A New Dawn

Posted on November 15, 2016 by julia

King Mohammed VI of Morocco, UN Secretary General Ban Ki-moon, COP 22 President Salaheddine Mezouar, and UNFCCC Executive Secretary Patricia Espinosa wait to greet arriving dignitaries to the first meeting of the UNFCCC under the Paris Agreement.

One year ago, parties to the UNFCCC signed the Paris Agreement, expecting it to come into force over the next four years as individual nations went through the slow process of ratification. To everyone’s surprise, the requisite number of nations ratified it, and as of November 4, the Paris Agreement officially came into force. Today, the parties to the UNFCCC held the first meeting under the Paris Agreement. At the opening ceremony, UN Secretary General Ban Ki-moon announced that this historic approval marks “a new dawn for global cooperation on climate change.” All of the speakers at the ceremony emphasized that this rapid endorsement demonstrates that the world is ready to move forward together to address climate change.

The shadow of US President-elect Donald Trump occasionally threatened to cloud the day’s proceedings, but the new dawn continued to shine through. President François Hollande of France

President François Hollande of France

called for consistency and perseverance to work towards the goals of the Agreement, which he called irreversible in law, in fact, and in the minds of the citizens of the world. He specifically thanked President Obama for his crucial role in obtaining agreement in Paris, and then called out the United States, stating that “the largest economic power in the world and the second largest greenhouse gas emitter must respect the commitments they have undertaken.”

Jonathan Pershing, U.S. Deputy Special Envoy for Climate Change

The conversation about U.S. participation in the Agreement continued throughout the day. Jonathan Pershing, the Deputy Special Envoy for Climate Change, focused on market forces that have made fossil fuels unsustainable. For example, he pointed out that the U.S. currently has over 2 million renewable energy jobs compared to 65,000 coal miners. Although refusing to speculate on the future administration, he hinted that a President focused on jobs might find the renewable energy sector more attractive. He also observed that cities and local governments are already adapting to natural disasters, whether they were calling it adaptation to climate change or not.

In a heavily attended panel on U.S.

Senior Advisor to the President Brian Deese and Secretary of Natural Resources for Vermont Deb Markowitz

Climate Action, Deb Markowitz (Secretary of Natural Resources for Vermont) addressed the tension head-on, theorizing that many people were there to find out just what effect the Trump administration would have. The panelists’ answer? Not as much as one might fear. Brian Deese (Senior Advisor to the President overseeing Climate Change and Energy Policy) emphasized that the Clean Power Plan was promulgated in response to a mandate from the US Supreme Court holding the EPA has a duty to regulate greenhouse gases. Even President Trump cannot reverse the Supreme Court’s holding, nor can he eliminate the Clean Power Plan without backing in science and law. Markowitz, meanwhile, focused on state action. She observed that state actions drove U.S. climate response during the Bush years, and pointed out that states from Texas to Vermont are deploying renewable energy projects.

As President Hollande observed today, our world is in turmoil – a setting in which “those who trade in fear are allowed to thrive.” In this world, many have come to doubt what the international community can do. But the Paris Agreement is a beacon of hope in the night, and “a promise of hope cannot be betrayed. It must be fulfilled.” With, or without, the President of the United States.

Marathon Oral Arguments Whisper Victory for the Clean Power Plan

Posted on October 7, 2016 by hannah

On September 27, the U.S. Court of Appeals for the D.C. Circuit heard nearly seven hours of oral arguments that, on their face, bode well for the Clean Power Plan (Plan) and for the United States’ contribution to the Paris Agreement. EPA published its ambitious emissions guidelines for the Plan on October 23, 2015—and on the very same day, states raced to challenge the rule. The Plan aims to cut CO₂emissions from power plants by 32% from 2005 levels by 2030. To achieve this goal, states are free to choose the best route to meet their assigned emission level. States can implement either an emission standards plan that applies to all affected sources, or a state measures plan that utilizes a mix of approaches (e.g. renewable energy standards, increased residential efficiency, emission trading). EPA touts the Plan as one that will reduce cost to consumers and promote development of renewable energy. Despite this, 27 states oppose the rule.

Although it is difficult to predict a victor based on oral arguments, the scales seem to be tipping in the Plan’s favor. Both sides boasted a team of attorneys advocating for or against the Plan. The Court, sitting en banc (apart from Judge Garland who recused himself), heard from counsel for state petitioners, non-state petitioners, EPA, state respondents, the power industry, and environmental groups. State challengers attacked the rule from all angles, alleging statutory, constitutional, and procedural issues to show that the plan exceeds EPA’s authority. The bulk of the day, however, was dedicated to the “generation-shifting” argument; in short, EPA interfered with states’ authority by forcing states to transition to energy-efficient economies. Luckily, the Court jumped on this argument, questioning whether the Plan is truly “transformative” given that coal is already being replaced by low-carbon resources—an observation that the power company intervenors agree with. The Court also reminded petitioners that EPA has always had the authority to set pollution performance standards. In fact, the only thing “transformative” is the Plan’s regulation of CO₂, which prior case law deemed permissible. The most noteworthy question of the day came from Judge Tatel, who asked, “Isn’t reading generation shifting into the statute necessary to keep the CAA up-to-date and ensure the statute evolves to adapt GHGs, as Congress intended?” Throughout the day, questions and observations like Judge Tatel’s demonstrated an encouraging understanding of the Plan’s purpose in the context of today.

Meanwhile, parties to the UNFCCC ratified the Paris Agreement at a lightning pace over the preceding weeks, and the agreement met the threshold for entry into force on Wednesday. The United States’ pledge to the landmark agreement involves cutting overall GHG emissions by 26%–28% below 2005 levels by 2025. Because the Clean Power Plan is destined to play a major role in meeting those goals, invalidating the Plan would set the U.S. off on the wrong foot in the new and promising era of the Paris Agreement. With the agreement set to enter into force on November 4, hopefully the U.S. does not have to return to the drawing board.

U.S. INDC Pledge Just Wishful Thinking Without CPP?

Posted on March 11, 2016 by achristian

Last year, when the U.S. made its INDC pledge to reduce net GHG emissions 26-28% below 2005 by 2025, it was built on Obama’s 2013 Climate Action Plan with the proposed Clean Power Plan (CPP) among its key elements. At the time, a range of climate policy observers, including Climate Action Tracker, U.S. Chamber of Commerce, Climate Advisors, and the World Resources Institute, noted that additional policies would be needed to meet this pledge.

New information and developments compel another look at the gap:

Congress extended the 30% Investment Tax Credit (ITC) for solar and $0.23/kWh Production Tax Credit (PTC) for wind.
The U.S. Energy Information Administration (EIA) released its 2015 Annual Energy Outlook (AEO), and the U.S. submitted its second UNFCCC Biennial Report.
As we blogged in February, the Supreme Court issued a stay on the CPP’s implementation.

The Rhodium Group released a report in January – Taking Stock: Progress Toward Meeting U.S. Climate Goals – that accounts for the first two when analyzing if and how the U.S. can achieve its pledge. Its analysis considers various uncertainties (different paths for future economic growth, potential shifts in transportation demand, and different rates at which the cost of renewable energy and battery storage technology will decline) and integrates these with a set of climate and energy policies, including:

The Clean Power Plan
Pending methane (CH₄) emissions standards for new oil and gas sources
Pending heavy-duty vehicle (HDV) efficiency standards revisions
Pending hydroflourocarbon (HFC) phasedown efforts under the Montreal Protocol

The report also considered the sizeable uncertainty in sequestration pathways for LULUCF, as identified in the U.S.’s second Biennial Report. (The use of the “net” approach in GHG accounting indicates the inclusion of land use, land use changes, and forestry (LULUCF) as carbon sinks to offset emissions.)

The Rhodium Group concluded that emissions reductions of 10%-23% would be expected by 2025, when incorporating the Biennial Report’s wide range of uncertainty on LULUCF sequestration potential, the full range of uncertainties for economic and technology outcomes, and uncertainties in CH_4, HFCs, and HDVs reductions. To move beyond the most optimistic prediction will require building on existing policy frameworks, targeting industrial CO₂ emissions, creating additional CH₄ reduction pathways, and “enhancing the forest sink,” all within the next 5-10 years.

But, what do things look like without the CPP? While we can’t understand all the permutations, two CPP analyses (both assuming optimal implementation) help us get a glimpse. EPA, in its August 2015 Regulatory Impacts Analysis, estimates that the CPP would provide a 9-10% reduction in power sector CO₂ emissions below the 2005 level by 2025 as compared to its base case (Table 3-6). Another Rhodium Group report, co-authored with the Center for Strategic and International Studies, Assessing the Final Clean Power Plan, projects a 17-18% reduction compared to its base case. A number of factors (e.g., different modeling frameworks and historical data) made EPA’s base case significantly more optimistic. Still, both calculated total power sector change from 2005 of 28-29% by 2025. Notably, these figures were derived before the recent passage of the solar and wind tax credits.Extrapolating using this range of figures, EIA historical date, and the Biennial Report for other sector reductions, the CPP would likely have a roughly 4-11% impact on overall net emissions in 2025. (There are many nuances in doing such a calculation; but, as calibration, the Rhodium Group’s Taking Stock report projects a combined 15% reduction with the CPP and the ITC/PTC.)

At a 4%-11% benefit, the CPP would provide somewhere between 15% and 40% of the reductions needed to meet the INDC pledge. Without it, the U.S.’s intention likely moves beyond optimism to just wishful thinking.

Have these states been HAC’d?

Posted on February 19, 2016 by tbach

In the final days of COP21, the High Ambition Coalition (HAC) urged all Parties to join in the effort to keep global warming below 1.5C. Started as an initiative of the Climate Vulnerable Forum, in its final hours HAC’s members included the US, EU, and Brazil along with the Marshall Islands and Kiribati. It was THE in group in Paris on December 12.

This week, in response to the US Supreme Court stay of the Clean Power Plan (CPP), 17 state governors announced the Governors’ Accord for a New Energy Future. In it, they “recognize that now is the time to embrace a bold vision of the nation’s energy future. And to do so, states are once again poised to lead. We join together, despite unique opportunities and challenges in each state, to embrace a shared vision of this future.” Interestingly, this group embraces many of the CPP’s components for achieving emissions reductions, including renewable energy, energy efficiency, and integrating solar and wind generation into electricity grids.

The Accord is bipartisan, including both California and New York and Michigan and Iowa. The signing states represent around 40% of the US population. California Governor Jerry Brown (D) framed it as “governors from both parties have joined together and committed themselves to a clean energy future. Our goal is to clean up the air and protect our natural resources.” Nevada Governor Brian Sandoval (R) said that it “provides a platform for Nevada to leverage new partnerships, gain and share knowledge and an opportunity to introduce our energy advancements to other states . . . that will allow Nevada to continue to lead the nation in renewable energy production, energy conservation, and the exportation of energy.”

High ambition indeed.

Are US COP21 pledges in trouble? UPDATE

Posted on February 15, 2016 by tbach

2/19/16 UPDATE: Since my post on Monday, Todd Stern, U.S. Special Envoy on Climate Change, has weighed in. Speaking from Brussels, where he was meeting with the EU’s Climate and Energy Commissioner, Stern was quoted as saying “it is entirely premature, really premature to assume the Clean Power Plan will be struck down but, even if it were, come what may, we are sticking to our plan to sign, to join. We’re going to go ahead and sign the agreement this year.” He pointed out how different the situation President Obama faces when signing the US on to the Paris Agreement than President Clinton’s support of the Kyoto Protocol that was then abandoned by his successor, President George W. Bush. “Paris was seen as such a landmark, hard-fought, hard-won deal that, for the U.S. to turn round and say we will withdraw, that would inevitably give the country a kind of diplomatic black eye that I think a president of any party would be very loath to do.” He added: “We think we are going to prevail in the court but we are going to go ahead and sign the agreement this year. Period. And we are not in any way going to back away from our 2025 targets.”
* * *

This has been the question of the week in the US environmental community (and to some degree, in the international community as well).

The US Supreme Court granted a stay on Tuesday to the plaintiffs challenging EPA’s authority to devise the Clean Power Plan (CPP) under its Clean Air Act rulemaking authority. In Paris and at home, the CPP has been described as the cornerstone of US pledges under the Paris Agreement.

While a stay is only a procedural decision that stops implementation of a challenged law during litigation, the fact that five out of nine SCOTUS justices granted it caused a collective gasp last Tuesday night in the enviro law community. Why?

First, and foremost, no one was expecting it. The plaintiffs’ motion for a stay had already been denied by the D.C. Circuit (which will hear the case on the merits in June). This ruling was accepted by both sides of the lawsuit as well grounded in precedent. In fact, many saw the appeal to the Supreme Court as a “hail Mary” pass. (No Cam Newton jokes here.) Second, the stay indicates that at least five justices think that the plaintiffs could be harmed by complying with a rule that, when it inevitably arrives at the Supreme Court after the D.C. Circuit’s decision, may be held invalid.

Reading the blogs and Tweets of the last six days, it’s safe to say that the jury is out on what this SCOTUS decision means for the CPP and for the Paris pledges. One slice of expert opinion talks everyone off the ledge by reminding us that it’s just a short-term procedural victory, not a decision on the merits. David Doniger of the Natural Resources Defense Counsel (NRDC) embodies this effort in this interview.

On the impact of the stay at home, there’s a difference of opinion. The Washington Post reported that “about 48 hours after the court’s decision, major utility companies are reacting to the move with a collective shrug.” The largest trade association of electricity providers, Edison Electric Institute, was quoted saying that “electric utilities are investing in clean energy and pursuing energy efficiency” regardless of legal challenges to the CPP — even companies, like AEP, who are listed among the plaintiffs. Pointing to Congress’s recent renewal of clean-energy tax credits and increasing private sector investments in clean-energy projects, EPA Administrator Gina McCarthy adds that “the CPP is underpinning a [market] transition that is already happening and will continue to happen.” States like New York and California immediately called press briefings to state their continued implementation of the CPP. A variety of state official responses, similar in tone, have been collected by the Georgetown Climate Center. Yet Justin Pidot of the University of Colorado School of Law reads the stay as a sign that the coal industry is “too big for EPA to regulate absent an express congressional directive.”

On the international impact of the stay, observers express concern at the high level of international relations more than in the nitty gritty detail of achieving the Paris pledges. Michael Gerrard of Columbia’s Center for Climate Change Law emphasizes that while the CPP is important to the US plan for mitigating GHG emissions, it’s not the only game in town. Gerrard points to several facts in his blog post on Wednesday that the mainstream media hasn’t clearly picked up. First, the CPP doesn’t fully kick in until well into the longer-range US INDC pledges. Citing the US’s Biennial Report (a required communication under the UNFCCC) that was filed just last month, Gerrard points out that the CPP’s actual emissions reductions do not begin until 2022, and thus don’t affect the 2020 pledge of reducing 17% below 2005 levels. In terms of the 2025 pledge of 26% to 28% reduction, Gerrard sees that the US was also relying on fuel economy and energy efficiency standards, phasing out hydrofluorocarbons (HFCs) under the Montreal Protocol on Substances that Deplete the Ozone Layer, reducing methane emissions, and for the ultimate reach, counting forests and other vegetated land masses as GHG sinks.

In contrast, Michael Wara of Stanford Law School believes the US’s international reputation for making good on the Paris Agreement pledges — already weakened by our unreliable behavior on the Kyoto Protocol — took a hit from the stay, especially given our bilateral negotiations with China and India and the role that the CPP-based reductions played in them. (He also sees “significant ramifications” for the U.S. electric power sector given that continued uncertainty in regulating carbon hurts long-term electric utility investments, which could result in higher prices for consumers and competitive disadvantages in trade. (This post from the law firm of Stoel Reeves provides more details on this point.))

Now, with Justice Scalia’s death two days ago and the ensuing debate about who will appoint his replacement, the role of the Court in US domestic climate change law and its international commitments is even more acute.