Was the President's Keystone XL rejection constitutional?

An oil pipeline near the Copper River in Alaska.  Photo: Luke Jones.

In the run-up to the COP 21 Climate Conference, US energy politics was dominated by President Obama's rejection of TransCanada's proposed Keystone XL pipeline.  The pipeline would have extended and modified the route of the existing Keystone pipeline, facilitating the extraction of Canadian tar sands oil and helping bring it to market.  Before the decision was made, I wrote about the impact a rejection of the pipeline might have on COP 21 negotiations:

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.  

As it turned out, the perception that Keystone XL would contribute to global climate change was a major factor in rejecting the project.  The State Department had already concluded that other environmental impacts would be minimal (a disputed claim), and even questioned the idea that Keystone XL would have a meaningful impact on GHG emissions.  Still, it would have been difficult to push the international community towards climate action if the US President didn't appear to be taking action himself.

It's now clear that TransCanada intends to use that reasoning against the President.  In a brief filed in January in a federal district court in Houston, Texas, TransCanada alleges that the President's rejection of the pipeline was unconstitutional.  This week several states (Oklahoma, Kansas, Montana, Nebraska, South Dakota, and Texas) filed a brief in support of TransCanada's claims.  The most interesting claim is that the President lacks the constitutional authority to reject a pipeline project.  Here is the gist of the argument:

Essentially, the argument boils down to this: Congress has constitutional authority to regulate foreign and domestic commerce; Congress has not delegated that authority to the President; and to the extent that Presidents have traditionally exercised approval power in the past, none have rejected an international pipeline on the basis that it would undercut the President's bargaining power in unrelated international negotiations.

There is some merit to the claim, but of course, the issue is not as clear-cut as the brief suggests.  While Congress has not expressly delegated approval powers to the President, it has not established a statutory scheme for regulating international pipelines either.  So there is an absence of regulation, within which several Presidents have stepped in to make approvals and regulate international pipelines to some extent.  Here is Prof. James Coleman on the federal government's likely response:

President Obama’s administration will raise several counterarguments. First, it will argue that the President has inherent and unilateral constitutional authority to control the nation’s borders, so he must have some kind of ability to control international border crossings. Second, if Congress has not established any criteria for the President to use in this decision, then he is free to create his own criteria. Third, President Johnson established this process almost fifty years ago and it has been frequently used to approve pipelines so Congress has, with the passage of time, acquiesced to this process. Fourth, federal district courts have upheld the President’s unilateral decision to approve international pipelines.

The process President Johnson established was Executive Order 11423 in 1968, which allowed the President to approve international pipelines as long as they serve the national interest.  Presidents have long followed this process, and until the Keystone XL rejection, it was largely uncontroversial.  What TransCanada is arguing, however, is not just that the President doesn't have constitutional authority to approve or reject international pipeline proposals; even if they lose that point, they can argue that in this specific case, the rejection was based on the project's perceived impacts, not its actual impacts.  

A comprehensive energy policy framework does not exist, and for the most part, has never existed.  That absence results in some constitutional ambiguities, such as the one in this case.  I think it likely that the President's authority to review and approve/reject international pipelines will be upheld in federal court; cross-border pipelines are sufficiently related to foreign affairs, even if foreign and domestic commerce is implicated as well.  However, the government should expect to receive some flack for its reasoning.  In the future, pipeline decisions may be more closely based on the substantive review of the project and its direct impact on the national interest as a result of this challenge.  

Coral Gables' aggressive sea level rise agenda

While climate change and sea level rise are a decidedly political and partisan issue on the national level, here in Florida I have only encountered local governments that are trying to be as proactive as possible.  So far I have worked with Miami Beach, Miami, Hialeah, and Coral Gables city officials (for the most part I have no idea what their political affiliations are), and they are all keenly aware of the threats sea level rise present to South Florida communities.  Last week Politico published just the latest story on sea level rise in Miami Beach (read it here).  And several Florida mayors, many of whom have endorsed Republican presidential candidates, sent a letter to those candidates urging them to acknowledge climate change, sea level rise, and the actions needed to address our vulnerabilities.  Their plea became a point of contention in the most recent Republican presidential debate.

Coral Gables has been aggressively addressing sea level rise, with mitigation policies that incentivize energy efficiency and education programs that raise awareness of infrastructural threats.  They are hosting an ongoing speaker series on sea level rise, and it was a pleasure for me to participate last week.  The full video of my talk can be viewed here:

US and Canada agree to cut methane emissions; will regulations hold up?

US President Obama and Canadian Prime Minister Trudeau greet the audience.  Photo: Pete Souza, whitehouse.gov.

When President Obama announced that the US would not be approving the Keystone XL pipeline project last November, a move that would frustrate efforts to bring crude oil from Canada to global markets, it was believed that Canadian Prime Minister Justin Trudeau's more climate-friendly politics made it easier for Obama to nix the project without damaging US-Canada relations.  The previous Prime Minister had pushed the pipeline as a national priority, while Trudeau was more circumspect in supporting the project.

It now seems climate policy might be an opportunity for collaboration between the US and Canada.  During Trudeau's visit to the White House this week, the two heads of state announced a joint plan to cut methane emissions in the oil and gas sector.  The plan calls for a 40-45 percent reduction from 2012 levels by 2025.  As the EPA administrator noted:

EPA will begin developing regulations for methane emissions from existing oil and gas sources [...] We will begin with a formal process to require companies operating existing oil and gas sources to provide information to assist in the development of comprehensive regulations to reduce methane emissions. An Information Collection Request (ICR) will allow us to gather information on existing sources of methane emissions, technologies to reduce those emissions and the costs of those technologies in the production, gathering, processing, and transmission and storage segments of the oil and gas sector.

Unfortunately, developing regulations of this nature take time, and even if the administration manages to complete the rule-making process by the time President Obama leaves office, actual implementation and enforcement of any new rules would be undertaken by the next President.  Unfortunately, several of the remaining candidates for president are not proactive when it comes to climate policy, and are unlikely to meaningfully enforce these rules.  They may even be prompted to develop their own rules for the oil and gas sector that disregard methane emissions.

The NYT's Andrew Revkin, for his part, is disappointed that these rules are coming so late:

McCarthy’s assertion that the leakage issue only became clear enough to act now is hard to swallow, particularly given Obama’s longstanding “all of the above” push on energy, which I supported, but only if it came with extra attention to oversight [...] Click back to our front-page 2009 report in The Times and this related Dot Earth post to see how clear the problem, and solutions, were even then.

Agency rulemaking in the closing hours of an administration's term in office is nothing new, of course, and many of those rules remain in effect despite lacking political support from the next administration.  But coupling these rules with foreign policy and the national security interest implicated by good relations between the US and Canada is a shrewd move that makes it more difficult for the next president to rescind the methane reduction pledge.  Prime Minister Trudeau will likely be in office for the next few years and is aggressively promoting his own climate policies.  Failing to hold up our end of the bargain by rescinding the methane regulations or failing to enforce them would not be the best way for the next president to start building a relationship with Canada.

Supreme Shocker: Environmental Law in the Scalia Era

Photo: Ryan Stoa.

Last Thursday in my Ocean and Coastal Law class, we discussed the Supreme Court's majority opinion in Lucas v. South Carolina Coastal Council.  The opinion, written, by Justice Scalia, required the state of South Carolina to find "background principles" that would have prevented the plaintiff in the case from building on his property before the state enacted regulations that prevented construction on coastal lands for the purpose of environmental protection.  Unable to do so, South Carolina was eventually required to pay compensation for the regulation.  Although a controversial case, most of my students found Scalia's reasoning persuasive, a testament to his skills of argumentation.

After his passing, many have questioned what his death will mean for the Clean Power Plan.  I wrote last week about the stunning implications of the Supreme Court's stay of the plan (putting it on hold until the DC Circuit Court hears the case).  Since Scalia was part of the 5 justices voting for the stay (with 4 against), his passing makes it less likely the CPP will be struck down.  As many others have speculated (see examples here, here, and here), a justice appointed by President Obama, or a hypothetical President Clinton or Sanders, would very likely be more friendly to the CPP than Justice Scalia.  If the Supreme Court doesn't have a ninth justice by the time the DC Circuit issues its ruling, then a 4-4 decision from the Supreme Court would simply maintain the DC Circuit ruling.  And as has been noted, the government got a bit lucky there: the 3-judge panel selected from the DC Circuit court (which has a reputation for being conservative) consists of two judges appointed by Democratic presidents.   

Here's another wrinkle: one of the judges on the DC Circuit panel hearing the case is Sri Srinivasan, an early front-runner for the Supreme Court vacancy in the eyes of many observers.  If he recused himself from the Circuit or was confirmed by the Senate fairly quickly, another judge would be appointed to the Circuit court, which could alter the outcome of the decision.  Alternatively, if Srinivasan participates in the Circuit decision and then gets confirmed, he might recuse himself from the Supreme Court hearing of the case, leaving the door open for a 4-4 decision.

It will be interesting to see how this all plays out.  In the meantime, Dan Farber provides a summary of Scalia's environmental legacy that bears reflection:

Administrative law.  The Chevron test says that an agency’s interpretation of a statute is entitled to deference.  It can be set aside only if it is contrary to an unambiguous statute or if it is an unreasonable interpretation of an ambiguous statute.  There are only three cases in which the Supreme Court has ever held that a statute’s interpretation of an ambiguous statute was unreasonable, all three written by Scalia: Whitman v. American Trucking, UARG v. EPA, and Michigan v. EPA.  In all three cases, the “unreasonable” agency was EPA.  To be fair, in American Trucking, he did admit that another portion of the statute unambiguously required air quality standards to be based solely on health effects, not cost.

Property rights.  Justice Scalia wrote two major opinions elevating property rights over land use controls.  In the Lucas case, he held that a government regulation is a taking if it completely blocks development or other economic use of the land.  In the Nolan case, he held that even when the government would be justified in denying a permit completely, it can’t impose “logically unrelated” conditions on the permit, even if those conditions are in the public interest. In Stop the Beach Renourishment, he tried to freeze property law in place for all time by holding that a decision by a state supreme court reinterpreting state property law can be a taking.

Standing.  Justice Scalia wrote major opinions limiting standing for environmental groups in National Wildlife Federation, Defenders of Wildlife, and Summers v. Earth Island Institute, Scalia narrowed standing law, making it more difficult for environmental groups to sue.

Federal jurisdiction. In Rapanos,  a plurality opinion by Scalia attempted to cut back drastically on federal authority over wetlands and streams.  Justice Kennedy, the swing voter, wrote a more nuanced opinion that gave the federal government more maneuvering room.

Supreme Shocker: court orders stay of Clean Power Plan

Courtroom of the United States Supreme Court.  Photo: John Marino.

In a move virtually no one saw coming, the United States Supreme Court ordered a stay of the Environmental Protection Agency's Clean Power Plan pending review by the DC Circuit court.  The Clean Power Plan requires states to reduce greenhouse gas emissions by regulating emissions from electricity producers such as coal plants.  The DC Circuit is hearing the case to decide on its constitutional validity.

While the constitutionality of the Clean Power Plan had been questioned and debated by observers, it is highly unusual for the Court to insert itself into a pending case of a lower court in this way.  The DC Circuit had scheduled review of the CPP according to a timeline that would allow for a decision before any major action by the states, so few were expecting the Supreme Court to intervene and put a hold on the CPP in such urgent fashion.  Here's Patrick Parenteau on how odd the order is:

This action is unprecedented in a number of ways. The majority made none of the findings typically required to obtain a stay. There is no analysis of the merits of any of petitioners’ claims. There is no showing that the rule threatens any immediate harm to petitioners, especially given the long lead times EPA has built into the process. There is no showing that the balance of hardships tips decidedly in favor of the petitioners, especially given the fact that most states are well into the process of developing implementation plans and those that do not want to submit a plan don’t have to. There is no showing that the stay is in the public interest, especially given the warnings from the scientific community that time is fast running out to avoid catastrophic consequences of climate disruption. Never before has the Court interjected itself in a case with such high stakes that hasn’t even been fully briefed and argued before the lower court.

This is what the Court's order looks like: 

The order isn't a final decision invalidating the CPP, but it does create uncertainty for states who were developing plans to comply.  And it suggests that the five justices in favor of the stay may eventually overturn the plan.  Some have suggested the Court believes the EPA needs a more express authorization from Congress to implement such sweeping regulations.  If that's the case, it will deal a severe blow to the United States' chances to meet the climate commitments we signed onto in the Paris Climate Agreement.  Many states are leading the way on climate change mitigation, but the CPP was a key tool in requiring regulation in all states.  At the very least, the order ensures there will be a lot of attention on the DC Circuit as it hears the case and renders its opinion.  

Indoor agriculture's future: bright or blight?

Photo: Phil Hendley

Indoor agriculture - growing food in greenhouses instead of in an outdoor field - is nothing new.  Roman gardeners used a greenhouse-type system to provide cucumbers to the Emperor Tiberius every day of the year.   Today greenhouses cover 0.25% of the Netherlands' total area.  But two recent developments are making agronomists and the private sector look at indoor agriculture on a larger systemic scale. The first is that climate change is wreaking havoc on traditional agricultural areas.  California, for example, grows most of the United States supply of produce, but now faces a recurring lack of water to irrigate those crops.  Indoor agriculture can grow produce any time of the year, virtually anywhere:

In an indoor farm, water doesn’t inconveniently evaporate. LED lights can lengthen the hours of sunlight so plants can grow faster. CO2 levels can be tweaked. Even as the weather outside goes haywire, plants farmed indoors can live out an optimized version of the weather that they coevolved with — the weather of the past. The best weather of the past. 

The second development is an advancement in greenhouse technology and software that monitors plants and growing conditions and adjusts those conditions to reach that optimized environment.  Importantly, these technological advances can mitigate the two major downsides of indoor agriculture: cost and energy.  Outdoor crops use sunlight and rain, so replicating that process makes indoor agricultural products more expensive.  And the massive amounts of electricity required to mimic the sun and pump water into the system dramatically increases the energy footprint of an already carbon-intensive industry.  

Agricultural start-ups are working on these inefficiencies and looking at ways to make indoor agriculture more sustainable (e.g. incorporating solar powered electricity sources).  But, as promising as indoor agriculture might seem, it will be some time until the energy demands are reduced to the point of sustainability.  Indoor agriculture can contribute to food security by ensuring stability in the supply chain, but the most resilient and sustainable food system grows crops at the time, place, and location where they are best suited.  If California isn't a suitable place to grow arugula anymore, it's likely there is a region somewhere else that is.  

Perpetuating agriculture in unsuitable locations, or deciding to replicate natural processes indoors, is partly a by-product of negative externalities and the difficulty in pricing resources like water and electricity to reflect their true cost.   Agricultural policies can make this more difficult as well, providing subsidies to traditional agricultural regions or placing zoning restrictions on lands with potential to support agriculture.  In the face of these barriers to agricultural mobility it's not surprising that market disrupters are enthusiastic about indoor agriculture, but let's not forget that policy changes in the agricultural sector can make a big difference in the resilience and efficiency of the food system.  The sun and the rain still have a role to play.

Greenhouses in the Netherlands.  Photo: Pieter Edelman

Photo: Sint -Katelijne-Wave

COP 21: 5 Thoughts on the Final Draft

A replica of the Eiffel Tower made from bistro chairs stands at the COP 21 conference venue.  Photo: Ryan Stoa.

The COP 21 Final Draft of the Paris Agreement has been released (see here for the text).  After months of preparations and weeks of negotiations, the text concludes the drafting phase of the agreement.  It's been fun following the ups and downs of COP 21, and a special thanks goes out to the Centre International de Droit Comparé de l'Environnement and FIU's College of Law, Sea Level Rise Solutions Center, and Institute for Water and the Environment for inviting me to the conference and allowing me to participate.  The process (and blogging!) isn't over, as countries now need to ratify the agreement through their own domestic political processes, and of course, the agreement needs to be, you know, implemented.  But for the moment we can step back and take stock of what the Paris Agreement means for international climate action.  5 thoughts:

The mood in Paris is optimistic

It's been a while since an international climate conference concluded on good terms.  The last major effort in Copenhagen was panned as a failure, breeding cynicism that a climate deal could ever be reached.  While the Paris Agreement has its faults (see below), it at least succeeded in bringing countries together to get started (if belatedly) on this business of climate change mitigation.  The conference birthed the "high-ambition coalition" which includes both poor and rich nations, and many of the world's biggest polluters were enthusiastic about ambitious mitigation targets:

One of the most unexpected developments in Paris is the biggest polluters coming around to the idea of setting an even more ambitious target of 1.5 degree. Canada, Australia, European countries, China, and the United States have all spoken in favor of recognizing the damage above 1.5 degrees.

The final text adopted the less ambitious goal of limiting warming to 2 degrees, but nonetheless, it's encouraging that on a philosophical level countries are realizing that climate change must be addressed.  Now they can decide how.

5-Year Reviews are In

I wrote at the outset of the conference that there was some consensus forming around the idea that countries' emissions (and progress in meeting emissions reductions) would be reviewed every five years.  That would allow the international community to monitor progress (and laggards) while providing a basis to adjust emissions reduction targets if climate science paints an increasingly bleak picture.  5-Year Reviews ended up being much more contentious than expected, as China pushed for more ambiguous reporting requirements.  The United States pushed hard to keep the 5-Year Reviews in the agreement, and in the end they were successful.  Based on its negotiating stance, the US should expect to lead the review effort, providing financial and technical assistance to developing countries to conduct the reviews.  The Reviews will begin in 2019.

Decarbonisation is Out (more or less)

One of the more ambitious goals of previous drafts of the agreement was complete decarbonisation by 2050.  In other words, to produce 100% of energy through renewable sources within 25 years.  It was always a bit of a reach, but the fact that decarbonisation was a talking point and negotiating item at all was surprising to some.  The final draft only calls for carbon neutrality (no net increase in carbon emissions) sometime in the second half of this century.  A far cry from decarbonisation by 2050.

Climate Finance tabled for now

The most divisive issue at COP 21 may have been the differentiation in responsibilities between rich and poor countries.  I wrote about this on Tuesday, particularly the "loss and damage" provisions that developing countries were desperate to include.  "Loss and Damage" provisions are in the final draft, but lack any meaningful obligations.  In fact, the preamble specifically interprets the loss and damage provisions of the text to not "provide a basis for any liability or compensation."  In other good news for rich countries, the financial obligations can was kicked down the road.  The previous commitment to provide 100 billion USD was maintained as a floor, while an increase in that amount was tabled until 2025.  A short-term win for developed countries, but one that doesn't resolve the underlying tensions between rich and poor countries when it comes to climate change.

The scope of the Paris Agreement was appropriately narrow

Anytime an environmental issue makes it onto the international agenda in a high-profile way, there's a temptation to piggy-back by making the issue a proxy for every other environmental issue.  Technically it's pretty easy to do, as environmental challenges are so intertwined that addressing one can be reasonably argued to be a prerequisite for addressing another.  And so it was at COP 21, where many were campaigning hard for the climate agreement to meaningfully address the role of women, indigenous groups, management of the oceans, and a host of other climate-related problems.  I spoke at an event on Thursday that was focused on human rights and climate change, and most of my co-panelists spoke with disappointment that the text was unlikely to address human rights.  These focus issue groups will be disappointed that the final draft does little (if anything) to address their core concerns.  Unfortunately, that probably wasn't realistic in the first place.  It was hard enough for negotiators to agree to a text that was narrowly focused on carbon emissions.  In fact, the conference went longer than expected in order to get it done.  Climate change does implicate countless other environmental challenges, but to add them all to the agenda would have precluded agreement on a more focused topic.  Many groups will be disappointed by the final draft, and they are right to continue pushing for progress, but at its core the Paris Agreement was about carbon emissions.  That other related issues were dropped along the way shouldn't detract from the fact that for the first time the international community has a meaningful framework from which to continue addressing climate change.

The Climate Generations area of COP 21 near the end of the conference. Photo: Ryan Stoa.

COP 21: As deal comes together, China and Saudi Arabia push back

Here is the new draft of Paris agreement https://t.co/peHn9dY2Oc #COP21 pic.twitter.com/mHY4nKg22c

— COP21en (@COP21en) December 9, 2015

Climate diplomats have 940 decisions to make in 3 days https://t.co/eHtCuFWM8r #COP21 pic.twitter.com/79wUEc4SFt

— Bloomberg Business (@business) December 9, 2015

Yesterday I wrote about the divide between developed and developing countries on the matter of climate change liability, so it's a pleasant surprise that the European Union and 79 African, Caribbean, and Pacific countries have formed an alliance to back a legally binding climate agreement with 5-year review intervals. 

Also encouraging was the release today of a clean draft of the Paris Agreement.  There are still many contentious questions to resolve in the next two days, including fundamental issues such as the purpose or goal of the agreement:

And on the collective end-game:

And with the end in sight, obstructionists are emerging.  So far reports call out China and Saudi Arabia for being the most active in frustrating progress.  On Saudi Arabia:

Behind the closed doors of negotiating sessions [...] the Saudis have strenuously resisted efforts to enshrine ambitious goals into the text of a Paris agreement.

The Saudis objected even to the mention of 1.5C – a new more ambitious target for limiting warming now endorsed by more than 100 countries including vulnerable low-lying states and big polluters such as the European Union and US.  The kingdom balked at the goal of decarbonising the economy by 2050.  The Saudis have also objected to demands for periodic reviews of climate plans, according to accounts from negotiators and observers. Saudi delegates complain that submitting a climate plan before Paris was difficult enough.

“It is unacceptable for developing countries, like my own, to be asked to participate in this so called ratchet mechanism,” the Saudis were reported to have told the session.  “It was tough, we had to go to every ministry, every part of government. We developing countries don’t have the capacity to do this every five years. We are too poor, we have too many other priorities. It’s unacceptable,” a Saudi delegate said.

And on China:

Beijing's negotiating stance was causing anxiety among many delegates on Tuesday as the Paris talks intensified ahead of Friday's deadline, partly because India was expected to be a bigger obstacle to a successful agreement.

In Paris, however, one delegate told the FT that behind closed doors, India has been "quite helpful" on some measures while China's negotiators have been siding with other developing countries on several divisive issues, including a push to provide more information about the volume of each country's emissions.

In a sign of the tensions growing in private meetings this week, the EU climate commissioner, Miguel Arias Canete told reporters that although China's President Xi and other world leaders had called for strong climate action at the opening of the Paris talks, "things are much more complex" inside the negotiating rooms.

The Gulf Cooperation Council's Plenary HQ at COP 21.  Photo: Ryan Stoa.

COP 21: Consensus Emerging on 5-year Reviews

China pledges to cut emissions in power sector by 60% by 2020 https://t.co/o6SjXGemcP #COP21 pic.twitter.com/gYB16lUNuE

— COP21en (@COP21en) December 2, 2015

Slow progress ‘frustrating’ says UN climate official: https://t.co/OPbtgBTO8B #COP21 pic.twitter.com/rICpUw3JRK

— Climate Home (@ClimateHome) December 2, 2015

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

Depuis hier, la #TourEiffel est "végétalisée"! #COP21 cc @1Heart1Tree photos ©Mairie de Paris/Sophie Robichon pic.twitter.com/pJC94cmrcb

— Paris (@Paris) November 30, 2015

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.

A la #COP21, 20 chefs d'État s'engagent avec les entreprises à favoriser l'innovation verte. pic.twitter.com/za8FSHKdmf

— France Diplomatie (@francediplo) November 30, 2015

The Politics of Solar Energy in Florida

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

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.

Keystone XL and the COP 21 Deadline, Ctd

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

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.  

COP 21: Measuring Progress After Paris

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.

COP 21: The "Non-Paper"

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.

Wildfire and Causation: Climate Change or Disaster Policy?

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.

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.

Pope Francis and Climate Change, Ctd

Photo: European Union 2013 - European Parliament

Fresh off his ground-breaking Encyclical on humanity and the environment two months ago, Pope Francis brought sixty of the world's mayors to the Vatican yesterday to discuss "Modern Slavery and Climate Change: the Commitment of the Cities."  The title of the meeting itself is revealing, as the Pope signals his intent to focus on the interconnected forces of human trafficking and climate change, and the crucial role cities play in combating both.  The climate action movement has struggled to gain widespread acceptance in part because the challenge is so complex and diffuse, which makes the Pope's approach a clever way to portray climate change as both a human and local issue.  The Pope was express in this interpretation, rejecting the public and media's interpretation of his encyclical Laudato si' as a strictly environmental mandate:

Referring to his recently published encyclical “Laudato Si’”, Pope Francis made it quite clear that the document is not an encyclical on the environment.  It’s a social encyclical – he explained -  because the state of the environment is directly and intimately linked to the life and wellbeing of humankind.

Engaging the world's mayors is vital, as cities emit 75% of global GHG emissions, while mayors often enjoy the legal and political powers over transportation, urban planning, and economic development that can make meaningful climate mitigation impacts.  The meeting included US mayors from New York City, San Francisco, Boston, Minneapolis, Seattle, Portland, New Orleans, Boulder, Birmingham, and San Jose.  Many of them are already taking steps to green their cities, but no doubt the Pope's leadership provides political capital to them and others looking to muster support for climate action.  

The conference was interesting as well because it hints at where the Pope will focus the Vatican's efforts amid the many objectives outlined in Laudato si'.  Human trafficking, forced migration, and slavery have not previously played a prominent role in the climate change debate (or vice versa), but Pope Francis is doing his utmost to frame climate change as a social issue with particular impact on the poor and marginalized.  The mayoral declaration coming out of the meeting stated in part:

As mayors we commit ourselves to building, in our cities and urban settlements, the resilience of the poor and those in vulnerable situations and reducing their exposure to climate-related extreme events and other economic, social and environmental shocks and disasters, which foster human trafficking and dangerous forced migration.

Addressing wealth disparities will likely be a huge challenge for negotiators at the Paris Climate Treaty meetings in December, as countries haven't agreed on how much responsibility industrialized countries should take in potential climate deals.  But in focusing on the world's cities and human trafficking, Pope Francis is driving the discussions downward in the governance framework, making sure social and economic inequality is addressed not only on the national and global level, but on the individual and local level as well.

"Everything is Connected" - Thoughts on the Environmental Encyclical of Pope Francis

Photo: Aleteia.

Laudato si' is the second encyclical of Pope Francis, and the first that is considered entirely his work.  Encyclicals are letters written by the Pope intended to provide authoritative guidance to bishops (or occasionally a wider audience) on a particular question or issue of high importance, considered significant in part for their rarity.  Pope Francis' predecessor, Benedict XVI, wrote three in his eight years of papal service, and before him John Paul II wrote 14 in his 27 years.  Encyclicals are not produced lightly, and signal that the issues addressed are of high priority to the Catholic Church.

That Laudato si' is largely focused on the environment and its degradation is therefore a watershed moment for international environmental lawmaking and the human-natural relationship in general.  So far many (examples here, here, and here) are pigeon-holing the encyclical as a manifesto on climate change, and that's unfortunate.  I've written about the overshadowing effect climate change has on other environmental issues (see here and here), and Laudato si' appears to be falling victim to that dynamic.  In reality the encyclical is much broader, questioning fundamental assumptions about human society and our relationship with the earth - and ourselves.  In particular, Pope Francis expresses skepticism in humanity's collective trust in technological progress, free markets, and utilitarian materialism.  Give the Pope credit for one thing at least: he's not afraid to ruffle some feathers.

Interspersed with these weighty pronouncements are some environmental law and policy positions I find significant in part because Pope Francis eschews the typical platitudes found in many environmental advocacy documents, instead honing in on some very specific prescriptions.  

Take water law for example.  One of the fundamental tensions in water management is a seeming contradiction between privatizing water resources and taking advantage of market fundamentals on the one hand, and the belief that water is a common good and a human right on the other hand.  Jewish and Islamic texts generally perceive water as a common good (Sharia literally means "the way to water").  Here is Pope Francis' position:

Even as the quality of available water is constantly diminishing, in some places there is a growing tendency, despite its scarcity, to privatize this resource, turning it into a commodity subject to the laws of the market. Yet access to safe drinkable water is a basic and universal human right, since it is essential to human survival and, as such, is a condition for the exercise of other human rights.

A human right to water has been advocated for by many in the last decade, pushing back against perceptions (such as the Dublin Declaration in 1992) that water is an economic good.  Unfortunately a human right to a finite natural resource is easier to pronounce than operationalize, and few who advocate for a human right to water have come up with a policy that reconciles universal water rights with the realities of water scarcity.  The Pope offers one solution, at once obvious and elusive: wholesale lifestyle change and a rejection of practical relativism.  "A misguided anthropocentrism leads to a misguided lifestyle."  In other words, environmental change can happen only through self-change and a less consumerist way of life.

Contemporary notions of democracy are similarly challenged by the encyclical.  It is the short-term thinking of politicians and their constituents that prevents the long-term thinking prudent natural resources management requires in the first place.  Intergenerational equity is not a new concept, but receives little support from status quo institutions.  Here Laudito si' uses it not only to justify long-term thinking, but also to reject the cost-benefit paradigm that is prevalent in even liberal environmental circles:

Is it realistic to hope that those who are obsessed with maximizing profits will stop to reflect on the environmental damage which they will leave behind for future generations? Where profits alone count, there can be no thinking about the rhythms of nature, its phases of decay and regeneration, or the complexity of ecosystems which may be gravely upset by human intervention. Moreover, biodiversity is considered at most a deposit of economic resources available for exploitation, with no serious thought for the real value of things, their significance for persons and cultures, or the concerns and needs of the poor.

Here I think the Pope gives too little credit to the potential of market forces to internalize externalities.  Valuation of ecosystem services is challenging, to be sure, but methodologies are being improved upon every day.  At the end of the day, is internalizing external costs a more difficult undertaking than adopting wholesale lifestyle changes?  Certainly there is value in having a better understanding of the value ecosystems provide.

Ultimately the encyclical acknowledges the role and need for environmental laws, but remains deeply skeptical of the institutions in place to enforce them:

Whether in the administration of the state, the various levels of civil society, or relationships between individuals themselves, lack of respect for the law is becoming more common. Laws may be well framed yet remain a dead letter. Can we hope, then, that in such cases, legislation and regulations dealing with the environment will really prove effective? We know, for example, that countries which have clear legislation about the protection of forests continue to keep silent as they watch laws repeatedly being broken.

To me that's not a rejection of environmental law as much as an acknowledgement that environmental laws are a necessary but not sufficient condition for a healthy environment.  But the encyclical starts to contradict itself some by promoting the principle of subsidiarity (the idea that governance should be decentralized to take advantage of local knowledge and conditions) while at the same time rejecting policies that may be effective in one jurisdiction or another.  "There are no uniform recipes, because each country or region has its own problems and limitations." Yet the Pope rejects carbon credits because they "may simply become a ploy" for continued degradation.  They may, or they may not.  But it seems to me that local experimentation should be encouraged, and if political actors can compromise on a cap-and-trade program, well, let's see what they can do.  

At the end of the day, Laudito si' is a remarkable document for its scope and ambition.  Not only does it elevate "the environment" to a higher position on political priority lists around the world, it frames a wide variety of seemingly disparate global challenges through the lens of environmental degradation.  Laudito si' is being hailed as a climate change piece, but in his first major encyclical, Pope Francis has done much more than advocate for climate change action.  Laudito si' questions fundamental assumptions about human social order and our relationship with both the earth and ourselves.