Climate Change (generally) | Environmental Law Institute

Crafting Compensation for Bearing Climate Change Loss and Damages

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Author

Joseph E. Aldy - Harvard Kennedy School

Harvard Kennedy School

Current Issue

January-February 2023

Issue

At November’s climate change talks in Sharm El-Sheikh, Egypt, “loss and damage” represented one of the most important and contentious elements of the negotiations. As the unavoidable impacts of a changing climate impose economic costs on people and communities around the world, the governments of least-developed and vulnerable countries have called for compensation for bearing these harms. The challenges lie in designing and financing a compensation mechanism.

Some national governments and stakeholders have advocated for a liability scheme to address loss and damage. In effect, those responsible for climate change would compensate those harmed by climate change. Implementing a liability scheme, however, would be technically and politically daunting.

Assigning liability for climate change’s economic losses requires, first, the attribution of past greenhouse gases to a liable party today and, second, the attribution of an extreme weather event’s economic damages to climate change.

The former raises questions of emissions measurement and estimation and joint liability. Every country includes emission sources that have contributed to the increase in atmospheric concentrations of greenhouse gases. The latter raises questions about the improving but probabilistic nature of extreme weather event attribution science. The major political barrier, however, lies in securing consensus on such a scheme among governments when some may perceive risks of agreeing to unlimited economic liabilities. Indeed, the 2015 Paris Agreement explicitly ruled out liability in its article on loss and damage.

In contrast, the loss and damage programs under a 2013 agreement at the Warsaw, Poland, climate talks have focused on an insurance-oriented approach. This includes an information clearinghouse on insurance and other risk management instruments, some of which predate the UN loss and damage debate.

For example, the World Bank and major donor countries supported the creation of the Caribbean Catastrophe Risk Insurance Facility, which provides parametric insurance for natural disasters. If a covered country experiences a covered event—a hurricane with sustained wind speeds or an extreme rainfall event with precipitation exceeding a trigger level—then the insurance facility pays out to that nation’s government to finance recovery and rebuilding.

The World Bank has issued a catastrophic-risk bond for cyclone damage in the Philippines. If there is no cyclone within the time period covered by the bond, an investor receives full principal and an interest return on the bond. If the Philippines experiences a cyclone of specified intensity, then the bond owner may lose a fraction or all of the principal of the bond.

These initial efforts—operating on the scale of millions of dollars—are likely to be of insufficient scale to meet the needs of those bearing economic damages, which could be in the billions of dollars annually in coming years. And in the broader context of developed countries falling short of previous climate finance commitments—such as the $100 billion annual goal of transfers to developing countries for emission mitigation and adaptation investments—the recent push for institutionalizing a loss and damage fund resulted in the agreement in Sharm El-Sheikh. The details of this fund are still to be determined. The agreement creates a transitional committee that will address who pays into the fund, who receives compensation from the fund, and what will serve as the triggers for payouts. As with insurance, monies paid in—a form of premiums—will determine the size of the insurance pool and hence the extent of claims that can be covered.

While all countries have contributed to climate change, it is more likely that only a subset of nations, including some potential combination of the wealthiest countries and largest emitters, will finance the fund. And while all countries bear damages from climate change, it is likely that only the least developed and most vulnerable will be covered by the new instrument. An outstanding question is whether all extreme weather events in covered countries would qualify for payouts, or only those attributed to climate change.

Such a new insurance strategy for climate damages could alter the incentives for other efforts to mitigate the risks. This new fund could crowd out existing risk management instruments, or it may enhance the funding pool that implements existing instruments. Some negotiators expressed concerns that the creation of this fund may weaken resolve for cutting greenhouse gas emissions. On the other hand, establishing an expectation that wealthy countries will finance insurance for climate loss and damage could align their incentives for ramping up financial support for climate adaptation and resilience in the most vulnerable countries.

Crafting Compensation for Bearing Climate Change Loss and Damages

A Time for Triage

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Author

Michael B. Gerrard - Columbia Law School

Columbia Law School

Current Issue

November-December 2022

Issue

The world is desperately behind in the energy transformation needed to avoid the worst impacts of climate change. Catching up requires a massive buildout of wind and solar power and associated infrastructure, but in the United States many impediments stand in the way. Among them, ironically enough, are environmental laws. Here I argue that we must accept difficult tradeoffs, sacrificing some of what we consider precious in order to avoid far worse impacts.

The Intergovernmental Panel on Climate Change says that avoiding catastrophic climate change requires keeping global average temperatures within 1.5 Celsius degrees above pre-industrial levels. In May, the World Meteorological Organization said there is a 50/50 chance that we will hit that level in just five years. We are now at around 1.2 degrees, and we are already seeing record-breaking heat waves, wildfires, droughts, and flooding; every added notch on the thermometer makes things worse.

According to the Climate Action Tracker, if all countries fulfill their latest pledges pursuant to the Paris climate agreement, the world will be between 1.7 and 2.6 degrees hotter by 2100. Unfortunately, many countries—including the United States—are far behind in meeting their pledges, and the actual policies and actions underway would take us to 2.0–3.6 degrees by the end of the century. Especially at the upper end of that range, such an increase would be an unimaginably terrible world, with large areas rendered uninhabitable and billions of people (that’s billions, with a “b”) displaced from their homes and looking for some place, any place, to live.

Every scenario for staying even at a fallback position of 2 degrees at century’s end includes the all-out construction of renewable energy projects, primarily wind and solar. The United States in particular needs a World War II-scale mobilization. That era saw a huge investment in research and development, and a nationwide commitment to meeting defense workforce and production goals.

This renewable energy is needed not only to replace fossil fuels in generating electricity, allowing the country to shut down all of its coal plants and almost all of its natural gas plants. Along with other countries, we also need to electrify transport, heating, buildings, and much of industry. U.S. electricity demand would about double, even after aggressive efforts to improve energy efficiency.

To get all this electricity from where it will be generated to where it is used, we also need a massive expansion of transmission—a tripling or quadrupling in capacity under some scenarios.

One attempt to quantify all of this was undertaken by Princeton University’s Net Zero America project in 2021. It sets forth several scenarios for the United States, of which only one does not rely on a large number of new nuclear power plants along with carbon capture and sequestration to allow continued use of natural gas for electricity. That scenario involves 3,085 gigawatts of wind generating capacity and 2,750 gigawatts of solar. This would require an estimated 4,000 square miles of land for the wind and 21,000 square miles for the solar (though much of this land could simultaneously support agriculture or other commercial or industrial uses). That adds up to about the land area of West Virginia.

The reason so much land is required is power density: it takes one or two orders of magnitude more acreage to produce a given amount of electricity with wind or solar than with coal, natural gas, or nuclear power, even considering the land disturbance to acquire their needed fuel.

Several studies conclude that achieving the needed level of wind and solar requires building on the order of 100 gigawatts a year out to 2050. To put this in perspective, one good-sized nuclear power plant, or a very large wind farm, has a capacity of about 1 gigawatt. So we would have to build the equivalent of around 100 of these every year.

The principal way to reduce the amount of new wind and solar required under these scenarios would be large-scale deployment of technologies that are not yet and might never be at a commercial scale. These include small modular nuclear reactors, fusion power, tidal generators, carbon capture, geothermal, or perhaps other energy sources that are not yet on the horizon. These may work out, and a great deal of research and development is being pursued, as it should, but we cannot assume success and relax other efforts.

The worsening projections about future climate conditions also mean that we will need to build more infrastructure to adapt to those conditions—sea walls, larger drainage systems, elevated buildings and roads, and much else. We may also need to build new cities and expand old ones to accommodate those who are displaced from drowning coastlines, parched lands, and forests that have become tinderboxes. This may be millions or tens of millions of Americans, without doing anything for the far greater numbers of people in other countries who will be displaced in large part because of historical emissions from the United States.

There are many impediments grounded in law to achieving this level of wind and solar and the needed adaptation infrastructure. Each one could become, if not a veto point, a cause of years of delay that can kill a project, or a specter that keeps it from serious consideration in the first place.

Local zoning and building codes are high on the list. So are various federal statutes—the Endangered Species Act and other species protection laws; the National Environmental Policy Act and its state equivalents, with all of their procedural intricacies; and the wetlands and coastal protections in Section 404 of the Clean Water Act. We also have the laws protecting public lands and marine habitat. Concerns of environmental justice communities and Indigenous peoples must be considered. Labor and human rights conditions along the supply chains must be addressed. Property rights and trade protections will play important roles.

Each of these factors is entirely legitimate. Each has its own strong constituency that understandably does not want to budge on its particular issues. But cumulatively they contribute to preventing us from building what is needed at the pace and scale essential to address the climate crisis. So do many other financial, engineering, labor, supply chain, and other considerations. When all this is added up, it is difficult to imagine how the United States can build the renewables capacity needed to come even close to our temperature targets.

The Inflation Reduction Act, which President Biden signed on August 16, provides for approximately $370 billion over the next decade in energy and climate spending, including tax credits that will make it much less expensive to build renewables and other elements of clean energy infrastructure. The law provides a great deal of money for agencies to hire staff or consultants to prepare environmental impact assessments and to process applications, but otherwise it does little to clear away the obstacles to all this construction. The deal between Senators Joe Manchin (D-WV) and Chuck Schumer (D-NY) that allowed the passage of the law also included the enactment this fall of separate “permitting reform” legislation; the inevitable fight over that bill will feature loudly competing voices on how much needs to be given to the fossil fuel industry, and what environmental procedures need to be relaxed in exchange for an easier path for clean energy.

This brings me to my point. Rather than climate denial, the environmental community has tradeoff denial. We don’t recognize that it’s too late to preserve everything we consider precious, and to linger in making decisions. Society has run out of time to save everything we want to save, and to mull things over for years. Had the emissions curves peaked and started falling in the 1980s, when an increasing number of scientists were trying to sound the alarm about climate change, we might not have been forced into these tough choices. But that didn’t happen; we squandered the time. We have to acknowledge that we need to be in an era of triage, where we save what we can but recognize that there are things we’ll have to give up.

The United States has a special obligation to accelerate the clean energy transition—we have the world’s greatest financial and technological resources, our per capita greenhouse gas emissions are much higher than those of almost any other country, and our cumulative emissions and consequent climate damage are still the world’s largest.

All this leads me to what will certainly be a number of very unpopular suggestions.

One of the things I’d like to put on the table for debate is that sometimes we need to intrude into the critical habitat of an endangered species if that habitat is where we need to put our wind farms, solar arrays, transmission lines to carry the power, or the mines to extract essential minerals for the manufacture of the new clean energy equipment. We should certainly look for sites with the smallest impacts and also strive to mitigate the impacts that remain. But if despite reasonable measures some birds, bats, or plants will die as a result of building the necessary clean energy projects, that is the hard choice we need to make. Because if we don’t make this choice, far more birds, bats, and much else will die from the ravages of climate change.

We will need to give up some scenic mountain and ocean vistas. It’s wonderful to look at unadorned nature, but the best places for wind turbines are where winds are strongest, such as on top of ridge lines or off the coasts. I would rather see wind turbines on the horizon than know that coastal cities are drowning and millions of acres of human and species habitat are flooded or on fire. The wind and solar facilities in the Princeton scenario could be visible from an area the size of Texas and California combined; if we are precluded from putting these turbines and panels anywhere that people can see them, we’re totally sunk.

We also need to find ways for NEPA to take a lot less than the current average of 4.5 years to go through the environmental impact statement process. (The first section of the New York City subway system was built in less time.) The average approval time for new transmission lines (without which many wind and solar farms are useless) now exceeds 10 years. EISs shouldn’t have to rival War and Peace in length.

We also need to re-examine the demand for local consent. My work has found that in nearly each of the 50 states, cities and towns have enacted zoning or building laws to block renewables. (That’s why in 2019 I founded the Renewable Energy Legal Defense Initiative, which provides pro bono legal assistance to community groups and others that favor wind and solar but that are facing local opposition.) We have to preempt a lot of these laws that block renewables—in other words, to allow a higher level of government to nullify restrictions imposed by a lower level. New York adopted a law in 2020 giving the state sole authority to approve utility-scale wind and solar projects; Albany needs to consider local restrictions but does not have to follow them. New York had adopted a prior law in 2011 on renewables siting, but no project was approved under that law until 2018. Since the enactment of the new law, New York has approved 17 projects; few required going against local restrictions, but the hanging sword of that possibility no doubt sped up some of the projects, as did other expedited procedures under the law. California adopted a similar law last summer.

We also can’t afford to spend years negotiating every project until everyone is happy. To meet our renewables targets, we will need to reform public participation (important as it is) to keep it from paralyzing clean energy development until some elusive form of consensus is reached. And while it may be desirable to compensate neighbors who suffer losses as a result of these projects, this should not be asymmetric; clean energy projects should not have to pay for their negative externalities while (in the absence of a carbon tax) fossil fuel projects do not.

So I think we need to have a serious conversation about what does and does not survive the triage that we must undertake. What do we absolutely, positively have to preserve regardless of everything, and what might we have to sacrifice? These are tough and painful choices. There is no objective, right answer. It depends on a series of normative judgments. We environmental professionals will not be the ones making those judgments, but we can influence them. At a minimum, when there is an important clean energy or climate adaptation project that has some negative impacts and we know how to block or delay it using the environmental laws we have mastered, maybe we should instead refrain from doing that, and get out of the way. When an agency official is curious about some possible obscure impact, maybe she shouldn’t insist that the environmental impact statement study it, and perhaps the courts should excuse the absence.

For many years much of my law practice included litigating against things like highways, landfills, and incinerators. I used to say that I never met an EIS that I couldn’t sue. But the worm has turned. The task before us now is to quickly build a massive amount of clean energy and climate adaptation infrastructure. For these sorts of projects, we need to set aside our tools of obstruction (though of course we should continue using them against fossil fuel projects that have clean substitutes).

This is not all about making sacrifices. The needed energy transition will confer many benefits in addition to slashing greenhouse gas emissions and helping to solve the climate crisis. It will also lessen the conventional air pollution that takes millions of lives globally every year, and the water pollution from many forms of fossil fuel extraction. It will reduce reliance on imported fuels and on the countries that produce them, such as Russia and Saudi Arabia. It will cut down the use of fuels whose prices can fluctuate wildly; high energy prices are one of the core causes of today’s inflation. It will create many jobs; according to the Princeton study, the all-renewables scenario would lead to a net increase of about five million jobs in the United States (after subtracting the jobs lost in fossil fuel industries— mostly gasoline station employees).

I think we also need to set aside a number of illusions about easy solutions that appear to be just around the corner but actually allow us to avoid tough choices such as those mentioned above.

In theory, we could create much of the renewable electricity capacity we need by putting solar panels on rooftops, parking lots, and similar surfaces. In reality only a small fraction of building owners, especially homeowners, will put panels on their roofs, certainly if they have to pay for it themselves up front. We can require new structures to have them, but there is little discussion of mandating their placement on existing buildings that are otherwise not undergoing major work. Cumbersome local approval processes also stand in the way. (In Australia, these installations can be approved online in as little as a day; in the United States it can take months.) Abandoned agricultural and mined land may have greater potential, if it is available for sale and otherwise physically suitable, and solar panels can be floated on reservoirs (“floatovoltaics”). So far at least, “distributed” solar costs around three times as much as utility-scale solar for the same generating capacity, so choices are needed about what to subsidize.

In theory, a price could be put on carbon that will percolate through the economy and transform our energy and consumption patterns; but in reality our political leaders are spooked by increases in the price of gasoline and electricity, and there is little if any indication that they’ll ever agree to impose a carbon price—certainly not one of the magnitude that economists say is necessary to do the job, despite protestations by advocates that the carbon revenues can be distributed in ways that can offset the pocketbook impact. The Inflation Reduction Act of 2022 demonstrates that Congress is all about carrots, not sticks—and not a single Republican member of the House or the Senate voted for even the carrots.

In theory, we could shut down our existing nuclear power plants even though they are operating well, and replace them with renewables and efficiency. In reality, whenever we’ve shut down a nuclear power plant, its electricity has mostly been replaced by natural gas. And much of the new renewables that have been brought on line aren’t able to aid in decarbonization since they’re having to stand in for a reactor that, until it was shut down, was a close to zero-carbon power source.

In theory, we could avoid having to build hundreds of millions of electric cars (with all the minerals needed to build them and the electricity to run them) by switching to mass transit and bicycles. In reality, mass transit and bicycles are wonderful in parts of some cities, but in few suburbs and almost no rural areas, where the densities are too low to support transit and the distances are too great for bicycles except for the hardiest (though the new generation of electric bikes certainly helps). There are many reasons to try to achieve greater densities (reducing racial segregation, improving affordability, consuming less land, encouraging physical activity through more walking and biking), but that is a campaign that has already been fought for decades and has its own withering battles with limited success. In sum, we can reduce the number of car trips, but there are real limits.

After Pearl Harbor, Congress gave immense powers to the War Production Board, and U.S. industry mobilized with stunning speed to produce the airplanes, tanks, and other materiel needed to win the war. But very few Americans were standing in the way. Indeed, the era saw unprecedented unity, and people of all kinds joined the war effort, including women and racial minorities who had previously been excluded from many roles. Unfortunately, today we have a major political party doing everything it can to block action on climate change. Anti-renewables organizations have sprung up, and right-wing media are amplifying their false messages.

Several academics have written about what we need to do to speed up the process. Among them are J.B. Ruhl, Jim Salzman, Jeff Thaler, Alexandra Klass, John Dernbach, Uma Outka, and John Ruple. Some of the suggestions that have emerged are more federal preemption of state and local control over renewables and transmission; more centralized decisionmaking, not just coordination, so that individual agencies can’t hold things up; broader allowance of mitigation when adverse impacts are found; and extensive use of eminent domain, especially for transmission lines.

We could have more use of programmatic EISs (which cover multiple similar projects, not just one) and regional assessments of species habitat and historic sites (necessarily accompanied by considerably greater agency staffing to do all of this) so that individual projects within the studied regions can move quickly. We should also adopt standard assessment and mitigation measures and permit conditions, so that the wheel doesn’t have to be reinvented and renegotiated every time, and impose tighter timelines for project reviews, with default approvals if those timelines are exceeded. Congress could provide for limits on judicial review, perhaps requiring all challenges to projects to be brought in the D.C. Circuit on the administrative record, with a short statute of limitations. Early engagement with disadvantaged communities, tribal governments and Indigenous peoples has also been found to be helpful.

A major challenge is that, in the hands of a pro-fossil fuel president or Congress, most of these tools could as readily be used to hasten the approval of dirty as well as clean energy projects. This further highlights the central importance of electoral politics in addressing the climate crisis.

We can’t afford any more obstacles. I think it’s incumbent on all of us who do understand the frightening magnitude of the climate threat to work to clear the path for the energy transformation we need.

There are some models of laws that have achieved speedy approvals for certain kinds of projects—the Telecommunications Act of 1996 for cell phone towers; the Defense Base Closure and Realignment Act of 1990; the Second War Powers Act of 1942. Whatever it is, I believe we need to move forward in this fashion, and not just plod along with business-as-usual environmental regulation toward a world of killing heat and mass human migration and species extinction. We need to end tradeoff denial. TEF

COVER STORY 2 It’s too late to protect everything. To save the climate, we need to build so much wind and solar that some will go in bad places. Not doing so would be much worse. Rather than climate denial, the environmental community has tradeoff denial.

Intersections: Dismantling Linked Systems of Oppression

Read more about Intersections: Dismantling Linked Systems of Oppression

Author

Lisa Benjamin - Lewis & Clark Law School

Lewis & Clark Law School

Current Issue

November-December 2022

Issue

The novel term intersectional environmentalism may not be familiar for those of us in the environmental field, but the concept is not new. Leah Thomas’s new book The Intersectional Environmentalist: How to Dismantle Systems of Oppression and Protect People + Planet reminds us that the origins of the environmental movement can be found in many different areas, including feminism, labor rights, and civil rights. Thomas’s book crystallizes these movements, and in so doing, her book has popularized the idea of intersectional environmentalism. Thomas herself coined the term intersectional environmentalism and now the term and her book have become popular among both environmentalists and the broader public. Her work is designed to reach a non-specialist audience, and specifically examines the connections among racism, privilege, and the environment.

Designed as a primer for a new generation of activists, this how-to guide has excerpts of interviews, quotes, histories, and resource guides, which are extremely useful as an introduction to the topic, but the book is also pitched at a level that can inform even the most experienced environmental lawyer. This book is a window into the perspectives of the next generation of environmentalists, who see environmental protection as a mechanism for systemic social change. But Thomas uses her own experiences and perspectives to explain how she arrived at intersectional environmentalism, and so provides a personable entry point to the intersectional environmentalist’s world.

Leah Thomas—often known on social media as “Green Girl Leah”—is an environmental activist and eco-communicator based in Southern California. She uses Twitter and other outlets to popularize the relationship between social justice and environmentalism. Her recent article in Vogue was titled “Why Every Environmentalist Should Be Anti-Racist.” She writes there, “Environmentalists tend to be well-meaning, forward-thinking people who believe in preserving the planet for generations to come. They will buy reusable cups, wear ethically made clothing, and advocate for endangered species; however, many are hesitant to do the same for endangered Black lives, and might be unclear on why they should.”

This statement goes to the heart of the motivation for Thomas’s book. Her experience working in environmental science led to her own internal struggle, where she felt caught between fighting against racial oppression, and the struggle for environmental protection. Michael Brown, an unarmed teenager from Missouri, was murdered by a police officer just before Thomas left Missouri to attend university in California. As a Black student in STEM, Thomas found she had to go beyond the classroom to learn about the contributions of people of color to sustainability, and to explore the racial, class, and gender fault lines within the environmental movement. Black feminist theories and intersectional feminist theories she learned outside of the classroom helped her resolve the cognitive dissonance she experienced in her program. She wrote this book in order to counter the lack of representation of Black, Brown, Indigenous, Asian, low-income, LGBTQ+, disabled and other marginalized voices in the mainstream environmental movement.

Thomas’s book is a refreshing reminder of how the struggles of marginalized populations have informed and built the environmental movement. The work covers the feminist movement, and the groundbreaking work of Professor Kimberlé Williams Crenshaw on intersectionalism. Thomas’s work reminds us that intersectionalism, as a tool, was developed by Black women to help Black women feel seen and heard and to validate their everyday existence. Intersectionalism reflects the experience of grappling with two marginalized identities, which lead to double, interlocking oppressions. The theory was developed as a result of research into three court cases which were informed by sexism and racism simultaneously. In Crenshaw’s paper “Demarginalizing the Intersection of Race and Sex,” the professor argues that the lack of consideration, by the law, of the intersections between race and sex left Black women vulnerable and unprotected by the courts. Black, queer feminist Moya Bailey built on this theory to develop “misogynoir”—the theory of how race interacts with and compounds the impact of sexism and misogyny. Intersectional environmentalism builds on these theories (and others such as eco-feminism) to develop an inclusive approach to environmentalism that advocates for the protection of both people and the planet. It argues that social and environmental justice are fundamentally intertwined, seeks to amplify historically excluded voices, and approaches environmental education, advocacy, policy, and activism with equity, inclusion, and restoration in mind.

Thomas employs the intersectional approach in this book, assessing the missteps of the feminist movement by focusing on its unsung heroes in order to improve the prospects for future movements. Excerpts in the book unpack the feminist movement from varying lenses, including the Chicana identity and eco-feminism, and it includes portions of interviews, including one on advice for young Black girls who want to be in the climate space. There is also the Intersectional Environmentalist Pledge, as well as discussion questions reflecting on why solidarity with Black, Indigenous, and people of color (BIPOC) communities is so important.

The book then looks at the history of the environmental justice movement, highlighting the work of Hazel M. Johnson and Dr. Robert Bullard. Thomas makes her points about the intersectionality within the environmental justice movement through an examination of the personal histories that brought both Johnson and Bullard to become leaders of the EJ movement. Thomas takes us beyond the traditional starting point of the EJ movement of Warren County, North Carolina, in the early 1980s, back to the civil rights movement and the 1968 strike by sanitation workers in Memphis, Tennessee. She articulates how the environmental justice movement was born from lived experiences of public health and discriminatory treatment, and connects this movement back to Dr. Martin Luther King Jr.’s protests and his solidarity with sanitation workers. The following chapter extends this analysis by unpacking privilege, drawing from the work of W.E.B. DuBois’s research on the “psychological wage” or unearned social advantages and disadvantages tied to race. The chapter includes some helpful data which bring these points home, including on the gender wage gap, upward mobility, and criminal justice, illustrating how privilege and environmentalism intersect with one another. The chapter covers food apartheid, issues of accessibility and disability, as well as advice for the next generation of LGBTQ+ environmentalists.

The next chapter examines the reality of climate and environmental circumstances on BIPOC communities, with excerpts from interviews with Indigenous, Asian American and Pacific Islander (AAPI), and Latinx advocates and environmental leaders, including from the global South. This chapter illustrates why an intersectional environmentalist approach is so important to systemic crises, which disproportionately affect BIPOC communities. This chapter charts both the historical (from colonization, genocide, slavery, Jim Crow laws, World War II, immigration, and Covid-19) and social determinants (including health, education, and employment conditions) of environmental outcomes for Black, Latinx, AAPI, and Indigenous populations in the United States. This chapter also focuses on specific issues facing these communities, as well as in the global South, such as waste disposal and sea-level rise.

The final chapter covers consumption-based issues, looking at topics such as ethical fashion and veganism. It provides some useful data around veganism and illustrates that the representation of people of color on social media around veganism is sparse. Veganism is portrayed as a white, wealthy, global North phenomenon—despite the fact that 8 percent of the Black population, for example, identifies as vegan or vegetarian in the United States, and globally countries such as India, Mexico, and Brazil have some of the highest percentages of vegetarians per capita. This chapter assesses the human rights, civil rights, and labor rights issues involved in consumption choices. Finally, this section assesses green energy choices and their implications, including lithium mining, biomass, and wind farms sited near Indigenous land in Mexico.

The book ends with a useful intersectional environmentalism tool kit. It includes interviews with advocates and intersectional environmental leaders, advice on how students can get involved, and resources related to digital activism, BIPOC communities reclaiming nature, and other helpful information.

Thomas’s book is a much-needed, accessible, and engaging account of why an intersectional approach to environmentalism is so important. This perspective is one that the next generation of environmental leaders has adopted—and the traditional environmental movement has much to learn from this approach. Thomas’s book looks back, giving appropriate deference to the leaders of feminist, civil rights, and environmental justice movements, but also looks ahead, giving us insight into the perspectives of young people on environmentalism. As Thomas concludes, the future can and will be intersectional.

Lisa Benjamin is an associate professor of law at Lewis & Clark Law School.

Looks at Multiple Systems of Oppression.

The Root Causes We Ignore

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Author

David Hindin - Formerly Environmental Protection Agency, Harvard University

Formerly Environmental Protection Agency, Harvard University

Current Issue

September-October 2022

Issue

drawing of a tree with 4 large roots under water

Readers should be well-aware that we are facing interconnected planetary crises that are eroding the Earth’s life support systems. Human actions—mostly by people in the Global North—are causing multiple crises, such as rapid loss in biodiversity, the filling of oceans with plastics, the conversion of forests into monocultures for agriculture, air and water pollution, climate change, and injustice.

Despite knowing about these crises for decades, we have let them get worse. From an evolutionary standpoint, humans are an extraordinary species, with incredible capacities for intergenerational learning and community cooperation. These capacities have enabled us to create amazing technologies, including altering the Earth to support about 7.9 billion people. We have become the dominant species on the planet, and the survival or extinction of other species depends on our actions. Yet we are on the brink of destroying the planet’s life support systems that we depend on. Why?

My answer is we are not making progress because we ignore the root causes, and thus our “solutions” are not effective. Instead, we uncritically hope that technological innovations will completely offset endlessly increasing consumption and population growth on a finite planet, despite growing evidence to the contrary. I used to believe in this myth myself. In 1986, I began my career at EPA as an enforcement attorney to compel companies and municipalities to install required pollution control treatment. If we could get everyone to use the required treatment technology, we would go a long way toward solving our environmental problems. I soon realized that pollution discharge standards would need to become stricter over time in response to continuing population and economic growth. Even if it were technologically feasible to continuously tighten discharge standards, implementing tighter standards would face huge legal, practical, and political hurdles.

I now see four root causes of our environmental crises, causes that are increasingly the focus of academic literature but rarely discussed in this journal.

The first root cause is that we have created a world that may no longer align with our evolutionary strengths. For more than 99 percent of our 200,000 to 300,000 years as a species, our abilities were well aligned to perceive, understand, and react to the dangers we faced in that world—dangers that were immediate and local.

We evolved in a world in which the dangers that threatened our survival were immediate, easy to perceive with our own senses, and impacted just our local community. In contrast, most of today’s greatest dangers develop over decades, require special monitoring and analysis to understand, and impact not just our local community or region but the whole planet.

Our ancestors did not have to gather and analyze large data sets using scientific theories to understand that the pesticide DDT, lead in gasoline, or burning coal were long-term threats to the ecosystem. Further, our ancestors did not need to understand that the short-term and local benefits from cutting down forests to grow avocados or raise cattle to sell to people in distant lands would generate long-term disasters for the planet and its biodiversity.

Humans are an ultrasocial species. Cooperating within our community in which we are surrounded by our relatives is baked in by our evolutionary biology. Today’s planetary problems mean cooperation must extend to billions of other persons who we will never see or know. This task is not cooperation, but pure altruism. Scientists have pondered whether pure altruism in humans exists: that is, do we make individual sacrifices for the greater good without any expectation that it will benefit us or our close relatives? This question has yet to be definitively answered. Thus, intergenerational cooperation across almost 200 nations and billions of people may be our greatest challenge.

Try to visualize the materials, energy, and land consumed by 7.9 billion people and the waste they produce. Imagine the largest football stadium in the United States at the University of Michigan, packed with 107,000 fans. The world’s population would fill 73,419 of those stadiums. Imagine how many hot dogs they would consume, and toilet flushes they would generate. This is the second root cause of our environmental problems: the huge number of humans today, which only continues to increase. Back in 1969, when we first landed humans on the Moon, our population was 3.6 billion and growing fast. While the annual world population growth rate has decreased from about 2 percent in the 1960s to about 1 percent today, we continue to add about 80 million persons to the planet each year—akin to adding a new Germany each year. This is a huge impact that cannot be dismissed based on a declining population growth rate.

With 7.9 billion humans on a finite planet, the likelihood for conflicts among individuals and groups increases as a simple matter of density. The challenge in democracies of balancing individual liberty with the common good is much more difficult today because of our huge numbers. The late Supreme Court Justice Ruth Bader Ginsberg stated in her dissent in the 2014 Hobby Lobby Stores case: “Your right to swing your arms ends just where the other man’s nose begins.” With 7.9 billion noses, we need to pay a lot more attention to our swinging arms than our ancestors did. For example, the difficulties posed by the Not In My Backyard (NIMBY) phenomenon in building green infrastructure (such as electric transmission lines to distribute renewable energy) should not be a surprise, given that there are more “backyards” in the country today than ever before. Per U.S. Census bureau data, population density in the United States has increased from 29.9 persons per square mile in 1920 to an average density of 93.8 in 2020 (with, of course, huge variation among regions).

Many environmental professionals prefer to ignore human population as a cause of our environmental problems, either because of human rights concerns or the view that the problem is that the affluent countries are consuming more than their fair share of resources (which is true). Yet scientists have long recognized that population growth contributes to environmental degradation, as expressed with the well-accepted IPAT equation from Paul Ehrlich, Anne Ehrlich, and John Holdren’s 1977 book, Ecoscience: Population, Resources, Environment: Environmental Impact = Population x Affluence x Technology.

Most environmental professionals, businesses, and governments ignore two of the variables in this equation, population and affluence, and instead hope technological innovation will save us.

Population is often ignored because of a disturbing history of coercive approaches based on patriarchal, racist, and colonial oppression. Regarding these compelling ethical concerns, Colorado State University ethics professor Philip Cafaro reminds us that there are humane ways to address population growth that do not rely on forced sterilization or single-child policies. Since 2016, scholars have published six books defending the ethical imperative to address population growth. Robin Maynard, director of the organization Population Matters, believes there is a “population denial syndrome” that hinders rational public discussion of population’s role in our planetary crises. Similarly, Haydn Washington, Ian Lowe, and Helen Kopnina explain this denial problem in their 2020 Journal of Future Studies article, aptly titled, “Why Do Society and Academia Ignore the Scientists’ Warning to Humanity on Population?”

One of the best and often overlooked ways to reduce environmental damage is to address human population. Project Drawdown, the global research effort to identify the 100 most effective solutions available today to address climate change, ranks universal education for women and equal rights, which often leads to woman voluntarily reducing their family size, as the second most effective way to reduce GHG emissions. They estimate the total carbon reduction impact between 2020 and 2050 of increasing education and economic equality for women and providing full access to contraception as greater than distributed and utility-scale photovoltaics combined.

I am a huge advocate for converting from fossil fuels to renewable energy, but we are fooling ourselves to believe that energy technology changes alone will address the huge environmental impact from almost 8 billion people consuming the planet’s resources today while we continue to increase by about 80 million persons a year. And renewable energy is not magic: there are huge environmental impacts from the mining and production of wind turbines, solar panels, and storage batteries. There is little recognition about the need to use a circular economy approach in the transition to renewable energy.

As humans expand our consumption of energy, resources, and land, other species are disappearing. For example, there are only 415,000 African elephants alive today, radically less than the 10 million alive in 1930. The biomass of humans and our livestock makes up more than 96 percent of the biomass of all land animals. Just 10,000 years ago, human biomass was barely noticeable. Perhaps you are not concerned that humans have become the dominant species on the planet and that our actions are causing the sixth mass extinction, the only mass extinction caused by one species. This lack of concern for other species has a name, anthropocentrism, which is the third root cause. Our culture increasingly views the Earth and all creatures as resources for human use. We view ourselves as the superior species, with other species having no moral right to exist unless they are of measurable economic value to humans.

Scholar and author Eileen Crist sees anthropocentrism as the deeper cause of our ecological crises. In her 2018 Science essay, she explains that this worldview: “forms the tacit postulate from which people source meaning and justification . . . Human supremacy is the underlying big story that normalizes the trends of more, and the consequent displacements and exterminations of nonhumans—as well as of humans who oppose that worldview.”

Consider a new shopping center or factory built on open land. Most of the insects, animals, and birds that used to live on this land probably died because of the destruction of their habitat. As J.B. Mackinnon explains in his 2021 book The Day the World Stops Shopping, these creatures did not simply pack their bags and move to another home. Unless these creatures were protected by the federal Endangered Species Act, this destruction is viewed as part of human progress. Simply by questioning the need for expanding the built environment, I am violating the anthropocentric worldview, and many persons may dismiss me as a luddite.

Returning to the IPAT equation, we know P, the human population factor, is a cause of global environmental problems, yet we prefer to ignore it when we are looking for solutions. That leaves us with T, technology, and A, affluence, as the levers to pull for addressing our ecological crises. Endless economic growth (affluence) is part of the anthropocentric worldview and so we rarely question the need for increasing affluence. This leads me to the fourth root cause of our environmental problems: our belief that technological innovation will allow us to continue endless economic growth on a finite planet based on our current extract-make-pollute-consume-trash economic culture.

A 2020 meta-analysis by Tere Vaden and five other researchers examined 179 articles to look for evidence where economic growth occurs without concomitant growth in resource use and negative environmental impacts. This concept, referred to as absolute decoupling, is when there is an increase in economic growth, usually measured by GDP, but no increase (or even a decrease) in global material extraction, energy use, and pollution. Vaden’s review of the existing empirical evidence for absolute decoupling finds no support for this concept happening in practice. A separate 2020 review by Thomas Wiedmann and three other scientists finds that the overwhelming evidence indicates that “globally, burgeoning consumption has diminished or cancelled out any gains brought about by technological change aimed at reducing environmental impact.”

The evidence against decoupling (sometimes called green growth) is not new. In 1865, the English economist William Stanley Jevons observed that technological improvements that increased the efficiency of coal use led to the increased consumption of coal in a wide range of industries. He explained that technological progress could not be relied upon to reduce fuel consumption, as once more efficient technology is introduced, the resulting increased demand more than offsets any efficiency gains. The Jevons Paradox is also called the Kazoo-Brooks postulate, rebound, or backfire (although there are some distinctions among them).

Technology has created greater efficiency in material and energy use for many products, such as computers. But the explosion in the growth and use of computers means that resource consumption continues to increase despite the huge efficiency improvements. Christopher Magee and Tessaleno Devezas in a 2017 study reviewed 57 cases of material use for chemical, computer, and energy technology over 20 years and found no cases in which a technological improvement led to global dematerialization. Technological improvements on a per-unit base have reduced resource use and pollution, such as catalytic converters to reduce tailpipe air pollution per mile driven. And the amount of material to make a transistor has decreased significantly, such that silicon use has only gone up 345 percent between 1968 and 2005, while the number of transistors produced has increased much more. Magee and Devezas, consistent with the larger meta-analysis by Vaden, conclude that additional research is expected “to support the major empirical finding reported here—that direct dematerialization due to technological progress will not occur.”

One theoretical way to decouple economic growth from increasing consumption of energy, resources, and pollution generation would be to create a fully circular economy. Since resource extraction and disposal of products remain as economic externalities, and selling more new products drives GDP and corporate profits much more than the four Rs (repair, re-use, repurpose, and recycle), we see little progress on the circular economy. If we were willing to change our economic system to fully internalize the externalities, such as assessing a non-trivial fee on the use of raw materials in manufacturing products and creating extended producer responsibility, then technological innovation might lead to some decoupling and dematerialization. I doubt that voluntary efforts to create a circular economy will work, and may lead to greenwashing, such as the plastics industry promoting their containers as recyclable when the vast majority are not recycled. Lest you dismiss my view as reflecting the bias of a former government regulator, a former senior executive in the clothing industry in 2022 published an article, “The Myth of Sustainable Clothing,” in the Harvard Business Review acknowledging that 25 years of voluntary sustainability efforts in the fashion industry failed to advance sustainability. Instead, the former executive argues government regulation is needed, such as fees on the use of raw materials and replacing GDP with better measures of progress.

Prominent economists have pointed out the serious limitations of GDP as a measure of human progress. For example, if I were to successfully persuade my neighbors to not buy a new second automobile and instead buy a bicycle for local commuting, the result would reduce GDP but lead to improved health from more exercise and less air pollution, benefits ignored by this dominant measure. Alternative measures to supplement or replace GDP have been developed, such as the Genuine Progress Indicator and the UN’s Human Development Index, but little progress has been made on adopting them, as they are inconsistent with the dominant economic ideology. As Robert F. Kennedy stated in 1968 at a campaign speech at the University of Kansas, we continue to measure human progress with a knowingly flawed GDP measure, which counts jails, napalms, and locks for our doors, but does not count our wisdom, courage, health, or happiness.

While mainstream economists prefer to ignore limits to growth and continue to worship at the church of technology and managerial efficiency, ecological economists recognize that continuous economic growth on a finite planet is not possible without huge negative impacts. For example, see books by Jason Hickel (Less is More, 2020), Tim Jackson (Prosperity Without Growth, 2017), and Kate Raworth (Donut Economics, 2017). And courageous economists raised these concerns decades earlier; see Herman Daly’s 1977 book Steady State Economics and the Club of Rome’s 1972 report The Limits to Growth.

The focus on “more is better” is so ingrained in our culture and economy that when growth creates a big problem, the incentive is to not fix the causes of the problem but to create new industries to address the symptoms. Thus, overconsumption has created new businesses to save us from drowning in things we do not need. Consider that in the United States, in my lifetime, the economy has created new businesses to store the things we own but do not really need in about 50,000 storage facilities. These buildings have their own environmental impacts from consuming energy, materials, and land. You can now buy professional services to organize and declutter the things in our homes. There are businesses to sell us containers and shelves and build storage systems in our garages, basements, closets, and attics. And of course, we can pay others to haul away and trash the things that we finally realize we do not need.

These businesses contribute to GDP, and as consumption increases, they will grow—and we will celebrate our growing economy. Meanwhile, our problems get worse as we extract more resources and use more energy and land to produce, transport, package, advertise, sell, organize, store, and dispose of these items that we do not really need. And unlike air and water point source pollution, traditional economic analysis does not recognize excessive consumption as an externality.

Companies may claim they are becoming sustainable by reducing packaging, but their goal is still to sell us more new things. For example, Amazon, like most companies, advertises that consumption of their products leads to happiness, and they even put this message on the side of their delivery trucks. Yet behavioral science shows that once we reach a minimal level of material comfort, more consumption does not increase happiness.

Despite advances in technology, more people increases global consumption of materials, energy, and land, which generates more pollution—and the wealthy are disproportionately responsible for these negative impacts. For example, in 2020, Oxfam estimated that the richest 1 percent and 10 percent of humanity accounted for over 15 percent and 50 percent, respectively, of GHG emissions.

The four root causes I focus on here are not the only causes of our environmental problems. But they could be the key causes that are rarely addressed by most environmental professionals, who continue to believe in the myth that technological innovation will allow endless growth on a finite planet.

This myth may be especially difficult to break because our evolutionary strengths lead us to focus on the short-term costs and benefits within our local communities. The need for more international cooperation to address planetary environmental problems is well recognized, but I worry that this amounts to believing in planetary altruism, which is not an evolutionary strength of our species. We need to create cultures that foster altruism across generations and distant lands.

Some may argue that altruism is the wrong concept and instead say we need international justice and compensation for the less affluent nations, since affluent nations primarily caused our global environmental crises and are continuing to cause more damage with their resource-intensive lifestyles. Yet affluent countries show little indication that they are willing to reduce their consumption of energy, materials, and land, and instead rely on the myth that technological innovation will save us. Less developed countries see the problem differently as they rightfully need to increase their consumption to pull their citizens out of poverty. Resolution of this conflict requires humans to go beyond our evolutionary strengths and figure out how we can address this huge root cause.

The profession should actively engage in discussing these root causes of our planetary environmental crises. Doing so may make some people uncomfortable, as they challenge dominant ideologies. Solutions will require us to figure out how we can live a life today that recognizes the needs of future generations, people living in other countries, and millions of species that we are poised to extinguish. Incremental changes via technological innovation are part of the path forward, but we need big, systematic changes to create solutions. I have briefly touched upon some potential solutions, such as huge investments to advance educational and economic opportunity for women and restructuring our economic pricing to create a circular economy. These solutions are hard because they require behavioral change and challenge the prevailing power structures and our anthropocentric worldview.

If environmental professionals do not lead by addressing these root causes, we risk becoming irrelevant—or worse, part of the problem. The profession should advance a robust dialogue on how to address these root causes. That is our responsibility and opportunity. TEF

CENTERPIECE The four basic causes of today’s planetary crises that this article focuses on are rarely addressed by most environmental professionals, who rely on the myth that technological innovation will allow endless growth on a finite planet.

Climate Change Hits Rural Communities

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Author

Jonathan Skinner-Thompson - Colorado Law School

Colorado Law School

Current Issue

September-October 2022

Issue

Parent Article

Bridging a Rural-Urban Divide

A white person with brown hair smiling at the camera wearing a dark colored polo shirt

It’s no surprise that responding to climate change will require a hard shift away from fossil-fuel dependency. But that shift may have an acute impact on rural communities. Many of these locales face high levels of financial distress and low education rates. That makes it more challenging to grow new economic sectors like IT, healthcare, or finance. Further, many rural communities depend on fossil-fuel revenue to support essential public services, including education. An abrupt shakeup could have an adverse impact.

With the deeper penetration of oil-and-gas operations into rural areas, we are seeing a significant increase in public health concerns. Though air quality in urban areas has steadily improved since 1970, numerous studies report higher concentrations of fine particulates, nitrous oxide, and volatile organic compounds within half a mile of active oil-and-gas wells, and higher ozone concentrations more than a mile away. Many rural areas now have higher rates of asthma and heart disease and higher risks of cancer and pre-term birth.

To compound these impacts, air monitoring in rural communities is significantly lacking. Generally, monitors target urban environments and are placed according to population density and ambient pollution levels. Even monitoring networks that are focused on oil-and-gas emissions fail to target individual well pads (where health impacts are closely linked).

For example, Weld County, Colorado—the most productive oil-and-gas county in the state and part of the newly expanded Denver/Front Range ozone nonattainment area—operates one ozone monitor despite having over 10,000 active wells (and over 44,000 drilled ones). In short, the rural communities that could benefit meaningfully from oil-and-gas pollutant monitoring—those that live near and among the wells—are underserved by the monitoring networks designed around impacts to urban areas.

Addressing oil-and-gas pollution in rural communities, consequently, raises distinctive issues. Deciding whether and where to place monitors (not to mention what kind of monitoring) and what to do about flaring of excess gas implicates challenging technical, scientific, and economic considerations that even the highly educated may not adequately comprehend. Further, documents supporting these kinds of decisions are only available online. Thus, access to reliable internet provides the only real way to engage with decisionmakers. Public hearings are often not required or are held in distant cities.

Most federal and state agencies recognize that environmental justice policies ought to ensure the fair treatment and meaningful involvement of all people in the development, implementation, and enforcement of environmental laws. Fair treatment means that no community should bear a disproportionate share of adverse environmental consequences. Meaningful involvement requires not only access to environmental decisionmakers, but an ability to effectively influence agency choices.

In the case of rural communities, it is essential for agencies to facilitate local participation, because the experience may shed light on the unique challenges those communities face. In some cases, the views of environmental advocates or industry officials do not adequately represent the views of the impacted community. Or members of the community may have divergent perspectives.

Earlier and more frequent engagement is one step toward more robust local participation. But so is providing those communities with the technical expertise needed to meaningfully engage in environmental decisions. Some states offer funding for this kind of support—technical assistance grants may be distributed to frontline communities in California and Colorado. Of course, the grant programs must be simple enough to ensure broad accessibility and cannot operate as just another hurdle.

Although meaningful involvement is just one part of environmental justice, it is a critical piece and one that rural communities may benefit from in unique ways.

Sea Emergency: Climate Change, Trade Subsidies, Small Fisheries

Read more about Sea Emergency: Climate Change, Trade Subsidies, Small Fisheries

Author

Bruce Rich - Attorney & Author

Attorney & Author

Current Issue

September-October 2022

Issue

Last June, UN Secretary-General António Guterres stood beforemore than 6,000 delegates from 150 nations in Lisbon to open the second UN Oceans Conference. “Sadly,” he lamented, “we have taken the ocean for granted and today we face what I would call an ocean emergency.” There have been some positive developments: more nations declaring coastal marine protected areas, and a few successes in promoting sustainable fishing regimes. But overall the trends are alarming.

More than a third of all wild ocean fish stocks are overharvested—a proportion that has increased over past decades—and much of the remainder is close to the limits of biological sustainability. Perverse financial incentives and regulatory failures are depleting world fisheries further. Plastic pollution is a global crisis. The president of Palau, representing Pacific small island states, warned that by 2050 the weight of plastic in the seas will exceed the biomass of all the fish in the ocean.

Climate change is increasing acidification of the oceans, deoxygenation of marine waters, and the impoverishment of marine biodiversity. It is accelerating the world-wide death of coral reefs, as well as the disruption of other critical marine ecosystems such as the coastal spawning grounds of numerous species. The interrelated dynamics of these changes include the warming of ocean waters, the increased absorption of CO2 (forming carbonic acid when dissolved in water), and rising sea levels inundating mangroves and other biologically critical areas. Many nations have fallen short in implementing national commitments under the UN 2015 Paris climate agreement to reduce carbon emissions and to provide financial support for climate mitigation.

The Oceans Conference illuminated not just the interconnectedness of global environmental crises, but also the links of the ocean emergency to perverse incentives embedded in the world political economy. The financial subsidization of the construction and operation of fleets by the world’s major fishing nations has been for decades the single most important driver of overfishing. Too many subsidized trawlers are chasing too few fish.

Subsidies to increase, modernize, and operate fishing fleets account for over $22 billion of the estimated $35 billion of these subventions, and some 80 percent goes to large fishing concerns, enabling activities that otherwise would not be profitable. According to a 2018 paper published by researchers at the University of British Columbia and the University of California at Santa Barbara, without “large government subsidies. . . 54 percent of the present high-seas fishing grounds would be unprofitable.” A form of de facto subsidization involves extremely low wages paid to fish workers in the fleets of some countries, and even the use of forced labor on trawlers.

Days before the Lisbon Oceans Conference, 166 nations in the World Trade Organization finally agreed to reduce some subsidies supporting illegal, unreported, and unregulated fishing, and financial support for harvesting depleted fish populations. But the much larger government aid for capital and operating costs (including fossil fuel subsidies) remains. A French environmental organization summarized the WTO slight of hand: “They closed subsidies for overfished stocks but not for overfishing.”

Many sessions at the Lisbon Conference urged greater support for sustainable management of community-based, small-scale fisheries. SSFs account for over half of the wild fish sold directly for human consumption. Of the 120 million people working in fisheries world-wide, 90 percent are in SSFs. In July, a UN report on the “Sustainable Use of Wild Species,” in preparation for four years by 85 experts from 33 countries, released its summary conclusion. It emphasized two recommendations for fisheries: ending subsidies and providing more support to build up sustainable management of SSFs.

In 2014, the UN Food and Agriculture Organization issued guidelines for sustainable management of SSFs. Subsequently the Ocean Program of the Environmental Law Institute completed a “Law and Governance Toolkit” to help implement the FAO guidelines at the local level. ELI is already working to promote the use of the toolkit by governments in the Pacific through the regional Pacific Community organization of nations, and through partnerships with fishing communities in Mozambique and South Africa.

Helping SSFs addresses both the environmental and social equity objectives of the UN Sustainable Development Goal 14, “to conserve and sustainably use the ocean seas and marine environment for sustainable development.” UN Secretary-General Guterres cited SDG 14 as a raison d’être of the Lisbon Conference, and he deplored that it is the most underfunded of all the UN Sustainable Development Goals.

Sea Emergency: Climate Change, Trade Subsidies, Small Fisheries.

Unpredictable Knock-On Effects of Hot Arctic and Melting Cryosphere

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Author

Craig M. Pease - Former Law School Professor

Former Law School Professor

Current Issue

September-October 2022

Issue

In the words of James Anderson, a scientist best known for his seminal work on ozone holes, “Defining [climate change] as an increase in global mean temperature is the worst way to describe the severity of the problem.” Even fully acknowledging increasing temperature’s direct, devastating, and increasingly apparent impacts on humanity, it is now almost a distraction. The most significant threats arise not from temperature but knock-on effects.

A Rube Goldberg machine is a preposterous, though illustrative, example. You push one domino, other dominos fall, a water bottle is pushed over, a ball rolls, a fire is lit, and eventually a balloon pops. There is a causal chain. But it is long and tortuous. Everything obeys well known natural laws, yet it is nonetheless a practical impossibility to predict what will eventually happen.

The very core of our climate system is now undergoing deep structural changes, because of melting ice in the Arctic and continental glaciers, and because Arctic temperatures are increasing fast compared to the rest of Earth. Cambridge sea ice scientist Peter Wadhams lays out important knock-on impacts of this in his book A Farewell to Ice. Reduced temperature differentials from the Arctic to the equator slow the currents transporting warm tropical water to the North Atlantic, and cause instabilities in air circulation patterns—for example Rolling Rossby’s, which are wanderings in the northern hemisphere jet stream that simultaneously explain abnormally high temperatures in Alaska and abnormally cold temperatures in Texas.

Even a single one of these knock-on effects may have stunningly complicated meteorology, physics, and chemistry. In a 2012 Science paper, Anderson and colleagues lay out how increasing temperature may cause more frequent and violent thunderstorms, injecting more moisture into the stratosphere, which water, through a series of chemical reactions involving anthropogenic aerosols and chlorine compounds, could eventually destroy ozone. Anderson carefully avoids stating that this is certainly a problem, rather asserting it could be a problem. Such honest but unsatisfying conclusions run rampant in the technical literature of knock-on effects.

Methane is a potent greenhouse gas whose atmospheric levels are now increasing at an accelerating rate. It is the focus of C.-H. Cheng and S. Redfern’s recent Nature Communications paper. Methane levels are determined by numerous sources, sinks, dynamics, and feedbacks. It is released into the atmosphere from natural sources (e.g., wetlands), from anthropogenic sources (e.g., landfills and cattle), and from sources that are becoming more important as temperature rises (e.g., permafrost melting). Methane in the atmosphere is removed into sinks (e.g., the oceans). These authors use high quality climate/chemistry models and good data, yet ultimately—like Anderson—reach quite cautious conclusions about how all this works together to determine atmospheric methane levels.

Within the last several years, a team led by atmospheric chemist Y. Zhao has published surprising findings about a methane knock-on effect. Once in the atmosphere, methane gets broken down into chemicals that are not greenhouse gases. Central to that breakdown are hydroxyl radicals, an extremely reactive chemical. Recent discoveries show that carbon monoxide from forest fires reacts with hydroxyl radicals, thereby preventing them from ever disarming methane—hence extending the life in the atmospheric of this potent greenhouse gas. Complicated. Yet only an extremely small chunk of the chemistry, physics, and biology that determines atmospheric methane levels.

Perhaps worse, some knock-on effects self-reproduce—what the technical literature calls positive feedbacks. Effectively, these are daisy-chained Rube Goldberg machines, looping back on themselves. For example, Arctic sea ice melting increases absorbed sunlight and hence heat, thereby further increasing melt of ice and permafrost, causing ever-increasing temperatures, methane releases, and melting ice.

Can all this be made more simple? I think not. The science of knock-on effects is grounded in state-of-the-art models and the best available data, and is careful, thoughtful, and thorough. The science is not deficient. Rather, climate systems are just extraordinarily complicated.

Some knock-on effects will benefit humans. Some will be benign. Most will never be a serious threat. Yet many aspects of knock-on effects are beyond scientific ken. And new and potentially important knock-on impacts keep popping up. Though many quickly self-limit, others are climatic chain reactions, with the potential to spiral out of control.

Human civilization faces a veritable horde of knock-on effects. Within that horde, there may well lurk something truly evil.

Unpredictable Knock-On Effects of Hot Arctic and Melting Cryosphere.

Designing Energy Tax Credits to Drive Greater Emission Reductions

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Author

Joseph E. Aldy - Harvard Kennedy School

Harvard Kennedy School

Current Issue

September-October 2022

Issue

Governments may choose among three types of policies to promote carbon dioxide emission reductions. They can prescribe specific low-emission technologies through regulatory mandates. They can raise the price of fossil energy through carbon tax and cap-and-trade systems. And they can subsidize investment and operation of low- and zero-emission technologies. In the United States, the most politically viable of these types have been subsidies, especially through the tax code.

Since 1992, the federal government has subsidized the electricity output of wind farms and other renewable power plants through the production tax credit, ranging up to about 2.5 cents per kilowatt-hour. In recent years, this subsidy is equal to about half of the average price the wind farm receives from selling its power. The federal government has also used investment tax credits, such as subsidies equal to 30 percent of the costs of installing solar panels and $7,500 for a new electric vehicle.

Subsidies for clean energy technologies have historically faced challenges in delivering the biggest bang for the climate buck. In order to claim tax credits, a business typically needed to have tax liabilities at least as great as the value of the tax credits.

To unlock access to these tax credits, financial companies began providing “tax equity”—financing for a renewable project in which the equity supplier gains returns by claiming the project’s tax credits. A large bank, such as JP Morgan or Bank of America, would then become a financial partner for the project and effectively monetize the tax credits to enable the project to move forward. Providing this financial service comes at a cost: as much as 15 cents of each dollar of taxpayer subsidies for renewable power went to a large bank for this financial engineering instead of the renewable developer.

In the wake of the 2008 financial crisis—and of banks, such as Lehman Brothers, exiting the tax equity market—the American Recovery and Reinvestment Act gave renewable power developers the option of claiming a grant equal to 30 percent of investment costs—effectively equal to the value of the investment tax credit without the need for tax liability to monetize the subsidy. For the first time, wind project developers could claim a subsidy for their investment, instead of their output.

This policy innovation jump-started a decade of unprecedented growth in U.S. wind and solar power investment. On the downside, subsidizing wind power investment, as opposed to wind power output, weakened incentives for wind farm maintenance and optimization necessary to maximize electricity generation. In my research with Todd Gerarden and Rich Sweeney, we find that investment subsidies caused wind farms to produce about 10 percent less electricity than they would under output subsidies.

Recent legislative proposals have attempted to circumvent the need for tax equity without such adverse incentives for output through “direct pay” of tax credits. Under these proposals, a firm with a qualifying renewable project would be deemed as having sufficient tax liability such that the government would directly pay the subsidy under the applicable tax credit. As a result, a wind farm would receive its subsidy for production without having to give up some of its value by entering into a financial arrangement with a tax equity supplier.

The other barrier to maximizing the climate bang for the taxpayer buck lies in the uncertainty about what these subsidized renewable projects displace in the electricity system. If a new wind farm’s output substitutes for electricity generated by a coal-fired power plant, then that delivers twice the emission reductions than if it displaced power from a gas-fired power plant. And if the wind farm displaces power from a nuclear power plant, then it would deliver no incremental emission benefits. Exploiting high frequency, high-resolution spatial data and power system modeling tools could enable the design of modified subsidies that target and value power generation that delivers the greatest emission reductions.

In the absence of more ambitious carbon pricing legislation and in the wake of the Supreme Court’s West Virginia v. EPA decision, constraining Clean Air Act regulations, subsidies may be the most viable near-term policy tool for decarbonization. Modifying such subsidies to be more cost-effective will contribute to deeper decarbonization for a given amount of federal spending, which is critical given the political constraints—especially in a period of relatively high inflation—on public spending.

Designing Energy Tax Credits to Drive Greater Emission Reductions

Zoom Without Muting: Leaf Blower Bans, Restrictions Gain Traction

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Author

Linda Breggin - Environmental Law Institute

Environmental Law Institute

Current Issue

September-October 2022

Issue

Cities and states around the country are reining in the ubiquitous gas-powered leaf blower. The efforts take a variety of forms that include seasonal and time-of-use restrictions, decibel limitations, and outright bans. A District of Columbia sales and use ban kicked in earlier this year. California’s sales ban takes effect in 2024. On another tack, Arizona requires that certain localities restrict blower use to foster compliance with federal clean air standards.

Local enforcement approaches vary considerably. For example, some municipalities have hired dedicated enforcement staff (Princeton) and set up app-based citizen reporting systems (Palo Alto), while others require retailers to notify customers about blower bans (District of Columbia). Some ordinances authorize fines as high as $2,000 per violation (Montclair), but others require warnings for first-time violations (Evanston). Some localities have stipulated that they will only impose fines for gross and repeated violations (Wilmette).

Local and state efforts to address the deleterious effects of blowers, which are now promoted for cleaning out snow, gutters, spider webs, and even rodents, are driven by myriad concerns—climate change, air pollution, public health, and worker safety.

The primary culprit is the two-stroke engine that powers most gas-powered blowers—a technology characterized by James Fallow writing in the Atlantic as “so crude and old, the level of pollution is off the charts . . . because by design it sloshes together a mixture of gasoline and oil in the combustion chamber and then spews out as much as one-third of that fuel as an unburned aerosol.”

Although restrictions on blowers are hardly new—Beverly Hills banned them in the 1970s—climate change is now a key factor driving municipal efforts to reduce blowers’ carbon dioxide and nitrous oxides emissions. Municipal climate mitigation measures range from sponsoring education programs (Charleston) to requiring use of electric blowers in park maintenance (Dallas). Electric blower rebate programs are also popular, including those sponsored by municipally owned utilities such as San Antonio’s CPS Energy.

In addition to greenhouse gases, gas-powered blowers emit a host of air pollutants associated with a wide range of negative health effects. The pollutants, which include hydrocarbons (an ozone precursor), carbon monoxide, fine particulate matter, and benzene, can be emitted in prodigious amounts. Furthermore, blowers can produce gusts as strong as 280 miles per hour, thereby stirring up pollen, pesticides, and other contaminants.

Noise pollution is also a key concern. At certain decibel levels and durations blowers can cause permanent hearing damage.

Taken together, toxic emissions, airborne contaminants, and high decibel noise pollution constitute a suite of environmental and health risks, particularly for workers who regularly operate blowers. Many of these workers—more than half of whom are Hispanic according to a National Association of Landscape Professionals Foundation study—may not be able to secure appropriate protective measures.

For many communities, however, the driving concern is the sheer annoyance factor, which is largely attributable to the strong, low frequency sound that emanates from gas-powered blowers. Quiet Communities, Inc., explains that “low frequency sound travels over long distances and penetrates walls and windows,” which accounts for the intrusive nature of the sound generated by gas-powered blowers.

Blower restrictions are not without critics, who cite the cost to landscapers and point out that electric blowers lack power and need to be recharged frequently. Workforce constraints also come into play, as National Association of Landscape Professionals’ Bob Mann explained to the D.C. Council: “There simply aren’t enough employees to wield leaf rakes to replace the work performed by leaf blowers.”

In response, proponents tout the benefits of alternatives—to wit, raking and mulching—which include habitat preservation for butterflies that lay eggs in fallen leaves. And businesses, including those certified through the American Green Zone Alliance, are marketing a more natural, less manicured style of lawn care that eschews gas-powered blowers.

Nevertheless, new lawn care norms may be slow to evolve. But it does appear that the market is changing quickly. Stanley Black and Decker reports a five-year, 75 percent increase in North American manufacturers’ shipments of electric-powered lawn equipment—a statistic consistent with Expert Market Research’s prediction of “widespread adoption of electric variants.” Furthermore, at least one manufacturer, Makita, has pledged to stop production of gas-powered lawn equipment.

Eventually the market may eliminate the need to regulate gas-powered blowers—but until that time, expect more bans and restrictions.

Zoom Without Muting: Leaf Blower Bans, Restrictions Gain Traction.

Agencies Promote Tools to Shore Up Climate, Clean Energy Agenda

Read more about Agencies Promote Tools to Shore Up Climate, Clean Energy Agenda

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David P. Clarke - Writer & Editor

Writer & Editor

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September-October 2022

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Before the surprise news that Senator Joe Manchin (D-WV) had agreed to a $369 billion climate and tax package, federal agencies confronting significant legislative and legal setbacks were supercharging administrative tools to advance President Biden’s climate and clean energy agenda. As a for instance, responding to the Supreme Court’s ruling in West Virginia v. EPA, the agency’s administrator, Michael Regan, said it can still regulate climate pollution, and would “use all of the tools in our toolbox to do so.”

And a few weeks later, after legislative negotiations with Manchin seemed hopelessly derailed, Biden stated that if Congress won’t act he will take “strong executive actions” to “create jobs, improve our energy security, bolster domestic manufacturing and supply chains, protect us from oil and gas price hikes in the future, and address climate change.” Advancing these diverse goals will require Biden to go into “executive Beast Mode,” Senator Sheldon Whitehouse (D-RI) suggested.

Now that the Manchin deal could mean Biden’s climate agenda will be resuscitated, helping to take the world off what the UN has warned is a “fast track” to disaster, the panoply of tools that agencies are deploying remains highly significant. Among them, the Federal Energy Regulatory Commission’s “clean energy future” initiatives are critical, even if uncertainties lurk in the Supreme Court’s West Virginia ruling.

On June 16, FERC flagged threats to the electricity transmission system from extreme weather. It proposed that transmission providers submit reports on how they assess their vulnerability to cold snaps (remember Texas’s grid failure during the February 2021 winter storm?), heat waves, drought, and major storms. Providers should also identify their mitigation strategies. In a companion proposal, FERC recommended revising a current electric system reliability standard to strengthen long-term planning for extreme weather events. Acknowledging the climate writing on the wall, FERC Chairman Rich Glick commented that the proposals were “necessary to ensure that we are prepared for the challenges ahead.”

In a more far-reaching undertaking, FERC is taking steps aimed at fixing two of the biggest hurdles to building much-needed transmission lines that will be critical for, among other things, bringing online new wind, solar, and other clean energy technologies as they replace carbon-emitting fossil-fuel power plants. Those hurdles are, first, planning for new transmission and, second, paying for it.

Responding to broad support for addressing those and related issues—including support from nine former FERC chairs—the commission in a 4-1 bipartisan vote this April approved what Glick described as the “first effort at major transmission reform in a decade.” They propose replacing a piecemeal, lack-of-planning approach with a long-term, forward-looking transmission planning system that would require electric utilities to identify the transmission needed to accommodate changing resources, such as energy storage and renewable energy, and to consider extreme weather risks. FERC’s proposed new rules for deciding who pays for transmission facilities would draw on a broader definition of benefits that could spread the costs more widely by anticipating, for example, dispersed future generation.

According to Glick, the proposed reforms mark “a critical first step” as the United States “continues to aggressively transition to a clean energy future.” No doubt, FERC’s proposals could provide tools essential to Biden’s beleaguered agenda.

Look for the administration to take diverse measures to keep momentum going despite challenges, such as the Energy Department’s July 13 announcement of $2.6 billion in funding to “slash carbon emissions” through carbon capture and transport programs and DOE’s July 14 announcement of $56 million in funding for solar manufacturing and recycling innovations.

But look, also, for possible further roadblocks that could be thrown up under the West Virginia ruling’s use of the “major questions doctrine” that stipulates Congress must provide “clear” authorization for any broad regulatory action that could be “transformative” to the national economy.

Harvey Reiter, a partner with Stinson LLP, suggests it is premature to say whether anyone will, for example, challenge FERC’s transmission proposal, because the rule is not yet final. But, he adds, in its West Virginia ruling the Court struck down an Obama-era rule EPA had “no plans to implement.” In addition, the Court’s ruling is “virtually standard-less,” so a party could raise the major questions doctrine on appeal to any final FERC transmission rule, Reiter says. Indeed, what constitutes a “major question” is so broad that it “invites parties to make such challenges,” he says—though adding that whether such a challenge would succeed “is an entirely different question.”

Agencies Promise Tools to Shore Up Climate, Clean Energy Agenda.

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