Negotiators of multilateral environmental agreements are frequently faced with the challenge of striking the right balance between stringency of commitment and breadth of participation. A perfect agreement on paper, with strong commitments and a robust compliance mechanism, might attract too few Parties (or too few key Parties) to achieve the agreement’s environmental objective. Conversely, broad participation in a weak agreement might also fail to accomplish the agreement’s goals.
This paper focuses on the various ways in which negotiators have worked to encourage participation in multilateral environmental agreements. In some cases, they involve steps taken before and during the negotiation of the agreement. In other cases, they involve the provisions of the agreements themselves (such as various forms of flexibility, incentives to join, and disincentives to remaining outside) or decisions taken by Parties after agreements have entered into force.
Ultimately, States participate in agreements because they consider it in their environmental, economic, and/or political interest to do so. There may be forces beyond the four corners of environmental agreements that cause States to join them or implement their provisions de facto.
There may be bilateral or multilateral pressure to join or implement an agreement, such as through diplomatic exchanges.
The UN may call upon States to join or implement particular agreements, such as through a UN General Assembly Resolution.
A State may be lobbied domestically, e.g., by environmental NGOs or particular industries.
Another State(s) may restrict imports of a particular good if it does not meet a particular international environmental standard.
Another type of agreement, such as a trade agreement, may incorporate the requirements of an environmental agreement, either directly or by reference.
The world is currently looking with great interest at how the groundbreaking case known as the “Carbon Majors” petition will unfold. On September 22, 2015, Greenpeace Southeast Asia, Philippine Rural Reconstruction Movement, and numerous other interest groups filed a petition with the Philippine Commission on Human Rights (CHR) against 50 multinational corporations identified as the “Carbon Majors”. Based on a study conducted by Mr. Richard Heede of the Climate Accountability Institute, the petition requests the CHR to investigate the responsibility of the Carbon Majors for contributing to global emissions of greenhouse gases (carbon dioxide and methane) that are tantamount to human rights violations. The Carbon Majors named in the petition are investor-owned companies engaged in the oil & gas, coal, and cement businesses, including Chevron, ExxonMobil, British Petroleum (BP), and Royal Dutch Shell. Notably, the Philippines has experienced a fair amount of the adverse effects of climate change, foremost of which is Typhoon Haiyan—one of the strongest tropical cyclones ever recorded in history—that devastated the country in 2013.
The petition caught the attention of academics and stakeholders in climate justice around the globe. On December 16, 2016, the Sabin Center on Climate Change Law submitted to the CHR its position in support of the petition. In another blog post, the Sabin Center also shed light on the nature of the petition and how it can impact climate litigation.
One of the salient issues raised in the petition concerns the jurisdiction of the CHR. The petitioners assert that the CHR has jurisdiction over the petition based on the argument that responsibility for directly contributing to climate change is a violation of human rights of the Filipino people. In turn, the respondents (or at least those who have submitted letter-responses to the CHR) counter that it does not have jurisdiction, typically on the grounds that it does not have adjudicatory powers or they are not doing business in the Philippines. (For example, see responses of Anglo American, BHP Billiton, and Rio Tinto on the Sabin Center’s Non-U.S. Climate Litigation Database). In December 2017, the CHR stated to the media that it is assuming jurisdiction to investigate the allegations in the petition by conducting hearings in the Philippines and abroad throughout 2018. It aims to release its resolution by the first quarter of 2019, which could be a landmark development in climate justice litigation.
This post attempts to contribute to a better understanding of the nature and powers of the CHR that can help inform the resolution of the petition.
From a historical viewpoint, the CHR can be considered as a response to the human rights abuses committed during the martial-law regime of Ferdinand Marcos. Its mandate and functions reflect the lessons learned from the country’s experience of state-sponsored violations of human rights under Marcos’ dictatorship, including basic rights to life, liberty, and property, the right to peaceful assembly and petition the government for redress of grievances, freedom of speech and of the press, and others. After the 1986 People Power Revolution led by the succeeding president, Corazon Aquino, the 1987 Constitutional Commission formally created the CHR under the title on social justice and human rights found in Article XIII of the 1987 Philippine Constitution. The office was created by enabling law on May 5, 1987 by virtue of Executive Order No. 163.
The CHR’s mandate primarily involves the conduct of investigations of human rights violations involving civil and political rights of “marginalized and vulnerable sectors of the society” in accordance with universal human rights standards. According to its website, the CHR is an independent National Human Rights Institution (NHRI) which complies with the Paris Principles, as defined by the Office of the United Nations High Commissioner for Human Rights (OHCHR). As an NHRI, the CHR seeks to uphold six fundamental characteristics consisting of independence, pluralism, broad mandate, transparency, accessibility, and operational efficiency.
The specific powers and functions of the CHR are enumerated under Section 18, Article XIII of the Philippine Constitution. Among others, these include the power to:
(1) Investigate, on its own (motu proprio) or on complaint by a party, all forms of human rights violations involving civil and political rights;
(2) Provide appropriate legal measures for the protection of human rights of persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services;
(3) Recommend to the Philippine Congress effective measures to promote human rights and to provide for compensation to human rights victims;
(4) Monitor the Philippine Government’s compliance with international treaty obligations on human rights; and
(5) Request the assistance of any department, bureau, office, or agency in the performance of its functions.
As can be gleaned above, the CHR has fact-finding, investigative, and recommendatory powers. In particular, it can recommend legislative measures to promote human rights (including investigation by the Philippine Congress in aid of legislation) and likewise request any appropriate government office to assist in the performance of its human rights functions. It cannot, however, adjudicate and resolve cases like in judicial proceedings.
The jurisdiction of CHR has been challenged in some cases decided by Philippine courts. In Cariño v. CHR, the Philippine Supreme Court tackled the question on whether or not the CHR has adjudicatory powers over, or the power to try and decide, cases that involve human rights violations involving civil or political rights like a court of justice or a quasi-judicial agency. The high court declared that the CHR has no such power, and that “[t]he most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights.” In Export Processing Zone Authority v. CHR, the Supreme Court held that the CHR does not have jurisdiction to issue a restraining order or writ of injunction. Citing Cariño, it was held in this case that the CHR—not being a court of justice—is not legally authorized to compel herein respondents to cease and desist from continuing the acts complained of by way of an injunctive process. What the CHR can do instead to carry out its power to provide “preventive measures and legal aid services” is to seek an injunction from the courts on behalf of the victims of human rights violations.
The Philippine Supreme Court also had the occasion to rule on the nature of human rights cases sought to be covered within the ambit of the CHR’s mandate. In Simon v. CHR, the Court noted the deliberations of the 1987 Constitutional Commission which envisioned that the focus of CHR’s attention would be on “the more severe cases of human rights violations”, for example, the protection of rights of political detainees, treatment of prisoners and the prevention of tortures, fair and public trials, and cases of disappearances. The Court hastened to add, however, that such enumeration with respect to the CHR’s scope of jurisdiction is not exhaustive. Accordingly, Section 19, Article XIII of the Philippine Constitution provides that the Congress may provide for other cases of violations of human rights that the CHR can take cognizance of.
From the viewpoint of Philippine jurisprudence, the holding in the Simon case seems to limit the jurisdiction of the CHR to civil and political rights only. To determine legislative intent, the Philippine Supreme Court set forth the discussions of the Constitutional Commission which seem to suggest that the authority of the CHR must be concentrated only on civil and political rights; in fact, one delegate contrasts these to land, housing, and health rights. (Notwithstanding the apparent delineation of the CHR’s jurisdiction, such discussion by the Court in Simon appears to be more obiter dictum rather than a part of the dispositive holding.)
It bears noting that the CHR is not a constitutional commission under Philippine law. In Commission on Human Rights Employees Association (CHREA) v. CHR, the Philippine Supreme Court ruled that the CHR is not a constitutional commission similar to the Civil Service Commission, the Commission on Elections, and the Commission on Audit, which are granted fiscal autonomy by the Philippine Constitution. Consequently, the CHR—though a constitutional body—enjoy only limited fiscal autonomy. While CHREA provides a limitation on the powers of the CHR in general, it appears that such limitation relates solely to the fiscal and budgetary authority of CHR and not to its jurisdictional authority.
The scope of rights contemplated under the CHR’s jurisdiction should be approached more broadly. This position is consistent with the Omnibus Rules of Procedure of the CHR. Under Section 1, Rule 2 of the Omnibus Rules, the CHR has the duty to take cognizance of and investigate “all forms of human rights violations and abuses involving civil and political rights”. Furthermore, Section 2 (paragraph 2) of the same Rule provides that the CHR is tasked to investigate and monitor “all economic, social and cultural rights violations and abuses, as well as threats of violations thereof, especially with respect to the conditions of those who are marginalized, disadvantaged, and vulnerable” (italics supplied). An otherwise narrow interpretation of the jurisdiction of the CHR may significantly impair its ability to address the wide gamut of human rights violations that occur in the Philippines as well as those experienced by Filipinos beyond its territory. Yet, as observed by some sectors, it bears emphasis that the CHR must continue to focus on its mandated functions of oversight and accountability.
While it may be conceded that the CHR cannot award damages or carry out enforcement powers, it has the vital role of supporting human rights victims with reparations and put to task government authorities to implement their duties that promote respect for human rights. Section 17, Rule 3 of the Omnibus Rules (as regards disposition of complaints or human rights cases) requires that the dispositive portion of the CHR’s resolution include the corresponding recommendations, which can entail any or all of the following: (1) the filing of appropriate criminal, administrative, or civil actions before the proper forum, (2) the endorsement for appropriate legislative, judicial, administrative and policy measures, and (3) the grant of financial assistance. To buttress these functions, the CHR and the Philippine Department of Justice (i.e., the Philippine Government’s prosecutorial arm) entered into a Memorandum of Agreement in 2012 where both agencies endeavor to share information and coordinate regarding the investigation and prosecution of human rights violations.
Based on the CHR’s recent pronouncements, it appears that it is committed to proceed with the inquiry despite the likelihood that the respondent corporations will not participate. Consistent with its power to investigate cases even on a motu proprio basis (Section 1, Rule 4 of the Omnibus Rules), it takes the positive view that the petition can be framed not as an issue of jurisdiction but, instead, as “an issue of mandate to investigate”, which then animates the Philippine human rights institution to pursue an investigation and inform itself about the responsibility of carbon emitters. Going forward, it will be interesting to witness how the role of the CHR will play out and how developments on the petition will impact the future of climate justice.
Richmund Sta. Lucia, a candidate for an LL.M. degree at Columbia Law School, received his J.D. degree from the University of the Philippines College of Law and has worked as an attorney in the Philippines’ Office of the Solicitor General and private law firms. His legal advocacy includes the promotion of renewable energy.
A Stanford environmental professor’s high-stakes defamation suit over a peer-reviewed critique evaluating renewable energy outcomes, came to an end last week. Dr. Mark Jacobson, professor of civil and environmental engineering and director of Stanford’s Atmosphere/Energy program, announced on February 22 that he will drop the defamation suit he brought in D.C. Superior Court against fellow environmental scientist Dr. Christopher Clack and the National Academy of Sciences.
The case revolved around a 2015 paper in the Proceedings of the National Academy of Sciences (PNAS) in which Dr. Jacobson and three co-authors argued that wind, water and solar resources could provide 100% of the energy needed in the continental United States by as early as 2050. In February of 2017, PNAS published a critique of the Jacobson paper written by Dr. Clack (currently the founder and CEO of Vibrant Clean Energy, LLC, and formerly a mathematician with the Cooperative Institute for Research in Environmental Sciences) and 20 co-authors. In that article, Clack et al. argued that the Jacobson paper “used invalid modeling tools, contained modeling errors, and made implausible and inadequately supported assumptions.”
On September 29, 2017 Dr. Jacobson sued Dr. Clack and the National Academy of Sciences in Superior Court in Washington, D.C., alleging (among other things) that the Clack article contained false and misleading information constituting defamation. Dr. Jacobson sought a retraction of the Clack article as well as $10 million in damages. In particular, Jacobson alleged that Clack et al. had wrongly accused him of making modeling errors when, he argued, he had simply made an assumption, a necessary part of conducting complex modeling. Jacobson also alleged that press coverage of the Clack article caused significant damage to his reputation. Both Dr. Clack and NAS moved to dismiss the case, pointing to a D.C. law intended to prevent so-called “strategic litigation against public participation” or “SLAPP” suits. The D.C. court held a hearing on the motions to dismiss the case on February 20, 2018. Following that hearing, Dr. Jacobson announced that he would voluntarily drop his suit.
Dr. Jacobson maintained that this was not simply a dispute between peer scientists, but rather a case of Dr. Clack knowingly and intentionally misrepresenting what had been done in the Jacobson paper. However, there are compelling reasons to believe that this was in fact a valid scientific debate on an important issue of public interest, and therefore a serious misapplication of defamation law. The Jacobson paper “promot[ed] a shift in the United States’ environmental priorities and policies toward almost exclusive reliance on wind, water and solar energy.” The Clack paper was a peer-reviewed evaluation of Jacobson’s work that “pointed out what [its authors] regarded as flaws in its methodology, assumptions and conclusions.”  As Dr. Clack’s motion to dismiss pointed out, if the criticisms lodged against Jacobson’s work were accepted as defamation, there would be a severe chilling effect on scientific debate on what is indeed an issue of significant public interest. Others analyzing this case have similarly argued that if scientists conducting research on a contentious issue (or scientific journals publishing such research) believe that their involvement in that particular subject comes with a significant risk of being sued for defamation, scientists will become more reluctant to conduct research in that area, journals will become more reluctant to publish about it, and important scientific discourse and developments that otherwise would have occurred may not.
Dr. Jacobson’s lawsuit is important as a potential example of a trend towards misuse of defamation law in the context of environmental and energy policy and the science that underlies it. A few years ago, the journal Frontiers in Psychology retracted a paper linking climate denial to conspiracist ideation, after the journal received threats of libel litigation. In another recent high-profile (if, admittedly, different) example, Bob Murray of coal giant Murray Energy brought a defamation suit against HBO late night host John Oliver when Oliver did an episode in which he took aim at Murray and the energy policies he has advocated. That suit was recently dismissed. Differences of opinion about climate science in particular, and appropriate policy responses, are frequently vehement. When directed against scientists by those who disagree with the policy implications of their research, this tactic has the potential to significantly impede scientific development.
Nonetheless, there is a line between those types of cases and cases in which defamation law is a legitimate tool that scientists can use of in order to defend themselves. The Jacobson v. Clack case naturally lends itself to comparisons with a well-known defamation suit brought by climate scientist Michael Mann, one of the researchers who developed the famous “hockey stick graph” showing an abrupt rise in global temperatures. Dr. Mann’s work became the subject of numerous fraud investigations after his were among roughly one thousand emails that were hacked and posted online in 2009 in the manufactured controversy termed “Climategate”. None of the investigations found that Dr. Mann had in fact committed any fraud. Nonetheless, in 2012 Rand Simberg wrote a blog post for the Competitive Enterprise Institute in which he suggested that Dr. Mann had used fraudulent methods in his research, and engaged in personal attacks and name-calling against him. Dr. Mann sued Simberg, the Competitive Enterprise Institute and others for defamation.  (The Sabin Center has previously written about the Mann case.)
The defendants in that case argued, just as Dr. Clack and his co-defendants did, that the suit should be dismissed under anti-SLAPP legislation. Both the trial court and the D.C. appeals court rejected that argument and allowed Dr. Mann’s defamation claims to go forward. The fact that Dr. Mann’s research had already undergone multiple investigations without any finding of misconduct, as well the particular harshness of some of the statements at issue, led the courts to hold that a fact-finder could reasonably conclude that defamation law should provide him with protection against and relief from further allegations of fraud.
The juxtaposition of the Jacobson case with the Mann case points to an inherent tension in the application of defamation law in the context of scientific research. On one hand, the Jacobson lawsuit can arguably be seen as a warning signal that defamation law may increasingly be used as a way to undermine scientists and chill scientific research and debate, particularly on hot-button topics like climate change. On the other hand, there may well be more cases to come like that of Dr. Mann, in which scientists find themselves the targets of large-scale and long-term attacks and need that same body of law to protect themselves.
There are some important differences between the Jacobson case and the Mann case that may serve as examples of the kinds of guideposts courts can use in this context. For example, the allegedly defamatory statements at issue in the Jacobson case were made by fellow scientists as part of a critique about the validity of certain methods and the reliability of Jacobson’s research results. In contrast, in the Mann case, the comments at issue involved calling a demonstrably exonerated scientist a “fraud” and comparing him to a child molester. Courts will likely increasingly be called upon to analyze these kinds of factors in order to differentiate between abuses of defamation law that may do serious damage to the freedom and integrity of scientific discourse, and legitimate uses of it that may help protect that discourse.
 Clack Memorandum in Support of Special Motion to Dismiss at 1, D.C. Superior Ct. 2017 CA 006685 B (Nov. 27, 2017).
 Dr. Mann’s case is currently pending in the D.C. Court of Appeals. The Court of Appeals ruled that Dr. Mann’s case could proceed to trial. The Defendants petitioned the Court of Appeals for a rehearing en banc in early 2017. The Appellate Court has yet to issue a ruling on the motion for rehearing.
* Augusta Wilson is a Staff Attorney at the Climate Science Legal Defense Fund, which seeks to protect the scientific endeavor. CSLDF previously assisted with the representation of Dr. Mann in a separate dispute over open records requests, although it is not involved in Dr. Mann’s defamation litigation described above.
Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com.
Federal Court Denied Oakland and San Francisco Motions to Return Climate Change Nuisance Cases to State Court; Found Federal Common Law of Nuisance Could Apply, Despite AEP v. Connecticut; Requested “Tutorial” on Climate Change
The federal district court for the Northern District of California denied Oakland’s and San Francisco’s motions to remand their climate change public nuisance lawsuits against five major fossil fuel producers to state court. The court held that federal common law necessarily governed the nuisance claims because “[a] patchwork of fifty different answers to the same fundamental global issue would be unworkable” and “the extent of any judicial relief should be uniform across our nation.” The court stated: “Plaintiffs’ claims for public nuisance, though pled as state-law claims, depend on a global complex of geophysical cause and effect involving all nations of the planet (and the oceans and atmosphere). It necessarily involves the relationships between the United States and all other nations. It demands to be governed by as universal a rule of apportioning responsibility as is available.” The court dispensed with the cities’ three primary arguments for remanding the cases. First, the court said the cities’ novel theories of liability based on the defendants’ sales of their product did not differentiate their claims from earlier transboundary pollution suits in which the Supreme Court (American Electric Power Co. v. Connecticut) and Ninth Circuit (Native Village of Kivalina v. ExxonMobil Corp.) applied federal common law. Second, the court said the Clean Air Act did not displace the plaintiffs’ federal common law claims, allowing state law to govern; the court said that while the Clean Air Act spoke directly to the “domestic emissions” issues presented in American Electric Power and Kivalina, “[h]ere, the Clean Air Act does not provide a sufficient legislative solution to the nuisance alleged to warrant a conclusion that this legislation has occupied the field to the exclusion of federal common law.” Third, the court said the well-pleaded complaint rule did not bar removal. The court certified the decision for interlocutory appeal, finding that the issue of whether the nuisance claims were removable because such claims are governed by federal common law was a controlling question as to which there is substantial ground for difference of opinion and that resolution by the court of appeals would materially advance the litigation. The court’s order also noted that six similar actions brought by other California municipalities were pending before another judge in the district and those actions asserted additional non-nuisance claims. On March 1, the court set a schedule for motions to dismiss, with the parties’ briefing to be completed by April 10. The court invited the United States to submit (by April 20, if possible) “an amicus brief on the question of whether (and the extent to which) federal common law should afford relief of the type requested by the complaints.”
Separately, the court issued a “Notice re Tutorial” that invited counsel for the parties to conduct a two-part tutorial on global warming and climate change on March 21. The court gave each side an hour to “trace the history of scientific study of climate change” and an hour to “set forth the best science now available on global warming, glacier melt, sea rise, and coastal flooding.”
Earlier in February, the court issued a request for supplemental briefing on the issue of how the concept of “navigable waters of the United States” related to removal jurisdiction. The court stated that the issue arose “because a necessary and critical element of the hydrological damage caused by defendants’ alleged conduct is the rising sea level along the Pacific coast and in the San Francisco Bay, both of which are navigable waters of the United States.” In its order denying remand, the court indicated in dicta that “the very instrumentality of plaintiffs’ alleged injury — the flooding of coastal lands — is, by definition, the navigable waters of the United States. Plaintiffs’ claims therefore necessarily implicate an area quintessentially within the province of the federal courts.” The court said defendants had not waived this issue. People of State of California v. BP p.l.c., No. 3:17-cv-06012 (N.D. Cal. order setting schedule Mar. 1, 2018; order denying remand and notice re tutorial Feb. 27, 2018; request for supplemental briefing Feb. 12, 2018).
DECISIONS AND SETTLEMENTS
Ninth Circuit Reinstated Listing of Arctic Ringed Seals as Threatened
The Ninth Circuit Court of Appeals reversed a district court decision that vacated the listing of the Arctic ringed seal as threatened under the Endangered Species Act (ESA). In an unpublished decision, the Ninth Circuit said its 2016 opinion reversing a district court’s striking down of the listing of the bearded seal adjudicated the same issues and was the controlling law of the circuit. As in that case, the Ninth Circuit found that the National Marine Fisheries Service’s finding that the Arctic ringed seal was likely to become endangered within the foreseeable future due to their reliance on sea ice was reasonable and supported by the record. The court said it was not arbitrary or capricious to rely on climate change models that projected through 2100. The Ninth Circuit also said the district court had misapplied Section 4 of the ESA by requiring quantitative data that was not available to pinpoint an extinction threshold. Alaska Oil & Gas Association v. Ross, No. 16-35380, 16-35382 (9th Cir. Feb. 12, 2018).
Louisiana Federal Court Halted Work on Crude Oil Pipeline in Swamp Area
The federal district court for the Middle District of Louisiana enjoined work on the Bayou Bridge Pipeline in the Atchafalaya Basin in Louisiana. The planned pipeline is to be 162.5 miles long and is intended to carry crude oil. The plaintiffs’ complaint asserting National Environmental Policy Act (NEPA), Clean Water Act, and Rivers and Harbors Act violations included allegations that the U.S. Army Corps of Engineers had failed to analyze climate impacts and that floodplain and coastal loss impacts had not been considered as part of the required “public interest” analysis. The court found that the plaintiffs had established the threat of irreparable harm, including loss of legacy trees in the cypress forest swamp that the pipeline would cross, threats to the Atchafalaya Basin’s hydrology, and potential destruction of already diminishing wetlands. The court also found that the plaintiffs had demonstrated a likelihood of success on the merits of their claims that environmental assessment documents did not provide assurance that the mitigation plan would be successful in achieving the Clean Water Act’s restorative goals and that the Corps’ review did not adequately assess cumulative impacts. The pipeline’s developer said it would appeal the ruling and asked the district court for a stay pending appeal. Atchafalaya Basinkeeper v. U.S. Army Corps of Engineers, No. 3:18-cv-00023 (M.D. La. motion for stay pending appeal Mar. 1, 2018; ruling Feb. 27, 2018).
California Federal Court Upheld Environmental Law Waivers for Border Wall
The federal district court for the Southern District of California rejected challenges to waivers of environmental laws granted by the Department of Homeland Security (DHS) for certain types of border wall construction projects in San Diego County. DHS had waived the requirements of NEPA, the Endangered Species Act, the Coastal Zone Management Act, and other laws pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. California and the California Coastal Commission—the plaintiffs in one of the three actions challenging the waivers—alleged that impacts of the projects’ construction on climate change were some of the impacts that would not be assessed as a result of the waivers. In its decision granting summary judgment to DHS and the other defendants, the court found that the defendants had not violated any “clear and mandatory” obligations in Section 102 and that in the absence of any such violations Section 102 established a jurisdictional bar to hearing any non-constitutional claims. The court rejected all of the plaintiffs’ constitutional claims. The court found that Section 102 did not violate the non-delegation doctrine or separation of powers principles; the Take Care Clause; Article I, Sections 2 and 3; the Presentment Clause (Article I, Section 7); constitutional protections of rights to petition the government and the courts; or the Tenth Amendment. In re: Border Infrastructure Environmental Litigation, No. 17cv1215, 17cv1873, 17cv1911 (S.D. Cal. Feb. 27, 2018).
D.C. Federal Court Dismissed Challenge to Executive Order on Reducing Regulation
The federal district court for the District of Columbia concluded that it lacked jurisdiction to consider an action challenging President Trump’s Executive Order on “Reducing Regulation and Controlling Regulatory Costs” because the plaintiffs had failed to establish that they had standing to sue. First, the court said the non-profit groups that were the plaintiffs in the action failed to establish “associational” standing based on harm to their members from the delay or preclusion of regulatory actions by the executive order. For instance, the court found that the Natural Resources Defense Council—which contended that one of its members suffered harm due to delay of “rules to curb climate change”—had not identified a particular rule or regulatory action that would address the member’s concerns. The court stated: “Any injury allegedly stemming from the prospect that the Executive Order has delayed the issuance of unspecified regulations relating to a broadly defined area of concern is too abstract and speculative to support standing.” Second, the court found that the plaintiffs had failed to establish “organizational” standing. The court said the plaintiffs had failed to show they suffered an injury in fact based on the executive order’s alleged “chilling effect” on their mission to encourage agencies to adopt regulations or that such an injury was fairly traceable to the executive order. Public Citizen, Inc. v. Trump, No. 1:17-cv-00253 (D.D.C. Feb. 26, 2018).
California Federal Court Barred BLM from Enforcing Delay of Oil and Natural Gas Waste Prevention Rule; States, Trade Groups Asked Wyoming Court to Expedite Review of Rule and Suspend Deadlines
The federal district court for the Northern District of California granted motions for a preliminary injunction barring the U.S. Bureau of Land Management (BLM) from enforcing its rule delaying and suspending the requirements of its Waste Prevention Rule, which is intended to “to reduce waste of natural gas from venting, flaring, and leaks during oil and natural gas production activities on onshore Federal and Indian (other than Osage Tribe) leases.” The court found that BLM’s reasoning for delaying the rule was “untethered to evidence contradicting the reasons for implementing the Waste Prevention Rule” and that plaintiffs were therefore likely to prevail on the merits. The court also found that the plaintiffs had demonstrated irreparable injury based on “the waste of publicly owned natural gas, increased air pollution and associated health impacts, and exacerbated climate impacts.” The court also denied motions to transfer the action to the District of Wyoming, where a challenge to the Waste Prevention Rule is pending. The California federal court said the substantive legal issues in the District of Wyoming case were distinct from the procedural issues at issue in this action. A few days after the California court issued its order, North Dakota and Texas asked the Wyoming federal court to lift a stay that the court had imposed in December 2017. The two states said the circumstances providing a basis for the stay (i.e., BLM’s expressed intent to change the regulations and its rule delaying the regulations’ effectiveness) no longer existed after the California court granted the preliminary injunction. The states said the Wyoming federal court should complete its review and do so on an expedited basis to prevent harm to the parties even though BLM published a proposal to revise and rescind certain requirements of the rule on February 22. On February 28, Montana and Wyoming filed a motion seeking to lift the stay and also seeking immediate suspension of the Waste Prevention Rule’s implementation deadlines. In addition, two trade groups asked the Wyoming court either to bar BLM from enforcing the rule’s core provisions or to exercise its equitable powers to vacate the core provisions until BLM completed its rulemaking process. California v. Bureau of Land Management, No. 3:17-cv-07187 (N.D. Cal. Feb. 22, 2018); Wyoming v. U.S. Department of the Interior, No. 2:16-cv-00285 (D. Wyo. Feb. 26, 2018).
California Federal Court Ordered Publication of Obama-Era Energy Conservation Standards in Federal Register
The federal district court for the Northern District of California ordered the U.S. Department of Energy to publish energy conservation standards adopted in December 2016 that had never taken effect because DOE failed to publish them in the Federal Register. The standards are for portable air conditioners, air compressors, commercial packaged boilers, and uninterruptible power supplies. DOE estimated that the standards would reduce carbon dioxide emissions by 99 million metric tons and save consumers and businesses $8.4 billion over a 30-year period. The court found that DOE’s failure to publish the standards violated its non-discretionary duty under the Energy Policy and Conservation Act to publish an energy standard in the Federal Register at the end of an error-correction process specified in the regulations. The court rejected the argument the regulations preserved “free-standing authority” for DOE to continue to assess, modify, or withdraw energy standards or created only a discretionary obligation. Natural Resources Defense Council, Inc. v. Perry, No. 3:17-cv-03404 (N.D. Cal. Feb. 15, 2018).
California Federal Court Found Inadequate Analysis of Climate Change Impacts on Water Transfer Project Under NEPA But Said Analysis Satisfied CEQA Requirements
The federal district court for the Eastern District of California held that more analysis of the impacts climate change would have on a water transfer program for the Sacramento/San Joaquin Delta was required under NEPA. The court ruled, however, that the California Environmental Quality Act (CEQA) did not require additional climate change analysis. The plaintiffs had challenged the CEQA “baseline” for “fail[ing] to account for ongoing increases in global temperatures,” but the court found that the plaintiffs did not develop the argument “in any serious way” and said it would not “manufacture an argument where none is made and where none exists.” With respect to the analysis of impacts associated with climate change, the court noted the general rule under CEQA that an environmental impact report need not evaluate the impacts of the environment on a project and found that the plaintiffs had not met their burden of identifying evidence that the project would “exacerbate” climate change impacts. Under NEPA, however, the court said the parties appeared to be in agreement that climate change’s impact on the project needed to be considered. The court found that the final environmental impact statement/report (FEIS/R) disclosed predicted declines in snowpack and streamflow due to climate change but failed to explain why the declines would not have significant impacts. The decision also addressed a number of non-climate change claims under NEPA, the Endangered Species Act, CEQA, and other state law. AquAlliance v. U.S. Bureau of Reclamation, No. 1:15-cv-00754 (E.D. Cal. Feb. 15, 2018).
California Court Set Aside Environmental Reviews for Plant Pest Prevention and Management Program but Rejected Argument that Agency Failed to Consider Greenhouse Gas and Other Impacts of Program Modifications
A California state court granted petitions to set aside a program environmental impact report (PEIR) and PEIR addendum for the Statewide Plant Pest Prevention and Management Program, but not on grounds related to the petitioners’ arguments that the greenhouse gas impacts of modifications to the Program had not been assessed. The petitioners contended that the Department of Food and Agriculture’s finding that a supplemental environmental impact report was not required for the modifications was not supported by substantial evidence because the Department had not considered whether the modifications would alter categories of impacts the PEIR identified as significant or potentially significant, including impacts on greenhouse gas emissions. The court said that it agreed with the Department on this front and found that the petitioners had failed to meet their burden. North Coast Rivers Alliance v. California Department of Food & Agriculture, No. 34-2015-80002005 (Cal. Super. Ct. judgment Feb. 22, 2018; consolidated ruling Jan. 8, 2018).
Arizona Court Ordered Production of Climate Scientists’ Emails Under Arizona’s Public Records Law
The Arizona Superior Court denied the Arizona Board of Regents’ motion for a new trial and request for further proceedings and findings in accordance with mandate in Energy & Environment Legal Institute’s lawsuit seeking to compel disclosure of the emails of two climate scientists at the University of Arizona. The court ordered the Board of Regents to produce all requested records within 90 days. Energy & Environment Legal Institute v. Arizona Board of Regents, No. C20134963 (Ariz. Super. Ct. Feb. 26, 2018).
Stanford Professor Withdrew Defamation Lawsuit Against Author and Publisher of Article That Critiqued Professor’s Article
Stanford Professor Mark Jacobson withdrew his lawsuit against the lead author and publisher of an article that critiqued an article by Jacobson and others on grid reliability and renewable energy. Jacobson’s lawsuit asserted defamation, breach of contract, and promissory estoppel claims. On the day he withdrew the lawsuit, Jacobson released a statement on “Questions and Answers Concerning the Lawsuit Around The Paper PNAS 114, 6722-6727 (2017) (hereinafter C17)” in which he said he withdrew the lawsuit because of the time it would take to prosecute it and because he felt he had succeeded in bringing some of the defendant author’s allegedly false claims to light “so that at least some people reading C17 will be aware of the factually inaccurate statements.” Jacobson v. Clack, No. 2017 CA 006685 B (D.C. Super. Ct. notice of dismissal and statement Feb. 22, 2018).
West Virginia Court Dismissed Defamation Suit Against John Oliver Brought by Coal Executive and His Companies
A West Virginia state court notified counsel that it would dismiss the lawsuit brought by coal executive Robert E. Murray and some of his coal companies against the comedian John Oliver and other defendants involved in the production and broadcasting of Oliver’s television show Last Week Tonight. The plaintiffs asserted claims of defamation, false light invasion of privacy, and intentional infliction of emotional distress on the grounds that the defendants knowingly broadcast in a June 2017 episode malicious statements that they knew to be false based on information provided by the plaintiffs. The court adopted, “with little exception,” the arguments in the defendants’ motion to dismiss for failure to state a claim. A spokesperson for the defendants said they would appeal. Marshall County Coal Co. v. Oliver, No. 17-C-124 (W. Va. Cir. Ct. Feb. 21, 2018).
North Dakota Court Sentenced “Valve-Turner” Activist to Year in Prison
A North Dakota state court sentenced two environmental activists who participated in the #ShutItDown “valve-turners” action coordinated by the group Climate Direct Action. The action involved closing valves on pipelines in Washington, Montana, Minnesota, and North Dakota. The Climate Disobedience Action Fund reported that the North Dakota court sentenced an activist who disabled the TransCanada Keystone 1 tar sands pipeline in North Dakota to three years in prison, with two years deferred. He had been convicted of misdemeanor trespass and felony criminal mischief and conspiracy to commit criminal mischief in October 2017. A second activist who filmed the action was convicted of felony conspiracy to commit criminal mischief and conspiracy trespass, a misdemeanor. CBAF reported that the second activist was sentenced to two years in prison, with both years deferred. State v. Foster, 34-2016-CR-00187 (N.D. Dist. Ct. Feb. 6, 2018).
NEW CASES, MOTIONS, AND NOTICES
FERC and Pipeline Project’s Developers Sought to Delay D.C. Circuit’s Revocation of Project..
“In the face of growing climate change threats, the Sabin Center’s work on the law governing environmental impact assessment is absolutely vital in advancing climate action,” said Gillian Lester, Columbia Law School Dean and the Lucy G. Moses Professor of Law. “I am proud that the Sabin Center’s efforts are recognized for their real impacts in the environmental law sphere.”
The IAIA Institutional Award recognizes the Sabin Center’s legal efforts aimed at advancing the use of EIA as a tool for climate change analysis, mitigation, and adaptation planning. These efforts include model protocols, surveys, and submission of comments:
The Sabin Center has developed model protocols for evaluating climate change effects in two contexts: (1) environmental review documents for buildings and infrastructure proposals and (2) environmental review and related planning documents for natural resource management proposals.
The Sabin Center has conducted several surveys to track consideration of greenhouse gas emissions and climate change impacts in environmental impact statements prepared by federal and state agencies since 2009.
The Sabin Center frequently submits comments on environmental review documents prepared for proposals, such as the approval of coal leases and oil and gas infrastructure. It also comments on NEPA guidance documents, such as CEQ’s draft guidance on climate change and NEPA.
Faculty Director Michael Gerrard is co-author of a leading treatise, Environmental Impact Review in New York, and has been writing an annual review of New York EIA cases for the New York Law Journalsince 1990, as well as many other articles on the subject.
“The U.S. National Environmental Policy Act of 1970 originated the practice of environmental impact assessment, and it has since expanded worldwide to become a standard part of planning for infrastructure and many other kinds of projects,” saysMichael Gerrard, faculty director of the Sabin Center. “Now that extreme weather events worsened by climate change are threatening many cities, it is especially important that impact assessments consider future climate projections — better to know before you build if the site may be under water in a few decades. The Sabin Center is pleased to be advancing this practice, and we’re gratified by the international recognition.”
IAIA is the leading global network on best practice in the use of impact assessment for informed decision-making regarding policies, programs, plans and projects. The IAIA Institutional Award is presented to a national or international government or non-governmental organization for outstanding contribution to impact assessment practice or other environment-related activity deserving of recognition.
“We devote a good deal of time thinking through, writing about, and advocating for ways to mainstream climate change considerations into environmental review,” says Michael Burger, Executive Director of the Sabin Center. “It is deeply rewarding to see our work recognized by the leading practitioners in the field.”
The award will be presented at the IAIA annual conference event in Durban, South Africa (16-19 May 2018). The theme of this conference will be Environmental Justice in Societies in Transition.
Since its founding in 1979, the Inter-American Court of Human Rights (the Court) has issued 24 advisory opinions. Although it has previously recognized the existence of a relationship between environmental protection and the enjoyment of other human rights, it has done so only in relation to the territorial rights of indigenous and tribal peoples. A new opinion of the Court, made by a request from Colombia, is the first to recognize an autonomous right to a healthy environment and nations’ extraterritorial responsibility for environmental damages under the American Convention on Human Rights (the Convention). This new opinion allows for the possibility that a person affected by environmental damage generated in another country, including damage caused by climate change, could present a case before the Court as long as the respondent State has not complied with the obligations presented by the Court.
The Considerations of the Court
The Court’s opinion contains two interesting aspects. First, it recognizes that the right to a healthy environment is an autonomous right, which must be protected. Second, it recognizes that States are responsible for the environmental damage they cause, whether that damage occurs beyond its borders or within them.
The Court’s recognition that the right to a healthy environment is an autonomous right makes enforcement or protection of that right justiciable in cases before the Inter-American Human Rights System under Article 26 of the Convention. Two of the seven judges who voted in favor of the decision declined to join this finding, noting that to find a right to a healthy environment justiciable would be inconsistent with the principle that no State can be taken to an international tribunal without their consent.
Regarding extraterritorial responsibility, the Court concluded that States must take measures to prevent significant damage to the environment, inside or outside their territory. The Court noted specific obligations to carry out environmental impact studies, cooperate with potentially affected States, and guarantee access to information. With regard to the obligation to prevent environmental damages, the Court specifies that this obligation is not contingent on the level of development of a State. That is, the obligation of prevention applies equally to developed States as to developing States. However, the Court notes that the particular factual and legal circumstances of a case determine whether a State’s activities fall within the jurisdiction of the Court.
Effects of the Advisory Opinion
The advisory function of the Court is a service available to all members of the Inter-American human rights system and is intended to facilitate fulfillment of international commitments on human rights. The opinions of the Court are binding upon all States that have accepted the jurisdiction of the Court.
The Court specified that the content of its opinion does not apply exclusively to the States involved, a determination which enables other States or citizens of any country that has recognized the jurisdiction of the Court to file claims regarding environmental harms that impact their human rights. In such a case, the Court would need to evaluate whether the respondent State has complied with three types of obligations:
Obligations to Prevent Environmental Damages: States have a number of responsibilities related to preventing environmental obligations. They must: 1) issue regulations to prevent damages, 2) establish contingency plans to minimize the possibility of major environmental accidents, 3) mitigate significant damage that has already occurred, and 4) carry out environmental impact studies under the conditions indicated by the Court. The Court requires that an environmental impact study is conducted by an independent entity and occurs prior to the activity being evaluated. Each environmental impact statement must address cumulative impacts, allow the participation of interested persons, and respect the traditions and culture of indigenous peoples.
Obligations to Cooperate: The Court must evaluate whether the respondent State has: 1) cooperated in good faith with States and individuals potentially affected by environmental damage, 2) notified potentially affected States that a planned activity under their jurisdiction could generate a risk of significant transboundary damages and of environmental emergencies, and 3) consulted and negotiated in good faith with States potentially affected by significant transboundary harm.
Obligations to Provide Information, Justice, and Public Participation: Finally, the Court must evaluate whether the respondent State has provided: 1) access to information related to possible effects on the environment, 2) the opportunity for citizens to publicly participate in making decisions and policies that may affect the environment, and 3) access to justice through national courts in regard to their environmental obligations.
On this last obligation, the Court critically established that States have an obligation to guarantee access to justice for persons potentially affected by transboundary damages originating in their territory without discrimination based on nationality, residence, or the location of the environmental damage.
A New Potential Pathway for Climate Lawsuits
The advisory opinion may also open the door for future suits over climate-related harms. In the same way that this advisory opinion provides a basis for subjects affected by environmental damage to present a case before the Court, a party negatively affected by climate change could also use it to support a case before the Court. The opinion’s recognition of States’ responsibilities for harms beyond their borders lends further viability to such a strategy. Another element of the opinion lending support for a climate suit is the Court’s emphasis that States must act in accordance with the precautionary principle when there are plausible indicators that an activity could cause serious and irreversible damage to the environment, even when there is scientific uncertainty.
The advisory opinion may present an additional avenue for the growing number of climate-related lawsuits worldwide—see the Sabin Center’s Climate Change Litigation Databases for examples. The majority of claims made against governments deal with the review of environmental assessments and the granting of permits, usually for infrastructure projects. However, a surge of recent lawsuits pertain to the intersection of climate change and the right to a healthy environment.
The consequences of climate change affect the effective enjoyment of human rights, a reality that the Court recognized with this advisory opinion. Consequently, the Court can now potentially accept cases related to climate change, provided that the filing party has exhausted internal remedies within a State and demonstrated that the State has failed to meet the obligations indicated above.
*Jose Felix Pinto-Bazurco joined the Sabin Center for Climate Change Law in January 2018 as a David Sive Visiting Scholar. His research focuses on the legal impacts of implementing the Paris Agreement in Latin American countries. He specializes in international environmental law and has experience in public administration, the private sector, and research. He has followed the international climate change process as a delegate, a researcher, and a member of the UNFCCC Secretariat.
Visionaries imagine better futures. Skeptics worry about proof of concept — whether the technically-possible is in fact possible. Regulators who oversee transitions to new and better futures ought to do so slowly and carefully — not only because the devil is in the details, but because some utopian visions can become dystopian realities.
Energy markets offer a case in point.
In the wonky world of energy policy, the latest utopian vision is one in which we consumers produce and exchange (renewable) electricity over local peer-to-peer (P2P) trading networks using blockchain, the electronic registry used to trade bitcoin. In place of today’s utility-centric electric system, imagine homes and businesses sporting rooftop solar panels and Tesla powerwall batteries, using blockchain trade clean energy.
Progressives like this vision because it is green and local: it promotes renewable energy development by putting it beyond the reach of stodgy electric utilities. Conservatives like the vision’s libertarian elements: it promotes individual energy entrepreneurship and markets over government-regulated collective solutions, like grid-based electricity services.
This left-right coalition is politically formidable. It supports “net metering,” the practice of compensating rooftop solar owners for their excess power at the retail rate. Regulators are paying attention too, particularly in New York State. The Brooklyn Microgrid is an ongoing experiment in blockchain-based local electricity trading, and the State’s “Reforming Energy Vision” program promises to actively promote P2P electricity trading in New York.
But this vision has two potentially-serious flaws: as a path to decarbonization, it is unnecessarily expensive; and blockchain trading of energy products may create more problems than it solves.
In this era of economic inequality-fueled populism, is that a wise choice?
Furthermore, a P2P all-renewables energy market would require enough battery storage to provide electricity during cloudy, windless days (or weeks). Batteries are getting cheaper, but they are still too expensive to fill that gap. That is why nonrenewable sources will remain part of the mix for a while. Indeed, the Brooklyn Microgrid relies on (largely nuclear and fossil fueled) power from the surrounding grid to provide a reliable power supply.
Nor is it clear that blockchain trading can do a better job of facilitating P2P trading than existing systems.
Electricity markets are already a complex mix of energy and financial products whose value depends upon an ongoing grid management problem: how to keep the lights on by keeping electricity supply and demand in constant balance. Keeping the lights on and preventing manipulation of these markets is already difficult and computationally-demanding. It would be more so in a P2P market with many more traders and trades.
Will blockchain help or hinder the goal of ensuring that P2P markets remain competitive and fair? Blockchain makes market transactions (but not necessarily the identity of the transactors) transparent, generating an ongoing debate about whether blockchain prevents or facilitates fraudulent transactions. That debate remains unresolved.
In the end, blockchain-based P2P electricity trading might be more of a libertarian nirvana than a green nirvana. Cautious, incremental experimentation with P2P trading ought to be the rule of the day. After the spectacular California electricity market failure of 2000-01, politically savvy regulators ought to be wary of bold solutions that promise to unleash the magic of decentralized markets and do away with the need for regulatory oversight.
In other words, listen not only to the visionaries, but to the skeptics as well.
* David Spence is Professor of Law, Politics, and Regulation at the United of Texas at Austin, where he teaches in both the McCombs School of Business and the School of Law. His research focuses on the law and politics of energy regulation, broadly defined. His scholarly writings address the environmental regulation of the oil and gas industry and the electric utility industry, as well as economic regulation in the public utility industry.
Resilience—the capacity to withstand, absorb, recover from, and better adapt to disruption—is currently a popular topic of discussion and debate. Several factors, including a string of disasters and unrelated but coincident regulatory processes, have made resilience a key objective for a wide array of policy makers. They include the entities responsible for shaping the generation and transmission facilities that make up the bulk power system (BPS): the Federal Energy Regulatory Commission (FERC), the North American Electricity Reliability Corporation (NERC), and regional Independent Service Operators and Regional Transmission Organizations (ISO/RTOs). On January 8, for instance, FERC opened a proceeding “to explore resilience issues in the RTOs/ISOs.”
Resilience is a derivative concept, meaning that a system, facility, or community is not simply resilient, but is more or less resilient to a particular sort of disruption. FERC, NERC, and ISO/RTOs have explored what is necessary to make the BPS resilient to cyber attack, physical attack, or a large-scale electromagnetic pulse. However, as we explain in a new white paper —Climate Change Impacts on the Bulk Power System: Assessing Vulnerabilities and Planning for Resilience — they have not examined in a systematic way what would be necessary to enhance the BPS’s resilience to climate-driven disruptions and constraints. This is a cause for concern as the various impacts of climate change, from higher average temperatures to altered precipitation patterns to more frequent and powerful hurricanes and wildfires, pose major threats to the BPS. They could, in the future, prevent the BPS delivering reliable electricity services at just and reasonable prices as required by the Federal Power Act.
Our white paper collects recent research highlighting the implications of climate change for the BPS and explains how FERC and ISO/RTOs can assess and respond to them. It recommends:
A detailed climate change vulnerability assessment should be conducted to determine how the components and operations of each ISO/RTO’s system will be affected by increasing temperatures, changing precipitation patterns, more intense storms, droughts, and other climate-driven weather extremes expected in their respective regions.
Vulnerability assessments should be based on downscaled projections of future climate change in their respective operating regions. Many projections are available in existing datasets, including those developed by NASA and the USGS.
Where even downscaled projections fail to provide data for key variables, such a humidity (“wet-bulb temperature”) or temperatures at particular times of day, the entity conducting the assessment should, at minimum, acknowledge the lack of complete information, and, if possible, seek to supplement available data sets.
Multiple projections, reflecting a range of possible climate change scenarios, including a “worst case” (i.e., assuming continued high greenhouse gas emissions lead to large temperature increases and rapid rates of sea level rise), should be considered in the vulnerability assessment.
The timeframe for the vulnerability assessment should reflect the anticipated useful life of existing facilities or facilities scheduled for construction in the relevant ISO/RTO’s region.
The vulnerability assessment should be periodically reviewed and updated as new information becomes available.
Based on the vulnerability assessment, a resilience plan should be developed, outlining measures that can be taken to prevent or manage system disruptions.
Implementing these recommendations is a vital first step toward ensuring the BPS’s resilience to climate-driven disruptions and constraints, such that it can continue to deliver reliable electricity services at reasonable prices as the climate changes. FERC and ISO/RTOs should consider this as they “explore resilience issues” in the current regulatory proceeding.
On February 15, the Federal Energy Regulatory Commission (FERC) announced that it would convene a technical conference to explore issues relating to the wholesale market participation of distributed energy resources (DERs). These resources, which consist of solar panels and other small-scale energy systems installed on or near customers’ premises, account for a sizable share of electricity generation in many areas. They have the potential to displace conventional generating facilities (e.g., fossil fuel power plants) and, in the words of FERC Commissioner Richard Glick, “provid[e]
. . . services efficiently and cost effectively while also improving the reliability and resilience of the bulk power system.”
Despite their potential benefits, DERs currently play a limited role in wholesale energy markets operated by FERC-regulated independent system operators (ISOs) and regional transmission organizations (RTOs). Current wholesale market rules, which were developed with conventional generators in mind, often impose participation requirements that DERs cannot meet, such as minimum size thresholds. FERC is, therefore, considering requiring ISO/RTOs to allow DERs to participate on an aggregated basis. Under this approach, the operations of numerous individual DERs would be coordinated, such that one request or instruction from the ISO/RTO would prompt a coordinated response from the entire group of DERs. While that may sound simple enough, actually doing it will be extremely complex, requiring the untangling of a mess of regulatory and other barriers. We explore those barriers in a forthcoming Sabin Center working paper, which examines how DER aggregation has fared under the California ISO (CAISO), the only market operator to allow it thus far.
Understanding what FERC and CAISO are up to requires first recognizing why DER aggregation seems to be a good idea. Consider that the average distributed solar PV installation in California has just over 7 kilowatts (kW) of capacity. In comparison, the capacity of the state’s natural gas-fired power plants ranges from 150 to 2800 megawatts (MW), with an average capacity of about 750 MW or 750,000 kW. Even though there are more than 150,000 owners of distributed solar panels in the state (i.e., enough to accumulate the same nameplate capacity as an average gas-fired plant), grid operators cannot cost-effectively integrate services from that many entities by communicating with them all directly. That’s where aggregators come in, helping to coordinate individual DERs. Without that coordination, and a variety of other changes to existing systems and markets, it will not be technically or economically possible for DERs to compete with power plants in the wholesale market.
CAISO recognized this early on and, in June 2016, began allowing DER aggregations to participate in wholesale markets for energy and ancillary services. So far, however, CAISO’s DER aggregation program has attracted just four participants, none of which are yet operating in the wholesale market. Our paper identifies the hurdles currently confronting participants in CAISO’s program, which are sure to confront similar efforts elsewhere. The paper draws on written comments submitted to CAISO in the course of program development and on interviews we conducted with stakeholders to identify barriers to program participation.
The barriers we identify fall into three categories, but also interact in ways that make it impossible to address all but a few of them in isolation:
regulatory barriers, which arise from the structure of CAISO’s DER program and, in particular, its application of requirements developed for conventional generators (legacy requirements) to DER aggregations;
economic barriers, which limit the revenues potentially available to DERs through participation in CAISO’s wholesale markets, while also making higher revenues available through other channels (e.g., retail-level programs);
technical barriers, which consist of technological and operational gaps that prevent full utilization of DERs, such as inadequate metering systems.
Having identified key barriers, we suggest lessons that other ISO/RTOs and FERC can learn from CAISO’s experience. For example, the need to examine and possibly modify legacy regulatory requirements is unavoidable in our view, though CAISO appears not to have done it. CAISO also does not appear to have examined whether other program requirements are necessary, even though some impose burdensome costs or revenue limits on DERs
CAISO’s experience also highlights the jurisdictional issues—both legal and practical—associated with integrating DERs into wholesale markets. Because DERs’ operations span both the bulk power system and the local distribution grid, ISO/RTOs will need to engage in ongoing collaboration with distribution utilities and the state bodies that regulate them. Without that sort of collaboration, wholesale and retail market operators will struggle to resolve questions about who should pay, for what, and when, and will find it difficult—or impossible—to agree about how to provide each other with adequate visibility into their respective operations for the purpose of maintaining system balance cost-effectively.
FERC’s upcoming technical conference provides an excellent opportunity to begin to address these and other challenges. Given the marginal economics of wholesale market participation by DERs, and the resulting fragility of nascent business models for aggregated DER participation in wholesale markets, further development of CAISO’s approach will be indispensable.
The Sabin Center’s working paper on DER participation in CAISO markets is currently undergoing peer review and will be published in Spring 2018.
Donald Trump claims to have delivered on deregulation in his first year as President. While independent reporting questions the veracity of his assertions, climate change is one arena where the Trump Administration’s regulatory rollbacks have been both visible and real. The Administration has delayed and initiated the reversal of rules that reduce greenhouse gas (GHG) emissions from stationary and mobile sources; sought to expedite fossil fuel development, including in previously protected areas; delayed or reversed energy efficiency standards; undermined consideration of climate change in environmental review; and hindered adaptation to the impacts of climate change. In total, the Sabin Center’s U.S. Climate Deregulation Tracker identifies a total of 64 actions taken by the executive branch in 2017 to deregulate climate change. These actions correspond to at least two dozen climate-related protections. However, the Trump Administration’s efforts have met with constant resistance, with those committed to climate protections bringing legal challenges to many, if not most, of the rollbacks.
U.S. Climate Change Litigation in the Age of Trump—a new Sabin Center working paper—seeks to give shape to the current moment in climate change litigation, categorizing and reviewing dozens of climate change cases filed during 2017 to understand how litigation countered—and at times courted—the influx of climate change deregulation during the first year of the Trump Administration. (An Executive Summary is also available.) The analysis focuses specifically on 82 “climate change cases,” defined as cases that raise climate change as an issue of fact or law. To explain the effects of climate change litigation in 2017, this paper sorted cases into five categories:
The first four categories are “pro” climate protection cases—if their plaintiffs or petitioners are successful they will uphold or advance climate change protections. The fifth category contains “con” cases—if their filing party or parties are successful, these cases will undermine climate protection or support climate policy deregulation. Sixty of the reviewed cases were pro climate protection and twenty-two were con. The pro cases outweigh the con cases roughly 3:1 (73% to 27%).
To understand how federal climate change litigation is shaping national climate policy in the absence of federal leadership, U.S. Climate Change Litigation in the Age of Trump looks across and within these litigation categories to further examine: 1) who are the litigants, 2) what laws are they utilizing, and 3) how far have these cases progressed in year one of the Trump Administration. See the Executive Summary and Full Report for the results.
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