Betting on Carbon Dioxide Removal to Save the Planet
Author
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
2

The good news, when it comes to meeting the goal of the Paris Agreement to achieve net zero carbon by 2050, is that roughly 1 billion “additional” tonnes of carbon is being removed from the atmosphere each year—a gigatonne—with the word in quotes meaning more than through previously existing carbon sinks. The bad news is that the Intergovernmental Panel on Climate Change “estimates we need to be removing between another 5 to 16 gigatonnes a year by 2050, depending on emissions reductions elsewhere,” according to New Scientist.

Nature-based solutions exist, of course, and afforestation and other ecological methods explain the “additional” removals. They have been promoted in an effort to thwart global warming ever since the UN climate convention was signed more than three decades ago. But nature is difficult to scale up when only a quarter century remains to reach the net zero goal the IPCC says is necessary to keep humanity (and everything else on the planet) on the trajectory to max out at below 2 degrees Celsius over the pre-industrial global average temperature.

Hence, the need for technology to remove carbon from the atmosphere and safely store it in perpetuity. There is progress there, and research is being fueled by the Nationally Determined Contributions committed to under the Paris Agreement. Spurring on this progress additionally are private firms who have pledged to go “carbon negative,” prominently including Microsoft, Ikea, and Spotify. Such yearnings have led to the emergence of firms developing ways to remove CO2 cost-effectively for businesses that make pledges to meet or beat abatement targets or comply with regulatory restrictions.

Unfortunately, carbon dioxide removal, or CDR as it is widely known, is extremely difficult and expensive so far, and to date all technologies together have removed only 115,000 tonnes. That’s less than 0.0023 percent of what’s needed each and every year for the next quarter century under the low end goal of 5 gigatonnes annually.

“The question remains whether big bets on CDR technology will pay off in time—and will do so without detracting from efforts to directly slash emissions by transitioning away from fossil fuels,” according to New Scientist. This backsliding is what economists call “moral hazard,” and it’s an important consideration. A hazard indeed: it is far more economically efficient to keep carbon out of the atmosphere than to pay to remove it later, by several orders of magnitude.

Engineers are busy working out systems at scale that have proved promising in the laboratory. In the words of Gregory Nemet, a scientist at the University of Wisconsin, Madison, this is the “formative phase” for CDR development. When it comes to real-world success, “inevitably, it’s a messy period,” he adds.

According to New Scientist, “There are a slew of CDR technologies, but two are likely to dominate: bioenergy with carbon capture and storage and direct air capture.” The bioenergy approach involves growing plants that naturally absorb carbon dioxide from the atmosphere. The plants are then burned for energy, and the flue gases are captured.

The direct air capture method involves using materials that naturally absorb atmospheric carbon dioxide, then heating them to release the gas, which is captured and stored permanently. This process of course takes energy, a lot of it.

According to New Scientist, “The stream of CO2 from either approach can then be stored underground, turned into rock, or locked away by using it in any number of products, from concrete to condoms.”

The magazine notes that the track record so far, in terms of numbers, is dismal: “None of these methods has yet been used to remove more than a few thousand tonnes of CO2, but all have their sights set on billions.”

There are downsides as well: “Cost, steep energy and land-use requirements, and potential consequences for people and ecosystems,” according to the magazine. In the words of David Ho, a researcher at the University of Hawaii’s Manoa campus, technology proponents don’t understand “how difficult CDR is and how ineffectual it’s been. We haven’t shown that we can do this.”

New Scientist presents two parallel timeline charts, one showing the nascent removal industry’s total sales and the other total removals, both from 2020 to the present. The two curves rise sharply, with success in dollars or tonnes removed on the vertical scale. Indeed, “carbon dioxide removal technology firms have ramped up sales of their services in recent years. Such purchases would amount to removing almost 5 million tonnes of CO2 from the atmosphere, if fulfilled.” That’s a tenth of a percent of what’s needed each and every year. Worse, “actual removals so far lag behind . . . [at] around 2.3 percent of what has been paid for.”

University of Wisconsin’s Nemet says it best: “I think the CDR community is looking for a sense of legitimacy.” He points to wind and solar as technologies that once seemed impossible to scale. “We have gone that fast before.”

Notice & Comment is the editor’s column and represents his opinions.

The lake that allows the Panama Canal to function recorded the lowest water level ever for the start of a dry season this year, which means that vastly fewer ships can pass through the canal. The extreme drought, exacerbated by an ongoing El Niño that is affecting Gatún Lake and the whole region appears likely to last into May.

The Panama Canal Authority has reduced daily traffic through the narrow corridor by nearly 40 percent compared with last year. Many ships have already diverted to longer ocean routes, which increases both costs and carbon emissions, while the global shipping company Maersk recently announced they will shift some of their cargo to rail.

Panama typically sees a dry season from January to May, but climate change has made rainfall patterns much less predictable. The result is that the increasingly severe droughts and extreme deluges can push canal infrastructure past its operational limits. Rising temperatures also evaporate a significant amount of moisture from the reservoir and its watershed.

—New York Times

The typical American receives about 41 pounds of junk mail each year, according to the Center for Development of Recycling at San José State University, and much of it ends up in landfills.... The Sierra Club estimates that 80 million to 100 million trees are cut down each year to print junk mail, while cities and counties spend $1 billion a year to collect and dispose of it.

—Washington Post

News That's Reused

Those who binge-watch cable TV are probably familiar with shows like Fixer to Fabulous, which is available on Home and Garden Television. They are all based on This Old House, which emphasized historical preservation. However, the plot of the spinoffs is always the same: acquisition of a cheap wreck of a structure, renovating it, and improving habitability and market value—all in half an hour. Very satisfying, but apparently Fixer to Fabulous has been caught cutting corners when it comes to compliance with EPA’s Lead Renovation, Repair and Painting Rule.

In January, the agency announced via a press release “a settlement agreement with Marrs Construction Co., of Bella Vista, Arkansas,” for alleged violations of the RRP rule. Indeed, the agency declares, “This is one of multiple cases that EPA has settled involving improper lead-based paint renovation practices demonstrated on home renovation television shows on the HGTV/Discovery network.”

Environmental enforcement protects public health, and the settlement with Marrs includes public education on compliance with the rule, which shields residents and construction workers.

“It’s important that the public understand that any renovation, repair, or painting project in a pre-1978 home can easily create dangerous lead dust or expose children to dangerous, sometimes deadly, paint chips,” according to EPA’s enforcement chief, David M. Uhlmann, in the press release. “Home renovation TV programs in particular have an obligation to show the public how to renovate old homes safely and lawfully, not in a manner that is dangerous, misleading, and puts the wellbeing of children at risk.”

The release also notes, “The harmful impacts of lead disproportionately impact environmentally overburdened, low-income families and their communities.”

There are a lot of disturbing global environmental catastrophes unfolding in the daily press, but add to that this New York Times headline: “A Supernova ‘Destroyed’ Some of Earth’s Ozone for a Few Minutes in 2022.” The newspaper reports on “a new study [that] suggests that explosive events in space have the potential to temporarily switch off the natural shield that protects us from harmful solar radiation.”

The study, published in Nature Communications, reports new information about the burst’s impact on the Earth’s ozone layer.

“The ozone was partially depleted—was destroyed temporarily,” the newspaper quotes Pietro Ubertini, “an astronomer at the National Institute of Astrophysics in Rome who was involved in discovering the atmospheric event.”

The Times reassures that “the effect was detectable for just a few minutes before the ozone repaired itself, so it was ‘nothing serious,’” quoting Dr. Ubertini. “But had the supernova occurred closer to us, he said, ‘it would be a catastrophe.’”

Supernovae are some of the most extreme events in the universe. Some stars are so massive that they burn out in just a few hundred million years. As their nuclear fuel gets consumed, the stars shrink, forcing the atoms into ever-tighter arrays. Eventually there is a huge explosion so bright that a single supernova outshines 100 billion stars in its galaxy. It also wipes out any life on planets circling neighboring stars even dozens of light years away.

In 2022, “Telescopes in space picked up a jet of high-energy photons careening through the cosmos toward Earth, evidence of a supernova exploding 1.9 billion light-years away. Such events are known as gamma ray bursts, and astronomers who have continued studying this one said it was the ‘brightest of all time.’”

Carbon Dioxide Removal Is Facing a Reality Check.

Some Climate Progress During Biden’s Term, but Not Enough
Author
Bob Sussman - Sussman and Associates
Sussman and Associates
Current Issue
Issue
2
Bob Sussman

As the Biden administration moves into campaign mode, the president can justly claim that he reversed the backsliding of the Trump years on climate and has been a tireless advocate for reducing our national carbon footprint. His signal accomplishment was the 2022 enactment of the Inflation Reduction Act, by far the most important climate legislation in U.S. history and a rare breakthrough in a Congress that is deeply fractured on energy policy.

While there remain important EPA rulemakings to complete in 2024, it’s not too soon to ask how the national greenhouse gas profile has fared on Biden’s watch and whether we are closer to the ideal of a zero-emission economy. Unfortunately, the data tell a less positive story than the administration’s aspirational rhetoric. The trajectory of U.S. greenhouse gas emissions has barely budged during the Biden first term. Following a steep decline during the pandemic, emissions bounced back in 2021 and 2022, finally falling by 1.9 percent in 2023 according to a preliminary analysis by the Rhodium Group. Since 2019, emission reductions have averaged slightly over 1 percent per year.

Since 2005, the overall reduction in emissions has been 17.2 percent, far short of President Obama’s pledge under the Paris Agreement to reduce emissions by 26-28 percent by 2025. Hoping to greatly accelerate emission reductions, Biden raised the bar, targeting a 50-52 percent decline by 2030. But Rhodium estimates that achieving this goal would require an annual 6.9 percent reduction through 2030. This is a highly unrealistic if not unattainable target and, if we fall short, the more ambitious goal of net-zero emissions by 2050 will be even more challenging to reach.

As analyzed by Rhodium, the biggest driver of emission reductions in 2023 was the continuing retirement of coal-fired power plants, accompanied by the strong growth of solar power. However, natural gas generation increased faster than renewables, underscoring the staying power of fossil fuels.

Won’t the IRA tax credits reverse this trend by stimulating a flood of investment dollars into renewables? Yes; investments in clean energy projects rose substantially in 2023. But other factors are slowing the rate of deployment. Solar and wind projects have been delayed by permitting and approval bottlenecks at the state and local level. In addition, connecting renewable power sources in one region with load centers in other parts of the country has been stymied by the cumbersome process for building new transmission. And new wind
installations actually declined in 2023, with several cancellations of major off-shore wind projects that the administration and coastal states had been banking on to reduce emissions.

The continued dominance of GHG-emitting natural gas generation is a consequence of obstacles to more rapid scale-up of renewables. Power industry executives may be loath to admit it, but the lagging build-out of interstate transmission and slow growth of energy storage capacity is locking in reliance on natural gas plants well into the future.

Rhodium reports that transportation-sector emissions grew in 2023 by 2 percent and were at roughly the same level as in 2019. To observers of the surge in electric vehicle production, this must seem a disquieting and surprising development. But despite a dramatic growth in production, EVs were only 6 percent of U.S. car purchases in 2022. In recent months, auto manufacturers trimmed EV production targets in response to a slowdown in sales, a function of the limited availability of affordable models and continued gaps in charging networks. Meanwhile, Americans drove and flew more miles in 2023, consuming more gasoline and likely pushing U.S. oil and gas production to record levels.

That the IRA has not yet produced dramatic GHG emission reductions is hardly surprising given the embedded reliance on fossil fuels in the U.S. economy and the long lead-time necessary to translate tax incentives and grant dollars into new brick-and-mortar transmission lines, power facilities, and battery and EV manufacturing hubs.

Unfortunately, however, the worsening climate crisis does not allow the luxury of an incremental transition to clean energy. Based on the recent stocktaking at the Dubai COP, it is now highly likely that global temperatures will rise by at least 2º C in coming decades, blowing through the goals of the Paris Agreement and signifying a profound failure of political will by world leaders. As the IRA incentives gain traction, the pace of emission reduction will accelerate but probably fall short of producing the game-changing levels of decarbonization necessary to stabilize global temperatures at tolerable levels.

If he wins reelection, Biden’s challenge will be to persuade the public to redouble its commitment to replacing fossil fuels with clean energy while acknowledging that this transition will remain slow and the impacts of climate change will worsen for decades.

Some Climate Progress During Biden’s Term, but Not Enough.

Carbon Trading Through Public-Private Initiatives in Global South
Author
Joseph E. Aldy - Harvard Kennedy School
Harvard Kennedy School
Current Issue
Issue
2
Joseph E. Aldy

A patchwork of greenhouse gas cap-and-trade programs meshing with the voluntary carbon market drives various forms of emissions credit trading. Some firms achieve compliance by purchasing credits generated from offset projects. Others acquire credits to show progress toward their voluntary goals. New initiatives aim to leverage such compliance and voluntary activities to rapidly reduce developing-country emissions by ramping up clean energy financing.

At the 2023 climate conference in the United Arab Emirates, the U.S. State Department, the Bezos Earth Fund, and the Rockefeller Foundation announced next steps in the development of their novel Energy Transition Accelerator. Working with civil society organizations, developing-country partners, and corporations, the ETA would establish a market-based approach to attract investment to decarbonize power sectors. The partners leading this effort plan to formally launch the ETA by Earth Day 2024.

The vision for the ETA represents a progression in emission offsets and carbon markets. Traditionally, offset credits would be generated through a specific project—such as the construction of a wind farm under the UN Clean Development Mechanism or a forestry project under the California cap-and-trade offset program. The credits associated with a project would be estimated relative to a counterfactual scenario. For example, the credits from building a wind farm could be estimated based on the emissions that would occur if the most likely alternative would be a fossil fuel power plant.

Such project-based offsetting has been subject to considerable criticism. The counterfactual is never observed. A project may be financially viable—and thus move forward anyway—without the revenue stream from the offset credits; this is the additionality critique. The emission benefits of one project may be reduced if market forces result in more build out or use of emission-intensive sources—the leakage critique.

To address these concerns, the ETA, in lieu of a project-level approach, would focus on jurisdictional, sector-level crediting. For example, the ETA could establish a baseline for an entire country’s power sector. Delivering emissions below this baseline would generate carbon credits that could be sold to interested buyers. This would encourage investment and policy reforms that influence sector-wide emissions.

Under the ETA, buyers—firms with voluntary emission goals and national governments with emission pledges under the Paris Agreement—could offer advance-purchase commitments for credits issued by a given developing country. By contracting for a specified volume of credits at a specified price, such commitments can facilitate the financing of clean energy investment in that country’s power sector. Preliminary analysis conducted for the ETA suggests that it could generate about $10-40 billion in credit revenues for developing countries through 2035. Realizing this potential, however, will depend on several critical implementation details.

Constructing a credible baseline for any given developing country’s power sector emissions can be a challenge. How should the baseline account for rising electricity demand resulting from increased energy access, electrification of buildings and transport, and economic growth? How should the baseline account for existing policies or funding from international financial institutions? Set the baseline too high, then there may be credits generated without any underlying environmental benefit (the additionality problem again). Set it too low, then there may not be sufficient revenues to finance the necessary decarbonization investments.

The ETA would establish eligibility criteria for potential credit buyers. A buying firm would need to have committed to a goal under the Science Based Targets initiative or a similar science-aligned goal. This requirement may limit both the number of firms that could enter the market as buyers and the volume of credits any single firm could buy under its SBTi-approved implementation plan.

Uncertainties about scale of activity by potential buyers and suppliers make it difficult to form expectations over credit prices. External policy developments—new regulatory requirements for potential buyers or new Nationally Determined Contributions by governments—may influence credit supply and demand and hence prices. Enhancing market transparency and facilitating price discovery will be important in attracting investment to developing-country power markets.

Upcoming steps in institutional design will determine the environmental and financial scale of the ETA and its influence on global efforts to limit warming from greenhouse gases.

Carbon Trading Through Public-Private Initiatives in Global South.

EPA Methane Rule Among Many Steps on COP28’s Long Journey
Author
David P. Clarke - Writer & Editor
Writer & Editor
Current Issue
Issue
2
David P. Clarke

No longer is the writing on the wall. Now, it’s in the United Nations’ COP28 text—in which 194 countries endorsed “transitioning” world energy systems away from fossil fuels. While the agreement was hailed as “the beginning of the end” for coal and oil and natural gas, reaching the end is still a long way off. However, related COP28 announcements by the U.S. Environmental Protection Agency and others point to possible long strides forward.

While providing a clear political signal rather than a detailed plan with timelines and specific implementation actions, the COP28 agreement nevertheless must be seen as a landmark moment aligned with the United States’ Inflation Reduction Act and other nations’ accelerating clean energy policies.

Among numerous other COP28 announcements were EPA’s issuance of its final standards for controlling the “super climate pollutant” methane; a pledge by 50 companies that produce 40 percent of global oil to nearly eliminate their methane emissions by 2030; and a U.S. commitment to join the Powering Past Coal Alliance. PPCA signatories agree to halt new coal plants unless they capture 90 percent of their greenhouse gases, and to phase out existing coal plants lacking such controls.

The 50 companies’ methane pledge coupled with EPA’s final methane rule and related measures added up to what Environmental Defense Fund president Fred Krupp described as “the most impactful day” for slowing climate change in 30 years of COP meetings.

Under EPA’s rule, an estimated 58 million tons of methane emissions from oil and gas operations will be avoided between 2024 to 2038, nearly 80 percent lower than without the rule, according to the agency. The rule also expands options for companies to comply using satellite monitoring and other advanced technologies, and provides timelines for eliminating current polluting oil well practices. New, modified, reconstructed, and existing wells are covered. Significantly, EPA for the first time in a legally binding federal rule used a new “social cost of carbon” of $190 a ton to justify the regulation, almost four times higher than previous estimates.

EPA’s rule has plenty of teeth, and yet is very inexpensive. Environmentalists are anticipating similarly strong rules for vehicles and power plants in early 2024, says Natural Resources Defense Council’s senior strategic director, David Doniger. The rule’s methane leak detection and repair requirements exceed any previous standards, with provisions for detecting leaks from outside facilities, from the air, and even from outer space. The industry wanted exemptions for older low-production wells and flares, but the requested exemptions were denied. NRDC expects lawsuits, Doniger adds, but he believes EPA’s rule will be on “very strong” legal ground.

Commenting on the COP28 fossil fuels statement, NRDC’s international programs senior director, Jake Schmidt, notes that the text also includes two critical benchmarks: GHG emissions need to be cut at least 40 percent by 2030 and 60 percent by 2035 to stay on the 1.5° Celsius pathway and avoid worsening climate disasters. Within that fossil fuels transition framework, NRDC suggests concrete steps the United States should take include swiftly curbing liquefied natural gas exports, ending tax breaks for coal, gas, and oil, and stopping fossil fuel production on public lands and in federal oceans.

The COP28 fossil fuels statement sends an important signal to national governments that they must adopt pertinent actions and policies over multiple years, Schmidt says. Furthermore, COP28 sends private investors a powerful signal because now 194 nations agree “we need to rapidly end fossil fuels.” Any fossil fuel investment has a short lifespan, potentially making it unable to operate over its expected duration, Schmidt says.

Although welcoming the global recognition that fossil fuels are the main source of the climate crisis, activists noted countervailing realities that underscore challenges. For example, the United States is now the world’s largest oil producer, with growth expected to add another 500,000 barrels per day this year.

Critics noted that the agreement lacks specifics for funding the fossil fuel transition, especially in developing nations. An announcement that $1 billion in new methane reduction grants would be available was a clear win, but some estimates suggest billions more annually are needed for effective methane abatement. Following COP28, EPA and the Department of Energy announced that 14 states, if qualified, could receive a total of $350 million in grants to help tackle methane emissions.

Environmentalists want the United States to take climate action domestically and to promote actions by other countries, and “we see that” occurring, NRDC’s Doniger notes.

EPA Methane Rule Among Many Steps on COP28’s Long Journey.

Mud Lake

Mud Lake is a collection of short adventure stories about children living in Haslett, Michigan, during the 1960s and 70s, when kids were allowed to freely explore the natural world without adult instruction or supervision.

ELI Report
Author
Nick Collins - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
1

Annual Award ELI honors atmospheric scientist for gains in public understanding of global climate change and its impacts

Every year, ELI presents its Environmental Achievement Award to individuals or organizations that have made notable contributions to environmental protection, conservation, and sustainability. The award is conferred at the Institute’s annual dinner.

The 2023 awardee is J. Marshall Shepherd, a leading climate scientist, an award-winning teacher, and a renowned public speaker. The award was presented on October 24 at the Omni Shoreham Hotel in Washington, D.C., where hundreds of law, management, and policy professionals gathered to honor the scientist.

Shepherd believes deeply in the importance of communicating his work and its significance to the public and policymakers—what he calls “end to end” science education. And he speaks with great authority. Shepherd has been elected to the National Academy of Sciences, the National Academy of Engineering, and the American Academy of Arts and Sciences, three of the highest academic honors in the nation. His research has cast new light on climate justice issues by describing the effects of urban heat islands from climate change and increased flooding in disadvantaged communities.

ELI Board Chair Rob Kirsch provided introductory remarks, followed by Richard Spinrad, under secretary of commerce for oceans and atmosphere and administrator of the National Oceanic and Atmospheric Administration.

Spinrad’s comments focused on the awardee’s expertise and commitment to marrying science and policy. He noted that it is an achievement of its own to be honored at an award dinner by a group of environmental law and policy experts. Spinrad joked that Shepherd had now completed an “Environmental EGOT.” The acronym refers to people who have won an Emmy, Grammy, Oscar, and Tony award.

In his remarks, Shepherd focused on highlighting the role of science as the foundation for legal and policy responses to environmental challenges: “Climate change is the environmental crisis of this generation and generations to come,” he said. “At the intersection of these challenges are opportunities for the government, private sector, scholarly institutions, NGOs, and the legal community to converge. But like the original ELI charter, science will need to be at the core of everything.”

The impact of Shepherd’s work extends far beyond his research. He advises presidents, government agencies, and national scientific institutions, frequently consulting with key leaders at the White House, Congress, NASA, and Department of Defense as well as officials from foreign countries. He makes appearance after appearance in K-12 classrooms, science fairs, and Rotary Clubs. He appears on television and produces numerous publications, a podcast, and insightful and approachable TED Talks. Through all this, he has indelibly marked public understanding and policy of science.

ELI has been honored to work with Shepherd. In addition to referencing his work, he is a trusted advisor and a contributor to the Climate Judiciary Project, ELI’s leading initiative to educate judges on climate science.

The Institute celebrates J. Marshall Shepherd for his achievements in bettering humanity through science. He has made extraordinary contributions in bringing climate and weather expertise to bear on social issues and to advance scientifically informed decisionmaking.

GreenTech conference on accelerating the energy transition

At the annual GreenTech conference held with the Georgetown University Climate Center, the focus was on implementing the Inflation Reduction Act and accelerating the energy transition—and identifying solutions for legal and policy challenges on the road to net zero. Attendees and speakers represented a cross-section of industry, nonprofits, government, law firms, and community advocates.

The morning keynote featured Ethan Zindler, climate counselor for the Treasury Department, who focused on successes, challenges, and opportunities to accelerate the energy transition. In Q&A discussions, Zindler emphasized the number of carrots available in the IRA to accelerate the energy transition, and how the department is working on ensuring that the incentives being offered by the government are maximized.

The next keynote outlined pathways to net zero energy for the United States. Presented by Jesse Jenkins, principal investigator at Princeton University’s ZERO Lab, the speech emphasized building new renewable energy infrastructure as a critical step. He noted that the IRA and the Infrastructure Investment and Jobs Act are estimated to double U.S. decarbonization efforts, but they still fall short of the goal to hit net zero. His presentation offered pathways to achieving the remainder.

The final morning session was a plenary focused on how to ensure that the transition laid out in the keynotes will be equitable. The panel included government officials Matthew Tejada (EPA) and Kelly Crawford (DOE), renewable energy industry leaders Dana Clare Redden (Solar Stewards) and Erik Antokal (Ørsted), and community advocate Eunice Ko (NYC EJ Alliance). The panel was moderated by ELI board member Mathy Vathanaraj Stanislaus, vice provost at Drexel University and executive director of the Environmental Collaboratory. The panel spent some time discussing the equity concerns around siting, review, and permitting, and how early and authentic interaction with communities is necessary for the path for-ward. This included naming the Jemez Principles for democratic organizing as a potential baseline for starting energy infrastructure projects in communities. Much of the discussion also focused on Justice40, an executive order aimed at delivering at least 40 percent of the overall benefits from relevant federal investments to disadvantaged communities.

After a lunch break, the event broke into three separate tracks focused on actualizing net zero in the power sector, transportation, and in carbon management and accounting. Over 30 speakers participated in the panels throughout each track, and included similar cross-sector panel compositions. As an example, the transportation track sessions focused on road, rail, and shipping, and the role of EVs and other advanced technologies, while looking at critical minerals and other supply chain challenges for IRA technologies.

Institute helps Texas evaluate offshore wind

Last August, the federal Bureau of Ocean Management held the first lease sale for offshore wind energy development on the outer continental shelf in the Gulf of Mexico. Of the three tracts offered for lease, one lease was awarded, for an area off the coast of Lake Charles, Louisiana.

The two areas offered for lease off the Texas coast received no bids from offshore wind developers in the auction; however, as the wind industry continues to grow generally and in the gulf region, it is possible that these or other lease areas offshore of Texas will be offered again in future BOEM sales.

Even with Texas’s long history of facilitating oil and gas development in the gulf and prolific wind energy production on land, potential offshore wind activities in federal waters would present new challenges for the state planning and regulatory framework.

There is also a possibility that as an offshore wind industry emerges in the gulf region, wind developers will consider siting turbines in areas closer to the coast, in Texas’s state waters. Wind power generation is a familiar business model in Texas, where onshore wind makes up a significant amount of the state’s energy production: analysts predict over a quarter of the state’s electricity will have come from wind facilities in 2023.

A new ELI Research Report is intended to support participation by Texas stakeholders by providing an overview of the most relevant state laws, regulations, and intergovernmental authorities affecting wind energy development off the coast. Texas has not enacted state laws or regulations specifically governing siting of wind energy facilities in its own jurisdiction, but other state policies will influence where and how facilities are constructed and operated in the state and off its shores.

Climate Scientist Receives Annual Achievement Award.

Taking Stock of the Paris Agreement’s Stocktake
Author
Scott Fulton - Environmental Law Institute
Susan Biniaz - Department of State
Angela Barranco - Climate Group
Jennifer Huang - Center for Climate and Energy Solutions
Charles Di Leva - Sustainability Frameworks, LLP
Marshall Shepherd - University of Georgia
Environmental Law Institute
Department of State
Climate Group
Center for Climate and Energy Solutions
Sustainability Frameworks, LLP
University of Georgia
Current Issue
Issue
1
The Debate: The New Toxic Substances Control Act Is Now Five Years Old: A Report

The Paris Agreement on climate change requires parties to carry out a global “stocktake” every five years to evaluate collective progress toward achieving long-term goals and purposes. The Environmental Law Institute invited an expert group to form our inaugural Firestone Policy Forum panel, held on the afternoon of the annual Award Dinner in October, to discuss how much progress has been made nationally and globally in meeting greenhouse gas reduction targets.

The stocktake constitutes a critical moment to evaluate global progress in achieving greenhouse gas reductions and for parties to the climate convention to determine if, when, and how acceleration is needed to realize the Paris Agreement’s overarching goals.

The stocktake process has three phases: first, information collection and preparation; second, a technical assessment of information; and third, a consideration of outputs. The third phase, which the Firestone discussion previewed, included a presentation of the findings at COP28, the 2023 United Nations Climate Change Conference in Dubai, held in December.

The first global stocktake took place over several months, and the Firestone panel’s conversation summarized some of the lessons already learned from the assessment, including suggestions for strategies needed to stay on track to meet the agreement’s temperature goals.

What progress has the United States made toward its Nationally Determined Contribution to reduce net greenhouse gas emissions by 50-52 percent below 2005 levels by 2030? Where does broad international progress toward the Paris Agreement goals stand? What impact will the stocktake have on global climate policy?

Scott Fulton, moderator: Climate change has been billed as a “whole of society” challenge. Our approach will be to examine the question of progress through a number of key societal lenses—governmental/intergovernmental, the private sector, the finance sector, and civil society writ large.

Leading off will be Susan Biniaz, one of the State Department’s senior-most diplomats working on climate change. Sue is the right hand of Special Envoy for Climate John Kerry and has for more than 25 years served as the lead climate lawyer for the United States. In that capacity, she has played a central role in all major international climate negotiations, including the Paris Agreement.

Susan Biniaz: I thought I would take you back to 2015, when we were concluding the Paris Agreement, to give you background on how we ended up with the so-called global stocktake.

There were several countries on the road to Paris that called themselves the “High Ambition Coalition.” The United States joined them toward the end. They were seeking to make sure that the agreement was long-term and that it had an “ambition cycle”—so there would be some kind of collective review of how the parties were doing. That review would inform the next set of Nationally Determined Contributions and so on until the goals of the agreement were met.

The temperature goal of the Paris Agreement is to limit warming to well below 2 degrees Celsius and pursue efforts to limit it to 1.5 degrees. But the NDCs that were on the table just before the Paris meeting—there were about 185 of them—they added up to something closer to 2.7 degrees. That’s what put the global stocktake over the edge, where people realized it was untenable to have an agreement with that set of initial NDCs without structuring it with a long-term design.

So what does the global stocktake look like? Well, it was written to be a collective review, which is really important. The global stocktake doesn’t look at how each individual country is doing. That’s more of the transparency regime under the Paris Agreement, where you have to report and be reviewed individually.

The other thing to know about it is it addresses all three of the long-term goals of the Paris Agreement. The first one is of course the temperature goal. The second one is to enhance adaptation and resilience. And the third is related to finance—to align financial flows in the world with those other two objectives.

One other thing to know about how the global stocktake is structured is that it is to inform the next round of NDCs. The next targets are due in 2025 and they are to address the 2035 time period.

This first stocktake is important for a few reasons. First, it sets the precedent for what these global assessments are going to look like. It also sends the signal to the world, to the marketplace, of how the parties think they’re doing, along with what needs to happen next. And it shows whether the parties to the agreement are up to the task of reviewing themselves.

For each topic under the stocktake, we think there should be backward-looking and forward-looking pieces. So it should look at the positive progress that’s been made since 2015, then at what still needs to be done. Before the Paris Agreement, scientists said the world was on track to something like 4 degrees Celsius of warming. Now, depending on which metric you use, we’re much closer to 2 degrees. Some will say, if everything were implemented that has been committed to, we’d be on track to 1.7 degrees. So clearly we’re in much better shape than we would have been without the Paris Agreement. Two hundred countries have put in NDCs. Way over 100 have updated them already. Over 100 countries have put in long-term strategies. You can’t open the newspaper these days without seeing some reference to a Paris-aligned target or a net-zero goal. Other international fora that we work in have also tried to align themselves with the Paris temperature goal; if you go to the International Civil Aviation Organization, they’ve now taken on a net-zero goal and adopted measures to try to get there. This past summer the International Maritime Organization did the same thing. So there’s been a lot of progress.

But if you look at IPCC reports—especially the latest assessment—and reports of the International Energy Agency, we are not yet on track to keep a 1.5 degree limit within reach. Then the question is what to do about this gap. You have to decarbonize the energy sector. That has a renewable energy component. It has a fossil fuel phaseout component. Deforestation has to stop by 2030. And in terms of the next set of NDCs, in our view they need to include all greenhouse gases. Some of the major economies have only included CO2 so far; to keep on a 1.5 degree trajectory, they need to broaden the scope of their NDCs.

In terms of challenges surrounding the global stocktake, one is that it’s a consensus process. Even if you agree on the gaps, there will be disagreement about the responses and who’s responsible for those responses. Another is that there are some countries that have experienced buyer’s remorse. They signed on to the agreement, but they don’t really love the design. Paris moved beyond the developed/developing dichotomy that was in the Kyoto Protocol. It took many years to create a new paradigm. Unfortunately, there are some large countries using the global stocktake as a back doorway of trying to renegotiate the Paris Agreement. Another challenge is that, of course, it will take money to implement the kind of responses that we’re talking about.

Finally, there is the issue of “loss and damage.” At the Glasgow COP, which was two years ago, there was a push by some of the more vulnerable countries to have funding to address loss and damage. That was a completely new issue. That had not been included in the Paris Agreement and it was controversial. Fast forward another year, at the COP last year in Sharm el-Sheikh, the push went beyond that. And this past year there has been a smallish group, about 24 countries, looking into establishing a new fund. The issues include where the fund should sit, as well as who the beneficiaries should be. The Sharm el-Sheikh COP agreed that the beneficiaries of the fund would be the particularly vulnerable countries, but questions have arisen whether that includes all developing countries, whether it’s just the small islands and the least-developed countries, or whether you leave it to the board of the new fund to decide.

Then you have the issue of “from whom,” i.e., who is asked to contribute. Is it just developed countries? Our view would be absolutely not. We’re in completely uncharted waters when it comes to loss and damage. There is no donor group and everybody should be invited. But some big developing countries want to make sure that they’re not invited to contribute.

One thing that’s important, just for an American audience, is loss and damage funding is not about liability and compensation. And that’s written into the mandate because that was a sensitive issue for the United States in the Paris Agreement. When we agreed to this loss and damage article, even though it wasn’t about funding, it was very important to stipulate that—because the chances of getting funding pitched as compensation or reparations would be slim.

Scott Fulton: Let’s remind ourselves what the United States’ current Nationally Determined Contribution under the Paris Agreement is. That is to reach by 2030 a 50 percent to 52 percent reduction of greenhouse gas emissions below 2005 levels. This in turn is calibrated to a goal that the Biden administration has set of achieving net-zero emissions no later than 2050.

Our country’s positioning relative to this objective was dramatically improved by last year’s passage of the Inflation Reduction Act—generally viewed as the United States’ most important national climate legislation to date. It is expected to drive major new investment toward renewable energy.

That said, analyses of that law’s reach indicate that, while the IRA will help push us toward our own NDC goal, it can’t get the job done alone. The IRA, along with complementary electrification initiatives, sets us instead on a path to roughly 40 percent below 2005 levels by 2030 as opposed to the 50 percent to 52 percent reduction envisioned by the NDC.

So, how to make up the difference? Some had hoped that regulatory action by EPA might close the gap. But the Supreme Court recently took a big bite out of what had been seen as EPA’s primary tool for regulating greenhouse gases, the Clean Air Act, in its decision in West Virginia v. EPA. The justices are saying if Congress wants to equip an agency like EPA to transform the energy system of the country, legislators need to say it more clearly. Of course, the current Congress is not in a position to say anything clearly or not. But a key question is whether state and big city governments can pick up the slack and help close this gap between the country’s climate ambitions and its actual performance.

There’s no one better able to help us think through that than our next speaker, Angela Barranco. Angela is executive director for the Climate Group in North America. Angela has two decades of political and policy leadership experience, most recently as undersecretary of the California Natural Resources Agency.

Angela Barranco: Climate Group is a global nonprofit. We are the secretariat of Under2, which is the subnational governments’ group. We have over 173 individual states, regions, provinces, and other subnational governments that are part of a global coalition—including many here in the United States. The co-chairs who guide the direction of that action are very actively involved in every COP. It is an interesting, very action-oriented group that has been coming together since the Paris Agreement defined this whole new world called “subnational action.” Paris changed the paradigm not only around subnational but also around private-sector engagement and bringing a lot of those folks to the table as equal actors in mitigation and resilience.

In addition to our subnational initiatives, Climate Group also runs several mitigation strategies in different industries with our corporate partners. We break down the silos and work in industry, transportation, built environment, food, and energy.

The traditional barriers between public and private sector are tumbling down. With Paris, it was about putting concrete thoughts and ideas about this global stocktake and the other actors that must come to the table. Everyone has to collaborate and move together. So this is where state governments especially become a really interesting and important driver of ambition and action.

There has been a paradigm shift in who is at the table. The Inflation Reduction Act changed so much of that framework. It’s now embracing critical pathways for economic development and critical pathways for work forces. It has become the bread-and-butter economic underpinning of these governments.

Whether they are city leaders, governors, county leaders, or other entities, they are all focused on how they make this a just transition. Bringing them to the table is going to ensure that this incredible transition is really rooted in these communities. The ideal we are working toward is that climate isn’t just a mitigation strategy, it’s a whole new way of looking at the world in a way that benefits everyone.

In the United States in particular there’s a very interesting moment involving Justice40 and some of the work that has been done in the Inflation Reduction Act, the Bipartisan Infrastructure Law, and the Infrastructure Investment and Jobs Act. All this climate work has also prioritized investments in impacted communities.

Our economic development is a model for others across the world and within our governors coalition we’re seeing a lot of interest in policy mechanisms to ensure that these transitions are fruitful for all.

In addition, methane and other greenhouse gases have to be addressed. One, the scale of the problem is growing, and we need to address it a lot faster. And two, things like agriculture and waste diversion are handled at the local level. So, a city like New York can make a decision about organic waste that has broad impact on methane in the atmosphere. If a lot of cities come together and make some big choices, it can have a real impact. The same goes with agriculture. The same goes with deforestation.

Another piece of this is resilience and adaptation. Again, big governments can set big policies and sometimes have big dollars. But those resilience and adaptation projects are going to be done at that local level. So it is critical to have governors and city officials at the table being ambitious in terms of how they want those communities integrated into the climate response.

The adoption of a lot of this forward action at the state and local level is resilient in many ways to those large political challenges. That is true not just in the United States but across the globe. We have 16 governors in Mexico that are a part of our coalition. What we hear time and again is the federal government in Mexico has not prioritized climate as much as some of those governors would hope. But those governors are taking on a lot of this work, whether it be building up the work force of the future so that they can build and transition and do all that great work—or just adapt. Whether it’s heat island effects or other things, they’re making those investments in their communities at that level regardless of what the federal government is doing. It’s an incredible place of opportunity.

But we are not moving fast enough. Our governors and our mayors are just getting organized, just getting to the table, so there’s a lot more work we can do there. The partnership has to be public-private. IRA will have an impact of like 40 percent. We still need the rest. That’s all going to come from a whole lot of places, including public-private funding, and we must start moving in synch together. Breaking down those barriers is something that I’m sure we are all working on in one respect or another.

Scott Fulton: You talk about breaking down the barriers between the public and private sectors. Do you think, based on your work with the states and what’s happening with the renewable energy trend lines, there is potential to break down barriers a bit between red and blue states?

Angela Barranco: Absolutely. Indiana is one of the leading renewable energy producers in the country. They love wind energy and they believe in all sorts of other incredible opportunities, but just don’t say the word “climate.” They’re more than happy to talk about the benefits of renewables and how the investment in Indiana is achieving great progress and producing great Indiana jobs. So, let’s use whatever language we need to use. But when it comes down to jobs and people’s work and their pocketbook issues, people will be on the right side of things.

Scott Fulton: If you look back over the last decade or 15 years, it feels like government performance on climate change has been sort of a stutter step. It’s been very difficult to maintain continuity in the face of political change and shifting priorities at the national level. We’ve seen that here at home. But it’s equally true in countries all around the world.

The fact of the matter is that it’s been hard for all governments, democracies and autocracies alike, to maintain the course when it comes to climate change, and to increase ambition. This has led to increased focus on the contribution of so-called non-state actors, some of which Angela has just been talking about, and in particular the business community. The belief and hope is that businesses aggressively decarbonizing their own operations and supply and value chains can be a key ingredient in reaching our climate goals and compensating to some degree for government unevenness in this area.

To focus some light on what’s happening in the private sector is Jennifer Huang, who is associate director of the international program at the Center for Climate and Energy Solutions. C2ES is of course a leader on climate change and is at the vanguard of work with companies to inform and educate business leaders, strengthen corporate climate action, and mobilize business support for effective climate policies. Jennifer facilitates dialogue among international policymakers and manages C2ES’s own global stocktake project. She also tracks and researches international climate policy focusing on the key issues in the UNFCCC.

Jennifer Huang: At C2ES, our international work focuses on the UNFCCC negotiations. I’ve been managing our project on the global stocktake. We also work with a number of stakeholders, particularly on the domestic side, including businesses and cities.

I will speak to C2ES’s theory of change for the global stocktake and our hopes and expectations for that outcome at COP28. And I’ll touch on the non-party stakeholder engagement in the global stocktake as well in this kind of moment for accountability that we find ourselves in. It’s going to be at the end of a two-year process that will inform new Nationally Determined Contributions. But another important aspect is that it’s meant to enhance international cooperation, which is a theme that I’ll touch on.

Global stocktake is actually still a negotiated outcome. The conclusion of this process is happening during an evolving political landscape. Parties had a really difficult meeting in June and were unable to address the substance of what this stocktake decision will look like. They don’t have a lot of time to work on this at COP28. So some more progress was made at a recent negotiator meeting in Abu Dhabi, but we still don’t have a text and there’s very little time left to do this.

What Sue had mentioned as their ideal global stocktake is really not that far away from what we see as well. What we really don’t want is what some parties may think of as the global stocktake: just being a Paris “report card,” just telling us what we already know, just telling us we maybe have a failing grade at meeting our goals. But it can be a moment to inspire us. It can be an opportunity to course correct and to direct us into a better future.

So to add real value, we think that COP28 and the global stocktake outcome should identify a limited number of very specific operational transformative signals. They should be across mitigation, adaptation, loss and damage, and means of implementation. But it should also speak to all stakeholders—national governments, local authorities, civil society, the private sector, national-level practitioners, multilateral-organizations, UN agencies, among others.

The greatest momentum we see right now is behind this potential target to triple global renewable energy capacity by 2030. It’s part of the COP presidency’s vision. It’s also part of the recent outcome of the G20 meeting. But we think, if you call for an increasing share of renewable energy and electricity generation to reach about two-thirds of the energy supply by 2030 with the aim of full decarbonization by 2050, it could be a really useful way to nuance that signal. But it also should be matched with a commitment by parties, multilateral development banks and international financial institutions, and non-party stakeholders to at least triple that proportion of finance and investments in renewable energy by 2030 as well. Together this could be a useful package that directs parties and civil society in their actions over the next few years and enhances international cooperation.

But it’s still far from certain that we would get this kind of energy target. So we need to build momentum around this ahead of COP28, including by activating existing relevant coalitions and initiatives around them, in particular the work of the High-Level Climate Champions. But even if this target is agreed at COP28, it’s not going to be useful or operational unless there’s some sort of follow through to implement it.

We hope that COP28 sets out a clear plan for what will happen next so that all parties and non-party stakeholders are clear as to what’s expected of them in an effective response year and to implement that renewable energy target. So you could do something like a series of ministerial and technical meetings in 2024 to follow up. Then COP28 should require that COP and global stocktake outcomes are clearly linked to this process of submitting new NDCs due in 2025.

I want to focus a little bit more on the engagement and accountability of non-party stakeholders. Even in the UNFCCC space, the stocktake is unique for allowing a fairly open engagement of non-party stakeholders. They were able to sit at the same tables with climate negotiators and speak freely during the technical dialogues. Their input and contributions are part of that historical record for the global stocktake and were taken up in the synthesis report that came out recently.

But there is interest in tracking nongovernment actors’ public commitments, despite the global stocktake being largely about collective progress of parties toward the goals of the Paris Agreement. There is still interest in tracking the progress of nongovernment actors toward the commitment that they have publicly made. The global stocktake sits in this wider moment of desiring greater accountability by those who have put forward commitments to address and act on climate change.

Angela did a great job of speaking to this incredible evolution and engagement of non-state actors from just before the Paris Agreement until now. We have countless net-zero pledges, large coalitions of actors who’ve joined campaigns like the Race to Zero, an explosion of initiatives that are also dedicated to deforestation, nature-based solutions, and other efforts to address climate change. But these pledges have also been accompanied by a proliferation of criteria, and benchmarks, and narratives with varying levels of robustness. It gets confusing. It can generate a lot of confusion for consumers, investors, and regulators.

So I’ll speak to two separate but related initiatives that are building momentum right now and generating a lot of interest in that non-party stakeholder space. The first is the UN High-Level Expert Group on Net-Zero Emissions Commitments of Non-State Entities. The secretary-general established HLEG to develop clearer, more rigorous standards for net-zero pledges by non-state actors, and to speed up their implementation. This group of experts delivered on their mandate in a report titled “Integrity Matters: Net-Zero Commitments by Businesses, Financial Institutions, Cities and Regions” at COP27.

The report is meant to serve as a guide. It provides 10 recommendations on how to set credible, accountable net-zero pledges and considerations. Then the secretary-general also called on these entities to put forward credible and transparent transition plans and to submit them before the end of the year. The secretary-general asked the UNFCCC to present a plan to address the lack of universally recognized credible third-party authorities that can conduct verification and accountability processes.

At COP27 parties responded to that request by inviting the secretariat of the UNFCCC to ensure greater accountability of the voluntary initiatives that come through this portal called the Global Climate Action Platform. Last June the UNFCCC launched consultations on something called a “recognition and accountability” framework and draft implementation plan. They propose to apply those principles from the HLEG to individual non-party stakeholder and net-zero pledges that are registered in that Global Climate Action Portal.

These consultations are co-chaired by Sarah Bloom Raskin, the former deputy secretary of the U.S. Treasury, and Bing Leng, a member of the International Sustainable Standards Boards. Through this framework, the UNFCCC can strengthen this accountability framework for voluntary initiatives to have more ambitious and credible climate action that’s supported by international cooperation.

But there is ongoing debate—this is a very sensitive topic right now—about how much of a role the UNFCCC should and can have in transparency and accountability of voluntary initiatives. There’s a strong concern that, if you take a very prescriptive approach, you can stifle the ambition and the willingness to do more.

Scott Fulton: One of the hopes is that the finance sector can play an important role in leveraging, incentivizing, and enabling transformation of energy and other carbon-intensive sectors. And in much of the world that leverage is expressed through development banks—like the World Bank—that can condition access to capital on climate-safe behavior.

We have with us an expert on climate finance and the development bank sphere, Charles Di Leva. Now an independent sustainability advisor, Charles was for many years the World Bank’s principal presence on all matters environment through his roles as chief counsel for environmental law and chief officer for environmental and social safeguards. He represented the bank in international treaty negotiations, including with respect to climate. He also played a key role in the development and implementation of the bank’s environmental, social, and climate policies.

Charles Di Leva: I’m going to start by speaking to the issue of carbon markets. One proposal to set up a market for carbon offsets is to include carbon dioxide removal as an activity that would be financed—and then the financier of those activities that remove carbon from the atmosphere gets credit for that offset. There is a controversy whether these removals can meet the integrity that Jennifer was talking about in terms of demonstrating permanence of the removed carbon and what test is put in place over the life of that carbon to ensure it stays out of the atmosphere.

Because if you remove or store carbon but it leaks 10 years from now or 50 years from now, you may defeat the very purpose of that offset. So under the Paris Agreement there is a supervisory body that has a working paper on whether removals can be included in what’s called Article 6.4 carbon market activities.

The multilateral development banks have an increasingly important role in tackling the climate crisis. The global stocktake has highlighted the role of MDBs as have recent G20 communiqués. In fact, if you go back to the UNFCCC, it’s always been understood that international organizations have a role, and the World Bank has certainly been a part.

Under the new World Bank president, Ajay Banga, there is a deep commitment to collaborate with the other multilateral development banks. Collaboration among the banks to tackle the urgent climate crisis has now been agreed upon. Almost everybody understands the urgency to act sooner. Indeed, starting this year the World Bank has committed that all of the public-sector financing of the bank, 100 percent, would be Paris-aligned. For the private-sector part of the World Bank, the International Finance Corporation and the Multilateral Investment Guarantee Agency, they will do so by the beginning of 2025.

But you need private-sector capital multifold beyond what’s capable of being generated through the public sector. And we’re talking on the scale of an estimated eight times more. President Biden wants to ask Congress to appropriate an extra billion dollars for callable capital into the World Bank because it’s recognized that multilateral development banks can stretch public finance to enhance bringing in the necessary private money that the global stocktake says is essential.

The World Bank is trying to put in place measures to do that. The new president has spoken about the essential element of de-risking private capital’s entry into the field of climate finance. If private capital is going to address the fact that today 63 percent of greenhouse gas emissions are coming from emerging markets and developing economies, you need to help deal with the various risk factors that private capital faces when they go into unstable markets. There is political risk, currency risk, extreme weather risk. All these risks can benefit from tools and instruments that the multilateral development banks are setting up through their different arms to try to address.

We have a historical set of crises that development institutions are being called upon to address. There’s still the need to deal with high unemployment with the recent pandemic. Many of the regions in the world are dealing with food insecurity. We have a biodiversity crisis that has not generated the kind of finance that’s coming out in the climate world.

Some powerful voices are coming from the Global South to point out the challenge of generating capital to deal with the climate crisis when so many of these countries are under staggering debt. That’s not just low-income countries. It’s often middle-income countries as well. The debt inhibits the renewable energy investment that the IPCC is saying is necessary to get to 1.5 degrees. So the wealthy countries, including China, need to find a way to work on debt relief to free capital. There have been some good examples. Recently, China’s willingness to work with the multilateral community in Zambia is seen as one good step in the right direction.

Fatih Birol, the head of the International Energy Agency, has said very clearly that we should be reaching peak oil by 2025. At the same time, there is interesting coverage in the last couple of weeks that you can see in the Financial Times about Exxon purchasing Pioneer Shale for $60 billion. Then even more recently Chevron purchasing Hess for a similar amount. In each case, it is investment in increased extraction. Hess has a high degree of ownership on the Guyana Basin, which is seen as one of the largest untapped oil reserves in the world. So if these are to be developed, then the concept of peak oil is challenged.

Many in the environmental community are worried there is a sense among some participants in this global debate that it can be okay to “overshoot” 1.5 degrees. Because removal activity is going to somehow enable us to go beyond 1.5 and come back to that temperature by eventually taking the excess carbon out of the atmosphere. What types of technologies is the world willing to consider to be acceptable market approaches to be used to offset emissions?

Let me just step back to Sue’s comment about the Kyoto Protocol. The United States was a tremendous force in designing the Kyoto Protocol’s market mechanisms. The Clean Development Mechanism was created under the protocol to set up means for purchasing reduction offsets in the developing world. Well, today under the Paris Agreement there is the Article 6.4 mechanism. That’s trying to build on the CDM and improve its credibility and integrity.

We need to do a better job of identifying market activity that is credible, that is permanent, that avoids leakage, and that is truly additional from what otherwise would happen. So the carbon market discussion is a critical one to follow. It’s one where the multilateral development banks are trying to bring the credibility of their operations into those types of activities because they operate from beginning of the operation and continue to monitor it through to the end.

So the role of the multilateral banks in looking at these emerging markets and developing countries that are critical, if we’re going to start to reduce emissions as much as we want to, is to help these countries track and authorize emission reductions in a way that the market is going to feel confident.

That if they invest in this type of activities, they aren’t going to be subject to greenwashing claims or, as we saw recently with Delta Airlines, brought into a class action lawsuit by passengers who felt that they were misled by the claim that they were flying on an airline that was carbon neutral. That case was followed by one against KLM not long after. So if we’re going to have the private sector do this, we need to help set the rules and the credibility of the carbon market so they can really achieve that ambition.

There are two types of market structures under the Paris Agreement. One is set up for bilateral deals with developing countries. So, for example, Japan and Switzerland can support wind, solar, green hydrogen activities in those countries. Then they can claim under Article 6.2 they have offset emissions reductions and will claim credit under that as part of their NDCs.

One incentive the World Bank has been talking about is that, if an investment is really delivering environmental benefits, perhaps they can lower the interest rate that would normally be charged to the borrower for entering into that type of investment. So I think it’s important not to let the fact that the marginal cost curve is coming down between the renewables and traditional fossil fuel investments discourage what would otherwise be an important renewable investment.

Scott Fulton: Perhaps the ultimate player in a whole of society pursuit is society itself—all of us. In response to this daunting problem of climate change, civil society is being asked to care more and at times make different choices than we might have made in the past. Collective clarity within civil society and a shared sense of purpose in dealing with this problem can enable improvement in all the systems that we have been talking about here. It can help clear out the political underbrush that impedes government action. It can help create consumer demand that accelerates the move to market of climate-sensitive products and services.

The challenge of arriving at a greater common accord on climate change is a function of public education and moving hearts and minds. Who better to help us think about how we can up our civil society game than our next speaker, who is someone already deeply involved in informing public understanding of climate change. And that’s this year’s ELI Environmental Achievement Awardee, J. Marshall Shepherd.

Originally a research meteorologist at NASA and later deputy project scientist for the Global Precipitation Measurement’s space mission, Marshall is currently director of the Atmospheric Sciences Program and professor of Geography and Atmospheric Sciences at the University of Georgia. In November he becomes associate dean of research scholarship and partnerships in the Franklin College of Arts and Sciences at the university. Marshall is one of the world’s leading thinkers, teachers, and advisers on weather and climate science. He is also a host of the Weather Channel’s award-winning podcast Weather Geeks, a senior contributor to Forbes magazine, and a regular guest on CBS’s Face the Nation, PBS’s Nova, the NBC Today show, CNN, Fox News, and other media outlets.

Marshall Shepherd: As I look at it, science has done its job in marshalling public opinion and appropriate responses. The climate is doing what our models said it would do. Now economic policy and law need to rightfully take front and center as we deal with this crisis. I think carefully about that because, as I thought about my remarks here and tonight, the Environmental Law Institute—many of you in this room—will need to lead, to charge forward.

Just this morning I was on the Hill. I’m part of the American Academy of Arts and Sciences commission that released a report, “Forging Climate Solutions.” This report is a readable, actionable, approachable set of ideas put forth by a very ideologically diverse group of scholars, CEOs, and stakeholders. And so we were marching it around to the various policymakers.

This afternoon, I want to also talk about another report that I co-authored for the National Academy of Sciences back in 2016. Because the science has moved to a point where we can say that climate change is certainly happening, the extreme events that we face are becoming more extreme, and they have a particularly high impact on certain segments of our society. But nature is making the case for us and, as I told Congress when I testified before the House Science Committee in 2019, it’s the extremes that people, our infrastructure, and our economy feel more than the average.

I want to circle back to vulnerable communities, the marginalized communities. I’ve done studies. We published a report in 2021 looking at what communities in the United States would be vulnerable to climate change by 2040. It’s a publication that looks at various factors, both social vulnerability, economic vulnerability, policy levers, and the extreme events themselves. What we know is that communities of color, elderly communities, and certain communities living in poverty will disproportionately bear the brunt of the challenges that we face.

These days my job as a scientist isn’t enough. What I mean by that is, when I talk to my students or when I talk to stakeholders or when I talk to a senator or someone at the White House, I often talk about how our scholarly system from the science perspective is broken. We teach scientists to be scientists, but we’re in an era where end-to-end science is needed.

As I think about the discussion today, this is end-to-end science. You have a scientist at the table. We have policymakers and policy advocates at the table. We have economists at the table. We have attorneys at the table. Our collective action is what will be needed. Because I can tell you this, Canton, Georgia, a rural community that I grew up in, or Cascade Road in southwest Atlanta, where my wife grew up, they’re not thinking about anything that any of us are saying today. They just know that it’s 107 degrees and their power is out and there’s no access to a cooling station, or the variability in the production of pecans or peanuts or cotton in our state has been disrupted. They don’t speak any of this language used here because at the end of the day they see things as a local issue. They might not even call it climate change for goodness’ sake.

So when I think about the work that I have evolved to do—and I said I’m a card-carrying physical scientist because, if you go and look at my publication record and the things that have gotten me into the National Academies, they’re very much science theory, models, development of new satellite techniques. But in the last ten years much of my work evolved to think about taking on this climate crisis as this wicked challenge that we face.

I’m thinking about it from the lens of vulnerable communities. Amid the destruction of New Orleans during Hurricane Katrina was the disruption of one of the most petrochemical-intense regions in the United States. Many people were vulnerable, but the people that we stared at in our television screens at the Super Dome was the community that was highly impacted but likely had the least amount of impact on carbon emissions when we’re thinking about the global stocktake.

Resolving this crisis, it will take local, regional, national, and international action. I think about some of the things that we’ve done in the state of Georgia when we were talking about needs for gap-filling activities here at the table. I’ve been involved in a funding that came from a private foundation called the Ray C. Anderson Foundation. Ray was a former CEO of Interface Carpets and he calls himself an “environmental industrialist.”

We took the broader project drawdown framework that some of you may be familiar with. We looked at it because they talk about a hundred-plus solutions for reducing carbon emissions to get us to hit our targets. But what that effort did not do is what works in Georgia. So we quantified what it would take and we estimated that we can reduce carbon emissions in Georgia by 67 megatons by 2030 with 20 very focused solutions rather than a haphazard approach. We looked at what solutions make sense for Georgia given our landscape, and our transportation infrastructure, and our building infrastructure and so forth.

When I was just on the Hill talking to people, there are still basic misunderstandings about aspects of the science. I lived and worked here in the D.C. area for 12 years. Every time I come here I realize I don’t talk D.C.-speak anymore. I’ve lost that art because I used to know it well. But yet, as I think about where we go going forward, we’ll need to engage.

The good news is my daughter is in pre-law and she wants to go into environmental law. So hopefully she will help to engage in this. It’s really ironic when I got this award because I said, I’m speaking to a bunch of environmental lawyers, so let me know if you need a reference.

THE DEBATE The 1985 agreement on climate change requires parties to carry out a global “stocktake” every five years to evaluate collective progress toward achieving long-term goals and purposes. The Environmental Law Institute invited an expert group to form our inaugural Firestone Policy Forum panel, held on the afternoon of the annual Award Dinner in October, to discuss how much progress has been made nationally and globally in meeting greenhouse gas reduction targets.

We Have the Right Tools. Let’s Use Them
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Robert McKinstry Jr. - Environmental and Climate Law Practice
Environmental and Climate Law Practice
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Robert McKinstry Jr.

There is still time to prevent the worst ravages of climate disruption from greenhouse gas emissions. We have both the technology and the legal tools to reach net zero by 2050. Although there is no silver bullet solution to the problem of climate change, we have the means to load the shotgun to accomplish this administratively and through the actions of state and local governments, NGOs, and the majority of industrial companies.

To reach net zero requires that the administrative branches of state and federal governments employ those tools. It also requires that both governments and NGOs put aside prejudices against particular technologies. Objections have been raised not only to nuclear energy, carbon capture and sequestration, and biomass energy, but also to offshore wind, hydropower, solar arrays, and electric vehicles and their resource-intensive batteries.

But all are essential elements of the climate solutions toolbox. The objections are often based on good-faith misunderstanding of the technology and failure to understand that adverse impacts can be mitigated. In addition, the adverse impacts that cannot be reduced or off set, when taken together, will be far less than the potentially catastrophic impact of not acting or acting too late.

Professors John Dernbach of Widener Law School and Michael Gerrard of Columbia Law School have identified over 1,000 legal mechanisms that can be employed to achieve deep decarbonization. Congress briefly overcame its institutional gridlock to enact the Infrastructure, Investment, and Jobs Act and the Inflation Reduction Act and thereby provide an array of financial mechanisms to encourage implementation of many of the necessary technologies. These in turn will accomplish the electrification of the transportation and building sectors. The IRA also amended the Clean Air Act to eliminate any doubt that the dissenters in Massachusetts v. EPA and their followers might have had that GHGs are pollutants that Congress intends EPA and the states to control, using the tools provided by the CAA.

We need state and federal administrators to use existing legal tools now to craft regulations that will create appropriate incentives or mandates to employ the financial tools that Congress has provided. The Biden administration is already using its authority to reduce and phase out mobile source GHG emissions and eliminate hydrofluorocarbons, a potent GHG. It has proposed regulations that will require meaningful emissions reductions from power plants, creating a legally sound path to decarbonize that sector. It is also using clear existing authority to address GHG emissions from the oil and gas sector.

Still more is needed to require action or impose a price on GHG emissions throughout the economy. Many legal scholars have argued that Section 115 of the CAA, governing international air pollution, could be used as a tool to require State Implementation Plans to achieve emissions neutrality by 2050. This would be consistent with decisions made under the Framework Convention on Climate Change—a treaty the United States has ratified with the advice and consent of the Senate and thus is the supreme law of the land.

In EPA v. EME Homer City, the Supreme Court affirmed an approach that EPA used to address interstate pollution. If the agency used a similar approach to GHGs, an economy-wide price could be put on GHG emissions without interstate and intersectoral leakage. This, as well as EPA’s existing regulations, can also support states that are already responding.

International action is also necessary. The United States, the largest contributor of GHGs historically, must take aggressive steps without waiting to induce action by countries whose per capita emissions still lag ours.

The latest science is encouraging—it tells us that atmospheric levels and temperatures can be brought down before irreversible damage occurs. Legal and technological challenges are inevitable, but those cannot be resolved in time unless action is taken now.

Time Is of the Essence
Author
Larry Schweiger - Author
Jeremy Symons - Symons Public Affairs
Author
Symons Public Affairs
Current Issue
Issue
1
Time Is of the Essence - Environmental Forum January-February 2024

A young woman carried a placard that caught our attention at a recent climate protest in New York City: “No Intelligent Species Would Destroy Their Environment, Duh.” In the face of 2023’s unprecedented Canadian wildfires, Pacific rain bombs, killer floods, hotter oceans, and deadly heat waves, Planet Earth is rapidly departing from the Goldilocks Era of relative climate stability for a wild Anthropocene, when human activities are a major climate driver.

Carbon pollution, largely from fossil fuels, is dramatically altering the climate and putting people in harm’s way. In Libya, more than 15,000 citizens ended up dead or missing after a single night of flooding. In the United States, last summer’s sweltering extreme heat across the country “would have been virtually impossible if humans had not warmed the planet by burning fossil fuels,” according to World Weather Attribution, a respected consortium of climate scientists.

Communities living in the shadow of major facilities have long known the difficulties that come with breathing toxic air pollution. The health implications of disproportionate toxic exposure—especially among Black, Hispanic, Indigenous, and low-income children—are now well documented. But for large swaths of the country, sheltering indoors to evade inhaling wildfire smoke has been a rude awakening to climate reality.

It appears that more Americans are waking up to the threat of the climate crisis. In an NPR/PBS NewsHour/Marist poll taken last summer at the end of the hottest month on record, nearly two-thirds of American adults say that climate change is noticeably affecting their local communities, and a majority also see it as causing serious effects right now. It is evident that life, as we have known, depends on a stable planet.

To find a way out of this mess, we need to tackle the root cause: the destabilizing pollution from fossil fuels, abetted by the toxic political influence of the fossil fuel lobby. More than a century ago, Boies Penrose, a powerful Republican senator from Pennsylvania, laid bare his views on the relationship between politicians and big business: “I believe in the division of labor. You send us to Congress; we pass laws under which you make money, and out of your profits, you further contribute to our campaign funds to send us back again to pass more laws to enable you to make more money.” More succinctly, Penrose said that politics is “the art of taking money from the rich and votes from the poor, all under the pretext of protecting one from another.”

According to historian Ronnie Duger, Penrose spread around large sums of money supplied by John Archbold of Standard Oil, which later changed its name to Exxon. Teddy Roosevelt called the relationship between Penrose and Archbold “that sinister alliance between crooked politics and crooked business, which has done more than anything else for the corruption of American life.” With the help of Standard Oil’s money, Penrose led a successful effort to create the “oil depletion allowance,” a tax loophole that persists to this day and has shielded oil companies from paying $470 billion in taxes—a number that continues to rise.

For more than 110 years, members of Congress and the fossil-fuel industry have been relying on this mutual symbiotic relationship at the expense of innocent people and much of nature. Massive subsidies to the industry have proven hard to repeal. Even Ronald Reagan recognized the outrageous giveaway and in 1985 tried and failed to eliminate the allowance.

On top of many direct subsidies, the International Monetary Fund rightly considers subsidies to be any governmental action or inaction that enables unpriced externalities implicit in fossil fuel exploitation, such as allowing corporations to pollute for free. The IMF warned, “Globally, fossil fuel subsidies were $7 trillion in 2022. Explicit subsidies (undercharging for supply costs) have more than doubled since 2020 but are still only 18 percent of the total subsidy, while nearly 60 percent is due to undercharging for global warming and local air pollution.” The IMF concluded that “full fossil fuel price reform would reduce global carbon dioxide emissions to an estimated 43 percent below baseline levels by 2030 (in line with keeping global warming to 1.5-20 C) while raising revenues worth 3.6 percent of global GDP and preventing 1.6 million local air pollution deaths per year.”

Taxpayer handouts are not the only grip on energy policy fueled by lobbying and campaign cash. In 2005, Congress exempted hydraulic fracturing from the Safe Drinking Water Act. The provision, championed by Vice President Dick Cheney, is known as the “Halliburton loophole” in deference to the company that invented fracking and that Cheney led before jumping back into politics. Fracking comes with a heavy environmental cost. Several scientific investigations have documented serious health consequences, including low birth weights and elevated cancer cases in children within a mile of a fracked well.

In 2015, just days before world leaders clasped hands around the Paris climate agreement, fossil fuel lobbyists convinced Congress and President Obama to lift the ban on exporting crude oil. Gasoline averaged $2 per gallon. Since then, U.S. crude oil exports have surged to 4 billion barrels per day, containing as much carbon pollution as 146 coal-fired power plants. Prices at the pump have doubled. Fossil fuel companies have simultaneously been boosting exports of natural gas overseas, doubling LNG exports in the past four years. The United States is now the largest exporter of LNG in the world. While part of this growth helped the EU replace Russian gas following the invasion of Ukraine, plans now in the works to quadruple fuel exports in the coming decade are driven by profit, not national security.

Even as fossil fuel interests secured big policy wins, they have simultaneously choked off legislative and regulatory efforts to cut carbon pollution and tackle climate change. Their strategy: deny, stall, and litigate. Fossil fuel companies have funded climate denial misinformation campaigns. In September, California became the latest state to sue oil companies, citing “more than 50 years of deception, cover-up, and damage that have cost California taxpayers billions of dollars in health and environmental impacts.”

The successful deception operation catalogued in California’s 135-page brief rivals the espionage annals of the Cold War. As far back as the 1950s, the American Petroleum Institute—Big Oil’s lobbying and marketing arm—had commissioned private research alerting them to the threat fossil fuels posed to the climate. Frank Ikard, the president of API, warned oil executives in 1965 that “carbon dioxide is being added to the Earth’s atmosphere by the burning of coal, oil, and natural gas at such a rate that by the year 2000 the heat balance will be so modified as possibly to cause marked changes in climate beyond local or even national efforts.” Ikard grasped the threat to the oil industry. “The pollution from internal combustion engines is so serious, and is growing so fast,” he said, “that an alternative nonpolluting means of powering automobiles, buses, and trucks is likely to become a national necessity.”

According to California’s legal brief, API instituted a systematic deception campaign organized around front groups “formed to promote climate disinformation and advocacy from a purportedly objective source, when in fact these groups were financed and controlled by [oil companies that] benefited from the spread of this disinformation.”

Fossil fuel interests have successfully litigated to slow EPA from taking action. The agency is currently proposing limiting carbon emissions from power plants and methane emissions from the oil and gas industry. These important efforts are more than a decade late and face uncertain futures. Similar efforts under the Obama administration were held up in the courts and rolled back by the Trump administration.

Most recently, the conservative Supreme Court minted a new “major questions doctrine,” whereby neither EPA nor any other agency can adopt rules that are “transformational” to the economy unless Congress has expressly authorized such a rule to address specific problems like climate change.

After more than three decades of hard-fought campaigns, mandatory carbon pollution reductions have proven to be environmental advocates’ greatest legislative and regulatory challenge. The fossil fuel lobby has been adept at stalling any direct climate action in Congress, preserving the status quo under which they thrive. Several legislative attempts at finding appropriate solutions dating back to Democratic Senators Al Gore and Tim Wirth’s hearings in 1988 have failed. The fossil fuel lobby’s top congressional ally, Republican Senator Jim Inhofe of Oklahoma, infamously brought a snowball to the Senate floor to disprove global warming and chide members who were seeking legislation.

The Senate filibuster has been a gift to fossil fuel interests. It loomed over efforts to enact limits on carbon pollution, such as those led by Senators John McCain, Joe Lieberman, and John Warner, keeping such efforts on the back bench. In 2005, 54 senators made a bipartisan show of support for climate legislation that would include mandatory limits to reduce greenhouse gases. But even that majority coalition was insufficient in the face of the 60-vote threshold.

In 2010, Nancy Pelosi pushed the American Clean Energy and Security Act through the House—the first successful effort to pass a major climate bill through a chamber of Congress. The victory was short-lived. The filibuster empowered the fossil fuel lobby and their Senate allies, and the legislation buckled under the weight of the concessions needed to get the votes.

This history of setbacks in Congress makes it all the more remarkable that, in 2022, President Biden and Democrats in Congress enacted the Inflation Reduction Act, which uses incentives to encourage clean energy. They smartly bypassed the filibuster by using the budget reconciliation process—an approach that restricted the scope of the legislation and had not yet been tested for climate legislation.

The IRA is the most meaningful climate bill in U.S. history. In the year following enactment of the IRA, companies announced more than $110 billion in new clean energy manufacturing investments, including more than $70 billion in the electric vehicle supply chain and more than $10 billion in solar manufacturing, according to the White House. The IRA’s climate and energy investments will create more than 9 million good jobs over the next decade, according to the BlueGreen Alliance.

There is no question that getting the IRA across the finish line was a herculean legislative feat. It required Democratic unity, and it would not be law today without tenacious persistence by Biden and Democratic leaders in Congress.

Pollsters are warning the White House that there is broad—but still hypothetical—public support for the programs in the IRA. The problem, they say, is that few voters know that the programs are now law. President Biden’s reelection game plan includes a persistent drumbeat on the IRA’s accomplishments. That makes sense, but only to an extent.

The people we talk with throughout the nation, like the 75,000 who carried signs and marched outside the UN Climate Ambition Summit in 2023, know more than these polls suggest. They understand that the bill did a lot of good and that Biden did his best using the art of the possible, but they also know that the fossil fuel lobby continues to define just what is possible. In delivering the IRA, Biden appeased West Virginia Democrat Joe Manchin, the Senate Energy and Natural Resources Committee chair, with several problematic provisions, including approval of the Mountain Valley Pipeline as well as a toxic provision that prevents the federal government from issuing new offshore-wind leases without also issuing new offshore oil and gas leases.

“Despite this administration’s best efforts to botch the law’s implementation, fossil fuel projects are getting off the ground because of the act,” Manchin wrote for the Wall Street Journal more than a year after the IRA was enacted. “Because of the Inflation Reduction Act, we are producing fossil fuels at record levels.”

In this, Manchin sounds a lot like Biden as the president navigated the politics of artificially high gasoline prices impacting the entire economy. Fossil fuel interests shifted the blame from their own record profits to President Biden. Responding to this pressure, Biden used the bully pulpit to reassure the public that the wells were flowing: “My administration has not stopped or slowed U.S. oil production: quite the opposite; we’re producing 12 million barrels of oil per day. And by the end of this year, we will be producing 1 million barrels a day more than the day I took office. We’re on track for record oil production in 2023.” Both Manchin and Biden are right: U.S. fossil fuel production is at the highest levels ever.

It is odd to expect climate voters to hear the White House’s messages on the IRA while ignoring the president’s messages on fossil fuels. Voters concerned about climate change understand that we cannot solve the crisis while growing our production of fossil fuels. The IRA will help reduce demand for fossil fuels in the United States, but production is projected to increase, based on the government’s latest (post-IRA) forecasts.

How is that possible? Fossil fuel companies are exporting much more oil and gas from the United States even as we are reducing pollution here at home. The net result is that America is basically treading water in terms of our global carbon footprint when you look at the whole picture, including consumption and production.

When exports are counted, U.S. greenhouse gas emissions are expected to remain above 2005 levels through 2050, undermining global efforts to achieve “net zero” emissions, which requires eliminating most carbon pollution. It is an emissions shell game with far-reaching consequences for the climate: as much as $18.7 trillion in climate damages from greenhouse gas exports by 2050, based on the U.S. government’s own “social cost of greenhouse gas emissions” estimates. (A report with more information on the impact of U.S. fossil fuel exports is available at symonspa.com).

Executive action is desperately needed to stem the rising fossil fuel tide. The good news is that confronting fossil fuel production and exports provides an additional set of powerful tools for the Biden administration to lead on climate change. For example, the climate damages associated with U.S. fossil fuel exports could be reduced by up to $6 trillion by shifting trajectories even modestly and keeping export levels at today’s high levels. Steeper shifts in exports would achieve even greater reductions.

After years of deliberate delays and roadblocks by fossil fuel interests, it is now or never for the health of our planet. The sight of devastating losses worldwide, burned-out communities, and flooded cities—leaving thousands dead and millions suffering—should propel long-overdue climate pollution control and clean energy policies.

Republican leaders in Congress instead are attempting to gut climate funding and dismantle the IRA and other climate actions if they retake the White House and both houses of Congress. The greatest threat to global climate progress would be for Americans to re-elect politicians who have allied themselves with the fossil fuel lobby. If, on the other hand, Democrats hold or expand their power in Washington, they will have an opportunity to build on the clean energy agenda they have begun. With the climate clock ticking, they will have to elevate their ambition. Defending what is already underway will not be enough. While tax breaks for clean energy will help bend the long-term arc toward carbon reductions, even the most optimistic models show we are likely to fall short of Biden’s goal of cutting domestic emissions in half by 2030 without further action.

By election day, the Inflation Reduction Act will be two years old. Climate voters want to know what is next. Talking about the past may not be enough to energize voters and campaign volunteers who see climate as an existential threat and want to know what the president is doing now and what he will do next.

A good place to start is acknowledging that neither the United States nor the world can achieve net-zero emissions while locking in new fossil fuel supplies. That will take us in the wrong direction.

The most comprehensive scientific studies of our time have all concluded that achieving the Paris climate goals will require actions to guard against locking in new sources of carbon emissions that will compete with cleaner energy and slow the needed transition. The Intergovernmental Panel on Climate Change concludes in its authoritative 2022 update on climate science that “cancellation of plans for new fossil fuel infrastructure” is needed to avoid “significant carbon lock-ins, stranded assets, and other additional costs.” The International Energy Agency concluded in 2021 that meeting net-zero Paris goals requires reducing natural gas production up to 5 percent annually and that “there is no need for investment in new fossil fuel supply in our net zero pathway.”

Senate Majority Leader Chuck Schumer (D-NY) has promised a new climate bill if Democrats get elected, but has been light on specifics. He and Pelosi and Biden have proven Democrats can get climate legislation done if given a chance. Schumer’s pledge begs the question: what should an ambitious climate plan look like if Democrats win the coming elections?

The good news is that Biden has laid a foundation for boosting clean energy using administrative action—not only implementing the IRA, but also finalizing and enforcing regulations from EPA and other agencies. The better news is that there are more tools still waiting in the presidential toolbox that he could reach for should he decide to challenge the oil and gas industry more directly and declare a climate emergency.

When running for president, Biden promised voters he would allow “no more drilling on federal lands, period, period, period, period.” After an initial attempt to pause oil and gas drilling on public lands failed in court, the Biden administration backed off his 2020 campaign pledge altogether, settling instead for reforming royalty rates. Biden needs a new strategy to phase out public leasing of fossil fuels from public lands and waters. These lands and waters, and the resources beneath them, belong to all of us, not private companies. Biden took a key step in 2023 when he opted to protect the Arctic National Wildlife Refuge, dismissing prior lease sales.

Biden also has a responsibility under the Natural Gas Act to deny new applications to export liquified natural gas if it fails to serve the “public interest.” Despite that responsibility, the Department of Energy has never denied an LNG application. If that trend continues, the amount of export LNG licenses could quadruple under Biden’s watch. Instead, the president needs to limit the amount of exports to levels needed to satisfy U.S. national security interests, rather than the free-for-all that exists right now—with Big Oil CEOs deciding our energy policy and the government rubber stamping their plans. Biden can start by denying a license for CP2 LNG, which would be the largest gas export project ever approved.

As some Senate Democrats have urged, the attorney general should join states in suing fossil fuel companies for the climate deception that has left the public and government footing the bill for the damage and destruction caused by emissions.

As for Congress, it can act on President Biden’s call to end fossil fuel subsidies. Instead of slashing subsidies, Congress has piled on even more, with billions dedicated to false solutions like carbon capture and storage that have routinely left taxpayers holding the bag when the projects failed. They should also reinstate the ban on crude oil exports that was lifted in 2015 and reverse the 2005 Halliburton loophole that exempts fracking from the Safe Drinking Water Act.

Most important, Congress should turn to the long overdue task of holding polluters accountable for their carbon emissions. The much-esteemed scientist Michael Mann of the University of Pennsylvania has called for “provisions that not only incentivize clean energy but disincentivize fossil fuel energy.” While offering carrots, the United States must also enact enforceable pollution benchmarks and end once and for all the era of corporations freely dumping pollution into the atmosphere.

In discussions with Tim Profeta, the founding director of Duke University’s Nicholas Institute for Environmental Policy Solutions, a carbon price—requiring fossil fuel companies and other big emitters to pay a fee to the government based on their greenhouse gas emissions—could be a part of a carefully constructed reconciliation package that cannot be blocked by Senate filibuster.

Profeta has had a long time to consider the options. He previously served as counsel for the environment to Senator Lieberman, where he was a principal architect of the Lieberman-McCain Climate Stewardship Act of 2003, the first serious climate bill to be put to a Senate vote. He also helped lead Democratic efforts to protect the Arctic National Wildlife Refuge from drilling. From that experience, Profeta suggests using Section 313 of the Congressional Budget Act. Setting a price on carbon would produce substantial revenue, potentially satisfying the so-called Byrd Rule and avoiding prospects of a 60-vote threshold.

In crafting the package, Democrats will need to lean on their recent experience negotiating with the Senate parliamentarian, who has the final say on what can and cannot avoid a filibuster threat. Importantly, the budgetary impact of a carbon price cannot be “merely incidental” to policy goals. Which is appropriate in the case of a carbon price, because revenues are needed to finish what the Inflation Reduction Act started, by investing in new technologies and a just transition that creates economic opportunity and good jobs.

Concurrent with a domestic mechanism pricing carbon, Congress should authorize the president to work with other willing nations to establish “border adjustments” to level the trading playing field to address nations that fail to act. Several bipartisan proposals are currently under consideration, but the concept works best if the country imposing border fees on other nations has similar measures domestically.

This pathway for ambitious climate action in Washington will not be easy. Voters must keep climate deniers out of the White House. Biden for his part will have to push the comfort zone of his political advisors and confront the oil and gas industry more directly. The unfolding climate chaos around us is unforgiving, and time is of the essence. The challenge is steep, but as Nelson Mandela once observed, “It always seems impossible until it’s done!”

COVER STORY The United States and other nations are quickly facing the point of no return on climate change. Stronger measures are needed to turn the rising fossil fuel tide. We can start by reining in oil and gas exports and turning off the subsidy spigot feeding the fossil fuel industry.

While the World Burns, Dubious Evasions in Climate Negotiations
Author
Bruce Rich - Attorney & Author
Attorney & Author
Current Issue
Issue
1
Bruce Rich

Last year, global temperatures reached the highest level ever measured, shattering records, in the words of Indian meteorologist Akshay Deoras, “by a humongous margin.” We are already close to warming of 1.5 degrees Celsius above preindustrial levels, the desirable limit agreed at the 2015 Paris climate conference to forestall dangerous global warming. UN Secretary-General António Guterres has denounced governments for “runaway climate carelessness.” Countries are, he lamented last year, “doubling down on fossil fuel production . . . double trouble for people and the planet.”

Let’s start with the host of the 2023 28th Conference of the Parties to the UN Climate Convention, the United Arab Emirates. The UAE appointed the head of the country’s national oil company, ADNOC, as COP28’s president. ADNOC is the world’s seventh largest oil producer, accounting for 4.1 percent of global production. Just before the UAE was named COP28’s host in 2022, ADNOC proclaimed new investments of $150 billion to more than double its production of natural gas and oil, adding 7.5 billion barrels of oil equivalent to global output. To meet the International Energy Agency’s suggested scenario of net zero global carbon emissions by 2050, no new oil and gas extraction should have been approved after 2021. Ninety percent of ADNOC’s expansion goal is totally incompatible with the IEA’s analysis.

ADNOC is hardly alone. Saudi Aramco, QatarEnergy, ExxonMobil, Chevron, and the French oil giant Total all announced major production expansion plans in recent years. A significant part of the production expansion of ExxonMobil, Chevron, and Total is taking place offshore of Guyana and Suriname, abetted by over a billion dollars of loans for government support, infrastructure for oil and gas transport, and technical assistance in managing oil revenues provided to these countries by the World Bank and Inter-American Development Bank. Late last year, rich countries and developing nations agreed that a proposed $100 billion Loss and Damage Fund to compensate poorer nations for climate change harm would be managed on an interim basis by none other than the World Bank. As long as the bank continues to support fossil fuel production expansion, it is grotesque to entrust it with managing the new climate harm fund.

In November, the United Nations Environment Program and the Stockholm Environment Institute released their fourth annual “Production Gap” study examining the disconnect between hortatory pledges of governments to reduce fossil fuel emissions, and alarming simultaneous plans of most major fossil fuel producing nations to increase production by 2030 more than 110 percent above the level consistent with these commitments. Specifically, coal production will continue to increase through 2030 in Germany, Colombia, the United States, Australia, Russia, Indonesia, and India (among others), reaching a level 460 percent above “global levels consistent with limiting warming to 1.5º C.” Oil and gas production will rise 29 and 82 percent higher, respectively, in 2030, than levels consistent with achieving a 1.5º C target.

According to the report, “For each fossil fuel, the combined levels of production being planned by the 10 high-income countries alone would already exceed global 1.5º C-consistent pathways by 2040, putting an equitable [energy] transition at risk.”

Brazil, Indonesia, and Colombia have recently achieved substantial reductions in deforestation rates, certainly a positive trend. But if these same nations, together with developed and Arabian/Persian Gulf nations, are simultaneously ramping up fossil fuel production, we are still on a path to climate disaster.

Some governments in lieu of greater reduction of fossil fuel production and use emphasize the potential of carbon capture and sequestration and carbon offset trading. A recent study by the Guardian and the Boston-based research organization Corporate Accountability examined the top 50 international carbon emission offset projects as measured by volume of offsets, accounting for a third of the global voluntary carbon market. The study concluded that 39 of the 50 were “likely junk” in terms of actual carbon reductions, and eight others were “problematic.” Wildfires from 2015 to 2022 destroyed 95 percent of the forests set aside as carbon offsets under California’s climate law.

Already in 2007 and 2009 studies conducted by MIT and Harvard had concluded that CCS cost and infrastructure challenges made it an impractical option compared with a more rapid transition to carbon-friendly renewable energy. The UNEP and SEI report warns of “the risks and uncertainties” of CCS, calling for “total phase-out of coal production and use” by 2040 and for reduction of oil and gas production and use by 75 percent in 2050 from 2020 levels.

While the World Burns, Dubious Evasions in Climate Negotiations.