ELI Report
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
January-February 2021
Issue
1

Virtual Reality Fifty years after kicking off the green movement Denis Hayes receives ELI reward with public health again topic one

The Environmental Law Institute’s annual award ceremony was held virtually on October 15, live-streamed to our members and distinguished guests for the first time due to the coronavirus pandemic.

The event convenes law, management, and policy professionals to honor outstanding achievements in environmental protection. Proceeds support ELI’s research and education programs and publications.

This year’s gathering introduced a few changes due to the virtual format — a networking reception was hosted on the online event platform Remo, and the award ceremony was streamed live on YouTube.

Denis Hayes, principal organizer and founder of Earth Day, received the 2020 ELI Environmental Achievement Award. Hayes serves as president and CEO of the Bullitt Foundation and is the founder of the Earth Day Network. He is widely recognized for expanding Earth Day to 190 nations, making it the most widely observed secular holiday in the world. An environmental thought leader, writer, and speaker, Hayes is also well known for designing and building the Bullitt Center in Seattle, regarded as “the greenest office building in the world” and the first major building to meet the rigorous Living Building Challenge certification standards.

Congratulatory remarks via video were offered to Hayes by Gina McCarthy, president of the Natural Resources Defense Council and former administrator of the Environmental Protection Agency, Christine Todd Whitman, former EPA administrator and former governor of New Jersey, and Diane Keaton, the actor and filmmaker.

Gerald Torres, professor of environmental justice at Yale School of Environment and professor of law at Yale Law School, offered an official introduction for Hayes. “When environmental history is written, Earth Day will figure as a crucial inflection point. . . . It gave us what we regard as the basic infrastructure of regulations that have been so effective. Most people in the United States believe that the current quality of the environment is what it has always been. Of course, they would not have the luxury of that illusion but for people like Denis and the lives that Earth Day changed. Denis’s work is to continue to awaken people of the need for continued vigilance. He’s a champion of the belief that responsible public action is the most straightforward path to the future we want to embrace.”

Hayes’s acceptance of the award was delivered in the form of a celebratory interview with Stacey Halliday, independent consultant for Beveridge & Diamond. The two discussed various aspects of Hayes’s extensive career, including his reasons for expanding Earth Day to the rest of the world, priorities for the Bullitt Foundation, the green building design of the Bullitt Center, and environmental justice.

Despite the challenges of hosting the award ceremony virtually, President Scott Fulton noted some encouraging developments in his introductory speech. As the Institute’s main fundraising event, the ceremony garnered close to the amount of funds historically raised from the live dinner event.

This past year, ELI also successfully pivoted to remote programming, thanks to its experience with running virtual webinars, and achieved record attendance at its seminars and events over this difficult year.

While honoring the events of the past half century, Fulton also acknowledged the extraordinary environmental and public health impacts experienced today, with the pandemic, wildfires, and the racial injustice crisis, declaring that environmental protection remains as important as it was 50 years ago.

Institute, partners, research impacts of the digital economy

The Project on the Energy and Environmental Implications of the Digital Economy, a research program led by ELI in partnership with the Center for Law, Energy & the Environment at UC Berkeley and the Yale School of the Environment, published a series of research papers in September exploring the environmental impacts of the digital economy. Developed by seven research teams, the papers examine topics ranging from the use of blockchain technology to manage sustainable supply chains, quantifying the greenhouse gas emissions of ride-hailing platforms, and assessing the climate impacts of a peer-to-peer food-sharing app.

ELI has been involved in the digital and environmental nexus for the past twenty years. Visiting Scholar David Rejeski noted in a 1999 article on e-commerce published in the Forum:

“The Internet is today’s frontier. . . . The traditional tools of environmental policy may not work well in a world like this, if they work at all.” Many of the questions surrounding the digital space remain just as urgent as decades before. As the digital economy continues to expand, so too will our need to understand the environmental impacts of our digital lives and, importantly, develop better data to guide decisions by policymakers, businesses, and consumers.

The project began four years ago with two workshops on the environmental impacts of sharing platforms and artificial intelligence. These meetings convened researchers from various institutions interested in this field, creating an initial overview of the state of the research that eventually led to funding of the project. The initiative includes a project website (digitalenergyenvironment.org), a bibliography of curated research in the digital and environmental space, research papers, and an inventory of environmental applications of blockchain technology. The program has received close to $1 million of support from the Alfred P. Sloan and McGovern foundations.

Moving forward, the project will continue to identify research opportunities and establish an institutional home for its activities, with the goal of creating and nurturing a new field of research with a dedicated focus on understanding the energy and environmental implications of the digital economy.

Report on Arctic marine resources highlights food sovereignty

In September, ELI and its partners released Food Sovereignty and Self-Governance: Inuit Role in Managing Arctic Marine Resources, a report analyzing current Inuit management and co-management of marine food resources and the role of Indigenous self-governance in supporting food security.

The report, a culmination of a four-year-long project, examines how existing laws and policies support Inuit self-governance, and uplifts Inuit voices and expertise in the interpretation of legal frameworks. The project features four case studies from the United States and the Inuvialuit Settlement Region of Canada focused on walrus, char, beluga, and salmon to highlight the connections between resource management and food sovereignty.

Aligned with its central purpose to bring together and amplify Inuit voices, the project was co-developed and co-led by Inuit individuals and Inuit-led organizations. In total, the report involved over 90 Inuit authors and an advisory committee of Indigenous knowledge holders. Partners include the Inuvialuit Game Council and the Fisheries Joint Management Committee (in the settlement region) and the Eskimo Walrus Commission, the Association of Village Council Presidents, the Kuskokwim River Inter-Tribal Fish Commission in Alaska, and the Inuit Circumpolar Council Alaska, as well as ELI, with ICC Canada serving as advisor.

Efforts were made to give every voice equal weight in order to create ownership and prioritize the knowledge of people experiencing marine resource issues first-hand. David Roche, ELI staff attorney, managed the project, and Cynthia Harris, director of tribal programs and deputy director of state, local, and tribal environmental programs at ELI, served as a legal researcher for the project.

The report represents a continuation of ELI’s projects in the Arctic, which have covered topics such as model Alaska Native consultation procedures, science communication, and government-to-government consultation related to marine subsistence resources in Alaska. In future Arctic policy research, ELI plans to continue applying the report’s principles of co-producing knowledge and building long-term partnerships for more effective project outcomes.

ELI in Action ABA awards Institute for “ELI at 50” program

The Institute’s “ELI at 50” program received the 2020 American Bar Association Section of Environment, Energy, and Resources Distinguished Achievement in Environmental Law and Policy Award. The annual award recognizes individuals or organizations that have made significant contributions to improving environmental law and policy and advancing environmental protection and sustainable development in the United States.

In a virtual award ceremony, the ABA noted that ELI offered innovative programming in each month of 2019 and produced significant publications in the past year, facilitating “critical discourse of where environmental law has been, and where we must go next.” President Scott Fulton noted in his acceptance speech that 2019 was a record-breaking year for ELI, both in the number of programs offered as well as the number of practitioners reached through the Institute’s programs.

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On September 25, 2020, the ELI China Program held a webinar on best practices in environmental enforcement under a grant from the U.S. Embassy in Beijing. Close to 200 government and legal professionals in China joined the webinar, representing over 20 different provinces. Attendees included officials from the Ministry of Ecology and Environment and provincial bureaus of environmental protection, judges, prosecutors, and members of nonprofits, academia, law firms, and businesses. President Scott Fulton, Distinguished Judicial Scholar Merideth Wright, and Visiting Scholar LeRoy Paddock presented on various aspects of compliance and enforcement in the United States. Topics of discussion included monitoring, permitting, citizen suits, penalties, and judicial supervision of remedies. Simultaneous interpretation from English to Chinese was provided via Zoom, enabling a bilingual presentation for attendees.

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Since 1998, with support from EPA, ELI has convened public health officials from across the United States who share the mission of improving indoor environmental quality. In October, ELI convened the 15th Workshop for Indoor Air Quality Officials, a three-day forum attended by representatives from over 30 states, several tribal and local governments, and officials from EPA. The workshop addressed both long-standing indoor air quality topics and current issues implicated by the pandemic, such as ventilation, cleaning and disinfection, and management of Legionella and other plumbing pathogens.

Although the workshop was convened as an online event for the first time, its purpose and approach remained the same: to foster sharing of information among programs to identify new strategies, resources, and opportunities for collaboration to reduce indoor air risks.

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In September, the International Network for Environmental Compliance and Enforcement, of which ELI serves as secretariat, held the first session of a six-part webinar series on current and potential uses of citizen science to improve environmental monitoring, compliance, and enforcement. The webinar, Citizen Science: Concepts and Applications for Enforcement, featured presentations on the role of citizen science in scientific research and monitoring, regulatory decisions and enforcement, and environmental justice, among other applications. Other webinar topics in the INECE citizen science series include water pollution, air pollution, Indigenous and community monitoring, and emerging government strategies.

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Pesticides have widespread impacts on agriculture, ecosystems, and public health, especially for communities such as farmworkers and children. In October, ELI hosted a webinar titled Pesticides, Farmworkers, Industry, and Environmental Justice, exploring recent changes in federal regulation of pesticides and policy approaches to addressing safety and environmental justice issues.

Speakers included James Aidala, consultant at Bergeson and Campbell; Patti Goldman, managing attorney at Earthjustice; Gretchen Paluch, pesticide bureau chief at the Iowa Department of Agriculture and Land Stewardship; and Caleb Pearson, assistant general counsel at CropLife America.

Earth Day founder Denis Hayes wins ELI Award.

Procedural Changes in Agency Rulemaking
Author
James McElfish - Environmental Law Institute
Environmental Law Institute
Issue
5
James McElfish

It has been a year of momentous change in environmental protection and governance. As we look over the horizon to 2021, it’s clear that many traditional expectations about environmental protection have been changed in areas of water pollution, climate change, endangered species, and air emissions. Added to this are numerous procedural changes affecting rulemaking, cost-benefit analysis, use of scientific information, federal advisory committees, and a comprehensive rewrite of the National Environmental Policy Act (NEPA) regulations. The procedural landscape is in greater flux than at any time since the early 1970s. ELI has been seeking to aid practitioners and policymakers to think about what lies ahead.

It’s important to recognize that rulemaking activity has accelerated. This is affected by the Congressional Review Act (CRA), which provides an expedited process for legislative repeal of rules and which has a look-back period for rules adopted toward the end of a prior session of Congress. These provisions were used by Congress in 2017 to repeal 15 rules adopted by the Obama administration in 2016. Perhaps fearing a turnabout, the administration has been finalizing as many of its rulemakings as possible by June 2020 in order to avoid the possibility of CRA action in 2021.

Rulemaking processes are changing. EPA is overhauling its standard approach to cost-benefit analysis, last revised in 2010. And in April 2020, the agency submitted a draft rule to OMB which may limit or exclude consideration of “co-benefits” in air pollution rulemaking. EPA used this approach in its April 2020 final regulatory review of the Mercury and Air Toxics Standard for stationary sources. By excluding co-benefits from control of particulate matter, EPA concluded that regulatory and compliance costs from the rule exceeded the remaining direct benefits.

The “social cost of carbon” is another instance in which revised cost-benefit practices affect regulations and will do so in the future, unless revised. This concept assigns values to the damage caused or avoided by each additional ton of carbon-equivalent greenhouse gases emitted. The federal Interagency Working Group on the Social Cost of Carbon developed a uniform estimate in 2009 and updated it in 2016. In 2017, President Trump issued Executive Order 13783, disbanded the Interagency Working Group, and withdrew the documents it had produced. The Order instructed federal agencies to prepare their own estimates under general OMB procedures. EPA and other federal agencies have produced “interim” estimates for social cost of carbon for use in rulemakings, resulting in far lower numbers than those produced by the IWG.

Regulatory cost calculations are also significant in the context of the continuing effect of 2017’s Executive Order 13771, which requires agencies to repeal two existing regulations for every one adopted, and to achieve a specified level of regulatory cost savings each year. OMB instructed EPA to achieve net cost reductions of $40 billion in FY 2020, a huge deregulatory goal.

Executive Orders have played a major role in Trump administration policy management. EO 13777 directed federal agencies to identify existing rules for repeal, replacement, and modification. EO 13807 set in motion the proposal by the Council on Environmental Quality to replace the NEPA regulations. If implemented, these will remove many federal actions from environmental impact assessment, limit consideration of alternatives, and severely limit the array of impacts to be evaluated.

EO 13875 directed federal agencies to terminate one third of their advisory committees and conferred on OMB greater authority to determine the need for committees. EPA’s former Administrator ordered that the agency’s advisory committees exclude any member that benefits from any EPA grant. Members of the scientific community objected that this would result in exclusion of many of the most knowledgeable academic researchers. Several courts have ruled the order procedurally invalid. EPA also eliminated and downsized several of its scientific panels, and in February 2020 it removed the ability of its flagship Science Advisory Board (SAB) to determine its own docket. Just in the last year and a half, SAB has questioned the scientific bases for several of EPA’s high-profile regulatory rollbacks, including the redefinition of waters subject to the Clean Water Act, and the SAFE vehicle fuel economy standards, as well as EPA’s withdrawal of the “risk finding” underpinning the agency’s regulation of mercury and air toxics emissions.

In 2018 EPA proposed a rule to preclude the agency from relying on scientific data or models unless the data and models could be shared with the public. This proposal led to substantial concern, especially where data (including health data) had been collected under conditions of confidentiality. EPA’s supplemental proposal will result in similar limits and will be litigated.

In the enforcement area, the Justice Department determined that the federal government cannot legally accept Supplemental Environmental Projects in negotiated settlements despite a 35-year history of doing so. SEPs are agreements by an alleged violator to fund environmental benefits to communities and ecosystems affected by an alleged violation. Other forms of agreement are favored. EO 13892 required federal agencies to create procedures that link self-reporting of violations in exchange for waivers and reductions in civil penalties, and requires agencies to provide pre-enforcement rulings to regulated parties. In January 2020, citing the Executive Order, OMB issued a request for information seeking additional options to “protect Americans against the unjust or arbitrary exercise of governmental power.”

There’s a lot to keep up with, but the procedural changes are as profound and perhaps longer lasting than the substantive ones.

Procedural changes in agency rulemaking.

World’s Coal Lender of Last Resort Doubles Down as Warming Worsens
Author
Bruce Rich - Environmental Law Institute
Environmental Law Institute
Current Issue
September-October 2020
Bruce Rich

In the midst of accelerating global warming, tens of billions of dollars continue to flow from private and public international banks into financing new coal-fired power plants, especially in Asia and Africa. Until recently, Japan has been one of the biggest culprits, accounting in 2019 for over 10 percent of the external financing of new coal plants in developing countries, particularly in South and Southeast Asia — some 24.7 gigawatts.

The nation’s export credit agency, the Japan Bank for International Cooperation, has been a major funder, and so has Tokyo’s bilateral development assistance agency. Over the past year or so, international criticism of Japanese coal funding has grown sharply, encountering nothing less than “opprobrium” at the last conference of the parties to the climate convention, according to the Financial Times. Protests by local nongovernmental groups against Japanese coal projects in Indonesia and Bangladesh have proliferated as well.

In June, a climate shareholder resolution introduced at the annual meeting of Japan’s third-largest bank, Muzuo Fincancial Group, obtained nearly 35 percent of the votes cast. It was backed by major northern European banks and investment funds — something that would have been unthinkable several years ago. Although the resolution did not pass, Muzuo has already agreed to halt approval of new loans for coal-fired plants, although it still has $2.8 billion outstanding in already-approved financing for coal energy.

In July this year, the Japanese environment minister announced that the government will change its public finance policies to drastically limit funding coal in developing nations. South Korea too is jumping on board. It has been a major financer of new coal plants in the developing world, but recently Seoul endorsed its own green new deal, aiming to exit coal financing both domestically and internationally. These changes are coming about in part because Japan and South Korea have relatively transparent public and private financial sectors, where the voices of concerned foreign investors and civil society can be heard.

Unfortunately, the world’s largest financer of coal by far, both at home and abroad, has actually been increasing its coal finance over the past year — and it is not known for transparency. In 2019, China reversed its policy, announced in 2016, of drastically cutting back (by around two thirds) domestic construction of coal-fired plants. As of June, it is committed to adding 249.6 GW of new coal power. That is roughly equal to total installed coal power in the United States. According to Global Energy Monitor and the Center for Research on Energy and Clean Air, “plans for new coal plants have steadily increased since 2019, after the central government began relaxing restrictions on new coal plant development.”

Beijing has become the lender of last resort for coal plants in developing countries, accounting for 70 percent built in the world outside China. Last year 60 coal plants abroad supported by China (over 70 GW worth) were under construction or in planning, nine of which are delayed because of protests or legal opposition, for example in Kenya and Turkey.

In Sub-Saharan Africa, Chinese coal finance dominates, with 13 projects under construction and another nine in planning. In South Africa, Power China is constructing a 3 GW coal plant in Limpopo Province that the South African press and civil society have vehemently criticized. In the words of Business Insider South Africa, the Limpopo coal plant “will only be used by the Chinese,” since it will serve a multi-billion-dollar China-controlled industrial park with seven metallurgical plants.

In Zimbabwe, the Industrial and Commercial Bank of China, and Sinosure (the Chinese export credit insurance agency), approved in May support for the first phase of the $4.2 billion, 2.8 GW Sengwa coal plant complex, including a 250-kilometer pipeline to transport its cooling water all the way from the Kariba Dam reservoir. According to the Japan Times, the reservoir is already seriously depleted by recurrent droughts associated with climate change — the dam’s power turbines are forced to operate at seriously reduced capacity.

China for the past decade has been the world’s largest producer and financer of climate-friendly renewable energy infrastructure, both at home, and abroad. The central government continues to claim its commitment to a greener, cleaner energy path. But the only thing that counts in terms of avoiding a looming global climate disaster will be a much more rapid switch from fossil fuels, particularly coal. Given the scale of China’s global energy footprint, like it or not, our climate fate is literally in China’s hands.

World’s Coal Lender of Last Resort Doubles Down as Warming Worsens.

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