Climate Change Law and Lawyering at Santa Clara Law

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Professor Tseming Yang

By Tseming Yang, Professor, Santa Clara Law, and former Deputy General Counsel of the U.S. Environmental Protection Agency1

According to the federal government’s National Climatic Data Center, 2012 was by far the hottest year on record for the lower 48 states. It obliterated the previous record, set in 1998, by one full degree Fahrenheit, and left the Arctic with record-low polar sea ice coverage.

One morning last October, a group of Santa Clara Law students from the Climate Change Law course, along with their professors Kenneth Manaster and me, were in a nondescript Sunnyvale office park admiring a row of gray, quietly humming telephone booth–size boxes. Santa Clara Law Professor Catherine Sandoval had also joined our class that day, and a Bloom Energy executive had provided us with an overview of state and federal policies promoting green energy. We were finishing up our visit with a look at Bloom’s Energy Servers. The array of fuel cells in each of the Energy Servers, commercially available technology that is already installed at progressive companies like Google, supplies approximately 200 kilowatts of electric power, enough for the base load of 160 homes. Yet, beyond a faint hum, the oversize boxes emitted no noticeable exhaust or other pollutants.

As the country’s leading producer of commercial fuel cell technology—a key step toward clean, reliable, and distributed energy generation—Bloom’s technology has been cast as an important player in helping to address the challenges of climate change and a long-term transition to a green and sustainable economy. Unfortunately, such promising and innovative clean energy technology continues to face significant challenges in competing with more traditional, much dirtier sources of energy, such as coal-fired power plants. National and state energy and climate policy remain inconsistent in promoting technologies and policies that will help address the emerging reality of climate change. The marketplace has consequently been slow to adapt. Reality has not slowed down, however. According to the federal government’s National Climatic Data Center, 2012 was by far the hottest year on record for the lower 48 states. It obliterated the previous record, set in 1998, by one full degree Fahrenheit, and left the Arctic with record-low polar sea ice coverage. With scorching summer droughts, severe storms, and the devastating Hurricane Sandy, 2012 also placed second behind 1998 for extreme and severe weather events. It seemed that the only signs of disaster missing were pestilence and locusts.

In spite of such compelling developments, which are consistent with the predictions of climate scientists, the public discourse about climate change has remained surprisingly polarized and sharp. The issue continues to be controversial not only with respect to potential policy responses but also for the underlying science itself. Hardcore climate skeptics are still adamant and outspoken, even though scientists worldwide share an overwhelming consensus that most of the fundamental science of climate change is clear and that the technical evidence points more and more to the contribution of atmospheric greenhouse gas (GHG) increases to the observed changes in the earth’s climate.

One question and four answers

Why has climate change been so difficult for the United States to address? Given this country’s past environmental successes, both domestic and abroad, the question appears puzzling. Since the 1970s, the U.S. has been able to clean up most of its air and waterways that had previously been in the news headlines as killer smog and burning rivers. Internationally, the U.S. has successfully led efforts in recent decades to fix depletion of the atmosphere’s vital stratospheric ozone layer, critical to protecting life on earth from the sun’s harmful UV radiation.

There are many answers to the question of why climate change is so difficult to resolve. But at least four issues are markers of its intractability. First, it is a global challenge both in cause and effect. Since it is tied directly to the concentration of carbon dioxide and other greenhouse gases in the atmosphere, it is the ultimate “Tragedy of the Commons” problem. All humans share in the atmosphere as a common good and vitally benefit from a well-functioning climate system. But all humans also contribute GHGs through their lifestyles, though to greatly varying degrees. A global solution will ultimately be necessary, for fear that efforts by some countries to limit their own GHG emissions are taken advantage of by free riders or possibly even undone by increased emissions from other countries.

Second, climate change is a long-term environmental problem. Although some serious impacts are already evident, its full effects may not manifest themselves for many decades, if not a century. Future generations are the ones that will bear the brunt of the environmental harms that our present-day society and ways of life are creating today. Worse yet, it may take even longer to ultimately fix and restore earth’s climate system. But our children’s children cannot be a part of the current public debates. Such intergenerational equity and ethical problems greatly exacerbate the fairness and political process problems already characteristic of international climate discussions.

Third, climate change encompasses and is related to an amalgam of major environmental challenges and impacts. Higher mean temperatures will not only lead to more frequent and severe climate-related disasters, including droughts, storms, and other extreme weather events, but also adversely affect the habitat and survival of many plant and animal species. Rising sea levels will increase the height and frequency of storm surges as well as inundate currently habitable or arable land with ocean water. Close linkage of climate change to the exploration, extraction, and combustion of coal, oil, and gas associates it with harm to natural ecosystems. And the carbon emissions that result from reliance on fossil fuel for electricity generation, transportation, or industrial processes means climate change is also closely associated with pollution’s health effects. In other words, climate change is connected to a vast range of environmental problems. While measures to address climate change will come with important collateral environmental public health benefits, they may also incite a wide assortment of industries and other likely adversaries that may be negatively impacted by solutions.

Finally, the cost of addressing climate change is potentially tremendous. Some actions to mitigate climate change are projected to save money, such as energy conservation and efficiency measures. Other measures will carry a significant price tag, largely because many causes of global warming are tied directly to the use of fossil fuels. These remain a foundation and driver of our economy and lifestyle. Switching to alternative energy sources, technologies, and other measures to reduce GHG emissions at this point will require investments of substantial resources.

Students with Professors Ken Manaster and Tseming Yang at Bloom Energy.

In October, as part of their Climate Change Law course, Santa Clara Law Professors Manaster and Yang took students to Bloom Energy, where officials from Bloom’s legal, business, and technical departments gave informative presentations and a guided tour of Bloom’s energy servers.

A Recipe for Controversy

Combine these cost considerations and complexities with the widespread popular misconception that climate change is still an unproven theory, and one has a recipe for controversy. There are of course some uncertainties that are relevant to policy makers, such as the timing and extent of specific impacts: the rate of the melting of the polar ice caps, effects on ecological systems and species survival, and consequences for agricultural production and public health, to name just a few. Scientific understanding is still evolving in these areas.

At the same time, there is a widespread international consensus among scientists on many other issues. The Intergovernmental Panel on Climate Change has elaborated in its assessment reports the scientific consensus on fundamental climate change science. It encompasses the increase in GHG concentrations, the warming effect on the earth, the potential consequences of warming on sea level rise, and the potential for a range of adverse effects on humans and ecosystems. Unfortunately, in the face of the significant cost, some uncertainty has been used to politicize the debate and cast much greater doubt than reasonably justifiable on the fundamental reality of the issue.

The complexity of the climate change problem and its global and cross-cutting nature have also meant that the challenge of designing solutions implicates a great many areas of law. These include tools to potentially solve the problem and doctrines altered by the environmental transformations climate change may bring about. The areas are as diverse as traditional environmental regulation, project finance, energy law, carbon instrument trading, land use regulation, municipal building codes, and even tort and property law.

The upshot has been a national and international policy process marked by fits and starts. Influenced more by politics than evolving climate science, the lack of sufficiently aggressive government actions to achieve an international climate solution has led to increasing alarm and despair, even doomsday predictions, on the part of some environmentalists and diplomats. The public policy and legal picture has not been pretty, undoubtedly. Nevertheless, a tremendous amount of important and positive work has occurred on many fronts—internationally, at the federal level, and at the state level, especially here in California.

International Processes

Adoption of the UN Framework Convention on Climate Change (UNFCCC) in 1992 and the Kyoto Protocol in 1997, the first agreement by which wealthy nations committed to binding emission-reduction limits, came with Sonia Feldstein Sonia Feldstein ’08, staff counsel for the California Department of Toxic Substances Control, is a model of the focus and persistence required to land a public interest job as an environmental lawyer. But now that she’s working at DTSC’s Berkeley Regional Office, she’s happy with the mix of environmental law she gets to practice. “I really enjoy the work I get,” she says, “because it’s just such a broad range of information and a broad range of work. I don’t have to push the same forms or paper. I get to learn new things every day.” Recently she researched who was responsible for contaminants that remain from the 1980s on a site in San Jose, and issued a unilateral cleanup order to 65 parties, including some large corporations that are household names. Since May 2012, it was a huge effort. “All the attorneys for those 65-plus firms contacted me directly,” Feldstein says. “I pretty much had to set everything up myself. I don’t have a secretary or paralegals like you would in a law firm. “The good thing is,” she continues, “we got the parties to sign up to an agreement so we won’t have to continue through the unilateral enforcement order route, so finally they’re going to start doing a cleanup there in the next month or two. It will be good to see that finally getting taken care of after so many years.” Feldstein understands from “slightly painful” experience how difficult it can be to secure a public interest job in environmental law. Graduating just as the recession hit full force, she applied to “probably more than 100 places” before volunteering for 10 months as an environmental lawyer in the state attorney general’s natural resources section. Today she makes an effort to help SCU environmental law students and recent grads when they reach out to her, and she is glad to see the University spotlighting environmental law. “It’s one of those fields where persistence really does pay off,” she says. “It shows your commitment to it, and that can be the difference between getting the job or not.” ALUMNI PROFILE great anticipation and hope for concerted global action. Though the 1997 Kyoto Protocol imposed limited emission control obligations for only a five-year time period, from 2008 to 2012, the agreement had always been intended only as the first step on a long-term path of international cooperation. Over the years, work under the UNFCCC and Kyoto Protocol has resulted in the establishment of an international carbon-trading system, engaged developing countries in voluntary GHG reduction efforts through programs such as the Clean Development Mechanism, and focused attention on financial assistance needs for the developing world so that it can participate in GHG emission control. Europe created its own regional carbon-trading system, and an active carbon finance market has arisen to meet growing interest in GHG emission reduction projects.

From a legal perspective, negotiation and implementation of such climate change policy objectives have raised a number of legal and institutional design issues, including ensuring the enforceability of GHG reduction commitments, the integrity of carbon markets that are now worth hundreds of millions of dollars, and accountability for financial assistance arrangements.

Since 1992, the global population, especially in the developing world, has continued to grow and standards of living have steadily risen, while the international economy has suffered serious difficulties. These developments have complicated discussions about further GHG emission reductions, which under the Kyoto Protocol were undertaken only by the industrialized world. Worse yet, in 2001, then-President George W. Bush declared that the United States would not ratify the Kyoto Protocol and thus not legally accept the previously negotiated commitments.

But there have also been important signs of hope. As of the end of 2012, the initial five-year emission-reduction objective for the Kyoto Protocol appears to have been met. It is a significant achievement, even if success has been aided by the global economic slowdown, which reduced fossil fuel use and emissions. Furthermore, late last year, diplomats were successful in renewing and extending the emission reduction commitments of the Kyoto Protocol to 2020, obligations which would otherwise have expired by the end of 2012. And recently, the international community also created a new Green Climate Fund that will assist with international financing of climate change work.

Nevertheless, the future path remains filled with uncertainty. With the extension of the Kyoto Protocol commitments to 2020, the focus of international negotiations has now turned to long-term emission reduction commitments by a broad range of countries that will cut emissions drastically in the coming decades. Success in this endeavor will be critical to finding an ultimate solution to the global problem.

United States’ Progress

Nationally, significant progress on climate change has been of only recent vintage. Under earlier administrations, the Environmental Protection Agency had resisted looking to the Clean Air Act as a regulatory tool for GHG emissions. However, the U.S. Supreme Court’s 2007 decision in Massachusetts v. EPA definitely determined the agency’s authority to take action under that statute. Since then, the EPA under the Obama Administration made an endangerment finding under the Clean Air Act that triggered further regulatory actions. Beginning in 2009, EPA finalized new, more stringent GHG standards for passenger vehicles, issued GHG permitting requirements for smokestacks, began collecting GHG data under the Mandatory GHG Reporting Program, launched the Global Alliance for Clean Cookstoves with the UN Foundation, issued the first set of GHG standards for medium- and heavy-duty trucks, and began work on GHG standards for power plants and oil refineries. The new, stringent fuel economy standards for passenger vehicles in model years 2017 to 2025 alone have been projected to save an estimated four billion barrels of oil and avoid two billion metric tons of GHG emissions. Consumers are expected to save $5,000 to $6,000 in fuel per vehicle. Finally, no new construction of coal-fired power plants is anticipated in the foreseeable future, avoiding one of the dirtiest fossil fuels.

However, a declaration of victory would be premature. Reduced reliance on coal has been ascribed both to the effects of the economic recession as well as the dramatic drop in natural gas prices due to fracking technology and the availability of shale gas, a much cleaner fossil fuel. Most of the GHG regulations promulgated by EPA are the subject of legal challenges and remain in litigation. Congressional efforts to pass climate change legislation that would have included a GHG cap-and-trade system failed at the end of 2010. No serious efforts have been made since then to revive such discussions (though President Obama’s commitment to revive discussions about climate change legislation in his second term could change that). In other words, national leadership and action are still critically needed.

Finally, efforts aimed at adapting to climate change are becoming increasingly important, as is the rising specter of climate geo-engineering. In contrast to climate mitigation measures, which seek to prevent or limit further GHG emissions, adaptation measures are designed to adjust and modify the activities and infrastructure of human society in response to effects of climate change that have already become unavoidable. These include adaptation to increased risks of flooding associated with rising sea levels and higher storm surges in coastal and other areas through the construction of seawalls and other measures.

Climate geo-engineering, in contrast, describes efforts to counteract the consequences of climate change through large-scale engineering interventions to modify the atmospheric system, such as by solar radiation management or ocean fertilization. Geo-engineering used to be the stuff of science fiction. However, with the efforts of private individuals to do just that, research into ocean fertilization as a means of carbon sequestration has become very real in recent years. Regulatory oversight of such work, at the leading edge of climate science and fraught with the potential for significant adverse environmental impacts, remains haphazard at best and falls within a regulatory gray area.

State Progress — Especially in California

Efforts at the sub-federal level, especially in California, have remained bright points of climate action. Past lack of federal leadership on climate change policy resulted in a number of states, individually and as groups, developing their own initiatives. Chief among them have been the Northeast Regional Greenhouse Gas Initiative, which engaged the states of New England and the northern mid- Atlantic region, as well as the Western Climate Initiative. The California legislature’s enactment of Assembly Bill 32 in 2006 and other California programs, however, have put this state at the forefront not only within this country but also in the world. AB 32 has empowered the state’s Air Resources Board to limit California’s GHG emissions and to implement the country’s most comprehensive and sophisticated carbon-trading system. The state’s cap-and-trade system became enforceable in its requirements with the start of the 2013 calendar year.

California has also been a leader through other measures at the state and local level. For example, the state has provided financial incentives for green energy, promulgated green building code requirements, and set renewable energy portfolio standards for utilities. Local governments have enacted ordinances encouraging the use of solar energy for homes, and other innovative measures promoting sustainable growth and living.

Litigation

Apart from effecting change through administrative regulatory processes, environmentalists and progressive state officials have also used the court system to promote public policy change. That has included litigation advancing nuisance and other tort principles or forcing state and federal government agencies to act under existing statutory mandates. Unfortunately, the outcomes have been mixed. States were successful in forcing EPA onto the path of GHG regulation in Massachusetts v. EPA. But environmental advocates and state officials have fared less well in cases like American Electric Power v. Connecticut, where the Supreme Court held that federal common law nuisance actions were displaced by the Clean Air Act. More recent cases have begun to explore the potential utility of the public trust doctrine as a tool for protecting the climate system. It remains to be seen how
successful environmental plaintiffs will be.

Santa Clara University Progress

Santa Clara University has been actively anticipating many of these concerns and developments. In 2007, then-SCU President Paul Locatelli, S.J., signed the American College and University Presidents’ Climate Commitment and subsequently created the Sustainability Council and the Office of Sustainability (scu.edu/sustainability). In his 2009 inauguration address, current SCU President Michael Engh, S.J., stressed the University’s commitment to sustainability and to championing environmental justice through the various University programs. These priorities and values have been incorporated into the University’s mission and vision through the Strategic Plan. Campuswide sustainability has become a key part of planning and operations. In the process, the University has taken measures to improve energy efficiency, promote recycling, reduce waste generation, and utilize more renewable energy, including by installing solar panels on various campus buildings.

Santa Clara Law is well positioned to prepare its students to participate in and benefit from these developments. The curriculum offers a number of related courses, including the specialized course on Climate Change Law that Ken Manaster and I taught last fall. Its coverage included international, federal, and state climate law and policy issues, introducing students to specific current regulatory developments and cases. Examples are litigation surrounding EPA’s current GHG regulations, California’s brand-new cap-and-trade system, and international climate agreements. Furthermore, a range of leading scholars, national advocates, and distinguished practitioners working on these issues visited the class to share their insights. Another course highlight was the class visit to the offices of Bloom Energy.

Ken Manaster and I have been and remain actively engaged in the practice and public policy dialogues related to climate change, whether through active regulatory practice before agencies such as the California Air Resources Board, the principal regulator of GHG emissions in California, or by writing about the domestic and international legal and policy issues. Santa Clara Law Professor Cathy Sandoval’s ongoing role as a commissioner on the California Public Utilities board adds more breadth and depth to our faculty’s expertise available to students on regulatory issues related to climate change and energy issues. Finally, SCU’s proximity to Silicon Valley’s clean tech/clean energy industry creates many potential opportunities for student internships and other connections that will facilitate the entry of students into the field.

The Path Ahead

The path of climate policy remains unclear for the short-term future, fraught with political controversy and economic challenges. However, as scientific understanding about the effects of climate change continues to settle, the set of policy options will inevitably crystallize. Santa Clara Law continues to follow the ongoing regulatory initiatives and progressive policy trends closely, and our students will be well positioned to address the opportunities and challenges these developments present to lawyers trained to grapple with these crucial issues and contribute to their resolution.

1I am grateful for the editorial suggestions by Professor Kenneth Manaster.

Santa Clara Law Professor Tseming Yang is the former deputy general counsel of the U.S. Environmental Protection Agency, where he provided legal counsel to the EPA administrator and other senior agency leaders and supervised legal work on international and domestic environmental issues. He joined Santa Clara Law in 2012.