Yesterday, Climatewire (subscription required) released a peer review letter on EPA’s Social Cost of Greenhouse Gases (SC-GHG), which got a fair bit of press last year, because EPA’s metric was $190/ton, even though the Biden administration was using the $51/ton figure originally developed by the Obama administration.  The peer reviewers’ views can be distilled down to two major points:

1. It’s a really solid piece of work that provide a solid technical foundation for the SC-GHG.
2. It’s really solid only as far as it goes – and it leaves out a lot.

The core issue is that EPA has not attempted to include in the SC-GHG those climate impacts that we do not yet have good means of measuring.  These include the impact of climate change on changes in precipitation patterns, which recent events suggest is probably a rather important impact.

How agencies should handle uncertainty is a recurring issue and one that I’ve addressed multiple times, but it’s hard to imagine a context in which the issue has greater significance than in attempting to calculate the SC-GHG.  One of the peer reviewers succinctly summarized the issue:

While EPA acknowledges that there are uncertainties, simply not using any value because the analysis is uncertain does not avoid the problem but instead chooses a value of zero.

I am sympathetic to this position.  From a purely logical point of view, if we know that a cause has an impact, it seems better to provide the best possible measurement of that impact rather than to act as though it doesn’t exist.  On the other hand, there is a political dimension to all this and releasing a revised SC-GHG that’s open to criticism for not taking uncertainty into account could undermine people’s reliance on the SC-GHG.

I take some comfort in the fact that the peer review panel seemed fundamentally both supportive of the SC-GHG as a whole and also reasonably confident that EPA’s approach provides a basis for incorporating other impacts into the SC-GHG as methodological advances permit.

I take no comfort from the clear indication that, at a substantive level, the costs imposed by climate change are almost certainly more substantial than we are currently able to measure and are also likely to increase over time.

On June 26, 2023, the Cambridge City Council voted to amend the city’s Building Energy Use Disclosure Ordinance (BEUDO) to require large non-residential buildings to reach net zero greenhouse gas emissions by 2035 and mid-size non-residential buildings to do so by 2050. The BEUDO amendment sets one of the most ambitious municipal net zero building targets in the country and establishes a new benchmark for climate-focused cities—yet questions remain as to whether these goals can actually be achieved.… More

Key Takeaways:

• On June 21, 2023, the Massachusetts Supreme Judicial Court (“SJC”) issued a ruling in Mark A. Adams v. Schneider Electric USA, Inc., SJC-13352 (2023), addressing the so-called “cat’s paw” theory of liability and concluding that an employer can still be found liable for violating Massachusetts’ employment discrimination statute where there is evidence that a mid-level manager, directed to lay off employees, furthered a discriminatory corporate policy without knowingly doing so.…

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The Wharf District Council recently released its “District Protection and Resiliency Plan.”  My immediate reaction is just a quiet OMG regarding the size of the task.  Of course, that’s no excuse for inaction and I found the plan to be quite compelling. 

The Wharf District runs from Christopher Columbus Park to the Congress Street bridge.  Its landward boundary is basically Congress Street.  In its simplest form, the Plan calls for “a continuously elevated harbor’s edge.”  However, it would be a mistake to think of this plan as just raising coastal elevations.  It’s much more than that and, despite the repeated emphasis on the conceptual nature of the plan and the amount of work necessary before plans can be finalized, it’s the level of detail that makes the plan persuasive.

In short, a lot of thought went into this Plan; it’s rather amazing that the Council and its technical team were able to weave a number of potentially disparate goals and projects into a coherent whole.  The plan addresses storm surges, but it also addresses dry weather high tides.  It would create new stormwater storage.  It would address below-ground flood pathways.  It would create new open space.  It would expand the existing Harborwalk.

And it would do all this for a mere billion dollars or so, or a little more than $100,000 per linear foot of coastline.  If this sounds like a lot – and it does to me – it’s less than the estimated $3.9 billion in assets that climate change would put at risk in the Wharf District in the absence of this plan.

Of course, there’s still a bit to do, such as figuring out what the public realm will look like, who will pay for the work, and how the work will be reviewed and permitted.  Writ large, the question can be posed simply as how we find the political will to make the decisions necessary so that the Boston coastline is resilient to the impacts of climate change.

But there’s no point to doubting whether we can get this done.  Instead, it’s time to thank those who did this work, and to roll up our sleeves and start implementing it.

Last week, the EPA Clean Air Science Advisory Committee provided EPA its review of EPA’s Policy Assessment for the Reconsideration of the National Ambient Air Quality Standard for ozone.  As expected, CASAC has disagreed with the recommendation of EPA technical staff to retain the current 70 ppb standard.  Instead, CASAC recommends a significantly lower ozone NAAQS of 55-60 ppb. 

This seems to be coming down to a fight between EPA’s reliance on controlled human exposure (CHE) studies and CASAC’s position that EPA is giving too little weight to epidemiological studies, which show effects at lower levels.

Personally, I’m with CASAC.  Just because it can be difficult to distinguish correlation from causation doesn’t mean that the epidemiology shouldn’t be given significant weight.  Moreover, as far as I can see, the data seem to be trending in one direction – that ozone causes adverse impacts at lower levels than previously thought.

However, from a legal perspective, I think EPA would probably win a legal challenge to an EPA decision to maintain the 70 ppb standard.  Is the D.C. Circuit Court of Appeals really going to wade into a dispute among scientists between the use of CHE and reliance on epidemiology?  The Court has certainly chastised EPA in the past for ignoring CASAC.  However, this seems a legitimate scientific dispute and while I (and the Court) may think that EPA is wrong, it’s not obvious that an EPA decision to retain the 70 ppb standard would be so crazy wrong as to meet the legal threshold we know as “arbitrary and capricious.”

This will be an interesting one to watch.

Greenwire (subscription required) reported yesterday that more than 150 wildfires in Quebec have blanketed large swaths of the United States with unhealthy levels of particulate matter.  Indeed, as of 9:00 AM on Thursday, June 8, New York City has the worst air quality of any metropolitan area in the world.  Some businesses are advising workers to stay home. 

Scientists are generally in agreement that climate change has increased the frequency and intensity of wildfires.  And so we have a vicious cycle.  Climate change makes wildfires worse.  People stay inside and use their air conditioners to stay cool and filter out the air pollution.  People in the United States and around the globe suffer from a range of illnesses and premature mortality. The world continues to get hotter, wildfires continue to get worse, and so it continues.

It doesn’t have to be that way.  We could instead have a virtuous cycle.  We pivot towards a zero carbon economy.  We minimize further increases in global temperatures.  We get the side benefit of reduced conventional air pollution, whether from traditional stack emissions or from wildfires.  (And here’s a question.  Why is it that “co-benefits” are a bad thing?  How did that happen?  Aren’t any benefits good, by their nature?)

Which future will we choose?

On May 25, 2023, the Supreme Court issued its long-awaited decision in Sackett v. Environmental Protection Agency, which significantly narrowed the Clean Water Act’s (“CWA”) test for determining whether wetlands are protected “waters of the United States” and the federal permitting requirements for development projects in covered wetlands areas.

The Court’s Ruling

The Supreme Court’s ruling has two basic parts:

1. It adopts Justice Scalia’s plurality opinion in Rapanos v.…

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[This is the third post in our Hydrogen Blog Series. Read the first post here and the second post here]

One of the biggest hurdles for clean hydrogen is high costs.  The Department of Energy graph below says it all.  Today, a kilogram of hydrogen produced by electrolysis costs around $5 to $7. … More

After weeks of hints and leaks, yesterday morning (May 11, 2023), EPA proposed a new rule regulating emissions from power plants. The proposed rule would apply to new and existing gas plants and existing coal plants—new coal plants are separately regulated—and promises to significantly cut carbon and other harmful air pollutant emissions from fossil plants over the next two decades and beyond.

EPA’s accompanying Fact Sheet spells out the proposed rule’s emissions reductions estimates:

EPA has evaluated the emissions reductions,… More

Yesterday, the Biden-Harris administration outlined in a fact sheet its priorities for permitting reform to accelerate the build-out of America’s energy infrastructure “faster, safer, and cleaner.” The fact sheet provides an endorsement of the Building American Energy Security Act of 2023, establishes several major objectives for permitting reform, provides several recommendations to streamline federal permitting processes, and urges Congress to include the objectives and recommendations as part of bipartisan permitting reform legislation.… More

[This is the second post in our Hydrogen Blog Series. Read the first post here.]

In the first post, I alluded to the technical issues hydrogen developers are considering. Here we’ll look at how hydrogen is produced and what it will be used for.

How is hydrogen produced today?… More

Earlier this week, the Supreme Court accepted cert. in Lopez Bright Enterprises v. Raimondo, which presents a straightforward challenge to the continuing viability of Chevron.  The question presented was: 

Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.

It’s noteworthy that the Court did not grant cert. on the question whether, under Chevron, the agency interpretation of the relevant statute was reasonable.  That makes it pretty clear that the court wants to get at the merits of Chevron itself.  With Chevron in play, there are several issues to note:

• First, if you have an interest, this is the case in which to submit or join an amicus brief.
• Second, it’s worth remembering that, just 40 years ago, Chevron was not controversial. The decision was unanimous.
• Third, what’s sauce for the goose is also sauce for the gander. The Trump administration relied on Chevron to support a number of questionable efforts at statutory interpretation.
• Fourth, while Justices such as Gorsuch are clearly not friends of the administrative state, I think that the attack on Chevron is as much an attack on Congress as it is on the executive branch. It is an attempt to stop Congress from legislating general principles at a high level, while leaving the executive to fill in the details.  This has been the dominant mode of legislative drafting for some time and it has very clearly been intentional on Congress’s part.  Is it really the role of SCOTUS to say that Congress cannot legislate this way?

While this is not intended to be a post on the merits of Chevron, I will say this.  The attack on Chevron is really an attack on modernity itself.  The world has gotten much more complicated, and SCOTUS just doesn’t like that.

Time will tell regarding how SCOTUS’s efforts to return us to a simpler era work out.

On April 13, 2023, the Commissioners of the Nuclear Regulatory Commission (NRC) voted to approve a proposal that will accelerate the commercialization of fusion energy in the United States.  Specifically, the NRC determined that fusion energy be regulated under the Nuclear Regulatory Commission’s byproduct material framework contained in 10 C.F.R. Part 30, “Rules of General Applicability to Domestic Licensing of Byproduct Material.”

Part 30 requires general or specific licenses to manufacture,… More

We’re launching this blog series to help readers keep pace with the fast-moving world of clean hydrogen.  Each week or so we’ll post an article on different legal, regulatory, and technical opportunities and challenges facing companies who are developing or exploring clean hydrogen projects.

We need a comprehensive approach to tackling climate change, one that targets all sectors of the economy.  Wind, solar, and electric vehicles are undoubtedly important,… More

On Monday, the 9^th Circuit Court of Appeals held that the City of Berkeley ordinance entitled “Prohibition of Natural Gas Infrastructure in New Buildings” was preempted by the Energy Policy and Conservation Act.  The relevant language in the EPCA provides as follows: 

no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product.

There are a number of exemptions and other details, but that’s the core.

Berkeley and a number of amici (including the United States, which supported Berkeley) argued that the preclusion of gas hookups is not the same thing as regulating the energy efficiency of the actual product itself.  I’m not going to get into the merits, other than to note that, based on the following, I don’t expect any hardcore mathematicians among my readers to sympathize with the City’s arguments:

Berkeley’s main contention is that its Ordinance doesn’t regulate “energy use” because it bans natural gas rather than prescribes an affirmative “quantity of energy.” While Berkeley concedes that a prohibition on natural gas infrastructure reduces the energy consumed by natural gas appliances in new buildings to “zero,” it argues that “zero” is not a “quantity” and so the Ordinance is not an “energy use” regulation. But that defies the ordinary meaning of “quantity.”

I will note, however, that, if the 9^th Circuit decision is adopted by other Circuit Courts or by the Supreme Court, it is difficult to see how other natural gas bans could survive a preemption challenge.  This case is not about specific facts related to the language of the Berkeley ordinance.  It is a decision on a facial challenge to the ordinance, in which the Court said that a ban on new natural gas connections is preempted by the EPCA.

Thus, if the 9^th Circuit holding is the law, then other state or local bans are going to be preempted as well.  FWIW, I can imagine other Circuit courts disagreeing with the 9^th Circuit.  In that case, I’d expect SCOTUS to take up what would be a pretty clear Circuit split.  And I’ve given up predicting what SCOTUS will do.  There are a number of conservative SCOTUS justices who might be generally expected to want to preserve local authority, so I am not certain that SCOTUS would find the bans to be preempted.  For those who just can’t get enough of preemption jurisprudence, I suggest that they read Judge O’Scannlain’s concurrence, which is pretty much a cris de coeur, begging SCOTUS to bring some clarity to the law of preemption.