Massachusetts Releases Its 2050 Decarbonization Roadmap — It’s Going to Be Quite a Trip

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, I’m going to focus in this post on some of the key choices that are going to have to be made among the various options discussed.

Here goes:

  • We’re going to have to choose a lot of offshore wind.  The Roadmap views the “Limited Offshore Wind” pathway as anything less than 30 gigawatts.  Importantly, the Roadmap concludes that, if we don’t build more than 30 GW of offshore wind, we’re going to need to construct new nuclear power plants to reach our decarbonization target.
  • We’re going to have to choose a lot of energy efficiency.  The Roadmap indicates that, if we fall short of our efficiency targets by even one-third, we’re going to need substantially more zero-carbon resources and costs will increase “significantly.”
  • We’re still going to need some fossil fuels.  “Reliance on zero-carbon fuels needs for grid balancing and end uses leads to dramatically higher costs in 2050.”
  • We’re going to need a lot of new transmission, which will require regional cooperation.  “Under all scenarios examined, several new, large transmission lines – each of which will take almost a decade to plan, site, and construct – are required for Massachusetts to have access to sufficient clean electricity and to maintain system reliability.”

If I have one criticism of the Roadmap, this last bullet crystallizes it.  The Roadmap is encouraging in that it notes that getting to a decarbonized economy does not require some miracle new technology that remains to be discovered.  It does give rather short shrift to the miracle new politics that we’re going to need to make these pathways a reality.  I understand that the politics of how we get this done was not the focus of the Roadmap; it is, however, going to have to be the focus of a lot of people working very hard over the next 30 years.

A journey of a thousand miles begins with a single step.  And the length of the journey cannot discourage us from starting.

EPA’s Ozone NAAQS Decision — Perhaps the Statute Itself Deserves Some of the Blame

Yesterday, EPA formalized its decision to leave the ozone NAAQS unchanged, at 70 ppb.  I don’t think that this decision is in the same category of egregiousness as EPA’s recent decision not to reduce the PM2.5 NAAQS.  After all, only one decision can be the single worst environmental policy of an entire administration.

I’m not that close to the science on the ozone NAAQS, but I have the sense that the ozone evidence is just more of the same in the past four years; it’s nothing like the seeming flood of evidence we’ve seen concerning the risks of PM2.5 at sub-NAAQS exposures.  We do need to remember that there was some substantial evidence in 2015, when EPA adopted the 70 ppb standard, that there are risks at concentrations below 70.

The real question is what we mean by an “adequate margin of safety.”  As I have previously noted, this is really a policy question, not a scientific question.  On the other hand, it’s not an infinitely malleable concept and it’s pretty clear that questions of background or the cost-effectiveness of the controls necessary to get to a level below 70 ppb are not relevant to whether a NAAQS set at an particular level in fact attains an “adequate margin of safety.”  The adequate margin of safety is what it is; whether we as a society want to spend the money necessary to ensure that there is an adequate margin of safety is a different question.

Conceptually, I understand why Congress made the choice that it did.  Let’s first answer the scientific question regarding what level is “safe.”  Then we can figure out how we get to that “safe” level and whether society is prepared to spend the money to do so.  Unfortunately, the structure of the Clean Air Act – not to mention the state of our politics in 2020 – doesn’t permit a rational discussion regarding the policy choices that flow from the “how safe is safe” decision.

And so we end up with what’s supposed to be a scientific question becoming infected with implicit policy questions, which perverts the answer to the scientific question.  From a legal point of view, it’s the conservative justices, who say that they care about what words Congress actually uses in writing legislation, who should be the quickest to reverse both Trump NAAQS decisions.  From a purely etymological point of view, it’s difficult to conclude that either the PM2.5 NAAQS or the ozone NAAQS currently protect the public health with an adequate margin of safety when there is substantial – even if not definitive – evidence that there is significant morbidity and mortality associated with exposures below the current NAAQS.

Do I expect the current conservative Supreme Court majority to do as I suggest?  No, but it would not be a bad litigation strategy for the public health advocates who will inevitably challenge both decisions to focus really sharply on just how much flexibility there can be in the definitions of the words in the phrase “adequate margin of safety”.

The Transportation Climate Initiative Gets Off the Ground: Kinda, Sorta, A Little

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.  Optimists will note that we have to start somewhere.  Pessimists will argue this failure demonstrates that, even in some very blue states, reducing GHG emissions from the transportation sector isn’t going to be easy.
  • All twelve states did join in a statement on “Next Steps for the Transportation and Climate Initiative.”  It’s clear that everyone is trying to maintain harmony and hoping that momentum will build that will allow the other states to join.
  • Using 2023 as the base emissions year, the TCI Program, dubbed “TCI-P”, will reduce emissions in equal annual increments of 3%, resulting in 2032 GHG emissions 30% below 2023 emissions.
  • The MOU creates the framework for TCI-P, but each state will establish its own program.  Those programs will include:
    • A cost-containment reserve
    • An emissions containment reserve
    • A minimum auction price
    • Three-year compliance periods
    • Unlimited banking of allowances
    • Limited use of offsets
  • The MOU emphasizes that environmental justice will be a major focus of TCI-P implementation.  This emphasis is demonstrated by the following requirements:
    • 35% of auction revenue must be spent on projects “to ensure that overburdened and underserved communities benefit equitably from clean transportation projects and programs.”
    • Each Signatory Jurisdiction must establish an “Equity Advisory Body … to advise on decision making and equitable outcomes for TCI-P.”

Overall, it’s a reasonable program and a reasonable start.  I’m hopeful that most or all of the eight TCI members that did not sign on to the MOU will do so before the first compliance period, but no one should minimize the enormity of the task.  Given the urgency of the problem, the failure to get greater participation just shows that the political obstacles remain significant.

One step at a time.

EPA Finalizes Decision to Retain the Existing PM2.5 NAAQS — Single Worst Environmental Decision of the Trump Administration?

Yesterday, EPA finalized its decision to retain the existing PM2.5 NAAQS of 12 ug/m3, rejecting substantial scientific evidence that PM2.5 causes significant harm at concentrations below 12 ug/m3.  In fact, as noted in one of my prior posts on this subject, an article in the New England Journal of Medicine estimated that exposure to PM2.5 at concentrations below 12 ug/m3 causes more than 10,000 deaths annually.  That hardly seems consistent with the Clean Air Act, which requires that NAAQS be set at the level requisite to protect public health “with an adequate margin of safety.”

As the Trump administration winds down, I think we can start the discussion of the single worst environmental decision made in the last four years.  There’s a lot of competition, and I welcome reader submissions, but for my money, this may well be it.

I understand that there is discussion among the Biden transition team regarding how much to prioritize action to lower the PM2.5 NAAQS.  At some level, it’s a heavy lift, because a lot of work goes in to revising a NAAQS.  The administration may conclude that its climate efforts will address particulate matter as a co-benefit.  That would certainly be true, but the NAAQS are important.  To me, they are still the core of the CAA.  That should be particularly true as a heightened focus on environmental justice emphasizes the link between environmental issues and public health.  Many of those tens of thousands of excess deaths take place in EJ communities.

Retaining the existing PM2.5 NAAQS – worst environmental decision ever by the Trump administration.  And that’s saying a lot.

Fires and Floods, Holiday Version

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.

In the past two decades, heat-related mortality for older persons has almost doubled, reaching a record high 19,000 deaths in 2018.

Last time around, I rejected Heat Wave for Robert Frost, on the ground that Heat Wave was too upbeat.  However, since we’re entering the holiday season at the crest of a pandemic, I think we need upbeat.  In fact, sobering may be the last thing any of us needs right now.

Therefore, with the holiday in view, and with the recognition that extreme heat and extreme storms are both increased and exacerbated by climate change, I offer not one, but two songs by Ethel Waters.  Stay safe and stay upbeat.  The new year starts on January 20, 2021.

Who Gets To Decide What is a Major Source That Requires a Permit? That’s a Fine Question

The recent decision by the 8th Circuit that the Coyote Creek Mining Company did not require a major source permit under the Clean Air Act is both fascinating and important.  The question on the merits was whether CCMC had to include its fugitive emissions in determining its potential to emit.  Such emissions are normally excluded, but are included if they are part of a “coal processing plant.”

The Court concluded that the regulations are ambiguous and that EPA guidance did not resolve the issue.  It went on to review the decision by the North Dakota Department of Health, which concluded that the emissions should be excluded and CCMC did not require a permit.  The Court held that the NDDOH decision was entitled to deference, stating that:

The process for NSPS enforcement would be significantly impaired if the state authority did not have the ability to make determinations based on application of given facts to the SIP and EPA framework.

There was a vigorous dissent by Judge Stras, who found it incomprehensible that a federal court would defer to a state agency interpretation of federal law.  In his pithy introduction, Judge Stras asserted that:

Most Americans would be surprised to learn that state bureaucrats can play an even larger role than federal judges do in interpreting federal law.

I’m inclined to put a pox on the houses of both the majority and the dissent.  The problem with the majority is that it is too cavalier in asserting that, under the CAA’s cooperative federalism regime, states have the responsibility to implement the permitting regime.  That’s true, but it’s not obvious that the states get to make major interpretive decisions, such as what EPA’s own regulations actually mean.  I think that the majority also wrongly gives short shrift to the problem of inconsistent decisions being made by different delegated states.

On the other hand, Judge Stras relies on a mode of constitutional interpretation that is void of any basis in the Constitution or our political history.  He also seems far too quick to reach a constitutional question that should not even be at issue.  First, I think Judge Stras is correct that the regulation is not in fact ambiguous in these circumstances.  I would have found that, even if NHDOH was entitled to some deference, its decision that the emissions did not come from a coal processing plant was plainly wrong.

Second, the real solution, not discussed by the majority or the dissent, should have been that this case should not be a dispute between the authority of a federal court and a state agency, but a dispute between EPA and a state agency.  SCOTUS already ruled, in Alaska Dep’t of Envtl. Conservation v. EPA, that EPA has authority under the CAA to override state agency permitting decisions.  The plaintiffs should have asked EPA to override the NHDOH decision.  I don’t know why that did not happen here – perhaps it was because the plaintiffs assumed (probably correctly) that EPA would not rule against CCMC, since EPA had embarked on a mission to save coal.  Even if that were the case, however, the plaintiffs could then have appealed EPA’s decision to federal court and the case would have been presented in the proper way.

Finally, I’ll reiterate that this case really may be important.  Judge Stras is a Trump appointee and I wouldn’t be shocked if some of the recent appointments to SCOTUS were sympathetic to his arguments.  What makes the case really interesting is that those same judges are also those most sympathetic to the state side of cooperative federalism issues.

If this issue were to make it to SCOTUS, it would be fascinating to see if Justice Gorsuch rules for the coal company, because federalism gives decisional authority to the states, or for the plaintiffs, because the Constitution precludes state agencies from interpreting federal law.

As a lawyer I once dealt with was fond of saying, “that’s what makes a horse race!”

What Uses of PFAS Are “Essential”

Last week, Environmental Science: Processes and Impacts released a study titled “The high persistence of PFAS is sufficient for their management as a chemical class.”  The title is one of the two big takeaways from the article.  The other is that:

We argue that this high persistence is sufficient concern for their management as a chemical class, and for all “non-essential” uses of PFAS to be phased out.

I don’t suggest that this one article is the end of what is a very significant ongoing debate  about how PFAS should be regulated and how dangerous they are.  However, notwithstanding my general reluctance to speculate, my more than 30 years of experience on Superfund cases tells me that more regulation is coming.  It’s going to be more and more stringent.  I also think that the huge number of different PFAS compounds make “their management as a chemical class” almost inevitable.

Time may prove me wrong, but I suggest that manufacturers and users of PFAS start putting together their cases that they are “essential” sooner rather than later.

Miami Beach Plans an Underwater Park — I Say, Just Wait a Few Years

According to ClimateWire (subscription required), Miami Beach is planning an underwater park just off the coast.  Not that I would ever be snarky, but given how often parts of Miami Beach are now under water during high tides, even in the absence of extreme weather, I think that they could save some money by just waiting a few years.  At some point in the not too distant future, climate change will put Miami Beach’s existing parks under water.  They won’t have to build an expensive new park in the ocean and the existing parks will be much more convenient for the residents to use.

The 4th Circuit Stays Construction of the Mountain Valley Pipeline — A Lesson in Preventing a Fait Accompli

Earlier this week, the 4th Circuit Court of Appeals stayed construction of the Mountain Valley Pipeline.  The Court did so with a two-sentence order stating that an opinion would follow.  The order was issued hours after oral argument.  Why the hurry?

It could be that, as reported by Bloomberg (subscription required), the plaintiffs had somehow learned of “a call in which pipeline officials told investors they would quickly trench through streams ‘before anything is challenged.’”

Ever since Robert Caro’s biography of Robert Moses, the general public has understood the concept of “digging stakes” – the idea that a project may be impossible to stop if the developer gets shovels in the ground before the opposition can obtain a judicial decision on the legality of the project.

My advice to project developers is that the concept of digging stakes doesn’t work as well if the opponents and the courts learn of your strategy before you are actually able to get those stakes in the ground.

COVID-19 and PM2.5 Are Still Not a Healthy Mix

In April, I noted that researchers at the T.H. Chan Harvard School of Public Health had identified a relationship between PM-2.5 exposure and mortality from COVID-19.  That study received some criticism, and it certainly did not move the Clean Air Science Advisory Committee to alter its recommendation to keep the PM2.5 NAAQS unchanged at 12 ug/m3.

Earlier this month, the same researchers updated the study, finding the link between PM2.5 exposure and COVID-19 mortality to be even stronger than they initially thought.

We found that higher historical PM2.5 exposures are positively associated with higher county-level COVID-19 mortality rates after accounting for many area-level confounders. The results were statistically significant and robust to secondary and sensitivity analyses.

I may be a cockeyed optimist, but I continue to believe that, over time, this will become (to the extent it is not already) the scientific consensus, and that the PM2.5 NAAQS will be reduced, as the science so clearly indicates that it should be.

It’s Going to Take a While to Get to Net Zero

Since I noted earlier this week the announcement by ConocoPhillips that its “ambition” is to reach net-zero carbon for its own operations by 2045-2055, it seemed appropriate also to note that BLM has now approved the Willow Master Development Plan, which will authorize ConocoPhillips to produce almost 600 million barrels of oil over 30 years in the National Petroleum Reserve in Alaska. 

I commented on this project a few months ago, when the Environmental Impact Statement was released, because ConocoPhillips has indicated that it plans to utilize thermosyphons to keep the ground around its rigs frozen.  And why is this necessary?  Because climate change is going to increase temperatures in this part of Alaska by about 40 F over the life of the project.  And why is this happening?  I think we know the answer to that question.

More evidence for the second law of thermodynamics.  Entropy is definitely increasing.

ConocoPhillips Has An Ambition Is to Be Net-Zero by 2050-ish — It’s a Start

Last week, ConocoPhillips announced a goal of reducing its emissions to net-zero by 2045-2055.  It’s a significant step and so it is important to note both what is in the plan and what is not.

First, what is in the plan?

  • ConocoPhillips has set a 2030 target of reducing Scope 1 and Scope 2 emissions by 35%-45%
  • It has an “ambition” to be net-zero by 2045-2055
  • It has signed on to a World Bank initiative to eliminate routine flaring by 2030
  • It will implement continuous methane emissions detection
  • It addresses emissions from the use of its products by supporting the Carbon Leadership Council – which presumably means supporting the CLC proposal for a “Carbon Dividends Plan”

All of these are good steps.  What’s missing?  There are two very important qualifications to the ConocoPhillips plan:

  • The plan only covers Scope 1 and Scope 2 emissions. In other words, it does not address emissions from ConocoPhillips customers when they combust ConocoPhillips products
  • Even the net-zero goal for its operational emissions is phrased only as an “ambition” and not as a “commitment”

So how meaningful is this announcement?  I’m firmly in the scientific camp that says we have to be as aggressive as possible.  In that light, this announcement falls short of what is necessary.

At the same time, I’m also firmly in the camp that says we need to encourage corporations with large carbon footprints to start taking steps in advance of federal legislation that would drive us towards net-zero emissions economy-wide.  For that reason, I applaud the ConocoPhillips announcement and wait for the start of a serious game of leapfrog, as each big energy producer makes ever-more aggressive carbon reduction commitments.

Foley Hoag Attorneys Christina Hioureas and Alejandra Torres Camprubi to Participate in Dialogue Focused on Self-Determination and Sea-Level Rise

Foley Hoag LLP counsel and United Nations practice group Chair Christina Hioureas and associate Alejandra Torres Camprubi will serve as panelists for a series titled “Climate, State and Sovereignty: Self-Determination and Sea-Level Rise,” to be held in consecutive months from September – December 2020.  The series, sponsored by the Liechtenstein Mission to the United Nations and the Liechtenstein Institute on Self-Determination (LISD) at Princeton University, will bring together academics and experts representing the States most affected by the rising sea levels to discuss the situation as it stands,… More

Judge Skavdahl Doth Protest Too Much — And Wrongly Vacates BLM’s Methane Rule

Last week, Judge Scott Skavdahl vacated BLM’s 2016 methane Waste Prevention Rule.  The Judge spends 10 pages documenting the “loopty-loops” of the litigation surrounding the 2016 Rule and the Trump administration’s efforts to rescind the rule.  Here, I’m with him.  It’s difficult to review the tangled process of judicial review of this rule without being embarrassed for our judicial system.

Judge Skavdahl then spent 47 pages on the merits.  Here, however, if I may continue Judge Skavdahl’s metaphor, I think that he went seriously off the rails – a dangerous outcome on a roller coaster.  I’ll largely stand by my analysis of this issue in reviewing Judge Yvonne Gonzalez Rogers’s decision vacating the Trump rule rescinding the Waste Prevention Rule.  As I said then, “venting or flaring gas into the air, damaging the air without creating any benefits, has to fit within the definition of waste.”

Put simply, Judge Skavdahl’s error is in confusing the definition of what is waste with how the costs associated with that waste are measured.  Just because Congress was not aware of the cost of methane emissions when it wrote the Mineral Leasing Act doesn’t mean that BLM had to ignore the costs of such emissions in 2016 when it assessed the propriety of regulating activity that is clearly “waste”, i.e., the avoidable flaring or venting of methane.

This error brings me back to my speculation in July regarding whether Justice Gorsuch might side with Judge Rogers, because the plain meaning of “waste” so clearly includes avoidable venting and flaring.  In light of her stated judicial philosophy, I’ll now add likely Justice Barrett to my speculation regarding the ultimate fate of BLM methane regulation.

The New Midas Touch — Everything He Touches Turns To Dung

Everyone noticed when President Trump issued an order earlier this month banning offshore oil and gas drilling in certain areas until 2032.  It was obvious to everyone that this was a campaign stunt, intended to improve his changes in Florida and North Carolina.  Of course, pretty much no one wants drilling in these areas and the order wouldn’t have been necessary but for Trump’s prior declaration that he was going to open up those areas to drilling.

Vote for me!  I saved you from myself!

Now, the other shoe has dropped.  As reported by E&E news (subscription required), the ban also precludes offshore wind development in these areas until 2032.  The E&E story includes a quote from a BOEM spokesman confirming that the ban covers offshore wind as well as oil and gas drilling.

Everything he touches turns to s—.