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!

 

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 — 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.

 

Living the Good Life in the Anthropocene: Essays from the Environmental Law Collaborative

The Environmental Law Collaborative (ELC) comprises a rotating group of law professors who assemble every other year to think, discuss, and write on an important and intriguing theme in environmental law. The goals of this meeting are both scholarly and practical, as ELC participants seek to use their disparate areas of scholarly expertise to study trends and important events in the law and ultimately to improve the environmental conditions of the world in which we live. 

Participants at the ELC’s most recent meeting in July 2023 were asked to consider what it means to live the good life in the Anthropocene. To frame the conversation, participants first considered the Stockholm Resilience Center’s concept of planetary boundaries. As the Anthropocene progresses, the Center has concluded that the number of planetary boundaries that we are crossing is steadily increasing, from three in 2009, when the Center’s researchers first introduced the concept, to six in 2023.

Planetary boundaries represent a safe operating space for humanity; crossing them, in turn, means that humans are changing basic attributes of planetary systems—such as biodiversity, climate change, freshwater use, and toxic loadings—to the point of risking the future of human civilization.

However, for the first time, in May 2023 in Nature, these researchers assessed not only the safe planetary boundaries but also the just ones. Considerations of equity and justice, the authors concluded, require that we re-think three of the planetary boundaries: nitrogen, which is critical for fertilizing crops but also creates water pollution, harmful algal blooms, and marine dead zones; aerosols; and climate change, which imposes disproportionate impacts on some populations.

The distinction between “safe” and “just” planetary boundaries raises several questions regarding how to conceptualize the “good life” in the Anthropocene. The ELC discussions in July 2023 and the essays that follow played with various conceptions of the “good”—from “enjoyable” to “moral”—as well as the various elements necessary to a good life in the Anthropocene, from choice to respect to requirements like fresh water to amenities like outdoor recreation.

 Authors and titles of the posts:

• Karen Bradshaw, What Makes the Good Life?
• Rebecca Bratspies, Baking in Inclusion
• Michele Okoh, Reflections on Beauty in the Anthropocene
• Danielle Stokes, Governing for the Good Life
• Amber Polk, The Tragedy of Living in the Anthropocene
• Melissa Powers, Consuming Our Way to Clean Energy
• Karrigan Bork & Keith Hirokawa, Reallocating Environmental Risk
• Shannon Roesler, What the Many Meanings of Shelter Share
• Cinnamon Carlarne & Keith Hirokawa, Imagining Climate Havens in a Boiling World
• J.B. Ruhl, Eating Cheetos in the Anthropocene: Governing the Good Life at a “Whole of Consumption” Scale 
• Robin Kundis Craig, Rationalizing Water Consumption in the United States: Hydrogeological Reality vs. The Constitutional Right to Travel  ​
• Sarah Fox, Consumption All the Way Down
• Ruhan Nagra, Green Colonialism
• Kevin Lynch, Breaking Our Consumption Addictions
• Jessica Owley, What Is the Good Life in the Anthropocene?
• Anastasia Teletsetsky, Inequity, Excess Commercialization, and Overconsumption in the Anthropocene: Two Very Modest Regulatory Proposals 
• Bruce Carpenter, Josh Galperin & Francis Hicks, Accessioning Joy

The Environmental Law Collaborative would also like to thank the USC Gould School of Law and the Vanderbilt Law School for their generous support of the July 2023 meeting!

--Robin Craig, Rebecca Bratspies, & J.B. Ruhl

Adapting to a 4°C World: Essays from the Environmental Law Collaborative

The Environmental Law Collaborative (ELC) comprises a rotating group of law professors who assemble every other year to think, discuss, and write on an important and intriguing theme in environmental law. The goals of this meeting are both scholarly and practical, as ELC participants seek to use their disparate areas of scholarly expertise to study trends and important events in the law and ultimately to improve the environmental conditions of the world in which we live. 

Participants at the ELC’s most recent meeting in July 2021 were asked to consider the adaptation challenges of the worst-case climate scenario: a world that warms to 4°C by 2100. As environmental law professors, we remain dedicated to the study and support of laws and policies designed to mitigate greenhouse gas emissions and avert the worst-case scenario. But we cannot ignore what scientific studies and newer climate models show. The Paris Agreement’s goal to hold warming to 1.5° – 2°C above preindustrial levels now appears unrealistic. In the United States, regulatory inaction and political gridlock frustrate efforts to implement the decarbonization measures that we need now to prevent the warming predicted by climate models. At the international level, the commitment and cooperation necessary for dramatic emissions reductions also appear unlikely.

To frame and inspire discussion about the consequences of a 4°C world, participants read a recent article by two ELC members, Robin Kundis Craig and J.B. Ruhl, who argue that because a 4°C world is likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adaptation. A 4°C world is one marked by dramatic sea-level rise, devastating heat waves, extreme drought, increased flooding, food insecurity, and radical shifts in ecosystems and biodiversity. Some communities may not be able to adapt; they may simply have to move. Adapting our laws and governance structures to physical and social disruption at this scale requires transformative thinking.

In the blog posts we will share this month, ELC participants explore what it means to adapt to a 4°C world. Some posts highlight the inadequacy of current legal doctrines, planning policies, and governance structures to meet the adaptation challenges ahead. Others examine the need to rethink laws and institutions that govern ecosystem services and issues of biodiversity. And some focus on issues of social equity and environmental injustice. Although each post makes its own contribution, they share a deep concern for the future and an urgency to mitigate not only the emissions that drive us closer to 4°C, but also the serious harms that we will suffer if we fail to plan for the worst-case scenario.

Authors and titles of the posts to come:

• Karrigan Bork, Shi-Ling Hsu, & Kevin Lynch, Western Water Rights in a 4°C Future
• Melissa Powers, Designing the 4ºC Electricity System to Achieve a 2ºC Future
• Josh Galperin, Compensation at 4ºC Celsius
• Karrigan Bork, Room for Nature
• David Takacs, In a 4°C World, the Inexorable Climate Change-Biodiversity Nexus
• Michele Okoh, America Erased
• Cinnamon Carlarne, The Mutable Boundaries of a Worst-Case Climate World
• Sarah Fox, The 4ºC City
• Karen Bradshaw, Climate Change Lessons from a Disney Princess
• Keith Hirokawa, More Better Information as 4°C Preparedness: Ecosystem Benefit Flows and Community Engagement
• Jessica Owley, Harnessing Eco-Anxiety and Triaging for the Future ​
• JB Ruhl & James Salzman, Rawls@4°C
• Shannon Roesler, The Costs of Political Polarization and Gridlock
• Robin Craig, Contemplating Equity from the Deck of the Titanic: A Metaphoric Meditation for a 4°C World
• Clifford Villa, Letting Go of 2˚C, Letting Go of Race?
• Shi-Ling Hsu, Catastrophic Inequality in a Climate-Changed Future
• Katrina Kuh, Precommitment Strategies to Avoid the Justice Worst Case in the Climate Worst Case

- Shannon Roesler

Aggressive Solutions to Disrupt Biodiversity Loss

David Takacs is a Professor at University of California Hastings College of the Law

This is the thirteenth and final essay  in a series  from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

Biodiversity is disappearing rapidly, portending grave results not just for nonhuman species (and the populations and individuals that comprise them), but for the functioning ecosystems they constitute, and the human communities that depend on diverse species and thriving ecosystems -- that is to say, all of us. It is perhaps the single greatest problem our species faces. Even though 15% of the Earth’s land has designated formal protection, about 1/3 of that land “is under intense human pressure,” and only ¼ of Earth’s land surface remains free from substantial human impacts.  Such degradation harms the wellbeing of over 3 billion people, and consumes more than 10% of annual global gross product through loss of biodiversity and ecosystem services. Only 13.2% of oceans are “wilderness,” and only 4.9% of those areas are within protected areas.

While cultivation (agriculture, ranching, forestry) and direct exploitation remain the gravest harms to biodiversity, climate change increasingly threatens biodiversity as species are unable to adapt to a rapidly and chaotically changing world: Our current, static methods of conserving species become increasingly inadequate if we do not preserve or restore habitats species will need in a climate-addled future.

We have made strides making laws that constrain humans from wantonly destroying everything.  The need for conservation is a customary norm around the world. Nearly all nations have acceded to the Convention on Biological Diversity, and nearly all nations make some attempts to preserve their genetic heritage, with laws that sustain endangered species and/or protect land important to vital ecosystems and the biodiversity they sustain.

But the cataclysm of species annihilation proceeds apace.  According to the IUCN over 26,000 species are threatened with extinction, including 41% of amphibian species, 24% of mammal species, and 13% of bird species face grave extinction threats.The human population is projected to grow to nine billion by 2050 and likely to eleven billion by 2100, while the average person’s buying power and consumption will grow by 150%.Our laws to conserve are not keeping pace with our drive to destroy.

To stave off a disastrous disruption in human and nonhuman survival, law needs to evolve quickly andradically.  I am not challenging current legal foci on endangered species and protected lands, which, at least, concentrate easy to identify entities (I do know what a bald eagle is, but might have trouble drawing the parameters of a given ecosystem type), and has meant that some species that would otherwise be gone still live alongside us. We can certainly exponentially ramp up what we’ve been doing.  Nor am I advocating one or more of the following legal disruptions as the ones we oughtto choose.   But we do have to rethink, drastically, our current approaches to living alongside biodiversity if we are to have ample biodiversity along which to live, and if human civilization is to be sustained in some recognizable form.

E.O. Wilson and other prominent conservation biologists proposed setting aside “half for nature.” Protected areas do help biodiversity survive. If done smartly -- with careful planning to conserve megadiverse areas that human communities depend upon for local and global ecosystem services -- biologists estimate we could steward 85% of nonhuman species while sustaining the human communities that depend upon them. 

This would also require that the law evolve from a static conception of species and landscapes -- put a fence around an area, manage species in forms and places they’ve long been -- to a more dynamic form grounded in pinpoint adaptive management. We’d need to think about maintaining evolutionary potential outside of formally protected areas so that species could migrate, and develop nimble systems for prioritizing high level protection as areas formally protected for species no longer suit their needs in a changing climate. Law would need to specify performance standards for areas and species of concern, i.e. ecological indicators or benchmarks that must be met, and if not, required pathways to change how we’re doing what we’re doing. Managers would constantly be measuring, monitoring, reporting, and verifying in accordance with the standards. This would also result in greater employment for local people as biodiversity managers, green jobs rooted in caring for the Earth.

Current efforts to conceptualize and operationalize “Nature’s Contributions to People” broaden our notion of “ecosystem services.” Including harder-to-quantify contributions of biodiversity to our well-being may result in being more inclusive in who gets to define what those contributions are and thus what should be preserved. For selected areas, law might provide management autonomy with transfer of property rights for local guardians with a track record of care and stewardship. Law would need to be nimble and place-specific for whom are the legally mandated managers, who monitors that performance standards are being met, and what are the legal consequences for derogation from those standards. 

Concerted, focused, effective efforts to stave off biodiversity loss will likely be very, very expensive.  To afford this, particularly in the global South, (but even in the North, where no country comes close to preserving “half Earth,” or are successfully staunching species loss) would be to take the legal principle of Common but Differentiated Responsibilities  (CBDR) seriously.  Wealthy countries (and individuals) have become wealthy by exploiting lands and species of the South (or by exploiting other citizens) without proper compensation. The same entities have polluted the global atmospheric commons without paying for the externalities of that pollution. Laws implementing CBDR would alleviate the poverty that requires the poor to degrade nonhuman landscapes, and to pay for land and species conservation, including employment for a cadre of conservation professionals and paraprofessionals. All of this could be abetted by negotiating a new multilateral environmental agreement to replace the weak voluntary commitments embedded in the Convention on Biological Diversity, or by amending that agreement to put some teeth into it, including requirements to implement CBDR aggressively.

Law hasbegun, increasingly, to ask those who degrade the global environment to pay for such degradation.  Under the aegis of “polluter pays” principle, REDD+  (Reducing Emissions from Deforestation and forest Degradation) allows greenhouse gas polluters to “offset” their pollution by investing in reforestation or avoiding deforestation, allowing trees to work their photosynthetic magic by sucking up CO2. Biodiversity offsetting takes this logic one step further, by asking developers to offset damage to targeted species or ecosystems by paying others elsewhere to conserve those species.  Both practices are controversial; but to stave off mass extinctions, when done right and on a large, monitored scale, market mechanisms could inject many billions of dollars into government conservation coffers, particularly to incentivize conservation on private lands (where otherwise conservation would not occur). State of the art collaborations between regional planners, social scientists, community groups representing disparate interests, climatologists and conservation biologists could predict where species and ecosystems might likely migrate, where human communities are likely to expand, and to prioritize migration corridors that will allow natural communities to adapt to climate change: Market mechanisms can direct and prioritize conservation in these areas. 

Desperate and wildly ecologically changing times require us to rethink all of our notions of what “belongs” where.  Law could permit and define parameters on aggressive conservation translocation. In a paradigm change from traditional static notions of biodiversity conservation, we might assist colonization andintroduce species to where they’d historically been, exporting species from places where habitat no longer exists or soon will not exist due to changing climates or growing human demands. These can be reintroductions to where species have been and now disappeared, or reinforcement of individuals into existing populations of that species. The “rewilding” movement focuses on top carnivores whose (re)introduction revitalizes ecosystem functions and augments species diversity.   Such programs could also consider introducing species that have not existed in a place, that would be “invasive,” but nonetheless might have some chance of fulfilling ecological roles and adapting to the onslaught of climate change.

And given that we are already radically altering what may exist and where, we might use genetic manipulation or “rescue” for endangered species. Taking this one step further, we could resuscitate extinct species through genetic manipulation.   So, for example organizations like Revive & Restore  seek “de-extinction,” the return of the woolly mammoth, passenger pigeon, and heath hen through tissue biobanking, intense genetic (re)sequencing, and cloning.

A different line of thinking suggests that radical conservation interventions -- put a fence around half the Earth’s surface, manipulate the genetic endowment of life -- are dystopic interventions that totally miss the point that poverty and inequality drive biodiversity loss, and that “put a fence around and protect it” conservation lead to human dislocations, political upheaval, and general human misery.   The only sustainable way to maintain nonhuman communities (and thus human communities) is to change the paradigmatic drive towards ever greater economic growth that inevitably degrades ecological and human capital, and to transfuse wealth from overconsuming rich to disenfranchised poor, North to South. 

The ultimate sustainable route to biodiversity conservation is through what I call “deep equity,”   i.e., a fundamental change in what we value and how we operationalize those values in law. Deeply equitable solutions maximize and synergize individual, community, and nonhuman health and potential. Such values, as they become deeply rooted in societies, would also become deeply rooted in those societies’ laws, creating a virtuous circle.  One such value change might be reflected were we to give various different biological (or nonbiological) entities fundamental rights,  reflecting our expanding conception of beings to whom we owe ethical obligations, with laws implementing those obligations.  Or, simply, the wealthy need to consume much, much less than current rates, reflecting the urgency of our situation.

But law evolves slowly, and we are unlikely to pursue many of these in the short term, and in the long term it may be too late to preserve large swathes of functioning ecosystems or the magnificent creatures that inhabit them, or to save our own species that ineluctably depends upon these ecosystems.  And that is the ultimate disruption that environmental law has thus far been ill-equipped to prevent.

Is It Time to Say Goodbye to Environmental Law?

Inara Scott  is an Associate Professor in the College of Business at Oregon State University

This is the twelfth  in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

Besides being a legal scholar, I also write fiction. My first published book was a young adult novel, and it was in publishing that I became familiar with the problem of shelving. You see, before you can sell your book, you have to identify the genre. That designation tells booksellers and librarians where to shelve the book; for e-books, it identifies what category to put it in for online searching.

If you can’t label it, they can’t sell it.

Picking a genre determines how the book is marketed and who becomes the audience. Genres also carry deeply embedded connotations: for example, who do you picture reading romance novels? Who do you picture writing them?

The boundaries of genres can make it impossible to write and sell certain kinds of stories. Understanding this, authors consider where their book will be shelved beforethey write and modify their story ideas accordingly.  Until the 1970s, few books were written with teenage protagonists because there was no such genre as “young adult”—the genre of books for young people aged 12-18 wasn’t officially created until the 1960s.  

Like fiction authors, lawyers are trained to think about law in discrete categories. Interdisciplinary efforts may be viewed with skeptical, or even disapproving eyes.  As a professor teaching environmental law at a business school, I can say from first-hand experience that many do not consider me to be part of the “environmental law” community simply because of where I teach.

TheAnthropocene—and more specifically, climate change—offer existential challenges to the survival of humanity and life on this planet. Many instinctively turn to environmental law to solve these challenges. Unfortunately, I don’t think the challenges we face will be solved by items on the environmental law shelf. No, I believe we need to start fresh, create a new genre, and leave environmental law firmly in the past.

To explain why, let’s start with what the environmental law shelf currently contains. Most definitions of environmental law describe statutes and regulations that govern how people interact with the natural environment—the “natural environment” in this context being non-human species, plants, and natural resources. Environmental law is also generally understood to include pollution control and management of public lands and natural resources. The laws most would identify as the cannon of the environmental law genre (e.g., the Endangered Species Act, the Clean Air Act, and the Clean Water Act) focus on this relatively straightforward human-environment formula. These laws generally arose out of a perceived environmental crisis, a desire to protect the environment from human harm, and a need to ensure environmental resources were available for human consumption.

Over time, the popular understanding of environmental law, including this human-environment formula, created certain expectations for and limitations on the genre:

1)Environmental law addresses interactions between humans and the natural environment, and ways to limit human actions in order to protect the environment. Conversely, environmental law does not focus on human-to-human interactions or economic transactions. Matters having to do with corporate law, tax, and business are generally not included. It is only recently that energy law—including fossil fuel extraction and electric utility regulation—has been considered alongside or even linked to environmental law. 

2)Environmental laws address narrow targets with narrow solutions. For example, the Endangered Species Act creates a mechanism for protecting individual species. It was not intended to create a mechanism for considering bigger questions—i.e., how do we protect biodiversity?  

3)Environmental law is furthered by liberal white activists. Environmental law is not relevant to conservatives, people of color,  or people living in urban settings who don’t like the woods.

Point number three is perhaps the most dangerous aspect of the environmental law shelf. In a time of virulent political division, environmental law, like anything associated with climate change, is associated with one perspective and one political party.  Sadly, it is also associated with one race and one socioeconomic status, and negatively associated with strident activism.  Overall, the percentage of Americans identifying as environmentalists is down to 42% (from 78% in 1991).

So, at this point in history, what the public thinks of as environmental law is law that: does not address corporate governance or economic regulation; sees humans as separate from and antagonistic to the “natural world”; is narrowly focused on singular solutions in a complex world; and is not relevant to a diversity of perspectives or identities.

The danger here should be obvious from this list: many of the areas that currently fall out of the environmental law arena are precisely the ones that are essential to addressing the key challenges of the Anthropocene. Lawyers seeking to mitigate climate change mustembrace corporate law as a key part of their toolbox. Shareholder primacy and corporate law that fosters short-termism must be countered if we are to fight overuse of natural resources and a culture of unfettered consumerism. Smart infrastructure development and management of the electricity sector is essential to decarbonizing our economy.  Understanding how to rethink the field of economics could create a path for sustainable development.

To be clear, I’m not talking about simply rebranding the environmental law shelf. Rather, just like the genre “young adult” had to be created to allow for the flowering of teenage literature, I believe we need to develop a new term to describe the legal challenge ahead of us.

I suggest we call this new genre “Commons Law.”

By using the term “commons,” I hope to draw attention to a few issues. First, I recognize that the tradition notion of the commons is a resource shared by the public that is not privately owned. However, Commons Law will refer to regulation of public andprivately-owned resources. Why? In the Anthropocene, I believe we must confront the reality that the Earth is our commons, and whether activity takes place on private orpublicly-owned land, it can have significant impacts on all people.

Second, I hope to call up two environmental law stalwarts that may seem contradictory: Garret Hardin’s Tragedy of the Commons,  and Elinor Ostrom’s Nobel Prize winning work regarding the Governing of the Commons.  Hardin’s work is appropriate, because many would say we are living proof of the tragedy that occurs when communities share resources and individuals have the incentive to overuse and pollute, rather than conserve. Ostrom’s work is also appropriate, however, because she provides a response to Hardin, offering ways to govern shared resources that do not end in collapse of the resource and do not require privatization.

Commons Law must be broad, diverse, and big enough to contain seeming contradictions. It must recognize that creation of sustainable communities includes economic activity and must include, or even focus on, the regulation of this economic activity. It must address the governance of corporations that control the majority of global resources and threaten global ecosystems. It must also recognize the value in non-human species, biodiversity, and the preservation of spaces that are free from human development.

Commons law must be interdisciplinary and intersectional. It must avoid the trap of zero-sum environmentalism by casting a wide net for stakeholders and developing new legal tools that consider social justice alongside ecosystem protection. To meet the unique challenge of the Anthropocene we need to start thinking outside the environmental law shelf.

The cannon of environmental law deserves a proud place in environmental history for its contributions to our planet. However, it does not serve us well as a model for the Anthropocene. Moving forward, I believe we need to leave environmental law to the past and start fresh. Educate new lawyers, activists, and community members in a different way of thinking, planning, and legislating.

The Anthropocene demands nothing less.

Preparing Environmental Law for the Climate Dystopia

J.B. Ruhl  is the David Daniels Allen Distinguished Chair of Law, Director of the Program on Law and Innovation, and Co-director of the Energy, Environment, and Land Use Program.

This is the tenth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

The probability of holding the climb in atmospheric temperature to 2°C above pre-industrial levelsis rapidly approaching zero.  Barring a global political miracle, technological breakthrough, or economic collapse, we will surpass 2°C and enter an era of climate dystopia. How long that lasts before, if ever, we turn the corner is anyone’s guess. Among the many casualties will be environmental law as we know it.

I paint a bleak picture, but it is one our nation’s institutions of environmental law must face. Vast expanses of human populations will demand that their well-being be protected from storms, droughts, pests, diseases, and other harms climate change will bring their way. The built environment will be reinforced or moved. Agricultural lands will be retooled or relocated. Halting the spread of crop pests will be a priority. Malaria, dengue fever, and other diseases will be controlled at all costs. Water will be moved to where it is desperately is needed. People living where relief is simply unattainable will be relocated or leave on their own accord. Equitable distribution of these and other protective measures will be demanded. And if environmental programs such as the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Section 404 of the Clean Water Act (CWA), Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and their many kin stand in the way of these adaptive responses, they will be mowed down. To be blunt about it: environmental law must prepare for the climate dystopia or be pushed aside.

The prospect of a climate dystopia means environmental law must put its money where its mouth is. For over a decade, advocates for swift and robust controls on greenhouse gas emissions argued—rightly so—that failure to implement such controls would lead to a drastic global scenario of massive disruption to social-ecological systems. With failure increasingly likely, it would be untenable to suggest that the scenario is less dire than claimed or that adaptation measures of unprecedented scale and magnitude will not be necessary. Rather, climate change “mitigationists” must now work alongside “adaptationists,” and environmental law will need to conform to both agendas.        

To be clear, I am not for a moment suggesting that environmental law back off efforts to control greenhouse gas emissions—even as we pass 2°C we must continue work to turn it around (although a separate issue is whether hardline environmentalism’s opposition to new gas pipelines and electric transmission lines is actually impeding mitigation). Rather, it is climate change adaptation, not mitigation, that will push back on environmental law as we know it. This will be a new kind of challenge for environmental law. For the most part, the controversies enveloping environmental law until now have mostly been about an “environment versus economy”  rhetoric. Environmental law has been cast by critics as the enemy of jobs and the enemy of property rights,  but rarely has it been cast, even by its most ardent opponents, as the enemy of public health and safety (a recent example, though, is President Trump’s preposterous claim that water conservation initiatives had prevented firefighters from accessing water to combat California’s raging wildfires). That will change in the era of climate change adaptation, if environmental law does not itself adapt.  

Before considering what can be done to prepare environmental law for the climate dystopia, let’s consider and dispense with the option of staying the course, fighting the fight, and not giving an inch. This strikes me as a suicidal strategy. People whose health, safety, and security depend on rapid and robust adaptation measures—shoring up coastal barriers, eradicating disease bearing insects, protecting crops from new migrating pests, securing drinking water supplies—will have sharply diminished tolerance for protracted NEPA litigation, for avoiding all impacts to endangered species, for staying out of wetlands, for conserving water supplies, and for other environmental protection and conservation measures taken as a given today. Giving no ground by behaving as if the climate adaptation demand for new infrastructure is like today’s highway project, or as if the demand for deploying new pesticides is like today’s FIFRA registration challenge, or as if the need to clear habitat for new agricultural land development is like today’s endangered species conflict, will be a sorely misguided strategy. This is not to say environmental law must simply go away, but taking a hard line position of enforcing all existing environmental laws to the hilt will ignite a furious backlash that could open the door to a wholesale rollback of regulatory programs, and with broad and deep public support for doing so.

So the more realistic question to ask is what can environmental law do now to become more facilitative of climate change adaptation without sacrificing core values and goals? We do not want to throw the baby out with the bathwater. Several strategies seem viable and capable of being implemented under existing laws. The following descriptions of their core approaches use federal law as the medium for explanation, but they could be instituted at state and local levels as well.

Maximize connections to public health and safety. Although some corners of environmental law are closely tied to promoting public health, such as air pollution regulations, that connection has not often been drawn to natural resources programs such as the ESA and Section 404, and protecting public safety has generally not been a theme of environmental law. More could be done on this front. The ecosystem services theme that has gained prominence in the past two decades is aimed in this direction. For example, wetlands provide water purification and groundwater recharge services as well as protection against inland flooding and coastal storm surges. Wherever it can be shown that robust protection of natural resources promotes climate change adaptation strategies, those connections should be made and widely advertised. This will only go so far, however, as those connection must be shown to be real and credibly assessed.

Establish criteria for what qualifies as a climate change adaptation action. Clearly, not every action and project should be considered as furthering climate change adaptation, hence it will be important to establish a set of criteria for designating a project as truly serving necessary and urgent climate change adaptation and thus qualifying for the approaches outlined below. A multi-agency commission could be charged with evaluating which projects qualify. This could very likely be instituted by a presidential executive order establishing the commission, outlining the goals, and directing executive agencies to use existing authorities to achieve them.

Embrace compensatory mitigation. Although compensatory mitigation already is deeply embedded in many programs, most prominently in Section 404 wetlands mitigation banking, it needs to be expanded, simplified, and made widely available. Climate adaptation, especially shoring up or relocating built environment infrastructure, is going to have extensive impacts on natural resources, and holding to the strategies of avoid and minimize preferred in today’s environmental programs will be problematic.   Also, the Obama Administration’s stated goal of having compensatory mitigation produce net environmental benefits, even when not required by law (it seldom is), which the Trump Administration rescinded, would be a magnet for opposition. Something closer to the ESA’s “maximum extent practicable”  standard for qualifying actions, which does not require full compensation (much less net benefits) could be workable. Section 404 of the CWA itself imposes no standard; indeed, it does not mention mitigation—Congress required the Corps to establish “performance standards” for mitigation in a 2004 military appropriations bill, but there also imposed no outcome standard. It may also be necessary to allow compensatory mitigation after the fact, so as to expedite necessary projects.

Expedite processes. Speaking of which, there already is a fierce debate whether pre-decision impact assessment processes such as NEPA, ESA Section 7, and FIFRA registration take too long to complete and are too costly. That debate will only intensify as important adaptation measures are at stake. But mandatory page limits and time limits are not needed across the board, as the Trump Administration is pushing for.  Rather, qualifying climate adaptation projects could be moved to an alternative consolidated impact assessment “fast track” under which one document would serve all such review programs, only “no action” and “proposed action” would be considered as the alternatives, and mandatory time frames would be in effect. Nothing in NEPA, Section 7 of the ESA, or Section 404 of the CWA precludes such an approach for land development projects. The respective agencies (CEQ, EPA, and Corps) could therefore promulgate regulations establishing this approach.  

Leverage statutory substantive flexibility. Many of our current environmental laws actually are sufficiently flexible to allow regulators to scale back on controls and conditions where appropriate to facilitate important climate adaptation initiatives. For example, Section 404(b)(1) of the Clean Water Act, which authorizes EPA to promulgate water degradation guidelines for the Corps of Engineers’ issuance of Section 404 permits, does not establish any fixed standards or limits. By cross-reference to Section 403(c), it simply lists the types of effects the guidelines must address. And the EPA is authorized in Section 404(c) to veto a Corps permit only if it will result in an “unacceptableadverse effect” on any of several specified resources. Similarly, FIFRA pesticide registration is held to a standard of not imposing “unreasonableadverse effects on the environment,” defined to require a cost-benefit analysis.  EPA very likely would have the authority to carve out qualifying climate change adaptation infrastructure projects and pesticide registrations for a specialized set of guidelines as to what are “unacceptable” and “unreasonable” environmental impacts. Even the ESA, often depicted as rigid and demanding, has room for flexing on behalf of climate adaptation projects. For example, given that it operates on a species-wide assessment scale, very few projects today result in the dreaded “jeopardy” finding under the interagency consultation provision of Section 7,  and the Section 10 permitting process for non-federal actions leaves ample room for using compensatory mitigation flexibly.       

Institute “repair accounts” and “repair planning” to offset relaxed standards.The quid-pro-quo for all of the above could be to keep track of impacts that were not avoided, minimized, or mitigated because of the above measures and put them in a “repair account” tagged to the entities carrying out the project. A condition of the permits covering the project could be to develop a “repair plan” that would require fixing or compensating for those impacts in the future when it makes sense to do so. For example, repairing efforts might not be prudent while temperatures are past 2°C and still rising.

***

These and similar measures within reach under existing environmental laws may not provide enough “flex” to accommodate needed adaptation initiatives, in which case the statutory can of worms might need to be opened up. That prospect could be ugly for environmental law. It behooves those interested in keeping environmental protection and conservation in play for adaptation policy, therefore, to find creative ways of molding today’s environmental programs to meet tomorrow’s climate adaptation needs while maintaining as much of the core goals in place as possible.   

I appreciate this sounds like a call for compromise—because it is—and that environmentalists have long been wary of compromises, likening them to sleeping with the enemy. But when it comes to climate change adaptation, refusing to compromise is a fool’s errand. The challenge will be in designing compromises that allow important climate change adaptation measures to go forward without imposing unnecessary adverse environmental impacts and without opening the door too wide to what qualifies for more flexible treatment. The sooner environmental institutions begin thinking about this challenge and crafting approaches like those described above, the sooner they will be perceived as a friend of adaptation asking only for reasonable environmental safeguards.         

  

Designing Law to Prevent Runaway Climate Change

Melissa Powers is the Jeffrey Bain Faculty Scholar and Professor of Law, and Director of the Green Energy Institute at Lewis & Clark Law School.

This is the ninth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

“Every system is perfectly designed to get the results it gets.” If that’s so, our climate and energy laws have been perfectly designed to fall short. They will not avoid the catastrophic consequences of climate change or enable a swift transition to a zero-carbon energy system, because they have not been designed to achieve those outcomes. Instead, climate and energy laws in the United States, including those promoted by the most progressive jurisdictions, are designed to gradually reduce some emissions and eventually phase out fossil fuels from some sectors, but they are not designed to achieve the drastic systemic changes in our energy sectors and human behavior that are necessary to quickly and permanently reduce greenhouse gases. Even laws that may appear to have ambitious final targets—such as an 80% reduction in greenhouse gas emissions or 100% renewable power by 2050—are designed with loopholes and exemptions that make it unlikely that the targets will be met.   For the United States and the world to have a chance of preventing runaway climate change, we need to change our approach lawmaking. Rather than focus on incremental changes that we hope will meet future targets, we must create outcome-oriented climate and energy laws that ensure compliance. Otherwise, the slim chance we have to prevent runaway climate change will be lost.

U.S. environmental law is entering in its fifth decade, and while the existing legal system has produced significant improvements in air and water quality, it is not up to the task of addressing climate change. This is because U.S. environmental law is not end-goal-oriented, and the few laws that may seem to establish ambitious goals are not designed to meet them. Consider the Clean Water Act, which establishes the goal of restoring and maintaining “the chemical, physical, and biological integrity of the Nation’s waters,” so that every U.S. waterbody is fishable and swimmable. However ambitious that goal may seem, the permitting systems under the Clean Water Act are designed and/or applied to allow continued degradation of waterbodies, including those that are neither swimmable nor fishable due to historical and ongoing pollution and habitat destruction. The Clean Air Act’s goal of “protect[ing] and enhance[ing] the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population,” is too vague to be considered outcome-oriented. And implementation of the Clean Air Act focuses on balancing the economic interests of polluters with the public’s interest in pollution reduction. At best, this balance will produce deep emissions reductions where cost-benefit analyses support them, but the balance is subject to distortion—as the Trump Administration’s ongoing efforts to dismantle Obama-era environmental regulations reveal. Even the Acid Rain program under the Clean Air Act, which sets a final aggregate cap on sulfur dioxide emissions, uses a final target that was set based on politics,  not environmental needs. U.S. environmental law seeks to slow the pace of degradation or to gradually accelerate the rate of improvement. While it’s important that these laws are applied to greenhouse gases until we have better laws in place, it is also essential to recognize that environmental law will not, in and of itself, do the job of preventing runaway climate change.

Nor will state and local efforts, as currently designed, do the job. In response to the Trump Administration’s announcement that it will withdraw from the Paris Agreement and in response to the Trump Administration’s assault on dozens of U.S. environmental rules,  states and local governments have declared their intent to take a leading role in mitigating climate change. Their actions, while both commendable and necessary, are generally not designed to achieve decarbonization as an end goal. Leading states like California and New York have enacted scores of laws to reduce greenhouse gas emissions, but neither state has committed to energy decarbonization. California recently adopted a target of obtaining 100% zero-carbon electricity by 2045,  but the state does not have either a goal or a strategy for eliminating fossil fuels from its transportation or heating sectors. Several local governments, happily, have made commitments to decarbonize all aspects of their energy systems.  But, thus far, they do not have strategies to meet their commitments. In short, we lack both goals and designs for effective decarbonization.

We must change this approach. The United States and the rest of the world must quickly establish and achieve end goals for climate mitigation. Climate scientists have already told us what these end goals must be: for the world to have a chance of keeping temperature increases to tolerable levels, we must decarbonize our energy systems and, ultimately, achieve net-negative emissions targets through carbon sequestration. Global greenhouse gas emissions must stop increasing, immediately, and they must then rapidly drop, so that, by 2050, developed countries emit no greenhouse gases from fossil fuels.

U.S. lawmakers at the local, state, and federal (after the Trump Administration is out of office) levels must commit to complete energy decarbonization by 2050.  They then must design their decarbonization strategies to ensure they meet this ambitious target. Much like we expect architects to design buildings that will perform as expected, we need to expect our lawmakers and regulatory agencies to create decarbonization strategies that will achieve the goals. Rather than apply existing laws with the hope that they will eventually reduce emissions over time, we need to create legal systems that ensure success. If “every system is perfectly designed to get the results it gets,” it’s past time for the United States to adopt a design approach to decarbonization. We can’t afford to get it wrong.

Disruption as Opportunity

Disruption as Opportunity

By Jessica Owley

Jessica Owley is Professor of Law at University of Buffalo Law School

This is the seventh in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

1. Environmental Disruption.

The world has always been full of disturbances, alterations, and disruptions. This has been particularly true when examining the ecological conditions of the Earth. Our planet has undergone many changes, even some drastic ones. Yet, the current rate of environmental disruption is unquestionable and unprecedented. Climate change is clearly the major disruptor, changing our atmosphere, our ocean currents, and our ecosystems. Humans are a particularly destructive species though and even without the implications of climate change, we are disrupting the environment. We convert species habitat. We pollute rivers. We overhunt. Our current historical environmental atrocities, however, seem trivial in the context of climate change. Particularly tricky is the unpredictability of climate change impacts and intensities.

1. Legal Disruption.

Complicating the environmental disruption is an increased disruption of the American legal system. In the 1970s, the federal government began acknowledging environmental harms in our country and creating legal strategies to combat them. The goal of the Clean Air Act (1970) is to prevent and control air pollution. The Clean Water Act (1972) seeks to eliminate the discharge of pollutants into the nation’s waters. The Endangered Species Act (1973) recognizes the negative impacts of humans on the environment and seeks a “means whereby the ecosystems upon which endangered species … depends may be conserved.” And with the clearest acknowledgement of human impacts on the environment, the National Environmental Policy Act (1970) recognizes “the profound impact of man’s activities” on the natural world and sets a national policy to “prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of [hu]man[s].”

While the effectiveness of these laws and the strategies they adopted is open for debate, they represented an awareness of environmental harm and a need to combat it. All of these statutes and others are now under attack from the Trump Administration and the Republican Congress. The Administration is seeking repeal and revision of the statutes along with changes to regulations and agency policies. Beyond the laws on the books, the Administration is also disrupting federal environmental law by dismantling the agencies that carry out those laws. The number of employees is shrinking along with departmental budgets. Science posts are being removed or left unfilled and scientific reports and language specifically prohibited or hidden.

While the assault on the panoply of existing federal environmental programs is disheartening, federal climate change policy is truly depressing. In 1992, world leaders (along with many others) met in Brazil and acknowledged the intense environmental, economic, and social problems caused by global climate change. Agreeing that the cause was “anthropogenic,” President George Bush  signed the agreement and applauded the countries of the world in taking quick action to combat the serious problem of climate change. Despite this statement (and the U.S. role in shaping both the initial agreement and subsequent accords), the federal government has never been a true leader in the fight against climate change. However, the Trump Administration’s actions in this realm are so radical as to again merit the label disruptive. Shortly after taking office, Donald Trump announced withdrawal of the United States from the Paris Climate Agreement. Even more insulting, the only significant U.S. delegation at the last conference of the parties to that 1992 treaty preached increased use of fossil fuels.  As with the disruption to our environment, the disruption to our environmental laws is unprecedented.

1. Disruption as an Opportunity

The real conundrum for environmental activists and humans who care about the world is determining what to do in the face of this disruption. The paragraphs above paint a bleak picture and suggest that disruption is doing significant harm. A challenge then is whether we can turn that attitude on its head and make these disruptions opportunities. At our 2018 ELC meeting, Vanessa Casado Perez noted that crisis, hitting rock bottom, is what really spurs human action on environmental issues. If things are really falling apart at the federal government, maybe this disruption of environmental law will trigger new energy and action from other sectors. Disruptions in innovation are changes to technologies that can help sectors (and sometimes even societies) leap ahead to a new level. Creative ideas lead to new solutions.

One sphere where this environmental and legal disruption is inspiring action is in the private sector. While Inara Scott reminds  us that the business sector can be a force for positive change there is also a strength in individuals acting on their own or joining force with the power of nongovernmental organizations. In this light, a turn to the private seems both logical and sensible. Citizens seek to fill in the gaps left by a withdrawn federal government. It is unclear whether they can work as effectively toward reducing the harms of ecological disruption, but in a time of legal disruption their efforts gain prominence. Three examples highlight this trend.

Citizen Science and Information Protection: As government agencies began scrubbing their websites of environmental information, particularly discussions of climate change, others began archiving the information and making it available. Private organizations like the Environmental Data and Governance Initiative formed shortly after information began disappearing from public websites. Groups that had formed earlier for other reasons (like associations of librarians)  also took up the cause of protecting and providing information when they saw the need arise. Additionally, while the EPA may be employing fewer scientists, people across the planet are stepping up and collecting data to aid in scientific research and environmental monitoring.  The rise of the citizen scientist is an innovation that can improve environmental information and outcomes if deployed correctly.

Increasing Support of Environmental NGOs and Land Trusts: After the election of Donald Trump, donations to environmental advocacy organizations rose. Public attention to environmental issues can be seen in events like the March for Science and the Peoples Climate Movement. Gallup’s most recent polls show concern for the environment growing in the United States, even as fewer people identify themselves as environmentalists. Land trusts are an interesting part of this trend. Like other environmental organizations, they also saw their membership numbers and dollars increase post-Trump. Their focus differs from traditional environmental advocacy organizations as they seek to meet their conservation goals through protection of individual parcels and working with property tools. By purchasing land and rights in land, they seek to prevent development and conversion of land to uses that diminish ecosystem services and amenities. Working with private landowners, they often bring new people into the conservation movement. Through working with property rights, they create restrictions that are more durable than federal regulatory mechanisms.

Citizen Suits: Finally, despite a hollowing out of our environmental laws, activists are drawing upon the citizen suit provisions contained in many of our key environmental statutes. While there have been some proposals that would impact some of the fee-shifting provisions of citizen suits, neither Congress nor the Executive branch has suggested repealing citizen suit provisions or revising the Administrative Procedure Act, which often provides the hook for environmental litigation. Law firms are preparing for an increase in environmental citizen suits and the environmental activists seem happy to comply. Thus, we can still look to our 1970s law for some solace even though we must acknowledge the standing hurdles for environmental citizen suits are nontrivial.

These examples illustrate how energy and innovation by private actors can be part of the story of response to the current disruption of environmental law. Taken together with other examples and proposals in these essays, they can provide us with a way forward if not quite a way out.

Malignant Normality

By Katrina Fischer Kuh

Katrina Fischer Kuh is the Haub Distinguished Professor of Environmental Law, Elisabeth Haub School of Law at Pace University

This is the sixth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

In the spring of 2018, I joined professionals from a number of fields, including law, public health, science, and psychology, at the Witnessing Professionals and Climate Change conference at Princeton University, to contemplate the impact that the global climate crisis has had on our understanding of professional responsibility. In the rich discussion that ensued, Professor Robert Jay Lifton, Lecturer in Psychiatry at Columbia University and Distinguished Professor Emeritus of Psychiatry and Psychology at the City University of New York, used a phrase—malignant normality—that was referenced throughout the conversation and has resonated with me as I have continued to consider the intersection between climate change and the professional responsibilities of attorneys.

In many important respects, norms of legal professional conduct—as expressed in the AALS Statement of Good Practices by Law Professors in the Discharge of their Ethical and Professional Responsibilities and the Model Rules of Professional Conduct and as exemplified by the actions of many attorneys and professional associations—position the legal profession to provide support and leadership in response to climate change. The AALS Statement of Good Practices provides that law professors have an “enhanced obligation to pursue individual and social justice” and that “engaging in law reform activities or advocating for improvements in law and the legal system is a valued role of legal academics”; the Model Rules encourage attorneys to participate “in activities for improving the law” and allow attorneys when advising clients to “refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.” And the Environmental Law Institute recently co-sponsored the Second National Conference of Lawyers Committed to Addressing the Climate Emergency, which involved participants from across the professional spectrum, including private practice, academia, and public interest.

In other ways, however, legal professional norms may frustrate an efficacious response by the profession to climate change. For example, little attention has been paid to the role attorneys may have played in the energy industry effort to mislead the public about climate science and whether, if at all, the Model Rules speak to that type of conduct. Naomi Oreskes and Geoffrey Supran, InsideClimate News, and the Union of Concerned Scientists have extensively documented how some energy industry actors orchestrated a campaign to market lies about climate science to the public. While the role of attorneys in the climate disinformation campaign is not (yet) clear, attorneys were deeply involved in the similar campaign by tobacco companies to lie to the public about the health effects of smoking. Indeed, climate disinformation is but one in a series of revelations about corporate public disinformation efforts which now perhaps includes the safety of opioids as well.

Yet, while many have recognized that attorneys often advise clients regarding public relations, the Model Rules provide little clear guidance about the norms that should govern attorney conduct in this capacity.

• Model Rule 3.3 (Advocate, Candor toward the Tribunal) prohibits a lawyer from knowingly making a false statement of fact or law or offering evidence that the lawyer knows to be false, but is limited to representations to a tribunal.
• Model Rule 3.6 (Advocate, Trial Publicity) prohibits “[a] lawyer who is participating or has participated in the investigation or litigation of a matter” from making an “extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter,” but is limited to lawyers acting directly as spokespeople in the context of an adjudicatory proceeding.
• Model Rule 4.1 (Transactions with Persons Other Than Clients--Truthfulness in Statements to Others) prohibits lawyers from knowingly making a false statement of material fact or law to a third person and from failing to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. But various requirements embedded in the Rule raise uncertainty as to whether and how it could apply to counseling misleading public communications. It may be difficult to show that the underlying corporate conduct constitutes fraud as this is indexed to the substantive or procedural law of the applicable jurisdiction and information protected by privilege need not be disclosed. Additionally, it is not clear what level of knowledge satisfies the requirement for “knowingly” nor is it clear what would be understood to constitute a material fact in that context.
• Model Rule 8.4 (Maintaining the Integrity of the Profession, Misconduct) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation, or to counsel a client to engage in activity that would violate the Rules of Professional Conduct. This would seem, on its face, to be potentially applicable to attorney involvement in corporate disinformation campaigns. However, Model Rule 8.4 has not been interpreted or applied in a context similar to that of counseling corporate public disinformation. The Restatement (Third) of the Law Governing Lawyers cautions courts to avoid overbroad readings of the Model Rule and a review of cases and disciplinary proceedings reveals that the Model Rule has typically been applied to conduct of a very different nature, such as when an attorney helps a client structure a fraudulent transfer to avoid a known creditor or backdates documents.

Can attorneys ethically assist their clients in misleading the public through corporate disinformation campaigns designed to distort public opinion, like the climate disinformation campaign? The answer to that question is frustratingly opaque—there is no clear guidance under the Model Rules. In two companion articles, professional responsibility scholar Michele DeStefano Beardslee reported on the results of a study documenting the increasing role of attorneys in managing corporate public relations and analyzed the Model Rules for guidance regarding attorneys functioning in that role. She concluded that “the current ethics rules, adversarial system, and economic incentives almost predestine that attorneys will aid their clients in misleading the public about corporate legal controversies,” observing that “[f]or statements that misrepresent or stretch the truth, the current interpretations of the Model Rules do little to constrain” attorney advocacy in the court of public opinion.

The lack of clear guidance about the ethical obligations of attorneys advising clients in the public relations context may thus be an aspect of our existing professional, normative structure that has contributed to inertia on climate issues. And there are other climate-relevant aspects of legal professional norms that warrant examination. Chief among these is the continued greenhouse gas-intensive travel to professional conferences that is, perhaps, profligate in present circumstances. Critical assessment of these and other legal professional norms is warranted to insure that embedded professional norms, practices, and structures do not inadvertently contribute to a malignant normality that deepens the climate crisis.  

 

Environmental Justice and Environmental Sustainability: Beyond Environment and Beyond Law

By Sarah Krakoff and Shannon Roesler

Sarah Krakoff is the Moses Lasky Professor of Law at University of Colorado Law School

Shannon Roesler is Professor of Law at Oklahoma City University School of Law

This is the sixth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

Since the dawn of the environmental justice movement, we have heard the stories of individuals and communities left unprotected by our environmental laws and policies. Their stories reveal the deep-seated structures of racism and inequality that determine what resources and which people environmental law will protect. Despite risks to the cultural and natural resources of the Standing Rock Sioux Tribe, the federal government allowed the construction of the Dakota Access pipeline. When officials in Flint, Michigan, a majority-minority city where 40% of the people live in poverty, purported to cut costs by switching the city’s water supply, they cut corners and failed to treat the water to prevent corrosion. Their decisions exposed the city’s residents to dangerous levels of lead in their drinking water. Recent hurricanes have again devastated the most vulnerable communities, and yet the President dismisses the 2,975 deaths from Hurricane Maria in Puerto Rico as fake news created by Democrats to make him “look as bad as possible.”

But thousands of people did die. Thousands of people were exposed to lead in drinking water. And the promises made to the Standing Rock Sioux Tribe, long ago enshrined in treaties, were once again broken. How can the next generation of environmental laws do better? If the underlying problems include structural racism and inequality, the answer may require radical change. To achieve environmental justice on a sustainable planet, the next generation of environmental law will have to change in two ways. It will have to have to go beyond the environment and beyond law.

That is a tall order. But if we are asking big questions there is no point in being coy or timid. There are two huge problems facing the planet right now. One is that its stable operating systems are at risk of going awry. Climate change is the signature example, but not the only one. The second is that inequality between rich and poor has increased dramatically over roughly the same period that we have put the planet’s operating systems in jeopardy. To make matters even more complicated, wealth inequality is shot through with the structures of racism and colonialism. So if we are thinking big, we might as well think beyond the parameters of our training and disciplines. We should think about what sorts of cultural, economic, and legal structures would result in a just, equitable, and sustainable world for humans and non-humans. And then we should try to think and imagine a way from here to there.

Time is of the essence. We need new visions of an equitable, sustainable future now. Climate change (which is just one of the earth system boundaries at risk) could soon result in a virtually unrecognizable and volatile planet. In a recent article, Swedish scientist Will Steffen and co-authors outlined a scenario that leads the Earth to a situation where positive feedback mechanisms push “the Earth System toward a planetary threshold that, if crossed, could prevent stabilization of the climate . . . and cause continued warming on a ‘Hothouse Earth’ pathway . . . even as emissions are reduced.” That pathway is not inevitable, but if it is not averted through rapid and steep reductions in greenhouse gas emissions, “Hothouse Earth is likely to be uncontrollable and dangerous to many . . . and it poses severe risks for health, economies, political stability (especially for the climate vulnerable) and ultimately, the habitability of the planet.”

If the “Hothouse Earth” scenario comes to pass, it will occur on a planet marked by dramatic and racialized inequality. Economist Thomas Piketty has documented the rise in inequality since industrialization, attributing it to the fact that capital wealth has grown faster than incomes. The upshot is that the United States and other western democracies have very little economic mobility, and are more similar in this regard to monarchical or feudal societies than functioning democracies. In the United States, the long history of legal, political, and economic marginalization of African-Americans, Native Americans, and other non-whites means that today’s inequality is also marked by race.

Further, recent research has shown that natural hazards not only have disparate impacts on poor and minority communities. But that they too contribute to wealth inequality: “Overall, . . . natural hazard damages are contributing to wealth inequality. Additionally . . . while inequality is occurring along other lines, the most notable inequity is along lines of race, education and homeownership.” In other words, environmental harms not only have disparate economic and racial impacts, they also entrench racialized inequality.

In the current cultural and political moment, the structural causes of environmental degradation, rising inequality, and racism are converging in troubling ways. Following the election of President Barack Obama, a study found that white Americans were less likely to view climate change as a serious problem, suggesting a link between racial resentment and climate change denial. Moreover, under the Trump administration, U.S. environmental policies have actively excluded the most vulnerable communities. For example, shortly after President Trump assumed office, the head of EPA’s environmental justice office resigned in response to the administration’s proposed cuts to environmental justice programs. In addition, the administration’s new $1-7/ton social cost of carbon completely ignores the costs of global warming outside the United States, an isolationist approach to a quintessentially global problem. The Trump administration’s indifference to the risks of a warming planet places the nation’s, and the world’s, most vulnerable populations at greatest risk. It is hardly surprising that a journalist summarized the most recent international report on climate change in the following way: “Either way, the outlook is dire, especially for the poor.”

So what would laws look like that could take us off of the pathway to a deeply unequal “Hothouse Earth” and toward a just, equitable, and sustainable planet? They would look like anti-poverty laws, wealth redistribution laws, public infrastructure laws, and health care laws. They would also look like much stronger and more directive environmental laws with interlinked goals of just and equitable decarbonization. And environmental laws would engage at all scales of governance, making local issues of educational segregation and housing inequality national priorities. In short, they would be laws that simultaneously ensure a just, equal, and free society, and that protect the ecological foundations of the planet.

To achieve such laws (and the economic system in which they would participate), it will likely take the kind of massive and diverse activism that resulted in the civil rights and environmental law-making moments of the 1960s and early 1970s. It will take a movement that seeks more than legal change. Yet there is plenty for lawyers to do. Without lawyers to do the work on the front end, and to be standing by during and after the chaos, the chances of getting on the right path are greatly diminished. In short, to get on the path to a just, equitable, and sustainable Earth, it will take much more than legal change, but it will require no less than the full attention of lawyers committed to defeating racism, reversing inequality, and saving the planet.

Learning from Local Response to Environmental Disruption

By Keith H. Hirokawa and Jonathan Rosenbloom

Keith H. Hirokawa is Professor of Law at Albany Law School

Jonathan Rosenbloom is Dwight D. Opperman Distinguished Professor of Law at Drake Law School

This is the fourth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law.  Disrupted."

 

A brief perusal of the history of environmental law illustrates the ways law might be employed to suffer through a constant state of disruption. In the past, we have largely relied on state and federal environmental legislation and regulation to accomplish the task, in part because of a fear that local governments will “race to the bottom” and take a competitive advantage against their more regulatory-prone neighbors. We would suggest that the reliance on state and federal regulation, as well as the lack of confidence in local governance, has served to undermine sincere dialogue on the potential of local government to govern well both within and across boundaries.

The present circumstance of climate and ecological disruption will provide an opportunity to revisit the issue of local environmental law. Specifically, climate change will require more engagement with local governments because of the local stakes involved. Given current and likely future disruptions from rising sea levels, heat waves, and storm events, local governments will be faced with coastline insecurity, vulnerable infrastructure and difficulties in meeting essential human needs, geological instability, uncertain ecological changes (such as invasive species), water scarcity, and population migration. Such changes will permeate social, economic, and environmental expectations in every community. Given the role that local governments play in responding to challenges to local quality of life and security, local governments will inevitably become players.

There are and will be instances where local governments manipulate social, economic, and environmental resources to protect their own. But there are and will be examples that illustrate the contrary. Some local governments forego regulation of extraction and resource development, while others will adopt more comprehensive land use regulations that maintain ecosystem services and other quality-of-life determinants. But differences in local governance are neither surprising nor unwarranted – governments illustrate legitimacy though responsiveness to local needs, and local needs differ across boundaries. More importantly, norms and values develop in very local ways, and it would be a mistake to disregard value differences, even at minute levels, that occur across borders.

Local is not only a circumstance that is relevant to understanding particular governmental actions. Local also provides a framework for understanding common concerns such as shared resources, regional circumstances, and intergovernmental cooperation. And, in the context of disruption, local can play a significant role in at least the following four categories: responsiveness; baseline information generation; innovation research; and normalization.

1. Local is Responsive to Change

Environmental disruption is coming and, in fact, is here. Law will have to develop new strategies to face the new challenges and immediacy will be a factor. Government strategies should be designed to launch on short notice. It is easier to experiment with new regulations and approaches at the local level: first, because the closeness of local government to governed communities demands it; and second, because the scale of local governance makes debate, passage and implementation of new approaches easier.

Local governments are acutely responsive to social, economic, and environmental change for good reason. Regardless of how such disruptions are perceived on a regional, state or federal level, they are felt locally. The invention of the elevator and automobile fundamentally altered the role and potential of urban areas to provide homes and economic opportunities. In turn, such disruptions helped shape attention to infrastructure and governmental service needs. More recently, local governments have expeditiously responded to water shortages by prohibiting water waste, restricting specific water uses, and requiring installation of efficient water fixtures and grey water use in new construction and building renovations. Similarly, local governments have controlled stormwater flows by implementing measures for permeable pavements, green roofs, and rainwater harvesting. See, e.g., Chatham, MA, Protective Bylaws § 4(B) (2016) (floodplain development and permeable driveways);Denver, CO, Code of Ordinances §§ 10-300 to 10-308 (2017) (green roofs);San Diego, CA, Rain Harvesting Rebate Program (cash incentives rain barrel installation).

2. Local as Source of Baseline Information

As a matter of course, local governments gather and assess information on local vulnerabilities to disruptions. Local governments keep a watchful eye on natural and built infrastructure assets, the availability of nature resources, housing stocks, access to food and energy, and population dynamics. Local governments often require permit applicants to provide critical information on development elevations, habitat values, and slope stability. Likewise, local planning and development review processes have resulted in a wealth of information on groundwater budgets, canopy cover, and buildable lands. Other local governments require energy benchmarking and audits for larger buildings and governmental operations. See, e.g., Atlanta, Georgia Code of Ordinances § 8-2002 (2016) (requiring both energy benchmaking and auditing for certain public and private buildings); Denver, CO Code of Ordinances § 4-53 (2016) (commercial building benchmarking and reporting); Seattle, WA Municipal Code § 22.920.010 (2010)(requiring building benchmarks and reporting); Austin, TX Code of Ordinances § 6-7-31 (2011) (commercial facilities required to calculate annual energy budget). The information is commonly used to inform a variety of local government decisions such as land use planning and permitting, budget decisions and infrastructure planning, event planning, intergovernmental cooperation and even the exercise of eminent domain. The information helps to identify future risks and costs, the potential for public interest in particular problems, and the solutions that might be relevant.

Local governments are not better at gathering this information due to sophistication or funding. Local governments are better at it because of their access to a deep pool of relevant information and their lens through which the information is discerned. The important point here is to recognize the critical role of location to the way local governance happens. Based on geological, ecological, economic, and cultural circumstances, communities adapt to the demands of living in a particular place because communities must survive in their own place. This type of experienced information is tattooed with the values that particular resources have to their beneficiaries and users and reflected in local resource decisions.

3. Local as a Laboratory for Innovative Responses

Communities approach particular changes in their own ways – some dig in to wait out changes, some take more protectionist ideals and seek to maintain the status quo through zoning, where others employ more forward-thinking measures through long range planning. It should not be surprising that different communities often understand changing circumstances in ways that appear to contradict. But it is also not surprising that a particular community’s reaction to new challenges follows more or less the same basic premise: although local needs and circumstances will vary, human needs and quality of life are the common driver.

Accordingly, the third observation about the importance of local is variation in innovation. The development of technologies and approaches to construction, infrastructure, economic development priorities, education, and housing (and others) are designed to resolve the effects of disruption and secure a community’s vision against the backdrop of change. Importantly, variation in local responses to disruption generates significant information on what works and the local circumstances that facilitate stories of success.

Many local governments are experimenting with incentives to promote green building techniques and even requiring developments to implement the most sophisticated building materials. While the federal government pursues policies that support coal and concrete, local governments are pushing forward with promoting technologically advanced forms of building. Lancaster, California, requires that many new buildings meet net zero standards or be outfitted with a solar energy system that can produce two watts of power for every square foot of the home. Lancaster, Cal., Energy Code § 15.28.020 (c) (2017). Georgetown, Texas, offers multiple incentives, including net metering and rebates, for residents to add renewable energy sources to their properties. Georgetown, TX, Code of Ordinances § 13.04.083 (D) (2) (2012). Miami Beach, Florida, a city already struggling with climate changes, is assessing building fees to combat the impacts of rising sea levels through innovative projects such as environmental restoration projects, monitoring, green infrastructure, and stormwater quality improvements. Miami Beach, FL, Code of Ordinances § 133-6(a)(2016).

4. Local as Normalization

Elevating location in an analysis of environmental governance does not suggest any particular value as a normative matter. There will be few response strategies that will be effective in every community, and a “good” strategy may be best guided by the notion that it is good if it would work here. In the meantime, preemption is a good check on local governance, and top-down approaches to land use regulation may offer meaningful constraints on the bad kind of intergovernmental and inter-community competition. Nevertheless, the pervasiveness of location suggests that we should not rush to preempt local initiative. In the meantime, although local should be recognized for uniqueness, the contingencies in the arena of local regulation can serve as a gauge for developing norms. Successful strategies can be borrowed and adapted to different communities, which in turn will generate additional confidence as response strategies across the spectrum of ecological, geological and hydrological difference normalize in the common goals that drive locational adaption.

Does the President Really Matter to U.S. Participation in International Law? A View from the Perspective of Oceans Law

Robin Kundis Craig is the James I. Farr Presidential Endowed Professor of Law, University of Utah S.J. Quinney College of Law.

This is the third in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law.  Disrupted."

How much do Presidents really matter to the United States’ participation in international environmental law?

Fairly obviously, presidential turnovers in the United States are absolutely critical to how the United States conducts its international relations. President George W. Bush’s pursuit of Middle Eastern terrorists in the wake of 9/11, including wars in Iraq and Afghanistan, represents a far different engagement with the rest of the world regarding international terrorism than President Obama’s reliance on drones and attempts to bring American troops back home. In turn, President Obama’s engagement with the rest of the world on climate change, including committing the United States to the Paris Accord, represents a radically different path than the one President Trump has thus far chosen to walk with regard to the same issue. Indeed, President Trump’s “America First” approach to international relations shows every sign of becoming one of the most presidentially-driven idiosyncratic periods in the United States’ relations with the rest of the world since at least the conclusion of World War II.

But how much does any of that matter to the United States’ participation in international environmental law?

The issue, of course, is that the United States Constitution formulates treaty-making as a two-body problem: The President signs and the Senate advises and consents. Failure of the United States to participate can occur at either stage. For example, President Clinton signed but Congress refused to ratify the 1997 Kyoto Protocol to the 1992 United Nations Framework Convention on Climate Change (to which the United States remains, at least for now, a party). Indeed, as of late August 2018, according to the U.S. Department of State, Presidents have sent 42 treaties to the U.S. Senate that still await the Senate’s advice and consent to ratification.

One of those 42 treaties is the 1982 United Nations Convention on the Law of the Sea (UNCLOS III). President Reagan refused to sign the treaty when it opened for signature while he was in office, but President Clinton signed it on July 29, 1994. It has been sitting with the Senate since October 7, 1994—that is, through Presidents Clinton, Bush II, Obama, and, so far, Trump. Clearly, the identity of the Chief Executive has not mattered much to the United States’ failure to ratify.

Perhaps perversely, however, the United States’ non-ratification and the identity of the Chief Executive also don’t seem to have mattered all that much to the treaty’s operation—including in U.S. waters. Of the 193 United Nations member states, 168 (including the European Union) have ratified this “constitution for the ocean,” which went into effect on November 16, 1994. The United States follows UNCLOS III’s jurisdictional provisions on the grounds that they are customary international law. Indeed, after refusing to sign the treaty, President Reagan first proclaimed a 200-nautical-mile Exclusive Economic Zone for the United States in March 1983, then in December 1988 added a 12-nautical-mile territorial sea —both exactly as UNCLOS III allows. All subsequent Presidents have accepted these proclamations. Finishing up, in September 1999, President Clinton proclaimed a contiguous zone for the United States out to 24 nautical miles, http://www.presidency.ucsb.edu/ws/?pid=56452—and, again, all subsequent Presidents have accepted that declaration. In addition, the United States ratified the supplemental Agreement for the Implementation of the Provisions of the Convention Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocksin August 1996, and this treaty came into force on December 11, 2001.

The United States has perhaps been most out of step with the rest of the world with regard to rights in the seabed. In September 1945, more than a decade before the first Law of the Sea conventions opened for signature in 1958, President Harry Truman proclaimed the United States’ assertion of control over the continental shelf, a post-World War II recognition of the importance of offshore oil and gas reserves. The United States’ most prominent objection to ratifying UNCLOS III was its treatment of the deep seabed (denominated “The Area”) and its minerals as “the common heritage of mankind.” However, deep seabed mining is just now getting underway, and, so far, it is taking place only on the deeper parts of continental shelves controlled by coastal nations (gold and copper deposits off the coast of Papua New Guinea, and iron sands off the coast of New Zealand). As a result, the United States’ objection might be regarded as 40 years premature.

Even with respect to the seabed, however, the United States is beginning to behave like the rest of the world. Specifically, the United States is mapping its extended continental shelf in the Arctic Ocean in conformance with UNCLOS III—even though our non-ratification of the treaty means that we cannot submit a claim to that extended shelf to the Commission on the Limits of the Continental Shelf. Moreover, U.S. companies like Lockheed Martin prefer the legal safety of UNCLOS III when pursuing deep seabed mining; Lockheed Martin formed a U.K. subsidiary, UK Seabed Resources, so that it could receive its mining licenses from the International Seabed Authority pursuant to the treaty. Such industry preferences and the United States’ interest in the Arctic might finally induce the Senate to ratify the treaty.

Maybe. The larger point here, however, is that the United States’ relationship to UNCLOS III has been more or less the same since President Reagan, despite the fact that he did not sign the treaty and President Clinton did. Part of the reason, no doubt, is that President Eisenhower signed, and the Senate under a new President Kennedy ratified, the four 1958 United Nations Conventions on the Law of the Sea, which set forth many of the same kinds of obligations and rights as UNCLOS III. Another part, no doubt, is that the new jurisdictional provisions in UNCLOS III, and many other of its provisions, work to the United States’ advantage. But an important part of the reason is that Senate procedures and politics—not presidential inclination—have been an effective roadblock to ratification, underscoring the basic constitutional point that the United States’ assent and strict adherence to international environmental law is only partially a matter of who the President is.

Environmental Law. Disrupted. Essays from the Environmental Law Collaborative

The Environmental Law Collaborative (ELC) comprises a rotating group of law professors who assemble every other year to think, discuss, and write on an important and intriguing theme in environmental law. The goals of this meeting are both scholarly and practical, as ELC participants seek to use their disparate areas of scholarly expertise to study trends and important events in the law, and ultimately to improve the environmental conditions of the world in which we live. 

In 2018, we watched the U.S. regulatory environment change rapidly, even as we witnessed the escalation of visible and profound impacts from climate change. Alongside these events, and with full knowledge of the limited time left in which to address existential environmental challenges, the question the group attempted to tackle at our collaborative meeting was whether environmental law as we know it is up to the task of meeting these ongoing, escalating, and perilous threats. 

Each of us has challenged ourselves to think deeply about where environmental law should be headed in the next decade or more, and how we might get there. The blogs we will be posting in the next two weeks discuss our individual conclusions about how we might reframe and reshape -- and ultimately, disrupt -- the environmental law landscape to better address the catastrophic, synergistic, and disruptive ecological changes portended by climate change, biodiversity destruction, and social inequality. We asked ourselves, what would it look like if we radically and fundamentally reoriented our environmental law and policy agenda? Is this possible, desirable, or both? 

As we are a diverse group of scholars and thinkers, our conclusions are by no means uniform, but they share a common thread: this is not time for business as usual. The system requires significant, potentially disruptive changes, some of which may make us profoundly uncomfortable. As you will read, Sarah Krakoff and Shannon Roesler ask what law would look like if we conceived of global climate change as a social justice challenge and accordingly remade laws addressing poverty, wealth distribution, public infrastructure, and health care, while Keith Hirokawa and Jonathan Rosenbloom would reorient adaption to climate change by heeding and disseminating legal strategies local governments are formulating. J.B. Ruhl argues that to confront the urgent need for climate change adaptation, environmentalists will have to compromise in strategic ways, while Inara Scott asserts that it is time to bid goodbye to environmental law and start fresh by reconceptualizing a more inclusive, more effective “commons law.”  

Continuing in this line of disruptive thinking, David Takacs suggests radically rethinking biodiversity laws before it is too late to preserve functioning ecosystems or the magnificent creatures that inhabit them, or to save our own species that ineluctably depends upon these ecosystems. Erin Ryan argues that with environmental laws under attack, we must think of creative, out of the box ways to defend it at multiple levels of legal hierarchy. Blake Hudson points out that many kinds of ecological disruption can be tied to land development -- where there has never been much effective law to disrupt in the first place. And in an essay that may surprise many, Robin Kundis Craig argues that in international environmental law, the role of the president may be overstated.  

Melissa Powers writes about the urgent need for deep decarbonization, with clear targets and strategies to achieve them, as Vanessa Casado Perez tackles the problem of rethinking water law to address inevitable conflicts over water shortages. Turning away from the public sector, Jessica Owley suggests an expanded role for private actors in forwarding the goals of environmental law. Importantly, Katrina Kuh challenges environmental lawyers look more closely in our mirrors to insure that embedded professional norms, practices, and structures do not inadvertently contribute to a “malignant normality” that deepens the climate crisis.   

We hope these essays disrupt your thinking in provocative, productive ways, and look forward to opening a dialog with you about how we can reframe, reshape, and ultimately disrupt environmental law to meet the challenges of our day.  

 

Responding to the IPCC Fifth Assessment during the Month of November (from the Environmental Law Collaborative)

As a special post-Halloween treat for the month of November, a series of guest blogs will be appearing here examining the latest IPCC report. The essays are the latest production of the Environmental Law Collaborative, a group of environmental law scholars whose goal is to meet and work collaboratively to discuss and offer solutions for environmental law’s major issues of the day. ELC facilitates dialog among thought leaders on environmental policy priorities, practical implementation strategies, assessment mechanisms, and cooperative analysis of science, economics, and ethics. It has become increasingly apparent that, although environmental policy benefits from a robust drive for the dissemination of information, environmental policy is also influenced by strategic misinformation and effective use of persuasive communication. To advance society and secure welfare at local and global scales, our professional activities must contribute to resolution of the divisive issues that confront our environment.

Continue reading

China's Amendments to its Environmental Protection Law: Can it really lift the curse of Midas Touch?

News reports are abuzz with China's amendments to its environmental protection law that will come into effect in January 2015. The amendments reportedly add several new provisions that primarily strengthen enforcement by increasing the amount of fines imposed on non-complying polluters on an ongoing basis (that is for each violation) as opposed to a single pollution, as well as providing for some form of punishment such as demotion of officials that fail to enforce China's pollution control laws. It also reportedly supports whistle blowing to enable citizens to take action much like citizens suit provisions in the United States. A report of China's new law is available here.

 

Without having the benefit of reviewing the actual laws, it is hard to comment about the prospect of China's new laws. However, one must admit that at the very least it is a step that demonstrates China's serious commitment to tackling domestic environmental problems that are steadily becoming catastrophic in proportion. It is highly symbolic since it is a big step towards action as opposed to rhetoric.

 

Yet, much as I hate to sound pessimistic, the law fails to make any fundamental changes to addressing its environmental woes. The law remains essentially regulatory; essentially dependent on government officials to enforce. Will the threat of demotion, if found guilty of non-enforcement, suffice to improve enforcement in a country the size of China? Can a company influence the law-making process so as at least make compliance easier, so as to avoid the problem of facing fines for non-compliance? Will a large enterprise be affected by naming and shaming? I ask these questions because the law in its original form (here) was not entirely lame. The law had enough room for stringent enforcement, including preventing the importation of obsolete technology. However, these provisions were never enforced. The new law appears to focus on enforcement, but assumes that greater fines, threats of demotion, and potential for shaming will make a dint. The sad reality is that these tactics have not been successful even in developed countries. Can they be effective in a country where transparency is sorely lacking?

--Deepa--

A Couple of Takes on Climate Winners

Recently I have been reading Windfall: The Booming Business of Global Warming, by the journalist McKenzie Funk. It is a fun and illuminating, if somewhat frightening, read. Funk takes to the road—in a trans-planetary sense—to report on the entrepreneurs, engineers, hedge funds, investment banks, corporations, nations and others who are angling to profit from climate change. The prose is accessible and engaging, the perspective deeply informed. The chapters would serve as excellent conversation generators in the classroom.

I mention this not only to share a good read, but also because the concept at the center of Funk’s book is closely related to an interdisciplinary study I am undertaking with the visual artist and landscape photographer Alex Heilner. Alex and I hope to explore the industrialization of the Arctic that will inevitably come with increased access to offshore oil and gas and to onshore mineral and carbon deposits, with the opening up of the Northern Sea Route and the Northwest Passage that makes transport of extracted resources more feasible, with easier cruising for tourist vessels, and with the re-focusing of the world’s attention on the Far North. The process, of course, is already underway. Last summer Alex and I embarked on our maiden voyage, a two-week road trip across North Norway. A selection of Alex’s photos is here. 

I am still working on sorting through my interview notes and observations to craft an intelligent story about what is going on up there, but, in short, what we found was an intriguing instance of interlocal competition on the Arctic frontier. Ports, municipalities and private investors are all looking for opportunities to build facilities that can serve the Arctic oil and gas and maritime shipping industries. Planners and economic development officials are dreaming big. Everyone in North Norway wants to be a climate “winner.” There is some resistance to increased Arctic drilling from the Green Party, but Norway is, as one interviewee told me, a “benevolent petrostate,” and for most people “oil and gas is king.” As a result, North Norway—long a land of cod fishing and reindeer herding and mining for iron ore, and a place absolutely devastated by WWII—is in growth mode. It is a microcosm of the broader changes Funk writes about, making the global phenomenon visible in development pressures and land use changes in a few of the small places at the top of the world. 

- Michael Burger

 

Shell, the Arctic, and the Classroom

In late January Royal Dutch Shell announced that the company was putting an end to its efforts to drill exploratory wells in the Arctic Ocean off Alaska’s north coast this summer, and intimated that it may never drill there, at all. The announcement was timed with other recent climate news. Just a day or two later the State Department released its Supplemental Environmental Impact Statement for the 2012 Presidential Permit application for the proposed Keystone XL pipeline. Two weeks after that it was revealed that the Arctic archipelago of Svalbard has been experiencing average temperatures 15 degrees C above normal. But I don’t think Shell made its decision because it worried what President Obama will do with Keystone XL, or because of the ever-mounting evidence of climate change impacts in the Arctic. Rather, the company probably made the decision because the Ninth Circuit held the week before, in Village of Point Hope v. Jewell, that the environmental impact statement prepared for the 2008 lease sale in the Chukchi Sea violated the National Environmental Policy Act.

The Ninth Circuit’s decision is important, of course, because of its immediate impact on oil and gas drilling in the U.S. Arctic. It is also notable, though, from a teaching perspective, for at least three reasons:

First, the decision affirms, in one of the most visible environmental battles of the day, that NEPA remains an important, even essential, tool in the environmentalist’s toolkit, capable of stopping major projects from moving forward, or at least stalling them for the time being. This remains as true as ever, even though NEPA is just a “procedural” statute.

Second, the decision provides a nice illustration of how courts treat the “missing information” requirement under Section 1502.22 of the Council on Environmental Quality’s NEPA regulations in the context of a tiered environmental review. Under this provision, an agency must either obtain information that is “essential to a reasoned choice among alternatives” or explain why such information was too costly or difficult to obtain. But the Outer Continental Shelf Lands Act explicitly provides for multiple levels of environmental review as an offshore lease moves from the original lease sale to actual production and development. Here, the court found that the Bureau of Ocean Energy Management’s analysis of the impacts of a major oil spill did not fail even though it lacked specific information about such things as species population numbers, migratory patterns and breeding habits. According to the court, that data would be relevant at a later stage. Increasingly, it seems that knowledge of programmatic EIS’s is essential to understanding how NEPA works today.

Finally, the decision illustrates how far afield an agency has to go in a technical analysis to run afoul of the statute, and what kinds of evidence attorneys use to demonstrate the “arbitrary and capricious” application of agency expertise. In this way, it stands as a contemporary comparable to the Westway litigation and the Second Circuit’s decision in Sierra Club v. U.S. Army Corps of Engineers, with its improperly timed studies and ignored population of winter bass among the piers on the Hudson River. Here, BOEM estimated the amount of recoverable oil in the Chukchi lease area by estimating production from a theoretical first offshore oil field, an amount that totaled the nice round number of one billion barrels. One apparent reason for focusing on the first field, rather than the entire lease area, was that the BOEM analyst wouldn’t have the relevant data for the larger analysis for two months. Not exactly the best reason to take a predictive approach to a five-year lease sale in a frontier region of the Arctic. And according to two of the judges on the panel, at least, an arbitrary one.  

There is, of course, more: A series of emails that do not paint the agency staff in the best light, ultimately whittling down a range of options to a single number. Skeptical comments on the draft analysis from other BOEM staff.  Highly critical comments from EPA and Fish and Wildlife. Public comments that make plain some of the more obvious flaws in the logic of BOEM’s decision. Courts will defer to agency expertise, and that deference reaches its height out here in the predictive realm, but get enough in-house experts, sister agency staff and clear-thinking citizens to disagree and you might just have a winning case.  

At the end of the day, it was probably most damaging that BOEM chose a number that represented “the lowest possible amount of oil that was economical to produce as the basis for its analysis.” This number then factored into all of the environmental impact assessments, including seismic effects, habitat effects, and effects of the sale on global warming, as well as Fish and Wildlife’ determination that the lease sale would not jeopardize listed species. As it turns out, it was a close call on the spectacled and Stellar’s eiders. Even a slightly higher estimate may have resulted in a jeopardy finding.

That, students will see, is a bad fact for the defense, a good one for the plaintiffs.

- Michael Burger

What's New in Fracking (Fracing, Hydrofracking, Hydraulic Fracturing) Law?

Whatever term you choose to describe the technique, hydraulic fracturing and horizontal drilling of oil and gas wells continues at a fast pace.  The law, too, is quickly changing.  If you're teaching or writing in this area this fall, I've listed some of my favorite resources below.  Some of these aren't so new--they're just helpful (I think). This post describes sources associated with unconventional oil and gas development generally--not just fracturing, which is one stage within a larger development process.

The relevant formations: Much of the oil and gas produced in the United States comes from unconventional oil and gas formations -- defined by Q.R. Passey et al. as “hydrocarbon-bearing formations and reservoir types that generally do not produce economic rates of hydrocarbons without stimulation"--meaning that something more than drilling is required.  These formations include coalbeds, tight sandstones, and shales, but shales contain the most abundant hydrocarbons.  This oil and gas comes from organic matter that was deposited "along the margins of lakes or seas" millions of years ago.  The quantity and type of oil and gas formed from this organic matter depends on a number of factors, including the type of organic matter deposited and the quantity of sunlight and nutrients it had; the rate and amount of organic matter destruction by microbes, oxidation, and other processes; and the mixing and diluting of this organic matter with other substances as sediment built up and the matter was trapped within rocks. Heat and the maturity of the organic matter and rock are also important: in most gas-containing shales, geologists would normally expect to see oil due to the type of organic matter there, but the shales are "mature" and were subjected to high heat, producing residual gas trapped within the rocks.  All of the above is a summary of Q.R. Passey et al.'s work, which does a much more accurate job of explaining the oil and gas production process. 

How much gas and oil?: The Energy Information Administration has a helpful report on global shale gas and oil reserves.  The Energy Information Administration projects a "44-percent increase in total natural gas production from 2011 through 2040" in the United States due largely to unconventional resources. Several liquefied natural gas export terminals are proposed.  The Federal Energy Regulatory Commission has approved the Cheniere/Sabine Pass LNG terminal in Louisiana, and the facility website indicates that the terminal will be "capable of liquefying and exporting natural gas in addition to importing and regasifying foreign-sourced LNG."  The project is still under construction.

The technology: It's not only fracturing that has caused domestic oil and natural gas production to rise dramatically.  There are three key changes that contributed to the modern boom. First, wells that will eventually be fractured are often drilled with a horizontal drilling technique--drilling vertically down to a formation (sometimes as far as 12,000 feet--see this Halliburton document for various formation depths) and then laterally through the formation to expose more surface area, and thus more oil and gas. Often, the portion of the formation targeted is quite narrow--often less than one meter thick, for example.  

Second, hydraulic fracturing is a key technology, but it has (as industry notes) been around for a long time.  Depending on how you parse terms, you could trace it back to the 1800s, when companies used nitroglycerin to break up underground formations.  The technique has, of course, changed quite a bit since then.  The fracturing used from about 1949 and on tended to use very heavy gels and large quantities of proppant (sand) to prop open fractures when they were formed.  Other older fracs used mostly water.  But what really changed in the late 1990s was the use of water (lots of it) combined with some chemicals, in a sort of hybrid of the earlier gel and water techniques.  Energy companies, with government support, developed this slickwater fracturing technique in Texas's Barnett Shale--and more recently transferred it to other formations. The water, injected at very high pressure down a well, rushes out of the perforated portions of the well and forms fractures in the formation around those portions.  Acid injected before the water can also help form fractures.

The third key technological component is the use of multiple, staged, fractures along one wellbore. Fracturing companies separate the well into different intervals (think of "compartments" within the horizontal well) using equipment called packers.  The companies fracture each interval, which greatly enhances well production. 

The regulation: I've written earlier posts about federal exemptions for oil and gas and fracturing. These exemptions, and tradition, leave much responsibility to the states, municipalities, and regional governments.  But the regulation of oil and gas development is very much in flux. 

Federal: As of January 1, 2015, onshore gas companies will have to capture the volatile organic compounds emitted from the well and the flowback water that comes out of the well after fracturing.This will greatly reduce methane emissions.  The EPA is also writing standards that require the treatment of flowback water and salty waters naturally produced from the well; it appears that these standards will apply to direct discharges to water and indirect discharges to a publicly owned treatment works.  The EPA initially suggested that it would require disclosure of the chemicals used in fracturing under the Toxic Substances Control Act, but not it appears that it will simply aggregate information disclosed at the state level.  Finally, the EPA is drafting Safe Drinking Water Act permitting guidance for hydraulic fracturing that uses diesel fuels, and the BLM has issued several versions of draft rules for fracturing on federal lands.

In terms of studies, the EPA had concluded in a draft report that fracturing in an unusually shallow zone contaminated groundwater in Pavillion, Wyoming, but industry has criticized the study, and the EPA recently passed control over continued study to the State of Wyoming.  The EPA's nationwide study of the impacts of fracturing on groundwater is ongoing; the most recent release was a lengthy progress report. The U.S. Geological Survey is conducting a broad-based water quality study in regions where there is drilling and fracturing.  One USGS study in Arkansas found no impacts on water quality from "gas-production activities."  The EPA is also investigating how to control induced seismicity issues caused by Class II underground injection control wells for oil and gas wastes, although it has not yet revised the Safe Drinking Water Act to address the problem. Finally, the DOE's Shale Gas Production Subcommittee produced a report with recommendations for generally improving regulation of shale gas development.

The Fish and Wildlife Service has also begun to be more active in this area.  On July 18, 2013, it issued a final rule listing the diamond darter--a species in the Marcellus Shale region--as endangered.

State: State regulation continues to change quickly, with Nebraska being one of the most recent states to propose required disclosure of fracturing chemicals.  In January 2013, Mississippi approved rules requiring that surface casing (steel lining cemented into the well) extend 100 feet below groundwater, and the rules also require chemical disclosure. In 2012, Utah enacted new rules requiring chemical disclosure and that wells be pressure tested before drilling and fracturing (thus helping to verify that the wells can withstand the high pressures of fracturing), among other protections. Also in 2012, Colorado implemented requirements for testing of water quality prior to drilling and fracturing (requiring testing of a maximum of four water sources around each well) and made other changes. Further, Ohio enacted SB 315 and SB 165 (2012), and West Virginia enacted HB 401 (2011), all of which modify oil and gas development rules.  Over the past few years, Arkansas, Montana, and other states also have changed their rules to address fracturing. For some recent summaries of state regulations, see Resources for the Future's The State of State Shale Gas Regulation and its Shale Maps; summaries and a report from the National Conference of State Legislatures; and American Law and Jurisprudence on Fracing by Haynes Boone.

Local and state:  The Pennsylvania Supreme Court has still not issued an opinion regarding the constitutionality of Act 13, which required municipalities to allow drilling and fracturing in nearly all zones and allowed them to impose a fee on unconventional gas wells.  A commonwealth Court in Robinson Twp. v. Commonwealth, 52 A.3d 463 (Pa. Cmwlth. 2012) struck down portions of the Act as unconstitutional, finding that it was a substantive due process violation to require municipalities to accept this industrial activity in most zones. In Anschutz Exploration Corp. v. Town of Dryden, 35 Misc.3d 450 (N.Y. Sup., 2012), and Cooperstown Holstein Corp. v. Town of Middlefield, 106 A.D.3d 1170 (N.Y.A.D. 3 Dept. 2013), New York trial courts determined that despite state language preempting laws "relating to the regulation of oil and gas," towns may use their land use authority to prohibit natural gas development.  A West Virginia court, on the other hand, found Morgantown's hydraulic fracturing ban preempted because of the relatively comprehensive (but not directly preemptive) state oil and gas law. See Northeast Natural Energy LLC v. City of Morgantown, Civil Action No. 11-C-411 (W. Va. Circuit Court 2011). In Colorado, where the citizens of Longmont banned hydraulic fracturing, the Colorado Oil and Gas Association made a similar argument against the ban--essentially arguing that Colorado's oil and gas rules occupy the field.  The state's Oil and Gas Conservation Commission was reportedly recently joined in the suit.

Industry best practices and recommended state regulations: The State Review of Oil and Natural Gas Environmental Regulations has guidelines for how states should regulate drilling fracturing, which are voluntary.  If states agree, STRONGER reviews state programs for compliance with these guidelines. The American Petroleum Institute also has a number of suggested best practices for hydraulic fracturing, and industry and environmental groups have proposed fifteen performance standards through the Center for Sustainable Shale Development.

Courts: Go here to see Columbia Law School's digest of hydraulic fracturing cases and here for Arnold and Porter's chart of hydraulic fracturing cases.  In 2008, the Texas Supreme Court in Coastal Oil v. Garza, which held that an individual could not recover trespass damages for the drainage of natural gas caused by fractures that extended into a mineral estate, but a federal district court in the West Virginia case of Stone v. Chesapeake Appalachia, 2013 WL 2097397 (N.D. W.Va. 2013), recently disagreed, finding, in denying summary judgment to defendants:

"[T]his Court finds, and believes that the West Virginia Supreme Court of Appeals would find, that hydraulic fracturing under the land of a neighboring property without that party's consent is not  protected by the “rule of capture,” but rather constitutes an actionable trespass."

There's also a split among district courts (and possibly circuit courts) on whether the Migratory Bird Treaty Act requires some sort of action directed at a bird in order for the actor to be liable.  When birds dies in North Dakota Bakken Shale waste pits, the federal district court found that this was not enough to make the oil company liable for a "take": "The terms “take” and “kill” as found in . . . the Migratory Bird Treaty Act are action verbs that generally denote intentional behavior."  See U.S. v. Brigham Oil and Gas, L.P., 840 F.Supp.2d 1202, 1212 (D.N.D. 2012). The U.S. District Court for the Southern District of Texas, on the other hand, found that "[i]f an operator who maintains a tank or pit does not take protective measures necessary to prevent harm to birds, the operator may incur liability under federal and state wildlife protection laws," including the MBTA.  United States v. Citgo Petroleum Corp., 893 F.Supp.2d 841, 847 (S.D. Tex. 2012).

Science:  Recent and semi-recent papers have been released that further describe the links between Class II underground injection control wells and induced seismicity, including in Dallas and Fort Worth, Texas, Oklahoma, and Ohio.  Nathaniel Warner and other authors who published an earlier study on potential methane migration from Marcellus Shale wells published a more recent paper exploring brine in shallow aquifers.  D.J. Rozell and S.J. Reaven also have a good paper addressing "five pathways of water contamination: transportation spills, well casing leaks, leaks through fractured rock, drilling site discharge, and wastewater disposal."  For those looking for an overall summary of potential environmental impacts, the National Park Service produced a useful document in 2008.

With respect to climate, MIT researchers published an interesting (and potentially disturbing) report suggesting that cheap gas threatens to substantially delay technologies like carbon capture and storage.  The International Energy Agency's "Golden Age of Gas" report also warns that gas alone will not lead to a goal of stabilizing average global temperature increases to 2 degrees Celsius.  Natural gas displaced coal in U.S. electricity generation in 2012, and domestic greenhouse gas emissions dropped, but in 2013, natural gas use in generation has declined from 2012 highs.  And with respect to methane leakage associated with natural gas production, for a good comparison of estimates see Jeff Tollefson's article in Nature.

Social impacts: For a report on gas attracting chemical companies and manufacturers to the United States, see this American Chemistry Council document.  For impacts on local economies, Penn State has a number of good sources.  And for interesting numbers showing the strain on infrastructure and services created by a booming oil or gas economy, see Williston, North Dakota's Impact Statement.

And if you haven't fallen asleep yet from this post, see also Gregg Macey's recent "Fracking Fatigue" post for great sources, commentary, and research ideas.  A post on recent fracturing scholarship and theory would be almost as long as this one--I'll save it for another day.

-Hannah Wiseman