Climate Change (generally) | Environmental Law Institute

War on Science — and Environment

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Author

Stephen R. Dujack - Environmental Law Institute

Akielly Hu - Environmental Law Institute

Environmental Law Institute

Current Issue

September-October 2021

Issue

One voter in seven believes that Hillary Clinton is running a cabal of satan-worshipping cannibalistic pedophiles. A member of Congress charges that last year’s wildfires in the western states were caused by Jewish space lasers. A U.S. senator insists that China aims to breed a race of super soldiers by harvesting visiting athletes’ DNA when it hosts the winter Olympics in 2022. The Ohio legislature recently heard testimony alleging that the Covid vaccines are magnetizing people. According to a 2012 survey, one in four members of the U.S. public does not know the Earth orbits the Sun. A poll by the Associated Press in 2014 found that four in ten Americans dispute evolution and half do not believe the Big Bang theory.

According to Peter Lantos, reporting new poll results in the Skeptical Inquirer last spring, the situation is getting worse. Indeed, one third of the country is now suspicious of science in general, a larger portion of the populace than in other surveyed nations. “People are becoming increasingly distrustful of science; they express doubts about the validity of scientific findings. One hears popular slogans, such as that the scientific method doesn’t work; science has an agenda; science is unreliable.” This is bad news for environmental protection, which is based on government’s using the best available science to require public and private actions.

The signal environmental statutes were passed by a Congress dominated by veterans of World War II. In that conflict, the Manhattan Project showed what government-funded science could produce when it is a matter of national security. It is hard, however, to see a weapon of mass destruction serving as a positive example. But there were other miracle inventions during that war that have unequivocally benefited humanity, such as radar and digital computers. Americans were impressed by what science could do in a positive vein as well.

After the cessation of hostilities, lawmakers established government funding of basic research on an ongoing basis by creating the National Science Foundation. But national security came back as a driver of government projects during the Cold War. When Americans were shocked by the launch of the first artificial satellite by the Soviet Union, the U.S. response was to invest even more billions in science and engineering research. The Apollo Program that won the ensuing space race became the new standard for what government-funded science could achieve for national security when put to the test, although this one had a justification in scientific exploration as well.

It is no coincidence that all the major environmental statutes were passed during the decade that began with Americans regularly treading the lunar dust. To congressional leaders at the time, the environmental threat was as important to national security as the standoff with the Soviets. And lawmakers from both parties, reflecting public sentiment, had a trust in science once again to come to the rescue.

The statutes they enacted require new science that in turn requires a response. Ratcheting down health-based air quality standards set with “an adequate margin of safety” is key to the Clean Air Act. The Clean Water Act insists on maintaining or restoring the “biological integrity” of the nation’s waters. Regulations to achieve emissions targets often require the “best available” or sometimes “maximum achievable” pollution reduction technology. EPA even engages in “technology forcing” — setting environmental goals beyond present-day engineering capabilities.

The problem now is that the science behind further government interventions in the market is difficult to convey. Today, pollution and its effects can be invisible. Take this hard fact: more Americans have died of air pollution than have died of the coronavirus. And the toll of particulate pollution alone continues at over 100,000 cases of “premature mortality” a year. The fact that small particles are usually not visible means there was little outcry when EPA decided last year not to lower the ambient standard — in effect, refusing to lower the death toll.

In fact, we are losing American lives to air pollution at a faster rate over time than the nation lost combat soldiers during World War II. Every ten days we endure another Pearl Harbor, an event that shocked the nation and loosened billions to win the war, with little public concern over personal sacrifice — including giving one’s own life, to defend our way of life.

Unfortunately, to quote Pogo, in this case “the enemy is us.” In addition, the public can’t see deaths from air pollution; only with a broad statistical universe can one tease out the huge death toll. It then becomes challenging to create the kind of public response that helped win World War II and the space race. Even more difficult to convey are the benefits of decarbonizing, since the worst effects are years away and greenhouse gases cannot be seen. Consensus in fighting emissions thus has become difficult.

The coronavirus brought out the divide between Americans who value science and those who are suspicious of it. It has become clear that some people’s political frameworks inform their scientific views to the extent that they are willing to flout mask rules and avoid vaccination, endangering countlesss others. These folks are not likely to respond well to government programs to achieve pollution reduction goals, especially if they require personal action or sacrifice.

— Stephen R. Dujack, Editor
Notice & Comment is written by the editors and represents their views.

Annual Cost of Fossil Fuel Use $820 Billion in U.S. Alone

The annual health costs of using fossil fuels and resulting extreme weather events from climate change total more than $800 billion, according to a new analysis.

Hospitalizations, lost wages, premature deaths and even prescription medications caused by air pollution, heat waves, hurricanes, floods, pollen seasons and insect-borne illnesses all contribute to those costs, according to [a] report from the Medical Society Consortium on Climate and Health, the Natural Resources Defense Council, and the Wisconsin Health Professionals for Climate Action.

Particulate matter pollution alone, they estimate, created $820 billion in health care costs and killed 107,000 people prematurely. Ground-level ozone also comes with a high price tag — $7.9 billion — and led to 795 premature deaths and more than 4,000 respiratory-related hospitalizations in 2002. . . .

“Climate change is an underrecognized public health problem,” said NRDC climate and health scientist Vijay Limaye, who co-authored the study.

— E&E News

A Summer in Seattle

Entering summer now carries a new sense of dread. Holding our breath, we lurch into a season of extreme heat, flood, drought, and wildfire. In an article from July titled, “What It Feels Like to Lose Your Favorite Season,” the writer Anne Helen Petersen reflects: “It’s not just the summer, of course, that I’m mourning. It’s an entire understanding of the world and its resplendence.”

This past year, I’ve stayed at my parents’ home in the suburbs of Seattle. When I think of my hometown, I remember a quote from the novel Where’d You Go, Bernadette by Maria Semple that always makes me laugh. The protagonist, who lives in Seattle but hates it, laments: “People are born here, they grow up here, they go to the University of Washington, they work here, they die here. Nobody has any desire to leave. You ask them, ‘What is it again that you love so much about Seattle?’ and they answer, ‘We have everything. The mountains and the water.’ This is their explanation, mountains and water.”

Maria Semple, a longtime Seattle resident, clearly meant to poke fun at this common sentiment. But what happens when the things you love most about home start to radically change — when the mountains are shrouded in smoke, the stream emptied of salmon, and normally temperate summer days soar above 110 degrees? What happens when home is unrecognizable?

What makes the Pacific Northwest feel like home to me is the trees. Douglas fir, western hemlock, western red cedar, Sitka spruce — I furiously tried to learn their names this past year, desperate to make up for lost time when I took the trees for granted. Now, with forests stripped down to dusty gray skeletons by fires each summer, I worry I can no longer count on them to frame the backdrop of every happy memory I have outdoors.

In the comments section of Anne Helen Petersen’s article, I scroll through pages and pages of thoughtful, poignant messages from other readers, people like me who find joy and comfort in the cyclic changing of the seasons, and who mourn the loss of this predictability as our climate changes.

Maybe what I mourn most is the loss of something I’ve never had: a true connection to the nature and abundance that sustains us. Indigenous botanist and writer Robin Wall Kimmerer writes in Braiding Sweetgrass, “Philosophers call this state of isolation and disconnection ‘species loneliness’ — a deep, unnamed sadness stemming from estrangement from the rest of Creation, from the loss of relationship. As our human dominance of the world has grown, we have become more isolated, more lonely when we can no longer call out to our neighbors.”

As much as I miss the summers as they once were, I still struggle to recognize my “neighbors” in this increasingly altered landscape: the trees I pass on hikes, the migrating birds, the bright red salmon arriving to spawn in the fall. Spending life through a screen allows us to disengage, to turn a blind eye to the damage we’ve done and the harm we’ve caused to the most vulnerable in our communities.

Inspired by Robin Wall Kimmerer’s words, and cooped up inside during the pandemic, I started to go bird-watching this year. I watched as the winter’s dark-eyed juncos became replaced by arrow-shaped tree swallows in the spring, swooping and skydiving with the breeze. Buoyed by warming temperatures and blooming flowers, my heart soared with their movements.

“See, the chicks come out and learn how to fly in the spring,” a friend informed me. I hadn’t ever noticed before.

— Akielly Hu, Associate Editor

A Progress Report From the War on Science — and the Environment.

Debate Over Social Cost of Carbon-Driven Regulations Is Heating Up

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Author

Ethan Shenkman - Arnold & Porter LLP

Arnold & Porter LLP

Current Issue

September-October 2021

Issue

President Biden has pledged to create a “100 percent carbon pollution-free” power sector by 2035, with an interim goal to achieve 80 percent clean power by 2030. But how much will it cost to get there? And will the benefits outweigh the costs?

The estimated net benefits of a national clean electricity standard are “large, widespread, and far outweigh the costs,” concluded a recent report by Clean Energy Futures, a collaboration of researchers from multiple universities. The study estimated a standard of 80 percent by 2030 would generate $637 billion in climate-related benefits — far outweighing their projected costs of $342 billion. The estimated benefits were calculated using a social cost of carbon figure of $50 per metric ton.

The SCC is an estimate in dollars of the cumulative long-term damage caused by one ton of CO2 emitted in a specific year. It also represents an estimate of the monetized benefit of avoiding or reducing one ton of CO2 emissions. It’s primarily used in calculating the costs and benefits of climate-related regulations, and is expected to play a central role in major Biden initiatives seeking to reduce greenhouse gas emissions from vehicles, power plants, oil and gas facilities, and more.

Not everyone is a proponent of the SCC metric, however. A fellow with the Competitive Enterprise Institute, for example, recently called it “too speculative and easily manipulated for partisan ends to guide policy decisions with hundred-billion-dollar price tags.”

The SCC has a volatile history. In 2009, the Obama administration established an Interagency Working Group, or IWG, to develop the science behind the SCC, as well as the social cost of methane and nitrous oxide — greenhouse gases that are more potent than CO2 but emitted in smaller quantities. The IWG estimated the 2020 SCC at $26 per ton in its 2010 report and at $42 in its 2016 report. The Trump administration, arguing that benefit-cost assessments should focus only on domestic benefits of CO2 reductions, as opposed to the much larger global benefits, lowered the SCC to $7 per ton. President Trump disbanded the IWG in March 2017. President Biden promptly reestablished it.

The IWG’s interim report, published last February, pegged the 2020 SCC at $51 per ton. The IWG took public comment and will publish final updated SCC estimates in January. Many observers anticipate that the final estimates will be higher. Economists Joseph Stiglitz and Nicholas Stern argue that the social cost of carbon is actually $100 per ton or higher.

Others question whether the SCC can or should be used in reviews of federal agency decisions under the National Environmental Policy Act. However, the Council on Environmental Quality, which administers the statute, recently affirmed that the SCC “can be a useful measure to assess the climate impacts of GHG emission changes for federal proposed actions.” And the secretary of the interior has directed staff to use the metric in NEPA analyses.

A coalition of states led by Missouri are pursuing litigation in federal court seeking to block the use of the SCC in rulemaking, and another group of states led by Louisiana has asked a federal judge to block the IWG’s work, referring to the adoption of a federal SCC as a “unilateral and arbitrary attack on state sovereignty and individual liberty.” Louisiana Attorney General Jeff Landry alleges, “This ‘social cost’ overreach revives an Obama-era scheme that unnecessarily forces the monetary cost of a global issue on American governments, businesses, and families.”

The Department of Justice has launched a forceful defense of the SCC, arguing that the metric is not subject to judicial review on jurisdictional grounds. But even if these early salvos by the states do not succeed, they are rehearsals for arguments to come in challenges to final rulemakings and agency decisions that rely on the SCC. EPA has already employed the SCC in a number of recently proposed rules and actions, and has utilized the IWG’s work to create a new Social Cost of Hydrofluorocarbons metric.

The Federal Energy Regulatory Commission — under the helm of Biden-appointed Chairman Richard Glick, who has been outspoken on GHG issues — recently solicited public comment on a series of questions relating to the SCC in approving new natural gas transportation facilities under NEPA and Section 7 of the Natural Gas Act.

Do these statutes authorize or mandate the use of the SCC? Are there specific remedies the commission may impose based on the metric? How can the SCC be used to evaluate whether a proposed project meets the public convenience and necessity standard, or has “significant” impacts for purposes of NEPA? Are there alternatives to the SCC tool? Practitioners eagerly await answers to these important questions.

Debate Over Social Cost of Carbon-Driven Regulations Is Heating Up.

Addressing the Competitiveness Impacts of Pollution Regulations

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Author

Joseph E. Aldy - Harvard Kennedy School

Harvard Kennedy School

Current Issue

September-October 2021

Issue

The EU recently proposed what would effectively be tariffs on imported goods — such as cement and steel — based on the carbon intensity of their production. Likewise, the Biden administration is considering carbon tariffs as a part of its trade policy. This interest in taxing the pollution embodied in imports reflects a long-held concern that environmental regulations harm the competitiveness of emission-intensive manufacturers.

The pollution haven hypothesis maintains that businesses will relocate their production from heavily regulated jurisdictions to less-regulated ones — just as a firm may seek to relocate its production to a country with low tax rates or cheap labor. Under this thinking, the competitiveness pressures of climate change regulations, cap-and-trade programs, and taxes could deliver adverse economic impacts — even environmental impacts. Moving manufacturing activity to less-regulated markets could reduce economic output and employment in the more-regulated market. And relocating manufacturing activity to a less-regulated market could result in emission leakage. Higher net imports, lower domestic production and employment, and the undermining of environmental benefits all contribute to political support for efforts to combat adverse competitiveness impacts.

With EU emission allowance prices exceeding $50 per metric ton of carbon dioxide in recent months — and the prospect of higher allowance prices as the union aims to deliver on ambitious decarbonization goals — the difference in the stringency in domestic emission mitigation policies among the EU and its major trade partners has widened. If the United States moves forward with ambitious emission mitigation policies, then U.S. firms may also bear greater compliance costs than firms in most (non-EU) trade partners. The greater the difference, the stronger the incentive to relocate activity to less-regulated markets.

In practice, however, a number of factors may mitigate climate policy-induced manufacturing relocation. High transportation costs for certain manufactured goods may enhance the value of producing near final consumers. Agglomeration economies — the value of co-locating with related manufacturing facilities, such as in an industrial park — may reduce the appeal of moving to another jurisdiction. The irreversible nature of fixed capital investment — it’s costly and, in cases, infeasible to pack up and move a factory — may also deter movement to a low-regulation market.

As other countries increase the ambition of their domestic emission mitigation programs — such as what President Biden has proposed for the United States and as envisioned through periodic revision and updating of countries’ mitigation pledges under the Paris Agreement — then the difference in regulatory compliance costs across countries and, thus, the incentive to relocate will decline.

It’s also important to recognize that eliminating competitiveness pressures from foreign firms would not eliminate emission abatement costs for a steel mill or pulp and paper mill. Facilities in these and other energy-intensive industries have relatively high carbon dioxide emissions per unit of economic output, and the reduction in profits and output at these facilities could reflect the fact that they have meaningful regulatory compliance costs. In my work on the U.S. manufacturing sector with Billy Pizer of Resources for the Future, we find that the competitiveness effect (measured by the increase in net imports) composed less than 20 percent of the decrease in output of energy-intensive industries when energy prices increase — such as they often do under climate change regulations and carbon pricing.

Across an array of simulation modeling and statistical analyses, the competitiveness impacts of carbon pricing appear relatively modest in terms of economic and environmental outcomes. Nonetheless, the prospect that explicit and implicit carbon prices could increase in coming years, and the potential for economic harm to politically important manufacturing industries, have motivated considerable efforts to develop policies to mitigate adverse competitiveness effects.

Some carbon tax programs, such as in northern Europe, have effectively excluded trade-exposed, energy-intensive manufacturing. Some cap-and-trade programs, such as in California, give allowances free of charge to firms in energy-intensive manufacturing. A carbon border adjustment, however, could both address the adverse economic and environmental competitiveness impacts under domestic climate policies and spur more ambitious policy actions by other countries.

Designing carbon tariffs such that they exempt imports from countries with comparable domestic policies could create an incentive for major trade partners of the EU and the United States to implement more ambitious domestic programs.

Addressing the Competitiveness Impacts of Pollution Regulations.

FERC Could Soon Be Building a Transmission Line to the Future

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Author

David P. Clarke - Clarke Communications Consulting

Clarke Communications Consulting

Current Issue

September-October 2021

Issue

For the first time in over a decade, Federal Energy Regulatory Commission members have taken a step toward a reform initiative that could produce far-reaching changes in how the United States plans and pays for national electric transmission lines. These are needed to connect rapidly proliferating but remotely located wind and solar installations to major population centers and energy consumers.

In a July 15 advance notice of proposed rulemaking, FERC called for public comments on a “more forward-looking approach” to building the transmission system of the future,” a system that will be indispensable for meeting the Biden administration’s goal of a carbon-free power sector by 2035 and an economy with net-zero greenhouse gas emissions by 2050.

Commenting on the announcement, FERC Chair Rich Glick underscored that a “piecemeal approach to expanding the transmission system is not going to get the job done,” at least not efficiently and in a way that results in “just and reasonable” rates and is not “unduly discriminatory or preferential.”

Today’s transmission planning and cost-allocation are traditionally piecemeal, reactive, and blind to the ineluctably emerging future resource mix, with planners only making incremental upgrades necessary to interconnect individual generators’ plants, says Rob Gramlich, executive director of Americans for a Clean Energy Grid, a leading coalition advocating modernization. FERC’s Federal Power Act mission is to ensure just and reasonable rates, and that, perforce, means future planning that accounts for the emerging mix of new electricity generation sources that “everybody in the industry recognizes” is coming, Gramlich says.

Lending support for better planning, in June the Department of Energy’s National Renewable Energy Laboratory issued a multiyear “renewable integration” analysis that concluded more cooperation among regions with different energy resources could provide up to $180 billion in net benefits, with transmission playing “an important role in minimizing costs.”

FERC’s rulemaking announcement indicates that the independent agency may pursue a nationwide, comprehensive transmission reform, “exactly what we’re hoping for,” says Gramlich. In January, his coalition released a report titled “Planning for the Future.” Its calls for comprehensive reform received strong support from a bipartisan group of nine former FERC commissioners. If FERC implements the anticipated reforms, it would be “probably the most significant action any policymaker could take nationally for clean energy,” Gramlich adds.

By extension, new transmission linking clean energy would be the cornerstone for a national GHG-reduction strategy that will require electrifying transportation, buildings, and in time industrial manufacturing.

But while the call for climate action is increasingly urgent, transmission reform will take a while. An advance notice could take up to six months, and the actual notice of a proposed rulemaking the same. That needs to be followed up by regional implementation. In June, however, FERC and the National Association of Regulatory Utility Commissioners, representing state regulators, announced the establishment of a joint federal-state task force on electric transmission. So FERC is already taking steps to engage essential state partners to cooperatively identify policy and other barriers inhibiting transmission development.

FERC’s advance notice of a proposed rulemaking comes as high-level policymakers recognize the importance of large-scale transmission both for grid resilience and climate mitigation. The Energy Infrastructure Act, for example, passed 13-7 on July 14 by the Senate Energy and Natural Resources Committee, directs FERC to fix transmission planning and provides a small but helpful $2.5 billion grid loan program. The House CLEAN Future Act contains provisions supporting grid modernization and establishing a national policy aimed at overcoming barriers to transmission investments. And the Biden infrastructure plan calls for building thousands of miles of new transmission to facilitate renewable energy expansion.

Notwithstanding the growing calls for new transmission policies and climate action more broadly, Congress remains deeply divided, so “we have to be practical and realistic” about the potential for legislation, Gramlich cautions. Still, FERC has “very strong authority” to act on transmission planning and “it’s looking like they will.” In addition, the departments of Energy, Transportation, and Interior can use their limited authorities to help move transmission projects forward, with targeted congressional directives helping to remove some barriers.

FERC Could Soon Be Building a Transmission Line to the Future.

Reimagining the Future

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Author

John Pendergrass - Environmental Law Institute

LeRoy Paddock - George Washington University Law School

Environmental Law Institute

George Washington University Law School

Current Issue

July-August 2021

Issue

WE ARE now into our second half-century of environmental and natural resources law. President Nixon signed the National Environmental Policy Act on New Year’s Day 1970, making it a convenient marker for the birth of modern environmental protection. NEPA has been called the Magna Carta of environmental law, and it heralded a new era of federal legislation, including the Clean Air Act later that year and a whole roster of laws to follow. The federal acts, along with complementary state environmental statutes, have substantially reduced pollution, resulting in cleaner air, water, and soils. And species like the brown pelican and bald eagle have been brought back from the brink.

While critical progress has been made, significant gaps in environmental laws remain if the country is to achieve a more sustainable economy. Understanding that, the authors of this article convened a diverse group of leading environmental law experts to consider how the field might need to evolve to meet current challenges and those expected over the next decades. We characterize this effort as “Reimagining Environmental Law.” In many ways, it means as well reimagining the future.

Toward that end, ELI and George Washington University Law School convened two dialogues, first at the Wingspread Conference Center in Racine, Wisconsin, in March 2019, and second at Airlie House Conference Center in Warrenton, Virginia, in November 2019. Both centers have been settings for environmental conferences for decades, with Airlie House hosting a conference in September 1969 that recommended the creation of ELI. (Information about the meetings and the attendees can be found at https://www.eli.org/environmental-governance/reimagining-environmental-law.) This article reflects the discussions at Wingspread and Airlie House, subsequent discussions with participants, and research conducted by ELI and GW Law.

In consultation with our experts, the authors concluded that among the key challenges remaining for environmental law are climate change and decarbonization, nonpoint sources of pollution, materials conservation and reuse, and ecosystem degradation and biodiversity loss. In addition, environmental justice presents both an area of needed focus alone as well as attention in cutting across all the other challenges.

The climate change problem is well-known and well-documented. The participants saw the major challenge for environmental law as finding a way to support dramatic decarbonization of the economy to avoid potentially catastrophic impact of warming and supporting needed adaptation to change. While the pathways for a transition to a low-carbon economy are known, reaching the goal of 80 percent emissions reduction by 2050 will require legal changes at all levels of government, as well as accompanying economic, political, and social changes.

Essential to the transformation needed is an economy-wide price on carbon to provide the economic incentives to make the shifts necessary to reach zero emissions. This means imposing a direct cost on each ton of greenhouse gas emitted. To accomplish this, policymakers must create a system at the national level to achieve the necessary economy-wide shifts. The participants did not express a clear preference for a tax or a trading system that caps emissions from GHG sources, though an internationally agreed system would be preferable. Any such pricing or trading system will also need to mitigate the disproportionate effect it will have on those with lower incomes, due to the higher costs of fossil fuels coupled with higher proportions of income spent on energy. It likely will also require regulatory measures to assure that environmental justice communities do not continue to disproportionately bear the risks associated with co-pollutants, like sulfur dioxide and mercury.

Given the decades-long effort to place a price on carbon and the urgency, immediate action is needed using the tools already available to reduce GHG emissions. The nation will need to address this issue across the economy through a comprehensive approach like those identified in ELI Press’s Legal Pathways for Deep Decarbonization book, which lists more than a thousand recommendations for legal instruments covering all forms of GHGs and how they are generated and released.

We also need a comprehensive and just policy for adapting to the risks — and impacts — of climate change and for helping communities become resilient. This will require an appropriate model for assessing risk. Decisions must be based on the possibility of the uncertain but potentially massive catastrophic outcomes related to natural disasters, sea-level rise, drought, and biodiversity loss. Many of these processes will require legal tools, like the model laws being produced by volunteer attorneys based on the recommendations in Legal Pathways, but others will require public investment such as transit projects, and in making buildings safer, healthier, and more energy efficient. Electrifying and investing in grid updates will also be essential in this effort, creating a more robust, resilient, and efficient network. Government agencies need to plan for how they will deliver essential services amidst climate disruptions, and how they will coordinate with partners at other levels of government. In addition to significant adaptation actions, the law must account for the liabilities associated with unintended consequences of adaptation measures.

Federal, state, local, and tribal governments need to remove subsidies, including tax breaks and other incentives, for fossil fuels and carbon-intensive industries. These governments will also need to reduce or remove regulatory barriers related to decarbonization of the economy while promoting social equity at every stage and level.

Government policies are needed to provide incentives for innovation and investment toward a carbon-free future. This will be particularly important in the absence of a price on carbon to promote development of the necessary technologies. Means to remove or sequester carbon from the atmosphere may be necessary if mitigation efforts do not advance at a sufficient pace.

An effective climate governance regime will require the engagement of the private sector in a multi-tiered system with distributed roles and accountability mechanisms. The regime must capitalize on and encourage private-sector initiatives to meet climate change goals. This can include supply chain systems that rely on a variety of approaches, including certification, auditing, labeling, and reporting programs enforced through contracts.

An equity lens will be critical in designing these polices to ensure that affected and especially vulnerable communities are meaningfully involved in designing and implementing these measures. If policies are designed to protect against the greatest potential risk, in many cases this will result in just outcomes. An updated and enhanced conception of the duty of care in both government and the private sector will help to facilitate this.

THE nation has made major strides in controlling water pollution from point sources. But many of the sources of impairment to water quality are from nonpoint sources — runoff and discharges from areas of land and operations that are not subject to direct federal regulation under the 1972 Clean Water Act. Even though these uncontrolled sources of pollution were recognized in the statute, they were not regulated because of concerns with federal legislative intrusion on state and local land use prerogatives and solicitude for such industries as agriculture, forestry, and land development.

The Wingspread and Airlie House participants preferred a more watershed-health-focused system over the status quo, which concentrates permit-by-permit on individual sources and on effluent limits on pollutant discharges. An alternative future could be far more focused on land quality and water quality results.

Given the major contribution of diffuse sources to the remaining water pollution problems, a new sense of urgency is needed for dealing with it. One way to accomplish this result could be to recharacterize these sources as “uncontrolled pollution” rather than using the innocuous term nonpoint pollution. The public and institutional motivation necessary to support advancement in law needs to be defined as achieving better environmental and public health outcomes — not controlling nonpoint sources.

State regulators should create a new structural framework for dealing with uncontrolled pollution. Simply relying on the current state water quality and waste load allocation framework has not proven effective. This new framework should capture sectors that have previously escaped requirements to reduce uncontrolled pollution. It should also focus on watersheds with major, recurrent pollution threatening public health and welfare.

Legislators can also consider funding and relying on big data, and making it publicly accessible. A great deal of data exists on water quality and more will become available as monitoring technology advances and is used by citizens. This will make it possible to define and track progress toward watershed outcomes. Sharing of data on public platforms and integration of ecological information with water quality, discharge data, geo-siting of best management practices, remote sensing, and biological sampling should be encouraged and supported.

At the federal level, officials should provide key actors with the power to create change by matching the best tool to the source of impairment. Policymakers should inventory effective regulatory and non-regulatory approaches and target these to sectors, watersheds, and problems where they have been proven. EPA or others should construct a database of tools used by the states, federal programs, the private sector, and others, and determine how these can be applied to different forms of uncontrolled pollution in different types of watersheds and settings. This resource could further be backed by supporting and funding integrated water management planning, and making funding available for implementation of the tools.

At both levels of government, policymakers should link federal and state procurement to effective management of uncontrolled pollution in the supply chain. This approach recognizes that government funding is substantial in the acquisition of food and fiber, materials, energy, and development. The reimagined approach would expressly provide for disclosures and certifications and perhaps pollution controls as conditions related to receiving funds.

All agencies at the national level need to require that federally funded land and water and development projects, and all authorized activities on federal lands, must result in net water quality improvements — or at least restoration to no net loss of water quality where there is no opportunity to achieve a net improvement.

THE European Union in its Circular Economy Plan noted, “There is only one planet Earth, yet by 2050, the world will be consuming as if there were three.” According to the United Nations, “In 2017, worldwide material consumption reached 92.1 billion tons . . . a 254 percent increase from 27 billion in 1970, with the rate of extraction accelerating every year since 2000. This reflects the increased demand for natural resources that has defined the past decades, resulting in undue burden on environmental resources.”

The United Nations’ Sustainable Development Goal 12 deals with production and consumption and notes that achieving its goal requires urgent reduction of the world’s “ecological footprint by changing the way we produce and consume goods and resources.” SDG 12 points out that “efficient management of our shared natural resources, and the way we dispose of toxic waste and pollutants, are important targets to achieve this goal. Encouraging industries, businesses, and consumers to recycle and reduce waste is equally as important.” Materials consumption is particularly challenging in the United States. In 2017 U.S. per capita materials consumption, including fuels, was 42 percent higher than Europe’s. Despite the increasingly clear adverse impacts of unsustainable materials use, the issue has received relatively little attention in U.S. environmental law.

The Wingspread and Airlie House participants built on work by the leading advocates of the circular economy, the World Resources Institute and the Ellen McArthur Foundation. The participants reimagined materials conservation and use to include a number of elements. With growing corporate, government, and nongovernment interest in the idea of a circular economy, the participants thought now is a good time to convene a national dialogue to discuss how to move to such a system in the United States.

Extended producer responsibility, or EPR, at the national level would create a level playing field across the country. A national EPR for electronics waste would help reduce environmental impacts and could make it easier for businesses to set up systems.

A national GHG policy that establishes a price on carbon would be important beyond just climate change by helping drive product redesign and reductions in materials use. A price on carbon could drive business innovation by providing a financial incentive to look carefully at energy inputs needed to extract new resources and manufacture and transport products, and to find ways to reuse them.

Federal procurement rules could be redesigned so that criteria favor products and services that are consistent with a circular economy. Further, as part of the economic recovery effort, the federal government is likely to spend a great deal on infrastructure. As a result, the new administration can have a major impact on responsible production and consumption by taking materials conservation and circular economy principles into account in procurement, perhaps through executive orders that build on available authority. Such changes could model desired behavior for state governments, universities, and other large procuring organizations.

Resource Conservation and Recovery Act regulations could be revised to reflect the circular economy hierarchy, which goes beyond the traditional reduce, reuse, recycle paradigm to include preventing the use of resources in the first instance, encouraging repairing and refurbishing, and supporting remanufacturing and repurposing. Model legislation could be developed for states to adopt this new circular economy waste hierarchy.

Materials conservation could be added as a factor to be considered in NEPA analyses. The White House Council on Environmental Quality could contribute to responsible production and consumption by providing guidance to agencies on how to consider materials use and conservation in environmental impact review.

Policymakers can explore the possibility of “fate labelling” for consumer products, so that purchasers can make more informed decisions. This could be done using QR codes or through systems in use or planned in the European Union.

HEALTHY populations cannot exist without healthy ecosystems. Driven primarily by anthropogenic activities, destroyed and degraded ecosystems threaten critical resources in significant and varied ways. Land, ocean, and freshwater systems are all affected. While legal and policy efforts have attempted to address the problem through species- or resource-specific mechanisms within geopolitical borders, the lack of coordinated efforts built around ecosystem-based solutions has meant the problem continues relatively unchecked. Without humanity changing current production and consumption patterns, along with precipitous population growth and unsustainable practices, trends will continue to worsen.

Healthy habitats provide untold benefits, sometimes called ecosystem services, which must be adequately preserved. Responses to these challenges must be direct and swift to avert the most significant impacts of development.

At least eighty countries have adopted policies to help ensure any impacts to biodiversity or ecosystem services from development projects are offset by mitigation, an approach known as “no net loss.” One important goal of the no-net-loss method is to make sure any populations affected by the development project and associated mitigation are not left worse off, but are ideally better off after the plans are completed.

In the United States, no federal statute focuses exclusively or directly on mitigating ecosystem degradation. Generally, domestic environmental laws focus on addressing a single issue rather than on ecosystems comprehensively. Unfortunately, these policies often do not account for the complex and interdependent nature of ecosystems. Moreover, these issues are typically managed based on short-term goals and primarily within distinct political and jurisdictional boundaries that do not necessarily reflect the scope of targeted resources. Even when governmental bodies work together on a project or program, their mandate and funding allocation falls short of long-term ecosystem restoration.

Policies at the federal, state, and local levels that emphasize no net loss of ecosystem services are needed to ensure these functions are preserved. This could be achieved by building on existing programs. An immediate action that could provide impetus to such a policy would be to revive the “Incorporating Ecosystem Services into Federal Decisionmaking” memo, issued jointly by the Office of Management and Budget, CEQ, and the White House Office of Science and Technology Policy in 2015. This memo called on “agencies to develop and institutionalize policies to promote consideration of ecosystem services . . . in planning, investments, and regulatory contexts.”

Policymakers should revise their environment and natural resources management frameworks with a goal of adopting a more holistic approach that prioritizes local ecosystem-level decisionmaking. This includes enacting federal legislation that requires no net loss of ecosystem services and encourages local and state-level ecosystem management. The framework would build on the existing approach to wetlands management but would provide expanded application and account for a wider array of natural benefits. Legislation should include provisions for grant funding for research and data collection, and for the development of multi‐stakeholder, consensus‐based ecosystem management. For example, federal actions subject to review under NEPA could shift focus from considering project impacts to ecosystem services impacts. Local and state land use decisions could build upon precedent set with mitigation banking under the Clean Water Act.

It is critical to emphasize that this approach could become a major equity concern if mismanaged. Communities must be involved so that the damages and benefits are spread justly across and within communities. This is especially true when addressing the legacy of discrimination faced by environmental justice communities and determining what damage is permissible under a no-net-loss framework. Making these decisions and processes more local provides an opportunity to protect residents from this potential concern.

Federal changes should be bolstered by efforts at the state level, including through revising or adopting state-level NEPA laws to include requiring an analysis of how a project will affect ecosystems and ecosystem services in the long term.

Policymakers at all levels should reform governance structures to complement ecological boundaries. Ecologically oriented governance will prioritize the entire habitat or watershed and more effectively integrate natural systems and environmental media to better ensure impacts are accounted for and degradation is mitigated. That reorganization will necessarily require inter- and intra-governmental cooperation at all levels — federal, state, local, and tribal. Throughout, these techniques should involve communities and incorporate traditional ecological knowledge.

To better align ecology and governance, the U.S. Fish and Wildlife Service should be given the authority to work with multiple levels of government and private entities to negotiate land use plans that protect or enhance ecosystem services. Such authority would be particularly useful when endangered species and critical habitat are at issue, providing a protective mechanism with widespread stakeholder engagement. Bringing together all parties with jurisdiction within a given ecological context with oversight by FWS may enhance cooperation and response to ecosystem management challenges.

New and existing regional governance bodies could be provided with “pre-authorization compacts” akin to water compacts and regional electricity grid agreements to address different parts of the same environmental event or phenomenon. While arguably less comprehensive than ecosystem-level management, compacts may be more feasible and can still help facilitate responsive coordination to environmental impacts.

INJUSTICE is manifest in several dimensions across the landscape of U.S. environmental law and policy, at all levels of governance, from local actions to state and federal decisionmaking. Communities of color and low-income communities often experience higher releases of pollutants, siting of undesirable land uses, and lack of access to environmental benefits and amenities. These same communities already bear a substantial health, social, and economic burden from pollutants, poorer access to healthy living spaces, effects of poverty, and inadequate access to health care. Even where pollutants and practices are similar to those experienced elsewhere, the addition of these burdens to existing health, socioeconomic, and community conditions can have greater cumulative adverse impacts on such environmental justice community residents.

At the federal level, the framework for environmental justice has been almost entirely based on executive orders and agency memoranda, rather than on enforceable laws and regulations. Environmental justice gained formal federal recognition in Executive Order 12898, “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations,” issued by President Clinton in 1994, and still in effect today.

But there is still no focused and specific federal statutory foundation for environmental justice. EPA’s Office of Environmental Justice has identified various provisions in federal law that can be cited by federal agencies when they desire to support an EJ-related decision. OEJ also has developed EJScreen, a mapping and information tool, to assist agency decisionmakers and permit applicants in identifying communities and implementation factors where cumulative adverse impacts may occur. In the absence of legal drivers, however, this kind of tool cannot alone produce substantive change.

A number of states have enacted environmental justice legislation or adopted regulations or policy instruments to give EJ a greater role in decisionmaking. California’s CalEnviroScreen, for example, enables decisionmakers to identify environmentally burdened communities and create indices used for permitting, enforcement, and funding prioritization.

THE Wingspread and Airlie conferees recognized the need for legal processes to obtain just outcomes and not merely more accessible procedures — especially given cumulative impacts on EJ communities. They noted that EJ initiatives, in order to be effective, must be thoroughly integrated into all decisionmaking affecting the environment. It cannot simply be an add-on or check-off at the end of a decision process.

A minority of states already have constitutional rights related to the environment, but only a few of these are self-executing and enforceable by members of the public and communities. Environmental justice may be advanced by promoting adoption of such state amendments. In those states that already have only hortatory environmental amendments on the books, the approach would seek appropriate further amendment to enhance enforceability. This approach would require careful drafting of amendments to ensure that they are self-executing and hence enforceable without the need for additional state legislation. It would also need to create or recognize a public trust in the natural resources of the state, including clean air, pure water, biological resources, and publicly owned lands and resources, and state a human right to a clean and healthy environment.

Federal and state legislation that embodies important EJ procedural and outcome elements should be adopted. Such legislation can include codification of E.O. 12898 elements, including definitions of minority and low-income communities and disproportionately high and adverse impacts, as well as meaningful engagement and other provisions. The laws could require tools such as EJScreen. There could be other requirements for new development in communities overburdened by pollution to offset any projected increases in pollution loadings, with reductions in the existing pollution inventory on a 1:1 or net-reduction basis. Statutes could mandate disclosures of information by applicants or operators that will enable communities to participate in review processes and take action to protect their health and resources. They could remove legal barriers to public participation in decisions affecting EJ communities. Finally, the laws could create a private right of action for enforcement of civil rights.

For the private sector, policymakers could promote and encourage private governance and corporate commitments and accountability mechanisms for environmental justice. Companies and groups of companies and organizations can develop best practices and codes of conduct that firms integrate into their decision processes, management systems, supply chain requirements, and internal and external accountability mechanisms.

As the country embarks on the second half-century of the modern environmental law era, it is important to recognize both the successes of the past as well as the issues for which environmental law has not been as successful. The Reimagining process was designed to focus on some of the critical issues to ensure that policymakers seriously address remaining problems and inequities. We hope that when our successors look back on environmental law at 100, they will be able to identify significant progress in the areas identified by the Wingspread and Airlie House participants as critical issues. R&P

John Pendergrass is ELI’s vice president for programs and publications, and leads the Research and Policy Division. ELI Visiting Scholar LeRoy Paddock is distinguished professorial lecturer in environmental law at George Washington University Law School.

———

The authors thank all the Wingspread and Airlie House participants, who are the true authors of this article, and James McElfish, Sandra Nichols Thiam, and Jarryd Page, who drafted the white papers that were excerpted here.

ELI POLICY BRIEF No. 17 Over the next 50 years, policymakers need to fill in significant gaps in environmental and resource law to achieve a sustainable economy. That means addressing climate change, polluted runoff, materials reuse, ecological degradation, and environmental justice.

Net-Zero on Public Lands

Read more about Net-Zero on Public Lands

Author

Jamie Gibbs Pleune - University of Utah, S.J. Quinney College of Law

John C. Ruple - University of Utah, S.J. Quinney College of Law

Nada Wolff Culver - National Audubon Society

University of Utah, S.J. Quinney College of Law

National Audubon Society

Current Issue

July-August 2021

Issue

“Let me be very clear today . . . The world does have a carbon budget. It’s finite and it’s running out fast, and we need a rapid transition to net-zero.”1 The chief executive officer of BP, Bernard Looney, might be an unexpected climate spokesman, but his statement reflects scientific consensus. In 2019, the Intergovernmental Panel on Climate Change issued a special report emphasizing the importance of limiting global warming to 1.5° Celsius.2 Limiting global warming requires adhering to a carbon budget.3 For this reason, the World Economic Forum’s Global Risks Report identified “‘[f]ailure of climate change mitigation and adaptation’ [as] the number one risk by impact and the number two by likelihood over the next ten years.”4

Regarding fossil fuel development on federal lands, the Bureau of Land Management sits amidst a myriad of tensions that pull at the fabric of a carbon budget.5 Almost one-quarter of all U.S. carbon dioxide emissions come from fossil fuels extracted from public lands.6 Although BLM has acknowledged climate change risks in the past, under the Trump administration, the agency has rolled back methane reduction strategies,7 encouraged coal leasing,8 and expedited fossil fuel production on federal land—all resulting in increased CO2-equivalent emissions.9 Even before these rollbacks were implemented, the United States was not on track to reach the carbon budget targets that it had submitted to the United Nations.10

Regardless of the Trump administration’s hostility to the United Nations Framework Convention on Climate Change,11 BLM has a statutory duty set forth in the Federal Land Policy and Management Act12 to coordinate management of various resources “without permanent impairment of the productivity of the land and the quality of the environment.”13 Continuing to permit fossil fuel development without adhering to a carbon budget violates this statutory duty.

Until there is a federal carbon budget in place ensuring that increased greenhouse gas emissions from federal leases will not exacerbate climate change, BLM should not authorize an increase in GHG emissions. Instead, BLM should use its broad regulatory authority over federal mineral leases to impose a net-zero obligation on all new development activity, including new wells on existing leases. Requiring net-zero emissions from all new fossil fuel development activity would be one way to create a predictable and transparent method of balancing the interests of current lease holders with the necessity of adhering to a science-based carbon budget.

The existing legal framework provides a method of implementing this budgetary restriction in a fair, transparent, justifiable, and efficient manner. Using the permitting process to require mitigation of GHG emissions would align with BLM’s statutory duties and strike a more appropriate balance of resource uses to meet “the present and future needs of the American people.”14

This article is a summary of a longer, more detailed forthcoming exploration of BLM’s statutory responsibility and authority to mitigate GHG emissions from fossil fuel production, focusing on oil and gas leasing for context. It argues that BLM must address climate change in its decisions. It also proposes a legal strategy for BLM to require that all new oil and gas wells, including those on existing leases, achieve net-zero GHG emissions (for upstream and downstream emissions) as a condition of operational approval. While the following discussion focuses on the oil and gas permitting process, the same principles could apply to other permitting decisions.

There Is Scientific Consensus About the Urgency of Reducing GHG Emissions

Climate change is happening15; it is worse than we expected16; and it will get even worse if we fail to act decisively.17 These facts prompted the IPCC to issue a special report emphasizing the importance of limiting global warming to 1.5°C.18 Summarizing the best available science, the IPCC recognizes that human activities have already caused 1°C of global warming, and will likely reach 1.5°C within the next few decades.19 On the current global emissions trajectory, warming will reach at least 3°C by the end of the century.20 Allowing global warming to exceed 1.5°C will likely cause irreversible harm to planetary functions that support ecosystems, biodiversity, and human civilizations.21

Increasing the atmospheric concentration of CO2 (and other heat-trapping gases, such as methane) caused this rise in temperature.22 Between 1958 and 2019, the average annual CO2 concentration skyrocketed from 315 parts per million to more than 400 ppm.23 According to the Environmental Protection Agency, the concentration of CO2 has increased 46% from pre-industrial levels, and the concentration of methane has increased 165% during this time.24

Continuing to increase GHG emissions will further degrade atmospheric composition and exacerbate climate change. A global pathway, with no or limited overshoot of 1.5°C, would require a 45% decline in global anthropogenic GHG emissions by 2030, reaching net zero around 2050.25 “This equates to a remaining carbon budget of less than 10 more years of emissions at their current level.”26

The observed and forecasted negative effects of climate change are externalities that will be amplified the longer they are ignored, which has implications that BLM should consider during the fossil fuel permitting process.27 In other words, there is no time to lose in moving toward net-zero emissions in order to achieve a 1.5°C emissions pathway. Along that pathway, every source of GHG emissions is significant.

BLM Is Legally Obligated to Address Climate Change in Leasing and Permitting

FLPMA establishes a standard of care for BLM’s management of federal land. BLM must make “judicious use” of federal lands without “permanent impairment” to the productivity and quality of the environment.28 BLM “shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.”29

The Congress requires BLM to manage for a multigenerational investment horizon, employing a balance that “will best meet the present and future needs of the American people.”30 Congress also identified discrete ecological values that should not be permanently impaired. For example, FLPMA’s statement of purpose instructs BLM to protect “the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values.”31

Notably, the list of assets to be stewarded by BLM includes “atmospheric values.” Congress understood at least some of the risks and challenges of anthropogenic climate change when it used those words. Nine years before FLPMA was passed, the Johnson administration issued a White House report detailing the risk of global warming caused by fossil fuel emissions and predicting now familiar impacts: melting of the Antarctic ice cap, rising of sea level, and warming of sea water.32 When Congress included “atmospheric values” in the list of resources that BLM must protect, it had already received evidence that fossil fuel development could threaten everything that depends on a safe and stable atmosphere.

More importantly, Congress understood that there would be multiple, unforeseen challenges in striking the right balance of multiple uses. Congress defined “multiple use” to include a “combination of balanced and diverse resources that takes into account the long-term needs of future generations.”33 This broad language granted BLM regulatory flexibility to respond to new scientific evidence and changing societal needs. As the Supreme Court recognized when interpreting the Clean Air Act,34 even if the Congress that drafted FLPMA “might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render [the act] obsolete.”35 Broad language “reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence.”36

Regardless of whether Congress explicitly understood that continued fossil fuel development would permanently impair atmospheric values and harm future generations, FLPMA’s broad language reflects an intentional effort to confer flexibility necessary to respond to changing circumstances and scientific developments. Scientific consensus regarding climate change indicates that adhering to a 1.5°C temperature budget is necessary to avoid permanent impairment to the atmospheric composition and to other natural systems that support civilization, and to forestall widespread extinctions. Congress instructed BLM to respond to changing circumstances by managing with a multigenerational horizon.37 The sweepingly broad language used by Congress in FLPMA grants BLM the regulatory flexibility to fulfill its statutory mandate by responding to the new circumstances presented by climate change, and to alter its oil and gas leasing practices to utilize federal resources in a manner “that will best meet the present and future needs of the American people.”38

Unbridled Fossil Fuel Development Violates FLPMA’s Standard of Care

BLM has acknowledged that increasing GHG emissions may permanently impair ecological systems, including the atmosphere.39 In January 2016, BLM completed a scoping report on the federal coal leasing program.40 The scoping report summarized the scientific consensus, including recent studies that “confirm and further strengthen the conclusion that greenhouse gases endanger public welfare, and emphasize the urgency of reducing greenhouse gas emissions.”41 BLM acknowledged that the atmospheric composition “may be approaching a critical climate threshold beyond which rapid and potentially permanent—at least on a human timescale—changes . . . may occur.”42 Abrupt and irreversible ecological impacts, including species extinctions, “are expected to be exacerbated by climate change.”43 Finally, BLM acknowledged that without mitigation, GHG concentrations will climb to ever-increasing levels.44

These studies illustrate that exacerbating climate change will violate BLM’s statutory duty to manage various resources “without permanent impairment of the productivity of the land and the quality of the environment.”45 “Crossing a critical climate threshold” that compromises atmospheric stability will permanently impair the atmospheric values upon which current and future generations depend.

Similarly, changes resulting in widespread extinction constitute permanent impairment because extinction is irreversible. Additionally, widespread extinctions damage the productivity of the land because the land cannot produce or rely upon extinct species. Exacerbating the risk of these types of harms by allowing increased fossil fuel development without mitigating GHG emissions does not meet BLM’s statutory duty to establish “coordinated management of the various resources without permanent impairment of the productivity of the land and quality of the environment.”46

Despite acknowledging the risks of unabated GHG emissions, BLM continues to ignore the massive combined effect of its permitting decisions. BLM administers oil and gas leases covering 25.5 million acres, and these lands include more than 96,000 producible oil and gas wells.47 In producing more than 274 million barrels of oil, 3.3 billion cubic feet of natural gas, and 302 million tons of coal each year,48 the combined effects of BLM’s management decisions significantly affect U.S. and global emissions, a fact that BLM has avoided acknowledging formally.49

BLM’s current approach to oil and gas leasing, which often allows an unmitigated increase in GHG emissions, is inconsistent with FLPMA’s mandate to avoid permanently impairing ecological values, including the atmosphere. It also violates BLM’s duty to manage resources with a multigenerational investment horizon. Although agencies have broad discretion in how to respond to climate change, that discretion does not extend to whether to address climate change. The science of climate change is not a policy preference—it is part of a body of evidence that arises in the context of every fossil fuel permitting decision.

A comprehensive and insightful review of climate-related cases between 2015 and 2020 published by the nonpartisan Environmental Law Institute reveals that “vast judicial agreement exists on the causes, extent, urgency, and consequences of climate change.”50 This observation “holds true across U.S. federal and state courts, across different types of proceedings, and across jurisdictions,” including international jurisdictions.51 The report takes care to point out that even the parties, including government agencies such as BLM, appeared to agree on basic climate science, even if they disagreed on the legal implications.52

Where agencies under the Trump administration reversed Obama-era policies on climate change, courts have reminded the agencies that inconvenient facts survive changes of administration. “An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.”53 Agency decisions that “simply discarded prior factual findings related to climate change” have been found arbitrary and capricious.54

It does not matter that BLM discussed the risks of “crossing a critical climate threshold” in the context of coal mining, rather than oil and gas development. The same facts apply to any fossil fuel. From tar sands to oil shale to oil and gas development, the scientific studies referenced in BLM’s scoping report were the preeminent studies reflecting the most current scientific understanding of a global problem that is urgent and ubiquitous and caused by a class of fuel. In the scoping report, BLM properly recognized that these studies forecast a risk of permanent impairment caused by crossing a critical climate threshold. More recent studies, like the IPCC special report emphasizing the importance of limiting global warming to 1.5°C, further strengthen BLM’s recognition in the scoping report that exacerbating climate change may cause abrupt and irreversible changes, including widespread extinctions.

A hallmark of administrative law is the requirement that agencies engage in “reasoned decisionmaking.”55 As the Supreme Court recently pointed out, “the government should turn square corners in dealing with the people.”56 One of those square corners is the requirement to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.”57 Whether GHG emissions come from coal mining or oil and gas development, the relevant data indicate that continuing to increase GHG emissions exacerbates the risk of crossing a critical climate threshold and causing permanent impairment to the quality of the environment and the productivity of the land. Ignoring this relevant data when making permitting decisions is arbitrary and capricious.

BLM Can Require That All New Fossil Fuel Activity Achieve Net-Zero Emissions

BLM has broad authority under FLPMA, the National Environmental Policy Act,58 and the Mineral Leasing Act to mitigate GHG emissions. Until recently, both BLM and the Department of the Interior embraced mitigation measures responding to climate change and landscape-scale management that included landscape-scale mitigation.59 BLM’s current policy rejecting compensatory mitigation is inconsistent with precedent, contrary to statutory authority, and lacks the force of law.60 Because Trump administration policies represent a policy choice, not a legal boundary of BLM’s authority, they should not detract from an informed discussion of BLM’s legal authority to require mitigation of GHG emissions.

Mitigation authority infuses BLM regulations. BLM has regulatory authority to make decisions and set standards that avoid impairment of other resources, consistent with its duties under FLPMA.61

For example, in combination with FLPMA, NEPA requires BLM to consider and, in some cases, implement alternatives that mitigate adverse impacts caused by a proposal. DOI regulations implementing NEPA, which apply to BLM, require that every proposed action include an analysis “of the effects of the proposed action or alternative as well as analysis of the effects of any appropriate mitigation measures or best management practices that are considered.”62 The MLA also grants BLM broad authority to determine what lands to lease, and to manage leases in the public interest.63 BLM mineral leasing regulations expressly reserve authority to impose “reasonable measures as may be required . . . to minimize adverse impacts.”64

Specific to onshore oil and gas leases, BLM has regulatory authority “to require that all operations be conducted in a manner which protects other natural resources and the environmental quality.”65 Emphasizing this authority, oil and gas leasing regulations also impose a duty on operators to comply with mitigation-focused restrictions. Operators must conduct “all operations in a manner . . . [that] protects other natural resources and environmental quality; which protects life and property.”66 Additionally, operators “shall conduct operations in a manner which protects the mineral resources, other natural resources, and environmental quality.”67

In other words, BLM has both options and the authority to act. Many statutory and regulatory provisions grant BLM authority to regulate mineral leasing operations in a manner that protects environmental quality. Undergirding those regulations, FLPMA requires BLM to manage multiple uses (including mineral development) without permanent impairment to the quality of the environment or the productivity of the land.68

BLM has already used this authority to incorporate GHG mitigation requirements into best management practices for oil and gas production. For example, BLM recently published an environmental assessment related to the sale of 283 parcels previously sold in a Wyoming oil and gas lease sale.69 In WildEarth Guardians v. Zinke, the federal court for the District of Columbia concluded that BLM had sold the parcels without taking a “hard look” at the GHG emissions that would result from the sale.70 In its post-remand environmental assessment, BLM relied, in part, upon its mitigation authority at the development stage to conclude that issuing the leases had no significant environmental impact.71

Specific to mitigation of impacts from GHG emissions, BLM identified three sources of authority for mitigating GHG impacts before an oil and gas well received a permit to drill. “Analysis and approval of future development of the lease parcels may include application of BMPs within BLM’s authority, as Conditions of Approval, or COAs, to reduce or mitigate GHG emissions.”72 BLM also clarified that additional GHG mitigation measures could be incorporated as “applicant-committed measures” or “added to necessary state of Wyoming air quality permits.”73 These measures included requiring vapor recovery systems; conversion to electric, solar, or mechanical pumps; and use of “green completions” that avoid use of open pits and capture gas.74

Other BLM offices have also identified the possibility of imposing GHG mitigation measures as BMPs or as COAs. For example, the Colorado BLM published the Comprehensive Air Resource Protection Protocol identifying emission mitigation strategies that include GHG emissions.75 These measures also include minimizing or eliminating flaring of natural gas and using closed-loop systems to capture gas, using electric or renewable energy to power compressors, and capture and control of emissions from storage tanks and separation vessels.76 The protocol further explains that where identified mitigation measures cannot be reasonably implemented, BLM may require emission offsets instead.77

BLM has relied on its authority under both the MLA and FLPMA to require mitigation measures.78 In summary, BLM has already implemented procedures and reasoning relying on its authority to incorporate GHG mitigation measures at the application for permit to drill stage. Augmenting these measures to ensure that they are evenhandedly enforced and consistent with a carbon budget is also within BLM’s authority.

BLM Has Statutory, Regulatory, and Contractual Authority to Impose Mitigation Measures at Every Stage

Thousands of oil and gas leases, subject to hundreds of land use plans, are already in effect at every stage of the development process. The following discussion clarifies that BLM has authority to impose a net-zero requirement at each of these stages. This clarification is important for assessing BLM’s authority to quickly and evenhandedly implement a net-zero requirement on all new oil and gas activity.

Oil and gas leasing decisions occur in three stages: land use planning, leasing, and Application for a Permit to Drill approval, known as APD. Each stage triggers NEPA, and BLM has authority to mitigate adverse environmental impacts at each stage.79

During stage one, BLM drafts resource management plans encompassing vast landscapes.80 BLM must periodically update land use plans,81 and its regulations include a duty to revise land use plans based on “new data” and “a change in circumstances.”82 The IPCC special report presents “new data” indicating that climate change is already occurring, that the effects are more dramatic than expected, and that these new, observation-based data caution against exceeding 1.5°C in global warming. This information constitutes a change in circumstances and warrants revising or amending land use plans that authorize unmitigated fossil fuel development.

Using the land use planning process, BLM could adopt a universal stipulation or programmatically amend existing land use plans to include a best practice that is applicable to all new leases. The lessee’s GHG mitigation strategy could be submitted as part of the drilling plan and incorporated as a COA. As BLM recognized in its coal program scoping report, a net-zero requirement could be achieved by requiring the lessee to carry out (or fund) activities that proportionally offset emissions.83 “This approach has been used under the Endangered Species Act and Clean Water Act as an efficient way to provide appropriate and measurable benefits to a resource that has been negatively affected through a proposed action.”84

For example, lessees could implement methane reduction strategies such as plugging abandoned wells sufficient to offset the anticipated CO2 equivalent emissions.85 So long as the emission reduction activities are not otherwise required by law, a company’s GHG reductions could partially or fully offset the emissions from new wells. Alternatively, a lessee could offset emissions through investment in carbon sink strategies verified by a third party. Although there are still challenges to be worked out, a market already exists to utilize third-party providers who verify and manage net-zero commitments.86

The land use planning process has been used in the past to respond to new data and changing circumstances. For example, to adopt sage-grouse protections across the bird’s range in 10 western states, BLM revised or amended 98 Resource Management Plans to incorporate mitigation strategies designed to protect habitat.87 To ensure that the mitigation measures were implemented consistently, BLM issued an instructional memorandum detailing implementation of the procedures designed to incorporate mitigation into the leasing and APD processes.88 Using a similar approach would require a thorough NEPA assessment that should be accomplished through a programmatic environmental impact statement. The PEIS should also address the other two stages of the leasing process.

The second stage of the leasing process occurs when BLM offers specific parcels of land for sale.89 Leasing decisions usually tier to the RMP while affording an opportunity to take a closer look at information not considered at the much broader land planning level. At the leasing stage, BLM should conduct a more focused NEPA analysis to identify whether site-specific limitations or monitoring and evaluation results require additional mitigation measures as part of an adaptive management strategy.90

Even if an RMP allows a particular land use, the site-specific analysis provides an opportunity to assess whether the assumptions supporting the RMP decision remain valid, and whether there are additional or new site-specific considerations that may have a significant effect on the environment. BLM has authority to impose stipulations at the prepurchase leasing stage, including mitigation measures identified during the NEPA process.91 Because the lease is a contract, BLM has broad authority to define the terms of the contract prior to sale.92

At the third stage, the lessee submits a site-specific drilling and reclamation plan as an APD that BLM must approve. BLM has authority to require mitigation at this stage, and it has already acknowledged that this authority includes imposing GHG mitigation requirements.93 Consistent with the plain language of the standard lease form, the “[l]essee must conduct operations in a manner that minimizes adverse impacts to the land, air, and water, to cultural, biological, visual, and other resources, and to other land uses or users.”94 BLM retains extensive authority to require that mitigation measures, best practices, and other “reasonable measures deemed necessary” be incorporated into the drilling plan as a condition of APD approval.95

Best practices and mitigation measures may be incorporated as part of the drilling plan, even if they were not anticipated at the time of the lease sale.96 A lessee challenging a requirement included as a COA at the APD stage must prove by a preponderance of the evidence that the mitigation measure was erroneous.97 Where mitigation measures are based on scientific evidence and environmental analysis, BLM’s reasoned opinion is entitled to “considerable deference.”98 Thus, BLM has regulatory and contractual authority to impose a net-zero mitigation requirement on permits for leases that have already been sold.

BLM cannot claim that it is “too late” to impose a stringent mitigation requirement at the APD stage, because it frequently lauds its extensive authority to mitigate environmental impacts at that very stage.99 BLM and industry have long used BLM’s regulatory authority at the APD stage to justify a truncated NEPA analysis at the leasing stage, while promising a more detailed analysis of mitigation measures at the APD phase.100 Especially where analysis has been deferred, it is appropriate to use the NEPA process at the APD stage to explore and require mitigation opportunities.

In a similar context, a federal court in Colorado rejected BLM’s claim that it is “too late” to analyze and mitigate GHG emissions after having delayed a thorough NEPA analysis at an earlier stage of the leasing process. “Under this reasoning, it could theoretically reward agencies for skirting NEPA requirements in prior stages of oil and gas development, which does not align with the informed decision-making goals of NEPA.”101

In summary, if BLM and industry justify postponing the NEPA analysis at the leasing stage by promising to evaluate mitigation measures at the APD stage, then BLM cannot justify foregoing consideration of mitigation measures at the APD stage by claiming that it is now too late for that analysis. Thus, for many existing leases, BLM could reasonably require lessees to include GHG mitigation measures in the drilling plan and require net-zero emissions as a COA at the APD stage.

BLM Can and Should Consistently Impose GHG Mitigation Measures Sufficient to Adhere to a Science-Based Carbon Budget

GHG mitigation requirements should be universally and fairly implemented. Developing a complete and equitable implementation strategy will take time. BLM has authority to impose a moratorium on oil and gas leasing while it develops a comprehensive GHG mitigation policy, so that unmitigated GHG emissions do not continue until the new policy and requirements are in place.102 The authority to pause onshore oil and gas leasing was discussed in detail in a 2019 article published in these pages by Professor (and former Interior Solicitor) John Leshy, and this article builds on the well-developed reasoning set out in that article. The MLA requires that public lands “may” be leased.103 While the MLA, as amended by the Federal Onshore Oil and Gas Leasing Reform Act of 1987,104 requires that lease sales be held quarterly, this requirement applies “where eligible lands are available” for leasing.105 Accordingly, where the secretary determines that no eligible lands are available for sale, he or she is not obligated to hold lease sales.

As discussed by Professor Leshy, the secretary has historically relied on executive authority, withdrawal authority under FLPMA, and land use planning authority under FLPMA.106 BLM’s authority to impose a moratorium on oil and gas leasing ultimately arises from the agency’s overarching duty articulated in FLPMA to manage multiple uses without permanent resource impairment.107 Moreover, the MLA vests BLM with discretion to manage the pace and structure of mineral leasing, including suspension of operations in the interest of conservation.108 Federal courts have recognized that the phrase “in the interest of conservation” used in the MLA includes the prevention of environmental harm.109 BLM has relied upon these sources of authority to adjust the pace of oil and gas leasing in the past.110

Imposing a moratorium on new leasing will provide an opportunity for BLM to assess the existing inventory of leased lands and determine how to address future development, including GHG mitigation.111 It will also provide BLM an opportunity to reconsider how to allow development of oil and gas leases “without permanent impairment of the productivity of the land and the quality of the environment,” consistent with BLM’s statutory mandate.112

Regarding leases that have already been sold but not yet put into production, BLM should conduct a thorough environmental review to determine whether the cumulative effect of issuing drilling permits for the existing inventory of nonproducing leases (14,119 leases representing 12,757,922 acres)113 will have a significant impact on the environment.114 The analysis could be included in the PEIS or conducted independently. BLM could also use the NEPA process to evaluate whether mitigating GHG emissions through offsets would be a “reasonable measure” necessary to “minimize adverse impacts to land, air, and water, to cultural, biological, visual, and other resources, and to other land uses or users.”115

If the NEPA process determines that it is a “reasonable measure” in light of the risks of exacerbating climate change, then BLM could require a net-zero plan from all lessees at the APD stage. Lessees who desired to proceed before BLM can complete a cumulative effects analysis for all sold but not yet producing leases, and could agree to voluntarily mitigate GHG emissions.116 Assuming that there are no other significant environmental impacts, committing to achieve net-zero emissions could justify a mitigated finding of no significant impact, with respect to GHG emissions, and the approval of the pending APD prior to the completion of a cumulative effects analysis for similarly situated leases or prior to the completion of the PEIS.

Thus, the existing regulatory structure, combined with the reasoned decisionmaking process imposed by NEPA, provides BLM with authority and opportunity to require mitigation of adverse environmental effects caused by oil and gas operations. Because exacerbating climate change is an adverse effect caused by the combined effect of oil and gas operations that increase national GHG emissions, BLM should use its existing authority to require that all new oil and gas activity incorporate GHG mitigation strategies in drilling plans. BLM could reasonably include a net-zero emission strategy as a COA for all new oil and gas wells.

Conclusion

The world has a finite carbon budget that is being depleted while the United States fails to act forcefully. Failure to stay within the carbon budget will exacerbate climate change and result in “permanent impairment of the productivity of the land and quality of the environment.” Entrusted with managing the nation’s mineral estate, BLM sits at the crossroads of this transition. Continuing to authorize fossil fuel development without requiring GHG mitigation will exacerbate climate change and violate BLM’s statutory mandate.

BLM has regulatory authority over the oil and gas leasing and development process. Oil and gas regulations reflect BLM’s statutory duty to mitigate adverse effects on other resources and other land users. In light of the risks posed by exacerbating climate change, mitigating the increase in GHG emissions associated with expanded oil and gas development is reasonable and justified. Within the existing legal framework, BLM has authority to impose mitigation measures at every stage of the oil and gas leasing process. Thus, BLM could incorporate a net-zero requirement on all new leases, as well as leases that have been sold, but have not yet applied for an APD.

To fulfill its multiple use mandate, BLM should use this authority, combined with the NEPA process, to incorporate GHG mitigation measures as part of the oil and gas leasing and development process. BLM should require that all new oil and gas development activity incorporates GHG mitigation strategies sufficient to achieve net-zero emissions.

To ensure consistent implementation, and to comply with NEPA, BLM could impose a moratorium on oil and gas leasing until the completion of a PEIS. To determine whether leases that have been sold but have not obtained an APD should be included in the PEIS, BLM could conduct an environmental review to determine whether the cumulative effect of issuing APDs to all similarly situated, nonproducing leases would have a significant environmental effect. Lessees could avoid waiting for the results of the environmental assessment and potential EIS by voluntarily agreeing to mitigate GHG emissions in order to obtain a mitigated FONSI (assuming there were no other significant impacts). This approach would be consistent with BLM’s statutory duty to manage federal lands according to a standard of care, with a multigeneration time horizon, and without permanent impairment of the nation’s ecological resources, including the atmosphere. ELR

Jamie Gibbs Pleune is a Wallace Stegner Center legal fellow at the University of Utah’s S.J. Quinney College of Law.
John C. Ruple is professor of law, research, and Wallace Stegner Center legal fellow, S.J. Quinney College of Law.
Nada Wolff Culver is vice president, public lands, and senior policy counsel at the National Audubon Society.

The views expressed herein reflect the authors’ personal opinions and do not necessarily represent those of the federal government, the state of Utah, the University of Utah, the National Audubon Society, or the project funders. This article apppeared titled “A Road Map to Net-Zero Emissions for Fossil Fuel Development on Public Lands” in The Environmental Law Reporter, September 2020. *Ms. Culver wrote the article while at Audubon. She is now serving as deputy director of policy and programs for the Bureau of Land Management.

Authors’ Note: Thank you to Ryan Lolar for his careful review and thoughtful comments on drafts of this article, and to the Wilburforce Foundation for supporting this research effort. The Wilburforce Foundation did not review any aspect of this article prior to publication or otherwise exercise editorial control.

1. Robert Perkins, BP Sets Target for “Net Zero” Carbon Footprint by 2050, Platts Oilgram News, Feb. 13, 2020.

2. Summary for Policymakers, in Global Warming of 1.5°C. An IPCC Special Report on the Impacts of Global Warming of 1.5°C Above Pre-Industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty (Valérie Masson-Delmotte et al. eds., IPCC 2018) [hereinafter IPCC Summary for Policymakers].

3. Id. at 12, para. C.1.3.

4. World Economic Forum, the Global Risk Report 2020, at 12, 34 (2020), available at http://www3.weforum.org/docs/WEF_Global_Risk_Report_2020.pdf.

5. Recognizing that there are multiple types of greenhouse gases (GHGs) with differing properties, this Article generally refers to GHG emissions as a whole, without distinguishing between the different gases. However, where a specific statistic or reference identifies a particular gas or refers to carbon dioxide equivalent (CO2e), the specificity is reflected in this Article. For more information about the different properties of GHGs and for a definition of CO2e, see U.S. Environmental Protection Agency (EPA), Greenhouse Gas Emissions: Overview of Greenhouse Gases, https://www.epa.gov/ghgemissions/overview-greenhouse-gases (last updated May 28, 2020).

6. U.S. Geological Survey, Federal Lands Greenhouse Gas Emissions and Sequestration in the United States: Estimates for 2005-14, at 1, 8 (2018), available at https://pubs.usgs.gov/sir/2018/5131/sir20185131.pdf. This number includes upstream (extraction-based) and downstream (user-based) emissions.

7. See Waste Prevention, Production Subject to Royalties, and Resource Conservation; Rescission or Revision of Certain Requirements, 43 C.F.R. pt. 3160 (2018), https://www.govinfo.gov/content/pkg/FR-2018-09-28/pdf/2018-20689.pdf (announcing rescission of Barack Obama-era rule that clarified BLM’s authority to set royalty rates at or above 12.5%).

8. Exec. Order No. 13783, Promoting Energy Independence and Economic Growth, 82 Fed. Reg. 16093 (Mar. 31, 2017) [hereinafter E.O. No. 13783] (rescinding Executive Orders and Plans related to responding to climate change and instructing all agencies to “suspend, revise, or rescind” agency actions arising from instructions related to addressing climate change); Exec. Order No. 13868, Promoting Energy Infrastructure and Economic Growth, 84 Fed. Reg. 15495 (Apr. 10, 2019); Secretarial Order No. 3348, Concerning the Federal Coal Moratorium (Mar. 29, 2017).

9. See, e.g., E.O. No. 13783, supra note 7.

10. United Nations Environment Programme, Emissions Gap Report 2019, at 20 (2019), available at https://wedocs.unep.org/bitstream/handle/20.500.11822/30797/EGR2019.pdf?sequence=1&isAllowed=y (noting that the U.S. target emission reductions were 26%-28% from 2005 levels by 2025 and expressing concern that the Trump Administration has reduced anticipated emission reductions from power plants and frozen requirements for GHG reductions in vehicle emissions and fuel economy standards, in addition to encouraging increased fossil fuel production on public land); see id. at 26 (explaining that “continuation of current global policies would lead to a global mean temperature rise of 3.5°C by 2100” with a range of 3.4°C to 3.9°C and a 66% probability).

11. Lisa Friedman, Trump Serves Notice to Quit Paris Climate Agreement, N.Y. Times, Nov. 4, 2019.

12. 43 U.S.C. §§1701-1785, ELR Stat. FLPMA §§102-603.

13. 42 U.S.C. §1702(c).

14. Id. (defining “multiple use” to include “management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people”).

15. U.S. Global Change Research Program, Climate Science Special Report: Fourth National Climate Assessment, Volume 1, at 36 (2017), available at https://science2017.globalchange.gov/downloads/CSSR2017_FullReport.pdf (summarizing “thousands of studies conducted by tens of thousands of scientists” to conclude that “evidence of a changing climate abounds from the top of the atmosphere to the depths of the oceans”).

16. World Economic Forum, the Global Risks Report 2020, at 33 (2020), https://www. weforum.org/reports/the-global-risks-report-2020 [hereinafter WEF, Global Risks Report 2020].

17. See generally IPCC Summary for Policymakers, supra note 2.

18. Id.

19. Id. at 4, para. A.1.

20. United Nations Environment Programme, supra note 9, at 27.

21. IPCC Summary for Policymakers, supra note 2, at 5, para. A.3.1.

22. Executive Summary, in Inventory of U.S. Greenhouse Gas Emissions and Sinks 1990-2018, at ES-1, ES-2 (U.S. Environmental Protection Agency 2020) [hereinafter EPA Executive Summary], available at https://www.epa.gov/sites/production/files/2020-04/documents/us-ghg-inventory-2020-chapter-executive-summary.pdf.

23. Global Carbon Dioxide Growth in 2018 Reached 4th Highest on Record, Nat’l Oceanic & Atmospheric Admin., Mar. 22, 2019, https://www.noaa.gov/news/global-carbon-dioxide-growth-in-2018-reached-4th-highest-on-record; CO2 at NOAA’s Mauna Loa Observatory Reaches New Milestone: Tops 400 ppm, Nat’l Oceanic & Atmospheric Admin. Global Monitoring Division, May 10, 2013, https://www.esrl.noaa.gov/gmd/news/7074.html (reporting milestone of exceeding daily mean of 400 ppm).

24. EPA Executive Summary, supra note 21, at ES-2.

25. IPCC Summary for Policymakers, supra note 2, at 12, para. C.1.

26. World Economic Forum, supra note 15, at 35 (citing Robert McSweeney & Rosamund Pearce, Analysis: Just Four Years Left of the 1.5°C Carbon Budget, Carbon Brief, Apr. 5, 2017, https://www.carbonbrief.org/analysis-four-years-left-one-point-five-carbon-budget).

27. See Jayni Foley Hein, Federal Lands and Fossil Fuels: Maximizing Social Welfare in Federal Energy Leasing, 42 Harv. Envtl. L. Rev. 1, 8-23 (2018) (describing externalities of fossil fuel development that are unaccounted for in the current leasing structure).

28. 43 U.S.C. §1702(c) (defining “multiple use”).

29. Id. §1732(b); see also Michael Burger, A Carbon Fee as Mitigation for Fossil Fuel Extraction on Federal Lands, 42 Colum. J. Envtl. L. 295, 316-26 (2017) (exploring BLM’s statutory duty under FLPMA to mitigate climate change impacts).

30. 43 U.S.C. §1702(c) (also requiring a combination of balanced and diverse resource uses “that takes into account the long-term needs of future generations”).

31. Id. §1701(a)(8).

32. Environmental Pollution Panel, President’s Science Advisory Committee, The White House, Restoring the Quality of Our Environment app. Y4, at 123-26 (1965).

33. 43 U.S.C. §1702(c).

34. 42 U.S.C. §§7401-7671q, ELR Stat. CAA §§101-618.

35. Massachusetts v. Environmental Prot. Agency, 549 U.S. 497, 532, 37 ELR 20075 (2007).

36. Id.

37. 43 U.S.C. §1702(c) (defining “multiple use” to include “a combination that will best meet the present and future needs of the American people” and a combination of uses that “takes into account the long-term needs of future generations”).

38. Id.

39. BLM, U.S. Department of the Interior (DOI), Federal Coal Program: Programmatic Environmental Impact Statement—Scoping Report 5-46 to 5-50 (2017) [hereinafter BLM, Federal Coal Program PEIS Scoping Report].

40. Id.

41. Id. at 5-50.

42. Id. (quoting National Research Council, Understanding Earth’s Deep Past: Lessons for Our Climate Future 2 (2011), available at https://www.nap.edu/catalog/13111/understanding-earth’s-deep-past-lessons-for-our-climate-future).

43. BLM, Federal Coal Program PEIS Scoping Report, supra note 39, at 5-51.

44. Id. at 5-50.

45. 42 U.S.C. §1702(c).

46. Id.

47. BLM, U.S. Department of the Interior, Oil and Gas Statistics, https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/oil-and-gas-statistics (last visited July 23, 2020).

48. Office of Natural Resources Revenue, U.S. Department of the Interior, Production Data, https://revenuedata.doi.gov/?tab=tab-production (last visited July 23, 2020).

49. See, e.g., Center for Biological Diversity, Petition for a Moratorium on the Leasing of Federal Public Land Fossil Fuels Under the Mineral Leasing Act, 30 U.S.C. §§226, 241 Before the U.S. Department of the Interior (July 12, 2016), https://www.biologicaldiversity.org/campaigns/keep_it_in_the_ground/pdfs/Petition_for_a_Moratorium_on_the_Leasing_of_Federal_Public_Land_Fossil_Fuels.pdf (submitted on July 12, 2016, and still unaddressed or acknowledged); U.S. Climate Change Litigation, Petition for a Moratorium on the Leasing of Federal Public Land Fossil Fuels, http://climatecasechart.com/case/petition-for-a-moratorium-on-the-leasing-of-federal-public-land-fossil-fuels/ (last visited July 23, 2020) (providing monthly updates on status of ongoing climate-related proceedings).

50. Maria L. Banda, Environmental Law Institute, Climate Science in the Courts: A Review of U.S. and International Judicial Pronouncements vi (2020).

51. Id.

52. Id.

53. Indigenous Envtl. Network v. U.S. Dep’t of State, 347 F. Supp. 3d 561, 584, 48 ELR 20191 (D. Mont. 2018), rev’d as moot, No. 18-36068 (9th Cir. June 6, 2019).

54. Id. at 583 (holding that Trump Administration reversal of prior record of decision (ROD) denying Keystone XL pipeline was arbitrary and capricious because the new ROD provided no justification for the changed decision other than deleting the climate change-related content of the previous ROD); see also Defenders of Wildlife v. Jewell, 176 F. Supp. 3d 975, 999, 46 ELR 20070 (D. Mont. 2016) (finding the U.S. Fish and Wildlife Service arbitrarily and capriciously ignored climate science in favor of political pressures in its decision to reverse prior decision to list wolverine as endangered).

55. Department of Homeland Sec. v. Regents of the Univ. of Cal., No. 18-587, 2020 U.S. LEXIS 3254, at *20 (June 18, 2020) (noting that the procedural requirements of administrative law establish the mechanism “by which federal agencies are accountable to the public and their actions subject to review”).

56. Id. at *32.

57. Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 13 ELR 20672 (1983).

58. 42 U.S.C. §§4321-4370h, ELR Stat. NEPA §§2-209.

59. See, e.g., Secretarial Order No. 3330, Improving Mitigation Policies and Practices of the Department of the Interior (Oct. 31, 2013), revoked by Secretarial Order No. 3349 (Mar. 29, 2017); BLM Manual MS 1794 Mitigation (2016), and BLM Mitigation Handbook H-1794-1 (2016), rescinded by Secretarial Order No. 3360 (Dec. 22, 2017); see also Energy and Climate Change Task Force, U.S. Department of the Interior, A Strategy for Improving the Mitigation Policies and Practices of the Department of the Interior: A Report to the Secretary of the Interior (2014); Jessica Halofsky et al., U.S. Global Change Research Program, Climate Change Adaptation in United States Federal Natural Resource Science and Management Agencies: A Synthesis (2015) (describing climate adaptation efforts by federal agencies including BLM).

60. Justin R. Pidot, Compensatory Mitigation and Public Lands, 61 B.C. L. Rev. 1046, 1062 (2020); Justin R. Pidot, The Bureau of Land Management’s Infirm Compensatory Mitigation Policy, 30 Fordham Envtl. L. Rev. 1 (2019).

61. See Mineral Policy Ctr. v. Norton, 292 F. Supp. 2d 30, 42 (D.D.C. 2003) (“FLPMA, by its plain terms, vests the Secretary of the Interior with the authority—indeed the obligation—to disapprove of an otherwise permissible mining operation because the operation, though necessary for mining, would unduly harm or degrade the public land.”).

62. 43 C.F.R. §46.130(a) (2019).

63. See, e.g., 30 U.S.C. §226(a) (the secretary “may” lease lands believed to have oil and gas deposits); id. §226(b) (the secretary may by regulation establish a higher national minimum bid if necessary); id. §226(m) (BLM may require lessees to operate under a reasonable cooperative or unit plan; the secretary may prescribe a plan that may alter or modify the rate of prospecting and development; the secretary may order communitization and apportionment of leases that cannot be appropriately spaced; and the secretary may authorize subsurface storage of oil or gas to promote conservation of natural resources); see also Michael Burger & Jessica Wentz, Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review, 41 Harv. Envtl. L. Rev. 109, 117-19 (2017).

64. 43 C.F.R. §3101.1-2 (2019).

65. Id. §3161.2.

66. Id. §3162.1(a).

67. Id. §3162.5-1(a).

68. See supra Parts II and III.

69. BLM, U.S. Department of the Interior, Supplemental Environmental Assessment for the May 2015-August 2016 Sold and Issued Leases DOI-BLM-WY-0000-2019-0007-EA 7 (2019) [hereinafter BLM, EA for Sold Wyoming Leases], https://eplanning.blm.gov/public_projects/nepa/121368/170685/207328/20190412.WYSupplementalEA.WEGvZinke.Final.pdf.

70. 368 F. Supp. 3d 41, 85, 49 ELR 20041 (D.D.C. 2019).

71. BLM, EA for Sold Wyoming Leases, supra note 68, at 26 (explaining that the “sale of parcels and issuance of oil and gas leases is an administrative action, without direct impacts to surface resources” and subject to further environmental analysis that could avoid adverse impacts by imposing mitigation requirements prior to any surface disturbance that would produce environmental impacts, including emissions).

72. Id. at 35.

73. Id.

74. Id. at 35-36.

75. Colorado BLM, Comprehensive Air Resource Protection Protocol (CARPP) 15-20 (2015).

76. Id.

77. Id. at 11.

78. Id. at 4-5; BLM, EA for Sold Wyoming Leases, supra note 68, at 9; see also Waste Prevention, Production Subject to Royalties, and Resource Conservation, 81 Fed. Reg. 83008, 83019-20 (Nov. 18, 2016).

79. See New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 716 (10th Cir. 2009); Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377 F.3d 1147, 1151, 34 ELR 20072 (10th Cir. 2004); Southern Utah Wilderness All. v. Norton, 457 F. Supp. 2d 1253, 1255 (D. Utah 2006).

80. Southern Utah Wilderness Alliance, 457 F. Supp. 2d at 1255.

81. 43 U.S.C. §1732(a); id. §1712(a) (BLM must “develop, maintain, and, when appropriate revise land plans”); Oregon Nat. Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092, 1096 (9th Cir. 2010).

82. 43 C.F.R. §1610.4-9 (2019); id. §1610.5-6; id. §1610.5-5.

83. BLM, Federal Coal Program PEIS Scoping Report, supra note 38, at 6-17 (“Alternatively, under this option, the BLM could approve transactions proposed by lessees that would achieve the desired outcome of compensatory mitigation, but for which projects were carried out by private businesses, non-profits, or state or local agencies.”).

84. Id.

85. EPA Executive Summary, supra note 21, at ES-8 (abandoned oil and gas wells have steadily produced between six and seven million metric tons of CO2e between 1990 and the present).

86. See generally Michael A. Mehling, Governing Cooperative Approaches Under the Paris Agreement, 46 Ecology L.Q. 765 (2019).

87. See Montana Wildlife Fed’n v. Bernhardt, No. CV-18-69-GF-BMM, 2020 U.S. Dist. LEXIS 90571, at **6-8, 50 ELR 20130 (D. Mont. May 22, 2020) (discussing Instruction Memorandum No. 2016-143 (Sept. 1, 2016), which was replaced by later guidance that was invalidated in this decision for not accurately reflecting the requirements of the overarching land use plans).

88. Id.

89. See Bruce Pendery, BLM’s Retained Rights: How Requiring Environmental Protection Fulfills Oil and Gas Lease Obligations, 40 Envtl. L. 599, 608-09 (2010).

90. 43 C.F.R. §46.145 (2019) (directing Interior bureaus to use “adaptive management” as part of the NEPA process, especially “in circumstances where long-term impacts may be uncertain and future monitoring will be needed to make adjustments in subsequent implementation decisions”).

91. Id. §3101.1-3 (“Any party submitting a bid . . . shall be deemed to have agreed to stipulations applicable to the specific parcel.”); BLM & U.S. Forest Service, Surface Operating Standards and Guidelines for Oil and Gas Exploration and Development: The Gold Book §2.3 (4th ed. 2007) (“Constraints may result from lease stipulations, the surface management agency’s review and environmental analysis of the proposed operations, Notices to Lessees, Onshore Orders, or regulations.”).

92. Pendery, supra note 88, at 642; Burger, supra note 28, at 319-21.

93. See supra notes 66-72 and accompanying text.

94. BLM, U.S. Department of the Interior, Form 3100-11, Offer to Lease and Lease for Oil and Gas §6 (Oct. 2008) [hereinafter Standard Lease Form 3100-11]; see also 43 C.F.R. §3101.1-2 (2019) (clarifying that a lessee’s surface rights are subject to stipulations and “such reasonable measures as may be required by the authorized officer to minimize adverse impacts to other resource values, land uses or users not addressed in the lease stipulations at the time operations are proposed”).

95. Standard Lease Form 3100-11, supra note 93, §6.

96. Yates Petroleum Inc., 176 I.B.L.A. 144, 154 (2008) (upholding mitigation measures imposed as COAs that were more stringent than standards in the RMP).

97. Id.; see also Grynberg Petroleum, 152 I.B.L.A. 300, 307 (2000) (holding that a lessee challenging a remedial requirement imposed as a COA at the plugging and abandonment stage “must show by a preponderance of the evidence that such a requirement is excessive”).

98. Yates Petroleum Inc., 176 I.B.L.A. at 157 (citing authorities).

99. See, e.g., Duna Vista Resorts, 187 I.B.L.A. 43 (2016) (arguing that it was appropriate to issue a finding of no significant impact (FONSI) at the leasing stage because BLM had authority to mitigate all potential environmental effects by imposing COAs at the APD stage, including dictating which formation the lessee could drill into); see also BLM, EA for Sold Wyoming Leases, supra note 68, at 26, 35.

100. See, e.g., San Juan Citizens All. v. Bureau of Land Mgmt., 326 F. Supp. 3d 1227, 48 ELR 20096 (D.N.M. 2018); see also Park County Res. Council Inc. v. U.S. Dep’t of Agric., 817 F.2d 609, 621-22, 17 ELR 20851 (10th Cir. 1987) (holding that BLM was not required to address potential mitigation measures of lease stipulations at the leasing stage because “[i]n order to work the lease, the lessee must submit site-specific proposals to the Forest Service and BLM who can then modify those plans to address any number of environmental considerations” and “each action is subject to continuing review”), overruled on other grounds by Village of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 972, 22 ELR 21033 (10th Cir. 1992) (en banc).

101. Citizens for a Healthy Cmty. v. Bureau of Land Mgmt., 377 F. Supp. 3d 1223, 1237, 49 ELR 20044 (D. Colo. 2019) (holding that because downstream emissions were not considered at the leasing stage, the “earliest possible time” mandated by NEPA required that they be considered at the master development plan stage: “[s]ince it did not happen before, this stage of the development process would be the earliest possible time”).

102. United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 419 (1931) (upholding moratorium on oil and gas leasing); John D. Leshy, Interior’s Authority to Curb Fossil Fuel Leasing, 49 ELR 10631, 10631-32 (July 2019); Burger & Wentz, supra note 62, at 118-19 (discussing statutory and precedential authority to impose moratoriums on coal and oil and gas leases).

103. 30 U.S.C. §226(b)(1).

104. Id. §§181 et seq.

105. Id. §226(b)(1)(A).

106. Leshy, supra note 101, at 2-3.

107. Other provisions further emphasize this duty. See, e.g., 43 U.S.C. §1732(b) (“In managing the public lands, the BLM shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.”). Courts have recognized that BLM has authority to incorporate mitigation measures into project authorizations to prevent unnecessary or undue degradation. See, e.g., Theodore Roosevelt Conservation P’ship v. Salazar, 661 F.3d 66, 76, 78, 41 ELR 20345 (D.C. Cir. 2011) (citing with approval Biodiversity Conservation Alliance, 174 I.B.L.A. 1, 5-6 (2008), which held that an environmental impact may rise to the level of unnecessary or undue degradation if it results in “something more than the usual effects anticipated from . . . development, subject to appropriate mitigation” (emphasis added)). Since climate change will harm all of the resources that BLM manages, incorporating mitigation measures to avoid this degradation is required by this affirmative obligation.

108. See 30 U.S.C. §209 (“In the event the Secretary of the Interior, in the interest of conservation, shall direct or shall assent to the suspension of operations and production under any lease granted under the terms of this Act . . . .”); 43 C.F.R. §3103.4-4(a) (2019) (“A suspension of all operations and production may be directed or consented to by the Authorized Officer only in the interest of conservation of natural resources.”); see also Burger & Wentz, supra note 62, nn. 26-27 (listing provisions in the MLA that vest BLM with discretion to manage the pace and structure of oil and gas leasing); see also Leshy, supra note 101, at 10631-32 (challenging Secretary Bernhardt’s suggestion that BLM lacks authority to impose a moratorium by reviewing the discretionary language in 30 U.S.C. §226(a) combined with precedent upholding a moratorium and subsequent legislative history of the MLA).

109. Copper Valley Mach. Works, Inc. v. Andrus, 653 F.2d 595, 602 (D.C. Cir. 1981); Hoyl v. Babbitt, 129 F.3d 1377, 1380, 28 ELR 20286 (10th Cir. 1997).

110. See Instruction Memorandum No. 2016-143, Implementation of Greater Sage-Grouse Resource Management Plan Revisions or Amendments—Oil & Gas Leasing and Development Sequential Prioritization 7 n.10 (Sept. 1, 2016).

111. See Secretarial Order No. 3338, Discretionary Programmatic Environmental Impact Statement to Modernize the Federal Coal Program (Jan. 15, 2016) (justifying a pause on the issuance of new federal coal leases to avoid “locking in for decades the future development of large quantities of coal under current rates and terms that the PEIS may ultimately determine to be less than optimal”).

112. 43 U.S.C. §1702(c).

113. BLM, U.S. Department of the Interior, Oil and Gas Statistics, supra note 46. Comparing information from Tables 1, 2, 5, and 6 reveals that in 2018, there were 38,147 leased parcels (representing 25,552,475 acres) but only 24,028 producing leases (representing 12,794,553 acres). The difference is 14,119 leases (representing 12,757,922 acres) that have not been put into production.

114. 40 C.F.R. §1501.5(a) (2020) (“An agency shall prepare an environmental assessment . . . when the significance of the effects is unknown unless the agency finds that a categorical exclusion (§1501.4) is applicable or has decided to prepare an environmental impact statement.”). Recent amendments to NEPA’s implementing regulations eliminate the term “cumulative effect.” We strongly caution against reading the new regulations as eliminating the need for a cumulative effects analysis because federal courts consistently hold that the Act requires an assessment of cumulative effects, and these cases predate regulations codifying and then defining away cumulative effects. See generally Natural Res. Def. Council v. Callaway, 524 F.2d 79, 5 ELR 20640 (2d Cir. 1975) (requiring a cumulative effects analysis for dredging the Thames River); see also Jones v. Lynn, 477 F.2d 885, 891, 3 ELR 20358 (1st Cir. 1973) (requiring a cumulative effects analysis), and Swain v. Brinegar, 517 F.2d 766, 775, 5 ELR 20354 (7th Cir. 1975) (same). The Council on Environmental Quality’s (CEQ’s) new regulations can refine regulations, but they cannot eliminate a requirement that emanates from the Act itself, which courts from multiple circuits were interpreting in the aforementioned cases. The new regulations also do not prevent consideration of cumulative effects, and any NEPA process that ignores cumulative effects will likely face swift legal challenge.

115. Standard Lease Form 3100-11, supra note 93, §6; see also 43 C.F.R. §3101.1-2 (2019) (clarifying that a lessee’s surface rights are subject to stipulations and “such reasonable measures as may be required by the authorized officer to minimize adverse impacts to other resource values, land uses or users not addressed in the lease stipulations at the time operations are proposed”).

116. See Spiller v. White, 352 F.3d 235, 241 (5th Cir. 2003) (listing circuits that endorse the practice of mitigated FONSIs and explaining:

This situation occurs when an agency or involved third party agrees to employ certain mitigation measures that will lower the otherwise significant impacts of an activity on the environment to a level of insignificance. In this way, a FONSI could be issued for an activity that otherwise would require the preparation of a full-blown EIS.

Notably, CEQ’s 2020 NEPA regulations continue to recognize mitigated FONSIs. 40 C.F.R. §1501.6(c).

ENVIRONMENTAL LAW REPORTER Eliminating greenhouse gas emissions from new development on federal mineral leases using existing legal authorities.

Joe Biden Has Lofty Goals but Must Navigate Political Minefield

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Author

Bob Sussman - Sussman & Associates

Sussman & Associates

Current Issue

July-August 2021

Issue

Joe Biden has aimed high on climate change. And with good reason. His proposals present the nation with a stark choice — either take radical steps to decarbonize the U.S. economy or accept irreversible warming trends that have dire consequences. It’s hard to overstate the importance of this choice. After decades of half-measures, we are nearly out of time to avoid unsustainable global temperature increases.

Given the imperative of acting against this threat, Biden’s recently announced goals for US greenhouse gas reductions — a 50-52 percent cut from 2005 levels by 2030 leading to net-zero emissions by 2050 — should be unassailable. However, reductions of this magnitude are far beyond any we have achieved before and will require an unprecedented national commitment to decarbonization.

Under President Obama, the replacement of coal with natural gas for power generation achieved a painless and largely voluntary decline in emissions. In 2015, Obama raised the stakes, committing the United States to a 24-26 percent emission reduction by 2025. But this goal was abandoned in the Trump years and emissions were only 12 percent below 2005 levels in 2019.

Making up this shortfall by 2025 and then reducing emissions by another 25 percent by 2030 are possible only with a rapid, across-the-board transition away from fossil fuels. While a hydrocarbon-free future has always been a vision of climate advocates, oil and gas still remain embedded in all sectors of our economy. A world without fossil fuels is deeply threatening to many Americans who sense upheaval and dislocation rather than opportunity. Can Biden persuade a divided public and polarized Congress to take this leap forward?

There is reason for cautious optimism. Climate science is no longer under attack and there is tacit acceptance that planetary warming is real and linked to human-induced CO2 emissions. The business community has moved from near monolithic opposition to emission reductions to measured and in some cases full-throated support. Pressure by activist investors, sensitivity to public criticism, and corporate sustainability programs have all contributed to this shift.

But the biggest factor is that, with rapid improvements in technology, mainstream companies in the electric power and transportation sector are embracing low-carbon business models and committing to ambitious goals backed by robust capital investment.

This dynamic creates an opportunity to align business with Biden’s climate agenda. To court the business community, he is pursuing a carrots-and-sticks strategy. His Jobs Act offers incentives and subsidies to build out the infrastructure — such as transmission lines and charging stations — necessary to accelerate the market penetration of zero-emission electric power and vehicles.

In return, he is proposing to set binding near-zero emission targets for 2035 that would be implemented legislatively (a clean energy standard for electric power) or under existing law (tailpipe emission standards for new vehicles under the Clean Air Act). The Biden team is banking that businesses already committed to clean energy will support these targets in order to obtain the largess of the Jobs Act and the regulatory certainty they need for long-term planning and investment.

However, Republicans are not on board and have little interest in joining forces with their traditional business allies. Their focus is on next year’s mid-term elections and they hope to rally their base by portraying Biden’s agenda as expensive, leftist, and deeply threatening to the status quo. Without explicitly denying the reality of climate change, the Republican strategy is to stoke the fears of the electorate by conjuring up dark images of job loss, energy shortages and outages, wasteful government spending, higher taxes, and less freedom of choice.

The president has a powerful answer: the clean energy transition will create new jobs and business opportunities and maintain U.S. competitiveness as China and other rivals race to achieve global dominance in electric vehicles and renewable power. But Republicans are discounting this message and betting that their supporters will see the clean energy future and its promise of economic growth as a mirage. Better to do nothing, they imply, than risk declining incomes, a lower quality of life, and heavy-handed government intervention.

As the Biden team undoubtedly knows by now, a bipartisan mandate for his climate proposals is not in the cards. However, if Democrats hang together, the Senate reconciliation process provides a narrow but viable path forward in the face of Republican opposition. This path carries political risks and Democrats could pay a price at the polls in 2022. However, the stakes for the planet are too high to retreat.

Bob Sussman is principal of Sussman and Associates, an environmental consulting firm. He can be reached at bobsussman1@comcast.net.

Joe Biden Has Lofty Goals but Must Navigate Political Minefield.

Helping Industry Adopt Carbon Capture and Storage Technologies

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Author

Ethan Shenkman

Current Issue

July-August 2021

Issue

Without carbon capture and storage, known commonly as CCS, “our energy and climate goals will become virtually impossible to reach,” proclaims Fatih Birol, executive director of the International Energy Agency. Indeed, in IEA’s recent report outlining the major transformations needed for the global energy sector to reach net-zero emissions by 2050, CCS plays a starring role.

IEA’s scenario calls for an exponential increase in the total mass of carbon dioxide captured from around 40 megatons per year today to an astounding 7.6 gigatons in 2050 — an increase of nearly 20,000 percent. (For context, U.S. CO₂ emissions from fuel combustion totaled 4.92 gigatons in 2018.)

So what is CCS, and why is it so important? CCS typically involves capturing CO₂ formed during hydrocarbon-based power generation and industrial processes and permanently storing it so that it is not emitted into the atmosphere. Once the CO₂ is captured, it is compressed and transported to appropriate storage sites, usually by pipelines or ships, where it is injected into deep underground geological formations, such as former oil-and-gas reservoirs, deep saline formations, and coal beds. CCS is the only group of technologies that contribute both to reducing carbon emissions in key sectors directly, and, through more advanced direct air capture engineering, to removing CO₂ from the atmosphere to balance emissions that cannot be avoided.

The IEA is not alone in trumpeting the role of carbon capture. The Intergovernmental Panel on Climate Change’s “Special Report on Global Warming” presents four scenarios for limiting global temperature rise to 1.5 degrees Celsius — all require heavy reliance on CO₂ removal technology and three involve major use of CCS.

That’s fine in theory, but the world has a long way to go in practice. According to the Global CCS Institute, there are only 26 CCS facilities currently in operation worldwide, and they can capture and permanently store only 40 megatons of CO2 every year. Recently, there has been an uptick, with 17 new commercial facilities entering the project pipeline in 2020, 12 of them in the United States. Domestic progress is helped by the enhanced 45Q tax credit for CCS projects signed into law in 2018, with the Internal Revenue Service issuing more detailed guidance in 2020. U.S. investment is likely also benefitting from the California low-carbon fuel standard, which provides substantial credit-generation opportunities for fuel producers that utilize CCS and meet certain criteria.

Barriers to wider deployment of CCS include the high costs of capture and challenges associated with transporting CO₂, including the energy required to compress and maintain CO₂ and the need for an expanded pipeline network. Availability of geologic storage is not thought to be an impediment, however, either in the United States or worldwide.

Also problematic domestically is the lack of a uniform federal framework for CCS. Other than permitting for underground injection wells, which is regulated under the Safe Drinking Water Act, the legal and regulatory landscape is a state-by-state patchwork of regulations and case law dealing with issues ranging from ownership of pore space to long-term liability regimes. A number of states, including Illinois, Louisiana, North Dakota, Texas, and Wyoming, have enacted special legislation to improve the regulatory environment for CCS, and environmental practitioners are helping their clients navigate this space.

The Biden administration recognizes that more needs to be done. To stimulate CCS, Biden’s infrastructure plan calls for $35 billion in new R&D funding for both renewable energy and CCS; further expansion of the 45Q tax credit; $15 billion for demonstration projects for technologies including CCS; and funding for 10 carbon capture retrofits for large GHG emitters like steel mills, cement plants, and chemical production facilities, emphasizing jobs for disadvantaged communities. Among the applications that will be explored is the potential for CCS to facilitate low-carbon hydrogen production.

CCS recently came under scrutiny, as the White House Environmental Justice Advisory Council called for omitting CCS, as well as direct air capture, from Biden’s pledge to deliver 40 percent of clean energy benefits to environmental justice communities. Critics worry about extending the lifetime of facilities that release conventional pollutants into overburdened communities. But Biden’s chief climate adviser, Gina McCarthy, and Secretary of Energy Jennifer Granholm have signaled that the administration will continue to back CCS projects, while looking for ways to address environmental justice.

Under an all-of-the-above approach to addressing the climate crisis, environmental lawyers will be critical in addressing these policy and regulatory challenges.

Ethan Shenkman is a partner in the environmental practice at Arnold & Porter. Email at ethan.shenkman@arnoldporter.com.

Helping Industry Adopt Carbon Capture and Storage Technologies.

Promoting Energy Efficiency as a Part of Decarbonization Strategy

Read more about Promoting Energy Efficiency as a Part of Decarbonization Strategy

Author

Joseph E. Aldy - Harvard Kennedy School

Harvard Kennedy School

Current Issue

July-August 2021

Issue

Reducing U.S. carbon dioxide emissions to zero, on net, by 2050 will require dramatic changes in the way energy is produced and consumed. Reducing use — by improving the efficiency of energy services, such as more fuel-efficient cars, electricity-sipping appliances, and more — will play a critical role in any decarbonization strategy.

The International Energy Agency recently estimated that the rate of energy efficiency improvements will need to triple the average rate of the past two decades as part of a mid-century net-zero strategy. The most recent Intergovernmental Panel on Climate Change assessment report indicated that energy efficiency — measured by the amount of energy per unit of economic output — would need to improve by 90 percent over this century to prevent warming beyond 2 degrees Celsius.

The challenge in improving energy efficiency lies in designing effective public policy. Energy efficiency has frequently been described as the cheapest energy resource, costing less to reduce demand than producing more energy to meet demand. Engineering studies suggest large potential opportunities in reducing the energy necessary to deliver a desired service, such as to light a room. Some analysts have claimed that efficiency investments have negative costs: the lower energy bills associated with the investment more than pay for the higher up-front cost. In practice, however, our policies have often fallen short of this potential.

Consumers vary considerably in their attitudes and preferences related to energy and the environment. One individual may be willing to buy a more energy-efficient car or an EnergyStar-rated refrigerator at current prices, while another individual would only do so in response to a significant subsidy. One challenge lies in effectively targeting subsidies — such as rebates and tax credits — to those individuals who would not otherwise adopt the more-efficient option. The typical eligibility for such subsidies, however, usually requires only the purchase of a qualifying technology and fails to distinguish among these types of consumers. In practice, many individuals claiming subsidies would have bought the efficient option even in the absence of the payments.

In the context of weatherizing the homes of low-income households, recent research has shown dramatic variation in the quality of the energy efficiency work, with savings varying by 40 percent across projects. Some weatherization contractors are simply much better at their jobs than others. As a result, the Department of Energy has attempted to address these problems through guidance promoting quality projects.

Regulatory standards could promote new, even more efficient technologies, but these approaches take time to have meaningful impacts on consumption. The relatively long lifetimes of energy-consuming durables — a decade or more for appliances, nearly two decades for cars — means that any new standard will be implemented slowly with the turnover of the existing capital stock.

Moreover, to the extent that such standards may increase new product prices, they may slow the turnover of the existing stock and sustain use of less-efficient technologies. For example, higher new vehicle prices under fuel economy standards have extended the operating lifetimes of older, less-efficient vehicles in the used car market, offsetting approximately 15 percent of the energy savings gains associated with these standards.

In light of these lessons, let me briefly describe three ways to design policies to promote energy efficiency. First, we should take advantage of the wealth of microdata to better target subsidies for efficiency. Just as the private sector has learned how to target advertising and sales, energy efficiency programs can be designed to leverage big data and associated analytics to enhance the targeting of efficiency subsidies to drive consumer decisions toward more efficient options.

Second, we should design and implement energy efficiency policies with the intent of learning, revising, and updating programs over time. Integrating program evaluation in the design phase of an energy efficiency policy can ensure rigorous estimates of the impacts of the policy and provide evidence of what works and what can be improved.

Third, we should recognize that policies that raise energy prices can increase energy efficiency. Several recent studies of carbon taxes and fuel taxes suggest that they induce greater reductions in gasoline consumption than would a comparable increase in fuel prices that resulted from conventional market forces. This may reflect the greater salience of taxes or the recognition that a tax-related increase in prices is likely to be more permanent than fuel price swings resulting from transient shifts in supply and demand.

Joseph E. Aldy is an economist on the faculty at the Harvard Kennedy School. You can contact him at Joseph_Aldy@hks.harvard.edu.

Promoting Energy Efficiency as a Part of Decarbonization Strategy.

No Big News Yet From a Changed Court’s Environmental Docket

Read more about No Big News Yet From a Changed Court’s Environmental Docket

Author

Bethany A. Davis Noll - NYU Law’s State Energy & Environmental Impact Center

NYU Law’s State Energy & Environmental Impact Center

Current Issue

July-August 2021

Issue

With the addition of Justice Amy Coney Barrett to the Supreme Court this term, environmental advocates are alert for inklings of how the Court’s new makeup will affect their work. What is notable is just how little has changed so far. Decisions this term show continued respect for states’ rights and a refusal to inject the Court into policy disputes.

Several cases settled disputes between states, in a way that emphasized the Court’s special solicitude toward state sovereignty and illustrated the heightened impact of climate change. In Florida v. Georgia, the two states argued over whether Georgia as the upstream state overused water from the Apalachicola River, causing the collapse of Florida’s downstream oyster fishery. The Court emphasized Florida’s high burden, given the “competing sovereign issues” in the case, and ultimately held that Florida had not carried its burden, given other significant causes for the collapse, including climatic factors such as seasonal rainfall changes.

In another case, New Mexico and Texas disputed implementation of their Pecos River Compact, after a tropical storm caused heavy rains. Texas had asked New Mexico to store water upstream to avoid flooding in Texas, but a significant amount of the water evaporated while stored. New Mexico then wanted credit for the evaporated water. Placing a strong emphasis on the agreement between the states, the Court gave New Mexico the credit.

With more severe storms and changing weather patterns a reality now, the Court’s natural resources docket is likely to continue to include more state-versus-state cases like these.

PennEast Pipeline Co. v. New Jersey also directly implicates states’ rights. The case is about whether a pipeline company can use delegated eminent domain authority under the Natural Gas Act to seize state land without the state’s permission. New Jersey has argued that the statute lacks a clear statement abrogating state sovereign immunity. Undecided at press time, the case is interesting because it pits gas interests against a state’s right to protect its parkland.

In another set of cases, the Court has so far declined the invitation to decide policy issues that are not squarely presented — or to rock the boat too much in general.

BP P.L.C. v. Mayor and City Council of Baltimore is one of many cases where a state or municipality alleges that oil and gas companies concealed environmental harms of fossil fuels, and defendants have removed the case from state to federal court. Ordinarily, a remand order is not appealable. But in 2011, a federal statute made remand decisions reviewable when the defendants relied on federal officer removal authority in the U.S. Code. In this case, after a remand order, the court of appeals held that reviewability applied only to the federal officer removal issue. But the Supreme Court reversed, holding that all the removal grounds could be reviewed. The companies had also asked the High Court to settle whether the case should be heard in state or federal court. The Court ducked that contentious issue though, deciding only the extent of appellate review.

Similarly, in Fish and Wildlife Service v. Sierra Club, the Court issued a Freedom of Information Act decision with the potential to affect environmental advocacy, but the ultimate holding will likely lessen its impact. FOIA requests are a significant source of pressure for environmental advocates. For example, Sierra Club FOIA requests uncovered former EPA administrator Scott Pruitt’s travel boondoggles and decision to enlist an aide to attempt to obtain a Chick-fil-A franchise for his wife, leading to ethics investigations and likely contributing to his mid-2018 resignation.

In this year’s case, the Sierra Club sought disclosure of a Department of the Interior analysis finding that a proposed EPA rule would jeopardize certain fish species. The Court held that the analysis was protected by the deliberative-process privilege because it was treated as a draft and concerned an option that “died on the vine.” Because EPA ultimately finalized a different rule, the Court analogized the analysis to an email or memorandum about a draft rule. Though advocates worried the case would allow agencies to withhold anything stamped “draft,” the decision is not likely to meaningfully extend the privilege.

Several petitions for certiorari that are pending seek review of the D.C. Circuit’s decision vacating the Trump administration’s Affordable Clean Energy Rule. Petitioners are asking the Court to settle how the Clean Air Act applies to greenhouse gases from existing power plants. But the Biden administration is still considering how to interpret the statute. Given the approach that this Court has taken so far to policy disputes, the bedrock rule that courts wait for an agency to take a position before ruling is unlikely to be thrown out anytime soon.

No Big News Yet From a Changed Court’s Environmental Docket.

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