Category: Ecoperspectives

The Substitution Effect: Could Reducing Fossil Fuel Sales Truly Have No Impact?

By Shekhar Pathak

“Climate change is an extremely complex and difficult issue. It crosses jurisdictional boundaries, is rapidly worsening and has the potential to cause unprecedented loss and damage.”

         –Winkelmann CJ, Glazebrook and Ellen France JJ

Imagine, a large paper company, aware that its logging practices contribute to deforestation and increased carbon emissions, argues that it should not be held liable for these environmental impacts, because if it ceased operations, other firms would take over the same logging areas, leading to no net reduction in emissions. A Dutch appellate court (“Court”) reflected similar reasoning in a recent ruling concerning Shell’s climate obligations. Globally, temperature increases, driven by greenhouse gas (“GHG”) emissions, reach 0.8°C above pre-industrial levels but specifically rise above those levels by 1.7°C in the Netherlands. The Court overturned a landmark ruling that had required Shell, whose energy sales in 2023 were 91% derived from major GHG sources, to reduce its carbon emissions by 45% by 2030. The Court acknowledged Shell’s significant duty of care in mitigating climate change, given its century-long dominance in the fossil fuel market. However, regarding Scope 3 emissions, the Court rejected Shell’s claim that it had limited influence on demand-side factors, but accepted its supply-side argument. It also agreed with the substitution argument, noting that reducing Shell’s fossil fuel sales would not lower overall CO2 emissions, as other suppliers would step in to fill the gap, leaving global emissions unchanged. Nonetheless, the Court ruled that Milieudefensie et al. lacked sufficient legal interest under Article 3:303 of the Dutch Civil Code (“DCC”) to impose a Scope 3 reduction obligation on Shell.

However, as observed, the Court’s reasoning—claiming that reducing Shell’s fossil fuel sales would not lead to a net reduction in CO2 emissions—is flawed on two significant grounds: First, it overlooks the inherently collective nature of climate change, where individual actions cumulatively contribute to global emissions. Further, while Shell and similar carbon producers may not have specific obligations to future generations, the court acknowledged their general duty to avoid jeopardising future living conditions. Second, the Court’s reliance on the ‘but-for’ test in assessing sufficient interest under Article 3:303 DCC implies that since granting the claim would not directly benefit the claimant, there is no legal interest. While this test is effective for assessing discrete causation, it fails to account for complexity, as seen in Gloucester Resources, where it proves problematic for systemic issues like attributing specific climate-related events to individual emitters. And, by focusing solely on whether harm would have occurred without Shell’s actions, the court overlooked the shared responsibility for climate change, making it nearly impossible to prove, on the balance of probabilities, that Shell’s actions were the direct cause of the harm.

The challenge of proving causation in climate-related cases is evident globally. In the Native Village of Kivalina, an Alaskan Inupiat village sued 24 companies for nuisance, alleging their emissions contributed to coastal destruction. Similarly, in Luciano, a Peruvian farmer claimed a corporate defendant’s emissions caused glacier melting, leading to significant mitigation costs. In Smith, the plaintiff alleged public nuisance, negligence, and breach of duty against corporate emitters. In all these cases, plaintiffs failed to establish the requisite causal link for climate change-related harm, reflecting the inherent difficulty in attributing specific damages to individual emitters. Moreover, its rigidity not merely applies to climate change but also to toxic torts, as seen in Fairchild, Barker, Sienkiewicz and Sindell as well as to emotional harms, as highlighted in Shorey, and Calascione, which have similarly struggled with conventional approaches to legal causation.

The observations made in the above case laws suggest, that the core difficulty in applying the traditional causation test, specifically in climate change litigation, lies in the following: First, a plaintiff faces difficulty in proving the direct, causal link required by the test between their harm and the defendant’s actions. In this case, the judge considered emissions from other third-party emitters, which, in the absence of Shell’s contributions, merge indistinguishably, interact, and ultimately, through complex natural processes, contribute climate change. This makes it impossible to establish a clear causal chain from one emission source to specific damage. Second, given that everyone contributes to emissions, Shell is just one of more than seven billion emitters. The plaintiff cannot establish, on the balance of probabilities, that the harm would not happen in the absence of the defendant’s emissions. It is more likely that the harm occurred because of the actions of other emitters. However, in reality, Shell’s emissions, alongside those of other corporations, contribute to a harmful set of factors. Reducing Shell’s emissions would still mitigate the overall damage, even if other contributors remain active.

Therefore, the court should adopt a more flexible approach, such as the ‘extended but-for test’ proposed by Professor Jane Stapleton, considering the complexities of environmental protection. This test identifies a factor as causal if it positively contributes to the mechanism causing harm, even if it is not independently sufficient. For example, a defendant who negligently pushes a car over a cliff alongside others remains a cause, even if the act could have occurred without their involvement. The UK Supreme Court’s decision in Financial Conduct Authority reiterated this departure from the strict ‘but-for’ test. In addressing business losses caused by COVID-19 restrictions, the Court held that an insured peril could be considered a cause of loss, even if it was neither necessary nor sufficient alone, as long as it contributed alongside other factors. This approach recognises the limitations of the rigid traditional test and provides a more adaptable framework for addressing causation in complex, systemic scenarios, such as determining the liability of giant emitter corporations like Shell.

The Climate Is Changing in the United States: Preserving Environmental Interests in a New Administration

By Eric Grimes

President Trump made his intentions for United States environmental interests clear within hours of his inauguration. Among the slew of executive orders President Trump passed on his first day in office was an order withdrawing the United States from the Paris Agreement, another authorizing unlimited oil drilling, and another gutting green initiatives across the country. Few people in the world today do not believe climate change and the health of the environment are extremely prominent issues requiring immediate and extensive action. Unfortunately, the President and his administration seem to be among the group of people uninterested and unwilling to act. While the President’s policies do not look good for the United States’ environment, hope for its protection can still be found elsewhere. President Trump has attacked many environmental issues, but this post will focus on the initiatives surrounding the Paris Agreement. Many initiatives outside of the Federal government aim to mitigate the President’s environmental policies.

When President Trump was elected for a second term, many hoped he would reverse his stance from his first termand allow the United States to stay in the Paris Agreement. The Agreement focuses on keeping global warming below a 2 degrees Celsius increase from global temperature in 1990. The 2-degree level is largely understood to be a temperature at which there will be severe climate change impacts. Unfortunately, President Trump has felt that goal does not align with his policy interests. Luckily, between the initiatives established after the President’s first withdrawal and a substantial number of pessimists (or possibly realists?) concerned with his second withdrawal, avenues have been made to uphold the U.S. obligations to the Paris Agreement without Trump.

The most prominent representation of hope for Pro-Paris interests is the U.S. Climate Alliance. The U.S. Climate Alliance is a coalition of state governors interested in upholding the United States obligations under the Paris Agreement in their states. The representative states make up over 50% of the United States population and economy. The U.S. Climate Alliance allowed states to fight back against President Trump’s first withdrawal from the Paris Agreement. After the first withdrawal, the U.S. Climate Alliance was responsible for extensive climate legislation and regulations. Some of the resulting statutes passed included the Vermont Global Warming Solutions Act of 2020, which held Vermont to even stronger goals than the Paris Agreement, and the 2017 Climate Change Scoping Plan Update, which created an extensive plan for California to achieve its climate goals. When President Biden rejoined the Paris Agreement after taking office, the U.S. Climate Alliance slowed down its activity. However, on the same day as President Trump’s recent withdrawal from the Paris Agreement, the U.S. Climate Alliance made a public statement about upholding the United States’ pledge to the Agreement.

The current political turmoil in the United States has created a shift toward greater localization of action. The U.S. Climate Alliance is a perfect example of localizing action to address climate change. State governments might not have the reach or the resources that the federal government possesses, but they have the drive and support to address change where they can. Situations like these can sometimes even encourage states–such as Vermont, California, Hawai’i, and New York–to create stronger goals and legislation to address climate change than the federal government can or would implement. On top of state-specific action, local governments, organizations, and companies have started to take action to support the fight against climate change. America Is All In, a joint declaration of over 5,000 organizations committed to upholding the obligations of the Paris Agreement, is a prominent example of companies joining the fight against climate change. The coalition includes many influential companies such as Microsoft, which recently entered into an agreement to directly support the Paris Agreement.

While the United States may have left the Paris Agreement, hope can still be found in the shift to localized efforts. President Trump’s efforts to disrupt climate action in the United States may be successful at the federal level, but the path forward is clear for state and local governments, companies and organizations, and people and communities. Climate change must be addressed through all available avenues. For issues as pressing as climate change, action cannot be put off till the next administration.

Environmental Attorneys Push Vermont to Take CAFOs Seriously

By Julia Wickham

Americans eat meat. And lots of it. To satisfy consumer demand, land use needs, and workforce availability, concentrated animal feeding operations (“CAFOs”) are the predominate means of livestock production in the United States. Recently, a coalition of environmental groups brought suit against the EPA for their lack of Clean Water Act (“CWA”) oversight surrounding CAFOs. For example, Iowa has 4,025 “large” CAFOs according to the EPA. Iowa Department of Natural Resources considered over half of Iowa’s lakes, reservoirs, rivers and streams impaired. Iowans fear their climb to second place for highest cancer incidents in the nation correlates to the density of large animal operations and runoff infiltrating the water.

Yet, one of the most recent EPA interventions of CAFO pollution is in Vermont–home to only 37 “large” CAFOs. In September, the EPA ordered Vermont to control pollution from CAFOs and adhere to the CWA. The lax state regulations allow CAFOs to dump phosphorus into waterways, resulting in water quality issues such as cyanobacteria blooms in Lake Champlain. At first glance, EPA’s investigation and mandate regarding Vermont’s agricultural pollution seems misplaced given the relatively small number of CAFOs in the state. However, this federal scrutiny is clearer when considering Vermont’s status as home to one of the nation’s leading environmental law schools, which trains attorneys to advocate for stronger environmental oversight.

Starting in 2008, a Vermont Law School Clinic filed a petition asking the EPA to withdraw approval for the Vermont Agency of Natural Resources (ANR) to administer the National Pollutant Discharge Elimination System (NPDES) under the Clean Water Act. Vermont Law School cited numerous concerns with how ANR issued and enforced discharge permits to prevent water pollution. In response, EPA issued a 2013 Corrective Action Plan calling on ANR to improve various aspects of its NPDES program. However, nearly ten years later, the Conservation Law Foundation, Vermont Natural Resources Council and the Lake Champlain Committee filed a petition with the EPA voicing similar concerns to Vermont Law School’s 2008 petition. In response, the EPA launched another investigation and released the most recent demand letter in September 2023, requiring Vermont to change how the state regulates farms—specifically CAFOs.

Currently, Vermont law divides jurisdiction over agricultural water quality between ANR and the Agency of Agriculture, Food, and Markets (“AAFAM”). The agencies have attempted to manage the division of jurisdiction through Memoranda of Understandings (“MOUs”), dating back to the 1990s, updated in 2009, and again in 2017. In their most recent letter to ANR, the EPA determined this current division of responsibilities to be “preventing Vermont from adequately addressing agricultural water quality.”

Vice President of the Conservation Law Foundation (“CLF), Elena Mihaly, graduated Vermont Law School in 2013 with a J.D. and Masters in Environmental Law and Policy. In the investigation prior to submitting the formal 2022 petition to the EPA, Mihaly reported that CLF found glaring oversights from both ANR and AAFAM, including examples of email feuds over which agency had jurisdiction.

In December 2024, ANR sent a proposal for agency restructuring to the EPA. This would create a new permitting process for Vermont farmers overseen by ANR instead of initial inspections done by AAFAM with referrals to ANR. If the proposal is accepted by EPA, both agencies will participate in on-farm inspections, but ANR will take the lead. This 2025 Legislative Session, Vermont Legislators could provide more funding for state agency staff or draft legislative fixes for the overlapping delegation of authority.

The EPA’s focus on Vermont’s regulation of CAFOs may surprise others in states like Iowa where confinement barns dot the landscape, and there is 1 Iowan for every 7.3 hogs.  However, Midwestern states have not fostered generations of environmental attorneys and advocates at their law schools. It has taken repeated attempts over nearly two decades to address the gaps in enforcement and oversight of the CWA in agricultural pollution in Vermont. However, because of Vermont Law School alumni and the Vermont Law School Clinic, Vermont is one step closer to having cleaner water. Vermont provides a framework demonstrating how a law school, dedicated to public service can push for change—if any young lawyers are looking to make some noise, Iowa’s wide open.

The Future is Green: Amending State Constitutions to Safeguard the Environment for Future Generations

By Natalie Schaffer

Modern America swings between two futures: one that chants “drill, baby, drill” and another that preaches “reduce, reuse, recycle.” For many, the future we look to depends on the person in power, and because of the constantly shifting whims of politics, that future is continuously changing. American families struggle to rely on policies that change the moment a new administration comes into power.

There is a solution: Green Amendments. These amendments are self-executing provisions amended into a state constitution’s bill of rights by the legislature or citizens of a state. These amendments act as promises to the people of the state, or even the country, which secure the natural environment and health in a way that preserves its integrity for future generations. State-level Green Amendments allow states to create environmental safeguards for their citizens above and beyond what the federal government provides.

A Green Amendment has the beauty of being whatever the people make it to be. It can require the state to preservethe environment. It could require environmental repair to undo the damage already done. It can secure a right to clean water or clean air. It can require that the state ensure that the natural environment remains stable and healthy for the use and enjoyment of future generations. And most importantly, it can give legal standing to the people to bring a constitutional suit for environmental destruction.

These Amendments can provide a more stable environmental future for citizens because the environment is no longer subjected to the will of shifting politics. They give the people power by ensuring those people are not just given a clean environment, but that they are entitled to one. This stops legislators from rescinding environmental protections when doing so would damage the environment because it would violate the people’s constitutional rights.

Green Amendments have paved the way for young people to challenge the actions of their state that will harm them. Young people can use Green Amendments to sue their states or other bad actors within their states who are polluting and destroying the environment. By including provisions in these amendments that give a right to future generations, states will need to consider not only the immediate damage that a decision would cause but also the damage that future generations might have to endure.

So far, over twenty states have either passed a Green Amendment or are working towards passing one. These Amendments have provided a means for the people of those states to safeguard their futures. In Hawai’i, the state constitution safeguards citizens’ rights to a “clean and healthful environment”. A group of youths in Hawai’i used their state’s Green Amendment to sue the Hawai’i Department of Transportation for its increased release of greenhouse gas emissions, which contributes to man-made climate change. The youths successfully settled the case with the state and the state agreed to reduce emissions to a net negative level by 2045. This was a major win for the citizens of Hawai’i and shows the power that Green Amendments can have in forcing state governments to protect their natural environments.

The citizens of Montana recently had a major win in Held. v. State of Montana. Sixteen Montana youths sued the State for their Environmental Policy Act, which prohibited the state from considering the effects on the climate when assessing new energy projects. The court in Held ruled that Montana youths had a constitutional right to a stable climate and that Montana was required to take action to reduce emissions to protect the stability of the climate.

Montana is not the only state that has had a major win. Pennsylvania passed its Green Amendment in 1971 with overwhelming support. Because of a State Supreme Court case just two years later, however, the amendment was effectively rendered dormant. Then, in 2017, the Court overturned its previous decision, holding that the test previously established by the Court was incorrect. Under this new ruling, the state is required to “formally and forcefully” prevent environmental harm and protect the environment via legislation. Since then, organizations have been able to sue the government to protect the state’s environment. It has only been a few years since this ruling, so only time will tell how impactful this amendment will ultimately be.

As concern for the environment continues to grow, the push for Green Amendments will only continue to increase. It is important for those who want to protect the environment to advocate for a Green Amendment within their states. As more states pass these vital amendments, the impact that these amendments have on the nation will likewise increase. Citizens of Green Amendment states across the nation will begin to feel the positive impacts of a healthier environment. This may place pressure on the federal government to consider a Green Amendment of their own. Climate Change is a global problem, and while Green Amendments alone will not halt the damage currently being done, these amendments can force governments to tackle climate change head-on.

Melting Away: The Environmental Impacts of Rock Salt and Possible Solutions

By Cassidy McMann

Since the 1940s, the use of rock salt, or sodium chloride (NaCl), combats snow and ice accumulation on roads during the winter. However, rock salt contaminates water resources, damages vegetation, and harms wildlife. Therefore, many state transportation agencies across the country now utilize alternatives and administer new practices to mitigate the environmental harms of rock salt. Yet, the use of more environmentally friendly methods is not widespread, and transportation agencies should look to the success of other states for guidance.

Transportation agencies often use various means and methods for de-icing roads. For example, the NYSDOT utilizes about six different chemicals and treatments to control ice and snow on its roads. These include rock salt, treated salt, calcium chloride, magnesium chloride, magnesium chloride with organic based performance enhancer (OBPE), and sand. However, rock salt is the most common and least expensive ice control chemical. Today, about 20 million tons of rock salt is used annually, which is equivalent to about 123 pounds for every American. Rock salt works by creating a saltwater brine on the ice, which lowers the ice’s melting point. The salt then breaks into separate sodium and chloride ions which ultimately make their way into waterways and ecosystems.

Once applied to roads, rock salt seeps into ground and surface waters such as streams, rivers, and lakes. High chloride levels in these waters negatively impact a large number of fish, bugs, and amphibians. According to a survey done by the U.S Geological Survey (USGS), 84% of urban streams had increased chloride levels, and 40% exceeded federal safety guidelines for aquatic life. The USGS concluded rock salt to be the source of the contamination. Moreover, high levels of chloride can hinder the growth and reproduction of aquatic species’ and organisms. Furthermore, increased chloride in freshwater ecosystems can negatively impact food sources and disrupt osmoregulation in amphibians.

Rock salt also harms vegetation alongside roadways. Salt, or salt-ladened water, is kicked up onto plants and trees by passing vehicles and covered by the overspray during salt application. Rock salt can cause discoloration or browning of needles on evergreen trees, bud damage, twig and stem dieback, reduced or distorted leaf or stem growth, and reduced plant vigor in contaminated plants and deciduous trees. Furthermore, rock salt negatively affects soil quality and health. Sodium ions in rock salt can displace important minerals like potassium and phosphorus when they become attached to soil particles. As a result, the soil becomes more dense and compacted leading to reduced drainage and aeration. Additionally, due to the increased presence of chlorine and sodium in the soil, plants will absorb these minerals instead of necessary nutrients resulting in deficiencies.

Above all, what may be the most concerning about rock salt is its persistence. Once salt is present in an ecosystem, in the soil, or in a waterway, biological processes will not remove it. According to Paul Gallay, the President of Riverkeeper, increasing sodium concentrations in many freshwater waterways and water bodies could have originated from salt applied decades ago. This salt is now percolating into surface waters today after reaching groundwater years ago. Salt can be transported out of a system through dilution by fresher water. However, this process is only successful when transport from the system is possible, such as through an isolated lake or aquifer.

While there is no perfect, singular solution to rock salt’s impacts, the implementation of new technologies and policies can reduce environmental damage while maintaining public safety. Changes in the maintenance and type of equipment used to de-ice roads offer many achievable options. For example, live edge blades on snowplows are more efficient at removing snow. Currently, the majority of snowplows currently have flat blades. However, most roads are built to have a small curve to prevent water from pooling on the lanes during rainfall. As a result, flat blades have a tendency to leave some ice behind on the road which leads to the need for more salt application. Unlike flat blades, live edge blades can adapt to curves in the road and efficiently remove more snow and ice.

Another change to implement is calibrating snowplows and trucks more frequently. Most agencies and municipalities only calibrate their trucks for salt flow at most once a year. Without proper calibration, trucks could be releasing more salt than intended. “Smart snowplows” are another new innovation that can aid in the reduction of salt use. These plows are outfitted with GPS technology that can gauge pavement temperature, the amount of residual salt from prior applications, and the presence of ice and amount of friction on the road. This sophisticated technology allows for operators to have unique control of the plow’s blades and application rates which results in less salt and chemical use.

Moreover, action can be taken through policy implementation at the state level. For example, in 2020 NY passed legislation establishing the Adirondack Road Salt Reduction Task Force. The Task Force is responsible for studying and assessing the impacts of road salt in Adirondack State Park and must complete a comprehensive review of rock salt application and best management practices. In 2023, the Task Force published its review, which identified instances of exceedances of regulatory contaminant levels and found current water quality standards are not protective enough for the Park’s resources. The review recommends implementing new environmental assessment and monitoring guidelines and providing training to snow and ice removal practitioners for best management practices.

Rock salt likely is not going away anytime soon. However, it is important to acknowledge and address the environmental impacts of rock salt, especially since climate change will likely intensify winter storms and make winter weather more erratic. Rock salt has lasting environmental affects and ultimately wreaks havoc on groundwater and surface waters. Therefore, transportation agencies should continue to implement new technologies that reduce the need for rock salt and states should encourage these changes through legislation and funding.

Railroading State Environmental Law: The Surface Transportation Board Preempts All

By Benjamin Albertson

The Surface Transportation Board (“STB”) has exclusive authority over railroads in the United States and has since the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”). With this authority, it has consistently railroaded almost any state law that affects the construction and operation of railroads, even if the effect is purely incidental to the law’s general purpose. The ICCTA explicitly preempts any conflicting local, state, or federal law. The STB has consistently interpreted this preemption to include any law affecting the operation of railroads in any way, including local permits. The preempted laws of specific concern are state environmental laws, which railroads have been allowed to ignore with impunity.

Now, the Ninth Circuit has provided a framework under which state environmental laws can have the “force and effect of federal law” and are not preempted by ICCTA. This framework allows state environmental laws passed pursuant to a federal environmental law, like the Clean Water Act (“CWA”) or Clean Air Act (“CAA”), to have the force and effect of federal law if the Environmental Protection Agency (“EPA”) approves the state implementation plans. This means such laws will not be preempted by ICCTA. This framework is not limited to the CWA and CAA, but their statutory construction is a roadmap for the Ninth Circuit’s method. The Ninth Circuit later applied this framework to a case in Washington, where a federal law allowed Washington and Oregon to work together to maintain a scenic area. The Court found the relevant federal law (The Columbia River Gorge National Scenic Area Act), unlike the CAA or CWA, failed to contain a provision that could transform a local law into a law with the force and effect of federal law.

Multiple Circuits have also held that any form of permitting requirements are per se preempted, even if for environmental reasons (City of Ozark, AR v. Union Pacific Railroad Co., Oregon Coast Scenic Railroad, LLC v. State of Oregon Department of State Lands, Green Mountain Railroad Corp. v. Vermont). Unfortunately, this severely limits state environmental regulations and their ability to address environmental concerns from railroads. Trains produce noise, vibration, and air pollution. Pollution which disproportionately affects poor and marginalized communities. As shown above, however, state attempts to regulate have often left the state wanting. Also, while it is good the Ninth Circuit adopted the “force and effect” framework, it has already shown what happens when federal law fails to give states the force and effect they need. This leaves state and local governments in a sorry state when the federal government has and continues to fail to act. The STB has used this preemption against states that have attempted to apply their environmental laws against railroads. Still, not all is dark, and work is getting done.

States around the country have taken great steps to address climate change, California is a great example. But what if one state’s emissions reductions are offset by another’s additions? A national climate change law implementing a cap-and-trade system for carbon would go far in managing our emissions. Unfortunately, that is unlikely right now. The STB should stop railroading state attempts to fight climate change, and perhaps be a bit more open to assisting states in this fight.

That is not to say the STB does nothing. The Eighth and Ninth Circuits frameworks which could potentially enforce state and local environmental laws against railroads, come from STB decisions. Understandably, these frameworks give great deference to the railroad industry’s concerns because years of effort to deregulate the railroad industry led to the passage of the ICCTA. The deregulated rail industry is not interested in change either. While California works to address concerns due to the idling of older locomotives, the Association of American Railroadsprepares litigation to ensure such laws are preempted.

Still, the future is not all bleak; the EPA recently promulgated rules to give state and local governments some control of locomotive pollution, at least for older locomotives. This is a step in the right direction. Hopefully, as time goes by, the EPA and STB can recognize their role in the fight against railroad pollution and nuisance. The rail industry may be uninterested in cleaning itself up, but states, the EPA, and the STB have the power to work together to address these concerns and lead our railroads into a cleaner, greener future.

Reforming Oceanic Governance: A Department of Oceans 

by Joseph Lepak

Current federal ocean governance is spread across a myriad of federal agencies in different departments and the time has come to bring them all together. This blog proposes that a new federal executive department is needed to bring ocean governance into the 21st century: a Department of Oceanic Affairs (DOA). First, we will cover the current governance structure of United States oceans, the current need for a DOA, and lastly propose how DOA would be structured, and what DOA would be responsible for.

From the mean high tide line on the shore to 200 nautical miles, the waters above and below are under United States jurisdiction. Beyond 200 nautical miles, the ocean seafloor part of the continental shelf(the extension of the continent into the ocean) is still under United States jurisdiction. Twelve nautical miles from shore to sea are the territorial waters, where full U.S. law applies. Congress, in the 1953 Submerged Lands Act gave states jurisdiction from shore to three nautical miles (although Texas and Florida for their gulf coastline are special as their jurisdictions extend nine nautical miles). From the territorial waters and up to 200 nautical miles is the exclusive economic zone where only a limited form of jurisdiction exists, primarily regulation of economic activities. In total, 131 million square kilometers (~50 million square miles) is under United States jurisdiction.

Governing this vast area, four agency mandates prioritize oceans, while other mandates involve oceans. The largest and most important agency is the National Oceanic and Atmospheric Administration (NOAA). NOAA is responsible for research of the ocean and weather, conservation of the ocean, management of fisheries, and the protection of marine endangered species. NOAA is part of the Department of Commerce, and interestingly does not have an organic statute, instead being created by executive order. Then there is the Bureau of Ocean Energy Management (BOEM) and Bureau of Safety and Environmental Enforcement (BSEE), both created by splitting the Minerals Management Agency in the wake of the 2010 BP oil spill. BOEM is responsible for permitting ocean energy projects (oil rigs and wind-turbines) while BSEE is responsible for ensuring that those energy projects meet safety standards. Lastly, the Maritime Administration (MA) regulates and promotes the development of the U.S. merchant marine and shipping industry. Beyond the four primary ocean agencies is the Environmental Protection Agency, which regulates ship discharges, ocean trash, and beach/coastal health; and the United States Army Corps of Engineers which regulates certain uses of water, such as dredging and dock and harbor construction and operation.

Creating a new executive department would promote administrative efficiency and the new department would serve as a designated entity to address ocean developments. Reorganization for administrative efficiency is a common reason for creating new departments. The Department of Education was a spin-off of the Department of Health, Education, and Welfare’s education programs consolidated with education programs in the Department of the Interior and Department of Labor. Similarly, the Department of Energy (DOE) brought together 30 agencies with energy-related mandates under one roof. Both departments were meant to provide an effective means of communication between the different agencies but also highlighted a commitment by the federal government to the field in question. For example, the DOE assembled its various agencies to tackle the energy crisis of the 1970s. The need for an Ocean Policy Committee in 2021 indicates the potential for efficiency increases by creating DOA. The push by the Biden administration to balance conservation with increased offshore development required greater coordination by agencies and necessitated a national ocean strategy.

While improving federal administrative efficiency is a solid reason for DOA’s creation, the growing “blue economy” demands that an organization like DOA exists. Notably, the Biden Administration seeks to build 30 gigawatts of offshore wind power by 2030. However, the expansion of offshore wind is but one part of the Biden Administration’s strategy which includes the protection of 30% of all marine areas by 2030 and the elimination of greenhouse gas emissions from shipping. Additionally, the Biden administration has invested $240 million into aquaculture. All these actions (offshore renewable energy, clean shipping, and fisheries management) are part of what experts call the blue economy. The blue economy is the revitalization of industries related to the ocean as part of a sustainable future, as exemplified by the United Nations Sustainable Development Goal 14, and the recognition that offshore wind and aquaculture will only increase the importance of the ocean in the overall economy. However, regardless of the future president, the Biden Administration will end, and the future of these initiatives may become uncertain. A special purpose department, if built on sustainable principles, will enshrine our nation’s commitment to the ocean and ensure a just development of the blue economy.

The Department of Oceanic Affairs would be the logical outgrowth of the Ocean Policy Committee, and would consolidate the National Oceanic Atmospheric Administration, the Bureau of Ocean Energy Management, and the Bureau of Safety and Environmental Enforcement. The Maritime Administration, as a transportation agency, would remain part of the Department of Transportation since keeping all transportation agencies together maintains their efficiency. Additionally, the DOA is a management entity and not a defense entity, so the DOA would not share roles with the U.S. Navy or Coast Guard. Instead, the DOA should be viewed as a maritime equivalent to the Department of the Interior, administering federal lands at sea. DOA would be responsible for the regulation of fisheries, offshore energy development, marine national sanctuaries and other protected areas, protecting marine species, research into the ocean and the atmosphere, and be the first point of federal regulatory efforts as new maritime ocean developments occur. At minimum there should be four assistant secretaries that the current agencies would filter into: (1) an Ocean Research Administration; (2) an Ocean Conservation Administration; (3) an Ocean Resource Management Administration; and (4) an Ocean Safety Administration. The administrations/assistant secretaries would oversee the relevant current agencies, so NOAA would be split, and (for example) the National Marine Fisheries Service would be part of the Ocean Resource Management Administration while the Weather Service would go to the Ocean Research Administration. BOEM would be incorporated as a sister within the Resource Administration alongside the fisheries service, while BSEE would be part of the Ocean Safety Administration. With NOAA as its backbone, the new department would transform NOAA into an entity that can address the 21st-century ocean challenges outlined above.

EcoPerspectives Blog

India’s Climate Diplomacy in 2024: Reflections on Climate Tech and Environmental Diplomacy

By Akshith Sainarayan, third-year student, School of Law, Christ (Deemed to be University and Calvert Nazareth, fourth-year student, School of Law, Christ (Deemed to be University)

May 9, 2024

 

Introduction

The World Meteorological Organization’s provisional State of the Global Climate Report recently confirmed that 2023 was the hottest year in history. The report noted that the effects of climate change and global warming are evident, courtesy of the increased number of climate disasters and extreme weather conditions. The impacts of climate change are worsening in frequency and intensity. Counterfactually, however, innovation and technology will play a pivotal role in the pursuit to overcome climate crises in the years to come. This niche branch of technology, often referred to as climate technology or climate-driven tech, aims to secure a symbiotic relationship between technological growth and environmental safe-keeping.

The United Nations Framework Convention on Climate Change defines climate technologies as “technologies that are used to address climate change . . . including technologies that help to reduce GHGs [greenhouse gasses], renewable energy technologies and adaptation technologies such as drought-resistant crops, early warning systems and sea walls.” The synergy between technology and environmental protection manifests through understanding the various opportunities and risks, building strong resilience against climate impacts and responding effectively when such impacts occur. Technology can not only tackle climate change, it also has the potential to create new jobs, promote economic growth, and lead to more innovation.

India is a global leader in climate technology, as the nation has been ambitious in achieving its net-zero targets for 2070 and its interim climate commitments for 2030. According to the Impact Investors Council Report, India boasts of housing over 120 funded climate-tech-driven start-ups, which have received funding from 272 investors from across the country. India’s push towards reducing its carbon footprint by exploring sustainable technology has three characteristics: allowing pathways for greater private investment in climate technology, collaboration through public-private partnerships, and technology transfers as a part of its global commitments.

Through the course of this discussion, we examine India’s internal business model and external trade policies concerning climate technology. This includes an analysis of the market for climate tech in India, as well as the latest trends in climate diplomacy from the 13th Ministerial Conference (“MC-13”) against this backdrop. Through this, we attempt to create a holistic understanding of how India fares in the climate tech and sustainability space, what opportunities lie in this market, and how India perceives sustainable trade in the World Trade Organization (WTO).

 

Where Does India Stand?

While India tackles its persistent air and water pollution problem, an opportunity presents itself with a growing demand for environmental technology. The Indian environmental tech market has a value of approximately $23 billion, with a projected growth rate of 7.5% between 2023 and 2028. India is also the 6th largest market globally for niche environmental tech solutions—particularly those relating to air pollution control and solid waste recycling. The market is also rife with technology for wastewater management.  India’s approach to the climate crisis is not necessarily unidimensional. These solutions are not entirely import-driven solutions and are contingent on a mix of “Make in India” and “Make for India.”

Consequently, climate tech ecosystems are crucial for India’s strategy towards energy transition and sustainability. With start-up funding and investments in green tech at an all-time high, India holds the 9th position globally for venture capital (VC) funding for climate technology. The market acts as a twofold opportunity in plowing in much-needed foreign investment and sustaining a climate-centric industry.

 

India’s Recent Climate Diplomacy

India has always been a vehement proponent of the common but differentiated responsibility policy in climate politics. Its climate policy comes as a natural consequence of furthering the cause as a proactive player in the “trans-nationalist” movement in climate advocacy; the policy engages beyond the confines of a COP-centric climate change mitigation regime, which has historically been a traditional approach opted for by multilateralist trade factions.

While India and its climate tech ecosystem booms into a profitable space for investment, its approach towards streamlining cross-border business has also been positive. In October 2023, India proposed a roadmap before the WTO’s Working Group on Trade and Transfer of Technology (“WGTTT“). The roadmap was envisioned to facilitate the development and transfer of environmentally sound technology (“ESTs“) through a multilateral process towards removing barricades on tech transfer. The roadmap includes the establishment of an environmentally sound technology database linked with a technology transfer platform, streamlining licensing practices, and enabling developing countries to use Trade-Related Aspects of Intellectual Property Rights (“TRIPS“) flexibilities.

The proposed mechanism within the TRIPS Agreement encourages open and adaptable technology licensing, specifically to research outcomes related to climate change and ESTs funded by public resources. This also includes a proposal towards establishing publicly funded technology inventories by developed nations—creating a databank of sorts to merge the asymmetry between developed and developing nations. The TRIPS mechanism will facilitate smoother movement of climate tech.  Additionally, it urges these countries to disclose information about technologies that are either directly or indirectly patented or funded by government bodies. India also suggested promoting innovative intellectual property rights-sharing arrangements between firms in developed and developing countries. These arrangements would facilitate the joint development of environmental goods and services. Furthermore, India recommended case-by-case exemptions from patentability for inventions critical to the diffusion of ESTs necessary for climate change adaptation and mitigation. It also proposed shortening patent protection terms to enhance access to specific patented ESTs in the public interest. Waiving patents on climate-friendly products and granting royalty-free voluntary licenses are additional measures to address climate crises.

India also played a pivotal role at the MC-13 of the WTO in Abu Dhabi earlier this year. India advocated for a sustainable means of living based on traditions and values of conservation, including LiFE (“Lifestyle for Environment”) as a key to combating climate change. India also expressed its concerns about using unilateral trade protectionist measures by many countries across the globe in the guise of environmental protection. In doing so, India particularly criticized the European Union’s CBAM (Carbon Border Adjustment Mechanism)—a carbon tariff policy on the usage/trade-in of carbon-intensive products.

India led the negotiations against the inclusion of this proposal, stating that it targets developing nations by studying their industrial policies and ultimately seeks onshore industries. The policy was ultimately dropped due to disagreements in arriving at a consensus on the language of the CBAM proposal such that developing countries do not take the hit, as against the original intention of possibly targeting Chinese-owned SOEs.

 

Inferences and Conclusion

India’s policy seems consistent with its original stance on common but differentiated responsibilities. On one hand, India seeks to open its borders up for sustainable tech transfers—tapping into a booming market that could bring in some much-needed foreign direct investment (“FDI“). On the other hand, it seeks to hold its ground as a developing nation, criticizing Western and European attempts to continue preferential trade policies against the global south. The events of WGTTT and MC-13 put India in a strategic position to further what is perhaps the need of the hour for the climate tech market—generating climate finance by integrating the private sector internationally. This also works as a strategy to involve the Global South in generating climate-centric solutions to strengthen its climate tech market. These events reflect a delicate balance between leveraging global partnerships for sustainable tech transfers and safeguarding the interests of developing nations in the face of evolving trade dynamics. On the domestic front too, India has attempted to ease its business regulations through the Jan Vishwas Act. This includes relaxing policies on environmental protection, compliance, disclosure standards, etc. How India seeks to integrate its domestic policies with its position in the WTO is a question not yet answered.