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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Setting Some Expectations for the Glasgow Climate Change Summit
Author
Bob Sussman - Sussman and Associates
Sussman and Associates
Current Issue
Issue
6
Bob Sussman

As world leaders assemble in Scotland for the 26th Conference of the Parties to the UN climate convention, the enormity of the threat has never been greater. “Human-induced climate change is already affecting many weather and climate extremes in every region across the globe,” according to the Intergovernmental Panel on Climate Change.

With increasing confidence, the science is telling us that these extreme events are linked to rising levels of greenhouse gases in the atmosphere and increasing temperatures. According to the IPCC, average global temperatures are now 1.5° C above 1850-1900 values. We thus have already exceeded the 2015 Paris Agreement target for avoiding the worst impacts of climate change, and damaging warming-related extremes are likely inevitable however much we reduce emissions.

Should we admit defeat and abandon our efforts to reduce emissions? We can’t afford to.

The sobering reality is that, as emissions increase, the world will get hotter, and climate-related impacts will get much worse. The IPCC says that there is “high confidence” in “a near-linear relationship between cumulative anthropogenic CO2 emissions and the global warming they cause” and that “[p]rojected changes in extremes are larger in frequency and intensity with every additional increment of global warming.”

The more deeply we cut emissions, the more we can moderate the scale and severity of damage from climate change. According to the IPCC, if we reach zero net emissions by 2075, the temperature increase by 2100 would be only 1.8° C. But if we do nothing, global temperatures will most likely rise by 4.4° C by 2100. Even if we achieve a 75 percent reduction by the end of the century, temperatures will still rise by 2.7° C.

Obviously, the globe will be better off by reducing net emissions to zero but is that realistically achievable in the next few decades?

Heading into the Glasgow COP, the UN reported that the National Determined Contributions of the 191 parties to the Paris Agreement would increase global emissions by 16 percent in 2030 compared to 2010 levels. A similar analysis by the International Energy Agency projects steadily declining emissions in advanced economies but strong emissions growth in developing countries, leading to rising emissions overall through 2045. There is no doubt that we have the technologies to reverse these trends and drive down emissions, but ending the long hegemony of fossil fuels will take time and massive resources.

The gap between the lofty goals of the Paris Agreement and the unimpressive progress of the global economy toward meeting these goals six years later underscores the daunting challenge facing world leaders in Glasgow. Reaffirming ambitious targets that are not being met would be a hollow gesture — but pushing countries toward aggressive commitments that will dramatically bend the emission curve by 2030 may be a largely futile exercise. The struggle of the Biden administration to deliver on the president’s 50-52 percent emission reduction target for 2030 is a timely reminder that ambitious rhetoric on climate change has rarely been matched by political will.

This reality was largely obscured by the Paris accord, which produced a new architecture for setting national emission goals, seeming agreement on the imperative of avoiding unsafe increases in global temperatures, and a closer convergence between developed and developing countries. However, Glasgow won’t be able to repeat these accomplishments and may instead lay bare the practical political and economic obstacles to rapid reductions.

Aspirational emission reduction goals are effective in marshalling public support. However, goals that are unachievable — such as preventing temperature increases above 1.5° C — may create unrealistic expectations that we can succeed in staving off climate change. This may cause us to deny the inevitability of increasingly severe climate events as global temperatures continue to rise.

Up to now, our response to these events has been to spend more money to fight forest fires, provide disaster relief, and strengthen flood control in vulnerable areas. But these short-term measures sidestep the difficult choices society will have to make as climate impacts worsen.

Will the California Central Valley be unable to sustain the high levels of agricultural production that are critical to the U.S. food supply? As water levels in the Colorado River drop, do we need to restrict population growth in booming areas of Arizona and Nevada? As storms and flooding become more intense, will it become impossible to protect Southern Louisiana? Is it time to stop rebuilding other flooded areas and relocate vulnerable businesses and communities? We need to have these painful conversations before it is too late.

Setting Some Expectations for the Glasgow Climate Summit

Unlocking Opportunity With Policy
Author
Rachel Fakhry - Natural Resource Defense Council
Natural Resource Defense Council
Current Issue
Issue
5
Parent Article
Rachel Fakhry

The new U.S. Nationally Determined Contribution for 2030 under the Paris Agreement puts America firmly back into the global climate Olympics. An ambitious target commensurate with the urgency of the climate crisis, it is set to trigger seismic shifts away from our dependency on health and climate-damaging fossil fuels toward a more resilient, prosperous, and equitable U.S. economy.

In fact, an ambitious NDC is aligned with what improves Americans’ lives. It weds economic growth and the creation of millions of good paying jobs with markedly improved public health, a healthy natural world for our enjoyment, and the avoidance of more destructive extreme weather events. And several rigorous studies, one of which I led for the Natural Resources Defense Council, have demonstrated that it can be met at a modest fraction of our GDP: clean energy technologies are now affordable and reliable enough to replace many of our fossil fuel-reliant assets – oil-guzzling cars, coal-fired power plants, and so forth — for either a modest cost premium or substantial savings.

We therefore stand at a pivotal moment where we can confidently assert that unlocking this opportunity hinges on policy. The primary challenge in cutting our greenhouse gas emissions in half by the end of this decade rests in building the societal and political commitment to the transition. It will require a whole-of-government approach to drive decisive progress at the necessary nonstop pace. One bright beacon is that the federal government has all the necessary tools to deliver the pace of transformation, and many of the policy tools are familiar and have already been enacted in some form. In fact, a pile of rigorous analyses conducted ahead of the NDC announcement converged on this conclusion.

To achieve the pace of transformation, we need to pursue bold regulatory and legislative pathways that include both standards and incentives.

The Biden administration can deliver strong ambition with maximal implementation of existing administrative authority. For instance, the Environmental Protection Agency should pursue an ambitious multi-pollutant power-sector strategy under the Clean Air Act. This bears emphasis considering the overwhelming consensus that the power sector is the engine of the decarbonization of the economy in this decade and beyond as we increasingly electrify our homes and vehicles. In the transportation sector — the highest-emitting sector — EPA is expected to re-grant the waiver repealed by the Trump administration to allow states to adopt their own clean car standards. The agency should also move to quickly restore and strengthen the Obama-era clean car standards, and rapidly adopt new car and truck GHG emission standards to catalyze the transition to zero-emission vehicles. The Department of Energy has sizeable authority in accelerating the adoption of electric appliances in our homes and businesses in lieu of health-damaging gas appliances. The department must pursue appliance efficiency standards, to shift investment decisions toward high-efficiency electric options.

New, far-reaching climate and energy legislation is also critical to cut GHG emissions. Complex congressional political dynamics may complicate the passage of bold legislation. However, a series of independent studies have demonstrated that ambitious climate action would not hinge on Herculean congressional solutions, a la Obama-era Waxman-Markey legislation, but would instead be unlocked by sector-specific policy interventions, many of which already exist. In particular, a clean energy standard in the electricity sector would be game-changing and is a popular, cost-effective means of catalyzing the sector’s transition away from fossil fuels. A stable and long-term tax incentive platform for the range of clean energy technologies, such as electric vehicles and high-efficiency heat pumps and batteries, would be transformational in rapidly shifting consumer choices toward clean options. Achieving the transformation envisioned by the NDC is preconditioned on the large-scale buildout of interstate electric transmission lines and ubiquitous electric vehicle charging networks; legislation must confer robust financial incentives for the buildout of this job-creating infrastructure.

Critically, social commitment to the transition to clean energy can only be achieved if the federal government makes it as much about improving Americans’ lives as it is about averting a climate catastrophe. “Just transition” policies must be prioritized to meaningfully support communities adversely impacted by the decline of fossil fuel-related industries. The federal government should enact incentives for the domestic manufacturing of clean energy technology parts, and prioritize both emissions mitigation and new economic opportunities in pollution-overburdened communities and communities historically shunned from economic growth. Congress should pass President Biden’s American Jobs Plan, which delivers a bold climate vision tying together the host of critical policy interventions.

Solving the climate crisis may be the challenge of our time, but it also presents an unprecedented opportunity to consciously reimagine a U.S. economy that is more prosperous, sustainable, equitable, doesn’t choke its citizens in the name of progress, and does its part in avoiding a climate catastrophe.

It is high time to bring the iconic American ingenuity and leadership to bear and rise to these historic times.

Rachel Fakhry is a senior policy analyst at the Natural Resources Defense Council.

To “Build Back Better,” Biden Must Undo Trump’s Obstruction Legacy
Author
David P. Clarke
Current Issue
Issue
2
David P. Clarke

Given his stated commitment to an aggressive climate agenda as a top priority, it came as no surprise that on his first day in office President Joe Biden signed an executive order to rejoin the Paris Agreement on climate change.

But now the hard work begins of rebuilding credibility and crafting what experts at a Columbia University webinar said must be a realistic plan to decarbonize the U.S. economy by 2050 to avert dangerous atmospheric warming.

During the January 19 online event, Tufts University professor Kelly Sims Gallagher said the Biden administration’s first step in preparing to participate in the upcoming November meeting of the climate convention parties in Glasgow must be the adoption of a robust domestic climate policy. Under Trump, the United States failed to double its investment in clean energy research and development, didn’t meet its pledge to the Green Climate Fund, and isn’t on track to achieve its 2025 climate targets, she said.

The new administration will also have to review the legacy of Trump’s regulatory rollbacks that included weakening more than 125 environmental rules and erecting barriers to further actions. Biden’s administration must advance its environmental agenda while undoing much if not all of Trump’s deregulatory broadside.

Jump starting the process, Biden chief of staff Ronald Klain in a January 20 memorandum to heads of federal agencies called for a “regulatory freeze pending review.” Biden’s appointees must have an opportunity to review and approve new and pending rules to determine whether they raise “substantial questions of fact, law, or policy.” The outcome of that review should be well worth watching.

If agencies want it, there’s no shortage of advice. The Wilderness Society highlighted Trump’s auctioning off the Arctic National Wildlife to drillers, though lease sales drew only three bidders. But in Trump’s closing months oil companies also applied for over 3,000 drilling permits on western public lands, according to the Bureau of Land Management.

Two environmental groups in a “First Things to Fix” report listed five immediate priorities, including rejoining Paris, stricter automobile emissions standards, far-reaching limitations on National Environmental Policy Act environmental impact assessments — the list goes on and on.

Although every administration adopts 11th hour rules to cement its agenda, Trump has “ushered in an unusually large number of energy and environmental policies,” according to a Washington Post analysis, including more than two dozen since losing the election in November.

Among Trump’s closing actions, EPA’s January 6 Strengthening Transparency in Regulatory Science Rule qualifies as particularly egregious, an official with an environmental group said privately. It applies to “the majority of what EPA does” — water, climate change, toxic chemicals, and other protections,

Small wonder that the Environmental Defense Fund and other plaintiffs on January 11 filed a lawsuit asking the court to declare EPA’s rule unlawful and enjoin its enforcement until at least 30 days after Federal Register publication. Describing the regulation as an internal “housekeeping rule,” EPA leaders made it effective immediately.

But, the rule’s “entire purpose” is directed at constraining EPA’s “discretion to consider scientific research” when underlying data are not publicly available. Data underlying human studies that are critical for developing health standards are barred for legal and ethical reasons from public disclosure. The rule is a “substantive restriction,” not mere “housekeeping,” the plaintiffs argue.

But EPA’s Science Advisory Board in its final comment letter recognized the rule’s importance and said in some cases the rule could “reduce scientific integrity,” and on February 1 a U.S. District Court accepted a Biden administration request to vacate the regulation.

And it’s not just 11th-hour rules Biden’s team will have to review. In January 2020 Trump’s DOE published a “process rule” that Biden “will have to unwind” because it hampers upgrading energy efficiency standards for dishwashers, refrigerators, and other domestic and commercial appliances and building equipment, says Joanna Mauer, a senior researcher with the American Council for an Energy-Efficient Economy. As a result of the Trump DOE’s failure to meet more than 20 deadlines for updating efficiency standards, years of carbon emission reductions have been foregone, and economically justifying upgrades are now more complex and slower.

As Trump left the White House to the sound of the military band he had demanded, it was clear at least to some degree the new president will be deflected from building his future-facing agenda by having to undo much of Trump’s backward-moving deregulatory measures.

To “Build Back Better,” Biden Must Undo Trump’s Obstruction Legacy.

Some Historical Context to Today’s Debates on the Climate Agreement
Author
Robert N. Stavins - Harvard Kennedy School
Harvard Kennedy School
Current Issue
Issue
3
Robert N. Stavins

The European Union, China, India, Brazil, South Korea, Canada, and other countries are negotiating the details for implementation of the Paris Agreement, and are developing domestic policies to achieve their respective Nationally Determined Contributions under the accord. At the same time, the United States — under the leadership of President Donald Trump — has announced its intention to withdraw from the Paris Agreement as soon as permitted (November 2020), and has taken significant steps to roll back domestic climate change policies. This may be a good time to place this U.S. government behavior into historical context.

Of course, the history of climate change science goes back at least to Svante Arrhenius in the 19th century, but my focus is not on the history of the science, but on the policy history, in particular, the history of discussions within the U.S. government regarding climate change and potential policy responses.

Some might think that the starting point would be the 1988 Congressional hearings — led by Senators Timothy Wirth and Albert Gore — which the New York Times covered in a long article. That was during the last year of the Reagan administration, but the story really begins more than two decades earlier.

On November 5, 1965, President Lyndon Johnson released a report authored by the Environmental Pollution Panel of the President’s Science Advisory Committee. The report included a 23-page discussion of the climatic effects of increased concentrations of atmospheric carbon dioxide, due to the combustion of fossil fuels, and — interestingly enough — concluded with a proposal for research on a specific approach to responding, namely with what is now called geoengineering.

In his introduction to the report, Johnson emphasized that “we will need increased basic research in a variety of specific areas,” and then went on to state: “We must give highest priority of all to increasing the numbers and quality of the scientists and engineers working on problems related to the control and management of pollution.”

Four years later, Daniel Patrick Moynihan — one of the leading public intellectuals of the 20th century — was working in the Nixon White House, and sent a memorandum to John Ehrlichman, then a key presidential assistant (who subsequently served 18 months in federal prison for his role in the Watergate conspiracy). In the memo, Moynihan referenced the Johnson administration’s report, focused on “the carbon dioxide problem,” described the basic science of the greenhouse effect, highlighted anticipated impacts including sea-level rise, proposed potential policy responses including “stop burning fossil fuels,” and concluded that “this is a subject that the administration ought to get involved with.” We do not know whether Ehrlichman responded.

From today’s perspective in the second year of the Trump administration, it may — or may not — be comforting to recognize that scientific and even policy attention by the White House to climate change goes back more than five decades. Since the Johnson administration, there have surely been ups and downs — through the administrations of Presidents Nixon, Ford, Carter, Reagan, Bush I, Clinton, Bush II, Obama, and Trump.

This list of presidential administrations illustrates that the White House swings between parties. It should also remind us that whether a single four-year term or even the maximum of eight years, administrations are relatively short-lived when judged in historical context.

All of which reminds me of a personal story. In November 2016, just days after the U.S. election, I was in Marrakech, Morocco, for the annual U.N. climate negotiations. I was speaking on a panel assembled by the government of China in their pavilion. Those who preceded me voiced their dismay about the election and their very low expectations for the climate change policy that would likely be forthcoming from Donald Trump and his administration-to-be.

Our moderator from the Chinese government then introduced me to speak, and as I listened with headphones to the simultaneous translation, I heard him say, “And now Harvard’s Professor Stavins will bring us some good news from the United States.” I was dumbfounded. What could I possibly say? I walked to the lectern, sipped some water, took a deep breath, and said to the audience, “When you get to be my age, you recognize that four years is not a long time!”

That will have to suffice as an optimistic conclusion to this column.

Some historical context to today’s debates on the climate agreement.

Environmental Lawyers Pay Close Attention to Trump v. California
Author
Ethan Shenkman - Arnold & Porter Kay Scholer LLP
Arnold & Porter Kay Scholer LLP
Current Issue
Issue
2
Ethan Shenkman

Justice Louis Brandeis famously remarked, “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” That maxim rings as true today as it did in 1932. Nowhere is this more evident than in the tug of war underway between the Trump administration and California. More than ever, environmental practitioners focused on the national stage must stay attuned to developments in the Golden State, and vice versa.

As Trump pursues a deregulatory agenda, California has rushed to fill the void. For example, as EPA reconsiders the Obama-era Clean Power Plan, California announced a suite of state-level measures to achieve its own goal of reducing greenhouse gas emissions to 40 percent below 1990 levels by the year 2030. Among other things, California extended authorization for its cap-and-trade program through 2030, and Governor Jerry Brown has been advocating linking its trading system, and expanding the western electricity grid, to other states. California Air Resources Board Chairwoman Mary Nichols has touted these initiatives as a direct response to the CPP’s withdrawal.

The most notorious example of this phenomenon may be SB 49, the “anti-backsliding” bill, which garnered significant attention, but remains stalled. SB 49 would prohibit a state or local agency from revising its rules to be less stringent than federal environmental “baseline standards,” which are defined as those standards that were in effect before Trump took office. In the event of a federal retreat from that baseline, SB 49 would require California agencies to quickly pass “emergency regulations” without the usual notice and environmental review processes.

California has also sought to compensate for the absence of U.S. leadership internationally. President Trump’s decision to withdraw from the Paris Agreement cannot go into effect until November 2020 at the earliest. But Brown and the governors of 13 other states and Puerto Rico were not inclined to wait, instead forming the U.S. Climate Alliance. The Climate Alliance members, which represent approximately a third of the U.S. population and 22 percent of its aggregate GHG emissions, have each pledged to meet the same reduction goal that the U.S. submitted in Paris. Brown attended the latest climate talks in Bonn, along with key members of the California legislature, and has pledged to pursue climate partnerships with Canada, Mexico, and China.

Practitioners with clients operating in multiple jurisdictions may find themselves navigating a patchwork quilt of state-level regulation. In some cases — as in the field of consumer disclosure and product labeling — “California is not only reacting to national developments, but driving them,” points out Anthony Samson, who heads Arnold & Porter’s government affairs shop in Sacramento. California is the only state with a law requiring disclosure of ingredients for household cleaning products, but “the California consumer products market is so massive that most manufacturers follow its lead for all of its products rather than sell products specifically labeled for California commerce.”

California Attorney General Xavier Bacerra has also jumped into the fray. A study by the Sacramento Bee shows that he has filed 24 lawsuits challenging the Trump administration in 17 subject areas, including multiple actions to forestall regulatory rollbacks at EPA, Interior, and Energy.

Practitioners will also be closely following developments in the area of automobile fuel economy standards. EPA and the National Highway Traffic Safety Administration are considering whether to revisit Obama-era GHG emissions and fuel-economy standards that were originally projected to achieve an industry fleet-wide average of 54.5 miles per gallon for cars and light trucks by model year 2025. California, however, has determined to maintain its standards under a special preemption waiver granted by EPA. To the extent state and federal standards diverge, cooperative federalism may be put to the test, as new questions could be raised concerning the waiver and preemption.

Meanwhile, in perhaps the boldest move to date, California legislators have proposed the Clean Cars 2040 Act, which would require all new cars registered in the state after that date to be zero-emission vehicles.

Tanya DeRivi, director of government affairs for the Southern California Public Power Authority, neatly sums it up: “Our organization has long followed federal and California legal and policy developments on environmental, energy, and tax issues,” she says. “But it has become even more important for our organization to understand the intersection between the two so we can better offer guidance to our members amidst the Trump-California legal and policy battles.” Where will those battles lead? Stay tuned.

 

Environmental lawyers pay close attention to Trump v. California.

World’s Largest Carbon Market Is Scheduled for 2020 Launch in China
Author
Robert N. Stavins - Harvard Kennedy School
Harvard Kennedy School
Current Issue
Issue
2
Robert N. Stavins

China is developing a nationwide carbon-trading scheme which, when launched, will be the world’s largest — twice the size of the EU’s Emissions Trading System and nearly nine times the size of California’s. The new system will help China meet its emissions and renewable energy targets that are part of its Nationally Determined Contribution pledge under the Paris Agreement.

The December announcement from Beijing was greeted in the United States with excited praise from climate activists and skepticism from conservatives. The most reasonable assessment lies between those two extremes.

China’s system will begin with the electric power sector only, but eventually will also include building materials, iron and steel manufacturing, non-ferrous metal processing, petroleum refining, chemicals, pulp and paper, and aviation. Importantly, the system will not be a cap-and-trade system per se (unlike the CO2 trading systems in Europe and California), because there will not be an administratively set mass-based cap of some quantity of emissions. Rather, the trading system will be rate-based, meaning that it will be in terms of emissions per unit of electricity output.

This is also called a tradable performance standard. The government sets a performance benchmark of emissions rate per unit of output, sources receive permits (or allowances) based on their electricity output and their benchmark, and sources are allowed to trade. By regulating the rate rather than the mass of emissions, the standard may help mitigate political concern about constraining economic growth, but it does so by rewarding higher levels of emissions through subsidies. Hence, this approach is inefficient compared with a mass-based cap-and-trade system.

The problems are exacerbated with China’s system because the performance standards are set not only by sector, but by sub-categories of electricity production within the sector. As some categories are, in effect, subsidized by other categories, the cost-effectiveness of the overall system declines. There is a lack of incentive for the carbon market to move energy consumption from coal to natural gas, for example, because of the multi-benchmark approach.

Finally, it appears that allowances will be allocated without charge, at least in the early stages of the program. This has been typical of emissions trading systems in other parts of the world, and may lessen political resistance, but it also will sacrifice potential efficiency gains associated with auctioning allowances and recycling revenues by cutting distortionary taxes.

Despite these limitations, the announcement marks a significant step along the long road of climate change policy developments. The new system will eventually be very important, because of its magnitude and because of the importance of China in global CO2 emissions and climate change policy.

More broadly, the announcement and the eventual launch of the system will have significant effects on other governments around the world — regional, national, and subnational. Some will be encouraged to launch or maintain their own carbon trading systems, and to increase the ambition of their systems.

A frequently stated fear of adopting climate policies, including carbon pricing, is the competitiveness effects of those policies, due to emission, economic, and employment leakage. Since the greatest fear in this realm is that domestic factories will relocate to China, that concern will be greatly reduced — or at least it should be — when and if China has put in place a serious climate policy, whether through carbon markets or otherwise.

So, the best assessment of this new policy lies somewhere between the extremes. The December announcement by Beijing was neither as exciting as some of the applause from climate activists might suggest, nor was the announcement as meaningless as conservatives have claimed.

Rather, cautious optimism seems to be in order. China is serious about climate change, and is thinking long-term. The country appears to be methodically working to develop a meaningful carbon-trading scheme. What is important now is developing a robust system that can be effective, expanded in scope, and gradually made more stringent.

Development of the system has begun, with the real launch of trading likely to take place in 2020, which is a key year for Chinese climate policy for other reasons, as well. In that year, China will release its next Five-Year Plan, and it will submit its updated Nationally Determined Contribution to the United Nations under the Paris Agreement.

World’s largest carbon market is scheduled for 2020 launch in China.

National, State Policies Drive Circular Economy
Author
Mathy Stanislaus - World Resources Institute
World Resources Institute
Current Issue
Issue
1
Parent Article

First, a quick primer of why a circular economy approach matters: the extraction of raw materials grew from 22 billion tons per year in 1970 to 70 billion tons per year in 2010. If this trend continues, raw materials could be required to increase by as much as three times by 2050.

At the same time, over half of the yearly material inputs into industrial economies become waste within a year, with a $4.5 trillion annual loss of value by 2030. Moreover, recent studies have concluded that a circular economy approach could reduce the gap of achieving the Paris Agreement by 50 percent.

While the economic and environmental promise of a circular economic approach has been getting some traction in the United States, what are realistic near term policies to accelerate such a transition? The U.S. Business Council for Sustainable Development is working with Ohio, Tennessee, Michigan, and Minnesota to advance secondary materials transactions.

However, the definition and interpretation of whether an interstate transfer of secondary materials is considered a transfer of feedstock for manufacturing or for waste management has become a barrier to secondary materials utilization. For example, Ohio’s regulations differ from adjacent states. One immediate activity is to harmonize the definitions among adjacent states to foster secondary materials markets, with the necessary transparency requirements.

A regulation adopted by EPA in 2014, the Definition of Solid Waste Rule, is intended to incentivize the utilization of secondary materials in manufacturing while protecting against mismanagement in the recycling system. The rule removes certain materials from being designated as a hazardous waste to foster reuse back into the manufacturing production process from which it was generated (e.g., closed-loop recycling) and remanufacturing of chemical solvents. Separately, the rule also clarified that the recycling of metals is for the purpose of producing valuable products.

The rule is projected to save as much as $59 million per year. The remanufacturing of solvents alone is projected to reduce greenhouse gas emissions by as much as 344,000 metric tons of CO2 equivalent per year. Having states adopt this rule, and expanding the number of materials covered under this rule, would accelerate the reuse of secondary materials in manufacturing, save money, and further reduce greenhouse gas emissions.

More than 20 states now have “extended producer responsibility” laws for e-waste in an effort to shift some of the end-of-life burden of electronics to the manufacturers. However, the EPR systems have not resulted in the recovery of high quality metals and minerals as feedstock for remanufacturing into electronics products. Currently, while a ton of mobile phones contains about 200 to 300 grams of gold, only 10–15 percent is recycled.

Investment in technology and automation in recycling infrastructure to recover high quality metals and minerals is not occurring with the absence of economies of scale cited as a factor. Moreover, EPR’s cost allocation system has not acted as an incentive for manufacturers to change design. China’s version of EPR has a target of 20 percent recycled content in products including electronics by 2025. Accomplishing this target will require higher quality systems for recovery of metals and minerals from electronics. Could such a target create market drivers to promote investment and innovation for higher quality recovery in the United States?

Tax incentives can drive action. In December 2015, Congress passed into law a permanent charitable giving tax incentive for donating food and extended it to pass-through entities. The tax credit has been cited by food manufacturers as a critical factor to overcome concerns regarding the cost of food donation and liability risks. It has resulted in a substantial increase in food diverted from waste.

Sweden has introduced tax breaks and other fiscal incentives to promote maintenance and repair of durable consumer goods, and as such encourage extending the lifespan of products. A targeted tax incentive tied to a level of product’s recycled content could drive design and investment.

One last and potential far reaching opportunity is carbon pricing. As state-based carbon systems develop, such as California’s pending carbon market system, credit for use of secondary materials (e.g., products using recycled steel avoid approximately 75 percent of CO2 emissions as compared with using steel produced from virgin ore) would assist in financing secondary materials recovery systems and as incentive for product design.

Establishing a public-private process to prioritize policy actions and to establish an implementation strategy would tangibly advance the promise of a circular economy.

 

Mathy Stanislaus is a senior fellow at World Resources Institute and senior advisor to the World Economic Forum focusing on advanced circular economy policies and strategies globally. He headed EPA’s solid waste office during the Obama administration.

Changing With a Changing Climate
Author
Scott Fulton - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
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Scott Fulton

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

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

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

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

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

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

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

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

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

Scott Fulton on changing with a changing climate.

Benefits and Difficulties of Policy Linkage Under the Paris Agreement
Author
Robert N. Stavins - Harvard Kennedy School
Harvard Kennedy School
Current Issue
Issue
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Robert N. Stavins

The Paris Agreement achieved broad participation by countries — accounting for 97 percent of global greenhouse gas emissions. That stands in stark contrast with the 14 percent associated with the Kyoto Protocol. That is an important accomplishment, but a critical question is how to create incentives for countries to increase their ambition over time.

The ability to link different climate policies such that emission reductions undertaken in one jurisdiction can be counted toward the mitigation commitments of another jurisdiction may help parties to the agreement increase ambition over time. In new research, Michael Mehling of MIT, Gilbert Metcalf of Tufts University, and I explore options and challenges for facilitating such linkages in light of the heterogeneity that is likely to characterize regional, national, and subnational efforts to address climate change under the agreement.

Linkage is important, in part, because it can reduce the costs of achieving a given emissions-reduction objective. Lower costs, in turn, may make it politically feasible to embrace more ambitious objectives. In a world where the marginal cost of abatement — that is, the cost to reduce an additional ton of emissions — varies widely, linkage improves overall cost-effectiveness by allowing jurisdictions with relatively higher abatement costs to instead finance reductions from jurisdictions with relatively lower costs.

In effect, linkage drives participating jurisdictions toward a common cost of carbon, equalizing the marginal cost of abatement and producing a more cost-effective set of abatement activities. These benefits are potentially significant: The World Bank has estimated that international linkage could reduce the cost of achieving the emissions reductions specified in the initial set of Nationally Determined Contributions submitted under the Paris Agreement — 32 percent by 2030 and 54 percent by 2050.

Article 6 provides a foundation for linkage by recognizing that parties to the agreement may “choose to pursue voluntary cooperation in the implementation of their” NDCs through “the use of internationally transferred mitigation outcomes,” or ITMOs.

Linkage is relatively straightforward when the policies involved are similar. However, linkage is possible even when this is not the case: for example, when one jurisdiction is using a cap-and-trade system to reduce emissions while another jurisdiction is relying on carbon taxes.

There are several potential sources of heterogeneity. One is the type of policy instrument used (for example, taxes versus cap-and-trade versus a performance or technology standard). Another is the level of government jurisdiction involved (for example, regional, national, or subnational). There is also the jurisdiction’s status under the agreement (that is, whether or not it is a party, or within a party). The nature of the policy target is also important (for example, absolute mass-based emissions versus emissions intensity versus change relative to business-as-usual). Finally, there are the operational details of the country’s NDC (including type of mitigation target, choice of target and reference years, and sectors and GHGs covered).

Most forms of heterogeneity do not present insurmountable obstacles to linkage, but robust accounting methods will be needed to prevent double-counting of reductions, to ensure that the timing (vintage) of claimed reductions and of respective ITMO transfers are correctly accounted for, and to ensure that participating countries make appropriate adjustments for emissions or reductions covered by their NDCs when using ITMOs.

Broader questions that bear on the opportunities for linkage under Article 6 include the nature of NDC targets and whether these are to be treated as strict numerical targets that need to be precisely achieved; the nature and scope of ITMOs, which have yet to be defined, let alone fully described, under the agreement; and finally, whether transfers to or from non-parties (or subnational jurisdictions within nonparties) are possible, and if so, how they should be accounted for. Parties have differing views, however, on whether the guidance on Article 6 should extend to such issues.

Clear guidance for accounting of emissions transfers under Article 6 can contribute to greater predictability for parties engaged in voluntary cooperation, thereby facilitating expanded use of linkage. But too much guidance, particularly if it includes restrictive requirements, might impede linkage and dampen incentives for cooperation. So, parties should exercise caution when developing guidance that goes beyond key accounting issues. Concerns about ambition and environmental integrity need not be neglected, but the combination of common accounting rules and an absence of restrictive conditions can accelerate linkage and allow for broader and deeper policy cooperation.

Benefits and difficulties of policy linkage under the Paris Agreement.