COP 21: "Loss and Damage" provisions have become the sticking point

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Protesters at COP 21 target developed countries in demanding reform.  Photo: Ryan Stoa.

Protesters at COP 21 target developed countries in demanding reform.  Photo: Ryan Stoa.

Ever since the United Nations Framework Convention on Climate Change was created in 1992, there has been a division between rich industrialized countries and poorer industrializing countries.  The rich countries have typically been the strongest proponents of climate action, arguing that with all this new climate science it's everyone's responsibility to cut back on emissions.  In response the poor countries point out that rich countries got to reap the rewards of fossil-fuel driven industrial growth, and that growth is largely responsible for the GHGs trapped in the atmosphere. 

The COP 21 negotiations are showing that both groups have succeeded in making their point, to some extent.  That each country has shown up and pledged to reduce their emissions, including developing country giants like China, India, and Brazil, means the developed countries have succeeded in making emissions reductions a near obligation.  On the other hand, the developing countries have hinged the success of the Paris Agreement on the strength of the text's "loss and damages" provisions.  Essentially, in exchange for reducing emissions, developing countries want financial assistance from developed countries to help them cope with climate impacts. 

It's a reasonable request, and one the developed countries have essentially already agreed to in a broad sense, but it raises a number of thorny particulars that negotiators are having trouble resolving.  Resolving questions like Who has to pay, and how often?  and Who gets to receive, and for what purpose? are one challenge, but a potentially bigger hurdle will be the conceptualization of "loss and damage" provisions.  Developed countries are categorically against any language in the text suggesting they have legal liability for climate damages like loss of land, building damage, etc.  They are willing to make voluntary financial payments, but won't accept legal responsibility for climate impacts:

Industrialised countries acknowledge that they are obligated to provide climate finance, but with an eye on the changing global realities, would like developing countries "in a position to do so" to contribute to the money pot. This attempt to increase the donor base has been strongly contested by the developing countries.

The other contentious issue is who is eligible to receive the funds. All developing countries are eligible but increasingly there is talk of funding for "vulnerable" countries. There is however no clarity on what defines vulnerability. Many in the negotiations see this talk of vulnerable countries as a bid to divide up the developing countries bloc. The G-77 and China comprising a diverse developing countries have presented a resolutely unified front on the question of finance.

Ultimately the developing countries may realize that no country is going to accept the legal implications of a robust "loss and damages" provision.  Instead, they might end up angling for a strong financial commitment.  Rich countries, for their part, can make those commitments without implicating any legal obligations.  Instead of providing compensation for damages incurred from climate hazards like hurricanes, they can subsidize hazard insurance for countries in particularly vulnerable areas.  Many are saying the "loss and damage" provisions will come down to the wire.  Stay tuned.

COP 21: Paris Agreement won't address emissions from shipping

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The European Union released a report last week claiming that the global shipping industry may account for 17 percent of global GHG emissions by 2050 (it already accounts for 2.4 percent).  If the industry were a country it would be the sixth largest polluter.  But because it isn't a country, and the industry as a whole lacks meaningful regulation, the Intended Nationally Determined Contributions (INDCS) countries are putting forth to validate their emissions cuts don't account for the shipping industry.  That responsibility falls to the International Maritime Organization, a UN body with regulatory authority but little capacity to impose new rules on the world's existing shipping fleet. 

The original draft of the Paris Agreement included some language that would address shipping emissions, but the latest draft has dimmed the prospect of regulating the notoriously elusive industry.  At best it might implore the IMO to create GHG emissions reductions targets.  Putting the industry on notice that its emissions will be a concern going forward is better than nothing, but certainly a disappointment to climate activists.  Ben Adler's take:

There are many ways in which regulations could bend the industry’s emissions curve downward. The most obvious would be stricter and more broadly applied fuel-efficiency standards. The IMO could also set speed limits, as ships emit less when moving slower. Alternative fuels could be researched and deployed. Also, ships use a lot of electricity for on-board operations, and that could be generated using sources other than oil, as cargo ships are big enough to support solar panels or even wind turbines.
The IMO, despite having commissioned a report that demonstrates the scope of the problem, has yet to take action. Critics suggest that bureaucratic inertia and coziness with the shipping industry could be to blame. So it may need a push.
Precisely because it is so central to economic activity, shipping is a touchy subject for the international community to tackle. As a small island nation, the Marshall Islands is as economically dependent on shipping as anyone. More so, in fact: 6.1 percent of the world’s ships (by tonnage) are registered in the Marshall Islands and provide a major source of its tax revenue. That’s why it’s afraid to act alone to regulate ships. If it were the only country to impose new rules on ships flying under its flag, the ships would just register elsewhere. But the Marshall Islands isn’t afraid to push for strong global rules that would be the same for ships registered in any country. Whatever risk to its economy that might pose, it pales in comparison to climate change.

COP 21: Consensus Emerging on 5-year Reviews

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On the third day of the Paris Agreement negotiations, a consensus is emerging that countries should be evaluated every 5 years to monitor progress towards curbing emissions.  Periodic reviews have the benefit of ensuring that countries (and the international community) are aware that they are or are not meeting their emissions reductions commitments.  They also create an opportunity to impose further reductions if climate science continues to paint a bleak picture.  Here's Reuters:

Climate negotiators in Paris are drawing close to resolving one of the sticking points for a breakthrough emissions pact by favoring a five-year review period on promised greenhouse gas cuts, a top official said on Wednesday.
Regular reviews are seen as a crucial part of any agreement since countries' current pledges to cut emissions - submitted by 185 nations to the United Nations - will fail to prevent temperatures from rising 2 degrees Celsius (3.6 Fahrenheit) above pre-industrial times, seen as a dangerous level.
Countries have disagreed as to how often audits of those plans should take place. While many major emitters including China, the United States and the European Union supported a five-year period, a term included in an outline U.N. text last month, others such as India have been reluctant to commit.
"It seems now there is a growing consensus that (reviews) will be every five years," U.N. climate chief Christiana Figueres told a news conference on the third day of talks.There was still little progress on thornier issues, though, such as funding for developing nations and a long-term goal for phasing out fossil fuels.

COP 21: Opening Statements

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Today marked the first day of the 21st Conference of the Parties of the United Nations Framework Convention on Climate Change.  Negotiators will be hammering out the details of the Paris Agreement for the next two weeks (for an overview see here), but for today the spotlight belonged to the world leaders setting the stage for the conference.  

A common thread being woven into the various speeches is the important role that climate action and the COP 21 will play in the fight against terrorism.  Here is US President Barack Obama on that nexus:

He added that the meeting symbolised a global "act of defiance" that proves the world stands undeterred by attacks linked to the Islamic State of Iraq and the Levant (ISIL) group in Europe and beyond.
"What greater rejection of those who would tear down our world than martialling our best efforts to save it," Obama said.

And the host, French President Francois Hollande:

"What is at stake with this climate conference is peace," [Hollande] said at the opening of the summit.
"The fight against terrorism and the fight against climate change are two major global challenges we must face," he said.

Chinese President Xi Jinping is emphasizing the need for developed countries to support developing countries financially.  And Pope Francis described humanity as being "at the limits of suicide."

More to come as the negotiations progress.


The Politics of Solar Energy in Florida

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Rooftop solar in San Marco Island, Florida.  Image: Tai Viinikka

Rooftop solar in San Marco Island, Florida.  Image: Tai Viinikka

The Sunshine State, perhaps unsurprisingly, ranks third in the nation in rooftop solar potential.  It ranks first among states east of the Mississippi.  And yet Florida ranks a middling 14th in the nation in solar capacity installed.  What gives?  For one thing, Florida doesn't have a renewable energy standard (RES).  RESs require utility companies to source a certain percentage of their energy portfolio from renewable sources.  More than half of states have an RES of some kind.  

Also problematic are legislative barriers to rooftop solar installation.  If you're a Florida homeowner, you are free to purchase and install solar panels on your property.  But Florida doesn't allow third parties to provide those panels for you.  Landlords, for example, can't install panels for their tenants, and third party solar providers can't absorb the up-front cost of installation in exchange for monthly payments (often less than utility bills) from a homeowner.  The only entity that can sell power in Florida is a regulated utility company.  As this map shows, that makes Florida unique, one of only four states (Georgia recently authorized third-party solar) that prohibit third party solar:

Image: DSIRE

Image: DSIRE

The anti-solar climate in Florida is fostering opposition from the usual suspects, including the Southern Alliance for Clean Energy.  It's also creating a partnership between environmentalists and the Tea Party:

Debbie Dooley agrees that change is inevitable and may be coming sooner than many have expected. She is the president of the Green Tea Coalition and Conservatives for Energy Freedom, part of a growing movement among political conservatives who are advocating for solar across the country.
Bills have been awaiting passage "for years," she said, "and they have all stalled in committee. Now we are taking the message straight to the people, giving Floridians the right to decide for themselves."

Other conservatives are likewise frustrated by the rigidity of the state's solar rules:

"It is very frustrating to see how special interests affect politics," he said. "I'm a Republican solar contractor and I'm frustrated with my party in this state for taking donations that do not allow for competition and free market."

The groups are pushing for a constitutional amendment to be placed on the ballot in 2016, which would remove barriers to third party solar installation.  In response, utility companies have started their own solar campaign:

Opponents have started a committee and constitutional amendment of their own: Consumers for Smart Solar, which aims to protect the existing rules around solar power. The Florida Chamber of Commerce — whose board of directors includes executives from five power companies — is a supporter.

Utilities are right to point out that regulation is needed in the energy sector to ensure that energy provision and consumption is safe and reliable.  But there's likely a less extreme option available to the legislature than a blanket prohibition on third party solar.  We'll find out in November 2016 if Florida voters agree.

Nicaragua releases and approves Nicaragua Canal environmental assessment

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Image: ERM

Image: ERM

It took a while, but the government of Nicaragua finally released the Environmental and Social Impact Assessment (ESIA) for the proposed Nicaragua Canal megaproject.  It can be downloaded here.  The ESIA was handed over to the government back in early June, a few months after a group of us reviewed parts of the environmental studies at FIU in March.  It wasn't clear why the government was waiting so long to release the ESIA, though back in September the government announced that construction would be delayed in order to conduct further studies of the project.  It's not clear if those studies will still take place, as the government has approved the ESIA and allowed HKND (the company building the canal) to start construction:

Canal commission representative Manuel Coronel Kautz said the commission's decision authorizes China's HKND Company to start structural and construction design work [...] The canal, scheduled for completion in December 2019, will cut across the middle of the country and bisect Lake Nicaragua, known locally as Lake Colcibolca — the second-largest lake in Latin America and the largest drinking-water reservoir in the region. The canal will also cut through the Cerro Silva Nature Reserve.

One thing that's clear from the ESIA (developed by consulting firm ERM) is that while a net positive impact on the environment and local communities is possible, it remains an unlikely outcome under current planning scenarios:

The report says “the government would be wise to consider engaging with international development agencies such as the World Bank or the Inter-American Development Bank,” to avoid damage in sensitive areas like the Mesoamerican Biological Corridor, the Indio Maíz Biological Reserve, the San Juan River, Lake Cocibolca and surrounding nature reserves.
“The study says that in normal situations, these areas would generally be considered untouchable due to their social and ecological fragility,” López noted.
ERM says that if further studies are not conducted and “mitigation and offset measures” are not successfully implemented, “biodiversity impacts would be significantly worse than described.”
It recommended further studies to identify seismic risks posed by construction of the canal; gauge the impact of dredging in the lake; identify the threats from the introduction of saltwater into the lake; and assess the risk of a reduction of the outflow of water from the lake to the San Juan River.
It also concludes that without the implementation by HKND and the government of the environmental and social mitigation measures recommended in the report, not even Route 4 – the one that was selected and the only one considered viable – would have the positive net impact for the environment that could justify construction of the canal.

The American West is Diversifying its Energy Portfolio

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Image: ACORE

Image: ACORE

The American Council on Renewable Energy's 2015 report on western energy markets makes a convincing case that states in the American West are increasingly reliant on renewable energy sources.  Per the graphic shown above, the 13 western states accounted for half of the nation's installed renewable energy capacity, and half of the nation's private sector investments in renewable energy.  One factor driving the growth is the West's sheer size and renewable energy potential - the 13 western states encompass half the land area of the United States, including major river systems like the Colorado, Columbia, and Missouri, mountain ranges like the Rockies and Sierra Nevada, rainforests, volcanoes, deserts, and the Pacific coast.  The region is undeniably blessed with natural resources.

But the ACORE report also cites connectivity and inter-dependence as a major driving force behind energy diversification in the American West:

It is increasingly evident that the electric grids of western states are interdependent and complementary. To take fullest advantage of renewable supplies, fully utilize existing transmission infrastructure and manage costs to ratepayers, grid operators and regulators are looking to move towards an integrated western grid. 

Energy generation is only one side of the 'energy holy grail.'  The other is energy storage and delivery, where the energy industry would like to see more integration:

“We don’t want to do this necessarily the same way we did solar policy, where every single state in the nation has a different framework,” said Madeleine Klein of SoCore, a solar developer owned by Edison International [...]  For solar developers to operate in 50 states, Klein said, they have to navigate 50 different markets, with 50 different sets of regulations.  “We want to try to avoid that for storage, so that you’re looking at effectively the same market structure regardless of whether you’re looking at a northeast project or a southwest project.

It looks like the western states are moving towards an integrated energy framework.  The Energy Imbalance Market (EIM) aims to share renewable energy across state lines to accommodate for fluctuations in renewable energy generation and demand.  Several major utilities in California, Oregon, Washington, and Utah are already participating in the EIM, and others in Idaho and Nevada are thinking about joining up as well.  This integration might even prompt the western states to develop a regional compliance plan under the Environmental Protection Agency's Clean Power Plan requirements:

There are strong incentives for states throughout the western interconnection to cooperate on resource planning, transmission infrastructure, and development of a common emissions trading infrastructure. A regional plan would likely be more cost effective and enable states to access higher-impact and lower-cost carbon reductions in other states.

There's no question that a transition to renewable energies will be challenging (Bill Gates recently said it would take a miracle), and it will be interesting to see how the American West, with its vast natural resources and great distances between population centers, addresses the demands of energy generation, storage, and delivery.  

Keystone XL and the COP 21 Deadline, Ctd

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That was fast.  President Obama announced today that his administration would not be approving TransCanada's proposal to build the Keystone XL pipeline.  The decision came two days after the administration denied TransCanada's request to delay a final decision.  And on Wednesday I wrote:

If the pipeline were rejected before the COP 21 negotiations, it would further cement the feeling (shared by myself and others) that the Keystone XL fight is largely a symbolic one [...] Admittedly it's hard to quantify the extent to which a rejection of Keystone XL would bolster the US position on climate change during COP 21 negotiations, but if the administration is looking to maximize its leverage with other countries, a decision on the pipeline would be a bold move.  

President Obama appears to share those views.  On the symbolic nature of the Keystone XL fight:

“This pipeline would neither be a silver bullet for the economy, as was promised by some, nor the express lane to climate disaster proclaimed by others”

The President was also forthcoming about the influence that COP 21 had on his decision:

Obama said the Keystone decision was important ahead of the summit to reinforce the United States’ global leadership and commitment to combating climate change. “Approving this project would have undercut that global leadership,” Obama said. “If we want to protect the worst effects of climate change before it’s too late, the time to act is now.”

The NYT also points out that US-Canada relations may have played a large role in the timing of the decision:

The recent election of a new Canadian prime minister, Justin Trudeau, may also have influenced Mr. Obama’s decision. Mr. Trudeau’s predecessor, Stephen Harper, had pushed the issue as a top priority in the relationship between the United States and Canada, personally urging Mr. Obama to approve the project. Blocking the project during the Harper administration would have bruised ties with a crucial ally. While Mr. Trudeau also supports construction of the Keystone pipeline, he has not made the issue central to Canada’s relationship with the United States, and has criticized Mr. Harper for presenting Canada’s position as an ultimatum, while not taking substantial action on climate change related to the oil sands.

Here's the full announcement:

Keystone XL and the COP 21 Deadline

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A pumping station on the (existing) Keystone Pipeline System, Nebraska.  Photo: Shannon Ramos.

A pumping station on the (existing) Keystone Pipeline System, Nebraska.  Photo: Shannon Ramos.

The proposed Keystone XL pipeline is in the news again this week, after the pipeline company (TransCanada) requested that the US State Department delay its decision to approve or reject the project.  Ostensibly TransCanada made the request on the grounds that there are outstanding siting issues to work out in Nebraska, but the more likely reason is that the company fears the Obama administration will soon issue its rejection, possibly in the run-up to the COP 21 climate negotiations in Paris.  The administration will be trying to obtain as many concrete climate commitments from other nations as possible, and a rejection of the Keystone XL pipeline would send a strong message that the US is committed to the COP 21 process.  A delay, on the other hand, would likely push the decision onto the next president (many of whom have declared support for the project).  Today the State Department announced it would not grant TransCanada's request, and suggested that a decision will be made before the president leaves office.

If the pipeline were rejected before the COP 21 negotiations, it would further cement the feeling (shared by myself and others) that the Keystone XL fight is largely a symbolic one.  Supporters trump up the job-making potential of the pipeline, but those hopes are overblown ("between 35 and millions," according to Jon Stewart), and most jobs would be short-term construction positions.  On the other hand, approving the pipeline isn't likely to be the apocalyptic death to the climate system some project, largely because the oil can find its way to global markets by other means (one pipeline being proposed would take tar sands oil from Alberta to the Pacific Ocean, across sensitive wilderness areas and First Nations lands).  

That's not to say the symbolic fight doesn't matter.  Landmark victories have been hard to come by for the environmental movement in recent years, especially when it comes to climate change.  Demonstrating the ability to defeat a large energy project supported by the oil and gas industry and many Congressional politicians would be a monumental achievement and might catalyze other organized campaigns.  And doing so at the moment when the US is trying to show leadership during COP 21 climate negotiations would amplify the impacts of that achievement.  So while rejecting the pipeline project itself may not have a significant impact on GHG emissions directly, it may have a very significant impact indirectly. 

Ultimately that may be the most relevant long-term outcome of the Keystone XL fight.  Even if the pipeline is rejected, TransCanada can resubmit its application when the next administration takes office (the costs of going through the permitting process and NEPA review are significant but not insurmountable, and there are few legal obstacles that would prevent the company from resubmitting some variation of the initial proposal).  And while many are focused on the political influences on the pipeline's destiny, the global price for oil may be just as, if not more, influential.  If oil prices stay low, new investments in oil and gas are unlikely even if Keystone XL is approved.  If prices rise TransCanada can try its luck again with the next president.  Admittedly it's hard to quantify the extent to which a rejection of Keystone XL would bolster the US position on climate change during COP 21 negotiations, but if the administration is looking to maximize its leverage with other countries, a decision on the pipeline would be a bold move.  

3 Thoughts on 'How Change Happens'

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3 Thoughts on 'How Change Happens'

Duncan Green (of Oxfam, Cardiff University, and the excellent From Poverty to Power blog) released a public draft of his latest book today, entitled "How Change Happens."  He's eager to read as many reviews of the book as possible before it's published next year, and I'm happy to oblige.  Here's a blurb from the book proposal:

Human society is full of would-be ‘change agents’, a restless mix of campaigners, organizers and development workers, both individuals and organizations, set on transforming the world. They want to improve public services, reform laws and regulations, guarantee human rights, achieve greater recognition for any number of issues or simply be treated with respect.  Striking then, that universities have no Department of Change Studies, to which social activists can turn for advice and inspiration. Instead, scholarly discussions of change are fragmented with few conversations crossing disciplinary boundaries, or making it onto the radars of those actively seeking change.  This book brings together the latest research from a range of academic disciplines and the evolving practical understanding of activists [...] it tests ideas on How Change Happens and sets out the latest thinking on what works to achieve progressive change.’

The book is a worthy read, especially for those working in international development, Green's field of expertise and the focus of this book.  In fact, this book might have been called "How International Development Happens."  While the book is broad enough to encompass change broadly defined, in practice this book is most helpful for those in development working on designing, implementing, or evaluating development work.  With that in mind, here are three thoughts on this impressive early draft:

Read More

COP 21: Measuring Progress After Paris

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I argued in this post earlier this month that the upcoming Paris Agreement climate change negotiations will require parties to confront two simultaneous dynamics.  On the one hand, the strategy of allowing each country to determine their climate change mitigation benchmarks (Intended Nationally Determined Contributions or INDCs) has been successful in fostering participation in the Paris Agreement framework, particularly among developing countries who might have scoffed at multilaterally-created mitigation rules and norms.  On the other hand, we know that the combined impact of the INDCs (and at this point most have been submitted) is not enough to meaningfully combat climate change.

This aggregate shortcoming will force negotiators to consider how INDCs should evolve across time.  Clearly a static commitment to, for example, reduce GHG emissions by 22% by 2030 (in the case of Mexico's INDC) would expire in 2030, and may prove woefully inadequate as climate science provides more feedback on the relationship between GHGs and the climate system.  So at what point would these INDCs need to be revised, and with what criteria should revised INDCs be evaluated?

One proposal being floated around suggests a five-year submission and evaluation cycle in which countries must progressively submit more ambitious INDCs than the previous five-year commitment.  Something like the following:

Five year intervals probably strike the right balance between the need to re-evaluate mitigation actions and the political capital required to address the issue on a periodic basis.  What is lacking from this proposal though, is any kind of stick that would complement the carrot of determining mitigation commitments nationally.  The INDCs appear to be a good model if securing broad-based participation is your objective, but so far the approach isn't doing enough to reduce climate impacts.  There is a risk that the Paris Agreement - by endorsing the INDC approach and cementing it as the global climate paradigm - will perpetuate an inadequate global response.  

A 5-year INDC cycle might rest on the hope that the momentum created by the INDCs does enough to make countries address their own emissions that they recognize and pursue the benefits of a climate friendly agenda on their own, and step up their mitigation efforts out of self-interest.  It's a plausible, if tenuous, path to success.

California passes bills to regulate marijuana cultivation

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California Governor Jerry Brown.  Image: Ohad Ben-Yoseph.

California Governor Jerry Brown.  Image: Ohad Ben-Yoseph.

Medical marijuana has been legal in California since 1996, when the state passed Proposition 215 establishing the Compassionate Use Act.  It took almost 20 years, but legislators finally took steps to create regulations for the marijuana industry.  Over the weekend three bills - AB 243, AB 266, and SB 643 - were signed into law by Governor Jerry Brown.  Of these, AB 243 is the most significant in my view, as it finally creates a regulatory framework for marijuana cultivation, the first step in the supply chain that is often overlooked.  The bill would empower several agencies, including the Department of Food and Agriculture, the Department of Fish and Wildlife, and the State Water Resources Control Board, to develop regulations that would minimize the environmental impacts of marijuana cultivation while encouraging farmers to participate in the regulatory process instead of remaining in the shadows.

That last part is important - by some counts there are around 50,000 marijuana farms in California, and many of them are adept at clandestine agriculture.  Alissa Walker, writing for Gizmodo, wrote a really nice article this week pushing back on the "weed is sucking rivers dry" narrative.  It's worth a read.  She also quotes me saying that the job isn't done yet: regulators still have to develop the regulations and get farmers to participate:

[T]here’s another risk for suddenly applying regulations to what has thrived as an essentially black market industry for decades, according to a study by Ryan Stoa, a Senior Scholar at Florida International University who specializes in environmental and natural resources law.

He spent the last few months interviewing cultivators and scientists throughout the Emerald Triangle and believes that some regulatory water rights issues still need to be worked out—especially because so much of the state’s meager rain falls in those northern counties where pot cultivation is expanding. “If you take a really heavy-handed approach to regulation, people will stay on the black market,” he says. “Regulators need to find that delicate balance between regulations that protect the environment while providing incentives for farmers to participate.”

It will be fascinating to watch California set up these environmentally-conscious cultivation regulations.  Even states that have legalized recreational marijuana use (like Colorado or Washington) have done very little to address cultivation, much less the environmental impacts of it.  California, it seems, is giving it a shot.

COP 21: The "Non-Paper"

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The Eiffel Tower in Paris, France, seen through smog pollution.  Photo: Olya Sanakoev

The Eiffel Tower in Paris, France, seen through smog pollution.  Photo: Olya Sanakoev

From November 30 to Dec 11 member states of the United Nations will convene in Paris in the hopes of coming away with a meaningful global agreement to reduce greenhouse gas emissions and stem the tide of climate change.  The 21st Conference of the Parties to the UN Framework Convention on Climate Change (known more simply as "COP 21") is shaping up to be a historic event, for better or worse, in part because so much is riding on the agreement.  There are myriad statistics and evidence that climate change impacts will affect virtually everyone on the planet, some at very high cost.  

Recognizing this, most parties have already made commitments to the Paris Agreement in the form of "Intended Nationally Determined Contributions" (INDCs).  The INDCs represent each country's commitment in terms of GHG emissions reductions.  The United States, for example, has pledged to reduce its emissions by 26% by 2025 (using 2005 as the baseline year).  So far 119 countries have submitted their INDCs, including all industrialized nations, Brazil, China, India, Indonesia, Russia, and South Africa.  There aren't many big players left who haven't made a commitment yet, which is a good sign.  On the other hand, it's unlikely that the combined commitments are enough to meaningfully combat climate change:

It has been calculated that these INDCs would still mean a planetary warming of 3 degrees C above pre-industrial levels, overshooting an international commitment by one degree.
A recent study by Stern and others also shows that the reduction pledges from the US, European Union, and China – who together account for 45% of global emissions – will miss by almost double the 2030 target of 35 gigatons of CO2e emissions.

Last week I attended a Climate Reality workshop with former Vice President Al Gore, who admitted that when he first heard that countries would be able to come up with their own GHG emissions reductions targets, he thought it was a terrible idea.  But he's since reconsidered, in part because it appears that the freedom and ownership countries have to determine their own INDCs has fostered meaningful participation in the COP 21 process.  I tend to agree, though the text of the agreement itself may still play a large role in determining how well these INDCs (and future actions) combat climate change.

This week the Paris Agreement "Non-Paper" (known more colloquially as "the first draft") was released to the public.  It has been reduced from 80 pages to 20, and naturally, some important material has been left out:

“[This] new text has left out a significant piece of the climate change solution puzzle: forests. The land-use sector accounts for about 10 percent of annual global emissions,” said Gustavo Silva-Chávez, Program Manager for the Forest Trends’  Expenditures Tracking Initiative (REDDX).

Another important sector not directly addressed in the non-paper?  Energy.  And an ambitious requirement that 100% of the world's energy be provided by renewable energy by 2050 was also removed.  Of course, since this is the first draft and negotiations have scarcely begun, the key operational elements of the text have not been resolved either.  The difference between "shall" and "should," for example, is fairly significant.  Here's a snippet of the text:

The full text of the non-paper can be viewed here.  I will be following and attending the COP 21 negotiations.  Stay tuned.

Nicaragua releases executive summary of Canal Environmental Impact Assessment

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Proposed route of Nicaragua Canal.  Image: ERM.

Proposed route of Nicaragua Canal.  Image: ERM.

While we're still waiting for the full Environmental-Social Impact Assessment (ESIA) for the Nicaragua Canal to be released, the government of Nicaragua released the Executive Summary of the ESIA yesterday.  It can be viewed here.   The consulting firm that put the ESIA together is optimistic that the impacts can be mitigated (and even offset to a degree that the overall impact is positive on both the environment and human communities), but the cautionary tone of their conclusions is telling:

[The Project] is fraught with risks.  If the Project is not constructed in accordance with international good practice and the proposed mitigation measures are not properly implemented; or if the Project's business case is not realized and the predicted longer term indirect and induced benefits from the Project do not occur; or if the construction of the canal is not completed, Nicaragua may be worse off than doing nothing.
In summary, the Project does offer potential benefits to the environment and people of Nicaragua, but only if its business case is robust, the financing to complete construction is secure, and the Project is constructed and operated to international standards (i.e., recommended mitigation measures are fully implemented).

In other words, it might be possible to construct and operate the canal in a way that provides net benefits to the Nicaraguan people and their environment, but it's not going to be easy.  

Nicaragua Canal construction pushed back due to environmental concerns

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Ometepe, an island in Lake Nicaragua, lies just north of the proposed canal route.  Photo: David Armstrong.

Ometepe, an island in Lake Nicaragua, lies just north of the proposed canal route.  Photo: David Armstrong.

Last March I helped organize an independent panel review of the environmental impact assessment for the proposed Nicaragua Canal.  Our conclusions were made public, but the government of Nicaragua has yet to release the impact assessment.  Circle of Blue wrote a follow-up piece I posted on the blog in June (see here), and last month the Wall Street Journal questioned the economic feasibility of the mega-project:

It’s hard to make an economic case for a Nicaragua canal. Nicaragua originally estimated the cost of the 172-mile waterway at $40 billion and now it’s $50 billion. Panama Canal Authority CEO Jorge Quijano told me last summer that he estimates the project will cost more like $67 billion-$70 billion.
Extra-large container ships bring goods from Asia to West Coast ports in the U.S., where the cargo is unloaded and moved by railroads and trucks to the American heartland. But Asian cargo ships that transit the Panama Canal for the Eastern Seaboard make multiple ports of call, from Halifax to Miami and the Gulf Coast. Many of these ports cannot accommodate the largest container ships anyway, so the demand for taking them through the canal is not there. 

HKND hired a British firm, Environmental Resources Management (ERM), to study the social and ecological effects of the Nicaragua canal.   In March an independent review panel, organized by Florida International University’s Southeastern Environmental Research Center and College of Law, viewed draft copies of some sections of the report. The panel concluded that the study was done too quickly to be thorough and that ERM was not given sufficient data about the construction plan. In its response ERM agreed that the study schedule was “aggressive” and that “the lack of a final feasibility study hampered” the analysis.

There has been some skepticism among the review panel that the government would seriously consider the environmental impact assessment or our feedback, but this week the canal commissioner announced that construction would be pushed back in order to conduct the studies we've been calling for:

Paul Oquist, executive director of the government’s canal commission, said that four additional studies to identify new mitigation requirements had been recommended by UK-based Environmental Resources Management, one of the canal’s environmental assessment contractors.

“We and (Nicaragua president Daniel Ortega) have made the decision that all studies recommended by the environmental groups have to be undertaken,” Oquist said yesterday in Washington, DC at a forum sponsored by the Council of the Americas, according to IHS Maritime 360.  Oquist added: “No stone will be left unturned in terms of the environmental elements.”

The surprise announcement will be welcomed by scientists who have criticised the quality of ERM’s work in compiling the environmental impact study.

The environmental impact assessment, as far as I can tell, remains classified.  Still, that the government appears to be taking our concerns seriously is a promising sign that environmental impacts will be mitigated.  Or, as one of my colleagues pointed out, "additional studies" may be nothing more than a convenient excuse to buy time to find more investors.

Energy Firms Move Into Cuba

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Image: Jorge R. Pinon, 2012.

Image: Jorge R. Pinon, 2012.

Back in May I predicted that, with the warming of US-Cuba relations, energy companies would start lining up for a chance to explore Cuba's potentially lucrative offshore oil and gas reserves.  Firms have been showing interest, but perhaps not as enthusiastically as some (including myself) predicted.  French energy giant Total allegedly struck a deal with the Cuban government, but later denied the claims.  Since then energy firms from Angola and Australia have signed deals to explore and potentially exploit offshore oil reserves.  

So far these oil and gas deals have been limited, in part because Cuba has retained certain nationalization requirements for foreign companies.  It also appears that the absence of US energy firms, due to the ongoing embargo, removes some of the industry's biggest players from the market.  The embargo's conditions also limit the extent to which foreign firms can use American equipment and technologies, and this might significantly increase the risk of environmental damage.  

[Former EPA Administrator William Reilly] noted that Cuba's expertise lies with drilling in shallow waters. U.S. drilling equipment and technology is widely regarded as the best and safest in the world, he said, and American companies might highlight that expertise in a push for access to Cuba.  “The companies could well make the case — and I would help them make the case — that it would advance the safety of Florida and the environment and the Gulf if American companies ...were doing the drilling in Cuba,” Reilly said. “There ought to be a blanket exemption for anything relating to spill control.”

The "blanket exemption" refers to the requirement that US companies obtain a special license from the federal government to conduct oil spill clean-up activities in Cuban waters.  At present there are too few licenses to ensure that a spill would be effectively contained before hitting the coast of Florida.  According to one estimate, less than 5 percent of the equipment, vessels, and services used to clean up the Deepwater Horizon spill would be legally available to respond in Cuban waters.  Whether French, Angolan, or Australian energy firms are compliant with embargo terms or not, the US remains unprepared to unleash the full force of oil spill clean up capacities.  

It is unclear when these companies will actually start extracting oil and gas.  Cuba claims production could begin in 2016 with the lifting of the embargo.  US energy heavyweights are taking notice, and some included Cuba in their lobbying disclosure statements:

Shell Oil Company, the U.S.-based subsidiary of Royal Dutch Shell, reported spending almost $2.5 million from April through June lobbying the federal government on a laundry list of topics—including issues related to Cuba sanctions, disclosure reports show. Chevron U.S.A. Inc. reported shelling out almost $2.2 million to influence the federal government on issues including the “lifting of Cuba sanctions.” Meanwhile, Halliburton spent $100,000 plugging multiple matters, including “Cuba status,” the disclosures show.

In October a high-level meeting will take place in Havana in order to "work on establishing uniform environmental and safety policies for offshore drilling throughout the Gulf of Mexico and the Caribbean Sea."  While safety and the environment will be on the agenda, industry reps will surely be keen to discuss the lifting of the embargo in order to facilitate the involvement of US firms.  And while that may be a worthy topic, US representatives would do well to prioritize the easing of restrictions to licensing requirements that impede oil spill recovery efforts.  

Weed and Wildfire (and Insurance Law)

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Image: Texas Military Forces 

Image: Texas Military Forces 

The last two posts on this blog have covered wildfire policy and marijuana regulation, so it seems like a good time to address the convergence of those dynamics.  In the American West, which just happens to host an inordinate amount of high intensity wildfires and marijuana farms, the wildfire season is taking its toll on the marijuana industry.  Other industries are taking a beating as well, but the marijuana industry is particularly vulnerable.  First, because its clandestine history pushed marijuana farming into remote and mountainous locations, otherwise known as the wildland-urban interface, where people and property are most at risk of wildfire damage.  Almost a third of US housing units are located in the wildland-urban interface, but land use laws, zoning ordinances, and building codes can mitigate wildfire risk to some extent.  For the marijuana community, many of whom have long been operating in the shadows, those legal adaptation mechanisms haven't historically been available to reduce risk.

But now that marijuana cultivation is being legalized in many states, the farming community should be more comfortable working with firefighters and fire prevention programs.  That appears to be happening, according to Madeleine Thomas:

Some growers, like Tim McCormack, have been lucky. McCormack serves as CEO of Antoine Creek Farms, one of the largest licensed farms permitted by the state of Washington. The few thousand plants he tends comprise nearly 20,000 square feet of plant canopy. Flames from the Chelan Complex fire, one of the largest wildfires still burning across the state, were about five feet from his farm before firefighters were able to divert their course elsewhere. Had Antoine Creek Farms been caught in the Chelan Complex, McCormack estimates he would have lost several hundred thousand dollars [...] "the courageous firefighters actually did a back-burn on the back third of my property, and they saved us from a third fire."

But the legalizing marijuana industry still has a second hurdle to overcome: the reticence of financial institutions to participate in the market.  In the case of wildfires, farmers don't have access to crop insurance:

Compounding McCormack's worries, the issue of financing in the marijuana trade is a cumbersome one, as many farms and shops continue to find themselves spurned by pessimistic (sometimes moralistic) banks and insurance agencies.
"If I was growing wheat or if I was growing grapes, it wouldn't be that bad because I would file an insurance claim and they would send in an adjuster and they would evaluate what we had and make some appropriate claims based on the loss," McCormack says. "Well, the marijuana industry doesn't yet have crop insurance, so basically if we had burned down we would be out of business. That'd be it for us."

That's not entirely the banks' fault, as the federal government hasn't exactly embraced marijuana financing.  The Obama administration issued marijuana banking guidelines earlier this year, but reserved the right to penalize banks if they reported inaccurate information about marijuana businesses.  At this point the benefits of servicing the marijuana industry don't appear to outweigh the costs:

"There's tremendous risk and little reward," said Rodney K. Brown, president and chief executive of the California Bankers Assn. "The bottom line is it's still against federal law … and you're subject to both prosecution and loss of a bank's charter."

Complaints about the banking issue have so far focused on the security risks of marijuana businesses dealing in large quantities of cash, or the inefficiencies of a cash-only marketplace, but now we can add crop insurance and wildfire vulnerability to the list.

Introducing "Weed and Water Law"

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Satellite image of the Island Mountain area and the Eel River.  Taken from Google Maps.

Satellite image of the Island Mountain area and the Eel River.  Taken from Google Maps.

If you've been following this blog you've probably noticed that I've been exploring the environmental impacts of marijuana policy for some time now (see archived blog posts on the topic here).  While so many states have either legalized or are close to legalizing marijuana, almost none of them have created a regulatory framework to address environmental issues.  

Since May I've been working on an article about marijuana and water rights.  Water allocation is regulated at the state level, so there are a number of different water rights systems in the United States.  My article is the first to look at these various rights regimes and consider how they will interact with the marijuana industry.  The full draft of the article is now available here.  Below is the introduction:

In late June of 2015, a convoy of vehicles carrying enforcement officers from four different counties of northern California drove up and into the remote and rugged slopes of Island Mountain. The mountain had been given its name by 18th century settlers who observed that it was nearly surrounded by the waters of the Eel River and its tributaries. Today it represents “the dark green heart of the Emerald Triangle,” a region known for its prolific cultivation of marijuana. The enforcement officers conducted open-field searches on private lands, and by the end of the week-long ‘Operation Emerald Tri-County’ had confiscated 86,578 marijuana plants.

While police raids of marijuana farms is nothing new for the area, this particular operation raised some eyebrows. Unusually for a raid of this magnitude, no federal officials were involved – the raid was a wholly state operation. Since legalizing the medicinal use and cultivation of marijuana in 1996, California has been reticent to allocate state resources towards marijuana enforcement, decriminalizing possession of small amounts state-wide in 2010 and capping civil fines at $100. Also unusual were the lands being targeted by the county officers. Seventy percent of marijuana plants seized by law enforcement are illegally grown on public lands, but this operation went after privately held marijuana grows with some measure of legal protection under the state’s Compassionate Use Act. Until this point, a state raid of private lands was uncommon. The raid thus signaled a shift in the enforcement of marijuana laws, but not because the counties were cracking down on marijuana per se. Marijuana, like every other crop in the state, had fallen victim to water scarcity.

Months earlier, in January of 2014, the Governor of California issued a drought state of emergency in response to ongoing shortfalls in freshwater supplies. The declaration asked state agencies and officials to “take all necessary actions to prepare for these drought conditions.” Since then, the drought in California and across the United States has become a mainstream topic of conversation, dominating headlines and forcing governments to re-examine their water regulations. Water scarcity affects virtually all sectors of economic life, and as an agricultural commodity, marijuana is not immune. There is a paucity of research on marijuana and water supplies, almost certainly due to the covert nature of marijuana production. But in March of 2015, the first credible scientific study of the impacts of cultivation on water resources found that the demand for water to irrigate marijuana plants often outstripped water supplies. Data from the study came from the Eel River watershed.

‘Operation Emerald Tri-County’ is the clearest sign yet that the rapidly evolving forces of marijuana legalization and water scarcity are about to collide. The enforcement officers may not have been joined by federal officials, but they were accompanied by personnel from the state Department of Fish and Wildlife on suspicion of water abuses. Later the four counties claimed the raid itself was motivated by violations of state water regulations, not marijuana cultivation. After finding unpermitted stream bed alterations, diversions, and reservoirs, the officials moved to confiscate the privately grown plants.

In the aftermath of the raid, it became clear that the environmental intentions of the state may not have produced the greenest long-term consequences. Several victims of the raids were members of a political action group working with the counties to draft ordinances that would increase transparency and bring growers into compliance with environmental laws. The group’s director was dismayed that the raid would force growers back into the shadows, away from the state and county’s regulatory framework. A previous effort in 2010 was successful in partnering private growers with county officials to monitor plants and facilitate regulatory compliance, but a federal raid and subpoena of the program’s paperwork shut it down and broke up the partnership.  While states can and should enforce water laws in the marijuana industry, doing so without alienating the regulatory targets will be challenging.

This is especially true when considering the pace and mechanism of marijuana legalization initiatives. Marijuana is already legal for recreational use in Colorado, Washington, Oregon, Alaska, and Washington DC. Between now and election day 2016, an additional 14 states may place marijuana legalization initiatives on their ballots. In addition, 23 states and Washington DC have legalized medical marijuana, with up to seven states pending legislation. The fact that legalization is largely taking place through ballot initiatives suggests that the public won’t be waiting for state governments to get their regulatory ducks in a row. A majority of Americans favor marijuana legalization, raising the likelihood that state water law doctrines will be tested sooner rather than later.

Reconciling marijuana legalization within the structures of water laws and regulations reveals two broad conclusions. First, for many states the legalization of marijuana is likely to strain existing water regulation resources, disrupt water markets, and interfere with water rights. Marijuana is arguably the largest cash crop in the United States, and while the industry has already been using significant water resources, simply enshrining historical uses is not a viable option for many jurisdictions. On the other hand, states must bring marijuana producers into the fold lest the industry continue to operate in the shadows, and doing so will require some accommodations for producers to use water resources.

Second, and conversely, water scarcity will play an increasingly large role in the development of the marijuana industry. The tri-county raid set a precedent that more law enforcement officers and state agencies are likely to follow in order to safeguard precious water supplies. Even well-established water rights in the agricultural sector have been cut and re-negotiated, and marijuana producers joining the regulatory fray will need to navigate the various idiosyncrasies of centuries-old water laws to maximize their allocations. States are likely to place increased scrutiny on producers who choose to grow or irrigate outside of legal channels.

These broad conclusions stem from a systematic analysis that addresses the gap in understanding the relationship between water rights and marijuana legalization. Section II begins by describing status quo marijuana production taking place outside the context of state water law doctrines. While marijuana can be grown sustainably, unregulated production often leads to illegal and destructive water practices affecting downstream rights holders.

Sections III and IV envision a legal marijuana market governed by the predominant doctrines of US water law: prior appropriation and riparianism. Each system presents a unique set of legal and regulatory challenges, and for states like Colorado, these challenges are already evident. In the American West, prior appropriation states will need to adapt to the relatively rigid nature of priority water rights, as well as the federal government’s outsized role in water allocation and marijuana prohibition. States employing riparianism or regulated riparianism will have a slightly easier time incorporating marijuana cultivation into existing systems, as long as the doctrinal or regulated administration of water rights is holistically applied to the legal marijuana industry.

In Section V the theoretical becomes reality. California’s uniquely mixed system of riparian and appropriative rights provides a number of opportunities for marijuana cultivators to come into compliance with water laws. However, the state’s decentralized and haphazard approach to marijuana regulation creates uncertainty in the marijuana industry. That uncertainty bleeds into the administration of water rights despite the intentions of both cultivators and regulators.

Section VI concludes with recommendations for states in the process of legalization. By applying water laws to the emerging legal marijuana industry, this study identifies a number of key trade-offs states must make in reconciling marijuana cultivation with water scarcity. This section considers the costs and benefits of decentralization, restrictive cultivation licensing, and the “no action alternative.” While water laws will occasionally clash with the new marijuana economy, this Article identifies opportunities to smooth the transition.

Wildfire and Causation: Climate Change or Disaster Policy?

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Firefighting in Utah.  Photo: US Army.

Firefighting in Utah.  Photo: US Army.

Wildfires are in the news again after portions of Idaho, Washington, and California were ravaged by high intensity fires this month.  Which means it's time for another reminder that climate change is to blame.  Here's The Guardian's Char Miller:

What [firefighters] have encountered on the firelines in the past few years is evidence that everything has changed as a result of global warming [...] Temperatures that spike above long-held norms, record-breaking low-humidity levels, multi-year droughts, tinder-dry vegetation and fierce winds are among the factors fueling these new, more massive infernos. The sooner that firefighting agencies, public officials, policymakers and citizens acknowledge the impact that climate change is having on the frequency, intensity, duration and behavior of fire, the sooner that they will begin to develop new responses to wildland fire in the US west."

Climate change is one of the factors.  But is it the most significant factor?  Perhaps more importantly, is it the factor that firefighters and land management agencies should be paying the most attention to?  Agencies and policymakers may not need to "develop new responses" if revisiting an old one is available instead.

Last year I wrote an article about disaster law in the US, in which I argued that the climate change debate is obscuring the fact that our current disaster laws - such as wildfire policy - aren't close to providing resilience to begin with (that article was published online this summer, see here).  While the focus today is on climate change, and how it exacerbates wildfire risk, there are other causal factors that wouldn't be as massively challenging to address.   First among those is a predilection for firefighting that, over the past hundred years or so, has been successful in putting out the small, low-intensity fires that were common in North America when the best defense was fire prevention or adaptation.  These small fires would clear vegetative growth and provide breathing room for forests.  After a century of firefighting, our forests are now choked with vegetation, providing the perfect conditions for the large, high-intensity fires we are seeing today.  Take a look at this chart showing trends in wildfires and acres burned:

Chart produced from data provided by the National Inter-Agency Fire Center.

Chart produced from data provided by the National Inter-Agency Fire Center.

A wildfire policy of firefighting has been successful in reducing fire frequency, but has resulted in an increase in acres burned.  Putting out small fires only builds up the fuel needed to create the big ones that firefighters are helpless to stop.  Firefighting agencies may not be able to solve climate change, but they can adjust their strategic priorities to favor more fire prevention and proscribed burns (policies that have been around for a while) instead of relying on firefighting quite so heavily.  Climate change may make things worse no matter what, but a second look at our disaster laws might show that a basic change in approach might go a long way toward building resilience.  

Wildfire in Yellowstone National Park.  Photo: National Park Service.

Wildfire in Yellowstone National Park.  Photo: National Park Service.