Environmental update

Environmental update

December 18, 2018 | By Andrew Skroback in New York

The meaning of “critical habitat” and the scope of protection offered by the Endangered Species Act are being hotly litigated in the appellate courts, with potentially significant implications for developers.

The US Supreme Court sent petitions filed by Weyerhaeuser and landowners disputing protections for the dusky gopher frog back to the court of appeals in late November and early December with instructions to determine what falls within the definition of “critical habitat” under the endangered species statute.

The Supreme Court unanimously vacated the lower court decision affirming a US Fish and Wildlife Service designation of 1,544 acres of land in Louisiana as critical habitat for the frog.

Weyerhaeuser and the landowners argued that the frog has not been seen on the land for decades and areas where the frog could not currently survive should not be designated a critical habitat for it.

The appeals court rejected that argument, holding that there is no “habitability requirement” before designating an area as a critical habitat.

In overturning that decision, the Supreme Court said, “according to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat.’”

Thus, the appeals court must now decide what “habitat” means, and whether the land at issue falls within that meaning.

Such a designation can require significant changes to planned projects.

Among the issues the appeals court has been instructed to consider is whether the Fish and Wildlife Service went too far by concluding that the conservation benefits of designating the area a “critical habitat” for the frog would outweigh the costs of barring development. The appeals court felt that the courts should defer to the agency’s decision, but the Supreme Court disagreed.

The entwined cases are Weyerhaeuser v. U.S. Fish & Wildlife Service and Markel Interests LLC et al. v. U.S. Fish and Wildlife.


The US Environmental Protection Agency proposed on December 6 to allow significant increases in carbon dioxide emissions from new and modified coal-fired power plants.

The proposal would revise the “new source performance standards” for greenhouse gas emissions from new, modified and reconstructed fossil-fuel-fired power plants.

Specifically, the power plant emissions limit would increase to 1,900 pounds of carbon dioxide or CO2 per megawatt hour of output, a rate achievable by using a type of coal-burning technology known as “ultra-supercritical.” Smaller units would be subject to a higher rate of 2,000 lb/MWh, allowing for less-efficient technologies.

EPA also said it plans to create separate standards for any new plants that burn coal refuse, meaning waste left over from mining coal seams. Such plants could emit up to 2,200 lb/MWh.

These are significant increases from the current cap for CO2 emissions of 1,400 lb/MWh.

In order to make these changes, EPA now finds that the best system of emissions reduction –- the regulatory standard — for newly constructed coal-fired units is the most efficient demonstrated steam cycle in combination with the best operating practices. This proposed standard would replace the determination reached by EPA in 2015 that the proper standard is partial carbon capture and storage.

The move is seen as a retreat from the Trump administration’s support for “clean coal” technology. “The primary reason for this proposed revision is the high costs and limited geographic availability of” carbon capture and storage, EPA said.

EPA also welcomed public comments on what the Clean Air Act means by authorizing regulation of any emissions source that “causes, or contributes significantly to” air pollution, and on whether a 2009 finding by EPA that greenhouse gases are a threat to public health should apply not only to existing power plants, but also future power plants.

This suggests that the agency is considering further easing of or even doing away with greenhouse gas rules for newly built coal plants.

Paris redux

Diplomats from almost 200 countries met in Katowice, Poland in early December to try to put climate negotiations back on track after findings by the global scientific community that climate change is happening at a faster rate than previously predicted and after portents of increasingly severe impacts become apparent.

The conference is being hailed as a partial success.

The meeting, called COP24, was intended to establish a set of rules for the Paris climate agreement to nudge countries to cut greenhouse gas emissions far more deeply in the years to come. Under the Paris deal, every nation on the planet agreed in 2015 or shortly thereafter to submit a plan for curbing emissions, with promises to take more significant steps as years pass.

The Paris deal did not include binding obligations or penalties for failure to meet those promises. The goal of COP24 was to write a “rule book” on enforcing action and thereby achieve practical results from the promises of Paris.

The larger goal of Paris is to limit global warming to between 2.7 and 3.6 degrees Fahrenheit, which the scientific consensus suggests is necessary to limit more extreme weather, rising sea levels and losses of species. The subtext for the COP24 conference was Paris only decided what was needed, but did not set a concrete path for how it could be done.

The delegates reached agreement on December 15 on a detailed set of rules governing implementation of the Paris accord.

The deal will eventually require each country to follow a uniform set of standards for measuring its greenhouse gas emissions and to track its efforts to reduce them.

A sticking point was the US position that all countries should abide by the same emissions-accounting rules and be subject to the same outside scrutiny. China and some other countries wanted different reporting rules for developing countries. The delegates agreed to a compromise around a clearer methodology to ensure that major developing polluters like China and India are meeting their targets.

The deal calls for greater cuts in emissions ahead of the next round of talks scheduled for 2020, but there are no consequences for failure.

It includes a process that countries struggling to meet their emissions goals can use to try to get back on track.

Developing countries had hoped for more concrete promises of financial assistance from wealthier countries to help them reduce emissions. The issue was largely postponed. The deal calls for further clarification about the aid that the developed world intends to offer.

The US agreed to the deal, notwithstanding that the United States plans to withdraw from the Paris agreement at the first opportunity in November 2020. Until then, every country on earth remains a signatory.

Most of the delegates wanted formally to endorse an October report by the United Nations scientific panel on climate change, but the US, Saudi Arabia, Kuwait and Russia pushed back. Compromise language welcomes with “appreciation and gratitude” the timely completion of the scientific report and invites countries to make use of its findings.

Thus, the delegates left Poland with new rules to implement the Paris accord. More concrete pledges to cut emissions by each country will be on the agenda for the next climate-change meeting in 2020, when the parties will reassemble and the agreement will come into force.

The business community in the United States is facing some uncertainty. A loss by President Trump in the 2020 election would probably see the United States reenter Paris, as well as reconstitute many of the regulatory structures that the current administration has been actively dismantling since it took office.

At the close of the G20 meeting in Argentina the week before the start of the COP24 conference, the leading industrialized nations — except the United States — reaffirmed their commitments to implement the Paris deal.

The United Nations has a goal of raising $100 billion each year from 2020 for climate action. The World Bank Group recently pledged another $200 billion from 2020 to 2025.

Mounting scientific evidence, including two UN climate reports published since October and a late November report by the US government, suggest that countries have not committed to enough emissions cuts to avoid some of the worst impacts of climate change.

US science

Thirteen federal agencies issued a 1,656-page “authoritative assessment of the impacts of climate change on the US and its territories” in late November.

The scientific report offered shockingly blunt warnings about the consequences of climate change for the United States, laying out devastating effects for the US economy, public health and the environment.

It predicts that the expected impacts will cut as much as 10% off the size of the US economy by 2100 if significant steps are not taken globally in the near term.

The report concludes, “Earth’s climate is now changing faster than at any point in the history of modern civilization, primarily as a result of human activities.” “Climate-related risks will continue to grow without additional action.”

The report is the second volume of the National Climate Assessment, which the federal government is required by law to produce every four years. It was compiled by hundreds of experts across more than a dozen agencies.

“Impacts from climate change on extreme weather and climate-related events, air quality, and the transmission of disease through insects and pests, food, and water increasingly threaten the health and well-being of the American people, particularly populations that are already vulnerable,” the report says.

It paints a dark picture. It says the impacts of climate change are already being felt in the form of more frequent and intense extreme weather and changes in average climate conditions. Impacts to date include record wildfires in California, crop failures in the Midwest and crumbling infrastructure in the South.

Future climate change impacts are expected to intensify further, exacerbating problems with the nation’s aging and deteriorating infrastructure, which was designed for historical climate conditions and lower sea levels.

The report says that unless significant global mitigation actions and regional adaptation efforts are taken, rising temperatures, higher sea levels, and changes in extreme events are expected with increasing frequency to disrupt and damage critical infrastructure and labor productivity and shackle of the rate of US economic growth. The report projects that some economic sectors may suffer hundreds of billions of dollars in annual losses by 2100.

Rising temperatures are projected to reduce the efficiency of power generation while increasing energy demands, resulting in higher electricity costs.

Rising air and water temperatures and changing precipitation patterns are already intensifying droughts, increasing heavy rainstorms, reducing snowpack and decreasing surface water quality.

Future warming is predicted to stress water supplies in some regions. Changes in the relative amounts and timing of snow and rainfall may lead to disruption of hydropower, especially in the southwest and northwest, and adversely affect US power plants in some areas that rely on a steady supply of water for cooling.

On the positive side, the report recognizes that increased use of cleaner-burning natural gas and renewable energy, along with mitigation and adaptation efforts by local, state and federal officials, have already begun to reduce US greenhouse gas emissions. However, much more needs to be done.

The report lays out a number of adaptation strategies to cope with adverse impacts and describes how the authors think the nation will have to adapt.

Without significant reductions in global greenhouse gas emissions and regional adaptation measures, it predicts that many coastal regions will be transformed by the second half of the century. The US will need to spend many billions of dollars to harden coastlines, rebuild sewer systems and overhaul farming practices to protect against floods, wildfires and heat waves.

Depending on how rapidly global emissions increase, the report predicts that sea levels are likely to rise between one to four feet by 2100, potentially putting trillions of dollars’ worth of coastal homes and businesses in the US at risk of flooding and, eventually, millions of people may have to move back from the coasts.

While the previous report, issued in May 2014, determined that climate impacts had already started to cause damage across the country, it did not offer the same precision. The new report pins price tags of projected impacts to various sectors of the US economy, such $32 billion from infrastructure damage, $118 billion from sea level rise and $141 billion from heat-related deaths by the end of 2100.

The 2018 report emphasizes that the actual outcomes depend on how quickly the US and other countries act to mitigate global warming.

The medicine prescribed by the report is threefold. First, put a price on greenhouse gas emissions, such as through a carbon tax on emitters who currently pay nothing to discharge into the atmosphere. Second, establish government regulations on how much greenhouse gas may be emitted and ratchet those caps down over time as markets and technology adjust. Finally, vastly increase public funding of clean-energy research.

Scientists who worked on the report said the Trump administration did not try to alter or suppress its findings.

President Trump responded to the report by saying he does not believe its findings.

Acting EPA Administrator Andrew Wheeler subsequently accused the Obama administration of focusing the report on the worst-case outcomes and indicated that the Trump administration might shape the next study of the issue. “Going forward, I think we need to take a look at the modeling that’s used for the next assessment,” Wheeler said.

Some of the report’s authors disputed the criticism that the report focused on worst-case scenarios, pointing out that it includes a wide range of projections, including forecasts where greenhouse gas emissions are sharply curtailed from their current trend.

John Holdren, who served as Obama’s science adviser and who initiated the assessment, said he had no role in selecting the report’s authors. “My only instruction was that the USGCRP should continue the distinguished tradition of the first three by drawing on the most current peer-reviewed science to illuminate what climate change is doing and is projected to do across the geographic regions and economic and ecological underpinnings of well-being in the United States,” he said.

Work on the report started in the final year of the Obama administration, but the majority of the work was done during the first two years of the Trump administration, including the final three drafts, collection of comments and agency review.

Global science

The US climate findings were released a month after a panel of scientists convened by the United Nations issued a similarly detailed and alarming report on the severe economic and humanitarian crises expected to hit the world by 2040 as a result of climate change.

The October report from the Intergovernmental Panel on Climate Change warns that net emissions need to reach zero by 2050 to keep temperature increases to the Paris goal of 2.7 degrees.

In November, the World Meteorological Organization also reported that the concentration of carbon dioxide in the atmosphere is the highest it has been in three to five million years. Its annual assessment finds that greenhouse gas levels in the atmosphere have not been this high since sea levels were 33 to 66 feet higher than they are now.

Concentrations of greenhouse gases increased last year to levels 41% higher than in 1990, driving a long-term increase in the global temperature.

House oversight

The Democrats, who take control of the House of Representatives in January, appear poised for aggressive investigation into the rollback by the Trump administration of various regulations intended to moderate climate change.

The House members who are expected to chair the Energy and Commerce Committee and various other environmental panels in the next Congress sent a letter to acting EPA Administrator Andrew Wheeler on November 20 seeking detailed information and documents from the agency about three measures to overturn or limit agency rules for power plants, motor vehicles and drilling.

While the House leadership and committee and panel appointments remain to be decided and in-fighting is already apparent among the Democrats, additional oversight of EPA is a certainty. Regular and early hearings on climate risk and mitigation options will follow early in the new year as will a flurry of subpoenas.

The Trump administration plans to finish a host of EPA deregulatory measures by March, including replacement power plant greenhouse gas rules and a new rule defining the scope of Clean Water Act jurisdiction. The House is unlikely to be able to block these steps on its own, and the Senate will remain in Republican hands.

Bipartisan carbon tax?

US House members from both political parties introduced a bill in November to impose a carbon tax.

The bill will have to be reintroduced in January at the start of the next Congress. It would impose a $15-per-metric-ton carbon fee on the US oil, gas and coal industries, but rebate that revenue to households to shield them from increased fossil-fuel costs related to the tax.

The bill is not expected currently to get any traction, given the failure of a ballot measure to impose carbon taxes in Washington state in November and the troubles that Justin Trudeau and Emmanuel Macron have been having in Canada and France making carbon and fuel tax increases stick that were imposed in an effort to reduce greenhouse gas emissions.