Weathervane

Jan27

Will Courts Set Climate Policy through Nuisance Suits?

Adaptation, Congress, EPA, Environmental Justice

A polluter emits something that hurts people in a community. These people get together and sue the polluter. Courts then side with the victims under the common-law tort of nuisance, and award damages (or an injunction shutting down the polluter). Before the era of modern environmental regulation, all pollution-related disputes were solved this way.

Regulation has made environmental nuisance suits much less common and less necessary, but they have not disappeared completely. The problems presented by climate change are broadly similar—polluters emit greenhouse gases (GHGs) that ultimately cause harm. In the absence of government regulation of GHGs, can nuisance suits be used to force polluters to reduce emissions or to compensate for adaptation costs?

Suits seeking answers to these questions exist and are making their way through courts now. Some of them have made headlines, such as that filed by Kivalina, Alaska—a town on a barrier island formerly protected by Arctic sea ice, but which now faces increasing erosion. The New York Times reported on the case in an article that also discusses some similar cases, including perhaps the most widely-reported, Connecticut v. AEP. In that case a group of states and private conservationist landowners are suing power companies under a similar nuisance theory.

So are these cases going to end up with major judgments that effectively set policy? Is big tobacco going to be the model for redressing harms from climate change? If tobacco is the model, I wouldn’t get your hopes up. But it is likely that these lawsuits will end up playing a big role in the policy process.

Despite the relatively high-profile coverage of some of the cases, there is not much for advocates of GHG regulation to be excited about. No climate nuisance case (that I know of) has been successful. The biggest “victory” so far has been in Connecticut v. AEP. Still in that case, the Second Circuit simply reversed a lower court’s comprehensive dismissal of the plaintiffs’ claims. The appellate court ruled that courts could decide the case in principle (it was not a “political question”) and that the states did have standing to sue over climate harms. This says almost nothing about the plaintiffs’ likelihood of success on the merits of the case. Causation and damages will be big hurdles for the states when the lower court reaches the merits.

It’s also possible that EPA action could preempt these suits. The Second Circuit ruled that the lack of EPA GHG regulation left the field open for nuisance suits, but strongly implied that any EPA regulation would preempt them. Connecticut was decided just before the EPA released its endangerment finding for mobile sources in December. It’s likely that any nuisance suit aimed at auto manufacturers would fail for preemption reasons now that the EPA has committed to regulating mobile-source GHGs. If the EPA, as many expect, moves to regulate stationary-source GHGs, then Connecticut itself would presumably be preempted also.

This link between EPA regulation and nuisance lawsuits, however, creates a lever through which those suits might still have a big effect on how climate policy gets made—as Jonathan Zasloff at UCLA has pointed out. As nuisance suits proceed, they will put increasing pressure on the EPA to regulate to preempt them since regulation is generally perceived as a superior approach (especially by the EPA itself, one expects). Both nuisance suits and EPA regulation put pressure on Congress to enact climate legislation.

Opponents of action on climate are effectively stuck playing whack-a-mole - if they succeed in blocking action in Congress and through the EPA (possibly by getting a Murkowski-style resolution passed), nuisance suits will proceed with unpredictable results. If they quietly let the EPA regulate, those suits go away, along with a lot of pressure on Congress. But Clean Air Act regulation is a bitter pill to swallow. The most likely long-term result seems to be congressional action—opponents can’t push for inaction forever with the twin threats of EPA regulation and nuisance suits.

In short, nuisance suits make business-as-usual on climate much less likely, even if they are not themselves very likely to succeed. This should be cause for some optimism about the long term if you are frustrated by the current inability of Congress to enact climate legislation.

Nathan Richardson is a Visiting Scholar at RFF.

Published: Jan-27-10 | 0 Comments

Dec09

Global Change: How Much Should We Take Into Account?

Adaptation, COP-15

COPENHAGEN -- I had a chance to sit in on Thomas Karl (NOAA)’s presentation/summary of the U.S. Global Research Programme at the U.S. Center here. While I only caught the end of his presentation, (the whole report and summary can be found here), there was an interesting question asked by a member of the audience: how do these scientific reports and research projects relate to decision making when it comes to deciding on permits and applications for natural resource development? The audience member cited the Department of Interior’s recent decision to approve Shell’s application to drill in the Arctic Ocean. In the presentation Karl had shown the same area to be one of the most vulnerable to changes and impacts of climate change.
That same issue relates to the negotiations, especially when it comes to adaptation. How will the science behind IPCC and vulnerability assessments translate into policy decisions? While the negotiating text does point to the need for science-based decision making, one can only wonder how this would be implemented. If adaptation is going to happen to the scale that it is required, how will the various types of information needed be managed and analyzed? And, even more importantly, how will this information be accessed by and disseminated to the necessary parties?

RFF’s Climate and Electricity Policy Program just launched an initiative called the Global Adaptation Atlas (full disclosure: I work on this project). It is exactly the management tool needed for science to influence policy and practice on adaptation. It brings the projected impacts of climate change (similar information to the USGCRP) and adaptation activities together on a common platform to look at where there might be confluences of impacts, and takes stock of whether there are appropriate activities to address these impacts. It allows for large-scale dissemination and sharing of knowledge pertinent to adaptation—to whomever is interested (it’s online, free, and allows for download and upload). We think that it’s a pretty great tool to help policymakers and planners access and manage the complex information they need to make decisions.

Some of you might be curious as to what Thomas Karl’s answer was to the question. He said that all types of information and reports were taken into consideration before making the decision—but then again, that sounds like a standard answer.

Nisha Krishnan is the Project Manager of the Global Adaptation Atlas and a Research Assistant with the Climate and Electricity Policy Program at RFF.

Published: Dec-09-09 | 0 Comments

Nov10

IEA Energy Outlook: Capped and Uncapped Futures Could Vary Greatly

Cap and Trade, International, Mitigation, Adaptation

Graph image courtesy nDevilTV via Flickr According to the International Energy Agency’s long-term energy outlook, the worldwide recession will curb energy demand in 2009 but that trend will quickly get back on an upward swing, rising to 40 percent over 2007 levels by 2030.

IEA analysts assume with business-as-usual practices, worldwide demand for fossil fuels will account for 77 percent of overall demand growth by 2030. Moreover, electricity demand will increase 76 percent, requiring the addition of generating capacity five times greater than that of current capacity in the United States.

IEA officials also calculated another scenario in World Energy Outlook 2009 to find what type of energy shift the world would need to stabilize atmospheric greenhouse gasses (GHGs) at 450 parts per million, a number that translates into a 2°C temperature increase — the target agreed upon by leaders of the world’s largest economies last year. Business-as-usual projections put global temperatures on a path to increase as much as 6°C.

Analysts say the 450 ppm goal can be met through a mix of cap-and-trade programs, multinational agreements and considerable funding for adaptation and mitigation technology to lower atmospheric concentrations of GHGs. Meeting the goal of 450 ppm, according to IEA analysts, will require the additional investment of some $10.5 trillion in the global energy sector between 2010 and 2030.

More details from the IEA’s World Energy Outlook 2009 can be found here. Environmental Capital’s Keith Johnson unpacks more of the numbers here and Joe Romm delves into the story at ClimateProgress.

Tiffany Clements is managing editor of Weathervane.

Published: Nov-10-09 | 0 Comments

Sep02

U.N. Report: Developing World Needs ’Wartime’ Support to Fight Climate Change

International, COP-15, Renewables, Adaptation

Image Courtesy Zuma Press via Mother Nature Network An annual investment in the neighborhood of $500 to $600 billion for the next ten is necessary for developing nations to grow on a clean energy path and face the challenges of climate change, according to new projections from the United Nations.

Helping economies grow with clean energy and adapt to changes in crop patterns, droughts and shifting disease vectors will require an enormous effort. In addition, according to the report, assistance from the developed world with “a level of international support and solidarity rarely mustered outside a wartime setting” will be needed.

But getting developed and developing nations to agree upon what that support should look like is not a simple task. In a new RFF issue brief examining case studies of technology transfer to China, Takahiro Ueno, of Japan’s Central Research Institute of Electricity and Power Industry, says a philosophical divide between developed and developing economies often emerges on the issue of technology:

Developed countries typically argue that technology transfer occurs commercially and the role of national governments is to create business and regulatory environments that enable commercial activities. For them, intellectual property rights protection is the core of enabling environments for technology transfer.

On the other hand, developing countries emphasize the role of public assistance by developed countries. Even if they agree on the critical and central role of the private sector, they continually request large-scale public funding from developed countries. In addition, they believe that protection of intellectual property rights makes technologies less accessible and affordable and request special treatments such as compulsory licensing.

Building a consensus on an international technology plan will mean addressing three issues, according to World Resources Institutes’ Britt Childs Staley:

How an international agreement can incentivize innovation of next generation low-carbon technologies, and accelerate and scale up diffusion of existing technologies to developing countries.

Whether the structure of the international regime should include a new technology body or bodies and/or a new technology fund, or should build on existing mechanisms.

How to solve divisive intellectual property rights (IPR) issues.

Finding agreement on those issues won’t be easy, but according to Childs Staley it could be crucial to the successful negotiation of an international climate treaty:

Technology may be more important to the post-2012 international agreement than the agreement is to technology deployment. In practice, domestic-level policies and flows of private capital will be the primary driver of technology development and deployment in the years ahead.

However, given this issue’s central importance in the Bali Action Plan, the technology provisions agreed in Copenhagen will have a major bearing on the negotiations’ success. Designed correctly, they may also play an important complementary role in facilitating the adoption of clean technologies around the world.

Tiffany Clements is managing editor of Weathervane

Published: Sep-02-09 | 0 Comments

Aug31

Monday's Reads

Adaptation, International, Oil, COP-15, Morning Reads

WaPo: A look at how proponents and opponents of U.S. climate legislation are digging in, preparing for a battle in the Senate.

NYT: Editorial calls Cash for Clunkers and similar rebate programs “a spectacularly inefficient way to implement environmental policy.“

NYT: Green Inc.’s Tom Zeller Jr. wonders if amidst all the uncertainty of climate change anybody really knows what adaptation will take (or how much it will cost).

WSJ: According to this op-ed the developing world’s demand for oil will trump technological advances and keep the fuel source relevant.

WSJ: A lighting consultant makes a case for preserving some incandescent light bulbs, despite strong pushes toward compact fluorescents.

NYT: It seems some LEED-certified buildings aren’t living up to their efficiency labels.

And finally, the 100 day mark on the countdown to Copenhagen has come and gone, but with 97 days until the world climate summit, check out the Guardian’s collection of user-generated messages to international negotiators.

Did we miss something today? Let us know, leave a comment or e-mail clements@rff.org.

Published: Aug-31-09 | 0 Comments

Jul28

The Public Health Response to Climate Change

Adaptation

With health care reform consuming the domestic political discourse, the nation’s gaze is turning toward doctors and insurance while energy and environment are (at least momentarily) eschewed.

But according to Dr. Jonathan M. Samet of the University of Southern California Institute for Global Health, concerns about climate change and public health overlap. Samet says that, while changes to the environment aren’t expected to create new health threats, they will change distributions of factors that cause existing public health issues.

In Adapting to Climate Change: Public Health, Samet suggests that as understanding of climate change evolves, so will tools to combat new health concerns in key areas such as heat, aeroallergens and allergic diseases, changes in endemic and epidemic infectious diseases, and ambient air pollution.

Read more and download Samet’s full report.

“Adapting to Climate Change: Public Health,” is an installment from a six-part series of U.S. climate change adaptation policy reports.

Tiffany Clements is managing editor of Weathervane.

Published: Jul-28-09 | 0 Comments

Jul16

Dealing with Drought: Coordinating Freshwater Management to Adapt to Extreme Weather

Adaptation, United States

More frequent and longer droughts coupled with increased hurricanes and floods could lead to a future of greater vulnerability for freshwater resources in the United States. Most current freshwater management policies were designed in the last 60 to 80 years, a period climatologists now recognize as unusually wet. But precipitation patterns in the coming decades are expected to return to “normal” and many regions may be much drier. And regardless of climate speculation, policymakers are already facing many serious issues in dealing with the current shortage of high-quality water and ensuring sufficient water quantity to meet the growing demands.

The Problem

Droughts throughout the country are leading to declines in lake and stream levels and rivers are drying out more often. Rainfall and snowfall are more unevenly distributed from year to year in many areas and a warmer climate will likely mean greater future variation in precipitation and evaporation. Climatic extremes in the next 50 years could be fundamentally different from the past so responding to their outcomes will mean studying patterns, reassessing current systems, and adapting to new circumstances.

Although several U.S. regions are familiar with drought—some policies and adaptive responses have been effective in coping with limited water quantity, quality and drought-related wildfires in the arid West and parts of the Midwest—losses are increasing both in scope and frequency. New approaches are needed. Two recent multi-year droughts in the southeastern U.S. have stimulated some changes in policy and resulted in a wider recognition of the need for more long-term planning to ensure the value of natural flows and protect biotic processes that sustain freshwater ecosystem services.

Recent droughts throughout eastern states have also served as a reminder that aging infrastructure associated with storage, treatment, and delivery of water in urban centers and rural areas is in need of updating. Large amounts of leakage in some delivery systems results from century-old pipes and the combined storm drainage and sewage treatment facilities are too often over-burdened during intense storms.

Population distributions are becoming more concentrated in urban centers across the country and people now rely on a combination of surface water and groundwater. Aquifers will become increasingly unreliable during prolonged droughts after decades of over pumping and limited aquifer recharge. Pumping, below ground storage in deep aquifers (during wet periods), and recovery of water during droughts is one approach. However, this “solution” can lead to the contamination of naturally pure groundwater and create new problems.

Policy Response

States and non-governmental organizations have developed some new ways to adapt but sharing these ideas have yet to be adapted for wider use. There are numerous “climate centers” at state, regional, and national levels but their activities need to be integrated so the general public can learn how to better organize responses to increasingly severe drought conditions. Preparations for hurricanes and flooding have increased after Katrina, but similar coordinated national and regional efforts to address droughts are needed.

In the past, the main economic losses were agricultural as supplies for irrigating crops were often limited. More drought-ravaged areas will likely see adverse economic impacts in the future. Long-term “insurance” will most likely come from better management of natural infrastructure like wetlands, floodplains and well-managed forested source areas. Some cities and counties as well as state and federal agencies are creating incentives to pay landowners to improve their management practices. These investments will pay off in the years ahead as the value of natural ecosystem services is increasingly recognized by the general public and policy makers.

Read Covich's in-depth exploration of climate change adaptation and U.S. freshwater systems is entitled, "Emerging Climate Change Impacts on Freshwater Resources: A Perspective on Transformed Watersheds," an installment from a six-part series of U.S. climate change adaptation policy reports.

Alan P. Covich is a professor of ecology, and former director of the Institute of Ecology, Odum School of Ecology, at the University of Georgia.

Published: Jul-16-09 | 0 Comments

Jul08

New U.S. Incentives for a Copenhagen Agreement

COP-15, Adaptation, International, Mitigation, Congress, Obama Administration

The new global climate agreement nations hope to reach in Copenhagen this December is different from many international agreements the United States is accustomed to negotiating. It will not be simply a reciprocal exchange of similar commitments by developed and developing nations (as with trade or arms control deals). Rather, to provide incentives for developing nations to make international climate pledges—and ensure a level playing field for U.S. manufacturers—the United States and other developed nations must provide funding for adaptation and mitigation, and allow developing countries some say in how this money is spent through existing or new international institutions. Aside from the issue of institutions, which can be dealt with later, this type of negotiation raises several key questions. How much funding is needed globally? What is an equitable U.S. share? What is included in current legislation, and how do these figures all match up?

While my last post dealt primarily with the third question, as debate moves to the Senate it is important to analyze how these funding levels compare to projected global needs, and thus how they will be perceived by the international community in the context of negotiating a new climate agreement. An initial analysis of the American Clean Energy and Security Act allowance allocations reveals several insights.

(1) The ACES is a good start, but even using conservative estimates of global needs the overall funding level in the bill is likely to be lower than the world is expecting, especially since some countries do not “count” private sector financing through offsets as a legitimate contribution. Although the U.S. State Department undoubtedly informed discussions in the House about the level of funding they need to secure an agreement, it may not have been politically possible to secure this level of allowance value and the Senate should consider alternative funding approaches.

(2) Financing for international forest conservation is much closer to the equitable U.S. share than adaptation or clean technology deployment. This is not surprising given the substantial expected cost-containment benefits from forests, and the United States’ strong bipartisan tradition of support tropical forest conservation.

(3) Financing for clean technology deployment in particular falls drastically short of what the world is expecting. Although this pool of funding has the potential to create U.S. jobs through clean energy export promotion, critics have pointed out that it could also be seen as paying other countries to become more competitive. How this funding is distributed and managed will therefore be critical, and increasing support will require innovative new programs or institutions better aligned with the interests of U.S. policymakers.

Potential 2020 Public and Private Financing Compared to Global Needs and U.S. Share (in millions)

	Global Needs	U.S. Share [1]	Included in H.R. 2454[2]
Adaptation	$10,000-30,000[3]	$2,000-6,000	Public: $721-914 Private: $0 Total: $721
International Forest Conservation	$17,000-33,000[4]	$3,400-6,600	Public: $3,243-4,580 Private: $4,680-11,636 Total: $7,923-16,216
Clean Technology Deployment	$75,000-110,000[5]	$15,000-22,000	Public: $721-914 Private: $1,560-5,818 Total: $2,281-6,732

[1] U.S. share is assumed to be at least 20% of the global total, based on past contributions to multilateral initiatives or institutions.

[2] Ranges for private sector financing are calculated based on estimates of offset price, supply, and source in 2020 from EPA, the Congressional Budget Office, and Project Catalyst.

[3] Project Catalyst, Towards a Global Climate Agreement, Synthesis Briefing Paper, 2009. page 17

[4] Johan Eliasch, Climate Change: Financing Global Forests, UK Office of Climate Change, 2008. page 76

[5] Project Catalyst, 2009. page 17

Andrew Stevenson is a research assistant at Resources for the Future and regular contributor to Common Tragedies.

Published: Jul-08-09 | 0 Comments

Jul06

Adaptation and Infrastructure in the U.S.

Adaptation, United States

Key elements of America's infrastructure— such as transportation; energy generation and transmission; water, sewer, and telecommunications; and coastal defense—may be compromised by the extreme weather events, rising temperatures, and other effects of global climate change. These threats are assessed in a new RFF Report, "Adapting to Climate Change: The Public Policy Response—Public Infrastructure."

Authors James E. Neumann and Jason C. Price, of Industrial Economics, Inc. in Cambridge, Mass., examine climate-sensitive areas that could be imperiled by flooding of lowlands, roads, and railway; loss of permafrost; clean water availability; damage to power lines and refineries; and overloading of sewer systems.

The authors offer three key suggestions for improving infrastructure adaptation policy—a better integration of planning, a stronger push for new technologies, and turning the aftermath of extreme weather events into opportunities to upgrade infrastructure:

"More frequent and destructive extreme events, such as recent hurricanes and riparian floods, have already proven to be a huge challenge to maintaining public infrastructure. At the same time, many studies note that adaptation to climate stresses is more cost‐effectively accomplished during the design phase of projects, rather than as a retrofit to existing capital. Although extreme events are devastating to affected regions, the rebuilding process can be used as an opportunity to replace damaged infrastructure with more resilient capital."

“Adapting to Climate Change: The Public Policy Response—Public Infrastructure,” is an installment from a six-part series of U.S. climate change adaptation policy reports.

Stan Wellborn is director of public affairs at Resources for the Future.

Published: Jul-06-09 | 0 Comments

Jun23

Adapting to Climate Change: U.S. Coastal and Marine Resources

Adaptation, Oceans, United States

Climate change is expected to have particularly devastating effects on marine and coastal resources as temperatures and sea levels rise. These environmental changes could lead to ecological impacts like coral bleaching, species invasion, changes in biodiversity, and reduced biological productivity.

Adapting to changing oceans remain a key concern for members of the international community (especially small island nations) as well as domestic policymakers.

In "An Adaptation Portfolio for the United States Coastal and Marine Environment," RFF University Fellow James Sanchirico and David Kling of the University of California-Davis examine a range of public policies to fortify natural and man-made systems against the impacts of climate change and variability for marine and coastal environments within the United States and its territories.

The portfolio of policy options proposed by the authors contains a number of adaptation strategies for marine and coastal resource administrators. Among their suggestions: keeping strategic retreat (also known as abandonment) in play. The option, while logical from a financial perspective, is often politically unpalatable, according to Sanchirico and Kling:

"Although abandonment or the strategic retreat from a place is a politically difficult position to take that has many potential distributional and social justice consequences, the question of if and when to retreat needs to be in the forefront of the dialogue on adaptation policies. This is true for decisions regarding coastal habitat restoration in the face of sea level rise, habitat protections, and development in highly- vulnerable locations such as barrier islands. With abandonment not in the feasible set of policies, cost‐effective adaptation policies will remain elusive."

“An Adaptation Portfolio for the United States Coastal and Marine Environment,” is an installment from a six-part series of U.S. climate change adaptation policy reports.

Tiffany Clements is managing editor of Weathervane.

Published: Jun-23-09 | 0 Comments

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