Environmental Law Prof Blog

Attending COP29 — Completing The Article 6 Rulebook

Adam D. Orford, Assistant Professor of Law at the University of Georgia School of Law, is attending the 29th Conference of Parties to the United Nations Framework Convention on Climate Change as one of the American Bar Association’s observer delegation and will be sharing his thoughts on the experience here. The views expressed in this post are solely his and do not necessarily reflect the views or positions of the ABA or UGA.

Cross-posted to Medium.

Greetings from Baku! In this post, I will be diving into the Paris Agreement “Article 6” framework. These are the rules for running an international carbon credit trading program. It was widely suspected that COP29 would be the year that the UNFCCC parties finalized the carbon market “rulebook,” and indeed, it appears that they have done so.

Below, I introduce the concept of market-based solutions to environmental problems, discuss the application of those ideas to climate change, describe the Kyoto Protocol predecessors to Article 6, and examine the procedural machinations at Baku that resulted in the Article 6 rulebook nearing completion. I hope it’s informative!

For more information on COP29, see my earlier posts in this series introducing COP29, discussing “1.5-aligned” NDCs, and exploring climate finance. See also my quick updates on climate trade protectionism issues, and how people are talking about the U.S. election at COP29.

Market-Based Solutions to Environmental Problems

The idea for “market-based solutions” to environmental problems has been around for a long time. The basic idea is there are multiple ways to go about achieving pollution reduction outcomes.

In the classic “command and control regulation” paradigm, the government works out what must be done, and requires it. But in the market-based paradigm,, the government may simply determine what its ultimate objective is — say, a particular reduction in total pollution — and then facilitate a variety of approaches toward that goal.

One such market-based approach would be to allow groups of regulated units, facilities, or parties, to work out among themselves which will reduce their pollution, and then allow other units to pay for the opportunity to “take credit” for the pollution reductions of others. A government can ensure the goal is met by setting up clear and rigorous market oversight rules for these transactions. And that is really all there is to it.

For air pollution problems, market-based trading systems date back to the early 1970s. At that time, industries regulated under the then-new Clean Air Act wished to avoid having to marginally reduce pollution from every source in their facilities by instead substantially reducing, say, only one source, thereby achieving the same total reductions but at lower cost.

This is the so-called “bubble” approach to air pollution control, a reference to the idea of drawing a “bubble” around a whole facility and then calculating aggregate pollution rather than per-unit pollution. Instead of each smokestack at a plant reducing their pollution a little bit, one smokestack could entirely reduce its pollution, and all the other smokestacks in the bubble could “take credit” for a part of that reduction to meet their own obligations. The trading of credit wasn’t yet paid, but the important point is the exchange of credit.

After some initial experiments, the bubble approach expanded during the Carter and Reagan years. Beyond units at a single facility, industry and regulators experimented with allowing facilities to claim reductions at one plant by reducing emissions at another — a concept called “offsetting,” as one facility’s pollution is considered to be offset by reductions at the other. Indeed, Chevron v. NRDC, the famous 1984 administrative law decision setting out the recently defunct “Chevron doctrine,” arose out of an argument over the EPA’s ability to use of facility-level bubble concepts under one part of the Clean Air Act. Again, in these examples, an entity is “taking credit” for emissions at one location by reference to reductions accomplished elsewhere.

The first sector-wide application of a market regulatory system for air pollution was implemented under the Montreal Protocol to the Vienna Convention on Ozone Depleting Substances in the 1980s, where a cap on the total amount of certain pollutants was imposed, and regulated parties were required to hold allowances for any of their emissions — and to trade with each other for those allowances if they wished. This so-called “cap and trade” approach was also used much more broadly in the 1990s to control acid rain in the United States, following authorization of this approach by the 1990 Clean Air Act Amendments.

The trading systems created for these programs provided the formal infrastructure for buying and selling the right to take credit for pollution reductions. By abstracting the pollution problem to some total quantum of pollution in a region or even the whole world, and by providing for accurate inventory of the emissions contributing to the problem, it became possible to think about the process of pollution reduction as a project of reducing the total pollution output, and it became less important where, exactly, the reductions occurred. At least in theory. Plants that wanted to pollute more could pay plants that were able to pollute less for the credit to do so, and pollution reduction outcomes could be achieved while the invisible hand of the market ensured that this was accomplished with economic efficiency.

Applying the Idea to Greenhouse Gases

These models were on the minds of the UNFCCC negotiators in the mid-1990s. This work was complicated, however, by the fact that carbon is not simply an air pollutant emitted from smokestacks. While combustion-derived greenhouse gas emissions constitute the majority of the problem, release of carbon into the atmosphere, and removal of carbon from the atmosphere, is also a natural process. Carbon moves in enormous worldwide biogeochemical cycles between the atmosphere, oceans, land, and all life on earth, and therefore the “bubbles” used to conceptualize taking credit for contributing to greenhouse gas emissions reductions is a bit more complex as well.

Briefly, the best way to think about the carbon pollution problem is as human interference in biogeochemical flows. In the distant past, natural processes removed massive amounts of carbon from the atmosphere into plant life, and geological processes have eventually seen that fossil carbon buried deep underground. Under natural conditions, these huge carbon “reservoirs” would stay underground for millennia more. By digging up and burning them, human beings are moving massive amounts of fossil carbon into the atmospheric reservoir instead. Similarly, by converting land from various carbon-storing uses (say, to host jungles, forests, and grasslands) into agricultural fields or subdivisions, human beings are also moving carbon from the biotic reservoir into the atmospheric reservoir.

Thus, carbon markets must contemplate trading the ability to take credit not only for direct reductions in combustion emissions, but also for activities that slow deforestation and other land use changes, and that accelerate removal of carbon from the atmosphere once it is put there, which is just as good in theory as not putting it there in the first place.

That is, there are three distinct kinds of activities that carbon markets have to handle: direct emissions reduction, carbon reservoir protection, and atmospheric carbon removal. Furthermore, to be complete, these markets can also apply to other greenhouse gases. But otherwise, it’s always the same idea: allow one entity to pay to “take credit” for the carbon-related activities of another.

Many market-based systems have grown up to create traceable credits for these activities, including large “compliance” (government mandated) markets in the EU and California, and a worldwide “voluntary” carbon market subject to less formal rules but nonetheless used to purchase the right to claim emissions reductions. All of these systems require complex “methodologies” for calculating the emissions reduction outcomes of various types of “projects” or “activities” that can qualify. But the idea is always the same: entities who face some sort of greenhouse pollution reduction obligation or commitment may purchase credits from projects that produce such credits.

A massive amount of finance is theoretically available to construct the projects that produce and be paid for the pollution reduction credits that these activities may generate. But to be used, they require some sort of unified market rules to ensure the integrity of the emissions reductions claims being traded.

The Kyoto Protocol Clean Development Mechanism

The UNFCCC process has included efforts to create market systems for climate pollution since the 1997 Kyoto Protocol. The lessons from these efforts are currently being incorporated into the discussions about Paris Agreement Article 6.

Briefly, as discussed in a prior post, the Kyoto Protocol parties agreed to achieve “quantified emission limitations” by means of national “reduction commitments.”

As part of this, the Kyoto Protocol created three “mechanisms” for generating and trading emission reductions credits:

• Joint Implementation (JI) allowed nations to transfer “emissions reduction units” generated by “enhancing anthropogenic removals by sinks;”
• The Clean Development Mechanism (CDM) allowed industrialized nations to accrue “certified emissions reductions” through investment in “project activities” in developing nations. Importantly, CDM credits were required to represent “real, measurable, and long-term benefits related to the mitigation of climate change,” and “Reductions in emissions that are additional to any that would occur in the absence of the certified project activity,” a concept also known as “additionality;”
• Emissions Trading (ET) was the term for the Kyoto Protocol’s commitment to allow the parties to define “the relevant principles, modalities, rules and guidelines, in particular for verification, reporting and accountability for emissions trading,” in the future. The EU ETS, for example, was an effort to develop a Kyoto-compliant ET system.

Complex carbon crediting rules subsequently developed. Each activity and carbon management type required its own “methodologies” for inclusion in trading programs,, and among other things the most important activities subject to CDM, JI, and ET rules were:

• clean energy development activities;
• waste emissions reduction activities;
• activities to promote increases in terrestrial biological carbon stocks, like afforestation and reforestation;
• activities to protect existing terrestrial biological carbon stocks, meaning especially slowing deforestation.

A complete list of project activity categories is available here. The standard unit of measurement for each of these project types was set to 1 ton of CO2-equivalent (CO2e), i.e., one tradable credit constituted the equivalent of one ton of avoided CO2 emissions. These efforts also required detailed rules for determining baselines and assuring project additionality, and for validation, verification, and registration of various projects, The resulting credits were allowed to be applied to a portion of the industrialized nations’ reduction commitments undertaken under the Kyoto Protocol.

Paris Agreement Article 6

Article 6 is the Paris Agreement’s authorization for international carbon credit generation, offsetting, and trading. Per Article 6.1, the Paris Agreement parties recognized that “some Parties choose to pursue voluntary cooperation in the implementation of their nationally determined contributions to allow for higher ambition in their mitigation and adaptation actions and to promote sustainable development and environmental integrity.” The language hints at some of the discomfort that some parties feel regarding carbon credit trading mechanisms, but the Paris Agreement’s voluntary framework means that parties have agreed to allow those parties that wish to pursue these options to do so — provided they do so in a manner that maintains environmental integrity.

In fact, there are three separate mechanisms under the Paris Agreement that contemplate different kinds of market-based emissions reduction outcomes. These are:

• Article 6.2 states that parties may engage “on a voluntary basis in cooperative approaches that involve the use of internationally transferred mitigation outcomes towards nationally determined contributions.” Similar to the Kyoto Protocol’s JI mechanism, this imagines party-to-party cooperation where parties may take credit for mitigation actions undertaken in other countries.
• Article 6.4 creates a “mechanism to contribute to the mitigation of greenhouse gas emissions” with the aim of allowing “public and private entities” to invest in activities that “contribute to the reduction of emission levels in the host Party, which will benefit from mitigation activities resulting in emission reductions that can also be used by another Party to fulfil its nationally determined contribution.” Similar to the Kyoto Protocol’s CDM, this mechanism allows for third-party investment to create credits that the host party, or a third party, may use to demonstrate emissions reductions.
• Article 5.2, finally, explicitly contemplates a continuation of “results based payments” for “reducing emissions from deforestation and forest degradation,” and other land use management practices, i.e., a continuation of REDD+ payment systems. Reductions achieved through REDD+ programs could then be transferred under Article 6.4.

It should be noted that there is also a third program under Article 6, the so-called “non-market approaches” program of Article 6.8, which allows for coordination and cooperation without credit generation and trading.

In the text of the Paris Agreement, the basic unit of measurement is the “internationally transferred mitigation outcome,” or “ITMO,” defined elsewhere as a ton of CO2-equivalent emissions reduction, but it is also common to see references to the “Article 6, paragraph 4 emissions reduction” (A6.4 ER).

The parties agreed that concerns about the integrity of carbon credit market trading would have to be addressed, listing potential problems around “transparency, including in governance, and … robust accounting to ensure, inter alia, the avoidance of double counting.” (Art. 6.2). Therefore, like the Kyoto Protocol, all of these programs also required a robust set of new rules to ensure that the ITMOs generated and used under these programs would constitute real emissions reductions.

The “Article 6 rulebook” is the term for the numerous UNFCCC decisions that constitute the governance framework for Article 6 market mechanisms. The process of agreeing to these rules has been extremely technical and prolonged, and real progress was not made until COP26 in Glasgow in 2021. For example, after Glasgow there were fairly clear rules for how a company could invest in a renewable energy project in one country, generate ITMOs, and then be paid by a company in another country that could then use those ITMOs as credit for their own emissions reduction compliance obligations.

Further progress was made at COP28 in Sharm al-Sheik in 2022, where resolutions of issues included rules for avoiding double-counting, the use of remaining CDM-era credits, the use of market proceeds for adaptation funding in developing nations, were resolved. But significant questions were left unresolved, including especially how to define “removals” for purposes of these programs, which would apply to projects that directly or indirectly remove greenhouse gases from the atmosphere. The parties were unable to reach an agreement on this during the 2023 Conference of Parties in Dubai, and therefore the matter was left for Baku.

The COP29 Article 6.4 Deal

The big news out of Baku as COP29 began was that the parties had achieved consensus on completing the Paris Agreement Article 6 rulebook. The process by which this result was achieved, however, raised significant concerns.

As discussed above, the Paris Agreement parties have been debating for years what the final standards for Article 6 projects ought to look like. In August 2024, relying on ambiguities in its mandate, the Supervisory Body for the Article 6.4 mechanism (SBM) decided to simply adopt a set of new standards on its own, and request that at COP29 the parties simply accept this adoption as a fait accompli. This, the parties actually did, right at the outset of COP29, by agreeing to a decision simply “taking note” of the guidance documents.

This unusual process resulted in laudatory headlines about the first major success of COP29 being the completion of the Article 6 rulebook. But it was an entirely strategic move and runs quite contrary to the typical slow but more consensus-oriented approach of past COP negotiations. Consequently many parties objected. It appears, however, that the acceptance of these standards is a done deal, and they are discussed further below.

Now, rather than debating the standards, the parties are tasked with developing “further guidance” on the direction of the Article 6 program, which is immediately able to begin. These are under active debate at this time.

The two documents adopted by the Supervisory Body were SBM document A6.4-SBM014-A05, Application of the requirements of Chapter V.B (Methodologies) for the development and assessment of Article 6.4 mechanism methodologies, and SBM document A6.4-SBM014-A06, Requirements for activities involving removals under the Article 6.4 mechanism. The former

The SBM’s 15-page methodologies standard was intended to “provide the basis for claim and assessment of creditable emission reductions or removals, and whether activities satisfy additionality requirements, and all relevant [rules] and guidance from the SBM.” The document fleshes out broader statements included in Chapter V.B. of the initial decision on Article 6.4. The topics it covers include ensuring project additionality, appropriate setting of baselines, equitable sharing of project benefits, and calculation and avoidance of leakage. These are all fairly typical requirements for methodology documents, and are stated in fairly general terms that are unlikely to satisfy advocates very concerned about project credibility, but which will allow methodologies and projects to be developed for generation of credits.

The SBM’s 9-page removal standard included several important definitions, and additional rules. In addition to detailed monitoring and reporting requirements, the standard’s highlights include:

• “Removals” are defined as “the outcomes of processes by which greenhouse gases are removed from the atmosphere as a result of deliberate human activities and are either destroyed or durably stored through anthropogenic activities;”
• “Removals eligible for crediting” are calculated as the net change in greenhouse gas storage, minus the net change in emissions, minus leakage, minus crediting deficits, resulting from any given project. Leakage is the increase of greenhouse gases outside the project area as a result of the project, while credit deficits refer to negative credits assigned to past projects which have failed to produce intended results.
• “Reversals” are defined as negative emissions outcomes at a project site — say, for example, an afforestation project that burns down — and are subject to three sets of rules: “reversal risk assessment,” including a risk mitigation plan; “reversal related notifications and actions,” including various calculation updates and reports in the event of a reversal; and “remediation of reversals,” which includes the establishment of a “Reversal Risk Buffer Pool,” to which every project contributes, and from which lost carbon credits from reversals will be canceled without being used for credit.

With the creation of the these two standards, and their adoption by the parties, the Article 6.4 mechanism is now officially complete and ready to begin operating. The parties are currently also negotiating a lengthy decision authorizing Article 6.2 (state-to-state) cooperative programs. Thus, it appears that by the time COP29 is over, the Article 6 mechanism will, finally, be finished.

The above summary has only scratched the surface of the complex technical documents and methodologies underpinning Article 6.4 credit trading and Article 6 programs more broadly, and do not even begin to reveal the nuances of the positions of the parties that have been accommodated and rejected in the process of arriving at these outcomes. Furthermore, this is only the “end of the beginning,” as now, Article 6 implementation will begin, and lessons learned from that process will surely be integrated into future decisions.

What is clear, however, is that the finalization of the Article 6 rulebook occurred outside of typical COP negotiating processes, and that the parties ultimately agreed that this was necessary in order to finalize the program, even as many remain dissatisfied with the outcomes.

If you made it this far, you are better prepared to understand why Article 6 is important, what it does, and how its rules were finalized in Baku. My future posts will be shorter reviews of COP29 outcomes. More to come!

 

Reforming Water District Governance

When academics write about local government, they generally aren’t thinking about water districts. Cities get almost all the attention, counties rarely get to be more than a sideshow, special districts are even more obscure, and water districts are particularly overlooked. In a just-published article, I argue that this obscurity is a problem.

Water districts matter to many people’s lives (western water law uses a wide variety of terms to describe agencies that manage water, and I’m using “water district” as an umbrella term). We all need water, of course, and many people, particularly in the West, get their water from water districts. Most western farmers also get their water from water districts, and that means water districts manage much of the water that gets diverted from streams and pumped from aquifers. Districts help decide who gets that water, how much of it is used, and what it costs.

Because of that importance, you might expect water district governance to be handled like, say, city governance, with officials elected by popular vote and with governing units organized along at least moderately sensible geographic lines. The reality is quite different. In parts of the west—particularly but not only California—water-district boundaries make congressional-district gerrymandering look sensible and restrained. And many of those districts are governed more like corporations than government entities. Directors are elected—if elections are held at all—only by landowners, with each landowner voting in proportion to its area of landownership. In some western states, and for some types of water districts, only agricultural landowners can vote. Similarly, in even more water districts, a renter would be prohibited by state law from serving on the board of directors.

In some ways, the reach of these governing arrangements is growing. Ten years ago, California enacted the Sustainable Groundwater Management Act, a landmark statute designed to bring sustainability to California’s use of groundwater. The act envisions local-government entities playing a lead role in groundwater-use regulation, and many of the entities that have stepped in to play that role are run, partly or entirely, by water districts, many of which are landowner-governed.

The map below illustrates this situation. The dark blue areas are GSAs that are entirely controlled by entities that have popular voting and that do not have ownership requirements for board service. The bright yellow areas are GSAs that are entirely controlled by entities with landowner-voting requirements and board-service requirements, with the intermediate shades reflecting a mix of controlling entities (the light gray areas don’t have GSAs). One might expect the map to be entirely dark blue; a map of county or city governance would appear that way. But there’s a lot of yellow, particularly in the San Joaquin Valley. That’s where California’s biggest groundwater-management challenges are arising. It’s also where dozens of small communities, many of them inhabited largely by poor people of color, are at risk of having their wells run dry.

(Ben Witeck, UC Berkeley class of 2025, created these maps, using data that he and I gathered.)

These governing arrangements have been around for a long time, and decades ago, in Ball v. James, 451 U.S. 355 (1981), a closely divided Supreme Court blessed their use, at least in some circumstances. But for a governance arrangement to be constitutionally permissible does not make it mandatory. Western state legislators used statutes to create these governance arrangements, and they could use statutes to change them. In the article, I argue that they should. I identify a series of reforms that could bring more democratic governance arrangements to water districts—or, if water districts prefer to be governed more like corporations, would compel them to forego some of the many benefits that now come with their government-entity status. I also argue for a more active state role in district governance.

The article makes no claim that these reforms would transform western water management. With or without these changes, water districts would still be single-purpose entities whose missions are sometimes at odds with state policy goals, and some degree of conflict is inevitable. Similarly, regardless of the governance structures in which they operate, western water managers will face difficult challenges. Balancing competing uses amid often-growing demand and climate volatility is hard to do no matter how a government entity is constituted. But oversight and accountability do matter, I argue, and entities that have no need to be responsive to some of the people they serve, or whose lives their actions affect, are less likely to take those people’s needs into account. Reforms are worth pursuing.

- Dave Owen

Attending COP29 — The “Finance COP”

Adam D. Orford, Assistant Professor of Law at the University of Georgia School of Law, will be attending the 29th Conference of Parties to the United Nations Framework Convention on Climate Change as one of the American Bar Association’s observer delegation and will be sharing his thoughts on the experience here. The views expressed in this post are solely his and do not necessarily reflect the views or positions of the ABA or UGA.

Cross-posted on Medium.

Greetings! In this third post on COP29, I will explore the international climate finance commitments that form a priority negotiating item at COP29. If you missed them, check out my prior posts in this series, introducing the issues under discussion at COP29, and diving deep into the call for 1.5-aligned NDCs.

The post below introduces the party classifications that govern climate finance flows, reviews the finance commitments made by the parties in the original treaty and subsequent agreements, examines the struggle to achieve the current climate finance goals, introduces the controversy over “loss and damage” funding, and examines the treaty’s requirement for agreement to a “New Collective Quantified Goal” (NCQG) for climate finance at this year’s COP29. This latter requirement, particularly, has led to COP29 being referred to as the “Finance COP.”

The Stakes

Climate finance is one of the most politically controversial aspects of the entire international climate response framework. As the treaty parties contemplate significant public spending from industrialized nations, the United States in particular has had an extremely fraught relationship with these programs.

The Trump Administration’s 2020 withdrawal from the Paris Agreement included a cessation of its contributions to associated funding commitments, and a second Trump Administration would almost certainly include withdrawing once again from the Paris Agreement, and potentially even withdrawing from the UNFCCC itself, in large part in order to avoid U.S. participation in climate finance programs. The uncertainty over the future participation of the U.S. in these programs may or may not be resolved before or during COP29, but the outcome, if known, will very likely influence how the negotiations go. [Note: this post was first published before the 2024 presidential election.]

Even without the political uncertainty, however, any proposed major increase in the NCQG also raises the question: since the existing goals have barely been met, what good does it do to increase them now? Read on for the information necessary to follow this critical issue.

Critical Concept: Party Classification

Prior to discussing UNFCCC mechanisms to promote climate finance, it is necessary to break down the treaty’s complex categorization of parties. Finance obligations and eligibilities tend to be classified by party type, and therefore a clear understanding of party classification greatly simplifies any attempt to understand the treaty’s terms.

Party Classification by Level of Economic Development

National economic development level is the most important country classification used in the UNFCCC system. From high development level to low, the terms used in the UNFCCC are:

• High: “developed country Parties,” “developed Parties,” or “developed countries” (e.g., Art. 4.2, 4.3);
• Medium-High: parties “undergoing the process of transition to a market economy” (Art. 4.6, Annex I);
• Medium-Low: “developing country Parties” or “developing countries“ (e.g., Art. 4.3, 4.4, 5(a)); and
• Low: least developed countries (LDCs) (Art. 4.9, 12.5).

Perhaps surprisingly, however, despite using these terms repeatedly, neither the UNFCCC nor any subsequent protocol or agreement has ever defined any of these terms, leaving it to some degree to the parties themselves to self-identify when they engage with UNFCCC mechanisms.

That said, there is wide agreement about what these classifications mean, because each of the UNFCCC classifications has a clear analogue in other classification systems developed by other organs of the United Nations’ economic development mission. For example, the UNFCCC’s classifications mirror those used by the UN Department of Economic and Social Affairs World Economic Situation and Prospects (WESP) reports, which currently classify countries as follows:

• High: “Developed Economies,” including the United States and Canada, Australia and New Zealand, Japan, South Korea, and much of Europe. These countries tend to have the world’s highest Gross Domestic Product (GDP) and Human Development Index (HDI) scores.
• Medium-High: “Economies in Transition” (EITs), including numerous countries in southeastern Europe as well as most of the nations of the former Soviet Union, including Russia and — host of COP29 — Azerbaijan. These countries are still considered “developed” for purposes of analysis, but on the whole have lower GDP and HDI scores and less fully developed domestic market economies. Notwithstanding the name, many of these countries are not actively moving toward westernized free market economies.
• Medium-Low: “Developing Economies,” including many of the countries in Africa, Asia (including China), Central and South America, and the Pacific Islands. These countries tend to have lower GDP and HDI scores, although many have thriving domestic economies and major industrial bases and tend to be improving or stable in other measurements of wellbeing.
• Low: “Least Developed Countries” (LDCs), an official UN designation currently including much of sub-Saharan Africa, several nations in southeast Asia, Afghanistan, and several Pacific Island states. These countries are characterized by the world’s lowest GDP and HDI scores, often suffering deep poverty and institutional dysfunction, amd severe vulnerability to climate change, and are often not improving or actively declining in wellbeing metrics.

These terms are well understood to be problematic overgeneralizations, but are nonetheless widely used internationally. In practice, the UNFCCC development classifications are best understood as generally coextensive with these other, similar UN development classification schemes. They matter for climate finance because the commitments in the treaty tend to be made by more developed nations, for the benefit of less developed nations.

Party Classification by UNFCCC Annex

Although the 1992 UNFCCC regularly describes country parties by development level, it also formally classified parties according to two “Annexes,” which are lists of country parties to which certain treaty responsibilities are assigned. These are:

• Annex I Parties. These UNFCCC parties were the developed countries and economies in transition as of 1992. Confusingly, this is not equivalent to the highest level of economic development.
• Annex II Parties. These were the wealthiest and most developed of the Annex I parties as of 1992. Technically, these were the nations that were part of the OECD at the time . However, although the OECD has expanded since 1992, these nations were never added to UNFCCC Annex II. All Annex II parties are also Annex I parties
• Non-Annex Parties. These are all other parties not included in Annex I or II, and include all the developing countries and LDCs.

Confusingly, the UNFCCC text sometimes mixes the Annex and development level classification systems, for example by imposing finance obligations on Annex II nations for the benefit of developed country parties. Thus, it is necessary to keep both classifications in mind.

Party Classification under the Kyoto Protocol

Although now less widely used, the Kyoto Protocol built on the above classifications by adding a second Annex system to distribute party responsibility for emissions reductions. The Kyoto Protocol “Annex B” parties were, essentially, the developed countries, including the economies in transition, at the time the Kyoto Protocol was signed. The EIT designation was used to assign lower quantified emissions reduction commitments.

Again confusingly, Kyoto Protocol Annex B included the United States. However, although the U.S. delegation signed the Kyoto Protocol, the U.S. Senate never never ratified it, and therefore Kyoto Protocol Annex B set out U.S. emissions reductions commitments that the U.S. never actually agreed to. Furthermore, Canada withdrew from the Kyoto Protocol in 2011, and numerous countries participated in the first Kyoto Protocol commitment period (2008–2012), but not the second (2013–2020).

For purposes of climate finance, these classifications are again relevant as programs developed under the Kyoto Protocol involved finance flows from Annex B nations to developing nations.

Party Classification under the Paris Agreement

Finally, although the Paris Agreement did not alter any of the above classifications, it innovated by abandoning the Annex framework in favor of mostly universal requirements. That is, most of the Paris Agreement’s commitments are applicable to all participating parties, subject only to the overarching principles of “equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances” (Art. 2.2). In practice, this means that countries are often able to self-identify what they commit to accomplish rather than attempting to agree in advance to be added to Annexes with specified responsibilities.

However, with respect to climate finance, the Paris Agreement also retains the distinctions between developed and developing country parties, and assigns obligations based on those distinctions. In particular, it creates special finance obligations to developing countries, LDCs, and — for the first time under the UNFCCC — to Small Island Developing States, or SIDS, another classification used elsewhere by the UN. — from developed country parties.

In summary, then, the UNFCCC and its subsidiary protocols have used multiple party classification systems that all remain relevant for understanding climate finance. Today, the legacy Annex classifications still remain in force, but many finance commitments speak in terms of development level, and the parties have largely shifted to the more loosely defined but adaptable economic development classification system for other commitments as well.

Finance Commitments Under the UNFCCC Agreements

With the party classifications in mind, it is much easier to trace the treaty language related to climate finance. For the most part, finance commitments under the UNFCCC agreements flow from the most developed countries to developing countries. But as the UNFCCC system developed, a series of special-purpose funds were created to more clearly manage project eligibility and finance amounts. Over time, this has developed into the present finance system.

The 1992 UNFCCC Finance Commitments

The first foray into climate finance came in 1992 with the UNFCCC parties’ agreement to implement a “financial mechanism” to assist developing countries with various costs related to UNFCCC compliance.

In the UNFCCC, the “developed country Parties” made three separate finance commitments for the benefit of the “developing country Parties,” as follows:

• National Inventory and National Climate Plan Development Aid: First, the developed country parties agreed to provide funding “to meet the agreed full costs incurred by developing country Parties” to create national greenhouse gas inventories and national climate action plans (Art. 4.3, 12.1). This commitment is distinct because it covers the “full agreed cost” rather than full agreed incremental costs, as in the next item.
• Capacity Building Cost Share: Second, the developed country parties agreed to participate in a “financial mechanism” (in practice, a UN-run grant program) by which the developed countries would provide “such financial resources, including for the transfer of technology, needed by the developing country Parties to meet the agreed full incremental costs of” covered activities, including, among other things, sustainable land management programs, national adaptation and coastal zone management planning activities, scientific cooperation, and public education programs (Arts. 4.3, 4.1(d-i), 11). The methodology for determining “incremental” costs was left to be determined later.
• Adaptation Cost Assistance: Third, the developed country Parties agreed to “assist the developing country Parties that are particularly vulnerable to the adverse effects of climate change in meeting costs of adaptation to those adverse effects.” (Art. 4.4). Notably, this agreement to “assist” with adaptation costs is much less well defined and robust than the other two commitments.

A close examination of the language reveals that each of these commitments included important caveats. Developed country parties were responsible only for “agreed” costs, would provide most funding only through a “financial mechanism” to be developed later, and would “assist” — in unquantified fashion — with climate adaptation costs. These caveats reflected the hesitancy of developed country parties to incur potentially unlimited financial commitments on behalf of less-developed countries, a hesitancy that persists to this day.

The 1992 UNFCCC “Financial Mechanism” and Special Funds

The next step was to develop the “financial mechanism” specified under UNFCCC Article 11 that would govern funding allocation under cost share commitment discussed above. This mechanism would eventually grow to encompass numerous other UNFCCC climate finance programs.

The UNFCCC treaty itself designated the UN’s Global Environment Facility (GEF) as the initial, interim manager of the Article 11 financial mechanism (Art. 21.3). The UN had created the GEF in 1991 as a pilot program, and made it permanent at the 1992 Rio Earth Summit, after which it was quickly designated as the primary financing organization for commitments made under both the 1992 UNFCCC and the 1992 UN Convention on Biological Diversity.

In 1995, the UNFCCC parties agreed to an initial set of funding priorities and eligibility criteria for the financial mechanism. The parties were particularly concerned with providing funding for capacity building: “In the initial period, emphasis should be placed on enabling activities undertaken by developing country Parties, such as planning and endogenous capacity-building, including institutional strengthening, training, research and education, that will facilitate implementation, in accordance with the Convention, of effective response measures.” With respect to adaptation, the parties emphasized financial support for national vulnerability studies, adaptation plan development and, again, capacity building.

In 2001, the parties reiterated these general priorities in more detail. But by then, it had also become clear that funding to the GEF was insufficient to meet need. The parties agreed that the Annex II Parties, and “the other Parties included in Annex I that are in a position to do so,” would “provide funding for developing country Parties” through several additional “channels.” Those were:

• GEF Replenishment: First, the parties committed to increasing the “replenishment” of the GEF, meaning adding funds to the GEF to continue to cover the activities discussed above. The GEF replenishment process is discussed further below.
• GEF Special Fund Creation. Second, the parties agreed to create three new special funds. also operated by the GEF, also funded by the Annex II and capable Annex I parties, but with independent eligibility criteria:
• Special Climate Fund. This fund was intended to finance “activities, programmes, and measures … that [are] complementary” to existing funds, with special emphasis on adaptation, transfer of technologies, “Energy, transport, industry, agriculture, forestry and waste management,” and diversification of economies dependent on the production, processing, and export of fossil fuels.
• Adaptation Fund. This fund was created specifically “to finance concrete adaptation projects and programmes in developing country Parties” to the Kyoto Protocol. Its financing, however, came primarily from a percentage of funds raised by Kyoto Protocol compliance mechanisms, and would continue to receive funds under equivalent market-based programs developed for the Paris Agreement.
• LDC Fund. This fund was intended to provide finance to “support a work programme for the least developed countries,” including but not limited to for creating “national adaptation programmes of action.”
• CBIT Fund. A fourth special fund — the Capacity-Building Initiative Trust Fund — was created in 2016 following the Paris Agreement, in order to provide financial support for the Paris Agreement’s expanded transparency requirements.

As is clear from this review, the eligibility criteria for the various UNFCCC climate funds are complex and, particularly for adaptation activities, somewhat overlapping. The management and operation of the GEF itself has required a great deal of attention, and it is clear that no party has ever been entirely satisfied with the results.

Nonetheless, the GEF and its associated funds have financed more than 2000 projects under the UNFCCC commitments.

The Kyoto Protocol Clean Development Mechanism and REDD+ Funding

All of the original UNFCCC commitments contemplated direct public finance commitments from developed nations. The 1997 Kyoto Protocol, however, introduced a significant alternative funding format in the form of market-based financing incentives under the Clean Development Mechanism.

In summary, the CDM programs allowed developing countries to receive finance flows for various land management activities that tended to reduce carbon emissions resulting from land use, land use change, and forestry (LULUCF) activities, as a method for meeting their national emissions reduction responsibilities under the Kyoto Protocol.

In addition, a separate program — “Reducing Emissions through Deforestation, Forest Degradation, and other forest-related activities” (REDD+) — provided direct finance for forest and land preservation, which would not typically be credited as emissions reduction. Although controversial and of questionable efficacy, these programs had received approximately $6.5 billion in voluntary national contributions through 2019.

For purposes of climate finance, the importance of these programs is in their attempt to expand finance targets toward carbon sink protection, and the use of market-based systems to generate climate finance revenues. While these programs have faced significant doubt about their effectiveness, they are an important additional aspect of the climate finance picture to the degree they have influenced both the targets and mechanisms of future public climate finance commitments.

Although all of the above systems still exist and actively fund climate-related activities in developing countries, the total funding amounts were widely understood to be far below what was really needed, particularly accounting for rising adaptation costs as climate change impacts intensify. This led to discussions for a major expansion of these programs.

The $100 Billion Per Year Commitment

By 2009, UNFCCC funding systems existed for treaty compliance, capacity building, adaptation planning, and forest protection. But what this did not include was any substantial assistance for bigger-ticket items like funds for direct mitigation, meaning transformation and deep decarbonization of the industrial and energy systems that contribute to climate change. The famous “$100 billion per year” climate finance commitment was intended to begin addressing this huge finance gap.

By 2009’s COP17 at Copenhagen, UNFCCC climate finance expansion had become a major point of discussion. However, the conference was largely derailed by the collapse of talks to extend the Kyoto Protocol, and there was no official party decision on the subject at that time. Instead, a smaller group of parties reached a side agreement that included the finance commitment that would form the basis of future UNFCCC climate finance action.

The Copenhagen Accord was initially proposed as an agreement for the entire COP, but ultimately only collected support from a smaller group of parties, including, importantly, the United States and China. The accord included a variety of new finance commitments, although since they were not adopted by the full UNFCCC plenary they were more in the forms of proposals than firm agreements. In the Copenhagen Accords, the developed country parties proposed:

• Expanded Direct Funding Commitments. After a $30 billion annual commitment between 2010 and 2012, the developed country parties proposed: “In the context of meaningful mitigation actions and transparency on implementation … a goal of mobilizing jointly USD 100 billion dollars a year by 2020 to address the needs of developing countries.”
• Expanded Adaptation Finance. The developed country parties also proposed to “provide adequate, predictable and sustainable financial resources, technology and capacity-building to support the implementation of adaptation action in developing countries.”
• Expanded REDD+ Mechanisms. They also called for “the immediate establishment of a mechanism including REDD-plus, to enable the mobilization of financial resources from developed countries.”
• New Funding Organization. Rather than keep everything within the GEF, the developed country parties proposed running the new programs through a new “Green Climate Fund” to “support projects, programme, policies and other activities in developing countries related to mitigation including REDD-plus, adaptation, capacity building, technology development and transfer.”

Notably, the Copenhagen Accord parties stated that the new funding would “come from a wide variety of sources, public and private, bilateral and multilateral, including alternative sources of finance.” In other words, they contemplated including some mix of mobilized private finance, market-driven finance, multilateral development bank finance, and voluntary national public funding contribution, to meet their goals.

Some of the basics of this agreement were formally adopted by the UNFCCC parties over the next several years, but in a manner that moved away from the more market-oriented approach of the Copenhagen Accords. At COP18 in Cancun and COP19 in Durban, the parties formally recognized the commitment of the developed country parties to provide $100 billion per year in climate finance, and designated the Green Climate Fund as a new organization for managing the finance flows under this new commitment.

At COP20 in Warsaw, the parties completed a two-year work program on long-term finance that resulted in new requirements that developed country parties submit regular reports on how they intended to achieve their new goal. By COP21 in Paris in 2015, however, the parties proved hesitant to include market-based finance commitments in the climate finance, and repeatedly emphasized the need for direct public finance commitments from developed countries.

The Paris Agreement itself therefore included both a climate finance mechanism (Article 9) and a market-based credit trading program (Article 6) (to be examined in a future post). Paris Agreement Article 9 itself did not include the $100 billion per year goal, but it was recognized repeatedly in Decision 1/CP.21, adopted at the same time. There, the parties “Urge[d] developed country Parties to fully deliver on the USD 100 billion per year goal urgently and through 2025, noting the significant role of public funds,” and “Note[d] with deep regret” that the goal had not yet been met. The agreement also included a variety of reporting and discussion mechanisms intended to to push the developed country parties to explain to the world exactly how they intended to achieve their goal.

Following COP21, developed country parties began delivering plans for achieving their goal, and a small industry of finance commitment analysis arose to track these plans. In a 2016 “roadmap to $100 billion” the parties began emphasizing expanded public and multilateral development bank finance commitments, as well as increasing private finance mobilization. A 2021 “climate finance delivery plan” continued these themes. The current status of these efforts is reviewed below.

The New Loss and Damage Fund

The final UNFCCC financial commitment involves the recent expansion of funding to cover costs associated with responding to the harms of climate change, rather than the costs of adapting to avoid them. The concept of “loss and damage” grew out of developing country parties’ concerns that they are suffering active harms from climate change that they are, in large part, not responsible for causing. After agreeing to two years of discussions in 2013, the UNFCCC parties once developed consensus via the Paris Agreement, which, for the first time, included a direct commitment related to loss and damage.

In the Paris Agreement Article 9, the parties “recognize[d] the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change,.” and agreed to continue working to “ enhance understanding, action and support” for loss and damage going forward. Notably, in an accompanying decision, the parties also agreed that loss and damage commitments did “not involve or provide a basis for any liability or compensation,” i.e., was not an admission of fault for climate change by the developed country parties.

Talks on this topic proceeded very slowly after 2015, with the next breakthrough not occurring until 2022 at COP27 in Sharm El-Sheikh, Egypt. There, the parties finally agreed to establish a new fund designed to “assist… in responding to loss and damage” in developing countries. Details of the new Loss and Damage were finalized last year at COP28 in Dubai in late 2023.

Thus, in summary, the years between 2009 and 2024 have seen a slow but substantial expansion of climate finance commitments under the UNFCCC framework, beyond the initial GEF-managed funds intended primarily for treaty compliance assistance and adaptation planning, through experiments with market-based mechanisms to support conservation activities under the Kyoto Protocol, towards a much broader commitment to expand funding amounts and assist with developing country mitigation efforts under the Paris Agreement, to, most recently, a new commitment for loss and damage in 2022. The collection of these numerous mechanisms, which all still exist, constitute the finance commitments under the UNFCCC system.

Status of Funding under Existing Commitments

The UNFCCC finance commitments are closely monitored by numerous outside parties, as well as by the UNFCCC’s Standing Committee on Finance. Reports from this later group attempt to track aggregations in finance flows through all mechanisms toward various funding goals.

Since its inception, the GEF has received approximately $33 billion dollars in funding for its various managed programs. The most recent replenishment round, covering years 2022–2026, included a record $5 billion in voluntary public funding commitments from 29 countries, including a $600 million contribution from the United States. Obviously, this is a small fraction of the total goal.

For the new loss and damage fund, so far developed country voluntary contributions to the fund have totaled about $700 million, almost half of which comes from $100 million contributions from Germany, Italy, and the United Arab Emirates (the host of COP28). The United States has contributed $17.5 million. Again, this is far below what is needed.

Regarding developed country finance mobilization toward the $100 billion annual goal, the developed country parties claimed to have achieved the goal for the first time in 2022, although the claim is contested and in the years since that number has likely fallen.

There has never been a universally agreed-upon definition of climate finance, and therefore the parties currently rely on OECD methodologies that — coming as they do from the developed country parties themselves — are fairly generous. According to those reviews, which count funding from a very wide variety of sources, the parties’ commitments show steady upward trends, particularly through direct financial commitments to funds and through multilateral development banks.

But these figures also include funding through the export credit system, including export credit financing for qualifying project development in developing countries, and efforts to calculate and attribute private financed “mobilized” by developed countries, meaning private development activity that occurred with the assistance of public support programs. These are particularly prevalent in the energy sector.

It should be noted that there have been serious criticisms raised against the OECD’s analysis. Oxfam, particularly, has argued that “generous accounting practices have allowed [developed countries] to overstate the level of support they have actually provided. Moreover, much of the finance has been provided as loans, which means that it risks increasing the debt burden of the countries it is supposed to help.” Last month, Oxfam released a new report claiming that over 40% of the climate finance funds claimed to be delivered by the World Bank are, in fact, unaccounted for due to “poor record-keeping practices.”

These kinds of independent assessments indicate that it is always necessary to maintain a healthy skepticism of claims regarding funding amounts and to dig deeply into the methodologies used to calculate climate finance aggregation claims. Addressing these concerns will be part of the negotiations at COP29.

COP29: the New Collective Quantified Goal (NCQG) for Climate Finance

Although the existing $100 billion per year climate finance goal has barely been met, if at all, this annual finance commitment was also always intended to be temporary. In Decision 1/CP.21, paragraph 53, issued in 2015 together with the Paris Agreement, the parties also agreed to “set a new collective quantified goal from a floor of USD 100 billion per year, taking into account the needs and priorities of developing countries.” The New Collective Quantified Goal (NCQG), is a major negotiating item of COP29 this year in Baku. Widely varying estimates place the need for such a goal at up to $500 billion to $1 trillion per year.

With little progress made prior to 2021, in Decision 9/CMA.3 at COP26, the parties agreed to “establish an ad hoc work programme for 2022–2024,” including quarterly “technical expert dialogues,” and annual “high-level ministerial dialogues” on the NCQG. The parties agreed that the ad hoc work programme would end in 2024, setting COP29 as the deadline for finalizing the NCQG (Dec. 9/CMA.3).

The resulting process has produced a series of reports on the outcomes of the technical expert and high-level ministerial dialogues which are guardedly optimistic but largely non-substantive. The most recent high-level ministerial dialogue did, however, consider an “input paper” that spoke in terms of setting a goal of more than a trillion dollars in annual finance mobilization by 2035. The paper in reality consolidates the proposals submitted for consideration, rather than the amounts agreed to in principle by developed country parties, but it is useful as an anchor point for what will likely be under discussion at COP29.

Other elements of the negotiations are also coming into view after the most recent high-level ministerial dialogue. Among these, many of the options contemplate a “layered” commitment approach whereby a specific quantum of public funding would be specified, together with more details regarding both the sources and uses of the funds, and the definitions used to track finance and maintain accountability and transparency. Developed countries have also called for expanding who is contributing to these funds as part of the calculus.

Therefore, a successful “strong” NCQG outcome will likely look something like a firm commitment from developed countries to a particular, very large (e.g., $500 billion to $1 trillion per year) annual finance goal, including a clear commitment to a large portion of that goal coming from direct public finance, according to clear accounting principles that minimize the attribution of non-grant-equivalent funding toward meeting the goal. A successful but “weak” NCQG outcome would lack clarity particularly on the public finance and definitions elements, and a “failure” would be something like a maintenance or very small increase of the current $100 billion per year commitment. The NCQG outcome will play a large part in public perception of whether COP29, as a whole, is successful.

Finally, developing country parties remain concerned about ongoing contributions to loss and damage funding, with many calling for increased commitments to also be clearly specified in the NCQG. According to one analysis, however, it appears likely that this will not happen, potentially leaving the recent effort to expand the Loss and Damage Fund unmet in a time of worsening climate crises worldwide. As negotiations proceed, the treatment of loss and damage, either together with or separate from the NCQG, will be another critical outcome to watch at COP29.

If you have made it this far, you are now much better prepared to follow the negotiations around climate finance that have led to COP29 being called the “Finance COP.” The world will find out whether COP29 lives up to that name in Baku, beginning November 11.

In the next post, I will dig into another finance element, even more difficult than the NCQG: the Paris Agreement’s Article 6 carbon credit trading system. Although this is not as prominent a priority at COP29, there is still much work to be done on developing the technical rules that will allow Article 6 activities — meaning international carbon credit trading — to proceed.

 

Attending COP29 — NDCs and National Ambition

Adam D. Orford, Assistant Professor of Law at the University of Georgia School of Law, will be attending the 29th Conference of Parties to the United Nations Framework Convention on Climate Change as one of the American Bar Association’s observer delegation and will be sharing his thoughts on the experience here. The views expressed in this post are solely his and do not necessarily reflect the views or positions of the ABA or UGA.

Cross-posted on Medium.

Greetings! In this post, I will be taking a deeper dive into the system of “nationally determined contributions” (NDCs) under the Paris Agreement framework. What are NDCs? How are they related to climate science? How did we arrive at this system? And what is a 1.5-aligned NDC? These and more questions are answered below.

This post is likely to be the longest one I write for this project, as it takes some time to build up the science and treaty framework background, and to tie in the many activities related to NDC assessment and review that will inform this year’s discussion. But I hope it is useful and informative!

For background on this project, see the first post in this series here, introducing the UNFCCC system and the issues to be discussed at COP29.

COP29 Priority: “1.5-aligned NDCs”

“Nationally determined contributions” are the commitments that Paris Agreement country parties make regarding the voluntary actions they are taking — and especially the laws they are passing — to respond to climate change and reduce their national greenhouse gas emissions. Parties’ NDCs are required to be updated every five years, and the formal deadline for the third NDC submission is coming in February 2025.

Although not technically part of the treaty negotiations, the public promotion of upcoming NDC updates will be an important part of COP29. This year’s COP Presidency has indicated that it will encourage the parties’ presentation of “1.5-aligned” NDCs at the conference. Increasing NDC ambition over time is a key goal of the Paris Agreement, and the details of any new NDCs disclosed at COP29 will therefore be closely watched.

This post digs further into the NDC process, providing necessary background on the basics of climate science and the UNFCCC’s related temperature goals, describing the origin and details of the NDC system for reducing national emissions, discussing the formal assessment of submitted NDCs, summarizing the results of the first “global stocktake” process informing the next round of NDCs, and examining the outlook for increased national ambition in NDCs to be announced at COP29. It’s a lot of ground to cover so let’s dive in.

Climate Science Basics

In the spirit of “climate-informed lawyering” — a major goal of the ABA’s participation at the climate COPs — this section provides a brief overview of the climate science that informs the NDC development process. Two concepts are key: 1) global average surface temperature (GAST), and 2) atmospheric greenhouse gas (GHG) concentrations. These concepts combine to inform the Paris Agreement’s warming goals, and the incremental increase of NDC ambition as a tool to achieve those goals.

“Global average surface temperature” is not defined in UNFCCC documents, but is commonly used in scientific documents upon which global climate response is built, and is a key concept in climate studies. The UNFCCC is concerned with protecting the “climate system” and responding to “climate change, and changes in the global climate system are directly traceable to changes in global average surface temperature.

Briefly, GAST refers to an aggregate measurement of earth’s surface temperatures compiled from reliable sources, including especially thermometers in weather stations on land and weather buoys and ships on the oceans, and satellites designed to detect earth’s low atmospheric temperature from space. Given the incomplete and inconsistent coverage of surface monitoring station measurements, and challenges determining accurate temperatures using satellite data, the process of developing an “average” global temperature from these measurements necessarily involves a great deal of extrapolation. But this should not be confused with uncertainty regarding the underlying data and their meaning. GAST is an accurate and reliable metric for describing global warming.

GAST is usually expressed by reference to a “baseline,” typically set at pre-industrial levels in the mid-1800s, requiring development of historical temperature data using other data sources that pose further technical challenges but are also highly reliable. GAST has been consistently increasing for many years, and was calculated to be +1.48 degrees Celsius (°C) over pre-industrial baselines in 2023, the warmest year on record.

These surface temperature increases influence ocean and atmospheric patterns that influence the Earth’s weather — and changes in these weather patterns are often what people think of when they think about “climate change.” That is, GAST increase is the cause-in-fact of climate change. Activities that increase GAST are proximate causes of climate change.

GAST increase is caused by increasing atmospheric greenhouse gas concentrations. First theorized in the 1850s and confirmed repeatedly through observation since, the “greenhouse effect” is the result of a tendency of certain gases in Earth’s atmosphere to absorb and reemit infrared radiation but not visible light. Sunlight, including visible light, therefore is able to reach earth’s surface unimpeded, but is then absorbed by the surface, where it is then reemitted as infrared radiation, and thus absorbed and sent toward the surface again by the greenhouse gases. As John Tyndall explained in 1861: “Thus the atmosphere admits the entrance of the solar heat, but checks its exit, and the result is a tendency to accumulate heat at the surface of the planet.” For humanity, this is actually a very good thing: without greenhouse gases in the atmosphere, the Earth’s surface temperature would be much colder, closer to that of the moon. But the concentration of those gases influences the intensity of the greenhouse effect.

The most important greenhouse gas is carbon dioxide (CO2), and atmospheric CO2 concentrations are closely tracked by monitoring stations around the world and extrapolated historically from numerous sources. Currently, global CO2 concentrations are approximately 420 parts per million (ppm) — by far the highest in human history, and likely the highest in the last million years. By way of comparison, during the warm period during which human civilization developed and to which all human societies are currently best adapted, atmospheric CO2 concentrations were approximately 280 ppm. Although the difference between 420 and 280 ppm might not seem like much, it is enough to cause problems.

It is unequivocal that human beings have caused — and are continuing to cause — the current ongoing rise in atmospheric CO2 concentrations. By far the most important contributor to the phenomenon is humanity’s widespread combustion of fossil fuels — a relatively straightforward chemical reaction that produces about three times as much CO2, by mass, as the amount of fuel burned, whether that fuel be wood, natural gas, coal, petroleum, petroleum products like gasoline, or anything else. The enormous global increase in fossil fuel extraction and combustion in the 20th Century has overwhelmed the earth’s ability to naturally absorb CO2 out of the atmosphere. This is the primary cause of ongoing observed GAST increase and therefore climate change.

The UNFCCC system is built around “mitigation” of national greenhouse gas emissions, meaning the purposeful reduction of human activities that release greenhouse gases into the atmosphere, raising their concentrations. However, to understand the NDC system, it is also necessary to understand the UNFCCC’s and Paris Agreement’s warming and emissions goals.

Temperature and Emissions Goals Under the UNFCCC

With climate change driven by rising global temperatures, and those temperatures driven by human emission of greenhouse gases, global climate response must contend with two preliminary questions: what is an acceptable amount of global warming, and what are the total greenhouse gas emissions quantities associated with maintaining atmospheric greenhouse gas concentrations consistent with that goal?

The UNFCCC framework answers the first question by setting a warming goal for the year 2100, and previously answered the second question by setting science-based national emissions targets. The Paris Agreement moved away from binding national targets to today’s system of voluntary “nationally determined contributions” to global emissions reductions. But the understanding and assessment of the voluntary NDC targets is still bound to the parties’ goals under the UNFCCC treaty.

Perhaps surprisingly, the 1992 UNFCCC treaty itself did not include specific goals for global average surface temperature, atmospheric greenhouse gas concentrations, or worldwide greenhouse gas emissions. Rather, its “ultimate objective” was the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system” (Art. 2). The rest was left to be worked out later.

The UNFCCC also did not define what would constitute “dangerous” human interference with the climate, or the level of atmospheric greenhouse gas concentrations that would be necessary to avoid such danger. Rather, the parties agreed in principle to “[f]ormulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change by addressing anthropogenic emissions” (Art. 4.1(b)). Furthermore, a certain subset of the UNFCCC parties — the “developed country” parties, often referred to as “Annex I” parties in the treaty — made one further commitment: to “adopt policies and take corresponding measures on the mitigation of climate change, by limiting [their] anthropogenic emissions of greenhouse gases” (id.). Again, the details remained to be negotiated.

While the parties debated how to implement these commitments, the rising accuracy of climate predictions, combined with rising efforts to attempt to quantify the negative impacts of climate change, specifically in monetary terms, led to a rising consensus that about +2°C above pre-industrial baselines was what was needed to be maintained to prevent “dangerous” climate change under the UNFCCC. The +2°C goal was first proposed by William Nordhaus, an economist, in the 1970s, and was extremely influential even as it was not based on rigorous scientific analysis, which was not possible at the time. Over time, it became widely adopted in policy circles as a reasonable and achievable target, but was not formally included in any UNFCCC document until 2010.

Even by then, however, there was concern that harm from climate change of +2°C would be unacceptably high, and many advocates pushed for a warming target of +1.5°C as a more aggressive but also more protective alternative target. The strongest advocates for this lower target were nations facing an existential threat from climate change: the small island states, which face total loss of their low-lying island land territories if sea levels rise too far as a result of global warming.

These advocates finally achieved their goals under the 2015 Paris Agreement, which contained, for the first time, a commitment from the treaty parties to “Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels” (Art. 2.1(a)). This is the current consensus expression of the international community’s ultimate climate goal.

With a warming goal in hand, it is relatively straightforward (though by no means easy) to determine the associated global emissions quantities associated with that level of warming. The warming target implies a specific long-term atmospheric greenhouse gas concentration, which in turn implies a specific set of goals for global, and therefore national, greenhouse gas emissions over time. This allows the parties to translate a temperature goal into national action plans.

Although it is well hidden, the Paris Agreement also includes a global greenhouse gas emissions goal: “1. In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century” (Art. 4.1).

What this language means is that the parties to the Paris Agreement have set as their goal the achievement of “net zero” greenhouse gas emissions by 2050, whereby the total amount of greenhouse gases emitted into the atmosphere each year is equivalent to the total amount removed from the atmosphere by natural earth system processes. This requires gradual reductions to achieve, and NDCs flow from this goal.

Arriving at the NDC System

National emissions reduction systems have formed the operative heart of the UNFCCC system since shortly after its conception. In two subsequent regimes, the focus on global climate response has been on stabilizing, and eventually reducing, nationally inventoried emissions down to levels that, in aggregate, will reduce global atmospheric concentrations of greenhouse gases and thus Earth’s warming to agreed-upon levels. This requires some consensus on total emissions corresponding to future atmospheric concentrations, some method for dividing up the total emissions “budget” between the national parties to the UNFCCC, and some agreement as to how each nation should approach reducing its emissions from present totals to target levels.

The first such system was the Kyoto Protocol, finalized in 1997. That agreement — a protocol to the UNFCCC requiring independent ratification by the parties to be binding — set an initial goal of global reduction of emissions to “at least 5 per cent below 1990 levels” by 2012, and requiring “demonstrable progress” toward that goal by 2005 (Arts. 3.1, 3.2). The participating parties then negotiated national “quantified emission limitation and reduction commitments,” expressed as percentages of each nation’s 1990 emissions, accounting for various national circumstances, and agreed to achieve them (Annex B). However, only the so-called UNFCCC “Annex I” parties, meaning primarily industrialized western and post-soviet countries, including the United States, EU nations, and Russia, but not including, among others, India or China, were required to make these commitments.

The Kyoto Protocol’s failure to impose binding quantified emission reduction limitations and commitments on China, particularly, resulted in the United States’ refusal to participate in the Kyoto Protocol regime. Although the U.S. delegation to COP3 signed the Kyoto Protocol, the United States Senate quickly indicated that it would never entertain ratifying a treaty that bound the United States to commitments without also binding China. The so-called Byrd-Hagel Resolution, adopted by a 98–0 vote of the U.S. Senate, declared that the United States would not agree to such a commitment “unless the protocol … also mandates new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period.” Thus, the world’s largest historic and current emitters of climate-warming greenhouse gases — the U.S. and China — did not participate in or face reductions requirements under the Kyoto Protocol.

The best opportunity to save the Kyoto Protocol came at COP15 in Copenhagen in 2009. There, however, the United States’ failure to enact major proposed climate legislation prior to the COP led to a breakdown in negotiations over the U.S.’s participation in the next Kyoto compliance period, transforming “Hopenhagen” into “Nopenhagen.” As Kyoto extension faltered, however, some of the UNFCCC parties, including the United States, China, and many other industrialized and developing countries, agreed to undertake a series of voluntary commitments outside of the Kyoto Protocol structure, an agreement referred to as the “Copenhagen Accords.” While largely viewed as a failure at the time, this new model of voluntary commitments would also form the backbone of the Paris Agreement, negotiated at COP21 in 2015.

The Paris Agreement represented a broader adoption and formalization of the Copenhagen Accords approach, and an acknowledgement that there was not sufficient political will in key countries to be bound by mandatory, quantified emissions limits. Instead, the Paris Agreement framework shifted the entire UNFCCC response program to one of voluntary action, encouraged by widespread disclosure and public pressure. The Paris Agreement parties’ nationally determined contributions are the foundation of that system.

The NDC System: Transparency and Review

Under the Paris Agreement, every party is required to “undertake and communicate ambitious efforts” toward meeting the Agreement’s goals (Art. 3). Each successive national communication of these efforts must “represent a progression beyond the Party’s then current [commitments] and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances” (Art. 4.3). These communications of national commitments are the NDCs. The first NDCs were submitted in 2015 and must be updated every five years thereafter.

As part of their NDCs, all parties must identify mitigation measures they will undertake, and developed countries are encouraged to “continue taking the lead by undertaking economy-wide absolute emission reduction targets,” while developing countries “should continue enhancing their mitigation efforts, and are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstances” (Art. 4.4). As is clear from this language, all such commitments are entirely voluntary.

Having foregone binding commitments, the Paris Agreement relies instead on transparency to promote national ambition. Under Article 13, the parties must follow an “enhanced transparency framework,” requiring regular provision of information “necessary to track progress made in implementing and achieving its” NDCs (Art. 13.7). In practice, this means regular submission of national greenhouse gas emissions inventories, national commitments via NDCs, and national biennial update reports on progress made under the NDCs.

These latter documents are particularly important because they contain descriptions of the commitments, and policies and laws undertaken or intended to be undertaken to achieve those commitments, under the NDC regime. The United States’ most recent submissions, for example, discuss the impact of the spending programs in the Inflation Reduction Act on the nation’s future greenhouse gas emissions. Importantly, the U.S. has submitted claims, represented in the graph on page 17 here, indicating that these spending programs will allow the United States to achieve its current NDC target of 50–52% 2005 emissions levels by 2035.

 

Per the Paris Agreement, however, such submissions must then undergo public technical review (Arts. 13.11, 13.12). For industrialized nations focused on emissions mitigation, their submissions are subjected to a process called “International Assessment and Review” (IAR), resulting in the production of written reviews. Although somewhat dense, these documents provide a great deal of useful information about how nations are presenting their climate response activities to the world.

For example, the United States’ most recent technical review discussed the Biden Administration’s “all of government” regulatory approach to emissions reduction, as well as the significant financial support embodied in the Inflation Reduction Act, but also emphasized that the U.S. had not clearly explained how these initiatives would actually work to reduce emissions as the United States has claimed, and recommended “that the United States improve the transparency of its reporting by providing the estimated impact of each policy or measure … or provide a clear explanation as to why this is not possible” (a topic I have written about).

These reviews, furthermore, are not the only reviews undertaken to assess the efficacy of various commitments embodied in NDCs. The UNFCCC produces a “synthesis report” on NDCs which combines together the conclusions of its various technical reviews. The most recent NDC Synthesis Report, published in 2023, concluded that full implementation of the commitments in the most recent NDCs would reduce emissions well beyond what the original NDCs would have accomplished, but were not yet ambitious enough to achieve the Paris Agreement’s goals.

An annual independent report issued by the United Nations Environment Programme tends to be more pessimistic. Called the “Emissions Gap Report,” the most recent iteration recently concluded: “A failure to increase ambition in [the upcoming 2025] NDCs and start delivering immediately would put the world on course for a temperature increase of 2.6–3.1°C over the course of this century.” Precise language matters a great deal in these reviews, as their conclusions turn on which policies and laws they assume will be implemented, and how effective those actions are considered to be. All reports tend to agree, however, that current NDCs are insufficient to achieve the Paris Agreement’s 1.5°C or 2.0°C goals.

The First Global Stocktake

Although the Synthesis Reports and Emissions Gap Reports are important, there is one more piece of the puzzle to NDC assessment that is necessary to understand. The Paris Agreement requires its parties to “periodically take stock of the implementation of this Agreement to assess the collective progress towards achieving the purpose of this Agreement and its long-term goals,” a process referred to in the document as the “global stocktake” (Art. 14.1). The first global stocktake was scheduled for 2023, and then must be conducted every five years thereafter (Art. 14.2). The process focuses on global mitigation, adaptation, and finance efforts, and, with respect to NDCs, after each global stocktake is completed, its conclusions are required to “inform Parties in updating and enhancing, in a nationally determined manner, their actions and support in accordance with the relevant provisions of this Agreement, as well as in enhancing international cooperation for climate action” (Art. 14.3).

The “modalities” (processes) of the first global stocktake were agreed upon at COP24. The mechanism was set to encompass three phases: 1) “information collection and preparation,” 2) “technical assessment,” and 3) “consideration of outputs.” The first phase, information collection, required collection of a detail series of “inputs,” meaning data about, among other things, updated national greenhouse gas emissions inventories, the “overall effect” of the NDCs already submitted, and “overall progress made by Parties towards the implementation of their [NDCs],” the current state of global climate finance under the agreement, barriers faced by developing countries, best practices, fairness considerations, the latest IPCC reports, national and committee report submissions under the Paris Agreement, voluntary submissions of the parties, and submissions from non-party stakeholders.

The second and most important phase, technical assessment, “focus[ed] on taking stock of the implementation of the Paris Agreement to assess the collective progress towards achieving the purpose and long-term goals of the Paris Agreement, as well as opportunities for enhanced action and support to achieve its purpose and goals.” Led by the Subsidiary Body for Implementation (SBI) and the Subsidiary Body for Scientific and Technological Advice (SBSTA), two permanent workhorse offices under the UNFCCC Secretariat, which, in extreme summary, and among many other duties, attempt to translate the many laws, policies, commitments, statements, and actions undertaken by every UNFCCC Party into emissions equivalencies in order to determine to what degree their activities are, or are not, consistent with achieving the Paris Agreement warming goals. The global stocktake, however, is an aggregate assessment of the many country parties’ efforts.

The third and final element of the first global stocktake, the “consideration of outputs,” was accomplished via a technical report on the outcomes of the technical assessment, and a decision adopted at COP28 last year in Dubai summarizing the parties’ conclusions and commitments going forward. The UN summarized the technical report’s conclusions succinctly: “While Parties to the 2015 Paris Agreement have taken widespread actions to address climate change and its impacts, ambition and implementation must be accelerated rapidly.” Among the most notable conclusions was — provided that actions promised in the various NDCs already submitted were actually accomplished — that future warming would be reduced by over 1C, dropping from a predicted +4C without efforts under the UNFCCC to between +2.1 and +2.8C if those efforts are in fact accomplished. But the report also emphasized that in order to achieve the Paris Agreement’s goals of keeping global temperatures as close as possible to +1.5C, rapid legal and technological advancements must still occur.

In the parties’ negotiated decision in response to this report, they “underline[d]” that they “are not yet collectively on track towards achieving the purpose of the Paris Agreement and its long-term goals” and “note[d] with alarm and serious concern” that anthropogenic warming had already exceeded +1.1C (a conservative interpretation of the data), but also noted that “feasible, effective and low-cost mitigation options are already available in all sectors to keep 1.5 °C within reach in this critical decade with the necessary cooperation on technologies and support.”

Perhaps most importantly, the parties agreed that in order to achieve the Paris Agreement’s goals, the parties would be required to commit to “tripling renewable energy capacity globally and doubling the global average annual rate of energy efficiency improvements by 2030,” and “transitioning away from fossil fuels in energy systems, in a just, orderly, and equitable manner.” This latter statement was the first time that the parties had ever acknowledged in a negotiated decision that eventually ending fossil fuel use would be necessary to fight climate change, although many parties had fought for stronger language, including a commitment to “phase out” or at least “phase down” fossil fuel use.

As this discussion indicates, the Global Stocktake provides a more optimistic and encouraging take on the NDC outcomes to date than do other reviews, but is still aggressive in its suggestions for what must be done in the future to achieve the Paris Agreement’s warming targets, and the UNFCCC’s ultimate goal to avoid dangerous changes to the global climate.

COP29 NDC Agenda and Outlook

The first global stocktake confirmed what is widely already known: there is a serious “mitigation gap,” meaning the difference between emissions reductions that are needed and that are actually being accomplished, and a serious “ambition gap,” meaning the difference between what countries have committed to and what they must still commit to in order to achieve necessary greenhouse gas emissions reductions to meet the UNFCCC’s goals.

COP29 will be the first significant opportunity for countries to respond to the conclusions of the first global stocktake by presentation of updated NDCs that contain new commitments intended to close the ambition gap and put the world on track to respond to climate change effectively. The UN has called for parties to “prepare and communicate NDCs with ambitious, economy-wide reductions covering all GHGs, sectors and categories aligned with 1.5C with an end date of 2035.” The COP Presidency has indicated that pushing nations to introduce the details of “1.5-aligned” NDCs at COP29 will be a major goal of the Conference of Parties in Baku. In their opening statements to COP29, groups of nations are emphasizing and repeating this call, creating political pressure on other nations to respond and to perform.

To kickstart this process, the so-called “Troika” of nations hosting COPs 28–30 — the United Arab Emirates, Azerbaijan, and Brazil — have committed to revealing their own 1.5-aligned NDCs, and Azerbaijan at least is committing to revealing theirs at COP29. The big question for COP29 is: will they deliver?

There are significant doubts, as these nations have not yet indicated what the details of such an NDC would be, and have stated publicly that there is “no universally accepted definition of what a 1.5°C-aligned climate plan should or should not include.” These countries are all also expected to increase their petroleum production through 2025, arguably inconsistent with 1.5-aligned NDCs.

In an open letter published by 350.org (the organization’s name is a reference to the group’s atmospheric CO2 concentration goal), an advocacy coalition set out ten “tests” for whether a new NDC will be 1.5-aligned. These include an “ explicit commitment to end fossil fuel expansion,” “an ambitious, 1.5C-aligned greenhouse gas reduction target,” including both “economy-wide and sector specific targets,” and targets “backed by strong government policy.”

We will find out at COP29 whether these expectations will be met. We will also see which, if any, of the world’s nations respond to COP29’s call to detail their own 1.5-aligned NDC ambitions.

If you have made it this far, then you are much better informed about one of the many essential topics under scrutiny as the world prepares for COP29. In the next post, I will dig further into the climate finance commitment aspect of COP29, including the new quantified collective goal for climate finance, and the topic of loss and damage.

 

Attending COP29 — Preliminaries and Issues to Watch

Adam D. Orford, Assistant Professor of Law at the University of Georgia School of Law, will be attending the 29th Conference of Parties to the United Nations Framework Convention on Climate Change as one of the American Bar Association’s observer delegation and will be sharing his thoughts on the experience here. The views expressed in this post are solely his and do not necessarily reflect the views or positions of the ABA or UGA.

Cross-posted on Medium.

Greetings! Over the next month I’ll be sharing my thoughts on my experiences participating at COP29. In this first post I will cover several preliminaries, including what COP29 is, the controversial selection of Azerbaijan as the host country, the preliminary agenda for the conference, and the ABA’s mission there. Future posts will dig more deeply into the many issues under discussion at COP29.

What Is COP29?

COP29 is an international climate treaty negotiation. The United Nations Framework Convention on Climate Change (UNFCCC) has been ratified by 198 parties, including the United States. This 1992 treaty sets out the commitments and obligations of its signatories to respond to climate change. Like several other major multilateral environmental treaties (.g., the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer), the UNFCCC’s operative provisions are developed through subsidiary protocols, agreements, and decisions negotiated at regular Conferences of the Parties (COPs).

This year marks the 29th UNFCCC COP (i.e., COP29). The same meeting will also be the 19th conference serving as a meeting of the parties to the Kyoto Protocol (CMP19), and the 6th conference serving as a meeting of the parties to the Paris Agreement (CMA6), both of which are implementing agreements under the UNFCCC.

The COPs are, at their heart, negotiations over the details of the parties’ obligations and commitments under the UNFCCC, Kyoto Protocol, and Paris Agreement. However, the COPs also allow participation by registered “observer” organizations, and over the years the COPs have seen increasing attendance by business and civil society organizations, often with many thousands of individuals joining to observe and to advocate and raise awareness for the many interests and issues implicated by worldwide climate response efforts. The COPs are, in other words, the world’s largest and most important international climate law events. This year’s COP29 will be no different.

The conference will be hosted in Baku, Azerbaijan, and its official website is here.

Why Baku?

The selection of Baku, the capital of Azerbaijan, to host COP29 has been particularly controversial and it is worthwhile to begin by discussing that controversy.

To ensure worldwide representation, the COP host country rotates each year between five UN regional groups, shown in the map here. COP28 was hosted in the United Arab Emirates, part of the Asia-Pacific Group; COP29 will be hosted in Azerbaijan, part of the Eastern European Group, which includes Eastern Europe, the Caucuses, and Russia; and COP30 will be hosted in Brazil, part of the Latin American and Caribbean Group; and so on.

Typically, it falls to the member states of the hosting regional group to decide among themselves upon a host country venue. To reach a decision, interested nations submit bids and the hosting regional group’s members then must attempt to achieve consensus among themselves to select one of the bidders for approval by the full treaty membership.

For COP29, two European Union nations — Bulgaria and the Czech Republic — each submitted early bids to host. But each was quickly blocked by Russia, whose opposition stemmed from its disagreements with the EU over the ongoing war in Ukraine. Eventually, both Armenia and Azerbaijan also submitted bids. But, given that the two countries have been in armed conflict with each other intermittently for decades over the Nagorno-Karabakh region, both also indicated they would block the other’s bid.

The matter was eventually resolved politically, as Bulgaria and the Czech Republic both voluntarily withdrew their bids, and Armenia agreed to support Azerbaijan’s bid as part of a normalization pact that also included a small prisoner exchange. With time running out to approve the selection, and with consensus achieved among the nations of the regional group, the Azerbaijani proposal to host was accepted by the UNFCCC plenary in late 2023.

Observers and some parties to the conference have criticized this outcome on two primary grounds: Azerbaijan’s heavy dependence on fossil fuel production, and Azerbaijan’s human rights record.

Regarding the former, although Azerbaijan is not one of the world’s very largest oil and gas producers, it derives approximately 50% of its GDP from its oil and gas industries, and fossil fuels account for over 90% of the nation’s exports. Its economy and government therefore are heavily dependent on oil and gas revenues, raising conflict of interest concerns when phasing out fossil fuel use is almost certainly necessary to solve climate change.

However, this is not a new issue. Although participation by oil producing countries is essential to the success of international climate negotiations, the rising influence of oil and gas lobbyist observers at the COPs, combined with the strong influence that conference host countries exert in setting conference agendas, has increasingly led to warnings of the potential for COP greenwashing. This was especially the case last year in Dubai, as the UAE is the world’s eighth largest oil producer.

On the other hand, past conferences in oil-producing countries have produced positive results, and the impact of a host country’s oil production or oil dependence on the outcomes and conduct of the various COPs is not clearly established. Perhaps the most important aspect of this debate is to highlight the tension at the heart of international climate law negotiations: climate is considered a “super wicked” problem in part because those who are contributing most to the problem must also take the lead in solving it.

The situation over Azerbaijan’s human rights record is more challenging. The UN Committee against Torture, which monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, recently expressed “alarm” over Azerbaijan’s “alleged extra-judicial killings, torture, and ill-treatment of national and ethnic Armenians during armed conflict” in Nagorno-Karabakh. It further voiced “concern” over “allegations that human rights defenders and journalists continue to face physical and judicial harassment, and in some cases, are subjected to torture and ill-treatment in Azerbaijan.”

Azerbaijan has, in fact, faced allegations of genocide and ethnic cleansing following its blockade and military action against the de jure Azerbaijani, ethnic-Armenian breakaway Republic of Artsakh in 2023, which resulted in the flight of almost the entire population of the Nagorno-Karabakh region to Armenia.

With respect to the COP itself, some civil society groups, including most prominently Human Rights Watch, have also questioned whether Azerbaijan has sufficiently committed to protecting the rights of civil society participants in Baku during the conference, and have called for clarity prior to participating. A recent letter from a group of U.S. Congress members urged the U.S. State Department to pressure Azerbaijan on these issues and to support Armenian energy independence, triggering a harsh response from Baku.

These realities pose difficult questions for participants at COP29. The enormous importance of climate change and the essential role of observer organizations in the COP process militate strongly for participation, and Armenia’s accession to Azerbaijan’s host bid should hold some weight. But while all parties to the UNFCCC did agree to Azerbaijan‘s selection, no one would mistake this for any nation’s, or participant’s, endorsement of Azerbaijan’s human rights record. Rather, the situation again highlights the geopolitical tensions and compromises inherent in the host selection process for one of the most high-profile UN conferences to be held this year. There are no satisfactory answers — other than that Azerbaijan’s participation provides an opportunity to raise the salience of these issues on the world stage.

What Is on the COP29 Agenda?

Agenda-setting at the COP is influenced both by the host country, which typically holds the conference presidency, and by the technical issues built into the treaty itself. This year, the conference president is Mukhtar Babayev, Azerbaijan’s Minister of Ecology and Natural Resources, and formerly the environmental director for Azerbaijan’s state oil company, SOCAR.

COP Presidency Priorities

Babayev has communicated his goals for COP29 in letters to the parties and constituencies, and other public statements leading up to the COP. Although deeply steeped in UNFCCC jargon, the goals revealed in the statements are relatively straightforward: to promote increased national commitments to reducing their greenhouse gas emissions, and to promote financial commitments to achieve those reductions.

These two goals do not move far beyond the Paris Agreement itself. Under the Paris framework, national reductions ambitions are indicated through documents titled “Nationally Determined Contributions” (NDCs). And, following a process last year called the “Global Stocktake,” it is clear that commitments made in current NDCs are insufficient to achieve the Paris Agreement goal of maintaining global average surface temperatures at or below 1.5 degrees Celsius above pre-industrial baselines by 2100.

Thus, Azerbaijan is calling on nations to develop and submit “1.5-aligned” NDCs, and has committed to doing so itself at COP29. On the finance side, the main goal is to set a so-called “New Collective Quantified Goal on Climate Finance” (NCQG), an obligation under the Paris Agreement requiring an extension and expansion of the (perennially unmet) commitment for industrialized nations to provide $100 billion per year in finance for climate mitigation activities.

Indeed, given that 2024 is set by the treaty as the date to develop the NCQG, COP29 has already been called the “finance COP.” Related presidential initiatives on finance are contained in a 20-page “Action Agenda” issued by the COP President’s office in September. These initiatives include a climate action fund funded by fossil fuel producing nations and companies, an initiative to “to focus on the nexus of climate finance, investment and trade,” a proposal for the development of national “green energy zones” to facilitate clean energy construction, a pledge to increase battery storage on the world’s electric grids, an effort to promote and expand green hydrogen production, and many others.

Treaty Issues and Side-Agreements

Major outcomes from the COPs have included both treaty negotiations progress and side-agreements, statements, initiatives, and pledges developed by the participants. In Glasgow in 2021, for example, there were major commitments by financial institutions to begin confronting their own role in climate change through their fossil fuel infrastructure finance activities, leading to much public discussion of investment firm climate commitments in the years since. And COP28 in Dubai last year produced important new commitments related to global methane emissions. While such pledges are only the first step in the much more difficult process of implementing change, they are often the most encouraging outcomes of the COP process, even as the treaty work makes more incremental progress.

With respect to the treaty itself, Azerbaijan’s role is to facilitate party negotiation on the many treaty details under discussion. A useful place to start for understanding both the major issues and the ins and outs of the negotiation processes is Carbon Brief’s excellent review of the key outcomes of COP28 in Dubai. Although the issues at COP29 will be different, many of the larger issue categories will be the same this year. I’ll tackle these in more detail in the future, but going into COP29 some of the most important issues on the table include:

• Development of the NCQG. In 2009, UNFCCC parties agreed to develop a program for developed countries to provide $100 billion per year in climate finance for developing nations. Although the goal was never actually achieved, Paris Agreement Article 9 officially committed to it in theory, requiring developed countries to “provide financial resources to assist developing country Parties” to reduce their greenhouse gas emissions and adapt to climate change. The parties have since agreed to develop a new, increased finance goal by 2025, meaning that this negotiation must be completed at COP29. Widely varying estimates place the need for such finance at up to $500 billion to $1 trillion per year, but the financial impact of such commitments has not been one that developed nations have been particularly eager to bear. Therefore, negotiations over both the amount of the new goal, and the mechanisms by which the goal will be met, will be closely watched at COP29.
• Loss and damage funding. One of the most controversial components of the UNFCCC framework is “loss and damage,” referring to the harms suffered by vulnerable nations from the impacts of climate change, and the financial commitments of industrialized nations to support adaptation to and recovery from these harms. While not mentioned in the UNFCCC itself, the concept was first formally incorporated into the UNFCCC process by the Bali Action Plan in 2007, and later extended by the Warsaw International Mechanism for Loss and Damage in 2013. Loss and damage is specifically discussed in Paris Agreement Article 8, and a major breakthrough at COP27 involved the creation of an international fund for loss and damage. Incremental progress has been made at recent COPs and, given the focus on finance at COP29, it is likely that increased commitments to support the loss and damage fund will be proposed and negotiated at COP29.
• Article 6 Carbon Markets. Another extremely controversial (and extremely technical) element of COP29 will be the continued negotiations on implementation of Paris Agreement Article 6, which agrees, in theory, to the creation of an international carbon market to allow countries to take credit for carbon offset projects and initiatives undertaken in other countries. Carbon credit and offset programs have had mixed results historically, and the Article 6 mechanism is not universally supported by the parties, making progress on the details of the international program slow and challenging. The last several COPs have resulted in incremental progress toward defining the program, but major questions have repeatedly failed to reach agreement and will continue to be discussed at COP29. Going into the conference itself, many important matters are still unresolved, an indicator that outcomes may again be limited. But should negotiators achieve a major breakthrough on operationalizing the Article 6 system, this would be one of the more significant outcomes at COP29.
• NDC Updates. National emissions reductions commitments are the primary mechanism under the Paris Agreement for actually solving climate change. Although not technically required to be submitted until February 2025, COP29 will provide a platform for national presentations of their forthcoming emissions reduction plans. Again, Azerbaijan has promoted the creation of “1.5-aligned” NDCs, and it is likely that many major nations will provide new information about how far they are willing to go — or publicly commit to going — to draw down their emissions along science-based timelines. The NDC statements from the United States and China will be especially closely watched, particularly as COP29 will be held immediately after a U.S. election that will have major impact on the U.S.’s likely future climate and energy policy.
• Adaptation Plan Commitments. Finally, and with climate change impacts increasingly a present reality worldwide, a recent development in the UNFCCC process has seen nations committed to developing National Adaptation Plans focused on limiting the negative effects of climate change, with particular attention to protection of the most vulnerable people in their societies. As is often the case with climate adaptation, outcome measurement is difficult in this area and in addition to promoting the completion of these plans, there will be discussion around the development of measurable metrics for assessing progress under these plans at COP29.

Currently, the UNFCCC parties are finalizing their negotiating positions on these and many other issues under debate. Whether COP29 is considered a success or not will depend, in large part, on whether and what progress is made on these and many other issues.

What Is the ABA’s Role?

2024 will mark the fourth year that the American Bar Association, under the leadership of its Section of Environment, Energy and Resources (SEER), has participated in a UNFCCC COP as an observer organization. While not directly involved in negotiations or issue advocacy, the ABA will be working both to observe and report on the events at COP29, and to encourage collaboration with other national bar associations on the special challenges that climate change poses to the legal profession. In the ABA’s words:

As an official observer to the United Nations Climate Change Conferences … the ABA participates in numerous programs to educate lawyers about their roles in getting to net zero. These programs are coordinated collaboratively by the ABA Section of Environment, Energy, and Resources’ (SEER) Climate Change Task Force with other bar associations, including the International Bar Association (IBA), the Brazilian Bar Association (OAB), the Law Society of England and Wales (LSEW), and many other bar organizations from around the globe.

The ABA’s COP observation program was developed under the leadership of the ABA Section on Environment, Energy, and Resources (SEER) Climate Task Force, which has promoted awareness and recognition of climate change at the ABA.

This work began with the development and eventual passage of an updated and strengthened ABA Resolution on Climate Change in 2019. Through that resolution, the ABA “urge[d] federal, state, local, territorial, and tribal governments, and the private sector, to recognize their obligation to address climate change and take action” to “[r]educe U.S. greenhouse gas emissions to net zero or below as soon as possible, consistent with the latest peer-reviewed science,” and to “[c]ontribute the U.S. fair share to holding the increase in the global average temperature to the lowest possible increase above pre-industrial levels.”

The ABA Resolution also urged Congress to enact legislation to achieve these goals, promoted climate adaptation efforts and “a just transition for the people and places most dependent on the carbon economy,” urged the United States to remain engaged with the UNFCCC and Paris Agreement, and “urge[d] lawyers to engage in pro bono activities to aid efforts to reduce greenhouse gas emissions and adapt to climate change, and to advise their clients of the risks and opportunities that climate change provides.”

The ABA Climate Task Force’s next initiative was to organize ABA attendance at the COPs, which began in 2021. The ABA has previously sent delegations to COP26 in Glasgow, UK, COP27 in Sharm-el-Sheik, Egypt, and COP28 in Dubai, UAE. The focus of these delegations has been to work with other national bar associations to educate the profession, and other disciplines, about the critical role that lawyers and law associations play in incorporating climate-conscious provisions into contracts and generally advising their clients on the risks and opportunities presented by climate change. Among other things, this group of law associations has developed a Climate Registry that is posted on the International Bar Association’s website, providing ready tools to other lawyers and law associations for adopting climate resolutions and other guidance to address climate change.

In addition to myself, this year’s ABA delegates are Uma Outka, Professor of Law at the University of Kansas School of Law, and Kamran Jamil, associate at Morrison Foerster and Vice Chair of the ABA’s International Law Committee, Young Lawyers Division.

What’s Next?

Hopefully, the above has provided some insight into the COP process and COP29’s goals. As always, the devil is in the details and therefore future posts will dig more deeply into some of the substantive issues to be discussed.

In the next post, I’ll examine the Paris Agreement NDC framework and the results of the first “global stocktake” conducted earlier this year, and more closely examine the climate finance issues to be covered at the COP.

I’ll continue sharing more about my observations during the conference as it develops. COP29 begins on Monday, November 11, and runs for two weeks.

 

EPA and San Francisco's Looming Mistake

San Francisco and the US Environmental Protection Agency have brought a longstanding water dispute to the United States Supreme Court. That is a big mistake. If ever a case should be resolved without a Supreme Court decision, this is it. The city and EPA can craft a resolution that meets both sides’ needs. The Supreme Court, in contrast, is likely to use the case to advance an antiregulatory agenda that neither EPA nor the city supports.

The case is about sewage. San Francisco, like many cities, has old sewage-disposal systems called combined sewer overflows, or CSOs. When heavy rains fall, and the city’s wastewater treatment plants can’t handle all the water coming through the city’s sewers, these CSOs release untreated wastewater directly to the Pacific Ocean and the Bay. That’s a problem, and everyone agrees it should be fixed, but the fixes are too expensive to implement all at once. State and federal water quality regulators think that city isn’t moving quickly enough or being careful enough with the existing systems. The city, which has spent millions to address the problems, disagrees.

The specific legal issue is much narrower. San Francisco operates its wastewater systems under permits issued by EPA (for the ocean discharges) and the state (for the discharges to the Bay). The permits are long and complicated documents, but the city has zeroed in on two provisions, both of which it argues are much too vague. These vague provisions, the city argues, leave the city unsure what its obligations are, and they give EPA and the state the ability to decide, after the permit goes into effect, what will count as a violation, and to penalize the city for conduct the city couldn’t know was illegal. EPA disagrees, arguing that the provisions provide enough guidance and that these sorts of provisions were anticipated by 1980 amendments to the Clean Water Act. The Ninth Circuit Court of Appeals sided with EPA, but the city asked the Supreme Court to take the case, and the Court has done so.

That’s not good for either side. Involving the Supreme Court in an environmental case is a bit like bringing in the mafia to resolve a neighborhood dispute. The Justices have their own agendas, and those agendas are not likely to align with the broader interests of the city or EPA.

San Francisco’s broader interest is in strong environmental protection. That’s not just because San Franciscans care about environmental quality, though they certainly do, or because the city is threatened by climate change and other environmental hazards, though it certainly is. It’s also because even if San Francisco is at odds with EPA in this particular dispute, it needs powerful state and federal water quality laws. It is, after all, a city surrounded on three sides by water.

The Supreme Court, meanwhile, has an axe to grind with water-quality regulation. Just last year, in a case called Sackett v. Environmental Protection Agency, the Court gutted the Clean Water Act, eliminating regulatory protections for thousands of streams and wetlands across the nation. Justice Alito’s majority decision made no effort to conceal his animus for the statute or for environmental regulation more generally. He repeatedly lamented the “crushing” burdens the Act supposedly imposes, while saying hardly anything about the benefits broad stream and wetland protections provide, and he and his fellow justices pointedly ignored the Act’s language about the importance of improving water quality. No one who cares about clean water should want this Court to hear another Clean Water Act case.

Nor was that case a one-off. In a long series of recent decisions, including some involving climate change, the conservative justices have made it quite clear that they are actively searching for opportunities to limit EPA’s authority and hamstring environmental regulation. They are doing so not just by deciding particular cases against EPA, but also by articulating sweeping interpretive principles designed to help anti-environmental litigants in future cases—or to deter government agencies from regulating at all. To strengthen those principles in a case brought by liberal San Francisco, of all litigants, would be, from the Court’s perspective, a delectable irony.

EPA and the city should do everything they can to resolve this case without the justices weighing in.  That should include EPA offering to rewrite San Francisco’s permit, replacing the vague requirements with something more specific. EPA (and the states, which write most Clean Water Act permits) also can pursue similar revisions for the many other permits that contain similar terms. That would result in clearer permits that are easier to understand—which is something industry and environmental advocates alike have wanted. And both sides would be in control of their own disagreement, rather than leaving its resolution up to a hostile Supreme Court.

No one in this dispute is being unreasonable. San Francisco has good reasons to want clearer permit requirements, and it has tried to craft its arguments narrowly. EPA and the state have good reasons to defend their discretion to use broader terms. And in more normal times, Supreme Court review would be a good way to resolve the disagreement. But when it comes to environmental law and the Supreme Court, these are not normal times. The city, the state, and EPA would be much better off resolving their disagreements on their own.

-Dave Owen

Juliana v. United States and the Passing of a Show Horse

In politics, there’s an old distinction between show horses and work horses. Show horses get attention. Work horses get things done. It’s a useful distinction not just for legislators, but also for legal strategies, and it’s particularly useful on the day Juliana vs. United States got dismissed, most likely for good.

For years, no case has commanded popular attention quite like Juliana. It offers a classic David vs. Goliath tale, with the David part played by sympathetic and idealistic kids. The moral claim at the heart of the case—that the federal government has an obligation to act quickly and decisively on climate change—rings deeply true. Whatever you might think about the plaintiffs’ legal arguments, their moral claims were profound. And while the case never got close to producing a decision on the merits, it did at least survive, and stay in the public eye, for a long time.

But it was always a show horse. The plaintiffs’ strategy was premised on the belief that federal judges would be so inspired by the force of their arguments that the judges would compel major actions by the federal government, even where the political branches had chosen not to act, and all on the basis of novel legal theories. That premise has worked, occasionally, in other countries. Similarly ambitious claims still work here for conservative litigants. But in the United States, the plaintiffs were assuming that the federal judiciary—which is overwhelmingly composed of old, white men—would take up the cause of climate action. And because any bold decision out of the lower courts had high odds of producing a successful cert petition to the US Supreme Court, the plaintiffs also were assuming that a profoundly conservative and anti-environmental court—a court that has enthusiastically sabotaged administrative efforts to respond to climate change—would somehow be persuaded to issue a pathbreaking decision in their favor.

Even a meaningful settlement would have been nearly impossible. Conservative states and industry groups had intervened in the case. There is no chance they would have accepted the sort of settlement the plaintiffs wanted. Any attempt at such a deal also would have gone to the Supreme Court, where, again, the plaintiffs would have been banking on miracles.

Even worse, the downside risk was significant. The Supreme Court might have been eager to get its hands on the case, which it could have used to work all sorts of mischief with a variety of areas of climate law. The thought of a Justice-Alito-composed opinion in Juliana v. United States should be terrifying. The Biden Administration was wise to seek dismissal.

Meanwhile, the workhorses toil on. Just in recent weeks, federal agencies have released new regulations addressing fugitive emissions from oil and gas leasing on public lands and pollutant emissions from coal-fired power plants. They also have proposed a series of sensible reforms designed to improve NEPA reviews and offshore renewable-energy permitting. These are just a few of the examples from the last few weeks. Individually, each of these steps may seem modest, and they fit carefully within existing frameworks of environmental law. But incremental steps can add up to real emissions reductions, and unsuccessful court cases do not. Perhaps, then, the media can now shift some attention to more promising, though not so charismatic, efforts to address the climate crisis.

- Dave Owen

The Complicated Equities of Localized Energy

This post is cross-posted at Legal Planet.

For many decades, most people in the United States have obtained their electricity from a large investor-owned utility company (IOU). They had no real choice. Much of U.S. energy law was built on the belief that the best way to provide electricity was to give investor-owned utilities monopolies over large areas but to require regulators to review and approve those utilities’ rates to prevent pricing that was either “unjust” or “unreasonable.” Even where people were frustrated with their utility provider—and such frustrations are common—they had limited options.

In recent years, at least in some parts of the country, investor-owned utility dominance has been challenged. Of particular interest to us, new governance models and resurgent interest in old ideas are giving communities the option of exiting, partly or entirely, from IOU-centered electricity systems. Community choice aggregation, in which a local-government entity becomes the energy-procurement authority for its service area, has grown dramatically in states that have allowed it. Indeed, it has grown so quickly that CCAs might be the most influential recent innovation in the field of local-government law. Microgrids, which can allow neighborhoods to operate as energy islands, are also the subject of growing buzz. Old ideas like municipalization are spurring new debates. And some communities are leaving rural energy cooperatives and going their own way. Community energy exit is all the rage.

Is this a good thing? In much of the academic literature about energy, the answer has been an unequivocal yes. Academics and activists have tended to see energy localization as going hand in hand with decarbonization and energy democracy. This view seems appealing. Most people have an instinctive affinity for local government, particularly if the alternative is a giant and entrenched private company overseen by state bureaucrats.

In a recently published article, however, we argue that the story is more complicated (we can’t help it; we’re lawyers). We agree that local control over energy systems has the potential to deliver benefits such as lower prices and greener power. But we worry that it could recreate some of the problems with local government in other settings. Greater local control sometimes goes hand in hand with deliberate exclusion of disadvantaged groups. It could undercut both the economies of scale and the progressive policies embedded in traditional energy systems. It could impose costs on remaining customers of the investor-owned utility. And it risks undermining both public commitment to, and important public voices within, those traditional energy systems. We worry, then, that increased energy localism could become a story of fragmented systems and privileged energy cliques rather than greater democracy.

Our article explains those concerns. It also explores what’s happened so far with municipalization, co-op breakups, CCAs, and microgrids. The story to date turns out to be much more nuanced than either the most positive accounts or our more skeptical one might suggest. Localization could undermine equity, but there is little evidence that it has done so yet. That could be because the story is just beginning to unfold, but it’s also because legislators, regulators, and participants in energy-localization movements consciously tried to avoid some of the inequities localization might otherwise create. Because the changes are still in their early stages, there is time to build on those efforts. The article closes by explaining how federal, state, and local governments might do so.

Over the coming years, energy governance is likely to continue its transformations, and increased local control may continue to be part of that story. That could be valuable in many ways, but positive outcomes are far from guaranteed. We hope our article’s combination of cautionary analysis and prescriptions for equitable transitions will help energy localization, where it occurs, to succeed in a way that protects transitioning community members as well as those left behind.

Dave Owen and Sharon Jacobs

Accessioning Joy

We need your help, and it should be fun. But first, some scene setting.

It is summer 2023, but it could be last summer, or the next, or the one after that. People are dying in droves from unprecedented heat, flooding, violence, drought and food shortages, among other climate-change-induced disasters. And yet people keep telling us there is no need to lose hope.

And they’re probably right. However, they’re right for the wrong reasons. We will all die in the Anthropocene. But we needn’t die submissively and without joy.

Many great minds are working on climate mitigation and adaptation science, policy, and implementation. We hope they succeed. Whether or not they do, we have a parallel approach to climate change: A climate haven. No, this isn’t about relocating people to different regions that are more suitable for a warmer world (about which one of us has written). That would be a physical haven where people could go for shelter, sustenance, and bodily perseverance.  We’re creating an emotional haven. A place where people can go to escape the psychological toll that our inevitable extinction brings.

When it comes to climate change and the future of life on Earth, there is a lot to worry about. The first worry is the unknown. Are we looking merely at economic turmoil and unprecedented death in far-off countries or a worldwide post-apocalyptic hellscape? The second worry is a lack of control. When it comes to climate change, no individual has control. These are the roots of climate anxiety.

We believe we can create a climate haven that will do absolutely nothing to “solve” climate change but will do a lot to relieve climate anxiety. Our goal is to create more certainty and empower people to take control. Psychologist Dr. Stephanie Collier wrote, “As uncertainty and a loss of control characterize climate anxiety, the best treatment is to take action.”  We have a plan of action, for ourselves and for you.

We want to empower people to have more control over their state of mind as they die in the Anthropocene, by creating a haven. A sort of museum of joy. Our goal is to design an infrastructure and process for building this museum. We want this to be a place where people can go—both virtually, so long as we still have the internet and electricity—and physically. It is to be a place of refuge when hope for survival is lost.  Our team includes a museum curator and archivist. We are developing an accessioning and collections inventory process, securing space, and, starting with this post, conceptualizing the collection.

This is where we need your help. Our vision will not be entirely our own. Sure, we have ideas for what can bring each of us joy in the Anthropocene. One of us wants a rollercoaster. One an analog collection of sitcoms that we can watch even if our digital infrastructure fails. Another wants a diverse collection of outdoor showers. Imagine a museum with rollercoasters, sitcoms, and showers, carefully cataloged, maintained, and freely accessible to bring you joy. What would you want to add to this collection? Think creatively but also think within the bounds of the slow but steady climate apocalypse.

Think about the sunshine on your face. It is a little too warm, almost hot. You squint slightly and reduce the glare as the breeze blows across your face. The air was humid but now you are cool, and slightly distracted from what’s about to come. The breeze stops. You’re still for just a moment. You open your eyes and are looking down at the tops of the trees, red and yellow tracks gliding across your view. A moment of excitement, and now the breeze picks up again, quickly turning into a gust, blowing away the humid air as you tumble forward, floating toward the ground. The adrenaline carries the excitement forward as you pull to a clanking stop. Time to rinse off.

When you leave the coaster you walk a few steps. Directly in front of you is a deep and wide wooden stall. The broad slats are weathered blue and a chrome showerhead faces down from the ceiling. To the right is a stone wall, whites and browns and grays with little flecks of gold and silver. Two curved stone walls on either side and another chrome showerhead, this one handheld with a long modernist handle. To the left of the stone shower sit three more options. You choose the stone. The cool water washes over you and splashes down to the floor. It rolls over the stones and jangles like a small brook to the grass beyond. You twist the handle to the right and the water slows to a drip then stops. You let the air wash over you for a moment while looking up at the sun coming through the tree canopy. The leaves overlap and the rippling, crisscrossing shade might remind you of lying on your back in childhood in the woods or in the park. Few concerns beyond the afternoon.

As a kid, on a summer afternoon, you might wander home from your adventure bug bitten and sweaty but nevertheless joyful. You open your front door, have a drink of juice or water, a snack, and turn on the tv. The thought brings you back to the present. You towel off, put on clean clothes, and off you go to check out the selection of classic sitcoms.

If this isn’t your joy, what is? We need to know if we are to create our museum of joy. Please email Josh Galperin ([email protected]) to share your ideas.

-- Bruce Carpenter, Josh Galperin, & Francis Hicks

Inequity, Excess Commercialization, and Overconsumption in the Anthropocene: Two Very Modest Regulatory Proposals

Scottish author Alistair McIntosh, reflecting on the climate challenge that our communities collectively face,  sagely wrote in “Where Now ‘Hell and High Water’?” that “consumerism is a false satisifier—just another form of addiction that masks the emptiness.” He called upon society to return “from excess to sufficiency, challenging profligate consumerism.”

We need a deeply rooted social movement for systemic change. A push for society-wide change was at least the original intent and purpose of the U.S. environmental laws adopted in the 1970s and 1980s to reverse attitudes of chronic economic extractivism. Laws such as the Clean Air Act and the Clean Water Act were intended to seek long-term and progressive  strategies to restore ecological integrity. These laws as administered and interpreted, however, have perpetuated extractionist attitudes as the permits mandated under these statutes became simply the cost of doing business. Several major industries, including our industrial agricultural complexes, have continued to be largely exempted from core regulatory programs, including even reporting their air emissions from animal waste under the Emergency Planning and Community Right-to-Know Act and the Comprehensive Environmental Response, Compensation, and Liability Act. 

Since the passage of these laws, moreover, there has been no systemic challenge by major government institutions to consumption-oriented growth. In fact, there are even perverse incentives to promote continued growth; for example, the Securities and Exchange Commission mandates companies to report their earnings quarterly and publicly, thereby pressuring companies to continue pushing for growth in hopes of protecting perceived corporate reputation.

What fuels this crisis of overconsumption is not simply capitalism as a system, but many intersecting factors that have built “the matrix” that has been sold to us as “the good life”. Two factors in particular bear particular attention because they have an important relationship with laws as negotiated rules to govern community and individual behavior that present opportunities for change. One factor is the replication and dysfunction of profound gaps in financial wealth. The statistic that the wealthiest 1 percent has secured two-thirds of all new financial wealth since 2020 ($42 trillion) has been often quoted but it remains unsettling.  In 2022, 95 food and energy corporations doubled their profits even as many individuals struggled to access food and energy resources. At least some of these 1% elites have American nationality or some form of private or commercial assets within the United States. 

One of the main purposes of the U.S. Constitution, as stated in its Preamble, is to “promote the general Welfare.” However, several government representatives elected and appointed under the framework of the Constitution consistently promote private welfare over general welfare in their policymaking, at the behest of lobbyists and special interest groups. This practice of giving preference to the private over the general is at the heart of both broader inequity and resource degradation.  

A second factor directly related to overconsumption is over-commercialization and excess marketing in the public sphere. Advertising for goods and services has been part of communities for centuries and a constant part of modern communication from radio, television, and the internet designed to fuel consumption. While there is no easy way to calculate how much the average American might be exposed to advertising or marketing, one media industry report suggests that  the average American in 2014 spent at least a few seconds on 153 ads a day. A movie is no longer simply an hour or so of entertainment but a place to view product placements and be barraged by product pushing. Perhaps no movie’s product pushing could be more demoralizing than the 45 second spot of the “I speak for the trees” Lorax marketing an internal combustion engine sport utility vehicle, that will not be named here to avoid unwarranted advertising, but that outlandishly claimed to be “certified Truffula Tree friendly.”  It seems that no cultural symbol is beyond commercialization.

There are no quick legal fixes until there is a monumental attitude shift beyond our current rampant overconsumption. Nevertheless, there are small-scale legal reforms with potentially large social payoffs that are possible and will alleviate excess consumption.  First, at a minimum, nations need to end some of the reckless consumption patterns that impact general welfare. While the hopeful messaging of many environmental groups has been that personal choices from diet (less meat) to clothing (no fast fashion) can collectively make a positive difference, individual choices  also undermine collective efforts. No place does this fact become more apparent than in sumptuary consumption. The top 20 billionaires in the world in 2018  emitted an annual average of 8,000 metric tons of carbon dioxide in 2018, with 2/3 of that coming from the operation of luxury yachts.   The average person in a high-emission country such as the United States emits 14.5 metric tons per year and the average person in a lower-emission country such as India emits 2 metric tons per year. Thus, the top 20 billionaires emit as much as 11,000 Americans or 80,000 Indians.  Programs such as Jet Carbon Offset and Yacht Carbon Offset fail to address the conspicuous consumption that continues to fuel financial inequality.

What is urgently needed are luxury taxes that change how resources are consumed. The Internal Revenue Service in its public lesson on how taxes influence behavior notes that “when a luxury tax becomes too steep, people may choose to stop purchasing a particular product.”  If manufacturers are unwilling to charge for environmental externalities, it is time to change luxury tax codes to reflect the true costs of goods and services and to require individuals to be accountable for their material decisions.  Luxury tax measures are non-existent in the U.S. and insubstantial in other countries such as Canada, which has a 10% tax on select cars and planes. Nevertheless, a substantial tax to reflect environmental costs might change consumption patterns.  It may even be time to imagine a World Tax Organization designed to ensure that the wealthiest do not evade  fiscal responsibilities across political borders by seeing tax refuges.

Second, while we have laws to regulate pollution from toxins, we need to use law to remove visual pollution from  our public spaces urging us to buy more “lifestyle”. There is a truth that “where our attention goes, our energy flows,” so that we need to recover our attention and shift from being pliant consumers to humble citizens aware of the challenges of being human but also willing to work towards “general welfare.”  This shift requires legally regulating what kinds of messages the public is exposed to in public spaces. This will require decisions about what constitutes a public space and what sorts of non-commercial messages might be distributed in these spaces instead. Some cities such as São Paulo, Brazil, removed outdoor advertising and public transit advertisements as part of its “Clean City Law” to alleviate the commercialization of urban space, and other cities have followed its example, including Grenoble. The City of London, England ,banned unhealthy food advertising across its public transit.   Communities can and should regulate their viewsheds. Certain arenas of cyberspace should also be considered “public space” and free from unwanted commercial exposure; in the United States, this change may require the federal government to take a more active role in creating its own public access search engines and data structures. A proposal like this is likely to generate questions about the interpretation of the First Amendment. Where do rights to express commercial interests end? Are there competing rights such as privacy rights that protect an individual’s right to be free of intentional, unreasonable commercial intrusions into civic spaces such as public schools?

In the end, these proposals are indeed minor legal reforms, but they have the potential to create the social momentum that allows for attitude shifts by sending two important messages: those with economic privilege have environmental responsibilities to stop reckless consuming; and our lived spaces where we will dream of new ways of being in this world belong to all of us and not just those who pay. For generations we have taken from the planet; our next collective challenge is to figure out how to give back. 

-- Anastasia Telesetsky

What Is the Good Life in the Anthropocene?

The End of the Good Life

In July 2023, twenty environmental law professors gathered beside the Hood River in Oregon to discuss patterns of consumption and how humanity can move forward in this time of polycrisis to have the benefits of “living the good life.” Among friends and enjoying beautiful views and delicious food, there was no question that those of us gathered were enjoying the good life. As the world boils and environmental and social problems proliferate, can we envision a healthy future where such enjoyment continues? Is it a life that will be accessible in times to come? And who will it be accessible to?

In our discussions, we quickly realized that we all have different ideas of what the good life is. We all agreed that everyone should have access to basic needs: food, water, and shelter. But when most of us hear about “the good life,” we envision something beyond basic needs. We envision comfort, indulgences, and autonomy. The last on that list in fact might be the most important to some. Once again, when we dug into that idea, we saw different envisionings of freedom and autonomy.

In the context of environmental and natural resources law, there seems to be a lot of pushback on laws that people perceive to restrict their freedom of choice. We may applaud people who bring their reusable bags to the supermarket, but do we feel the same way about a law that requires us to use them? Agriculturalists bristle at being required to adopt particular techniques or approaches but want to emphasize (and receive praise for) the environmental improvements they make without being required to. Studies show that farmers see themselves as more concerned with environmental issues than urban activists. Farmers and pastoralists have longed viewed themselves as stewards of the land and more attuned to environmental concerns than others.

The good life, then, is about autonomy and control. Even when policymakers and scientists know what actions we should take to prevent environmental collapse, there is a worry that we can’t tell people what to do. People want to feel powerful. We want to feel in charge of our decisions, but we shouldn’t forget that our choices are being constantly manipulated by commercial and regulatory forces. People (perhaps particularly on the right but not exclusively so) seek freedom from government regulation—we don’t want them to tell us what to eat, what to buy, how to farm, etc.—but we let big corporations do exactly that. We want freedom to make choices, but the choices before us are limited and the options are constrained. Fighting for freedom of choice to make environmentally bad/good decisions only makes sense if we aren’t fighting a constant battle against big oil, big pharma, and big ag on our tvs, social media feeds, and in our grocery stores. Without government intervention, our choices would likely be even more limited.

And there is a tension between basic needs and desired states. Is it morally or ecologically appropriate for anyone to live a life of comfort and ease when others don’t have enough? Studies of planetary boundaries provide answers of what levels of consumption are sustainable, yet we don’t turn to those studies for policymaking. The COVID crisis alongside worsening environmental disasters suggests that in hard times we don’t even demand as much from our governments, which seem complacent if not content in continuing our current power structures and patterns of development.

For example, the American Heritage Foundation agrees that Americans should aim for “a cleaner, healthier, and safer environment” while “protecting people and their liberty.” But in their view our environmental laws fail not because of their goals but because of their methods, which “empower and enlarge ineffective bureaucracies, infringe on private property rights, and confound the dynamics of the free market” and in so doing “stifl[e] individual freedoms.” Putting aside claims about government inefficiencies (if indeed that is really the Heritage Foundation’s point), notice the prominent goals of protecting private property rights and the “free” market.

Is the market a source for human flourishing?

The American Heritage Foundation would easily define the good life as “essential to a flourishing society.” Is the market more value neutral than government? Somehow, we feel differently about market mechanisms that lead to change than about government restrictions that do so. If the cost of producing renewable energy goes down and the coal industry becomes less viable, this generation shift seems more palatable than one where the government requires a phase-out of coal. But is the market any more of an external dictating force than the government is? Why do market-based changes feel less obtrusive than regulatory ones? As Camille Pannu pointed out in our Hood River conversation, “Capitalism is not a belief system, it is a description of an economic system.”

Are private property rights essential for the good life? Do private property rights equal freedom?

Private property rights have become a core part of the conservative agenda. Those benefiting from the legal outcomes dictated by such an approach are rarely individuals and more likely to be corporations. Reduced regulation benefits corporate bottom lines and desires for development. These interests have successfully convinced voters that our personal desires for freedom and property ownership align with this agenda. In doing so, we fight for the corporations. We push back on the rules about draining the muddy part of our backyard, and they get the benefit of fear of regulations and permission to convert millions of acres of areas providing key ecosystem services. We can’t all be millionaires, but we are so enticed by that possibility that we vote against our interests. We endorse rules that benefit the billionaires in the hopes that we will become them and also receive those benefits.

-- Jessica Owley

Breaking Our Consumption Addictions

Americans are addicted. We see this all around us. Our addictions range from the pleasurable but mostly innocuous (coffee and caffeine) to more concerning on a society-wide scale (think overeating and obesity) to the pathological and clearly harmful (such as the fentanyl overdose crisis).  These addictions benefit some in our society, such as food conglomerates selling junk food or drug dealers, both illicit and legally sanctioned.  They also have serious harms to both the addict and to society more broadly.  Breaking our addictions could go a long way towards reducing some of the excesses of our consumer culture and its devastating environmental impacts.  But how can we, collectively, go about breaking the cycle of addiction?

It is tempting to blame the addict. But although consumers bear some individual responsibility, there are also bigger forces at play. It would be much easier for individuals to reduce their overconsumption if our society facilitated and encouraged such changes.  Merely calling for individual responsibility is not enough and can be counterproductive.  We might also envision regulatory interventions that would curb the addictive nature of consumer products or restrict marketing those products to consumers who would become addicts in the future.

Of course I am not the first to view overconsumption and consumerism through the lens of addiction.  So while not claiming to have had some novel insight, I hope to refocus some attention on this topic in the context of reducing the environmental impacts of consumption, especially overconsumption.

Analogizing our Consumption Patterns to Addiction

Our gathering of environmental law professors focused on 4 main areas of consumption, but I will only focus on two of those that best fit the addiction framework.

Food Consumption: Medical views of obesity have recently  recognized overconsumption as a result of biochemical pathways that have been driven out of whack by unhealthy food systems, lack of available and affordable healthier options, and marketing and product development by food conglomerates to cultivate addictions in consumers.  And while there is certainly debate about whether obesity by itself is truly a health epidemic or not, overeating and food waste definitely have significant environmental impacts related to the overconsumption of food. 

Water Consumption:  It is hard to separate consumption of water from consumption of food, as water is used primarily for crop irrigation in the United States, particularly in the arid western states. The domestic use of water accounts for a much smaller portion of water use, even in the arid West, but lawns have spread across suburban areas in spite of water scarcity in western spaces.  Many have noted Americans’ addiction to lawns with their associated wasteful water use.   

Breaking the Cycle of Addiction

The diagnosis of addiction under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition was updated in 2013 to include substance-related and addictive disorders. Substance use disorder combined prior understandings of substance abuse and substance dependence, and there is a separate disorder for each substance, for example alcohol.  Behavioral addictions were also included in the DSM-V, although gambling disorder was the only addictive disorder explicitly included.

The concept of food addiction has also received attention in the literature, with a focus on overeating as primarily a substance use disorder but also perhaps a behavioral addiction.  The concept of food addiction should not be overinterpreted, but may help in understanding some forms of overeating.

Water use addiction is more of analogy and is certainly not a psychological diagnosis.  But there are many references to lawn addiction (which uses large amounts of water) in the popular media.  A quick Google search will yield many results about the water use resulting from lawn addiction especially in suburban areas.  But I do not want to be mistaken as suggesting that these have risen to the level of psychological disorders recognized by medical professionals and the DSM.

Diagnosing addiction is one thing, but treatment is yet another challenge. Organizations such as the Partnership to End Addiction are working to gather, organize, and spread the word on the latest evidence-based treatments for addiction.  Treatment programs include inpatient or outpatient rehab programs, medication, individual and group counseling, integrated care including mental health treatment, and follow up treatment including recovery support groups (think of 12-step programs like Alcoholics Anonymous, although there are also non-12-step groups). Harm reduction also features prominently in this area, which is the idea that any steps towards reducing substance use or lowering the risks when using is step in the right direction.

How can this view of overconsumption as akin to addiction inform our policy and legal approaches to reducing the impacts of consumption? For food addiction, the latest buzz has been focused on the development of medications to reduce appetite. This is an evolving area and while long-term effects are not yet clearly known, many short term side effects can be quite severe. But the pill has appeal because it is a relatively easy fix compared to behavioral interventions and other non-medication treatment models.  However, the costs for these drugs might be prohibitive if used on a broader scale, unless something is done to lessen the monopoly power of Big Pharma’s drug patents.

Turning to water use and lawns, experts have long suggested that the prevalence of lawns is due to structural issues such as the decisions made by developers and the lawn care industry, suggesting that people don’t actually want lawns, they are just stuck with them and change is hard. Laws and policies can help break this cycle such as limits on turf lawns in new development or incentives to replace existing lawns. 

Finally, across all of our consumption addictions, we should not overlook the impact that marketing has on us, and recognize that regulation of marketing might facilitate better choices regarding consumption. Tobacco regulation has lessons on effective interventions to curb addictive consumption. But also, we should not lose sight of the importance of us addicts recognizing the harm caused by our addictions and wanting to change, as well as the value of support systems and social reinforcement for long term recovery.

-- Kevin Lynch

"Green Colonialism"

            In 1972, a group of MIT economists published The Limits to Growth, a study that used computer models to analyze the future of our planet under twelve possible scenarios. In the 50 years since the book’s publication, the authors’ “business-as-usual” scenario has unfolded with alarming accuracy: population and economic growth have continued at about the same pace as in prior decades, and human activity has exceeded the planet’s carrying capacity. The authors cautioned, moreover, that we cannot innovate our way out of the climate catastrophe—technology alone would delay ecological collapse by only a few years. 

We have barreled past the Earth’s breaking point but somehow still failed to heed these warnings. Today, advocates of degrowth—like the economists whose computer models proved so prescient—contend that green technology cannot save us. Instead, Global North countries must curtail consumption. By shrinking our ecologically and socially destructive industries (like weapons, meat, and private transportation) and expanding the social foundation for a good life (high-quality and universal health care, education, and jobs), we can build new economies that do not depend on growth.

But degrowth has remained a largely fringe movement. In policy circles, the mainstream paradigm for responding to climate change is “green growth”—that is, consuming “better” rather than consuming less. Green growth advocates claim that technological innovation—which seeks to harness solar, wind, and other large-scale renewable energy—will reduce greenhouse gas emissions without necessarily requiring a reduction in consumption. But even proponents of green growth acknowledge that greenhouse gas emissions will not drop quickly enough with this approach. Questions remain, moreover, about whether infinite growth is possible on a planet with finite resources.

            Environmental justice advocates should challenge green growth orthodoxy for additional reasons. A boom in the production of electric vehicles, heat pumps, solar panels, wind turbines, and other green technologies will require a massive intensification of mining for rare earth minerals. As Thea Riofrancos writes, toxic and socially controversial sectors like mining have historically been offshored by Global North countries to the Global South, where mining operations are rife with human rights and environmental abuses. But the United States and European Union are now seeking to onshore the extraction of lithium and other critical minerals, believing that this shift in production “will enable end-to-end dominance of the [renewable technology] supply chain” and give them the upper hand in struggles for geopolitical leverage. At first blush, explains Riofrancos, this feels like justice—finally, after decades of “unequal ecological exchange” in which Global North countries exploited and extracted the labor and natural resources of the Global South, the U.S. and EU will not wreak social and environmental devastation on Global South countries to mine the critical minerals needed for green growth.

            But in the U.S.—just as in many Global South countries—indigenous communities will bear the brunt of critical minerals mining. Earlier this year, indigenous land and water protectors built a protest camp and used their bodies to block construction of the Thacker Pass Lithium Mine in Nevada. “Lithium mines and this whole push for renewable energy—the agenda of the Green New Deal—is what I like to call green colonialism,” said one member of the tribe. Last year, after the Biden Administration used the Defense Production Act to subsidize the extraction of critical minerals, advocacy organizations expressed their opposition to the move and urged the implementation of requirements to obtain the free, prior, and informed consent (FPIC) of indigenous communities.

            As Andrew Nikiforuk writes, we must grapple with what it means to continue down the path of endless growth— “replacing one unsustainable fossil fuel system with another intensive mining system powered by even more extreme energies.” The production of “clean” technology is not clean, and we know who will shoulder the burdens. Yet too many climate advocates seem willing to sacrifice indigenous communities in the pursuit of green growth. Even Bill McKibben suggests he is at peace with this tradeoff because the harm of green technology production is “localized”—limited to specific communities—while “the damage that comes from fossil fuels is global and existential.” What are the ethical and moral implications of this micro-harm versus macro-harm logic? Have we decided that marginalized communities are expendable in the name of green growth, just as they were expendable in the name of fossil fuel growth?     

-- Ruhan Nagra

Consumption All the Way Down

Anthropogenic change on Earth is occurring on a scale never seen before. Mounting evidence shows that humans are pushing the planet beyond its systems capacities due to growth of production, consumption, and population. To understand Earth’s systems, and to develop a framework for how we might better live within their capacity, scientists have engaged in ongoing research on Earth system boundaries. That work attempts to “quantify safe and just Earth system boundaries (ESBs) for climate, the biosphere, water and nutrient cycles, and aerosols at global and subglobal scales[.]” To live more comfortably within these boundaries, and to therefore maintain the security of Earth’s functional systems, consumption must be both improved and decreased.

The answer to the question of what constitutes the “good life” in the Anthropocene is a highly personal one. At the same time, the ways that question is answered, and the behaviors it drives, have global implications. While enormous market forces and global actors spur consumption of all kinds, many breaches of planetary boundaries are attributable to individual choices regarding resource consumption. Matching the global nature of the Earth system boundary problem with the individualized nature of the consumption practices of billions means there will be many disagreements about how to restrict and control boundary breaches.

The mismatch in scale makes tackling consumption and its impacts on the planet particularly daunting. That is especially true when considering the myriad collective action problems that arise when thinking about what level of government could and should tackle consumption in its various forms. What follows here is perhaps best considered a thought experiment into dividing responsibility for bringing consumption within supportable levels. It is intended to acknowledge the complexity of the question and the need for multiscalar action while also preserving some amount of choice in how needed limits are met. And it is, of course, just one of many needed pieces in a complex puzzle. Most crucially, perhaps, it acknowledges but does not otherwise engage with the issue that economic health in the United States and many other countries relies on consumer spending and consumption. But it makes the case that planetary systems limits should drive decisions about how and what consumption occurs.

Allocating individual responsibility for part of a collective harm is not new to environmental law. For the past fifty years in the United States, some of the major environmental statutes, including the Clean Air Act and the Clean Water Act, have attempted to allocate individualized responsibility for environmental harm to varying degrees. For instance, the Clean Air Act establishes national limits on certain air pollutants, and devolves responsibility to the states to come within those limits. That can be done within the state as a whole, or by separating the state into Air Quality Control Regions (AQCRs) that must individually come into alignment. Using a different mechanism, the Clean Water Act uses the Total Maximum Daily Load process to negotiate and allocate individual limits on pollutants entering contaminated water bodies.

What if we used similar mechanisms to match consumption to Earth’s systems capacities? Starting with an international maximum level of consumption driven by system boundaries, that number could be translated into jurisdiction-specific limits for individual countries, states, local governments, and even individuals depending on their contribution to the problem—crucially, calculated not only by what activities are occurring within that country but also by its share of responsibility for the demand for products, manufacturing, and waste disposal need.

Using the United States as an example, the federal government could develop a cooperative federalism model similar to the environmental statutes mentioned above by translating national limits into consumption quotas for states. While consumption may not share the same geographic and atmospheric patterns as air or water pollution patterns, states could also be broken into Earth System Boundary Control Areas (ESBCAs) that allow for more fine-tuning when it comes to setting limits. In that scenario, states would be responsible for ensuring that the ESBCAs come into alignment with the national standard. That kind of substate organization could operate as a form of regional planning that does not exist in most parts of the United States.

Similarly, state and substate actors in the United States could take the initiative on consumption in this framework. States that choose to tackle the problem could use the share of consumption allocated to them as a jumping off point for their own controls, even without a national scheme in place. If market leader states like California were to take on such a project, it could serve as a nudge for falling within these new parameters as well as impose new product requirements on national markets, and therefore potentially reduce consumptive uses in other states as well.

            For the many states in the United States that are unlikely to take on questions of consumption, local governments may also be able to play a role. Data that generates useful consumption limits for substate entities would give local governments a goal to work toward in places where they may be the only level of government willing to take on such questions. These local governments can be expected to be vulnerable to state preemption, depending on what kinds of initiatives they pursue. They may also, however, present an interesting test case for the federal government supporting environmental initiatives through data, financial incentives and direct funding. Finally, individuals could use consumption limits to guide their own behaviors, in the absence of government action.

            Using a quota-based approach to bringing consumption within planetary boundaries raises as many questions as it answers. There are questions about how to what it would mean to translate systems boundaries into actionable numbers, how to calculate shares of the problem, who gets to decide how compliance will be attained, what consumption-related measures would be appropriate, and countless others. But the proposal could be useful in offering a way through current inaction on consumption. By incorporating limits as well as flexibility in attaining them, it may offer a toehold on a daunting problem. And in the United States, as in other places, political realities suggest offering as many toeholds to as many actors as possible. If “the American lifestyle is not up for negotiations” at a high level, what the American lifestyle means, requires, and allows must be interrogated by those living it. Bringing in solutions that force that interrogation about living within planetary system limits while helping to preserve individual choice can perhaps drive forward conversation about consumption.

-- Sarah Fox

Rationalizing Water Consumption in the United States: Hydrogeological Reality vs. The Constitutional Right to Travel

    Human consumption of water imposes externalities on planetary systems, and at all scales. Globally, for example, human impoundments of surface water in reservoirs account for a significant fraction of observed polar drift and have shrunk day length by a few microseconds, while pumping of groundwater has tilted the Earth’s axis. Regionally, consumption of water means that major rivers around the world—including the United States’ Colorado River and Rio Grande River, the Yellow River in China, the Amu Darya (Afghanistan, Tajikistan, Uzbekistan and Turmenistan) and Syr Darya (Uzbekistan, Tajikistan, and Kazakhstan) in Central Asia, and the Tigris and Euphrates Rivers in the Middle East (Turkey, Syria, and Iraq)—no longer reach the ocean, with others like the Murray River in Australia and the Indus River in India at risk of the same.

    Local impacts of water overconsumption are even more common. In just the United States, for example, consumption of groundwater in California’s Central Valley has caused land subsidence of about 30 feet and collapsed some aquifers. Diversion of freshwater from the tributaries to Great Salt Lake in Utah is the most significant cause of the lake’s shrinkage, exposing about 80% of Utah’s residents to toxic dust. Overpumping of groundwater in Florida leads to saltwater intrusion.

    So, overconsumption of fresh water is a problem in many different kinds of climates. Nevertheless, these issues tend to be most acute in dry climates, particularly as climate change makes regions hotter and drier.

    Simultaneously, both the world as a whole and some states in the United States are increasingly incorporating a human right to water into law. As the United Nations Department of Economic and Social Affairs reports, for example:

On 28 July 2010, through Resolution 64/292, the United Nations General Assembly explicitly recognized the human right to water and sanitation and acknowledged that clean drinking water and sanitation are essential to the realisation of all human rights. The Resolution calls upon States and international organisations to provide financial resources, help capacity-building and technology transfer to help countries, in particular developing countries, to provide safe, clean, accessible and affordable drinking water and sanitation for all.

Moreover, according to the United Nations, this new human right is defined by five components: sufficient water for basic human needs, requiring 50-100 liters per day; safe water that is free of health-threatening pollutants and micro-organisms; acceptable water in terms of color, odor, taste, and cultural requirements, and that is sensitive to gender, lifestyle, and privacy requirements; physically accessible water, within 1000 meters of each person’s home and collectable within 30 minutes; and affordable water, where basic water needs can be met for 3% or less of household income.

    The United Nations’ vision of the human right to water thus explicitly incorporates cultural differences and norms but does nothing to connect this laudable human rights goal to the wildly varying hydrogeological realities that characterize aquatic systems throughout the United States and around the globe. In the eastern United States, for example, residents are still more likely to worry about flood than drought, and even severe drought years rarely threaten water supply in the same existential way as can occur in the West and other severely water-limited places, such as Cape Town, South Africa. Perhaps it is time to ask: Does a human right to water come with a duty to take account of the native water supply and the externalities imposed by human use?

    In other words, can the number of humans who can claim a right to take water from a particular source be limited by the native supply—especially if new humans are moving into a water-scarce location? Given the growing populations of many water-scarce locations in the United States, this is not a hypothetical question. Moreover, multiple approaches to answering the question are necessary. For example, even if a population isn’t growing, the substantive scope of an enforceable human right to water should probably vary depending on native supply—for example, it could be closer to the 50-liter end of the sufficiency scale in Phoenix, Arizona, and maybe 200 or more liters per day in wetter parts of the country. That seems a reasonable way to start matching human rights to geographic realities.

    The stickier problem is whether the right to water can limit population growth, as when native supply drops below the capacity to supply each resident with even 50 liters per day. California, which has a state-level human right to water, has so far avoided this dilemma by moving water from wetter but less populous parts of the state and from the Colorado River to cities and farms. But even that infrastructure is starting to be insufficient. So, leaving to the side the even stickier issue of whether water scarcity could limit internal population growth (i.e., existing residents having babies), it seems fair to ask whether the realities of a fully consumed water supply could ever allow municipalities and states to limit the number of people moving in.

    In the United States, the answer would appear to be “no,” and for two reasons. First, the United States as a whole does not yet recognize the human right to water—although, as noted, certain states like California do. Thus, outside of those states, no one has a right to even a minimally sufficient quantity of water.

    Second, the U.S. Supreme Court has long recognized a constitutional right to interstate travel, and that right doesn’t seem limited by consumption realities. While the Court articulated facets of the right to travel at least as early as 1867, see Crandall v. Nevada, 75 U.S. 35, 44 (1867), its earliest most complete declaration of the right came in 1958:

The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under the Fifth Amendment. So much is conceded by the Solicitor General. In Anglo-Saxon law that right was emerging at least as early as the Magna Carta. Chafee, Three Human Rights in the Constitution of 1787 (1956), 171—181, 187 et seq., shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.

Kent v. Dulles, 357 U.S. 116, 125-26 (1958). The right is protected as a fundamental right through strict scrutiny, Shapiro v. Thompson, 394 U.S. 618, 634 (1969), and played a recurring role in the Civil Rights movement. E.g., United States v. Guest, 383 U.S. 745, 757-58 (1966).

    So, we are facing a situation going into the Anthropocene where people in the United States have a protected right to move wherever they want, with no concomitant duty to take into account the impacts of their water consumption on wherever they are moving. At the same time, while local governments can impose some restrictions on water hookups and, in many western states, require proof of water rights before allowing new construction, their ability to simply state, “We’re tapped out. Don’t move here,” appears to be constitutionally severely circumscribed, if not outright prohibited. The results are Los Angeles, Phoenix, and Tucson. The right to travel, carried into the Anthropocene, means that Nashville and Buffalo—or any other city that currently doesn’t worry too much about the sufficiency of its water supply—could be next. Does overconsumption of local water supply have to become a national security issue—one of the few exceptions to the constitutional right to travel—before local and state planners can think about limiting growth?

-- Robin Kundis Craig

Eating Cheetos in the Anthropocene: Governing the Good Life at a "Whole of Consumption" Scale

Cheetos are undeniably yummy—so much so that I walk quickly past their section in the grocery snacks aisle, eyes locked on the cart. It’s not a pretty picture once I succumb and rip open a bag, the Puffs being my variety of choice.

Why do I deny myself Cheetos? Calories. Fat. Salt. Sugar. Let’s face it, Cheetos are not a healthy snack! But they are soooo tasty. A lot of Americans agree with me. Cheetos are the second most popular salty snack in the nation, behinds Lays and ahead of Pringles. Cheetos may not be good for you, but they are for millions of Americans part of the good life. An indulgence. A taste sensation.

You may ask, how is this discussion going to get from Cheetos to the Antropocene? The connection is what goes into defining “the good life.” We can mean “good” in a material way—as in living large, having fun, nice cars, feeling good—or in an ethical way—as in being and doing good. Having established that Cheetos are a bullseye on feeling good, let’s think about the ethics of Cheetos. The next time you try a Puff or Flamin’ Hot, take a good hard look at it before you pop it into your mouth. Where did that tasty morsel come from? How did it make its way to you? In short, what is the supply chain of a Cheeto? What is its impact on the world?

In the case of Cheetos, this question came up in a big way in 2014 when environmental and social justice organizations challenged PepsiCo’s use of palm oil from unsustainable sources and called for consumer bans, leading Cheetos to commit to sourcing palm oil from managed plantations. Of course, there’s nothing new in suggesting that we should interrogate product supply chains for their environmental and social impacts. Cheetos are not alone in that respect.

As consumers, though, we are at the end of hundreds if not thousands of supply chains daily. My grocery cart may not have bags of Cheetos in it, but every other item in the cart also has a supply chain about which I know very little. It’s easy as a consumer to think of your personal supply chain as starting at the grocery store (or, increasingly, Amazon), then you walk the cart to your vehicle, then you drive home, then you unpack the bags. But isn’t our true supply chain the supply chains of all the items in the cart? Your Cheetos supply chain begins with palm oil trees, not the grocery store.

Cheetos and palm oil are not the only instance of people discovering a bad link in a supply chain and going after it. We can blame corporate supply chains for bad practices, and we can shame consumers for choosing products from those supply chains. But the concept of the Anthropocene—a new geologic period defined by the aggregate of human impact on the planet—brings into focus that consumption is the root of the problem. Consumption is why supply chains exist.

Thinking this way can be overwhelming. What am I supposed to do? How much and what should I consume? Questions like these bring us back to the good life. If all consumption leads to the Anthropocene, how does one live a good material life that is a good ethical life? Less impact is better, but zero impact isn’t possible. We’re stretching the planetary boundaries and the planet doesn’t distinguish between good Cheetos and bad Cheetos. I’ll leave the ethical dimensions of that hard question to ethicists. My more practical interest is in putting consumers and consumption into the center of the conversation about the law and policy of the Anthropocene.

We need to take the relationship between consumption and the Anthropocene seriously. We tend not to, though. We govern consumption indirectly by regulating industries and products, or through taxes and other price controls. A concern with putting the spotlight on consumers may be that doing so obscures the responsibility of corporate actors. It also requires us to look at ourselves in the mirror. With the Anthropocene staring back at us, however, it is time to take a “whole of consumption” approach that demands consumer agency across the board.

Yet it is not at all clear how to get a governance handle on consumption at that scale, particularly in affluent nations with high expectations of what a good material life involves. Even during the palm oil controversy, most Americans did not give up their Cheetos. Maybe PepsiCo has improved its sourcing, but even if so, going after and improving supply chain defects doesn’t put consumption at the center of responsibility. Even if all past consumption and the supply chains making it possible had been ”good,” however we define that, we’d still find ourselves in the Anthropocene.

Boosting the law and policy focus on consumers raises many hard issues with no easy solutions. With few exceptions—Jim Salzman (here) and Mike Vandenbergh (here, here, ) being early and notable examples—legal scholars have not ventured far into the consumer side of the Anthropocene problem. Even when sustainable consumption has been the target, the focus usually has been on supply chains and product regulation, such as “take back,” “right to repair,” and other “circular economy” initiatives. These may be all well and good, but they continue to deflect attention away from the contribution of consumption to the Anthropocene. Picking up where authors like Salzman and Vandenbergh started, this is a call for legal scholars to weigh in by exploring how institutions and instruments can be designed to more robustly govern the whole of consumption, ideally without taking all the fun (like Cheetos) out of the good life in the Anthropocene.

-- J.B. Ruhl

Imagining Climate Havens in a Boiling World

These blogs seek to conceptualize what the good life means in a consumption-obsessed, planetary-boundary constrained era. Here we suggest that cities and towns are our epicenters for imagining what a good-life means in an era where climate change increasingly determines what is available to be consumed and by whom. More to the point, we suggest that the whole notion of a good life should be collectively discovered in the process of re-imagining what it means to create just and climate-resilient communities --that is, to create climate havens.

Cities and towns are facing major challenges to their abilities to maintain livable communities. Our cities are unprepared to face inevitable pandemics, drought, and homelessness. Massive storms, excessive heat, devastating wildfires, and even simple failures in our gray infrastructure are making some places unlivable. In the meantime, states that were previously considered destinations for retirees and voluntary migration, such as Florida, are so embroiled in cultural engineering (and not climate preparedness) that few – except straight, white, affluent folks – feel welcomed or safe in these places. Our communities are suffocating under the threat of cultural and climatic change. The challenge is real, and the reality is existential. Indeed, it almost seems unlikely that we could have a productive dialogue on future human and community needs in the era of climate “boiling”  when there is so much evidence that we are unable to keep people safe today.

This, however, is the work that we have to do. People are already on the move. We are seeing significant human displacement resulting from wildfires, sea level rise, flooding, and drought – all of which are exacerbated by poor disaster planning, economic inequality, and ideological combat. Yet, better planning is possible. A growing number of communities are intentionally engaging the climate emergency by preparing for decades of disruption, and it is in this context that we need a blueprint for a model city that is prepared for the onslaught of climatic changes and able to provide an equitable and inclusive quality of life. We need a blueprint for the climate haven – a place to live in which one feels belonging and engagement, while simultaneously experiencing opportunity and security in a climate resilient community.  The climate haven is a community that centers the inevitability of change, the irrefutability of existing patterns of inequality, and the possibility of planning for more just and sustainable communities at the intersection of the two. This should be the goal of every city and town in the climate era. 

Literature on climate havens is developing as “scholars, think tanks, news outlets, and local elected officials” engage the idea in critical discussions about the direction of climate preparedness. Climate havens must respond to both internal and external pressures of governance: how to pay (and who will pay) for adaptive improvements, which needs (past and future) should be addressed, whose perspective defines acceptable standards of living and need, whose cultural preferences and values should define community character, and which climate (and socio-economic) threats should be prioritized. Such a climate destination must also engage the question of the basic, critical characteristics that will allow communities to thrive in a climate-challenged circumstance. Such characteristics might include:

(1) Be situated to avoid or mitigate extreme climate impacts, especially in communities that are vulnerable to sea level rise, wildfires, and prolonged drought or heat waves;

(2)  Have equitable access to fresh water supply;

(3)  Have available affordable housing;

(4) Enjoy infrastructural capacity that exceeds (or can be upgraded to accommodate) the need among both current and future residents;

(5) Demonstrate a character of growth, cultural inclusivity and welcoming; and

(6) Be interested, versed in, and experienced with improving adaptive capacity through sustainability or resilience efforts throughout governmental operations.

(7) Embrace inclusive community-planning processes.

These are the minimal requirements for beginning the process of creating climate havens. How communities meet these needs will vary, in large part due to variations in topography, culture and history, climate, economy, and other geographical and socio-economic factors.  However, in our view, the model climate haven is inclusionary and is prepared to welcome those people who are fleeing climate-related disasters and “may have limited resources to relocate or rebuild.” The model climate haven addresses past injustices and inequities in ways that provides a clear path towards equity.  The climate haven is a place where officials examine and understand existing community vulnerabilities and value the need both to mitigate such inequities and to avoid reproducing them in the climate haven planning process. At the heart of the climate haven model is an appreciation of the ways that power is exercised through governance, how existing structures of power influence the appreciation (and distribution) of risk, and how equity demands that climate change responses address the needs of different communities.  In short, the climate haven represents good governance: a climate haven is a just city that is also prepared for climate change.    

To even envision the climate haven, we can at once recognize that the perspective of a community insider is relevant to understanding local needs, without allowing the insider’s values to dominate climate priorities.  Indeed, the cities and towns of tomorrow will be more dynamic and diverse as migrating folks encounter unfamiliar places and bring with them the stories, mythologies, and values that should not be the casualties of climate migration.  The climate haven will collapse the distinction between old and new residents to create places “where migration and immigration are seen as being strength and vitality and growth” for everyone. Cities and towns are our epicenters of climate planning. The climate haven model creates opportunities for re-imagining what it means to create just and climate-resilient communities. It is a model for imagining a “good life” where all members – present and future – of communities are acknowledged and accounted for as we adapt to the era of climate boiling.

-- Cinnamon Carlarne & Keith Hirokawa

What the Many Meanings of "Shelter" Share

What is shelter? Elementary school children learn in social studies class that shelter is what people and animals build to protect themselves from predators and weather conditions. They also learn that climatic, geographical, and cultural conditions have historically shaped the different kinds of shelters people build. Shelter, in these social studies lessons, is clearly a basic need, something that human and nonhuman animals must have to survive. But it is also much more. It reflects shared cultural traditions and human ingenuity to adapt to climatic surroundings.

            When ELC participants reflected on what shelter means, many individuals noted its safety and security connotations. Indeed, the word “shelter” is often used to refer to the emergency or transitional housing provided to individuals facing housing instability or to “animal” shelters that provide temporary protections for nonhuman animals. Others immediately thought of the word “home” and its association with family, tradition, and privacy—associations that may or may not carry with them feelings of safety or security.

            Given these seemingly divergent threads, how should we think about shelter in the context of a larger conversation about human consumption and planetary boundaries? Should we be asking whether individual preferences for certain kinds of shelter are realistic in a resource-constrained world? Or is this a conversation about emergency shelter in the wake of extreme events such as wildfires and hurricanes or in response to mass migrations caused by natural disasters, drought, heat, and political violence? Conversations regarding shelter clearly involve both sets of questions. But whether we approach shelter as temporary security or the more permanent housing we think of as a “home,” a common thread emerges: the distribution of shelter in our society reflects underlying structural inequalities, leaving the most vulnerable insecure in both the short and the long term.

For example, many people lack access to affordable housing. A recent poll indicates that nearly half of the U.S. population identifies affordable housing as a problem in their communities. Indeed, in 2020, 46% of renters were cost burdened, meaning that they spend more than 30% of their monthly income on housing, with 23% spending at least 50% of their income on rent. Rents have risen 18% over the last five years and do not show signs of slowing. Even before these trends, we faced an affordability crisis with an average of only 33 affordable, rental units available per 100 households with extremely low incomes, resulting in a shortfall of 7.3 million homes. The funds needed to address the affordable housing crisis are daunting, and the political will to do so seems unlikely.

Discussions about the affordability crisis focus on affordable rents because pathways to home ownership today are scarce. After World War II, home ownership was the primary means for white middle-class families to accumulate wealth. As the U.S. government helped white families underwrite mortgages, it long denied the same opportunities to nonwhite families through practices such as redlining. Local governments also passed laws to ensure residential segregation. The result of racial discrimination in housing is the structural racism we see embedded in our communities, including the considerable wealth gap between white and Black households today. This wealth disparity perpetuates the barriers to home ownership for nonwhite families today and further entrenches structural inequalities. A combination of high interest rates and high prices means buying a home is either impossible or financially unsound for many people today.

The housing affordability crisis is on a collision course with provision of emergency shelter in the wake of natural disasters and human migration. California has had a shortage of affordable housing for some time. Now the state must confront the gentrification of communities destroyed by wildfires; when a community’s housing stock is decimated by fire, only the wealthy and highly insured can afford to rebuild. In addition, local governments face difficulties implementing state mandates for affordable housing without allowing for further development in high-risk areas. Flooding is driving a similar dynamic; by 2050, the amount of affordable housing vulnerable to damage from coastal flooding could triple. Many of these homes are in communities that were subjected to historical redlining and are disproportionately burdened by pollution and climate impacts such as heat.

            Emergency shelter is a temporary solution to the human displacement that follows these wildfires, floods, and other climate impacts—as well as the human migration associated with conflict and economic hardship. But given the scale of displacement and migration, provision of short-term shelter is increasingly difficult as well. For example, New York City, the only major city with a “right to shelter” law, is struggling to house the 100,000 migrants and asylum seekers who have arrived since the spring of 2022. With emergency shelters at capacity, the city has housed people in hotels, tents, school gyms and office buildings. Faced with few options, the mayor declared a state of emergency and pursued legal means to lessen the stringency of the city’s right to shelter law. Moreover, without work authorizations, those migrating to U.S. cities must wait (in some cases, 180 days after filing an asylum application) to lawfully earn the income necessary to secure their basic right to shelter.

These work restrictions reveal the limits of our hospitality and the “right to shelter.” But even if NYC continues to find temporary shelter, the affordability crisis will complicate efforts to secure long-term shelter. Similarly, without more affordable housing, many people have no real choice but to fear that the climate impacts of flooding and wildfire will destroy their homes. No matter what meaning the word “shelter” evokes—whether it is about security or home—it shines a critical light on structural inequities and our political commitments in responding to them.

-- Shannon Roesler

Reallocating Environmental Risk

Living the good life has often meant finding ways to allow for growth and construction while ostensibly protecting the natural environment on which we depend. Want to build a housing development, but there’s a wetland in the way? Mitigate the harm by building a new one somewhere else. Want to dam a river, but there’s a salmon run in the way? Build fish passage around the dam. If that’s not feasible, build a hatchery instead. Want to log a forest, but worried about loss of downstream ecosystem services? Allow the harvest, with buffers and a few trees left behind to maintain essential services. Techno-optimism and overconfidence makes it easy to say yes and assume we can mitigate the impacts. Saying yes is much easier than saying no.

Unfortunately, these creative approaches often fail. Constructed wetlands fail to reproduce the essential hydrologic or biodiversity or other functions of natural wetlands. Fish passage fails to get enough fish up and down stream to keep populations viable. Hatcheries can’t sustain fisheries over the long term in the same way that habitat can. Even regulated logging can degrade downstream ecosystem services.  As a result, our good environmental intentions have paved a path to widespread degradation.

Sometimes it is due to a lack of effort or an unwillingness to spend the necessary funds, but often mitigation fails despite the best intentions. It is difficult to predict how natural systems will respond to perturbation, and recreating systems is even harder. The uncertainty of these allow-but-mitigate decisions is critical: we depend on functional natural systems, and failed mitigation risks our future. But our current approach allocates the risk of bad decisions to the environment. That is, when mitigation fails, the environment and the public, not project proponents, pay the price. There are very few consequences to the parties responsible for mitigation if they get it wrong.

Successful mitigation requires that mitigation associated with a regulatory approval be designed to effectively neutralize the damage, rather than simply to ensure that permits are issued and construction commences. Embracing some form of the precautionary principle might help, but we seem unwilling to put off decisions or simply deny projects with uncertain impacts. Iterative adaptive management with long term monitoring might help, but this approach often stumbles due to the difficulty in refashioning policies. If we’re going to keep relying on engineering or policy fixes to soften the blow (and all evidence suggests that we will), we need a better way to allocate environmental risk.

            Fortunately, we have faced this problem in other contexts, and policy makes have developed productive ways to manage uncertainty. Applying these approaches more broadly might reallocate environmental risk away from the environment and the public and place it on project proponents. Such a reallocation internalizes the risk for project proponents, leads to better environmental outcomes, and should lead to better environmental decisionmaking.

            For example, local governments often require developers who seek approval for new developments to provide needed public infrastructure improvements (e.g., roads, traffic control devices, sidewalks, water and sewer pipes, etc.) to reduce new congestion and defray the public costs of the new development. Because new development brings in higher use of public infrastructure, these improvements allow cities to ensure that developers pay more of the public costs of their developments. But if these improvements are poorly constructed or otherwise prone to failure, they can make the community worse off than before—more people, more expenses, and failed mitigation. This parallels the problems with failed environmental mitigation projects.

Local governments sometimes address this risk by requiring developers to post performance bonds. The developer purchases a performance bond from a third party, called the surety, a company that is “ensuring” the developer’s infrastructure work will meet relevant requirements. If the developer’s work fails to meet the requirements the government recovers funds from the surety which (ideally) are sufficient to bring the work up to par. Thus performance bonds allow developers to proceed with building their projects by guarding against the uncertainty of whether the required improvements will perform. The local government approving the project no longer bears the risk of the developer’s failure.

Financial assurances, in the form of bonds, insurance, or other mechanisms, could similarly play a more significant role in other areas of environmental law. New fish passage projects required for dams could carry insurance that would fund additional construction or even dam removal if functional fish passage proved impossible. Logging projects could require bonds that would pay for downstream remediation if efforts to mitigate impacts to the forest’s ecosystem services proved inadequate.

            The idea of environmental performance bonds or other financial mechanisms to ensure performance is not new, but it has been vastly underutilized. For example, an assurance approach is also used in wetland mitigation and stream mitigation for Section 404 permitting under the Clean Water Act. Under regulations issued in 2008, 404 permits issued by the Corps of Engineers require financial assurance based on performance standards for newly constructed wetlands, which should ensure that the new wetlands adequately mitigate the wetlands lost through the permitted dredge and fill. The financial assurances, which may take the form of bonds, insurance, or other mechanisms, are generally only required for 5-10 years, however, a time frame too short to determine whether the new wetlands will actually achieve their mitigation requirements. Bonding for mine reclamation and financial assurances for hazardous waste treatment facility closure provide other examples, although such assurances are often insufficient to cover actual reclamation costs (sometimes by an order of magnitude).

            We tend to assume success and proceed in face of uncertainty when other parties bear the risk of failure. We will also continue to get many mitigation decisions wrong. Thus, we need to reallocate the environmental risk away from the public and the environment. In this context, performance bonds or other financial assurances can reallocate the risk and increase the likelihood that mitigation will succeed, but this approach has been vastly underutilized to curb the current risk of loss in environmental permitting.  

-- Karrigan Bork & Keith Hirokawa

Consuming Our Way to Clean Energy

            “Electrifying everything” has emerged as one of the most viable strategies to decarbonize the energy system. Through this approach, renewables, and perhaps some new nuclear power, will replace fossil-fuel electricity generation; electric vehicles, appliances, and other equipment will replace their fossil-fueled counterparts; and storage technology will be integrated throughout the energy system. While some equipment in hard-to-electrify industries may be powered with biofuels and zero-emitting “green” hydrogen, the vast majority of the U.S. energy system will become all-electric. Unlike other decarbonization approaches that have focused on using efficiency and conservation measures to reduce fossil fuel consumption, electrifying everything treats demand-side equipment replacement as seriously as it treats decarbonization of energy supplies. This fuel-switching approach would accelerate the transition away from fossil fuels and create an energy system that could be more reliable, resilient, flexible, efficient, and affordable.

            Electrifying everything, however, hinges not only on changing modes of consumption, but likely on increasing consumption of the devices necessary to enable our all-electric future. According to one analysis, electrifying everything will require Americans to replace within the next 20-25 years more than a billion pieces of equipment that currently use fossil fuels or inefficient electric technology with modern electric equipment. These billion machines include approximately 275 million electric vehicles, 275 million vehicle chargers, 98 million heat pumps, and 49 million stoves and ovens. While each piece of equipment could, in concept, be replaced at the end of its useful life, the drive to electrify everything will almost certainly motivate some consumers to retire fossil fuel equipment early. This may in fact be optimal, as equipment turnover rates will likely need to accelerate to meet U.S. climate goals. The more electric vehicles and heat pumps we install today, the fewer fossil fuels we will consume now and in the future.

            The fact that energy decarbonization hinges so much on consumer choices makes electrifying everything both highly attractive and challenging. It is attractive in part because it makes the transition appear quite simple: to save the planet from climate change’s worst impacts, a person simply needs to buy modern electric equipment. Much as Americans responded to the call to “go shopping” to show their resilience after the attacks of September 11, 2001, now we’re being asked to use our shopping muscles again in the name of climate change. We can surely do that. Even better, the electrify everything movement has helped deflect criticism that climate mitigation requires untenable levels of sacrifice and deprivation. Electrifying everything offers a viable, positive, and simple way for people to do good by purchasing well.

            But, of course, it’s not so easy. Electrifying everything has potential downsides that must be resolved. The first, perhaps most obvious, downside involves the inequities that will almost certainly result from a consumer-driven equipment replacement approach. Wealthier households are much more likely to have the economic resources to purchase electric vehicles and new electric heat pumps (and the associated charging systems and upgraded electric panels). While the Inflation Reduction Act offers up to $14,000 in rebates for low- and moderate-income (LMI) households to install heat pumps and other efficient electric equipment, the equipment and installation costs for a heat pump alone might swallow the total available rebates available to LMI households on a lifetime basis. Households in urgent need of other energy system upgrades may therefore use the rebates for other improvements that may, or may not, advance the electrification of everything. If wealthier households do pursue electrification at a faster clip than other households, this could shift a higher share of the costs for natural gas utility service on lower-income households, perhaps precipitating a utility death spiral[1] that would exact an even greater toll on the lowest-income gas customers who have been unable to afford electrification. It is possible that costs will decline as deployment increases, but the incremental nature of end-use electrification makes it likely that the “soft costs” of building electrification will stay high, as they have with rooftop solar deployment.

            The consumption-oriented approach inherent in electrifying everything also does little to address the problem of overconsumption that has pushed the Earth past many of its planetary boundaries. While some clean electric technologies, like electric heat pumps, will negate the need for households to use separate heating and cooling appliances and will reduce overall energy consumption, the electrifying everything approach assumes that Americans will maintain the same levels of equipment consumption—especially vehicle consumption—as today. Although electric vehicles are environmentally superior to gasoline-fueled ones, and will be more so as the electric system decarbonizes, they are not environmentally or socially benign. Why must every household have an average of two vehicles, each with batteries designed to travel hundreds of miles, when most Americans travel, on average, 40 miles per day?  The short answer is because that is what consumers expect. Electrifying everything can deliver on those expectations, but it likely will not do more.

            This means that electrifying everything should be part of other, ongoing efforts to craft the society that we want. To reduce consumers’ desires for more than one car per household, communities will need to revive pre-pandemic efforts to increase the efficacy of public transit to make it more useful to a larger swath of people, and they should advocate to retain and expand walkable/bikeable/car-free streets that were created during the height of the Covid crisis. To ensure that all households have access to clean electric equipment, communities and governments at all levels must increase economic and technical support and streamline deployment. Those efforts, however, must operate in tandem with ongoing efforts to electrify everything. The exigency of climate change means that the pursuit of more holistic strategies to mitigate climate change, protect natural resources, and develop livable communities should not serve as excuses to delay the transition to clean energy. But nor should electrifying everything justify inequitable or profligate consumption. We will have to figure out how to strike the right balance as we consume our way to clean energy.

--Melissa Powers

 

[1] According to some analyses, natural gas utilities could enter a death spiral if they are unable to recover their sunk fixed costs due to declining sales and a shrinking customer base. As regulated utilities, gas companies have a duty to serve all customers within their service territories. To fulfill this duty to serve, gas companies have invested in large amounts of gas infrastructure, such as gas distribution pipelines and related equipment, to meet forecasted energy demand. Gas companies typically recover the costs of these investments, as well as profits, through amortized rates charged to their customer base. As the movement toward electrification has grown, wealthier users of gas have begun to replace gas appliances and furnaces with electric ones and have thus begun to exit the gas system. When these customers depart, gas companies will seek to raise rates for the customers who continue to use the gas system. As gas rates increase, more gas customers may opt for electric appliances, leaving fewer customers to pay for the gas system. Eventually, a death spiral could form in which each rate increase results in more customer departures, ultimately leaving the utility with unrecoverable sunk costs and lower-income customers who can neither afford to exit nor to pay increased rates for gas. See here for a description of the gas death spiral and links to analyses.