Category Archives: Climate Response

Following an announcement at COP27 by President Biden, the EPA issued a supplemental proposal to reduce methane and other harmful emissions from new and existing sources in the oil and gas industry. In its regulatory impact analysis for the supplemental proposal, EPA included a sensitivity analysis detailing a revised methodology and new estimates for social cost of greenhouse gases (SC-GHGs), including carbon, methane,… More

Earlier this Month, The Boston Foundation released its “Inaugural Boston Climate Progress Report.”  Suffice it to say, there’s a lot to do.  The Report identifies four “Big Lifts” necessary to attaining our climate goals.  It defines a Big Lift as:

a multidecade mega-project that seeks to improve the city to align with its climate and equity goals.

The four Big Lifts are:

• Retrofitting the small building stock
• Local energy planning for an electrified city
• Building a resilient coastline through improved governance
• Prioritizing reparative planning for Boston’s frontline neighborhoods

All of these are important and each is worth its own post. … More

Earlier this week, the Senate ratified the Kigali Amendment to the Montreal Protocol.  The amendment, which has already been ratified by most other countries, will result in the phase-out of hydrofluorocarbons, a group of potent greenhouse gases.  Substantively, this is a big deal.  Estimates are that it will prevent about ½ a degree Celsius in global warming.  That’s a meaningful impact. 

Politically,… More

Lost amid the more high profile items in Massachusetts’ recently enacted Act Driving Clean Energy and Offshore Wind is a requirement that the Department of Energy Resources establish a program requiring large buildings across the Commonwealth to report energy usage on an annual basis.   The requirement goes into effect on July 1, 2024, but DOER has an additional year (until July 1, 2025) to draft implementing regulations and establish the parameters of the reporting program.  … More

As we’ve discussed before, multiple cities and towns in the Commonwealth of Massachusetts have tried to ban fossil fuel hookups for new buildings by zoning or other ordinance over the past few years.  But in July 2020, the Massachusetts Attorney General’s Municipal Law Unit struck down the first such ban that came across its desk as inconsistent with other state law.  As we noted then, in order for municipalities to restrict or ban fossil fuel connections,… More

Those wondering what states can do to at least partially ameliorate the impacts of West Virginia v. EPA need look no farther than Massachusetts, which issued its Clean Energy and Climate Plan for 2025 and 2030 the same day that the Supreme Court extended its crusade against the modern world by limiting EPA’s authority to regulate in the absence of a clear delegation by Congress.

First,… More

I’m not much for apocalyptic thinking.  I don’t think it’s productive.  I have to confess, though, that this story about the Great Salt Lake got me thinking about whether human nature is such that the apocalypse is not that far away.  It makes compelling reading.  And viewing – do check out the video of what used to be Owens Lake, which could be described as a cautionary tale for Salt Lake City,… More

Take my predictions with a grain of salt, because I still remember saying that Ronald Reagan would never fool enough voters to get elected, but it seems very likely at this point that Maura Healey will be the next Governor of Massachusetts.  That makes her release of a climate plan a matter of some significance. 

My take is that it is extremely ambitious,… More

Earlier this month, the Intergovernmental Panel on Climate Change released Climate Change 2022: Mitigation of Climate Change.  As all IPCC reports are, it’s a serious piece of work and not easily summarized at blog length.  Nonetheless, here are some of what seemed to me to be important takeaways:

• Firstly, and most importantly, we’re not doing a very good job at mitigating greenhouse gas emissions. …

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The Fifth Circuit has stayed an order blocking Biden administration use of the “Interim Estimates” of the social cost of greenhouse gases.  The Court did not leave much doubt that the administration will prevail on the merits. 

Issuance of a stay is based on criteria very similar to those regarding entry of an injunction.  The two most important are the likelihood of success on the merits and whether the person requesting the stay will suffer irreparable harm if a stay is not granted. … More

EPA has now formally restored its waiver under § 209(b) of the Clean Air Act that allows California’s greenhouse gas emissions standards and Zero Emission Vehicle mandate, notwithstanding the preemption of state vehicle emission standards contained in § 209(a) of the CAA.  EPA also restored the authority of other states under § 177 of the CAA to adopt the California standards.

In what we lawyers might describe as pleading in the alternative,… More

Last week, AIG significantly restricted its underwriting of and investment in fossil fuel projects.  Specifically, it announced the following actions:

• With immediate effect, committed to no longer invest in or provide insurance for construction of any new coal-fired power plants, thermal coal mines or oil sands;
• With immediate effect, committed to no longer invest in or underwrite new operation insurance risks of coal-fired power plants,…

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The Boston Globe reported yesterday that the Massachusetts Pension Reserves Investment Management Board approved investment guidelines that would have the Board vote against directors of companies in which the Board invests where the company does not have a plan to reach net zero carbon emissions by 2050. 

As the Globe notes, there is something of a debate among climate activists whether it is better to support divestment or the kind of activism represented by the Board’s action yesterday. … More

The White House has taken a strong stance in expanding the production and use of Sustainable Aviation Fuel (SAF) to reduce carbon emissions in the aviation industry. SAFs are liquid hydrocarbon fuels that are blended into the existing fuel supply using materials like waste, fats, cooking oils and corn. The Administration has identified the aviation industry as a climate priority in its push to reduce the country’s carbon footprint.

White House SAF Initiative

The President issued an announcement on September 9,… More

Believing in the importance of aggressive action to address climate change is something of a recipe for bipolar disorder.  Trump – depression.  Biden first 90 days – elation.  News today from ClimateWire (subscription required) that power plant GHG emissions increased by more than 3% in both 2020 and 2021 – depression.

ISO New England attributes most of the increase to the shutdown of the Pilgrim Nuclear Power Station and replacement of Pilgrim’s generation by natural gas generating facilities. … More

Each year since 1995, with the exception of 2020, the United Nations Framework Convention on Climate Change (UNFCCC) has hosted a Conference of Parties (COP), where members of the UNFCCC negotiate issues relating to reducing greenhouse gas emissions and other matters relating to climate change.  The 26th COP concluded in Glasgow on November 13 with a Climate Pact that continues the evolution of global climate policy over the past 30 years.… More

On Monday, Boston released a draft of the first phase of regulations intended to implement the amended BERDO ordinance signed by then-Mayor Janey in October. 

The first phase of the regulations is focused only on reporting issues.  It will address

• Reporting Requirements
• Third-Party Data Verification Requirements
• Preservation of Records

The rationale for this narrow focus is that the City wants these regulations in place promptly,… More

Yesterday, the Baker administration announced that the Transportation Climate Initiative is dead in Massachusetts, at least for now.  This is not a surprise, particularly after Governor Lamont’s statement that there is no political support for TCI in Connecticut.  It is difficult to implement a region-wide program to reduce carbon emissions from transportation fuels when only one state in the region is prepared to do so. 

The administration tried to put the best face on the failure of TCI,… More

Earlier this week, Greenwire (subscription required) had an interesting story about the role that EPA’s estimate of the cost to comply with the Mercury and Air Toxics Standards rule played in the politics and judicial review of the rule.  It turned out that compliance costs were much less than originally estimated by EPA – let alone by industry.  Unfortunately, the $9.6 billion price tag originally put on the MATS rule lived on,… More

With the third quarter coming to a close and year-end reporting just around the corner, public companies should be giving careful thought to the evolving landscape for climate-related disclosures. While it did not promulgate any new rules in 2021 regarding these disclosures, the SEC has been actively commenting on climate change disclosures, and new rules are almost certainly on the way.

Since 2010, the SEC has made clear that its existing disclosure regime requires issuers to assess and,… More

Last week, the Boston City Council approved amendments to the Building Energy Reporting and Disclosure Ordinance.  The changes are being referred to as “BERDO 2.0”, which almost understates the scope of the revisions.  As indicated by its name, since its original enactment, BERDO only dealt with reporting and disclosure.  Now, however, Boston will be imposing limits on GHG emissions from large buildings.

The limits will first be effective in 2025,… More

The IPCC has released its Sixth Assessment Report on the physical science basis of climate change.  I would say that it makes sobering reading, except any sane person’s immediate response to AR6 would be to go out and have any number of stiff drinks.  Here are a number of the lowlights:

It is unequivocal that human influence has warmed the atmosphere, ocean and land.… More

Last week, Judge Yvonne Gonzalez Rogers ruled that the Berkeley ordinance essentially banning use of natural gas in new construction was not preempted by the Energy Policy and Conservation Act.  I’m not here to opine on the legal merits of the decision.  I will note note that the Judge’s reliance on textual analysis and the asserted federalist bent of SCOTUS’s conservative wing might give this opinion more life than one would otherwise expect – though I’ll also note that the conservative wing’s federalist proclivities often seem to turn on whether they agree with the underlying policy at issue. … More

Late last month, the Washington Legislature passed the “Climate Commitment Act”, a piece of sweeping climate legislation that includes, among other provisions, an economy-wide cap-and-trade system.  Washington was not far behind Massachusetts, which enacted its “next generation roadmap” bill in late March.  This friendly competition among states to move towards net zero economies as aggressively as possible is certainly a good thing.… More

The President today formally announced that the United States was pledging to reduce its emissions by 50% from 2005 levels by 2030.  The announcement isn’t a surprise, but that doesn’t lessen its importance.  So large a reduction will be a heavy lift, particularly in a federal system where many states are still not exactly with the program.

So how will this Administration get us on a path to 50%?… More

At a press briefing in India yesterday, John Kerry, President Biden’s Special Presidential Envoy for Climate was asked by an Indian journalist about carbon pricing.  Here’s part of his response:

President Biden believes that at some point in time we need to find out a way to have a price on carbon that’s effective.  He hasn’t decided or made an announcement about it,… More

The White House this morning released a fact sheet on “The American Jobs Plan,” also known as President Biden’s infrastructure plan.  There’s a lot in here (as there should be for a couple of trillion dollars!), so today I’ll focus on energy infrastructure.  Here are the highlights: 

• $100B to “build a more resilient electric transmission system.”  This includes “the creation of a targeted investment tax credit that incentivizes the buildout of at least 200 gigawatts of high-voltage capacity power lines.”
• Creation of a “Grid Deployment Authority” within DOE to facilitate transmission line siting.…

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It’s not always the case, but my speculation about the Massachusetts climate bill was correct.  On Friday, Governor Baker signed it into law.  If I haven’t succeeded in making this clear previously, I want to emphasize that this is a really far-reaching piece of legislation.  It commits Massachusetts to a very aggressive timetable for reducing GHG emissions.  It species a number of specific policies,… More

In January, when Governor Baker vetoed the Legislature’s effort to go big on climate, my colleague Zach Gerson made clear that the bill was not even “mostly dead.”  I am pleased to say that Zach’s diagnosis was correct.  The climate bill is very much alive.

Last week, the Legislature passed a new version of the bill, which adopted most of the Governor’s technical suggestions and almost none of his substantive changes. … More

On March 1, the Transportation Climate Initiative jurisdictions released a draft “model rule” that would provide a template for individual state rules governing the operation of the TCI Program.  Although only three states and the District of Columbia committed in December 2020 to implement TCI-P, the announcement on Monday indicated that the model rule “was developed by twelve” TCI jurisdictions.”  I guess that eight states like the model rule – just not enough at this point to commit to implementing it.… More

Yesterday, President Biden signed an Executive Order on Tackling the Climate Crisis at Home and Abroad.  It’s even more comprehensive than last week’s order.  Indeed, my main reaction to the order isn’t to any of the specific provisions.  It’s one simple realization – he really means it.  And I think that’s the point.  There is no question at this point that President Joseph Robinette Biden,… More

Among the important provisions of President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis is the requirement to review and revise estimates of the social cost of carbon (and nitrous oxide and methane).  The order establishes a working group, co-chaired by the Chair of the Council of Economic Advisers, the Director of OMB, and the Director of the Office of Science and Technology Policy. … More

Yesterday, President Biden hit the ground running on environmental policy, issuing an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.  There’s a lot in it, so I think I’m going to have to take it in blog-sized bites.  Let’s start with Section 6, in which he revoked the Presidential permit for the Keystone XL pipeline.

Why start here?… More

Sometimes, “mostly dead” is just a pause before successfully storming the castle.  On January 14, Governor Baker vetoed the climate bill that passed the Massachusetts Legislature on January 4 with overwhelming support (see our posts here, here, and here).  I couldn’t resist the Princess Bride reference, but despite the veto, it is probably a stretch to refer to the bill as even “mostly dead.”

In his Veto Letter,… More

Over the past four years, while the Trump Administration did everything possible to ignore climate change, optimists continued to find progress at the state level.  And while President-elect Biden has put together an A-team on climate, Massachusetts, at least, seems determined to show that the states will continue to lead – even if they now have a partner at the federal level.

Two weeks ago,… More

Yesterday, Massachusetts released its “2050 Decarbonization Roadmap.”  I’m tempted to call it a tour de force.  At the very least, it’s jam-packed with important issues.  One of the most valuable aspects of the Roadmap is its discussion of the potential tradeoffs among the different paths towards a decarbonized economy.  Acknowledging that the Roadmap contains much more good stuff than can be summarized in a single post,… More

Today, three of the states participating in the Transportation Climate Initiative – Massachusetts, Connecticut, and Rhode Island – and the District of Columbia released a Memorandum of Understanding describing a “cap and invest” program intended to reduce carbon emissions from fossil fuels and raise money “to accelerate the transition to an equitable, safe, and affordable low-carbon transportation sector.” Here are the big takeaways:

• The four participating states are eight short of full participation among the TCI states. …

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The Lancet’s Countdown on Health and Climate Change for 2020 offers a pretty sobering assessment of the impacts of climate change.  As I noted the last time I posted about one of these reports, it’s important to remember that, while flooding and sea level rise get much of the attention, heat waves cause much of the harm to public health.

I found this statistic particularly sobering.… More

In 2015, I noted that the then-Governor of Alaska had decided that it was necessary to increase drilling for oil in Alaska to raise the money necessary to cope with the impact of climate change.  I suggested that Governor Walker’s solution to the problem of funding climate adaption might be considered ironic. 

Welcome to the Department of Irony Department, also known as Alaska Climate Adaptation Rev 2.0.… More

Just over a year ago, the city of Berkeley, California, became the first City in the United States to ban natural gas hookups in new buildings.  The trend of municipalities enacting fossil fuel bans, driven by a desire to reduce greenhouse gas emissions and combat climate change, has spread across California and a few other states and has now reached the east coast.  Yesterday, the Massachusetts Attorney General’s Municipal Law Unit struck down the first such municipal fossil fuel ban to come across its desk as inconsistent with the general laws of the Commonwealth.… More

Last week, Judge Yvonne Gonzalez Rogers vacated BLM’s rescission of the 2016 methane “Waste Prevention Rule.”  Although Judge Rogers found many flaws in the rescission rule, I think that two are key. 

The first is the Court’s rejection, under Chevron, of BLM’s limitation of the definition of “waste” to economic waste.  I think that the Court’s holding is correct,… More

Last week, Judge William Shubb of the U.S. District Court for the Eastern District of California ruled that the Agreement between California and Quebec to jointly operate a GHG cap-and-trade market did not violate either the Foreign Affairs Doctrine.  Judge Shubb had previously ruled that the Agreement did not violate either the Treaty Clause or the Compact Clause.

As before, I think Judge Shubb got it right,… More

There are few people left, at least in my orbit, who don’t share the goal of prompt decarbonization of the economy.  The quaintly named $64,000 question ($64 trillion question?) is how we get from here to there.

Today, the New England Power Generators Association released a report prepared by Analysis Group that explains how an economy-wide price on carbon can help New England do just that. … More

The 9th Circuit Court of Appeals has issued two rulings that, combined with the recent 4th Circuit ruling in the Baltimore case, makes it more likely that state and local public nuisance climate cases will be heard in state courts, rather than federal courts.  The two California cases got to the 9th Circuit via different routes.

San Mateo v. Chevron is on all fours with the recent 4th Circuit decision. … More

EPA and the NHTSA have finally released Part 2 of the Safer Affordable Fuel-Efficient (SAFE) Vehicle Rule.  Most readers will know that Part 1 of the SAFE rule revoked California’s waiver authorizing it to impose more stringent mileage standards.  Part 2 substantially rolls back the federal fuel-efficiency standards promulgated by the Obama Administration.

I referred to George Orwell on this blog as recently as January,… More

In order to distract your attention from the end of the world as we know it resulting from COVID-19, I thought I would direct your attention to further evidence of the end of the world as we know it resulting from climate change.  In a very interesting article published earlier this month in Nature Communications, the authors examined the pace of “regime shifts” in critical ecosystems,… More

Last week, Judge William Shubb of the U.S. District Court for the Eastern District of California ruled that the Agreement between California and Quebec to jointly operate a GHG cap-and-trade market did not violate either the Treaty Clause or the Compact Clause.  These are not parts of the Constitution that are normally a focus of environmental law classes, so take what follows with an appropriately sized grain of salt.… More

This week, the Massachusetts Attorney General’s office released a white paper documenting the results of a symposium convened last fall to discuss how electric markets should be organized to manage the transition to a “low / no-carbon future.”  Policy wonks, such as myself, will find it fascinating reading, though it is moderately dense stuff.

Seriously, it is important to acknowledge that these issues are as complex as they are important. … More

Last week, the 4th Circuit Court of Appeals affirmed the District Court decision remanding Baltimore’s climate change litigation to state court.  I wouldn’t read too much into the decision, which is founded on the niceties of federal law governing removal of cases to federal court. 

Basically, federal law severely limits courts of appeal authority to reverse erroneous remand orders:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise,… More

Yesterday, I noted with enthusiasm the announcement that the states participating in the Transportation and Climate Initiative had released a new draft Memorandum of Understanding outlining the framework of what “RGGI for cars” might look like.  I also provided a cautionary note that the politics of TCI would be tricky and that imposing a carbon fee sufficient to attain the goal of funding an effective, low-carbon, transportation system for New England in the 21st Century might prove difficult. … More

The 12 states and the District of Columbia participating in the Transportation and Climate Initiative announced today the release of a new draft Memorandum of Understanding that outlines the framework of what they are calling a cap and invest program for cars and trucks.  In short, it will require persons selling gasoline and on-road diesel at the wholesale level to hold allowances – which will be auctioned – in order to continue to sell such on-road fuels. … More

The New York Citizens Budget Commission has released a report regarding the state’s ability to meet its ambitious GHG reduction targets.  It’s sobering reading.  The CBC states that it is “uncertain” whether New York can meet those goals.  It identifies four reasons:

Immense scaling up of renewable generation capacity is necessary and is likely infeasible by 2030.

The focus on building renewable resources,… More

Last week, BioScience published the “World Scientists’ Warning of a Climate Emergency.”  It’s actually a nice piece of work – short, readable, to the point.  In barely 4 pages, it concisely summarizes the fine mess we’ve gotten ourselves into.  It also provides suggestions for actions to take to “lessen the worst effects.”  The suggestions also pull no punches:

• quickly implement massive energy efficiency and conservation practices and replace fossil fuels with low-carbon renewables and other cleaner sources of energy….…

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Last week, Boston released its Climate Action Plan 2019 Update.  The Update identifies “priority actions” for the next five years necessary to put Boston on a trajectory towards carbon neutrality by 2050.  There’s a lot in the Update, but because it states that 71% of Boston carbon emissions come from buildings and it thus leads with its discussion of buildings, I’m going to focus there.… More

Yesterday, EPA and the National Highway Traffic Safety Administration released the “Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program,” more succinctly known as the withdrawal of the California’s § 209 waiver under the Clean Air Act.  As part of that announcement, EPA Administrator Andrew Wheeler was quoted as saying that “California has the worst air quality in the United States.”

And why is this ironic? … More

The Carbon Leadership Council, everyone’s favorite group of former grand poohbahs, is still working at building support for its “carbon dividends” plan.  Hope springs eternal.  And I don’t mean to make light of the CLC’s efforts.  We can use all the hope we can get.

The CLC has not make any huge changes to the plan, but they have tweaked it a bit and run numbers again. … More

Those seeking to address climate change through litigation have taken two different paths.  Some cases, probably best represented by Juliana v. United States, have plaintiffs who are swinging for the fences.  These are stereotypical examples of impact litigation; the plaintiffs are hoping to change the world.  Other cases involve plaintiffs who are just hoping – for now, at least – to hit a few singles. … More

I’ve always understood that heat causes more fatalities than other weather-related phenomena.  It’s only going to get worse with climate change.  If you thought that climate change was all about rising sea levels, think again.  Earlier this week, the Union of Concerned Scientists released “Killer Heat in the United States:  Climate Choices and the Future of Dangerously Hot Days.”  I’d like to say it makes chilling reading. … More

I’ve posted a number of times about the coming wave of efforts to reduce or eliminate GHG emissions from buildings.  Notwithstanding Washington’s current intransigence, the electric sector is now decarbonizing.  With that under way, attention next focused on the transportation sector.  That’s moving along with efforts in California and the northeast and mid-Atlantic states pursuing the Transportation Climate Initiative.

However, it’s very clear that addressing the electric sector and the transportation sector still isn’t going to be enough. … More

ClimateWire (subscription required) reported today that Russia plans to join the Paris Agreement.  Apparently, Russia is doing so because it sees a global move to a low-carbon economy and it doesn’t want to be left behind.

So, if Putin manipulated the 2016 elections to make Donald Trump president, did he do so to make it easier for Russia to get a leg up on the US in building the low-carbon economy of the future?… More

Here’s my take on the Affordable Clean Energy Plan.

Who cares?

On the merits, it does almost nothing.  It requires only that states impose heat rate improvement requirements on coal-fired power plants.  It’s not going to meaningfully lower emissions.  Administrator Wheeler has trumpeted that emissions will be 35% lower in 2030 than in 2005, but the ACE rules contribute almost nothing to that result.… More

Yesterday, EPA finalized its Affordable Clean Energy rule, which will replace the Obama Clean Power Plan.  More on ACE later.  For now, I just want to use the ACE roll-out to contrast what’s happening at the federal level with what’s happening in the rest of the world – specifically, in this case, in Boston.

While President Trump is throwing coal a “lifeline,” the Carbon Free Boston:  Transportation Technical Report is discussing banning internal combustion automobiles from the City of Boston by 2050. … More

Greenwire (subscription required) reported today that the White House blocked testimony by Dr. Rod Schoonover of the State Department to the House Intelligence Committee on “The National Security Implications of Climate Change.”  This by itself might be unsurprising, if nonetheless depressing.  What’s truly amazing, however, is that Greenwire contains a link to the draft testimony, together with the NSC comments.

As regular readers of this blog have probably figured out,… More

The public-private partnership Louisiana Strategies for Future Environments just released a report so stark in its conclusions that, were it not for all of the maps and figures its contains, one would have assumed that it had to be written in a blue state such as Massachusetts or California, rather than deep red Louisiana.  It’s sad that we’ve come to this point, but it does appear that Louisiana at least is taking the fact of climate change seriously. … More

Yesterday, Judge Paul Diamond dismissed climate litigation brought by the Clean Air Council and two minor plaintiffs.  Like the Juliana case in Oregon, the plaintiffs argued that the government had violated the their rights by failing to take robust action against climate change.  Here are some of the failures that Judge Diamond identified in the complaint.

First,… More

Yesterday, Ed Markey and Alexandria Ocasio-Cortez released a proposed congressional resolution providing a framework for the so-called Green New Deal.  I am pleased to note that it would not exclude use of nuclear power or large-scale hydropower.  Neither would it preclude use of market-based approaches towards regulating carbon.  Of course, it also doesn’t advocate for putting a price on carbon.

I realize that this is simply a resolution and not proposed legislation. … More

A few weeks ago, a coalition of 626 groups sent a letter to Congress, setting forth some principles concerning what should and should not be part of a Green New Deal.  Among the policies that apparently should not be part of a Green New Deal are nuclear power, large-scale hydropower and –wait for it – any use of market-based mechanisms. … More

Boston’s Green Ribbon Commission has just released Carbon Free Boston, which outlines a pathway to a carbon-free city by 2050.  It’s a thoughtful and careful report.  My immediate reaction was two-fold.  Of course we have to do all this and of course this will be nearly impossible.

The transmittal letter to Mayor Walsh acknowledges the immensity of the undertaking:

The report’s analysis makes clear the great magnitude of the change needed to achieve carbon neutrality.… More

Two reports crossed my desk this week that, together, made me wonder if we’re finally nearing the tipping point on climate change belief in the United States.  First, Yale and George Mason released Climate Change in the American Mind. The report shows that almost 75% of Americans think global warming is happening and more than 50% are very sure that it’s happening.  More than 60% of Americans think it’s mostly caused by human activity.… More

Governor Baker announced today that, as part of his FY 2020 budget, he would be proposing to increase the real estate excise tax in order to fund the Global Warming Solutions Trust Fund.  The Governor stated that, in the long run, the tax increase would provide $137 million annual to fund adaptation efforts.  

Though my friends in the real estate industry may not be happy,… More

Two seemingly unrelated adaptation stories caught my eye last week.  The first involved efforts by the California Coastal Commission to provide guidance on “Residential Adaptation” to climate change.  The primary reason why the draft guidance is getting so much attention is that the Commission raised the possibility of “managed retreat” in some situations.

I get the point of managed retreat.  It seems preferable to repeatedly bowing to political pressure and bailing out coastal property owners who ignore the risks associated with climate change. … More

Last week, the government released the Fourth National Climate Assessment. Not surprisingly, it’s largely consistent with the prior assessments. As other commenters have noticed, the primary difference from prior reports is one of emphasis; the Assessment now includes substantial information about the likely cost to the economy if we fail to address climate change.

I had been wondering whether it was worth doing a post about the assessment – and then I saw that the President,… More

I gave up some time ago on the idea that focusing on adaption was just a means of weaseling out of necessary measures to mitigate climate change.  As the extraordinary becomes commonplace, it’s evident that we’ve ignored the externalities of carbon longer than was prudent.

It’s thus great to see Boston’s Mayor Walsh release Resilient Boston Harbor.  Even for those who follow these issues for a living (and I have a personal stake,… More

It’s probably not news that the immediate prospects for a carbon tax aren’t great.  I still think that it’s going to seem impossible until, fairly suddenly, it actually happens.  Hope springs eternal.

In any case, there has been some news on the carbon tax front this month.  Here’s the quick summary.  The Climate Leadership Council, everyone’s favorite collection of Republicans who used to matter, released The Dividend Advantage,… More

On Thursday, Judge John Keenan dismissed New York City’s climate damages law suit against five oil majors.  The basis for the decision was the same as in last month’s decision dismissing similar claims in California:

• Because climate change is an interstate and international problem, such claims cannot be resolved under state law; if such claims are valid, they must be brought under federal common law.…

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As a follow-up to my June 27 post about the dismissal of public nuisance claims brought by the City of Oakland and the State of California against five oil majors concerning their contribution to climate change, I note that ClimateWire (subscription required) is reporting that the Dutch government is appealing a court order that would require it to cut carbon emissions by 25 percent by 2030.  … More

On Monday, Judge William Alsup dismissed the public nuisance case brought by the City of Oakland and the State of California against five major oil companies.  The suit sought payment of damages into a fund to be used for necessary adaptation expenditures to deal with sea level rise.  

Why did he dismiss the case?  Simple.  The courts are not the right forum in which to address the problems of climate change. … More

Just a few weeks ago, Federal Judge William Alsup ruled that claims brought by San Francisco and Oakland against certain large oil companies belonged in federal court, because they raise issues of federal common law.  Last week, in a similar law suit asserting similar claims, Judge Vince Chhabria remanded the case to state court.  Why?  Because there is no federal common law applicable to such climate-related claims.  … More

Governor Baker has sent some mixed messages to the environmental community in his first term.  After promising during the campaign to increase environmental spending to 1% of the state budget, he’s made essentially no progress whatsoever.  More recently, the administration’s selection of Northern Pass to provide renewable energy under the so-called “83D” procurement was panned by pretty much everyone who is neither a member of the administration nor a resident of the Sovereign Nation of Eversource.… More

Yesterday, the 9th Circuit rejected the Trump administration’s request for a writ of mandamus ordering the trial court to dismiss litigation brought by 21 children alleging that the government’s failure to address climate change had violated their constitutional rights.  It appears that the plaintiffs will get an opportunity to prove their claims.

It’s important to remember that this opinion is not about the merits. … More

Earlier this week, Judge William Alsup denied a motion by Oakland and San Francisco to remand their public nuisance claims against some of the world’s largest fossil fuel producers to state court.  However, I’m not sure that this is a victory for the oil companies.  This might be more of a “be careful what you wish for” scenario.

After the Supreme Court decision in AEP v.… More

Earlier this week, the 9th Circuit Court of Appeals reversed a District Court decision and reinstated the National Marine Fisheries Service’s decision to list the Arctic ringed seal as threatened under the Endangered Species Act.  The decision was not a surprise, because the 9th Circuit had already affirmed NMFS’s decision to list the bearded seal on identical grounds.

What caught my eye was this language in the opinion – actually a quote from the bearded seal decision.… More

While EPA continues to go backwards on climate, evidence continues to mount that investors are only going to get more aggressive.  There were two developments worth noting this month.

First, Bloomberg Markets reported that BlackRock, which seems increasingly willing to put its mouth where its money is, has sent letters to 120 companies, telling them to report climate risks in a manner consistent with the Financial Stability Board’s Task Force on Climate-related Financial Disclosures. … More

The Washington Post reported this week that Utqiagvik, Alaska (formerly known as Barrow), has gotten so warm, so fast, that NOAA’s computers can’t even believe it.  The data for Utqiagvik (that’s hard to type!) were so high that the computers determined it must be anomalous and pulled all of the data from Utqiagvik from the NOAA monthly climate report.  Only when scientists realized that Utqiagvik was completely missing from the report did they notice what had happened.… More

Syria has joined the Paris climate accord.  Senator Tom Carper’s reaction:

One is the loneliest number.

Thank you Senator Carper.    More

Last week, the government released the Climate Science Special Report, the first volume of the Fourth National Climate Assessment.  It makes grim reading – or perhaps more accurately, grim reaper – reading.  Here’s what we might call the executive summary of the Executive Summary.  First, the bottom line:

This assessment concludes, based on extensive evidence, that it is extremely likely that human activities, especially emissions of greenhouse gases,… More

Yesterday, Judge Mark Wolf dismissed part of the Conservation Law Foundation’s claims in its litigation against ExxonMobil concerning ExxonMobil’s Everett Terminal facility.  The opinion is both interesting and pleasurably concise – a rare combination!

Judge Wolf found that CLF had credibly alleged that the Terminal is violating its NPDES permit.  Importantly, he also found that CLF stated that there is:

substantial risk”… More

Bloomberg reported earlier this week that:

China will soon unveil a mandatory cap-and-trade credit program for electric cars, starting the countdown for carmakers to be in compliance with stricter rules on emissions and fuel economy.

It’s pretty well known that China is not the world’s most transparent government.  Thus, I won’t fully believe until I see it.  On the other hand, it does seem pretty clear that China is intent on cracking down on motor vehicle pollution. … More

Earlier this month, State Street Global Advisors joined the chorus of money managers urging corporate boards, particularly those in “high-impact sectors” – meaning “oil and gas, utilities and mining” – to do a better job reporting risks related to climate change.  SSGA’s recent “Perspective on Effective Climate Change Disclosure” is a serious document.  To put it in formal technical jargon, SSGA whacks the heck out of most companies in high-impact sectors,… More

In February, I posted about the formation of the Climate Leadership Council and its push for what it calls its “Carbon Dividend” plan.  In essence, it’s a gradually increasing carbon tax.  The plan would be revenue neutral, with the proceeds being returned to taxpayers.  Thus, the name.  I loved the idea and I still love it.  I particularly love that the tax starts at $40/ton – that’s a serious number.… More

Democratic Attorneys General have continued their efforts to combat the Trump administration’s attempts to roll back environmental regulations developed under the Obama administration in two recent actions. Thirteen AGs, including Massachusetts AG Maura Healey, sent a letter last week to Scott Pruitt, the Administrator of the Environmental Protection Agency, threatening legal action if the agency takes steps to weaken or delay the greenhouse gas emissions standards that were established in 2012 for cars and light-duty trucks for model years 2022-2025.… More

On May 31, shareholders at Exxon Mobil Corp. (“ExxonMobil”) voted in favor of a climate change resolution asking the company to publish an annual report on the business impact of measures designed to limit global temperature increases to 2 degrees centigrade, the target set by the Paris Agreement.

The non-binding resolution passed with more than 62% of the votes cast. Specifically, the resolution asks that,… More

In March, I noted BlackRock’s increasing concern over climate.  One element of its statement was “potential support for shareholder resolutions on climate risk”, where “management’s response to our prior engagement has been inadequate.  Turns out that they meant it.

Earlier this month, shareholders at Occidental Petroleum approved a climate reporting proposal – over the directors’ opposition – proposed by CalPERS and supported by BlackRock,… More

Last November, the District Court of Oregon denied the motion of the United States to dismiss claims that the United States had violated a public trust obligation it owes to US citizens to protect the atmosphere from climate change.  Not surprisingly, the government sought interlocutory appeal.  On Monday, Magistrate Judge Thomas Coffin issued a Finding and Recommendation that the request for interlocutory appeal be denied. … More

Two related items about climate change resilience and adaptation caught my eye this week.  First, the American Academy of Actuaries issued a report on “The National Flood Insurance Program: Challenges and Solutions.”  Those wild and crazy actuaries at the AAA certainly have a gift for understatement:

Increased flooding due to higher sea levels can only increase the amount of loss from storms absent expensive investment in coastal defenses.… More

Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal.  Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules.  There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.… More

In an interesting study just published in the Proceedings of the National Academy of Sciences, the authors predict that climate change will have a more significant impact on peak energy demand than had previously been understood.  They conclude that, in a business as usual case, peak demand will increase 18%, leading to a need to spend $180B (in current dollars) to meet that increased peak demand.

The authors acknowledge that their estimates are based on current infrastructure and that the development of energy storage could play a role in mitigating the need for new generation sources to meet peak demand.… More

As I have previously noted, I sympathize with the difficulties faced by MassDEP in trying to implement the SJC decision in Kain.  However, that does not mean that MassDEP can simply take the easy way out.  After rereading Kain, I have come to the conclusion that DEP’s proposal to limit GHG emissions from electric generating facilities in Massachusetts would in fact violate Kain,… More

When the Supreme Judicial Court ruled in Kain that § 3(d) of the Global Warming Solutions act requires MassDEP to promulgate emission limits for multiple source categories, requiring declining annual emissions enforceable in Massachusetts, I sympathized with the difficult task MassDEP was given.  To DEP’s credit, they are working hard, determined to get draft regulations out by mid-December.

I still sympathize, but evidence to date only demonstrates further that Kain was a mistake and it’s forcing a waste of resources at MassDEP and a misallocation of attention if we really want to attain further significant GHG reductions in Massachusetts. … More

As we noted in this space in April, Judge Dana Christensen vacated the Fish and Wildlife Service’s decision to withdraw its proposed listing of a distinct population segment of the North American wolverine as threatened under the ESA.  Bowing to the inevitable, the FWS has now published in the Federal Register a formal acknowledgement that the Court’s vacatur of the withdrawal of the proposed listing returns the situation to the status quo.… More

Yesterday, the Energy Information Administration reported that “Energy-related CO2 emissions for first six months of 2016 are lowest since 1991.”  The EIA gave three reasons for the drop in CO2 emissions.  

• Mild weather. Of course, if global warming is our solution to reducing CO2 emissions, we better come up with something that works in the summer as well as the winter.…

More

As an MIT grad and loyal resident (Go Sox!), I’m always happy to see stories about Massachusetts’ role in the innovation economy.  Last week, news arrived of more innovation in Massachusetts – this time on the legal front.  CLF sued Exxon Mobil for not adapting its Everett storage terminal to harden it against the effects of climate change.

I’ve previously raised the possibility that,… More

When RGGI was first implemented, I heard Ian Bowles, then Secretary of Energy and Environmental Affairs in Massachusetts, say more than once that the purpose of RGGI wasn’t really to reduce greenhouse gas emissions or jump start the clean energy economy.  Instead, the goal was much more modest; it was simply to demonstrate that a trading regime could work.  The RGGI states were to serve as a model,… More

Last Friday, Governor Baker issued Executive Order 569, “Establishing an Integrated Climate Change Strategy for the Commonwealth.”  EO 569 will advance climate policy in Massachusetts in a number of important ways.  It also leaves much to be accomplished by MassDEP.  Here are the highlights:

• EOEEA and MassDOT are instructed to work with other New England and Northeastern states to develop regional policies to reduce GHG emissions from the transportation sector.…

More

Late last night, the Massachusetts legislature enacted House Bill 4568, an act to promote energy diversity (the “Act”). Overall, the Act marks a compromise between the House’s original procurement-only legislation and the Senate’s more comprehensive “omnibus” bill. It is expected Massachusetts Governor Charlie Baker will sign the legislation shortly. After that, regulations will be required to be implemented and other regulatory actions will need to be taken by Massachusetts’ Department of Public Utilities,… More

On June 15, 2016, Exxon sued Massachusetts AG Maura Healey in federal court in Texas, seeking to bar the enforcement of AG Healey’s April 19, 2016 civil investigative demand, issued pursuant to M.G.L. c. 93A, the Commonwealth’s unfair and deceptive practice statute.  Under c. 93A, § 6, the AG may issue investigative demands “whenever [s]he believes a person has engaged in or is engaging in any method, act or practice” prohibited by c.… More

Last Friday, the Senate Committee on Ways and Means released its version of the energy bill that passed the House earlier this month. Whereas the House bill would require distribution companies to procure 1,200 MW of offshore wind power by 2027 and 9,450,000 MWH of hydroelectric power by 2022, the Senate’s version would require 2,000 MW of offshore wind by 2030 and 12,450,000 MWH of “clean energy generation” by 2018.… More

The City of Boston has just released its “Climate Projections Consensus.”  It’s not a pretty picture.  Here are the lowlights:

• Average summer temperatures will be 4-5 degrees F. warmer by 2050 

• Even with “moderate” emissions reductions, see level rise is likely to be between 1.5 feet and 2.5 feet by 2070.

• The number of “extreme precipitation” events has been increasing and that increase will continue.…

More

This week a draft of the long-awaited Massachusetts energy bill was reported out of the Joint Committee on Telecommunications, Utilities and Energy. The bill would require the Commonwealth’s distribution companies to competitively solicit long-term, fifteen- to twenty-year contracts for large-scale offshore wind and hydroelectric power. Notably absent from the bill are provisions addressing resources such as solar, onshore wind, nuclear, energy storage, and energy efficiency.

The bill seeks to jumpstart the development of offshore wind in federal lease areas by directing distribution companies to enter into contracts for 1,200 MW of offshore wind power before July 1,… More

On Tuesday, the Supreme Judicial Court ruled that MassDEP had violated the Global Warming Solutions Act by failing

To promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or categories of sources, set emissions limits for each year,… More

Late last week, Magistrate Judge Thomas Coffin concluded that the most recent public trust case, which seeks an injunction requiring the United States to take actions to reduce atmospheric CO2 concentrations to 350 parts per million by 2100, should not be dismissed.

The complaint here is similar to, but broader than, others of its ilk.  As we noted previously, at least one federal court has already held that there is no public trust in the atmosphere. … More

On Monday, the 9th Circuit reversed a district court decision that rejected the critical habitat designated by the Fish and Wildlife Service for protection of the polar bear, which was listed as threatened in 2008.  The case is largely a straightforward application of accepted Endangered Species Act principles, but does make a few important points.

As the 9th Circuit pointed out, the district court’s logic was flawed. … More

Students of history know that fighting a two front war is a hazard to be avoided. According to the L.A. Times, however, that is precisely the dilemma that now faces Exxon Mobil:  dual investigations from attorneys general on each coast of the United States.

Several sources are reporting that California Attorney General Kamala Harris’ office is examining what Exxon knew about the science of climate change compared with what the company told investors. … More

Earlier this week, Massachusetts released its updated Massachusetts Clean Energy and Climate Plan for 2020.  The headline for the press release was “Massachusetts on Track to Meet 25% Greenhouse Gas Reduction Target for 2020”.  The slightly more nuanced version is that we can do it, but only with a large dose of Canadian hydropower.

While that’s the main take-away, it really is a useful report,… More

So COP21 resulted in an agreement.  What’s a poor in-the-trenches lawyer to make of it?  I think it’s pretty clearly a major step forward and reflects much more substantive progress than might have been expected.  For a very helpful summary as to why the Paris Agreement was a success, check out Rob Stavins’s post.  As good as Rob’s summary is, Elizabeth Kolbert in the New Yorker (subscription required) had a slightly more concise explanation why the Paris Agreement is a good thing:

It changes the presumption that carbon emissions will continue to grow to the presumption that they must soon start coming down.… More

A few months ago, I asked whether climate change nuisance and public trust litigation might have something in common with litigation challenging bans on same-sex marriage.  The idea was that both types of litigation seemed hopeless at the start and received very frosty receptions from the courts.  However, in the case of same-sex marriage, plaintiffs kept plugging away and, much sooner than most people expected, a tipping point was reached. … More

The fourth installment of our Paris climate change negotiations tracker is available.

Some progress seems to be occurring, but it’s certainly not obvious that COP21 will result in an agreement sufficient to ensure that it will result in meeting a “below 2°C” objective.

Click here to download the report:

 … More