Climate Change

How the Biden Administration Has Made Offshore Wind a Priority

December 22, 2021
Climate Change, Energy Law

Max Meyer, MJLST Staffer

Since coming into office in January of 2021, the Biden Administration has made fighting climate change and reducing domestic greenhouse gas (GHG) emissions a priority. In particular, the Biden Administration set a goal of doubling the nation’s offshore wind capacity in Executive Order 14008. Reaching this goal would result in 30 Gigawatts (GW) of offshore wind capacity. Developing offshore wind energy will help states reach their clean and renewable energy goals as many sates on the coast do not have large wind energy resources on land. Since the issuance of Executive Order 14008, the Department of the Interior (DOI) has taken several steps towards reaching that goal.

Statutory Authority

Under the Outer Continental Shelf Lands Act (OCSLA) (codified at 43 U.S.C. ch. 29), passed in 1953, the Secretary of the Interior is charged with the administration of mineral exploration and development of the Outer Continental Shelf (OCS). The OCS is defined as “all submerged lands lying seaward of state coastal waters (3 miles offshore) which are under U.S. jurisdiction.”

In the Energy Policy Act of 2005 (EPAct), Congress created the OCS Renewable Energy Program to be administered by the DOI. Under this authority, the DOI in 2009 promulgated regulations for leases, easements, and rights-of-way for renewable energy development in the OCS. The Bureau of Ocean Energy Management (BOEM), under the DOI, is the agency tasked with overseeing the renewable energy development program.

Regulatory Authority

The BOEM renewable energy development program is broken into four steps: (1) planning, (2) leasing, (3), site assessment, and (4) construction and operations. During the first step, BOEM identifies Wind Energy Areas (WEAs) which are “locations that appear most suitable for wind energy development.” After WEAs have been identified, BOEM issues a public notice to gauge the interest in leasing land in the WEA. Depending on the interest received from BOEM, leasing is done through either a competitive or noncompetitive leasing process.

After leasing is completed, the lessee must submit a Site Assessment Plan (SAP) to BOEM. The purpose of the SAP is for the lessee to provide documentation so that BOEM can evaluate whether the project will comply with applicable regulations. The agency can either approve, approve with modification, or disapprove the SAP. Finally, the lessee must produce a Construction and Operations Plan (COP). As the name suggests, this submission includes a “detailed plan for the construction and operation of a wind energy project on the lease.” BOEM reviews the COP, including environmental review, and can either approve, approve with modification, or disapprove the COP.

Recent Offshore Wind Developments

In May 2021, the DOI approved the COP for the Vineyard Wind project located near Martha’s Vineyard and Nantucket. This is the first large-scale, offshore wind project in the United States. The project will have 800 Megawatt (MW) of energy capacity which is enough to power 400,000 homes and businesses. Construction of the project began in November 2021. One of the first steps in the construction process will be placing two transmission cables to transmit electricity from the Vineyard Wind project to the mainland.

Also in November 2021, the DOI approved the COP for the South Fork Wind making it the second large-scale, offshore wind project in the United States. This project off the coasts of New York and Rhode Island will have a capacity of 130 MW which is enough to power approximately 70,000 homes.

In addition to granting final approval of several projects, BOEM has also taken action in the earlier steps of the OCS renewable energy process. For the Carolina Long Bay WEA, located off the coast of the Carolinas, the BOEM began taking public comments on a proposed lease. In October, BOEM received the COP for the Mayflower Wind project. This project would also be located near Martha’s Vineyard and Nantucket and would have an energy capacity of more than 2 GW. If approved, the Mayflower Wind project would be one of the largest offshore wind projects in the United States. BOEM also published a Call for Information and Nominations to gauge commercial interest in wind energy development in the Gulf of Mexico.

BOEM has also taken steps to advance offshore wind in the Pacific Ocean in 2021. In July, BOEM published a Call for Information and Nominations to determine commercial interest in the Morro Bay Call Area East and West Extensions, a portion of the Morro Bay WEA. This WEA is located off the coast of Central California. Finally, BOEM designated the Humboldt WEA off the northern coast of California moving closer to the leasing process in this area.

Despite heavy support from the Biden Administration, offshore wind does face opposition. The commercial fishing industry has emerged as a strong opponent of these projects. The industry is concerned that the turbines will impact fish and hinder access to fishing grounds. The Biden Administration could face legal challenges to offshore wind development, particularly under the National Environmental Policy Act (NEPA), from the fishing industry. One such challenge in Fisheries Survival Fund v. Haaland, 858 F. App’x 371 (D.C. Cir. 2021) has proven unsuccessful for the fishing industry.

While the DOI and BOEM have taken many actions to further develop offshore wind in the United States, much more will have to be done to reach the Biden Administration’s goal of 30 MW of offshore wind capacity by 2030. Nonetheless, offshore wind is an important resource for coastal states looking to decarbonize their energy generation and for reaching the Biden Administration’s decarbonization goals.

One Person’s Trash Is Another’s Energy

April 18, 2021
Climate Change, Energy Law, Environment

Carlton Hemphill, MJLST Staffer

It comes to many as a literal and metaphorical breath of fresh air to see the new administration’s interest in reducing the effect we have on the environment, but achieving a goal of net-zero emissions by 2050 is no small feat for such a large country and requires leaving no stone unturned. Much of the recent focus in the media has been on increasing the prevalence of electric cars and switching to renewable energy sources that do not emit carbon dioxide or other greenhouse gases, such as wind and solar. That being said, there is another often overlooked process that, while not the end all solution, can still help us achieve this goal of reducing greenhouse gases, and in my opinion should be getting more attention than it is currently receiving. I am referring to the use of anaerobic digesters.

The Dirty Details:

Let’s face it, people generate a lot of waste, both food waste and excrement. Everybody eats and everybody poops. Moreover, the animals we raise for food also generate an enormous amount of waste. Methane, a byproduct from the decomposition of organic matter such as excrement, acts as a greenhouse gas if released into the atmosphere before being burned. Compared to CO2, methane is 25 times as powerful as a greenhouse gas. Anaerobic digesters use microbes to break down organic waste to produce methane (referred to as biogas) which is then burned to generate electricity.

This is not a novel concept either. Some cities and farms have already taken steps to implement anaerobic digesters for harnessing biogas from sewage and manure. States like Connecticut and New York already implement biogas programs, and many dairy farms across the nation have anaerobic digesters that produce methane from manure. A town in Colorado even powers vehicles using poop . . . yes, you read that correctly.

However, across the country the potential of biogas has not yet been fully realized, meaning there is still a large amount of methane escaping into the atmosphere as a greenhouse gas that could instead be captured and transformed into electricity. The American Biogas Council states that there are currently over 2,200 biogas production sites across the U.S. with the potential for an estimated 14,958 additional sites “ripe for development.”

The biggest barriers to widespread implementation of biogas production stem from a combination of economic feasibility, infrastructure, and lack of political support. Biodigesters can require a large capital investment to setup with financial benefits not being immediately realized. Additionally, while wastewater treatment plants and landfills have existing infrastructure better suited for conversion to biogas production and utilization, rural farms would need either pipes to move the gas or connection to the electrical grid to sell back the generated electricity. Without the necessary political support, in the form of government programs financially incentivizing anaerobic digestion, these issues will continue to act as a deterrent.

Federal eye on Biogas:

While the recent executive orders dealing with the climate crisis do mention mitigating methane emissions, the focus is instead on mining in the oil and gas sectors and not repurposing existing organic matter. It seems then that in our nation’s quest to go green we are overlooking the potential to transform the very waste we create. With food waste constituting the second largest category of solid waste sent to landfills, and cities producing millions of tons of sewage annually, implementing anaerobic digesters would provide numerous environmental advantages. They save landfill space, prevent methane from leaking into the atmosphere, and generate electricity reducing our reliance on other forms of electrical generation.

Fortunately, the EPA recognizes the value in biogas production and, if Biden’s proposed $14 billion in spending towards climate change materializes, the EPA may be able to allocate some of that funding towards developing new sites. When creating new laws and policies aimed at climate change perhaps it is best to always keep in mind the universal law of conservation of energy. Energy is neither created nor destroyed, but rather transformed; what we flush down the drain or discard as trash still has energy and it is up to us to utilize it.

 

America Is Ready to Fight Climate Change. Is the Grid?

February 13, 2021
Climate Change, Energy Law, Environment

Valerie Eliasen, MJLST Staffer

Climate change is perhaps the most serious threat to our planet’s future. From a rise in average temperatures to more frequent floods, fires, hurricanes, and other natural disasters, the evidence of a warming planet is clear. Scientists warn that climate change and its dangerous effects will continue to worsen unless a strong response to counteract the threats is undertaken immediately. In response to these worries and widespread support of the issue by consumers, numerous large corporations have begun setting goals to combat climate change.

The Biden administration has also prioritized the issue. Among his first acts in office, President Biden signed an executive order, which acted to “place the climate crisis at the forefront of [the] Nation’s foreign policy and national security planning.” Among many other things, Biden’s executive order created a new position to “elevate the issue of climate change” and directed the United States to rejoin the Paris Agreement. The executive order includes a goal to “achieve net-zero emissions, economy-wide, by no later than 2050” and “a carbon pollution-free electricity sector no later than 2035.”

To achieve such a lofty goal, businesses and corporations across the country will need to rapidly change how they do business. It’s easy to see that single use plastics will begin to disappear and that electric vehicles will become more commonplace, but what will the shift to cleaner energy look like?

California provides us with an interesting case study. California is well known for its aggressive and progressive approach to climate change. The State established a detailed climate plan in 2006, which outlines the ways in which the State will reduce emissions and emphasize clean energy in the long run. While a deeper look at California’s experience with aggressive climate policy over the past few years can help us envision what the United States’ increasingly electric future will look like, it provides us with some warnings as well.

The first problem is capacity. Because California’s renewable energy sources primarily come from solar and wind generation, a huge problem is presented when the sun doesn’t shine, the wind slows down, and backup resources aren’t available. In August 2020, when extreme heat hit the southwest, California didn’t have enough of its own energy to power its residents’ air conditioners. Further, the states California often borrows energy from in cases of shortage were experiencing the same heat wave and did not have resources to spare. The result: the first rolling blackouts in close to 20 years. Much of California’s problem lies in its ability to provide energy after the sun sets. The technology to efficiently store energy for later use is not developed enough to provide the kind of storage needed. Further, several of California’s fossil fuel plants have been retired in recent years and haven’t been replaced with enough non-solar energy sources. With increasingly hotter summers and insufficient sources of consistent energy, blackouts are likely to reoccur.

The second problem is the grid. With the United States’ new emissions goals and continued societal shift towards combatting climate change, we are likely to see a large shift to electric appliances and vehicles. Additionally, the use of air-conditioning could increase nearly 60 percent by 2050 due to the planet’s warming temperatures. As such, the power grids are going to need to be able to handle more variable sources of energy and increased demand of electricity in the coming years. The power grids in place in many regions of the United States are not cut out for these changes. California, for example, has the “least reliable electrical power system in the US . . . with more than double the outages of any other state over the last decade” and will likely only become more unreliable as clean energy sources are phased in and others are phased out. The power industry is going to need to invest countless dollars into making power grids more flexible and robust than what we have now. One article likens this process to rebuilding a plane mid-flight.

The nation’s new environmental goals are a vital and important step in combating climate change. Inaction is not an option. Failure is not an option. And thankfully, President Biden’s executive order has the force of law, so the government will be better able to make sure these goals are met. But unless policymakers understand that many of the recent issues in California were caused by poor planning and poor coordination between policymakers and energy producers, California’s reality will become a nationwide problem. The government and the States need to work closely with the power industry, to invest a large amount of money into improving and strengthening the grid, and to expand the amount of renewable energy available day and night. This may be the only way to keep the lights on while helping the planet stay cool.

Regulatory Agencies Spring Into Action After Supreme Court Decides Dusky Gopher Frog Case

November 7, 2020
Climate Change, Environment, Environmental Justice, Environmental Law, EPA

Emily Newman, MJLST Staffer

While “critical habitat” is defined within the Endangered Species Act (ESA), a definition for “habitat” has never been adopted within the statute itself or any regulations issued by the two agencies responsible for implementing the ESA, the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (collectively, the “Services”). In 2018, however, the U.S. Supreme Court called this gap into question. Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 139 S. Ct. 361 (2018). In Weyerhaeuser Co. v. United States Fish and Wildlife Service, the Court reviewed a case by which the USFWS designated a particular area of land as critical habitat for the dusky gopher frog, including private property and land that was currently unoccupied by the frog. Id. at 366. Weyerhaeuser Company, a timber company, and a group of family landowners challenged the designation because the land was not currently occupied by this species and would need to be improved before occupation could actually occur. Id. at 367. The Court vacated and remanded the case to the Fifth Circuit, determining that the land first must be designated as “habitat” before being designated as “critical habitat.” Id. at 369. More specifically, they remanded to the Fifth Circuit for it to interpret the meaning of “habitat” under the ESA; however, they did not specifically direct the Services to adopt a definition. Id. The Fifth Circuit ended up dismissing the case upon remand.

The Services’ proposed new rule aims to address this gap. The proposed rule was published on August 5, 2020, and within it, the Services propose two alternative definitions for the meaning of “habitat” which would be added to § 424.02 of the ESA. The first definition is as follows: “The physical places that individuals of a species depend upon to carry out one or more life processes. Habitat includes areas with existing attributes that have the capacity to support individuals of the species.” The alternative definition of “habitat” is listed as: “The physical places that individuals of a species use to carry out one or more life processes. Habitat includes areas where individuals of the species do not presently exist but have the capacity to support such individuals, only where the necessary attributes to support the species presently exist.”

The first definition emphasizes “dependence” while the second emphasizes “use”, but both allow for unoccupied areas to be included in the definition. Additionally, both definitions imply that the land has to be suitable for a particular species in its current condition with no improvements made. The Services clarified that the proposed rule would only be prospective and would not revise any designations of critical habitat already made.

The Services issued the proposed rule largely in order to respond to the Supreme Court’s ruling in Weyerhaeuser, but the Services do mention additional purposes such as the desire to “provide transparency, clarity, and consistency for stakeholders.” The proposed rule is also meant to build upon regulatory reforms issued by the Services in 2019. Additionally, the Services place the proposed rule in a larger context as part of the efforts of the Trump administration to “bring the ESA into the 21st century.”

The proposed rule has received both support and criticism. Those in support of the rule mainly highlight how defining “habitat” would lead to more certainty as to when a particular area would or could be protected under the ESA. They say that this could positively impact species by “aiding the public’s understanding of those areas that constitute habitat” and also by helping companies plan out projects in such a way as to minimize any impact on habitat.

Those against the two definitions contained in the proposed rule have multiple reasons for their criticism. For one, they believe that the primary definition in particular runs the risk of conflating “habitat” and “critical habitat” even though “habitat” presumably should cover a wider area. Second, they argue that defining “habitat” through a regulation is unnecessary and has not been necessary in the 45 plus years that the ESA has been around. This is because defining “habitat” could undermine any critical habitat designations under the ESA, and it would also negatively impact or cause confusion in other parts of the ESA where the word “habitat” is used and other federal statutes that are often “implicated by actions related to listed species.” Third, while the proposed rule is prospective and would not require reevaluations of past critical habitat designations, that does not mean the Services by their own accord won’t reevaluate those designations using the new definition of “habitat.”

The last, and arguably most important, critique of the proposed rule is that either definition has the potential to exclude essential areas of habitat such as fragmented, degraded, or destroyed habitat that would need to be restored, and also habitat that is needed for species whose range will likely fluctuate due to the impacts of climate change. Critics, such as the Southern Environmental Law Center (SELC) and the American Fisheries Society (AFS), argue that this would only maintain the status quo and simply “wouldn’t make sense from a management perspective for species recovery or the legislative perspective intended by Congress in enacting the ESA.” The AFS makes a useful analogy to what would happen if a similar definition applied to polluted waters under the Clean Water Act: “Indeed, if a similar definition was used for polluted waters in the U.S. under the Clean Water Act, we would never have improved water quality by installing treatment systems to remove pollutants, as the definition leaves the only condition as status quo.”

Several opponents of the proposed rule provide their own alternative definitions of habitat or what that definition should include. The Defenders of Wildlife suggest a definition that is consistent with definitions of habitat in academia and with the intent of the ESA, as well as being complementary to but distinct from the definition of “critical habitat” in the ESA: “ ‘Habitat’ is the area or type of site where a species naturally occurs or depends on directly or indirectly to carry out its life processes, or where a species formerly occurred or has the potential to occur and carry out its life processes in the foreseeable future.” Additionally, the AFS advises that any definition of habitat account for areas that may not even “house” the species in question but that are nevertheless important for energy and resource flow; this broader suggestion reflects the move towards “holistic watershed approaches” in fisheries management.

The public comment period for the proposed rule closed on September 4, 2020, but the Services has not yet issued a final rule. Looking ahead, though, the strong opinions both for and against the proposed rule indicate that the Services will most likely face litigation irrespective of what they decide upon in the final rule. Moreover, a change in the Administration following the 2020 election will likely affect the outcome of this regulatory action.

 

 

Extracting Favors: Fossil-Fuel Companies Are Using the Pandemic to Lobby for Regulatory Rollbacks and Financial Bailouts

October 17, 2020
Climate Change, COVID-19, Energy Law, Environment, Environmental Law, Regulatory

Christopher Cerny, MJLST Staffer

In the waning months of World War II, Winston Churchill is quoted, perhaps apocryphally, as saying, “[n]ever let a good crisis go to waste.” It seems fossil-fuel companies have taken these words to heart. While in the midst of one of the greatest crises of modern times, oil, gas, and coal companies are facing tremendous economic uncertainty, not only from the precipitous drop in demand for gasoline and electricity, but also from the rise of market share held by renewable energy. In response, industry trade groups and the corporations they represent are engaged in an aggressive lobbying campaign aimed at procuring financial bailouts and regulatory rollbacks. The federal government and some states seem inclined to provide assistance, but with the aforementioned rise of renewable energy, many see the writing on the wall for some parts of the fossil-fuel industry.

The ongoing COVID-19 pandemic continues to inflict immeasurable havoc on a global scale. The virus and the mitigation efforts designed to curb its spread have dramatically changed the way humankind interacts with each other and the world around us. In the United States, nearly all states at one time or another implemented mandatory shelter-at-home orders to restrict movement and prevent the further spread of the novel coronavirus. These orders have, in many ways, completely restructured society and the economy, with perhaps no sector being more impacted than transportation. At the peak of the virus in the United States, air travel was down 96% and, in April 2020, passenger road travel was down 77% from 2019. Similarly, the pandemic has altered America’s energy consumption. For example, the Midcontinent Independent System Operator reports a decrease in daily weekday demand in March and April of up to 13% and a national average decline of as much as 7% for the same time frame. A secondary impact of these market disruptions is on the fossil-fuel industry. The decrease in electricity demand has further diminished the already declining coal market, while the fall off in travel and transportation has radically impacted oil prices.

On April 20, a barrel of oil traded for a loss for the first time ever when demand fell so low that the cost storing oil exceeded its sale price. While the price of a barrel of oil, the world’s most traded commodity, has since improved, as of October 1st, the U.S. stock index for domestic oil companies remains down 57% in 2020. Similarly, coal consumption in the United States is projected to decline 23% this year. Natural gas remains resilient, with U.S. demand only dropping 2.8% between January and May of 2020. However, much of natural gas’s buoyancy comes at the expense of lower prices. These numbers are dire, especially for coal and oil, two domestic industries already on the decline due to the rise in renewable energy.

Fossil-fuel companies have gone on the offensive. The oil and gas industry is responding to these calamitous figures and grim financials by lobbying state and federal lawmakers for financial bailouts and the relaxation of environmental regulations. The California Independent Petroleum Association, an oil and gas trade group, requested an extension for compliance with an idle well testing plan that would push 100% program compliance from 2025 to 2029. Further, the trade group asked California to scale back on Gov. Gavin Newsom’s plan to increase the staff of the California Energy Management Division, the state agency charged with oversight of oil and gas drilling. In Texas, the Blue Ribbon Task Force on Oil Economic Recovery, created at the behest of the state oil and gas regulatory body and composed of representatives and leaders of Texas’s oil and gas trade groups, recommended the suspension of particular environmental testing and extensions for environmental reporting to the state agency. The Louisiana Oil and Gas Association asked Louisiana Gov. John Bel Edwards to suspend the state’s collection of severance taxes.

On the national stage, the Independent Petroleum Association of America asked the Chairman of the Federal Reserve to support changes to the Main Street Lending Program, a part of the CARES Act, to expand the eligibility requirements to include many oil and gas producers. The American Fuel and Petrochemical Manufacturers, a refiners trade association, called on the Trump administration and the Environmental Protection Agency (EPA) to waive biofuel policies that mandate the blending of renewable corn-derived ethanol in petroleum refining. The American Petroleum Institute also reached out to the Trump administration seeking the waiver of record keeping and training compliance.

Not to be left behind, the coal industry ramped up its lobbying as well. In an opinion piece, the CEO of America’s Power, a coal trade group extolled the virtues of the fleet of coal power plants and their necessity in the recovery from the COVID-19 pandemic. The National Mining Congress, the coal industry’s lobbying arm, sent a letter to the Trump administration and Congressional leaders asking for an end to the industry’s requirements to pay into funds for black lung disease and polluted mine clean-up

These lobbying efforts are being met with varied levels of success. In a move that garnered criticism from the Government Accountability Office, the Department of the Interior through the Bureau of Land Management cut royalties on oil and gas wells leased by the federal government, saving the industry $4.5 million. The EPA scaled back enforcement of pollution rules, instead relying on companies to monitor themselves. The Governors of Texas, Utah, Oklahoma, and Wyoming sent a letter asking the EPA to waive the biofuel blending regulations in support of the refiners trade group. In September, the EPA denied the request. The Governor of Louisiana agreed to delay the collection of the severance tax, a revenue source for the state that can normally bring in $40 million per month. The Louisiana state legislature later voted to reduce the severance tax on oil and gas from 12.5% to 8.5% for the next eight years. The EPA finalized a rule that it is not “appropriate and necessary” to regulate certain hazardous air pollutants, including mercury, emitted from coil and oil fired power plants.

It is difficult to discern what impact these industry efforts and resulting government actions will have in the long term. The financial measures may have propped up an industry that otherwise would have suffered permanent damage and bankruptcies without the influx of relief and capital. However, environmental groups are more concerned with the regulatory rollbacks. For example, after the EPA chose to allow companies to self-monitor pollution, there was a year-over-year decline of 40% in air emissions tests at industrial facilities and over 16,500 facilities did not submit required water quality reports. The ramifications of the state and federal acquiescence to the fossil-fuel industry’s requested regulatory non-compliance may end up costing the American tax payers millions of dollars, causing irreparable immediate harm to the environment, and delaying critical action needed to mitigate anthropogenic climate change.

Turning the Sky Orange and the Lights Off: West Coast Wildfires Diminish Solar Power Generation

September 23, 2020
Climate Change, Energy Law, Environment, Environmental Law

Isaac Foote, MJLST Staffer

On September 9th, 2020 social media feeds were taken over by images of the sky above San Francisco.  As if it was a scene out of Bladerunner 2049, the sky turned a remarkable shade of orange due to smoke from forest fires raging across the West Coast. The fires have had a devastating effect on the region; they have burned over five million acres of forest, forced over 500,000 people to evacuate their homes, and killed over 30 people. Further, the combustion of millions of trees has threatened air quality across the United States and has released over 83 million tons of CO2 emissions into the atmosphere. This is more CO2 than power plants in both California and Oregon release in a typical year and is another example of how climate change perpetuates itself.

In addition to CO2, when forests burn they also spew incredible amounts of soot (another name for black carbon) into the atmosphere. This soot can then join together with water vapor to create pyrocumulonimbus clouds in the stratosphere which, in turn, are very effective at absorbing light from the sun. Because carbon absorbs more blue light than red light, these soot clouds caused the ominous coloration of the sky above San Francisco on September 9th.

While most of the focus on forest fire smoke has (rightfully) been around its potential health effects, the absorption effect mentioned above can also have a significant impact on solar power installations. At a micro scale, the impact of forest fire smoke can be intense. One small scale solar installation in Cupertino, California saw a 95% reduction in energy generation on September 9th. Outside of California, a Utah study demonstrated that a single forest fire within 150 miles of a solar array reduced generation by 12.5% over a three day period following the start of the fire.

At the systemic level, California Independent System Operator (California ISO) reported that at times on September 10th statewide solar generation was reduced by ⅓ compared to typical summer levels. While this did not set off rolling blackouts (as California ISO was forced to implement in mid-August), a 33% shock to generation is a worrying sign for the future. After all, this wave of wildfires already resulted in significant strain on the California transmission system independent of solar disruption. California has a 100% clean energy generation target for 2045 (SB 100 (de León, 2018)) and projections estimate solar will need to constitute a large percentage of California’s energy production to meet this goal. While energy planners factor the instability of solar generation into forecasts of energy production, typical state-wide drops of this magnitude usually occur in winter, when energy demand is reduced due to lower temperatures. With the increased prevalence and intensity of forest fires, California grid operators must be wary of sudden smoke-related drops going into the future, especially during the hot and dry weather that corresponds with both forest fires and high energy usage.

According to the Solar Energy Industries Association, “[a] worst-case wildfire scenario could reduce annual solar-energy production from affected installations by as much as 2%.” While this impact may seem small on the scale of the energy system, some back of the envelope math estimates this worst-case scenario would reduce California’s annual solar production by 569 gigawatt-hours or $94,340,000 in retail sales at current production levels. This calculation is not even considering additional maintenance costs and efficiency reductions that analysts worry may be necessary if soot settles onto solar panels after leaving the atmosphere.

Of course, none of this is to argue against the increased adoption of solar generation in California. In fact, rapidly moving from a fossil fuel based economy to one based on renewable energy is the most important step in preventing future large forest fires as “the link between climate change and bigger fires is inextricable.” Additionally, advocates of distributed solar argue that increased residential solar adoption may help mitigate the stresses that forest fires place on the electric grid. Instead, this should be treated as another example of the costs of climate change and, consequently, fossil fuel use. Even with aggressive reductions in greenhouse gas emissions, forest fires will continue in the American West and soot will continue to harm solar efficiency. The best solution is for grid operators (like California ISO) and government planners (like the California Energy Commission) to understand the risks forest fires pose to solar generation and factor that into their long term (like the Annual Planning Renewable Net Short) and short term planning processes.

A Rising Tool in International Climate Litigation: The Right to Life

May 15, 2020
Climate Change, Environmental Law, Human Rights Law

Jessamine De Ocampo, MJLST Staffer

There has been a growing national and international trend placing environmental rights and environmental justice under the umbrella of human rights. The empirical data around climate change is vastly shaping the international human rights arena, allowing environmental rights to be considered and litigated amongst human rights. As of 2019, air pollution is estimated to have resulted in and continues to result in 7 million yearly premature deaths worldwide; of which 600,000 are children under the age of 5. Entire communities, particularly island nations, are being forced to relocate due to rising sea levels while climate variability and changing weather is resulting in severe food crises threatening food security.

Climate and environmental issues have been actively permeating the international human rights field. The UN Human Right Council entered a mandate for an investigation into the correlation between human rights and environmental rights, the Inter-American Commission of Human Rights commissioned their first special rapporteur on Economic, Social, Cultural and Environmental Rights, and the UN Human Rights Committee in a General Comment, recognized the relevance of climate issues in the context of the right to life. The Right to Life is a universally recognized fundamental human right. While it can be found in a multitude of international and regional doctrines, it is primarily referenced in relation to Article 3 of the United Nation’s Universal Declaration of Human Rights and Article 6 of the International Covenant on Civil and Political Rights. The right to life doctrine essentially states that every person has a right, protected by law, to live.

In the international courts, climate litigation cases have been decided under the Right to Life doctrine with growing success. A Pakistani farmer sued his country for failing to implement environmental legislation and won; a family of rural workers sued their home country of Paraguay for failing to protect them from severe environmental contamination in which the court held “the link between environmental protection and human rights is ‘undeniable.’ ” Finally, in December 2019, the Dutch Supreme Court held that the Dutch government must reduce emissions immediately in line with its human rights obligations.

As climate change and environmental justice concerns continue to pose an ever-growing multi-layered effect on our societies, these new tools may prove to be crucial in implementing liability. As the link tying climate change and human rights becomes stronger, individuals have more than before to establish a claim. The right to life doctrine can, and should, be used to enforce government liability for failing to regulate the harmful effects of climate change.

Davos Attendees Seek Political Cover Under 1 Trillion Trees

March 16, 2020
Climate Change, Energy Law, Environment

Noah Cozad, MJLST Staffer

At the World Economic Forum (otherwise known as Davos), the most popular subject was something called the Trillion Tree Initiative to help fight climate change. Nearly every attendee at the forum committed to the initiative. Including President Trump, who in the past has forcefully denied climate change’s existence, calling it a “hoax” invented by the Chinese. President Trump even mentioned the initiative in the State of the Union, and a GOP representative has introduced a bill that would commit the United States to planting 3.3 billion trees every year for the next 30 years. Davos describes the initiative as a “mass-scale nature restoration,” that hopes to provide up to one-third of the emission reductions necessary for the Paris Agreement targets. Practically, the initiative seeks to provide a single platform for a variety of reforestation projects and to mobilize funds and support.  This initiative was started by the UN as part of the New Decade of Ecosystem Restoration, 2021-2030. The UN says the initiative “is about, conserving, restoring, and growing trees. Indeed, the goal of 1 trillion trees by 2030 includes conservation of existing trees (i.e. avoided deforestation), the restoration and natural regeneration of previously degraded forest lands, including actual reforestation and tree-planting schemes on suitable agriculture land, . . . as well as urban tree planting.”

The idea of planting 1 trillion trees comes from a controversial 2019 article in Science. The article finds that global tree restoration is currently one of the most effective carbon drawdown solutions. Accordingly, planting 1 trillion trees has the potential to store 25% of the current atmospheric carbon pool. The study focuses on reforestation, as opposed to afforestation which is planting trees where none were before. Critics have argued that this is an unreliable way to fight climate change and is not a meaningful substitute for cutting back on emissions. Further, it is a very slow solution, for example it takes 25 years for a tree planting project to offset a single commercial flight.

While it is undeniable that planting large amounts of trees will help with climate change, there are still many issues with this idea. The initiative seems like a silver bullet, relatively apolitical, and very easy for people to grasp onto and understand (unlike climate change, which as a whole is extremely complex). But herein lies many of the problems. For one the initiative completely shifted the focus of Davos away from proven solutions like carbon taxes. While carbon taxes are difficult and very political, a trillion trees is a good way for banks and pension funds, that are financially exposed to fossil fuel companies for $1.4 trillion, to act as if they’re doing something. Further, simply planting tons of trees might be bad for an individual ecosystem. In fact the Coalition for Environmental Justice in India has had to ask Leonardo DiCaprio from going forward with a tree planting project as ecologists say the current plan will dry up rivers, harm the floodplains, destroy biodiversity, and eventually make the area uninhabitable for the trees in the first place. The UN itself has said that the project is NOT a silver bullet and should instead be one smaller part of a larger plan.

Perhaps the biggest issue is that the initiative provides political cover to those making climate change worse and distracts from better solutions. Absent other climate policies, the United States would need to plant an area over twice the size of Texas to offset emissions. Trees play a critical role in climate change, but the best way to utilize them is to protect current forests and let them grow back naturally. And the best way to do that is to provide protections for the indigenous peoples living there, according to University of Minnesota Natural Resources Professor Forrest Fleischman. Professor Fleischman stated, “people are getting caught up in the wrong solution. . . . Instead of the guy from Saleforce saying, ‘I’m going to put money into planting a trillion trees,’ I’d like him to go and say, ‘I’m going to put my money into helping indigenous people in the Amazon defend their lands.’. . . That’s going to have a greater impact.”

Overall, the Trillion Tree Initiative is a good start, but should not be allowed to provide political cover for those invested in fossil fuels, and climate deniers. For example, the folks at Davos continue to support President Bolsonaro of Brazil, who has rolled back protections of indigenous people and the Amazon, one of the world’s largest carbon sinks, thus allowing large swathes of the tropical forest to burn and the people who live there to be killed. The trillion tree initiative should not distract us from such actions that ultimately make climate change worse. Instead of one, simplistic solutions, we should push for multiple, better solutions such as protecting public lands, forests, and the rights of the indigenous peoples who live there and protect the environment, along with planting more trees.

A Green New City Plan? How Local Governments Should Plan for Climate Refugees

September 19, 2019
Climate Change, Environment, Uncategorized

Shantal Pai 

Politicians, especially democratic presidential candidates, are competing to release the best “Green New Deal.” These proposals are national-scale climate plans that are meant to reduce carbon emissions to mitigate the impact of climate change. But, as these plans are released, a difficult reality remains: we may be less than one year away from irreversible changes to the climate.

Regardless of which Green New Deal eventually becomes United States Law (and one will—because climate change grows more undeniable each day), in addition to a climate mitigation plan, the U.S. and its cities need a climate adaptation plan: a way to survive in the new reality.

At the point of no return (2 C average warming, worldwide) the most inhabited regions of the world will face extremely hot temperatures, dramatic weather events including storms, flooding and drought, and sea-level rise. Though some regions have developed strategies to mitigate these damages—  such as a proposed levee surrounding Manhattan—the best possible solution may be to move threatened communities to higher, cooler ground.

So, in addition to national-scale plans, local governments in communities that will be attractive in our post-industrial climate, places like Minneapolis, Cincinnati, Buffalo, and Denver, should prepare. They need to be ready for a large influx of refugees from the coast looking for a secure future.

If Hurricane Katrina serves as an example, the first people to move permanently inland will not be the predominately white, wealthy residents of the city, but working-class residents and people of color. There are two reasons for this: (1) racially discriminatory housing practices mean people of color are most likely to face flooding and storm damage and (2) these groups are least likely to get government aid after a flood.

There has been a similar trend after Hurricane Dorian. Since the Trump Administration declined to grant temporary protected status to Bahamians fleeing uninhabitable conditions after the storm, many victims are fleeing with visas that will allow them to live in the U.S., but not to work. Many of these people will be staying with family in the United States while the Bahamas rebuilds, increasing demand for U.S. services while they are unable to contribute to local government revenue because they cannot earn an income.

Such a large influx of low and middle-income residents could wreak havoc on an unprepared regional plan. The people fleeing climate change need quick access to affordable housing, schools, and city resources, often at disproportionately high levels. At a city level, places with affordable housing already struggle to generate the revenue necessary to provide these services. In cities where property values are lower, the potential for a city to raise revenue from property taxes is lower. A massive influx of people fleeing climate change would further strain already deeply stressed city budgets.

Furthermore, a large influx of people of color often leads to “white flight”—an en masse departure of white people to nearby, more affluent cities—which deepens regional segregation and inequity.

The two combined lead to downward spirals in which the number of people of color in a community grows, leading to the departure of white people, causing property values to fall because there aren’t enough people of color who can afford to move into the neighborhood, which reduces a city’s ability to generate revenue while simultaneously leading to an influx of low-income people who are more likely to rely on city services. This phenomenon discourages building affordable housing, makes it hard for struggling cities to generate revenue, and maintains racial and economic segregation.

Strategic regional planning can combat these tendencies but needs to happen more aggressively than ever before as climate change amplifies existing inequality. First and foremost, the regions that will be most attractive to climate refugees need to encourage the development of affordable housing throughout the metropolitan area. Spreading the cost of supporting climate refugees across the region prevents any one city from being saddled with the expense of providing services and the inability to raise sufficient revenue.

Second, cities should desegregate school systems. In Louisville, Kentucky, a system to desegregate schools reduced white flight. The desegregation promoted stable housing prices and tax revenue, making it easier for cities to plan for the future.

Third, regions should build more public spaces than otherwise anticipated, in ways that avoid displacing existing poor and minority communities. Spaces like theaters, libraries, schools, and public transit will all face increased demand as new residents become acquainted with the region. These spaces increase property value, encourage wellbeing, and further reduce white flight, all of which help break the downward spiral of city revenue generation caused by white flight.

None of these solutions will prevent inequality, and refugees escaping climate change face extremely difficult challenges in relocating. But, by planning for climate refugees, local governments can help mitigate the effects of climate change on segregation.

In 2019, We Will Learn a Lot About the Fossil Fuel Industry’s Climate Change Culpability

March 15, 2019
Climate Change

Sam Duggan, MJLST Staffer

Several lawsuits, filed in 2017 and 2018, are seeking damages from fossil fuel companies for harms caused by climate change. Interestingly, the fossil fuel companies are conceding that climate change is real, it is exacerbated by burning fossil fuels, and it is causing injuries within the United States. For example, during a recent trial where the cities Oakland and San Francisco sued numerous fossil fuel companies for climate-related damages, an attorney representing Chevron said “Chevron accepts the consensus in the scientific communities on climate change. . . There’s no debate about climate science.” Yet, the fossil fuel companies also state that plaintiffs’ claims for nuisance and trespass, among others, must be dismissed because balancing the positive and negative externalities of fossil fuel use is a nonjusticiable political question, and the claims are otherwise displaced by the Clean Air Act. So far, the courts have largely sided with the fossil fuel companies. See City of Oakland v. BP; City of New York v. BP. Other similar cases will likely be decided this year.

Importantly, however, political question abstention and Clean Air Act displacement become less controlling depending on whether the fossil fuel companies knew about the risks of burning fossil fuels (they did), and took affirmative steps to convince the public and regulators there were no risks (they likely did)? If so, these companies may be liable under consumer protection and products liability laws just as tobacco companies were liable for their disinformation campaigns that obscured the hazards of smoking cigarettes. Lawsuits brought by plaintiff in Colorado, Maryland, and others are pursuing these legal theories, and courts will likely reach the merits this year.

Similarly, the states of New York and Massachusetts brought lawsuits against fossil fuel companies for investor fraud. These lawsuits allege, for example, that ExxonMobil perpetrated a “longstanding fraudulent scheme … to deceive investors and the investment community … concerning the company’s management of the risks posed to its business by climate change.” To support their claims, Attorneys General from New York and Massachusetts have vigorously sought discovery of Exxon’s internal communications and research—Exxon aggressively protested and countersued. In January 2019, the U.S. Supreme Court declined to hear a discovery dispute between Massachusetts and Exxon, therefore it allowed discovery of 40-years of Exxon’s climate-related documents. This discovery request promises to color the landscape of fossil fuel industry liability. 2019 may become a watershed year for holding the fossil fuel industry accountable for its contribution to climate change—or not.

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