Climate Change Goes to Court
A New Boalt Center Ramps Up for Legal and Policy Challenges
By Jared Simpson and Johanna Wald
In mid-2006, global warming went pop: Al Gore's An Inconvenient Truth became a breakout hit—the Oscar-winning documentary has been viewed by millions worldwide and is the third-highest grossing documentary film in history. Its unlikely success is only one indication of the growing awareness and sense of urgency about climate change. According to a Fox News poll taken in January, 82 percent of Americans now believe that global warming is real. A CNN poll taken the same month indicates that 75 percent believe that there should be mandatory restrictions on automobile and industrial emissions to help curb greenhouse gases (GHG). (See:
Business Coalition for Climate Action Doubles)
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These polls were taken before the really bad news broke: On February 2, the Intergovernmental Panel on Climate Change (IPCC) released its long-awaited—and long-dreaded—report. As expected, the more than 2,000 climatologists from 113 countries confirmed beyond a reasonable doubt that global warming is real, that humans are very likely to blame, and that we can expect to see an acceleration of its deleterious effects, including a rise in sea levels by as much as 0.59 meters (almost two feet), by the year 2100. While the document (actually an 18-page summary that will be followed by a full report in May) didn't have anyone breaking out the champagne, its unquestionable scientific validity and unequivocally grim prognosis have raised hope among concerned citizens that comprehensive and unified action will soon be on the political agenda.
The fear of unprecedented global catastrophe has already provoked bitterly contested legal and political battles, such as the move by several states to regulate automobile and factory emissions that led to the first Supreme Court decision on climate change policy, Massachusetts v. EPA. The court's holdings in favor of the petitioners, announced April 2, essentially establish a new legal context for climate change debate. Developing and implementing effective laws and policies within this contentiously divided national and global arena requires the expert guidance of not just top climatologists, but other professionals as well, including the environmental law and policy experts from top-tier legal institutions such as Boalt Hall.
Enter the Center
"This is the big one," says Sho Sato Professor of Law Dan Farber, "the environmental issue that's going to dominate the agenda for decades." Farber is faculty director of the recently launched California Center for Environmental Law & Policy. CCELP (handily and appropriately pronounced "sea kelp") was established to expand Boalt's nationally renowned Environmental Law Program, and enhance the school's already substantial involvement in crucial environmental issues. CCELP's intention is to make Boalt a major academic player in the effort to come to grips with the causes and effects of climate change.
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CCELP's commitment to "moving to an entirely different level," as Farber puts it, is demonstrated by two recent appointments. Rick Frank, a senior legal adviser to the California Attorney General and an environmental lawyer for more than 30 years, has been named the center's first executive director. Joining Frank as associate director—and adding formidable international expertise—is Cymie Payne '97. Payne has spent the past six years in Geneva as a senior attorney at the United Nations Compensation Commission, a U.N. Security Council agency that handles compensation claims for losses resulting from Iraq's invasion of Kuwait. She is also the director of CCELP's Global Commons Project, which was established to expand the influence of environmental law on international policy-making. "With Rick and Cymie on board," says Farber, "we'll take a leading role in crucial environmental debates at the state, national, and global level."
CCELP has already set its sights on the surge of climate change activity in Sacramento. Frank reports that he and other CCELP staff will play an important advisory role as the state legislature and California Air Resources Board decide how to implement the groundbreaking Global Warming Solutions Act of 2006 (AB 32). Passed in September 2006 and signed into law by an erstwhile reluctant Governor Schwarzenegger, the law imposes emissions caps on utilities, refineries, and manufacturing plants, and requires that GHG emissions be reduced to 1990 levels by 2020. It also mandates that measures be taken to ensure that the state further reduces emissions to 80 percent below 1990 levels by 2050. While several other states have passed similar legislation, California is the first to cap emissions across all the relevant industries, making the act, as stated by the Natural Resources Defense Council, the nation's "most ambitious effort to combat global warming."
Sacramento-savvy Frank cautions that, at this point, "there may be less here than meets the eye," referring to the fact that the legislation does not specify how its broad mandates are to be measured, monitored, and regulated, but instead gives sweeping powers to the 11-member Air Resources Board to make those determinations. The board's decisions are crucial in determining whether the legislation actually results in the mandated emission reductions. Payne notes that some measures will be taken fairly soon, under the early action provisions of the bill. For example, by June 30, the Air Resources Board is required to publish a list of measures that can be implemented by the end of 2009. (See: California Air Board Chastised Over Weak Approach on Clean Air by Schwarzenegger and Garamendi; Mixed Reviews on Implementing Global Warming Requirements of AB 32)"Some of those steps will be less controversial because they may scoop up California's remaining low hanging fruit in terms of conservation, efficiency, and alternative power sources," she says. "Industries can be expected to be more concerned about the more far-reaching provisions that will be implemented later."
California Steaming
California's immensity makes for great cocktail party conversation: The state boasts the eighth-largest economy in the world, and with almost 40 million residents, has a larger population than all but 33 countries. But being the big state on the map comes at a cost: California is the world's 12th-largest emitter of carbon dioxide; its automobiles and industries spewed out 492 million gross metric tons in 2004, according to a report produced by the California Energy Commission.
But, as the passage of AB 32 indicates, California is serious about changing its polluting ways. Schwarzenegger himself appears to be signaling a change of heart with dramatic moves that—while still largely symbolic—are attracting a lot of attention and keeping the issue at the forefront. For example, on July 31, 2006, in Long Beach, California, Schwarzenegger and British Prime Minister Tony Blair signed the climate change and clean energy collaboration, an agreement that pledges an array of cooperative actions, including exchanging information and looking at the possibility of working out an emissions trading program. (See: Schwarzenegger, French president discuss trade, global warming)
Bypassing the federal government is a significant and growing trend for state and local governments frustrated by the Bush administration's failure to act. "California and other states have been forced to become so active because of the dearth of national leadership," says Frank. The Bush administration has repeatedly been taken to task for failing to take the lead on climate change policy, and California is neither the only nor the first state to take independent action. Massachusetts, Arizona, and Colorado are among several states that have passed emission reducing measures. On February 26, the governors of five western states—Arizona, California, New Mexico, Oregon, and Washington—announced the Western Regional Climate Action Initiative, which will set pollution-reduction goals for the signatory states and establish a market-based program to meet those goals. A statement by Arizona Governor Janet Napolitano during the signing neatly sums up the initiative's rationale: "In the absence of meaningful federal action, it is up to the states to take action to address climate change and reduce greenhouse-gas emissions in this country." (See: N.J. set to lead on global warming)
Even municipal governments are taking time from zoning laws and road repairs to register their desire for a unified response. In 2005, Seattle Mayor Greg Nickels launched the U.S. Mayors Climate Protection Agreement, in which cities pledge to do what they can to help reduce emissions. As of March 29, 435 mayors from all fifty states have signed on (including Berkeley Mayor Tom Bates, of course). (See: Tulsa Becomes 500th City to Sign U.S. Mayors Climate Protection Agreement) But, however laudable such state and local efforts may be, to date they have only produced a crazy quilt of uncoordinated, inadequate, and largely toothless regulations. Says Frank: "Everyone, not just environmentalists and conservation organizations, but industry and state governments as well, agree that this is a subject best tackled at national and international levels."
Supreme Courting Disaster
Aggressive moves by California, Massachusetts, and other states to regulate emissions has provoked automakers and other affected industries to strike back with a largely successful spate of lawsuits. The beleaguered states sought relief from the EPA, petitioning the agency to use its power under the Clean Air Act (CAA) to regulate tailpipe and industrial emissions. The EPA's refusal to do so led 12 states and a host of municipalities and environmental organizations to sue the agency. The ensuing round of decisions and appeals in Massachusetts v. Environmental Protection Agency resulted in the first Supreme Court decision on climate change, which was a resounding victory for the plaintiffs. This decision says Frank, is "the most important environmental law decision by the U.S. Supreme Court in 20 years."
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Frank explains that the EPA and the Bush administration had argued that the federal government has no authority to regulate heat-trapping gases because they are not air pollutants as defined by the CAA. Frank, who was deeply involved in the case while serving in California's Office of the Attorney General, notes that this argument had "essentially reversed the stance of the last two administrations toward the EPA." The EPA's counsel also argued that—regardless of the agency's responsibilities under the CAA—the petitioners lacked standing to bring the suit, a position to which several of the justices appeared sympathetic, judging from their comments and questions during the arguments.
Frank says that he and his CCELP colleagues are greatly encouraged by the court's holdings. "This is a major and unqualified win by the states and environmental groups that brought the case," he says. Not only does the decision repudiate the Bush administration's claims that it lacks the legal authority to regulate GHG under the CAA, but "it is at least as significant for its ruling that environmental litigants generally, and sovereign states in particular, have the legal standing to pursue their climate change-related legal claims in the federal courts."
Thinking Cap (and Trade)
Holding your own on the topic of global warming at the next chatty gathering means boning up on cap-and-trade programs. Legislators, members of state agencies, legal practitioners, and NGO administrators did just that at a February conference organized by CCELP: Cap and Trade as a Tool for Climate Change Policy. Payne, who organized the conference, says its main goal "was to educate the business, finance, legal, and policy communities on where climate change policy is headed both nationally and internationally." And these days the next stop seems to be stringent regulation (cap) and market-based incentives (trade). Signaling the political importance of the conference, the keynote speaker was no less than Senator Dianne Feinstein. Feinstein is a proponent of cap and trade and has co-authored bills that would cut carbon dioxide emissions from power plants and increase fuel economy standards.
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Simply stated, a cap-and-trade scheme mandates an overall limit on the amount of allowable GHG emissions in any given year, and portions out allocations to individual companies. Companies that produce less than their quota may trade or sell their remaining allotment to those that produce more. The program was successfully implemented in the United States after the CAA Amendments of 1990 mandated the reduction of smokestack pollutants that caused acid rain, and it has subsequently been endorsed by the Kyoto Treaty and put into practice in parts of Europe.
Cap and trade isn't the only greenhouse-gas game in town. Some experts, such as Al Gore, believe that the simplest and most transparent method of regulation would be taxing carbon emissions. Nonetheless, Payne notes that among the plans currently being considered, regulatory and market mechanisms are the most likely to be implemented by states, regions, and the federal government. Statements and actions by top leadership, including Feinstein, confirm this. But, Payne adds, although a market-driven approach is the current preferred policy tool, "that does not exclude the future use of alternate approaches, such as a form of carbon tax."
Cap and trade definitely has a pretty good track record—in the last two decades for example, emission restrictions and market incentives helped to reduce dramatically the pollutants from coal-fired plants that caused acid rain in the Northeast—but it is complicated to implement and enforce. "Assigning credits, knowing whether they are actually being generated by legitimate projects (read: knowing if a company is cheating), measuring baselines for determining when reductions take place—these are all problematic areas for programs of this nature," says Payne (See Stick Trumps Carrot, below).
Sea Levels (and Other Rising Challenges)
While we're still bickering about how to deal with its causes, climate change is already happening, resulting in immediate and alarming consequences that raise other urgent legal and policy issues. Frank recalls that during a sharp exchange on the question of standing in Massachusetts v. EPA, Justice Scalia told the plaintiff 's counsel, Massachusetts Assistant Attorney General James R. Milkey, that he was required to demonstrate that harm is imminent. "I mean, when is the cataclysm?" Scalia asked.
"It's not so much a cataclysm as ongoing harm," Milkey responded, pointing out that rising sea levels will soon claim land in coastal states like New York, Massachusetts, and California. "The harm is already occurring."
CCELP is analyzing the profound legal implications of dramatic shifts in public and private boundaries along the coast caused by rising sea levels. For example, as tidelands, wetlands, reefs, and islands are submerged, owners of coastal property can be expected to demand government protection from storm surges, in the form of sea walls and cliff armor. Payne suspects that these demands will raise new jurisdictional questions and resource-allocation challenges to a legal framework that has, in the past, treated property as relatively static.
The imminent threat of rising sea levels gets a lot of media attention—it was a particularly hair-raising feature of An Inconvenient Truth—but many other crucial legal and policy issues need to be addressed, and soon. Farber notes that in California, for example, an entire infrastructure has been built to capture snowmelt that flows down from mountains each spring and use it to meet agricultural, industrial, and municipal needs. "The problem," says Farber, "is that the system is designed for one particular climate." Warming will likely cause snow to melt earlier and shrink the runoff period, meaning that storage facilities will have to be expanded significantly to capture and move the same amount of water each year.
But any such expansion is an extremely contentious policy issue in California. Frank notes that recent efforts to build new storage facilities and expanded water-delivery systems have met with vigorous opposition from conservation groups and other stakeholders. "Even in the face of the pressures on our current water system posed by climate change, expansion proposals will likely be met by political controversy and litigation," he says. In February, Frank was appointed by Governor Schwarzenegger to serve on the Delta Vision Blue Ribbon Task Force on the future of the Sacramento-San Joaquin Delta. "That future will be affected by these changing runoff patterns," he says. "Being a member of this task force is one direct and concrete way in which I and the center will be contributing to solutions." (See: Rising sea levels could swallow California's delta islands)
Big Science, Big Law
In February, the University of California, Berkeley and its partners at the University of Illinois at Urbana-Champaign and the Lawrence Berkeley National Laboratory were selected by British Petroleum (BP) to lead an innovative $500 million research effort. The resulting Energy Biosciences Institute will be housed on the Berkeley campus and will carry out research aimed at developing new sources of energy and reducing the impact of energy consumption on the environment.
John Browne, CEO of BP, said that the company selected Berkeley and its partners largely based on their ability to repeatedly deliver "big science," large and complex projects that require top level know-how leading to scientific breakthroughs. With big science comes big legal and policy issues, as well, and CCELP expects to actively participate in the legal aspects of the new institute's projects. Payne points out that there are many regulatory and legal issues around the deployment of biofuels or other approaches to climate change mitigation, such as thorny questions regarding land and water use, ocean law, and legalities related to research and development. "Our ongoing work with the Energy Biosciences Institute is a perfect example of the kind of interdisciplinary efforts for which we hope CCELP will become known." In addition to ongoing research and curriculum development, CCELP is holding a town-hall style forum with state regulators and other experts on new energy technologies in April.
Sunshine Clause
The IPCC report delivers an unremittingly gloomy scenario, but Payne and other CCELP staff remain upbeat. Payne evinces tremendous determination to "think our way out of this problem" and believes that eventually measures to reduce emissions will be routinely woven into our daily lives. Payne notes that AB 32 is only one of a whole package of other measures that shouldn't be overlooked, including: AB 1493, that sets GHG emissions limits on automobiles (which is now under litigation); the governor's low carbon fuel standard; the renewable portfolio standard; and SB 1368's GHG emissions performance standard for electric power generators. Payne adds that the Democratic control of Congress portends serious legislative initiatives to deal with climate change. "The California delegation of Nancy Pelosi, Dianne Feinstein, and Barbara Boxer is on a roll in this arena, which is particularly exciting," Payne says.
The laws and policies adopted domestically and internationally in the next decade will determine how successful we are in slowing warming and addressing its consequences. It has been over a century since Mark Twain was (erroneously) credited with the famous aphorism: "Everybody talks about the weather, but nobody does anything about it." CCELP is part of a growing global movement that is committed to both talking and pushing for whatever measures necessary to address the most pressing issue of our time.
