ELI Report
Environmental Law Institute
Current Issue
Issue
2
ELI at COP26
In the face of growing climate litigation, Institute educates judges with the science needed to decide crucial cases
While ELI names Washington, DC, as its home base, the Institute’s policy analysis and educational programming spans the globe. This fall, its efforts reached Glasgow, Scotland, where staff engaged at COP26, the United Nations annual climate summit. ELI hosted and engaged in a number of events, sharing insights on how to strengthen regulation and build the law and policy toolkit for achieving climate solutions.
As part of the summit’s events, the Institute’s Climate Judiciary Program hosted a reception on November 5 to call attention to the critical role of the judiciary in climate action. Despite an increasing number of climate-related cases worldwide, many judiciaries lack a fundamental understanding of the climate science and impacts underpinning these proceedings. CJP is the only project in the world that provides the climate science information and education judges need to make reasoned and appropriate decisions in climate cases.
Held at the Merchant’s House of Glasgow, the historic site of an over 400-year old organization,
the event shared the importance of judicial education on climate science to an international audience. Over 50 attendees joined, including leading environmental judges from around the world, influential climate scientists, leaders of NGOs and foundations, and high-level officials from the government.
On the same day, ELI also hosted a roundtable on ensuring compliance with climate regimes as part of Climate Law and Governance Day, an event co-hosted by the University of Glasgow, University of Cambridge, and University of Strathclyde. The conference gathered the global climate law and governance community to discuss challenges and solutions for implementing the Paris Agreement and other climate obligations.
ELI’s roundtable was chaired by Associate Vice President of Research and Policy Sandra Nichols Thiam and Visiting Scholar Paul Hanle. Speakers included Vice President of Programs and Publications John Pendergrass and Environmental Justice Staff Attorney Arielle King, among other top scholars, judges, and scientists. The group discussed how climate science can inform questions that arise in climate litigation, and how to bridge the gap between science and justice.
On November 6, Associate Vice President Sandra Nichols Thiam also spoke on a panel as part of the half-day event, Climate Change Legislation, Litigation, and the Rule of Law, hosted at the University of Strathclyde. Nichols Thiam spoke on the importance of capacity-building for legal actors and ELI’s experience educating judges, including recent efforts with CJP.
Beyond speaking engagements, ELI staff also attended events held by C2ES, EARTHx, and the Global Judicial Institute for the Environment, and engaged with youth activists and leaders in the climate and environmental justice movements.
ELI’s mission to make law work for people, places, and the planet fills a critical niche in strengthening governance around the world. A U.S. organization with a global presence, ELI continues to collaborate internationally to advance climate and justice solutions.
Bridging governance between countries to protect wetlands
Environmental policies typically do not cross national borders, even when the need for conservation does. One example of this transboundary challenge is the Laguna Madre wetlands, which extends 400 miles from Texas to the state of Tamaulipas in Mexico.
According to the U.S. National Park Service, Laguna Madre is “perhaps one of the most overlooked natural wonders in North America.” The wetland provides critical habitat for threatened and endangered species, including migratory birds between North and South America. But adequate management of this natural wonder is uniquely complicated, in part because Laguna Madre is politically divided between the United States and Mexico.
In November, the Laguna Madre Initiative, ELI’s Ocean Program, and Texas A&M University at Galveston hosted a weeklong seminar to develop a binational agenda for the sustainable use and conservation of Laguna Madre. The project builds on ELI’s experience in restoration in the Gulf of Mexico, as well as the expertise of ELI Visiting Scholar Enrique Sanjurjo. As a former program officer for the Gulf of California at World Wildlife Fund, Sanjurjo worked with partners in the United States and Mexico to create and implement marine protected areas, strengthen small-scale fisheries governance, and protect wildlife.
By convening partners from both sides of the border, the initiative aims to develop an innovative regulatory framework for binational ecosystem governance. The seminar featured presentations from U.S. academics, NGO partners, and government employees, including staff at the National Park Service, the National Oceanic and Atmospheric Administration, and the Texas Park Service.
Representatives from NGOs and the government in Mexico also presented, including officials from Mexico’s National Institute of Fisheries, National Commission on Natural Protected Areas, and the Tamaulipas State Chamber of Industry. Attendees from both countries arrived from academia, government, NGOs, and law.
A roundtable with fishers from the Gulf of Mexico underlined the seminar’s focus on achieving connectivity between all aspects of the Laguna Madre: ecosystems, wildlife, and people. With an eye toward establishing long-term links between policymakers, scientists, and communities, the seminar accomplished important initial steps in facilitating cross-boundary environmental governance in the area.
Local government network helps address compliance needs
When local governments puzzle over a federal environmental requirement, or need help finding resources to prevent pollution, they can turn to the Local Government Environmental Assistance Network. One of EPA’s Compliance Assistance Centers, LGEAN is a “first-stop shop” for municipal government staff and elected officials who need information on environmental management, planning, funding, and federal regulations.
Since May 2020, ELI has managed the network under a cooperative agreement with EPA. The Institute revamped the official website (lgean.net), which provides updated information and resources for local governments, and launched a new podcast and webinar series.
Notable offerings include a half-day Small Community Drinking Water Financing online workshop in November. Small and very small community drinking water systems comprise 80 percent of all community water systems, yet they often face infrastructure barriers to achieving drinking water standards. The event featured EPA officials and financing experts from the Environmental Finance Center at the University of North Carolina at Chapel Hill, who presented strategies for planning, funding, and financing to reach compliance.
LGEAN also hosted a webinar on the use of the federal Toxic Release Inventory’s data for local and tribal governments in October. The webinar detailed responsibilities governments may have in reporting hazardous materials to the TRI, as well as opportunities to leverage TRI data to stay apprised of facilities that may release potentially toxic chemicals. LGEAN’s podcast series covers topics from lead abatement to solid waste.
The network’s offerings are guided by its Project Advisory Committee, composed of leaders from major associations of local officials. They include experts from the Institute of Tribal Environmental Professionals, National Association of Counties, International City/County Management Association, Rural Communities Assistance Partnership, and International Municipal Lawyers Association.
Also represented on the committee are the Environmental Council of States, Local Governments for Sustainability-ICLEI, Solid Waste Association of North America, National Rural Waters Association, Water Environment Federation, Association of Clean Water Administrators, American Water Works Association, Environmental Law and Policy Center, and National Association of Clean Air Agencies, as well as representatives from Yale University School of Medicine and New York University School of Law.
Local and tribal governments can use the LGEAN website, provide feedback through the survey and “Ask LGEAN” feature on the website, follow LGEAN on social media channels, and participate in programs.
ELI Points to Litigation at Glasglow Climate Conference
Continually Improving Sustainability
American Chemical Council
Current Issue
Issue
2
Parent Article
We make plastics. Proudly. Our scientists and engineers create the essential materials that enable multiple industries to combat climate change. And we’re focused on doing even better by reducing our carbon footprint in making—and remaking—these materials.
The ongoing evolution from metals, glass, and paper to plastics has raised questions about environmental impacts, in particular waste in our environment and climate effects. While most people agree that plastics make it possible to create better and safer lives, many also ask, “But what about the environment?” People want to know if we can retain the societal benefit of plastics and combat climate change, all the while keeping plastics out of our rivers and oceans.
As America’s plastic makers, we believe we can. At the same time, we can also build on plastics’ significant contributions to sustainability.
On our climate impacts, we’re focused on tackling greenhouse gas emissions from plastic production. Overall, carbon emissions per pound of plastic produced have been dropping. On top of that, we’re engaged in an all-of-the-above strategy to dramatically reduce or eliminate our carbon footprint. We have delivered on similar commitments in the past, including large reductions in hazardous air emissions from plastic facilities.
Most importantly, we’re continually working on materials that enable carmakers, home builders, food manufacturers, aircraft makers, water suppliers, and low-carbon energy producers—a huge swath of our economy—to create solutions to drive down emissions.
The evolution to plastics is occurring in large part due to the efficiency of plastics as a material, which allows us to do more with less. Many industries are using plastic to help achieve their sustainability goals, such as by increasing fuel efficiency, and reducing food waste and GHG emissions.
While studies vary a bit, lifecycle studies—including a 2016 report by Trucost—typically show that use of plastic products and packaging results in approximately 2.5 times less GHG emissions than common alternatives. Likewise, switching back to alternative materials would increase GHG emissions by 2.5 times.
These highly effective materials significantly improve the efficiencies in industries that are key to combating climate change. Lightweight yet strong plastic vehicle components reduce weight and improve fuel efficiency in our cars and trucks. Plastic building insulation improves energy efficiency in our homes and buildings. Long-lasting plastic pipes streamline the movement of water and resist corrosion. Plastic composite wind-turbine blades improve the ability to generate wind power. Plastics protect and improve solar energy panels. Aircraft makers are turning to lightweight plastic composites to improve fuel efficiency (and combat jet lag!). Lightweight, efficient plastic food packaging helps reduce food waste and its immense contribution to GHG emissions. The list goes on.
Frankly, the global community cannot realistically meet its climate change commitments without the help of plastics. In any policy considerations, let’s remember that the use of lightweight plastics typically helps drive down GHG emissions.
On waste impacts, the use of plastics should not be “one and done.” Plastics are made to be remade. We’re working to create a circular economy in which plastics are reused rather than discarded, keeping them in our economy and out of our environment.
We’re investing in new and game-changing technologies that can dramatically increase the types and amounts of plastics that can be recovered for reuse and recycling. Major plastic makers are revising business models and production processes to take advantage of these advanced recycling technologies. We want to recover and remake as much plastic as possible. These technologies can transform how numerous plastics are made by replacing virgin fossil resources with used plastics, improving sustainability, conserving resources, and further driving down GHG emissions.
To smooth the way, we actively support federal and international policies to develop low-carbon, circular solutions that help keep waste out of our environment. In the United States, we’ve called on Congress to support “5 Actions for Sustainable Change,” a plan the American Chemistry Council released in July that will help usher in a circular economy. Among other provisions, these actions would require recycled content in plastic packaging and raise private funding to help fix our nation’s broken recycling infrastructure—we can’t recycle the plastics we don’t collect.
We’ve also called for an international agreement to end plastic waste in the environment. Governments worldwide should push for negotiations on a treaty that would accelerate a transition to a circular economy by creating universal access to waste collection, and expanding the infrastructure to collect and repurpose plastics. This treaty should require all nations to agree to eliminate plastic waste while providing flexibility to meet the needs of individual nations. Multiple governments, including the United States, have announced support for the United Nations Environment Assembly to approve negotiations on such a treaty at its February meeting.
While we’re proud of the materials we make and our contributions to sustainability, we know we can do even better. And we would welcome considerably more attention paid to plastics and sustainability.
Incentives Take Center Stage, With Mandates an Endangered Species
Sussman and Associates
For decades, the holy grail for climate advocates has been a binding cap on emissions—one that declines over time and aligns with national emission goals. However, this tool has never been broadly accepted and recent legislative and legal developments threaten to further limit its role in national climate policy. In the absence of mandates, we are turning to less-prescriptive tools that incentivize but do not require emission cuts. How these tools perform against our ambitious targets for greenhouse gas reductions is the central unknown in climate policy.
The best known mechanism for setting mandatory limits on GHG emissions is cap-and-trade. While it has been used successfully for conventional pollutants under the Clean Air Act and adopted by California and Northeast states for GHG emissions, intense opposition to cap-and-trade doomed the comprehensive 2009 Waxman-Markey climate bill and effectively foreclosed national climate legislation for over a decade.
To fill the legislative vacuum, the Obama administration adopted the 2015 Clean Power Plan for the electric power sector under the CAA. The CPP set state-by-state emission budgets for electricity generators premised on increased reliance on natural gas and renewables to replace coal. However, the CPP was stayed by the Supreme Court in 2016 and abandoned by the Trump administration.
The Biden presidency revived an expansive climate agenda, pledging to reduce emissions by 50-52 percent from 2005 levels by 2030. This aggressive goal demanded ambitious climate policies and, as in 2009, Democrats turned to Congress. A favored legislative option was an enforceable national clean energy standard that would set progressively more stringent targets for “clean” electricity.
However, the CES did not meet the strict criteria for the Senate budget reconciliation process, the vehicle for advancing the administration’s comprehensive Build Back Better package without a filibuster. To satisfy Senate rules, Democrats substituted the Clean Energy Performance Program, a $150 billion system of payments and penalties intended to compel utilities to increase clean electricity to 80 percent of total generation by 2030.
The CEPP was a mandate in fact if not in name and was unacceptable to Senator Joe Manchin of West Virginia, a Democrat whose vote was essential to put BBB across the finish line. Manchin opposed the CEPP as a blunt instrument to force power producers to close coal- and gas-fired power plants by imposing costs that made their operation uneconomic.
At the same time, Manchin signaled his openness to using incentives and subsidies to accelerate clean energy investment. After the CEPP was removed from BBB to mollify him, what remained was a $550 billion non-regulatory package that included $325 billion in tax incentives for clean energy, advanced manufacturing, and electric vehicles. The fate of BBB is still uncertain but there is widespread Democratic support for salvaging its climate package—which may still be enacted either alone or as part of a scaled-back BBB.
The demise of the CEPP prompted renewed interest in controlling utility emissions using existing authorities, but the revival of broad regulatory mandates under the CAA may soon receive a crippling blow. The Supreme Court recently agreed to review a D.C. Circuit decision vacating the Trump replacement for the Clean Power Plan, the Affordable Clean Energy rule, which rejected EPA’s authority to require power plants to convert to clean fuels. The Court’s conservative majority may use the case to hold that such expansive mandates violate the major question doctrine, which disallows federal regulations with sweeping effects on the economy absent clear congressional intent.
If mandates are foreclosed under existing law and are anathema to Congress, financial inducements on the BBB model will necessarily play a more prominent role in reducing emissions. This may not be a bad thing. The utility and transportation sectors are already investing heavily in zero-emission strategies, and an infusion of federal dollars will pave the way for more rapid deployment of renewable power and electric vehicles. But the pace of decarbonization will be driven by market forces as opposed to regulation. Policymakers will thus have limited ability to assure that the beneficiaries of federal largess achieve the rapid reductions in emissions needed to stave off catastrophic climate change. In this new environment, progress will depend on public opinion, technological advances, business leadership, and whether tax breaks and subsidies boost return on investment. Will this be enough?
Incentives Take Center Stage, With Mandates an Endangered Species
Incentives Take Center Stage, With Mandates an Endangered Species
Sussman and Associates
Current Issue
For decades, the holy grail for climate advocates has been a binding cap on emissions—one that declines over time and aligns with national emission goals. However, this tool has never been broadly accepted and recent legislative and legal developments threaten to further limit its role in national climate policy. In the absence of mandates, we are turning to less-prescriptive tools that incentivize but do not require emission cuts. How these tools perform against our ambitious targets for greenhouse gas reductions is the central unknown in climate policy.
The best known mechanism for setting mandatory limits on GHG emissions is cap-and-trade. While it has been used successfully for conventional pollutants under the Clean Air Act and adopted by California and Northeast states for GHG emissions, intense opposition to cap-and-trade doomed the comprehensive 2009 Waxman-Markey climate bill and effectively foreclosed national climate legislation for over a decade.
To fill the legislative vacuum, the Obama administration adopted the 2015 Clean Power Plan for the electric power sector under the CAA. The CPP set state-by-state emission budgets for electricity generators premised on increased reliance on natural gas and renewables to replace coal. However, the CPP was stayed by the Supreme Court in 2016 and abandoned by the Trump administration.
The Biden presidency revived an expansive climate agenda, pledging to reduce emissions by 50-52 percent from 2005 levels by 2030. This aggressive goal demanded ambitious climate policies and, as in 2009, Democrats turned to Congress. A favored legislative option was an enforceable national clean energy standard that would set progressively more stringent targets for “clean” electricity.
However, the CES did not meet the strict criteria for the Senate budget reconciliation process, the vehicle for advancing the administration’s comprehensive Build Back Better package without a filibuster. To satisfy Senate rules, Democrats substituted the Clean Energy Performance Program, a $150 billion system of payments and penalties intended to compel utilities to increase clean electricity to 80 percent of total generation by 2030.
The CEPP was a mandate in fact if not in name and was unacceptable to Senator Joe Manchin of West Virginia, a Democrat whose vote was essential to put BBB across the finish line. Manchin opposed the CEPP as a blunt instrument to force power producers to close coal- and gas-fired power plants by imposing costs that made their operation uneconomic.
At the same time, Manchin signaled his openness to using incentives and subsidies to accelerate clean energy investment. After the CEPP was removed from BBB to mollify him, what remained was a $550 billion non-regulatory package that included $325 billion in tax incentives for clean energy, advanced manufacturing, and electric vehicles. The fate of BBB is still uncertain but there is widespread Democratic support for salvaging its climate package—which may still be enacted either alone or as part of a scaled-back BBB.
The demise of the CEPP prompted renewed interest in controlling utility emissions using existing authorities, but the revival of broad regulatory mandates under the CAA may soon receive a crippling blow. The Supreme Court recently agreed to review a D.C. Circuit decision vacating the Trump replacement for the Clean Power Plan, the Affordable Clean Energy rule, which rejected EPA’s authority to require power plants to convert to clean fuels. The Court’s conservative majority may use the case to hold that such expansive mandates violate the major question doctrine, which disallows federal regulations with sweeping effects on the economy absent clear congressional intent.
If mandates are foreclosed under existing law and are anathema to Congress, financial inducements on the BBB model will necessarily play a more prominent role in reducing emissions. This may not be a bad thing. The utility and transportation sectors are already investing heavily in zero-emission strategies, and an infusion of federal dollars will pave the way for more rapid deployment of renewable power and electric vehicles. But the pace of decarbonization will be driven by market forces as opposed to regulation. Policymakers will thus have limited ability to assure that the beneficiaries of federal largess achieve the rapid reductions in emissions needed to stave off catastrophic climate change. In this new environment, progress will depend on public opinion, technological advances, business leadership, and whether tax breaks and subsidies boost return on investment. Will this be enough?
Incentives Take Center Stage, With Mandates an Endangered Species
Law Demands Dollars, Standards, and Protocols—and So Too Science
Scientist and Former Law School Professor
Current Issue
Issue
2
Though admitting “climate change poses a monumental threat to Americans’ health and welfare,” the defendant has substantially prevailed in Juliana vs. United States, a federal public trust case. The science here is overwhelming. Yet the 9th Circuit opinion, and the district court opinion it overturns, make only passing reference to climate science; their legal analyses concern the major question doctrine, standing, and due process.
Even so, the roots of the Juliana courts’ analyses reach deep into science, and also economics. It is instructive to contrast Juliana to three other recent natural resource trust cases, where those protecting the resource substantially prevailed:
First, in Kirby Marine, concerning an oil spill in Galveston Bay by the named firm, pursuant to the Oil Pollution Act of 1990, the United States and Texas were named trustees for various natural resources, including dolphins, birds, water, and beaches. The Natural Resource Damage Assessment, completed under the OPA and its implementing regulations, contains a detailed post-mortem and toxicity analysis of dolphin carcasses recovered after the spill. The company entered into a consent decree to pay $15 million.
Second, the state supreme court decision in Pennsylvania Environmental Defense Foundation vs. Commonwealth of Pennsylvania, from July 2021, is grounded in a state constitutional amendment naming the commonwealth as natural resource trustee. Although there is much science on environmental harms of oil and gas production in the decision, the entirety of the dispute concerned the disposition of money from oil and gas leasing on state lands. The court’s decision was guided in substantial part by private trust law.
In both Kirby Marine and Pennsylvania Environmental Defense, by the time the court saw the case, all the complexity and nuance and detail of the natural resource science had been reduced to one variable—dollars. This is reminiscent of federal agency cost-benefit analyses, which too focus on dollars.
Third, in Hawkins vs. Haaland, a 2021 D.C. Circuit opinion, the dispute concerned the U.S. role as trustee for Indians. Here, the metric capturing the resource in dispute was not dollars, but water. The court resolved the case by drawing on Indian and water law.
Dollars, water, and fish are all readily measured. But so too is atmospheric carbon dioxide. Yet in Juliana, the court refused to act to protect the natural resource. Why?
Metrics and standards—key elements of both legal and scientific methodologies—are central and explicitly discussed in the Juliana opinions. The district court, though finding for the plaintiffs, undertook an in-depth analysis of the major question doctrine, including especially what is called the 2nd Baker factor, “a lack of judicially discoverable and manageable standards for resolving” a controversy. Similarly, the Ninth Circuit’s standing analysis references “metrics” and “standards,” and quoting the Supreme Court in Rucho, states that “‘a constitutional directive or legal standards’ must guide the courts’ exercise of equitable power.”
It’s more than just standards. To have a standard, one must standardize. Yet the evidence underlying a typical environmental dispute is messy, idiosyncratic, and not readily comparable to evidence in other cases. How to standardize?
Legal protocols, like scientific protocols, funnel messy data through a process, filtering out a good chunk of the idiosyncrasies, leaving as a residue evidence that is standardized, and more comparable. This greatly simplifies resolving disputes.
In sharp contrast to Juliana, in these three cases the courts found and employed specific legal protocols setting a standard of conduct, which it used to resolve the dispute. In the first case, the protocol is embedded in the Oil Pollution Act’s NRDA and associated regulations and agency practices. In the second case, the protocol consists of the statutes and case law of private trust cases. In the third, the protocol was more diffuse and implicit, being Indian treaties and water law.
Existing legal standards and protocols work decently, if imperfectly, to resolve environmental problems that are small, unwanted economic externalities. Alas, climate change is no ordinary environmental problem. It is a systemic threat to the very society and economic system that created it.
The Juliana courts looked for relevant standards and protocols, and could not find them. They do not exist.
Law and science are both creatures of the larger society in which they are embedded. These natural resource trust cases exhibit a profound and systemic infestation of economic markets into the standards and protocols of both law and science, thereby neutering the very institutions needed to halt climate change.
Law Demands Dollars, Standards, Protocols—and So Too Science
It Takes Five
Subtitle
The Drama of a Supreme Court Blockbuster
Tulane University
Current Issue
Issue
2
This book is a tale of the Supreme Court’s most important environmental case, Massachusetts v. EPA, decided in 2007. Scholar Richard Lazarus—for 25 years this magazine’s skillful and engaging courts columnist—is an ideal person to tell the story. The Rule of Five: Making Climate Change History at the Supreme Court becomes more than a history; it is an exciting read—like a novel, with appealing characters and an ever-shifting plot.
Today a professor teaching Supreme Court advocacy at Harvard Law School, Lazarus trained at the Office of the Solicitor General, learning the preparation and presentation of High Court cases. He went on to argue environmental cases himself before the Court, representing both government and environmental groups. He even won more than a few before a bench that is largely hostile to environmental causes.
In contrast, Massachusetts v. EPA was launched by a small-town lawyer who had never studied or practiced environmental law, and of whom no one had ever heard: Joe Mendelson. His complaint alleged a single violation of the Clean Air Act’s requirements to list pollutants, in this case carbon dioxide. To the astonishment of the entire environmental law community, he won in federal district court. At this point, all the major environmental litigating organizations intervened, and literally took over the case. From then on it was in the hands of the pros.
Mendelson’s victory did not last long. The D.C. circuit reversed the trial court in a two-to-one decision. Judge David B. Sentelle held EPA had no duty to list carbon dioxide as a pollutant, while Judge A. Raymond Randolph found that the plaintiffs had not shown sufficient personal injury to be able to sue in the first place. In this odd posture, the case went up to the Supreme Court.
At this juncture a “Pistol from Minnesota” (Lazarus’s label) entered the case: Lisa Heinzerling. An honors graduate from Princeton, her credentials as a scholar, a litigator, and a superb writer were impeccable. In effect, she shaped the case. Heinzerling wrote the briefs, and developed both their focus and their arguments. She knew the case better than anyone on either side. She had every reason to believe that she would be the best choice to stand before the nine members of the Supreme Court, five of them Republican appointees with a negative record for environmental decisions. But there was a hitch, and it came from Heinzerling’s client, Massachusetts.
The state itself played a dominant role in the case. It was losing thousands of acres of shoreline. The great sand dunes of Cape Cod were being eaten away by more frequent storms, and the city of Boston, at sea level, was highly vulnerable as well. The harm that Massachusetts was experiencing provided instant and incontestable standing.
Massachusetts also had a superb attorney general’s office, and within it a highly experienced litigator. James R. Milkey also had the advantage of not appearing as a hired gun, but as a public official defending his state. What emerged was, in Lazarus’s words, a “beauty contest” between Milkey and Heinzerling. For Milkey, and perhaps for Heinzerling, the competition became “highly personal.”
Milkey then argued the case before three moot courts. He described each as having “its own level of pain.” The three moot benches included the best attorneys and judges that could be found, but they were not hostile. Nonetheless they threw questions at him that were far stronger than those he would face from the justices.
Despite Milkey’s poor showing, his competition with Heinzerling could have been a bloodbath. At which point she did an amazing thing. Within weeks of the date of argument, she sent an email to all of the attorneys assisting in the case, withdrawing from the opportunity to make the argument.
Lazarus writes of this moment with considerable compassion: “Anyone in Heinzerling’s position would have been understandably upset. She had extraordinary academic credentials, had worked hard on the case, and had produced excellent work, only to be labeled too inexperienced.”
When he came before the Supreme Court, Milkey rose to the occasion. “Standing before the actual justices,” Lazarus writes, “Milkey clicked into high gear. The failed moot courts were history.” Milkey opened with two introductory sentences of 38 words that simply said what he was about to argue, and got no farther. In Lazarus’s words, “Scalia pounced.”
“When is the predicted cataclysm?” Scalia asked, clearly mocking the notion. He then suggested that there was no consensus on how much of it was attributable to human activity. Or attributable to the United States, or to auto emissions within the United States. Then he asserted that the “catastrophe” was not “right now,” which of course would defeat the immediacy necessary for standing. Finally, Scalia stated that carbon dioxide could not be lawfully regulated because emissions rise to the “stratosphere.” Milkey politely interjected that the word is “troposphere.”
From here on out it was all downhill sledding for Milkey. Justices Roberts, Thomas, and Alito could not touch him, except for indicating that they didn’t like his argument or perhaps the whole notion of climate change. There were clearly four votes to uphold the Court of Appeals. Then came Justice Kennedy.
Milkey’s entire argument was pitched to Kennedy, who had a firm preference for state authority and state remedies. The Supreme Court had supported this authority in a 1922 case called Tennessee Copper. Here was Massachusetts, which was suffering great harm from climate change, but with no ability to do anything about it. This would swing Kennedy and win the case.
After the hearing, the justices drafted their opinions. The dissents were longer than the majority opinion favoring the petitioner. According to Scalia, there was no standing. Climate change was not imminent, nor had any harm yet occurred, nor was the United States a significant part of it. Every criterion of the (largely Court-invented) doctrine of standing—causation, harm, imminent harm, and remedy—was lacking. Case closed.
Chief Justice Robert’s dissent went to the other half of the case. Even if the plaintiff had standing, they could not compel EPA regulation. The Clean Air Act required EPA to regulate six “criteria pollutants,” but carbon dioxide was not one of them. EPA had no authority to regulate CO2 emissions even if it wanted to.
The case unfolded within a maelstrom of media coverage, editorials, and more than fifty briefs of amicus curiae written in support of both sides, so that in effect they neutered themselves. Despite the storm, the litigation boiled down to two dominant players on the side of Massachusetts: Milkey and Heinzerling.
As seen above, each of the two—rivals until the very end for the honor of arguing the case before the court—brought a great deal to the case. Milkey, an experienced litigator, flopped in three moot court performances before three different panels of judges. But when game time arrived he came suited up and ready to play. According to Lazarus’s book, he emerged a star, debating the likes of Scalia and Roberts to a standstill.
Heinzerling, for her part, did virtually all the spade-work on the case. As Lazarus also describes, she succeeded in arguing for a single brief in order to keep the issues focused; then wrote a powerful brief; then developed the strategy in tandem with others involved to focus—not on the issue of climate change at all—but rather on Kennedy and his penchant for the rights of states. This focus gave Milkey a strong advantage before the swing justice.
In the end, for all of their competition over oral argument, these two lawyers became the Dynamic Duo. It is more than possible that this case could never have been won without the two of them, working together.
And so, Massachusetts v. EPA closed with a double-bang, a ringing victory on standing to sue, and a virtual command to abate climate change. Whether either of these two victories will endure is an open question. The abatement was of course stymied by President Trump, who even denied that climate change was happening. The Congress has been no more successful, although its failure to move can be attributed to the steadfast opposition of one coal-state senator.
Which leaves the Supreme Court. It is, however, no longer balanced between five Republican-appointed justices and four Democratic-appointed justices. It is now dominated by six Republican appointees, a virtual guarantee that the liberal standing to sue of Massachusetts will be replaced with something more like the can’t-get-to-court-no-matter-how-hard-you-try of Scalia’s dissent.
Nor is this Court likely to support the abatement of climate change. Nothing it has yet decided even smells of its favor on this issue. The current test case on climate change is that of the children’s suit, Juliana v. United States. It has been to the High Court two times with remands, in each case, virtually ordering the courts below to kill the case altogether.
The best one can do now is to hope, and to hope that hope will suffice. And so this review ends, with the uncertainty that accompanies almost all difficult things in life.
This is my last review for the Forum. After many years, and many reviews, I have not only found the books I reviewed enjoyable to read, but also found them useful citations and jumping-off-points for more extensive articles. I have even assigned them as readings in my classes. Now it is time to step away from this small stage. It has been a wonderful run.
Oliver A. Houck is professor of law and David Boies chair in public interest law at Tulane University.
Oliver Houck on the Tale of a High Court Blockbuster
Net-Zero Not Yet in Sight After Conference of Climate Parties
Writer
Current Issue
Issue
1
Call it a Glasgow half empty. During a press conference previewing the COP26 summit, President Biden’s climate envoy, John Kerry, asserted, “It’s not inconsistent” for Biden to ask the 13-member OPEC cartel to boost oil production while asking other countries and companies to curb their oil consumption.
According to Kerry, Biden only wants OPEC “to boost production in this immediate moment,” not long term. The “temporary” boost will keep the economy moving and generate revenue to “help pay for the transition” to the administration’s target of net-zero greenhouse gas emissions by 2050.
But it’s not just Biden’s OPEC plea that offends advocates demanding a swift end to oil and gas development. In a November statement published after the Bureau of Land Management announced new oil and gas leases on the federal lands of seven western states, environmental groups condemned what they regarded as “hypocritical” administration policies. WildEarth Guardians’ energy director, Jeremy Nichols, charged that Biden “is talking a good talk on climate action,” but, in reality, his administration “is actively working to fan the flames of the climate crisis by selling more public lands for fracking.”
Similarly, a group of scientists in a letter to Biden implored him to “end the fossil fuel era” and faulted eight specific administration policies as inconsistent with the urgency demanded by climate change’s “existential threat.”
Federal land oil and gas production accounts for only 6 percent of total domestic oil and 8 percent of total domestic gas. But critics say that amount adds to a growing climate crisis. In May the Paris-based International Energy Agency, once deemed a fossil fuel champion, issued a warning that achieving net-zero GHG emissions will require a rapid end to new oil and gas projects and no sales of new gasoline- and diesel-powered vehicles after 2035. Under a net-zero pathway, “No new coal mines or mine extensions are required,” IEA added.
Although Glasgow host UK Prime Minister Boris Johnson said that the new climate deal marked “the death knell for coal power,” the final COP26 text was amended to state that coal power would be phased “down,” not “out,” as originally proposed. Disappointed critics said the deal won’t limit global warming to 1.5 degrees Celsius by century’s end, thus pushing the world into the “disastrous” climate change zone.
Under COP26, by the end of 2022 countries will republish climate plans that set more “ambitious” goals. But as of now, emission reduction targets set by industrialized nations after the 2015 Paris climate accords were still not being met, and even if they were fully met, says IEA, it wouldn’t be enough to achieve net-zero by 2050.
Calls for aggressive policies notwithstanding, Big Oil sees a robust petroleum future. According to a spokesman for the American Petroleum Institute, “Credible studies from all sides affirm that natural gas and oil will continue to play a significant role in powering the global economy for decades to come as we work toward a lower-carbon future.” That being the case, “We should be focused on encouraging, not hindering, American energy development,” the spokesman says, and should look to U.S. producers, not OPEC, to meet growing domestic demand for “affordable, reliable, and sustainable energy.”
Biden deserves credit for trying to advance a net-zero transition in the face of extraordinarily difficult political challenges. The $1.2 trillion bipartisan infrastructure legislation Biden signed into law is “a critical step” toward net-zero, the president said in a statement declaring that a renewed American leadership in Glasgow “raises the ambition” for the United States to tackle the climate crisis.
Among its miscellaneous climate- and clean energy-related features, the law contains billions of dollars for flood mitigation and coastal restoration, for modernizing the electric grid, for zero- and low-emission buses and ferries, as well as electric school buses, and $7.5 billion for building a nationwide network of plug-in electric vehicle chargers.
Biden also deserves credit for advancing the Build Back Better Act, which at press time was pending in Congress. In a post-Glasgow dear colleague letter Senate Majority Leader Charles Schumer of New York described the bill as “the cornerstone” of America’s renewed climate leadership that Biden touted. The proposal to spend $1.75 trillion over 10 years on Democratic priorities, including $500 billion fighting climate change, was scaled back from a $3.75 trillion initial bid, and its key program aimed at replacing coal- and gas-fired power plants with wind, solar, and nuclear energy, was also dropped.
Clearly, it’s a long road to net-zero.
Net-Zero Not Yet in Sight After Conference of Climate Parties
A Clear and Present Danger
Former Chair of the White House Council on Environmental Quality
Current Issue
Issue
6
During the Carter presidency, the scientific community was increasing the alarm about climate change resulting from emissions of carbon dioxide. The seeds planted by the administration to stimulate efficiency and renewables could have yielded a smooth transition toward sustainable energy and climate security. This is the story of how that didn’t happen
I have been retained pro bono by Plaintiffs to provide expert testimony regarding the historical knowledge of the U.S. federal government (including Defendants) of climate change, climate science, and alternative pathways to power the nation’s energy system other than fossil fuels. I will also testify about the decisions made by the U.S. federal government to devise and pursue energy policies and, in particular, to maintain a fossil-fuel-based energy system.
By the end of the Carter administration in January 1981, more than four decades ago, it was already very clear that:
- Defendants knew the basic science of climate change and knew that the continued burning of high levels of fossil fuels would lead to climate danger; and
- Defendants knew of pathways recommended by experts within government and others to transition away from fossil fuels, including through conservation, efficiency, and solar and other renewables.
Notwithstanding this, Defendants continued from the Carter years to the present to plan for, support, invest in, permit, and otherwise foster a national fossil-fuel-based energy system. . . .
For the year 1976, the year President Carter was elected, the United States relied on fossil fuels for 91 percent of primary energy consumption. In 2019, three years into President Trump’s term, the United States was still overwhelmingly dependent on fossil fuels—80 percent. During this 43-year period, the seeds planted during the Carter administration regarding efficiency and renewable energy could have yielded a smooth transition toward an outstanding U.S. climate performance and global leadership in climate action. Instead, those years saw only negligible action to actually reduce U.S. fossil emissions and only modest actions to promote alternatives, with the result that U.S. CO2 emissions from energy consumption have gone up, not down, climbing by about 16 percent from 1975 to 2019.
Defendants’ actions on the national energy system over the past several decades are, in my view, the greatest dereliction of civic responsibility in the history of the Republic. And it is worse today than ever. This shocking historical conduct, government malfeasance on a grand scale, has left current and future generations enormously vulnerable to substantial danger.
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Before taking up in detail the issues of the federal government’s knowledge of both the climate danger and the opportunity to move away from fossil fuels, as well as its decision to continue pursuing fossil fuel energy, it is helpful to begin by recalling an important event in 1980 at which President Carter spoke. It illuminates the above conclusions well, in addition to my own personal engagement.
On Leap Day in 1980, President Carter’s last full year in office, the president gave an important address at the Second Environmental Decade Celebration in the White House. Before the celebration, I had an opportunity to brief the president on the forthcoming “Global 2000 Report,” which would be released later, in July of that year. In his remarks at the celebration, President Carter noted:
Just before lunch, Gus and I were discussing the long-term threats which just a few years ago were not even considered: the build-up of carbon dioxide; acid rain; the fact that 800 million human beings now suffer from lack of nourishment or disease; the fact that our population will increase 50 percent in the world by the end of this century. . . . These kinds of concerns affect you and me, and on some of them we’ve hardly begun to work on corrective action that might be proposed, much less accepted and implemented. This last decade, however, has demonstrated that we can buck the trends.
Later in his address, President Carter listed eight “preeminent environmental challenges of the next decade” and included on that list “that we faced squarely such worldwide problems as the destruction of forests, acid rain, carbon dioxide buildup, and nuclear proliferation.” President Carter also stressed the need for new energy directions. On his list of preeminent environmental challenges was “that we put this nation on a path to a sustainable energy future, one based increasingly on renewable resources and on energy conservation.” He urged that “energy conservation has got to become a way of life” and that we develop solar and renewable energy sources, noting that “true energy security can only come from solar and renewable energy technologies.”
President Carter was proud to remind the environmental leaders in attendance that day of the 1978 National Energy Act and hoped, he said, that future generations would recognize it as leading a “massive and fundamental shift toward energy efficiency.” He noted that his proposed 1981 budget called for spending over $2 billion on energy conservation, double the 1980 level.
All that said and done, President Carter’s address that day also noted, “It’s important to pursue a broad range of alternative energy sources, including synthetic fuels,” and he mentioned his “highly controversial” proposal for an Energy Mobilization Board to “eliminate unnecessary delays” in approving energy projects. Here, the president was referring in part to the energy development proposals in his famous “malaise” speech of July 15, 1979, where he proposed “the most massive peacetime commitment of funds and resources in our nation’s history to develop America’s own alternative sources of fuel—from coal, from oil shale, from plant products for gasohol, from unconventional [natural] gas, from the Sun.” For instance, the federal synfuels program was created in 1980, had a rough life, and was terminated in 1985 as the oil market improved. The legislation to create the Mobilization Board never passed. Yet in some respects, Carter’s proposals were merely ahead of their time. As I will describe subsequently, oil and gas markets are today awash with unconventional oil and gas thanks in large part to federal support and facilitation. . . .
Looking ahead, much regarding the climate issue was still to happen before the president’s term ended. Still, it is notable that forty years ago the basic outlines of the federal government’s response to the climate issue were already plainly visible: knowledge of the climate science, knowledge of alternatives to fossil fuels, and continued full-throttle support for fossil fuel development and use. This pattern would persist through subsequent administrations.
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The president’s science advisor during the Carter administration was Frank Press, the director of the Office of Science and Technology Policy. Press wrote the president about the climate threat on July 7, 1977, in a memorandum copied to James Schlesinger, who would soon become the first secretary of energy. Press’s memorandum summarized the threat:
Fossil fuel combustion has increased at an exponential rate over the last 100 years. As a result, the atmospheric concentration of CO2 is now 12 percent above the pre-industrial revolution level and may grow to 1.5 to 2.0 times that level within 60 years. Because of the “greenhouse effect” of atmospheric CO2, the increased concentration will induce a global climatic warming of anywhere from 0.5° to 5°C. . . .
A rapid climatic change may result in large scale crop failures at a time when an increased world population taxes agricultural limits to productivity. The urgency of the problem derives from our inability to shift rapidly to non-fossil fuel sources once the climatic effects become evident not long after the year 2000; the situation could grow out of control before alternate energy sources and other remedial actions become effective. . . .
The present state of knowledge does not justify emergency action to limit the consumption of fossil fuels in the near term. However, I believe that we must now take the potential CO2 hazard into account in developing our long-term energy stragegy [sic].
Barely six months into the new administration, the president and his top energy advisor were apprised of the problem and its implications for the U.S. energy system. . . .
In May 1979, Frank Press asked the National Academy of Sciences to investigate this and related issues. The NAS convened a panel under the chair of MIT professor Jule Charney, and the panel met in July 1979. The concentration of CO2 had risen that year to approximately 337 parts per million. The result was the famous Charney report. The Charney report was made widely available at the time both within and outside the administration and used government-sponsored and government-produced scientific research to support its findings. The well-known technical finding of the Charney report was as follows: “We believe, therefore, that the equilibrium surface global warming due to doubled CO2 will be in the range 1.5°C to 4.5°C with the most probable value near 3°C.” This warming, the Charney report concluded, “will be accompanied by significant changes in regional climatic patterns.”
The summary of the Charney report findings was particularly telling in its warning:
The conclusions of this brief but intense investigation may be comforting to scientists but disturbing to policymakers. If carbon dioxide continues to increase, the study group finds no reason to doubt that climate changes will result and no reason to believe that these changes will be negligible. The conclusions of prior studies have been generally reaffirmed. However, the study group points out that the ocean, the great and ponderous flywheel of the global climate system, may be expected to slow the course of observable climatic change. A wait-and-see policy may mean waiting until it is too late.
The DOE released a report in July 1980 on its “Summary of the Carbon Dioxide Effects Research and Assessment Program,” which also reflected the scientific consensus:
It is the sense of the scientific community that carbon dioxide from the unrestrained combustion of fossil fuels is potentially the most important environmental issue facing mankind. Current predictions call for a doubling of atmospheric carbon dioxide as early as the middle of the next century. Climate models, using these elevated levels, predict the possibility of significant dislocations in the global distribution of climate.
This 1980 DOE report echoed the findings of the Charney report, noting that a doubling of atmospheric CO2 was predicted to occur in the middle of the next century. Although uncertainties regarding timing and severity of warming persisted, in part due to the role of the oceans, the DOE report reflected an understanding of the dangerous impacts of the doubling of CO2.
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The need to shift to nonfossil resources was not surprising news to President Carter or the federal government generally. Three years previously, in 1974, Congress had passed the Solar Energy Research, Development, and Demonstration Act, which inter alia called for the creation of the Solar Energy Research Institute. In this legislation, Congress found that “dependence on nonrenewable energy resources cannot be continued indefinitely” and that “it is in the nation’s interest to expedite the long-term development of renewable and nonpolluting energy resources, such as solar energy.” Congress accordingly declared that it is “the policy of the federal government to (1) pursue a vigorous and viable program of research and resource assessment of solar energy as a major source of energy for our national needs.” Congress in 1974 was aware of the need for early commercialization of renewable technologies. The legislation notes that some solar technologies were “already near the stage of commercial application,” and it called for the “demonstration of practicable means to employ solar energy on a commercial scale.”
President Carter moved rapidly in his first year in office to build on this legislation. In 1977 he created the Solar Energy Research Institute and provided it with strong leadership and significant funding. (SERI was renamed in 1991 as the National Renewable Energy Laboratory.)
In April 1977, after just a few months in office, the Carter administration released the National Energy Plan, much of which would find its way into the National Energy Act of 1978. The official Fact Sheet on the president’s program said: “The cornerstone of our policy is to reduce demand through conservation” and added the following statement: “Our energy problems have the same cause as our environmental problems—wasteful use of resources. Conservation helps us solve both at once.”
The National Energy Act of 1978 launched many of the energy efficiency initiatives needed to reduce fossil fuel use and foreshadowed others. It eliminated electricity rate structures that encouraged power use and, similarly, began the process of deregulating natural gas prices. It placed a tax on new gas-guzzling automobiles, created incentives for energy-saving investments, and imposed requirements for demand-side management by electric utilities, among other measures.
At the Council on Environmental Quality, we saw a need to share with the public what government knew about the near- and long-term potential for solar and renewable energy. By April 1978 we had completed a report, “Solar Energy: Progress and Promise,” which we made widely available within and outside of the federal government.
The CEQ solar report defined “solar” to include renewables broadly and stated its goal on the first page of the foreword:
Despite the great potential of energy conservation, it alone will not be sufficient. We must also shift from oil and gas to other sources of supply. Yet, the two most readily available, coal and nuclear power, are constrained by environmental and social problems.
It should not be surprising then that many of us in government and elsewhere are returning again to the questions: What can we reasonably expect of solar energy? And how soon?
The CEQ solar report noted that “unlike coal, solar poses little risk to climate and creates little direct air pollution.”
Our conclusions at CEQ about the solar potential were more positive than we anticipated:
Based on our review, the Council on Environmental Quality has reached some tentative conclusions about what would be reasonable goals for the United States in this vital area. No one’s crystal ball works very well in examining energy futures, but based on available information and recognizing the uncertainties, we view the following goals as optimistic but achievable if we commit the necessary resources to them:
• To make economically competitive over the remainder of the century a variety of solar technologies for the production of heat, electricity and biofuels.
• To meet, by the turn of the century, a significant portion of our energy needs with solar energy. Although the actual contribution of solar energy will depend on an enormous number of decisions by the public and private sectors, we believe that under conditions of accelerated development and with a serious effort to conserve energy, solar technology could meet a quarter of our energy needs by the year 2000.
The CEQ solar report in April was followed by President Carter’s well-known Sun Day speech on May 3, 1978, in Golden, Colorado, the future home of SERI. President Carter began his remarks by noting that his energy proposals to Congress in 1977 had declared: “America’s hope for energy to sustain economic growth beyond the year 2000 rests in large measure on the development of renewable and essentially inexhaustible sources of energy.”
He continued, citing our CEQ solar report in the process:
We must begin the long, slow job of winning back our economic independence. Nobody can embargo sunlight. No cartel controls the Sun. Its energy will not run out. It will not pollute the air; it will not poison our waters. It’s free from stench and smog. . . .
The question is no longer whether solar energy works. We know it works. The only question is how to cut costs so that solar power can be used more widely and so that it will set a cap on rising oil prices. . . .
The Council on Environmental Quality recently estimated that we could meet as much as one-fourth of our energy demands from solar sources by the end of this century, and perhaps more than half by the year 2020. We must continue to make progress toward these goals.
The Department of Energy believes that photovoltaic cells can be competitive with conventional energy sources, perhaps as early as 1990. The Energy Department is working on many projects throughout this country, indeed throughout the world.
President Carter announced major new funding for solar that day, but his major proposals for action came in his June 20, 1979, Solar Energy Message to the Congress, where he outlined, as the message says, “the major elements of a national solar strategy.” “The government-wide survey I commissioned concluded that many solar technologies are available and economical today. These are here and now technologies ready for use in our homes, schools, factories, and farms.”
After making the case to Congress for major coal use to replace oil, President Carter made an equally powerful case for solar and renewables. The goal President Carter announced of 20 percent renewables by the year 2000 was slightly below our recommended 25 percent target but reflected the CEQ’s conclusions that a large shift to renewables was entirely possible with federal leadership.
In short, as early as 1978, the federal government was fully aware of and had begun acting on energy conservation and efficiency and alternative energy development policies, both in response to the oil crises that persisted through the 1970s, including the OPEC oil embargo of 1973–74, and because alternatives to fossil fuels provided greater security and would have avoided the looming threat of catastrophic climate change. . . .
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In 1979, the clash between CEQ’s call for climate protection and the federal government’s fossil fuel energy policies became stark. It was the year the often-cited Charney report was released and also the year President Carter gave his “malaise” address to the nation, with its emphasis on a massive new synfuels, coal to liquids energy initiative. I was personally involved in bringing public and government attention to this entrenched conflict.
In May 1979, I met at CEQ with Gordon MacDonald, one of the United States’ top atmospheric scientists, and Rafe Pomerance, then president of Friends of the Earth. They were seeking a stronger government response to the problem of global climate disruption. I promised to take the matter to the president and requested a reliable, scientifically credible memorandum on the problem from top scientists. The resulting July 1979 report, now more than four decades old, connected policy with scientific understanding of climate change, and was signed by four of our most distinguished American scientists—David Keeling, Roger Revelle, George Woodwell (lead author), and MacDonald.
The contents of the 1979 report were alarming. The report predicted “a warming that will probably be conspicuous within the next twenty years,” and it called for early action: “Enlightened policies in the management of fossil fuels and forests can delay or avoid these changes, but the time for implementing the policies is fast passing.”
Here are some further important excerpts from the 1979 report:
• Man is setting in motion a series of events that seem certain to cause a significant warming of world climates over the next decades unless mitigating steps are taken immediately. The cause is the accumulation of CO2 and other heat-absorbing gases in the atmosphere.
• If we wait to prove that the climate is warming before we take steps to alleviate the CO2 build-up, the effects will be well underway and still more difficult to control. . . . The potential disruptions are sufficiently great to warrant the incorporation of the CO2 problem into all considerations of policy in the development of energy.
• Steps toward control are necessary now and should be a part of the national policy in management of sources of energy.
• The first element of any policy that offers the hope of being effective is conservation. Limitation of the rate of exploitation of fuels is possible. The rate is controlled currently by price, taxation, and regulation. It can be controlled as a matter of policy. All actions of government should be reviewed to determine effects on the total use of carbon-based fuels.
• It is our conviction that an appropriate reaction to the mounting worldwide squeeze on supplies of energy requires consideration of the CO2 problem as an intrinsic part of any proposed policy on energy.
The report was very clear on the urgency of bringing the climate issue into the formulation of national energy policy generally and the future of fossil fuels particularly. Unfortunately, later that same July the president would call for a major program to develop synthetic fuels (oil and gas) from coal and other hydrocarbons. The Woodwell–MacDonald–Revelle–Keeling report to CEQ contained a major warning about this policy. It strongly criticized the president’s programs to increase coal production, stressing that synthetic fuels from coal and other hydrocarbons would release an estimated 2.3 times the amount of carbon dioxide per Btu compared to natural gas. The report made clear that the new synfuels policy the Department of Energy had developed for the president was inconsistent with protecting the climate system.
This shot across the bow of the administration’s plan to greatly expand domestic fossil fuel production was covered well in the press. The New York Times reported on July 10, 1979, that CEQ found the report to be historic and an important policy guiding document to bring energy policy in line with climate protection policy. According to the New York Times:
The new report has been sent to the president and other administration leaders. Gus Speth of the Council of Environmental Quality, a White House advisory group, said, 'The report is an extremely important perhaps historic statement.' He added that he expected the report to be 'very influential in government decision making.' Mr. Speth also said that the report had shown that 'the country needs to address the carbon dioxide issue squarely before going down the synfuels road.'. . . Environmentalists have warned of potentially harmful effects from the rapid development of synthetic fuels, such as the release of toxics into the air and water, the rapid consumption of scarce water resources and devastation of the land for coal and shale mining. But little attention has been paid in the past by environmentalists and policy makers to carbon dioxide, which is odorless, colorless and poses no immediate threat to human health.
Nonetheless, the 1979 report, the media coverage, and our efforts at CEQ did not deter the administration from announcing the synfuels program a few days later. Nonetheless, the central policy issue—climate protection versus fossil fuel development—was joined in the policy arena for the first time. DOE pushed back hard against CEQ and the climate scientists’ 1979 report. As part of its push back, I recall that DOE produced a graph showing U.S. fossil fuel use and CO2 emissions growing so rapidly in future decades that the increment from synfuels development was simply dwarfed.
We were determined at CEQ to continue to press the matter of aligning energy policy with what the climate scientists were telling us was necessary to control climate change. We issued three subsequent reports to that end. Each received considerable media attention. . . .
Our third, and most extensive, effort at CEQ to force a successful integration of energy and climate policy was not completed until around the time that President Carter unexpectedly lost the 1980 election. In “Global Energy Futures and the Carbon Dioxide Problem,” we presented rigorously developed computer models of alternative energy futures and the climate risks associated with them. Based on this analysis, our recommendations to the federal government echoed the “Global 2000” report and were as follows:
• assign a high priority to incorporating the CO2 issue into U.S. energy policy planning;
• increase reliance on energy conservation and renewable sources of energy; and
• undertake new and expanded cooperative international efforts to address CO2 issues.
I summarized these conclusions in my preface to the “Global Energy Futures and the Carbon Dioxide Problem” report:
The CO2 problem should be taken seriously in new ways: it should become a factor in making energy policy and not simply be the subject of scientific investigation. Every effort should be made to ensure that nations are not compelled to choose between the risks of energy shortages and the risks of CO2. This goal requires making a priority commitment here and abroad to energy efficiency and to renewable energy resources; it also requires avoiding a commitment to fossil fuels that would preclude holding CO2 to tolerable levels.
Though the “Global Energy Futures and the Carbon Dioxide Problem” report was issued by a lame duck White House, it was widely distributed in Washington, D.C., and elsewhere and garnered considerable media attention. I was quoted commenting on the report as follows in an article in the New York Times about the report:
Gus Speth, chairman of the council, conceded that there was still some scientific uncertainty about the timing and effects of the carbon dioxide buildup in the atmosphere. But Mr. Speth said that, given the magnitude of the risks and the fact that industrial countries were now formulating long-range energy plans, the carbon dioxide buildup must be considered in energy policy decisions. He said it would be too late to change course once the impact of the buildup began to be felt.
The CEQ report recommended that a safe maximum level (or cap) for carbon dioxide in the atmosphere be established. In the late 1970s, it was thought that the CO2 cap could be 50 percent higher than preindustrial levels, which would be approximately 420 ppm. (Today, climate scientists say that level is too high and that we have already exceeded safe bounds. See below.) The CEQ report addressed favorably a scenario that capped the buildup of CO2 in the atmosphere at 50 percent above the pre-industrial level. On this matter, the New York Times article said:
The level of carbon dioxide is currently estimated at 15 to 25 percent above pre-industrial levels existing around the year 1800. One recommendation of the report is that agreement be reached by industrialized nations on a safe maximum level for carbon dioxide in the air. It suggested a level 50 percent higher than that of pre-industrial times as an upper limit.
The CO2 pre-industrial concentration is generally taken to be 280 ppm. A 50 percent increase would be 420 ppm. In July 2020, the atmosphere’s CO2 concentration reached 414 ppm, and atmospheric CO2 will likely reach 420 ppm, the 50 percent increase mark, in just a few years. Many, perhaps most, climate scientists now believe a 50 percent increase is too risky and would want the CO2 buildup to stay below 25 percent. But it is noteworthy that the CEQ analysts were able to suggest an upper bound that was off only by a factor of two almost four decades ago.
President Carter was, I believe, prepared to tackle the climate issue in some meaningful way had he been reelected. But that was not to be. I think he would have asked his agencies for their ideas and plans on how to reduce U.S. CO2 emissions and would have led the United States on a very different path. It was not to be.
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In parallel with its strong actions on energy conservation and its first-of-a-kind initiatives on renewables, and despite repeated warnings about the climate risks of fossil fuels, the Carter administration vigorously supported not only continued deep U.S. reliance on fossil fuels but also a much larger reliance on coal in particular.
Coal use in the United States did indeed grow dramatically during and immediately after the Carter administration, while oil imports declined equally dramatically for a variety of reasons.
When Carter came into office in 1977, the country was still experiencing “gas lines” shock and stinging from its international oil vulnerability. In the decade before 1977, U.S. oil imports had increased an astounding sixfold, and the OPEC oil embargo of 1973–74 had deeply shaken American consumers and their politicians alike. The oil embargo gave rise to a major push to reduce oil imports by promoting “fuel switching”—shifting electricity generation from oil and natural gas to coal—and, some hoped, by using “synthetic” liquid fuels based on coal, tar sands, and oil shale. These heavier hydrocarbons produce more CO2 per Btu when burned and are thus more harmful to climate. The key policy initiative in Carter’s National Energy Program, a program put forth early in his first year in office, was, as the April 20, 1977, Fact Sheet said, “We must reduce our vulnerability to potentially devastating embargoes. We can protect ourselves from uncertain supplies by reducing our demand for oil, making the most of our abundant resources such as coal, and developing a strategic petroleum reserve.” The administration and the Congress pursued this objective with many policy initiatives, central to which was “fuel switching”—the shift in electrical power generation from oil and natural gas to coal. Fuel switching was among the policies strongly encouraged in the 1978 National Energy Act.
In addition to expanding coal leasing on federal lands, the Carter administration also joined with the Congress in promoting oil leases on the outer continental shelf. In signing the Outer Continental Shelf Lands Act Amendments of 1978, Carter said, “This legislation will provide the needed framework for moving forward once again with a balanced and well-coordinated leasing program to assure that OCS energy resources contribute even more to our nation’s domestic energy supplies.”
At the end of his administration, Carter gathered information from throughout the federal government on what had been accomplished over the four years past. I recall working with CEQ staff to prepare our memorandum to the president responding to this White House request. The result was Carter’s January 16, 1981, State of the Union Annual Message to the Congress. It was an amazingly comprehensive 80-page document delivered to the Congress only in writing. In summarizing the administration’s accomplishments, the first one listed by the president was: “Almost all of our comprehensive energy program have been enacted, and the Department of Energy has been established to administer the program.” Here, regarding legislative enactments, Carter was referring mainly to the National Energy Act of 1978 and the National Energy Security Act of 1980.
President Carter offered an overall summary of U.S. energy policy that illustrates the power and control of the federal government over the national energy system, and the push for fossil fuel development notwithstanding the dire warning on climate change from ongoing fossil dependence:
Since I took office, my highest legislative priorities have involved the reorientation and redirection of U.S. energy activities and for the first time, to establish a coordinated national energy policy. The struggle to achieve that policy has been long and difficult, but the accomplishments of the past four years make clear that our country is finally serious about the problems caused by our overdependence on foreign oil. Our progress should not be lost. We must rely on and encourage multiple forms of energy production—coal, crude oil, natural gas, solar, nuclear, synthetics—and energy conservation. The framework put in place over the last four years will enable us to do this.
He then listed a number of specific accomplishments that underscore the commitment to fossil fuels both by the administration and by the Congress:
• Under my program of phased decontrol, domestic crude oil price controls will end September 30, 1981. As a result exploratory drilling activities have reached an all-time high;
• Prices for new natural gas are being decontrolled under the Natural Gas Policy Act—and natural gas production is now at an all-time high; the supply shortages of several years ago have been eliminated; . . .
• The Synthetic Fuels Corporation has been established to help private companies build the facilities to produce energy from synthetic fuels; . . .
• Coal production and consumption incentives have been increased, and coal production is now at its highest level in history; . . .
• In 1979 the Interior Department held six OCS [outer continental shelf] lease sales, the greatest number ever. . . .
• [T]he first general competitive federal coal lease sale in ten years will be held this month.
The United States was about 90 percent dependent on fossil energy at the beginning of the Carter administration and close to 90 percent at the end; there was only a slight decline in fossil dependency of 2–3 percent. Meanwhile, the fossil fuel mix was shifting toward coal and away from oil imports. Total U.S. energy use had declined slightly, and gross domestic product had grown about 10 percent in real terms, so the overall energy efficiency of the economy had improved. A slow shift to renewables had started. It can be said that the energy policy of the Carter years was for the first time truly “all of the above”—and that included fossil fuels as the vast majority of our energy supply.
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It is clear looking back that, notwithstanding the unsupported climate denialism that has pervaded American politics off and on since the Carter years, and especially now, it is impressive how much was understood about climate change and the role of fossil fuels in causing it by the late 1970s, four decades ago. Enough was known, for example, to suggest a prudent upper bound for the buildup in the atmosphere of the principal greenhouse gas, CO2, a limit that many reasonable people would fall on their knees to achieve today. For President Carter, as he said repeatedly, and for many of us inside the federal government, the path ahead was clear for our climate system and our nation’s security and independence: energy efficiency, conservation, and renewables.
On Ronald Reagan’s Inauguration Day, John Oakes, a member of the New York Times editorial board, penned a warning for the incoming president in an article entitled “For Reagan, a Ticking Ecological ‘Time Bomb.’” The New York Times piece accurately reflected the pivotal moment for our nation’s energy and climate systems and the need to act swiftly to address the looming crisis. In it, Oakes wrote:
The rapid environmental degradation of this planet is a time bomb, as great a threat to both our national and our global survival as is the threat of nuclear annihilation. . . . The environmental crisis alluded to by Mr. Carter and described by a recent Government report, 'Global 2000,' is different in quality and degree from anything that has gone before in the history of the human race.
Oakes went on to stress the climate threat: “The mad rush from oil to coal means more poisoned lakes from coal-produced acid rain, fouler air, and a prospective rise in world temperature (from accumulated carbon dioxide) that could dangerously raise the level of the seas.” He pointed out that these threats “cannot be long ignored by the Reagan administration.” Oakes said this about solutions:
What can we do about all this? In a sequel to 'Global 2000,' called 'Global Future: A Time to Act,' a government task force headed by Gus Speth, chairman of the Council on Environmental Quality, has just proposed a string of recommendations to halt the slide into the environmental disaster that is sure to come if the new President and the new Congress fail to give it their urgent attention. This is a crucial issue—today. Like human life itself, once ecological systems are destroyed, they can never be recovered.
Sadly, we know now that the Reagan administration and the Congress did indeed fail to give these issues their urgent attention.
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BOOK EXCERPT During the Carter presidency, the scientific community was increasing the alarm about climate change resulting from carbon dioxide. The seeds planted by the administration to stimulate efficiency and renewables could have yielded a smooth transition toward sustainable energy and climate security. This is the story of how that didn’t happen.