary by region. The Midwest and Great Plains are likely to see a decrease in crop yields, while the West could suffer increases in drought, wildfire, and heat waves. The Southeast is at risk for coastal property loss from sea-level rise and coastal erosion. The Northeast is also at risk for storm surges.”

Representative Mike Quigley (DIL) summed it up: “The costs of climate change are staggering and will only continue to mount in the future.” Quigley, the vice chair of the Sustainable Energy & Environments Coalition, declared, “Climate change is a fiscal problem, an agricultural problem, a food and water problem, a housing and transportation problem. There is no area of society or sector of our economy that is immune to climate impacts.”

Notice & Comment is written by the editor and represents his views.

 

Federalism Down Under

“Referring to laws that protect the environment as ‘green tape’ is like referring to speed limits as transport inefficiencies. Environmental laws are there for environment protection. The regular attempts of state governments to put the environment last demands a federal role.”
— Opposition environment spokesman Tony Burke as quoted in The Australian

 

Polluter Pays, Precautionary Principle Pulled Out of Pullout Bill

The cornerstones of wildlife and habitat protection have been quietly left out of the withdrawal bill ripping the heart out of environmental law, campaigners say.

A key principle under EU law which provides a robust legal backstop against destruction of the environment — the precautionary principle — has been specifically ruled out of the bill as a means of legal challenge in British courts.

Based on the idea that the environment is unowned, the precautionary principle creates a bottom line forcing those who want to build or develop, for example, to prove in law what they are doing will not damage the environment.

Other key elements of EU legal protection, the polluter pays, and the principle that preventative action should be taken to avert environmental damage, have also been ruled out in the bill as a means to protect the natural world from damage by policymakers, development or industry after Brexit.

The withdrawal bill began to be debated in committee [in October] by MPs. Ministers are facing intense lobbying by Greener UK, an umbrella group of several leading environmental NGOs and backbench MPs, to ensure that the UK does not throw out these key protections.

Richard Benwell, head of government affairs at WWT, said: “Take out principles like precaution and polluter pays and you rip out the heart of environmental law.”
—The Guardian

 

News That's Reused

The temperature was 97 degrees at the start of the World Series in Los Angeles, setting a record for the Fall Classic, reports E&E News. One thinks of managers and relief pitchers wearing team jackets as they go about their business during the games that begin in late October. But the Santa Ana winds roared down from the mountains to Dodger Stadium, where the LA squad faced off against the Houston Astros, a team immune to the weather in its signature dome.

A Peruvian farmer is suing German energy giant RWE for its role in melting a glacier above his town. The meltwater is overflowing a dam protecting the settlement, requiring the equivalent of $4 million in repairs to the aging structure. The suit seeks $20,000, an amount that takes into account RWE’s share of global greenhouse gas emissions, which the farmer calculates as .05 percent.

“The glacial melt is very fast there and some glaciers are about to disappear due to global warming,” Saul Luciano Lliuy told Reuters. “Those responsible are the big industries that have burned coal . . . that have burned petroleum. The main objective of what we want to achieve is that these businesses stop polluting.”

Another farmer, this one in China, is suing a local chemical plant for polluting his farmland. “Wang Enlin, an elderly farmer who left school when he was 10 years old and taught himself law armed with a single textbook and dictionary, makes for an unlikely eco-warrior,” reports The (U.K.) Daily Mail.

“Wang and other villagers from northeast Heilongjiang province have sued Qihua accusing it of contaminating their soil, rendering it untenable for crops, in a case that has stretched on for more than 16 years.”

A local court ruled in his favor, ordering the giant firm to clean up a waste site bordering the farmland and pay 55 affected households the equivalent of $120,000. “But that ruling was overturned on appeal, and Wang is now gearing up to fight back on another day in court.”

Climate change means a good recruitment climate for ISIS, the venerable National Geographic reports. “Across rural Iraq and Syria, farmers, officials, and village elders tell similar stories of desperate farmhands swapping backhoes for assault rifles.” ISIS has found the infertile fields ripe for induction. “Already battered by decades of shoddy environmental policies, which had hobbled agriculture and impoverished its dependents, these men were in no state to navigate the extra challenges of climate change.”

This would not be the first instance of resource stress or scarcity leading to armed conflict — tales go back millennia and include many current conflicts as well. But it is a harbinger of conflicts to come as millions of environmental refugees test receiving countries, and many end up as mercenaries as a means of survival.

California has fined a Russian consulate for burning trash presumed to be secret documents when the facility was ordered to close as part of a tiff between Washington and Moscow, according to Newsweek.

“The Bay Area Air Quality Management District issued the unspecified fine . . . in response to the mysterious plumes of black smoke that escaped the building’s chimney . . . two days before the staff was forced to abandon the post during the ongoing diplomatic spat between the United States and Russia.”

News on deaths from pollution, warming gets even worse.

Of Econs and Humans — Theory, Moral Licensing, and Crowding Out
Author
Bruce Rich
Current Issue
January-February 2018
Issue
1
Bruce Rich

The award of the 2017 Nobel Prize for economics to Richard Thaler highlights the recognition that human behavior is more complex and irrational than the assumptions of conventional, still prevalent economic models. Psychologist Daniel Kahneman, who received the economics Nobel in 2002, described his astonishment that “our two disciplines seemed to be studying different species, which . . . Richard Thaler later dubbed Econs and Humans.” Kahneman warned of “theory induced blindness: once you accept a theory it is extraordinarily difficult to notice its flaws.”

This debate is of extraordinary importance for the future of various national and international environmental programs. Many may rely on assumptions that are questionable, and in some cases perverse in their environmental consequences.

A 2013 study in Energy Policy examined the impacts of a water conservation program in a Massachusetts housing complex on overall electricity consumption, including impacts on household CO2 emissions. Participants reduced their water consumption by 6 percent, but electricity use increased by 5.6 percent compared with a control group. The reduced water use cut energy consumption for hot water heating, but overall increases in electricity use exceeded these energy reductions by two-fold. Taking into account EPA estimates of electricity lost in production, transmission, and delivery, energy use increases with associated upstream losses were six times greater than the energy saved through reduced hot water heating.

The authors state that “adoption of a more environment friendly choice in one domain may actually increase the likelihood of less environment friendly behavior in other areas.” At root is “moral licensing,” whereby people feel that socially or morally praiseworthy efforts in one area lessens the need to act in other areas. They warn that “a considerable amount” of environmental programs and funds might “actually have a much smaller — or even a negative impact on CO2 emissions” than evaluations indicate.

As early as 1970, Robert M. Titmus, a professor at the London School of Economics, concluded that economic incentives for blood donors in the UK adversely affected, i.e., “crowded out,” donors’ main motivation: altruism and civic duty. Increasing payments for blood donations, he found, can actually decrease blood supply. Since then evidence has grown that some economic-incentive programs to promote publicly desirable activities are perverse in their consequences.

Studies in Switzerland, Wisconsin, Nevada, and Washington state on public approval of proposed nuclear waste disposal facilities found higher acceptance when the motivation is the greater public good or civic duty, and that the introduction of economic incentives reduces public acceptance, sometimes more than 50 percent.

In the past, many economists examined empirically expressed preferences without analyzing the impact of external material incentives on intrinsic psychological and cultural values. Yet this distinction, and the interrelationship between external and internal motivation, is critical for understanding how a program to change environmental behavior may work. Already in 1997, a Swiss study concluded that “where public spirit prevails,” using price incentives may crowd out civic duty, and actually make achieving the goals of a particular project more difficult. The authors urged that price incentives should be “reconsidered in all areas where intrinsic motivation can empirically shown to be important.”

Sometimes it is argued that while the crowding out phenomenon might apply to populations in richer countries, developing nations would be more responsive to economic incentives. A 2015 American Political Science Review article concluded that private economic incentives in a World Bank eco-development project in the Himalayas had a “negative and significant” impact on existing non-economic psychological and cultural motivation to conserve forests in the project population.

Those reporting that the project reduced formerly intrinsic cultural motivations for forest conservation in favor of economic incentives had “lower levels of conservationist behavior” than those who continued to cite the primacy of cultural and environmental values. Collective and community material benefits did have a positive correlation on environmental motivation. But community approaches to resource management, as opposed to private ownership models, are often not favored by governments and aid agencies.

The Indian and American authors warn that many sustainable- and ecodevelopment projects appear to be based on unfounded, simplistic assumptions about the correlation between small household economic incentives and achieving environmental goals. In fact, such “sustainable development projects can have the perverse effect of undermining their own environmental goals.”

Of econs and humans — theory, moral licensing, and crowding out.

A Shift in the Air, as Transportation Moves to a Lower-Carbon Future
Author
Kathleen Barrón - Exelon Corporation
Exelon Corporation
Current Issue
January-February 2018
Issue
1
Kathleen Barrón

Transportation electrification represents an important opportunity to reduce reliance on carbon-based fuels and promote energy security. In fact, many believe electricity as a transportation “fuel” is essential to meeting regional, state, and national environmental goals.

Transportation represents approximately one-third of national carbon emissions, occasionally overtaking power generation as the largest source of greenhouse gases in the United States. Transportation also remains one of the more pernicious sources of our most dangerous air pollution, vexing states that host major transportation routes without being able to regulate emissions from vehicles that pass through their jurisdictions.

Without a coordinated electrification effort, transportation’s share of emissions will continue to increase. One of the more promising initiatives in this area is the recent announcement that eight northeastern and mid-Atlantic states have restarted a regional partnership, the Transportation Climate Initiative, with the aim of coordinating policies to accelerate innovation and deployment of electrification to the benefit of consumers, companies, and other stakeholders.

A regional approach will bring more interest and attention, including vehicle stocks and marketing investments from car manufacturers. A multijurisdictional plan allows the participating region to carry more weight with vehicle manufacturers, infrastructure providers, and maintenance and repair services. Regional deployment modeling allows for more comprehensive and cohesive infrastructure planning and charger placement.

And a regional solution provides continuity for customers in a highly traveled region. Currently a disproportionate focus of electric vehicle investment and interest is in California because the state has a unified front in dealing with industry stakeholders. Creating a similar dynamic in the Northeast and Mid-Atlantic will benefit customers and the environment.

TCI states are kicking off listening sessions throughout the region to solicit ideas and engage all affected communities in planning the transportation system of the future, not just for electric passenger vehicles but for public transportation as well. The Georgetown Climate Center and Cambridge Systematics estimate that a regional clean transportation program could reduce carbon emissions between 29 to 40 percent by 2030, increase economic growth between $11.7 billion and $17.7 billion by the same year, and create between 91,000 to 125,000 jobs.

But while regional efforts play out, individual companies can make a difference. The announcement by Volvo earlier this year that it will introduce only vehicles that are powered by electricity by 2019 is important; the penetration of electric vehicles has the capacity to increase greatly if the infrastructure is available to accommodate it. The utility companies I represent, like many around the nation, are engaged in a range of activities to advance electric vehicle adoption.

Utilities can facilitate the adoption of electric vehicles and other electrified transportation in their service territories and beyond. The electric distribution system is their expertise, allowing them to build and maintain the extensive infrastructure needed to support rapid EV growth in a financially viable manner.

Electric utilities are uniquely positioned to ensure charging infrastructure addresses critical public policy priorities, including supporting diverse communities and advancing regional integration and air- and waterquality goals. Gains in one jurisdiction can drive gains in other jurisdictions in the region, creating a domino effect that leads to a critical mass for EV adoption.

Utilities across the United States are investing heavily in electric vehicles through special rates, infrastructure, rebates, chargers, and other activities. EV charging fits within a broader portfolio of potential electricity services, like vehicle-to-grid and demand management that are provided by utilities. Additionally, electricity as a transportation fuel represents a significant opportunity to grow electric load, which improves asset utilization and helps stabilize rates for all users, including low-income customers. Electric companies can provide an array of charging options to EV owners, including options that provide green electricity, further increasing the environmental benefits of EVs.

The internal combustion engine is not dead. Gasoline prices are relatively cheap (absent a carbon price) and national fuel standards are not likely to be tightened in the next few years. But the consumer desire for innovation and environmental performance is stronger than ever. We need to be ready to accommodate it.

A shift in the air, as transportation moves to a lower-carbon future.

By His Acts, Administrator Pruitt Endorses the Club of Rome Report
Author
Craig M. Pease - Vermont Law School
Vermont Law School
Current Issue
January-February 2018
Issue
1
Craig M. Pease

Administrator Scott Pruitt recently promulgated a policy that remakes various EPA science advisory committees as corporate handmaidens, by prohibiting scientists who receive grant funding from serving on science committees at the agency. The allegation is that they have a conflict of interest.

All Pruitt needs now is an Orwellian slogan, say: Science Is Bias. And it is, in a way. Bias is the tilting of data and analysis in one particular direction. Pruitt could have stacked science committees with objective scientists, or in the alternative stacked them with corporate scientists. Either is bias. But not all bias is bad. A bias towards objective science strikes me as rather useful, in having important government decisions grounded in the real world.

It is Pruitt who has the serious conflict of interest. The various PACs for his Oklahoma election campaigns show receipt of substantial donations from gas, oil, and coal interests. So now Pruitt stacks EPA science committees with corporate interests. No surprise here.

Alas, Pruitt’s actions are merely the latest installment of a long history of politicians manipulating science at EPA. Consider J. McCarthy and R. Lattanzio’s Congressional Research Service report from August 2017, explaining how President Obama directly interfered with ozone science at EPA.

In a 2008 letter, the Clean Air Science Advisory Committee unanimously recommended a primary ozone standard of 0.060 to 0.070 parts per million. In early 2011, EPA promulgated a draft standard of 0.070 ppm. Later that year, President Obama himself, in a very public letter that could only have been intended to impact politics and the media, instructed EPA Administrator Lisa Jackson to withdraw the then pending draft ozone primary standard. Cass Sunstein of the Office of Management and Budget sent a parallel letter to Jackson. Obama and Sunstein justified their action to withdraw the draft rule by citing unnecessary “regulatory uncertainty” and they also astonishingly asserted that the draft rule failed to be “based on the best available science.”

Those two former University of Chicago law professors had somehow become very concerned about ozone science that the science committee, in a unanimous recommendation, had overlooked or not considered. Rather obviously, Obama and Sunstein were politically pandering to the Midwest, whose electoral votes Obama needed to carry to prevail in the then upcoming 2012 presidential election.

What may be surprising is that this is also a story about resource scarcity.

As resource limitation bites ever harder, there is increasing competition among various political factions as they attempt to stake a claim to the increasingly scarce remaining resources.

EPA decisions to set pollution standards most certainly allocate scarce resources. There are not enough resources for the corporations to have all the dollars they want, and for the citizens to have all the life and well-being they want. The contentiousness of EPA decisionmaking has increased, as the resources available in society have decreased.

There is a trend going back at least to the 1970s toward ever increasingly contentious environmental decisionmaking. The Clean Air Act was passed nearly unanimously. Even the 1990 amendments were enacted with bipartisan support. Pretty clearly, no material amendments could be enacted today, even though they are badly needed to address climate change. These four decades have also seen ever increasing detail and length in risk assessments, ever increasing delays in completing scientific assessments of all sorts, and increasing length and complexity of environmental regulations.

No doubt this is related to GDP growth dropping from 4 percent annually in the 1970s, to under 2 percent today. And half of today’s GDP growth is growth in population size, which actually results in fewer resources per person. So there is more competition for what remains.

The year 2018 is a time of more and more people, and fewer and fewer resources, as correctly predicted by Donella Meadows and colleagues’ The Limits to Growth, published in 1972. The report from the Club of Rome explicitly shows the decade of 2010-2020 as being the halfway point between abundant resources (in 1900) and severe resource limitation (in 2100).

Pruitt is caught in a Chinese finger trap; the harder he tries to circumvent good science, the more evidence do his acts demonstrate severe competition for scarce resources, and the more do his acts endorse the Club of Rome.

Science at EPA is but a tactical pawn. Sometime the scientists provide the politicians with the “wrong” answer. And then the politicians just ignore, work around, or fire the scientists, as did Administrator Pruitt and President Obama.

By his acts, Administrator Pruitt endorses the Club of Rome report.

The Debate: Federalism During an Era of Retrenchment, Growing State Needs
Subtitle
Cooperative Federalism in the Trump Era: Can the Sovereigns Collaborate in Gains?
Current Issue
January-February 2018
Issue
1
The Debate

Since its establishment 47 years ago, the U.S. Environmental Protection Agency has had overarching enforcement responsibility for most of the nation’s federal environmental laws. But over the decades, states have developed the expertise and capacity for ensuring environmental protection. With the Trump administration’s proposed downsizing of EPA’s budget and staffing and renewed focus on states, decisionmakers and stakeholders have a timely opportunity to rethink the paradigm of cooperative federalism and environmental protection.

For decades, EPA has played the role of the “gorilla in the closet,” the looming threat of federal enforcement if regulated entities did not cooperate with state enforcement efforts. But if less federal enforcement is on the horizon, how can environmental compliance be assured? In considering this question, the Environmental Council of the States has proposed that a periodic audit system take the place of federal intervention in delegated states. How would an audit system of this kind work in practice, and what are the implications of this kind of change?

Meanwhile, environmental data are being generated at an exponential rate, and other actors, namely localities and international regimes, are increasingly asserting their roles in environmental governance.

At the ELI-Miriam Hamilton Keare Policy Forum, held just before the annual Award Dinner, an expert panel discussed the opportunities and challenges of a new take on cooperative federalism for environmental governance. The conversation considered trends in politics, economics, technology, and other factors influencing environmental protection.

How will information technology and interconnectivity change environmental enforcement and accountability? How can governments, advocates, and businesses evaluate this information and use it to ensure compliance? What do forces outside the federalism dichotomy mean for the future of environmental governance in a global economy and society unconstrained by state or national borders?

 

Stan Meiburg

“Big data, the 24-hour news cycle, and hyper-transparency have the potential to disrupt the federal-state relationship, but there are also opportunities”

Stan Meiburg
Director of Graduate Studies in Sustainability
Wake Forest University
Moderator

Barry E. Hill

“Environmental justice has been embedded in each and every one of the laws that EPA administers. How is that going to change as a result of this
cooperative federalism?”

Barry E. Hill
Visiting Scholar
Environmental Law Institute

 
Neal Kemkar

“We at GE believe climate change is real. Pollutants don’t respect boundaries. Which raises the issue of state-federal relations and international relations as well”

Neal Kemkar
Director of Environmental Policy
General Electric

Becky Keogh

“Some view EPA as a helicopter parent to the states. Sometimes it’s a matter of letting our children grow up and understanding that programs have matured”

Becky Keogh
Director
Arkansas Department of Environmental Quality

 
Bob Martineau

“Cooperative federalism is really about the how, not the what. As to the what, people will agree we should breathe clean air and should have access to clean water”

Bob Martineau
Commissioner
Tennessee Department of Environment and Conservation

Vickie Patton

“We’ve got to reach out to the public and commit to the highest levels of transparency and really inclusive dialogue. We’ve got to be thinking about adaptive federalism”

Vickie Patton
General Counsel
Environmental Defense Fund

 

Stan Meiburg: Here is a reading from Federalist #51.

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each is subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

This tension between two sovereigns can be destructive, as it was in the Civil War, but it can also be creative, with states serving as laboratories for democracy. The field of environmental protection is no exception to this tension and this opportunity.

Our first speaker on our federalism and environmental protection is Barry Hill. Barry is a visiting scholar at the Environmental Law Institute. He worked at EPA for many years as senior counsel for environmental governance in the Office of International Affairs, and as the director of the Office of Environmental Justice.

Barry Hill: There are four questions that I would like to pose. The first question is whether or not this cooperative federalism is new and what makes it so?

During the Clinton administration, I worked on EJSEAT — the Environmental Justice Strategic Enforcement Assessment Tool. Then the Bush administration came in and they said, “It’s now going to be called Environmental Justice Smart Enforcement Assessment Tool.” Same acronym, and at EPA we loved acronyms. Other than that one word, nothing really changed. So, I thought about that as it related to this thing called cooperative federalism and whether it is new.

The second question is whether a new cooperative federalism means we are going to abandon everything that has been done over the last 40 years or so in the environmental law and policy area. Will EPA no longer be the overseer?

The third question relates to environmental justice. Since the office was established 25 years ago, environmental justice has been seen as embedded in each and every one of the laws that EPA administers. How is that going to change as a result of this cooperative federalism?

The final question is whether this cooperative federalism is used as a sword or shield. In announcing the rollback of the Clean Power Plan, Administrator Pruitt said, “We can now assess whether further regulatory action is warranted; and, if so, what is the most appropriate path forward, consistent with the Clean Air Act and principles of cooperative federalism.”

Really? What does that mean?

He went on to state, “The previous rule ignored states’ concerns and eroded longstanding and important partnerships that are a necessary part of achieving positive environmental outcomes.” Was that a sword or shield?

Stan Meiburg: Neal Kemkar is the director of environmental policy at General Electric. Before joining GE, he worked for the White House Council on Environmental Quality, the secretary of the interior, and the governor of Colorado.

Neal Kemkar: At GE, we have 300,000 people operating in 180 countries. I want to boil up our experience into several megatrends.

The first is digitization. The number of connected devices will reach 50 billion by 2020. In a few years, we may all have personal air quality monitors in our pocket that tell you the levels of PM 2.5 in your exact neighborhood. How do we capture these terabytes of data?

Second is fossil fuel abundance. In the last decade, we have seen a tenfold increase in U.S. shale gas production and a 50 percent reduction in oil prices. Our collective challenge is ensuring that the resulting production and consumption are as efficient as possible. How does that interplay with that industry’s social license to operate?

The third is growing resource stress. We at GE believe climate change is real, the science is settled. Pollutants don’t respect boundaries, which raises the issue of state-federal relations and of course international relations as well.

Last is this idea of competitive clean energy. In the midst of digitization, fossil fuel abundance, and resource stress, we’ve also witnessed unprecedented innovation in the clean energy space. Costs have declined dramatically. Solar costs have come down 75 percent over the last decade. Wind power installed capacity has grown ten times.

More connected devices, fossil fuel abundance for the foreseeable future, intensifying resource stress that increasingly doesn’t respect boundaries, and competitive clean energy. These are the megatrends we face.

Stan Meiburg: Becky Keogh is vice president of the Environmental Council of the States. She has served as the director of the Arkansas Department of Environmental Quality since 2015.

Becky Keogh: One thing we need to remember is that states had environmental programs many years prior to the 1970s. Our agency has existed since the 1940s. And many issues were addressed not by a federal agency or a state but by cities.

Back then, we didn’t have the benefit of today’s technology, nor did we have the tens of thousands of trained professionals in environmental sciences and technologies that we do today. At our agency, we now have apps for many of our services, something that we never had before. That raises the question of how we channel this technology into our regulatory world, making sure that we are driving the technology in the direction we want it to go.

Some view EPA as sort of a helicopter parent to the states. Sometimes it’s a matter of letting our children grow up and understanding that these programs have matured. Many of these programs have delivered the outcomes that we originally sought. They’ve now graduated from college, many of them have jobs, they have their own children.

Looking at a case in Arkansas, we have regulations that declare that if you get a handful of water samples from a stream with a certain percentage of pollutants, then we will do something about it. Now we have monitors that take samples every 30 seconds and we’re trying to apply that data against a standard that used to be based on a set of eight samples over two seasons. Are the problems we are seeing today really an indication of a natural problem or is it just an indication that we know a lot more?

Stan Meiburg: Bob Martineau has been the commissioner of the Tennessee Department of Environment and Conservation since 2011. Bob is a past president of ECOS and worked in EPA’s Office of General Counsel.

Bob Martineau: Given limited resources, we don’t want to duplicate efforts. We shouldn’t be doing the same thing twice and checking every little bit of homework. So, how do we divide and conquer our limited resources and continue to build the federal-state relationship? It is important to keep in mind that first and foremost, it’s about environmental outcomes.

What we’re talking about in cooperative federalism is really that relationship of how, not necessarily the what. As to the what, as a general principle, people will agree we should breathe clean air and should have access to clean water. We may debate whether the standard ought to be so many parts per billion or that many parts per billion, but at the end of the day, the public wants to know if their air is clean, if their water is safe to drink, if the land around their house and their local school is safe to play on. How do we continue to prosper economically while ensuring that we have those?

A lot of people used to bristle at the term “co-regulator.” The common understanding is that states are not just another external stakeholder in the environmental regulatory enterprise; they are partners. We can’t develop a set of regulatory principles without looking at how they are going to be implemented in the field. The states, which are doing 90 percent or so of that implementation, need to think about the environmental outcomes we seek.

If we look at how cooperative federalism relates we have to differentiate between the regulatory side and the program implementation side and the enforcement side. States need flexibility to achieve their goals. At the same time, there are local, state, cross-state, and even international impacts to what happens in a particular state.

As we set air quality standards, such as new source performance standards, or water quality standards, we need to ensure that we have a race to the top, recognizing there is huge political pressure and economic pressure on given states to site that new plant.

So, as we frame that debate and add in private environmental governance, we can see that many people are making these decisions independent of any regulatory construct. Their shareholders are demanding it. Their customers are demanding it. Companies like Walmart have said, “We want X percentage of our energy to be renewable by a date certain.” Leadership in companies are driving marketplace decisionmaking regardless of what the regulatory requirements are.

Stan Meiburg: Vickie Patton is the general counsel of the Environmental Defense Fund and manages the organization’s national and regional clean air programs. Before coming to EDF, she worked as an attorney for EPA.

Vickie Patton: In my experience, there is no cookie-cutter approach to cooperative federalism. In fact, those people who have done this work for a long time find different ways to engage in problem-solving. As a result, we have made tremendous progress.

I’d like to make a few points. First, the “what” matters. What are we trying to achieve? It’s hard to have a debate about the “how” if we don’t have a shared understanding of the what. My view is the what ought to be delivering ambitious public health and environmental outcomes, while making continuous progress. We need to commit ourselves to what the American people expect, so that all communities benefit, especially those that have for far too long suffered a heavy burden of public health and environmental harms.

We can’t shy away from the most important challenge of our time, climate change. Support for climate action is at a zenith. In my own home state of Colorado we’re delivering cleaner energy, saving customers money, putting wind turbines in parts of rural Colorado that are keeping families on their farms. We’re manufacturing those turbines in rural parts of Colorado like Windsor and Pueblo that are gaining shared prosperity from this vibrant clean energy economy. Let’s roll up our sleeves and make sure that climate change is a critical part of this dialogue.

We’ve got to win the public trust. Whenever these discussions start, people are skeptical about where it is all headed, what the objectives really are. We’ve got to reach out to the public and commit to the highest levels of transparency and really inclusive dialogue. We’ve got to be thinking about adaptive federalism.

Finally, how do we create, collectively and individually, the platforms that recognize the environmental and public health outcomes that we need? How do we reward innovation that actually achieves more protective results? How do we create the platforms that reward inclusive dialogues and partnerships so that all across all the different levels of government and policymaking, public and private, we’re sending all of those right signals? There are a lot of people who are working together finding ways to deliver these kinds of results. It is good news, and America needs a little bit of good news.

Stan Meiburg: Several of you talked about how the nature of the relationship may have changed between federal and state environmental authorities. That poses a related question. Is the division of authority in the environmental space a zero-sum game? Does one have to go down for the other to go up?

Becky Keogh: We don’t want to have 50 states doing 50 different things. It makes sense to act collectively — we see that in regional groups and in national groups. It is best not deciding that one entity is better than the other to take on a certain responsibility but to instead discern which has the “most value-added methodology,” as my governor would say, to get the outcome that we need in our communities. One of the times I rely on EPA is the type of emergency where I need scientific capabilities that go beyond my state laboratory.

Bob Martineau: It isn’t a zero-sum game. The challenge has been avoiding duplication of effort and to decide what sovereign can act most efficiently. And then there are a whole bunch of things we haven’t been able to tackle because we haven’t shifted some of those resources to take on those new challenges. The debate today is the most efficient allocation of resources — how do we efficiently do the basic blocking and tackling, and then what resources can either the state provide or the federal government to take on new challenges.

Stan Meiburg: There are calls for statutory change to fully realize the potential for stronger state-federal relationships. Do any of you think that we need new law for this purpose?

Neal Kemkar: I’ll start with a short answer here — I hope not, because this issue is way too important to rely on Congress, a broken institution. What we have already is years of delegated authority to the federal executive branch from Congresses past. We have a lot of collective expertise. And when you add in our friends in the NGO community as well as in the regulated community, a lot of folks have been thinking about these issues for a long time. It goes back to resource allocation and using the existing authorities in smarter ways.

Barry Hill: You know, a lot depends upon where you sit as it relates to this whole area of environmental law and policy. I’m thinking in terms of communities where they are asking, Is the air clean? Is the water safe to drink? What about communities where the answer is “no” to everything? So, what would you prefer? Would you prefer the federal government, the strong arm of the federal government, or would you prefer that states do it — states are 50 laboratories of democracy but how do you define democracy? How do you ensure environmental justice for all not as a theory but as a practical matter? It’s not just the ederal government, it’s not just the state government, it’s not just corporations. It’s communities. How are they being impacted? That is the central question in the federal-state relationship.

Vickie Patton: There is ample room within existing law for people to improve upon achieving public health and environmental outcomes, while thinking about what sort of partnerships will help and how to most effectively achieve society’s goals. There are many people who have a lot of experience within the framework of existing law, finding all sorts of innovative ways to move forward.

Becky Keogh: And I would just add perhaps not statutory change at the federal level. Some of the state statutes, a lot of us are looking at opening up old statutes where they haven’t been refreshed. That’s something we’re doing in Arkansas. Other states have done the same. We haven’t just invested in the regulation or the statute for their own sake. We are spending a lot of time as we look at our programs through the lens of lean processes to make sure we don’t lose the core value of what we do as we speed up and we become more efficient and hopefully spend less money in delivering those outcomes.

Stan Meiburg: What do you see from your particular vantage point as the greatest challenge to implementing collaborative federalism?

Bob Martineau: The perception is that cooperative federalism means weakening environmental standards. That’s not what it is. But it’s caught up in the anti-regulatory mindset that we don’t want to over-regulate — it’s hindering business, it’s killing jobs. We’ve got to get agreement on the goals and maybe if we’re not there on that, about what the outcomes are. We need to have that debate first because then the question is how. There’s maybe less consensus on some of the goals now than we’ve had historically.

Back to the last question of reopening the statutes: what’s happened sometimes with the various amendments to the statutes over the years is that they have become more prescriptive. The idea was to set the goal, a maximum, for example, and let the states figure out how to achieve that max. Instead, each time the Clean Air Act was amended, it became much more prescriptive as to what had to be in that State Implementation Plan. So, those statutory provisions can be used as swords or shields as well.

The challenge of federalism is to agree on the basic goals, and then we need the trust to be less prescriptive on the day-to-day review of what the other entity is doing.

Vickie Patton: If there’s not a shared vision that we are seeking better public health outcomes and greater justice for the communities that have borne the burden of harmful impacts for far too long and meanwhile combating climate change — those are core central underpinning considerations — then I think there will be enormous public distrust.

There is another disruptor coming to the architecture of environmental law and policy and that is that every person is going to have a monitor in their pocket. The technology is already here. In the aftermath of Hurricane Harvey, EPA’s and Texas’s monitors were idled but Environmental Defense Fund deployed a lab-quality mobile monitor, communicating what we were finding to policymakers and the public. Think about a world where the parents in Flint had the easy ability to detect the lead in their water. Technology is going to be a game changer in holding all of us accountable.

Neal Kemkar: Vickie, that’s a great point. To me, the radical transparency that’s coming because of increased digitization and more people having more information, that’s the biggest challenge and opportunity to this Cooperative Federalism 2.0. I think back to my time working for the secretary of the interior during the oil spill, every night during the nightly news you had radical transparency of the oil flow real time. That changes the dynamic of the regulation. It makes the feds tend to be be more prescriptive, for example, “Well, no. Thou shalt have 2.15 blind shear rams on your blowout preventer,” or whatever.

With all this transparency, the challenge is going to be getting the balance right. So, one can imagine a world where people on an airplane are saying, “I want to know exactly the carbon output of this flight” so they can offset it. Or a corporate official saying, “I want to know the carbon footprint of my entire supply chain and I want to know it now.” And so, as we wrestle between the state and the federal control, we may be overtaken by events.

Bob Martineau: And it’s not only the transparency but it’s the 24-hour news cycle, it’s the instant information. Twenty years ago, you took a water sample and the results came back a month later. Today, you’ve got to have that answer two hours from now. People want to know, Can I drink the water? Can I walk outside if there’s an air incident? Do I need to evacuate? You can’t say, “We’re going to look at it and get back to you after we send this off to a lab on the other side of the country and we’ll write a report that’ll get edited by 38 people and you’ll see it in three months.” That’s not acceptable.

Becky Keogh: I recall working with city leaders in Little Rock on ozone. We were right below the standard, and some people believed things needed to be proactively addressed. And someone said, “Is it safe to breathe the air?” And to be frank, I don’t think our regulatory framework is set up to be instantaneous in response.

Barry Hill: Millennials and many corporations are very much concerned about climate change, and they are making decisions based on their concern. Why isn’t the federal leadership listening to the voices of all of these entities? And will it be better at the state level? And how does this administration talk to a state like California that’s very progressive as it relates to the issue of climate change? The biggest impediment is listening to the voices of all of the stakeholders, whoever they may be.

Audience question: The one thing I didn’t hear from the panel is where does the conversation restart. Because the conversation that we used to have very constructively since I grew up has broken down. We look at our two major parties and they not only aren’t really effectively talking to each other but the Republicans aren’t even talking effectively to themselves, and it’s not certain that the Democrats are doing that either.

One of the advantages of a federal system, if one is going to make one work, is that it has 50 laboratories with their sub-laboratories where experimentation in dealing with these questions can be going on, and if we had a system for articulating that up to the national level, that could be part of the solution.

However, our federalism has never really worked all that well from the get-go and it started with the fact that the Founders, for all the wonderful things they did, did not really grapple effectively with the question of states’ rights. And it’s understandable they didn’t because it all started with the states, they had the power, they had to be convinced even to allow a federal structure to emerge. And that’s plagued us all along.

My final lament is that when you look to the states at present, I don’t know where to look for a model. You can take on the one hand California, which became dysfunctional in its governance before the country did, and they’ve now become a lot more functional but they’ve done it mainly because the Republicans have taken themselves out of the conversation and the Democrats are bound and determined to keep them there if they can. Or you can look at Kansas, which has been working with a terrible model for eight years now, it’s been proven not to work, and a few people in the state are beginning to wake up to that but the people keep re-electing their government.

Vickie Patton: My only comment is that you’ve got a conversation happening right here. It’s up to all of us to have these conversations wherever we work. It’s a real challenge in this polarized world not to let ourselves just fall into a trap. We have to focus on what compels us to do this work, why we care about it, and find a way to have conversations that are uncomfortable with people that may not share our ideas and try to find common ground.

Stan Meiburg: Several of you talked about the potential of big data to be disruptive. I’d like to ask how — in your individual states or your companies or NGOs — are you looking at this challenge.

Vickie Patton: It’s a terrific opportunity. We have seen the impact of big data and advanced monitoring techniques in a bunch of different contexts. When you think about the recognition that there’s significant venting and leaking from oil and gas facilities, big data and monitoring have had a huge public health and environmental impact by revealing this serious pollution problem — making it far more salient. And advances in monitoring that have helped reveal this oil- and gasrelated pollution to the public and to policymakers have also catalyzed the deployment of solutions and policies that are sprinting to catch up.

We have a need to be really responsible with the information, but it does provide a tremendous opportunity to empower policymakers, private companies, and the public to improve public health and environmental outcomes. It’s a critical part of the next wave of environmental protections.

Becky Keogh: Our challenge will not be the data anymore. It will be the wisdom to know what data to actually base decisions on. Smart systems are not valuable if you’re not wise in how you use them. We have to make sure that we build credibility in those datasets so we can have frank and honest discussions about whether action is necessary or not.

Bob Martineau: I think big data has two aspects we need to consider. Consumers start asking how many kilowatts of electricity do you use to make your product, do you recycle, how much clean energy do you use in your process, because people will weigh that in their consumer purchasing decisions and who they invest in.

On the other side, there is the pressure of the 24-hour news cycle. Let’s say there is a pipe rupture or a discharge incident. As the media cover it, it’s really going to be incumbent on the public to educate themselves on how to manage that data, and sometimes an initial piece of information may be a valid indicator but it may not be. Suddenly there’s a huge public health crisis that turns out to be a lab sampling error.

Transparency is good. You want to be able to respond if there is a public health emergency. You don’t want to wait 30 days to find out you need to do something.

Becky Keogh: And I’ll add to that. The benefit of big data and technology is in a political world, as an engineer, and I speak to politicians all the time in our legislature, data generally will compel an answer. And so, you can depoliticize the conversation with data if you use it appropriately. You can remove the politics when you actually have facts, right? It also provides a bit of equality or perhaps addresses inequality in systems because now you have the information to show where those inequities exist and you can actually act on them.

Neal Kemkar: The good news for all of us is that there is a fierce competition going on in America’s boardrooms in the space of big data and advanced analytics, and the power of American innovation has been unleashed on this particular issue. We have what we call our new digital wind farms, which through both hardware and software — through improved asset performance — you’re able to operate 20 percent more efficiently, save about $100 million per farm.

And to take a different context, from the oil and gas space, the way we used to inspect pipelines, hydrostatic testing, you pressurized the pipe to see if it blew. Now we can use MRI technology on a “smart pig” that we run through the pipe to take a scan instead. You can imagine the environmental implications of that, when the regulations catch up. Similarly, for the outside of the pipe we can use drones to inspect 10 times faster at one tenth of the cost.

So when we’re talking about environmental regulation, let’s not just think of the statutes that we all grew up with and took in our environmental law survey classes but let’s think of brand new greenfield spaces, like how do we set the right framework for unmanned air systems so that when the commercial and technological ability to inspect a 400-mile pipeline via drone is there, that the regulations are in place to allow it.

Audience question: Josh Heltzer, First Environment. I’m just curious as to what the relationship is between the Environmental Council of the States, the National Governors Association, and, say, U.S. EPA or the federal government? Is there an interface among those organizations, either in an informal or formal manner?

Becky Keogh: ECOS evolved from the National Governors Association, and we continue to work with NGA on a number of initiatives. We also are working very closely with EPA. That was the intent of the Cooperative Federalism 2.0 paper, to provide information we thought would be helpful to define a road forward with the idea that we weren’t going to dictate the path nor would the federal government dictate it.

To your question, all that dialogue is important, and obviously one of the bases of ECOS is that as much as states are alike we are different. So our goal as an organization is to find our common issues and be able to advance those appropriately, allowing the governors and EPA to work with states to respect their needs — even if they don’t necessarily agree with my state or my governor’s perspective.

Stan Meiburg: And I would just note, to put on my old hat for just a minute, that this is not a partisan question because that kind of collaboration has been going on for a long time. When I was at EPA, Commissioner Thomas Burack of the New Hampshire Department of Environmental Services and I advanced collaborative federalism through E-Enterprise. That dialogue is going on pretty robustly.

Becky Keogh: I think states understand that to have the authority or trust or independence, there’s also accountability. We are working with our governors and with the federal EPA about how do we communicate our accountability to achieve agreedon outcomes.

Audience question: Just following on Neal’s point, I think it’s really interesting that this is the Environmental Law Institute, and lawyers base everything on precedent. The question came up earlier about whether you see any need for statutory change. I’ll just note most of our great environmental statutes were born out of crises. The crisis in Bhopal, India, helped lead to the Toxics Release Inventory and the Superfund Amendments and Reauthorization Act. You had Love Canal that led to CERCLA.

But we don’t tend to pass new laws anymore to address big problems. We might look to the states as being labs and yet the way cooperative federalism is set up, the state statutes tend to mirror the federal environmental statutes, and if a state gets out in front, then they’re put at a business disadvantage.

Stan Meiburg: Historically the worry about states was that somehow that if the federal oversight were not there, that the state would lag behind. It is going to be very interesting about what the response is now in the case where a state may move ahead — and I am thinking about California — and how the response to that is going to fit into the federalism framework.

At this time, let me not just summarize this panel but just make a couple of points.

One is that you’ve heard a lot of very innovative and thoughtful discussion about the potential effects of big data and technology and the 24-hour news cycle and what you might call hyper-transparency, and that these have both the potential to be quite disruptive in the way in which the federal-state relationship has worked, but there are opportunities involved as well, and that’s going to be a challenge in the years ahead.

I also wanted to make an observation pointing back to the comments about federal laws. They were very prescriptive and written that way for a couple of reasons, one of which was in the era in which they were created, there was a great deal of distrust between the legislative and the executive branch, and the legislative branch felt that if they did not make the laws very prescriptive that the executive branch would not implement and enforce them. So, that the issue of trust is there.

There was also a great deal of concern in public policy theory that without very prescriptive laws, that the agencies in charge with implementing them, and specifically EPA and the states’ agencies, would be captured by the entities that they regulated.

The idea of capture may seem like an antiquated notion these days, but the distrust became embedded in the very specificity of the statute, rightly and wrongly, and the problem with that of course is that if you have a very rigid statute and you don’t change it very much, like anything else, it can get a little long in the tooth.

Also, just simply note to close out that the answer to the question I asked about whether it is a zero-sum game, I was delighted to hear that nobody said it is. For the states to be strong, it’s not like the federal government has to be weak or vice versa. What you’d really like in an environmental system is two strong partners working effectively to produce environmental results.

And to pick up on the point that Vickie made, one of the challenges we face, the big challenge, is if we do not have some way of discussing and coming to a reasonable agreement on goals, then the discussion about means becomes even more difficult.

It is worth remembering that the Founders in the framing of the Constitution were not really concerned about producing efficient government. The fear on the part of the framers was that you would have tyrannical government, and so therefore, the effort was to produce moderate government — which is why you ended up with federalism structures and the separation of powers in the first place.

In an era in which things seem to happen in a 24-hour news cycle, this can sometimes produce great frustration. But it is probably worth recognizing that there may be some wisdom in not being able to react immediately to everything that comes right down the pike. TEF

HEADNOTE ❧ Over the decades, states have developed the expertise and capacity for ensuring environmental protection. With the Trump administration’s proposed downsizing of EPA’s budget and staffing and renewed focus on states, decisionmakers and stakeholders have a timely opportunity to rethink the paradigm of cooperative federalism and environmental protection.

The Status Quo Isn't Working
Author
Representative Mike Quigley - House of Representatives Sustainable Energy and Environment Coalition
House of Representatives Sustainable Energy and Environment Coalition
Current Issue
November-December 2017
Issue
6
The Status Quo Isn't Working

CAPITOL IDEA ❧ The key to sustainability isn’t to restrict bad practices but to encourage good practices until they take root. We can keep reacting to problems as they emerge, or we can create a culture of responsible resource management that prevents threats from coming to pass.

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