This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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Mitigating Greenhouse Gas Emissions in the Northeast and Mid-Atlantic Transportation A Cap-and-Invest Approach

James D. Flynn*

Introduction

In recent years, states in New England and the mid-Atlantic region have made significant progress in reducing climate change-inducing greenhouse gas (GHG) emissions from the electricity generation sector.[1] Several factors¾including the effects of the economic recession, shifts in energy markets from coal to natural gas and renewable energy sources, and carbon pollution mitigation and clean energy programs like renewable portfolio standards¾have been identified as principal drivers of these reductions.[2] Another is the Regional Greenhouse Gas Initiative (RGGI), a cooperative effort among nine northeastern and mid-Atlantic states to reduce carbon dioxide (CO₂) emissions from the power sector.[3] RGGI employs a cap-and-invest approach in which the participating states set a regionally uniform, decreasing cap on CO₂emissions from covered power plants, periodically auction off emission allowances, and invest auction proceeds in other programs including end-use energy efficiency, renewable energy, greenhouse gas abatement, and direct customer electric bill assistance.[4] One study estimates that CO₂emissions in the RGGI region would have been approximately 24 percent higher in 2015 but for the program, which took effect in 2009.[5] At the same time, it is estimated that through 2015, RGGI generated approximately $2.9 million in net economic benefits,[6] and that the investment of RGGI allowance auction proceeds in 2015 alone will return $2.31 billion in lifetime energy bill savings for consumers.[7]

Over approximately the same period of time, however, CO₂emissions from the transportation sector in RGGI states have remained relatively level or have increased. Transportation accounts for 44 percent total CO₂emissions in the region, more than any other sector.[8] Each RGGI member state has adopted a long-term GHG reduction goal, set by statute or executive order, or in climate- or energy-related plans, “generally consistent with achieving an 80 percent reduction of GHG emissions by 2050 from 1990 levels.”[9] Most states’ goals do not include sector-specific emission targets, but because transportation is the largest source of emissions in the region, shifting to a cleaner transportation system is a “critical component of the action needed to meet economy-wide goals and to avoid further catastrophic harms of climate change.”[10] RGGI states already employ a variety of policy mechanisms aimed at decarbonizing transportation,[11] but have been considering whether to employ a cap-and-invest approach similar to RGGI or California’s multi-sector cap-and-invest program, which includes the state’s transportation sector.[12]

This paper first discusses the mechanics of RGGI and California’s cap-and-invest program generally, including how auction proceeds are invested. It then discusses the potential to use a cap-and-invest approach to mitigate GHG emissions from transportation in the Northeast and mid-Atlantic and addresses two key policy considerations: the type of fuels to be covered and the point of regulation. It concludes that, if properly designed, a cap-and-invest approach could achieve significant GHG reductions from transportation in the region and generate substantial funds for other GHG mitigation and climate change adaptation initiatives.

The Cap-and-Invest Model

Cap-and-trade programs generally operate as follows.[13] The government sets an overall emissions target¾the cap¾and determines which facilities will be covered. Emission allowances, each generally equal to one ton of emissions, are periodically auctioned or distributed without cost—or both—to covered facilities.[14] The total number of allowances is equivalent to the cap number, which decreases over time.[15] A market is created in which covered facilities may purchase or sell allowances from other covered facilities. Covered facilities are required to hold enough allowances to cover their emissions at the end of a compliance period, which may range from one to three years.[16] If a facility lacks sufficient allowances, it will be assessed a monetary penalty in addition to having to purchase enough allowances to cover the shortfall.

This market-based approach provides covered facilities three options: (1) they may reduce their emissions to meet the number of allowances they purchase or receive; (2) they may purchase additional allowances on the market and emit more; or (3) they may reduce their emissions below the allowances they hold and sell the remainder on the market.[17] The advantage of cap-and-trade programs is that facilities that can reduce their emissions more cost-effectively will do so, while those that face higher emissions reduction costs will purchase additional allowances at auction or on the market.[18] Accordingly, cap-and-trade schemes provide firms with flexibility to design cost-effective, tailored emissions plans, and the regulator achieves its policy objective by means of the overall emissions cap.[19] “Cap-and-invest” refers to cap-and-trade programs that invest their proceeds into other policy initiatives intended to address the pollutant or its effects.

RGGI

RGGI is the first market-based regulatory program in the United States designed to reduce GHG emissions.[20] It is a cooperative effort among the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont to cap and reduce CO₂emissions from the electricity generation sector.[21] RGGI is composed of individual CO₂budget trading programs implemented in each participating state. Through independent regulations, each state’s CO₂budget trading program limits emissions of CO₂from electric power plants with the capacity to generate 25 megawatts or more (some 164 facilities), issues CO₂allowances, and establishes participation in regional CO₂allowance auctions.[22]

RGGI began with discussions among the governors of seven New England and mid-Atlantic states, which led to a 2005 Memorandum of Understanding that outlined the program.[23] In 2008, the RGGI states issued a Model Rule that participating states could use as guidance to establish and implement their individual programs.[24] RGGI’s designers expected the initial program might be expanded in the future by covering other emission sources, sectors, GHGs, or states.[25] CO₂ emissions from covered facilities in RGGI states account for approximately 20 percent of GHG emissions in the region.[26]

At the end of each three-year compliance period, covered facilities must surrender one allowance for each ton of CO₂emissions generated during the period.[27] Covered facilities are permitted to bank an unlimited number of emission allowances for future use.[28] Over 90 percent of allowances are distributed through periodic auctions, and a reserve price sets a price floor for allowances.[29] RGGI employs a “cost containment reserve” that allows for additional allowances to be auctioned if certain price thresholds are met.[30] In limited circumstances, covered facilities may also submit offsets, which are measurable reductions, avoidances, or sequestrations of emissions from non-covered sources, in lieu of emission allowances.[31] The RGGI states agreed that each would use at least 25 percent of its individual auction proceeds “for a consumer benefit or strategic energy purpose.”[32]

Member states invest the proceeds from allowance auctions in a variety of consumer benefit programs at scale.[33] In October 2017, RGGI, Inc. (the corporate entity that administers RGGI) released a report that tracks the investment of RGGI auction proceeds in 2015 and the benefits of these investments throughout the region.[34] The report estimates that “[t]he lifetime effects of these investments are projected to save 28 million MMBtu of fossil fuel energy and 9 million MWh of electricity, avoiding the release of 5.3 million short tons [4.8 million metric tons] of carbon pollution.”[35] The report also notes that “RGGI investments in 2015 are estimated to return $2.31 billion in lifetime energy bill savings to more than 161,000 households and 6,000 businesses which participated in programs funded by RGGI investments, and to 1.5 million households and over 37,000 businesses which received direct bill assistance.”[36] RGGI states have discretion as to how they invest RGGI proceeds.

The report breaks down these investments into four categories. Energy efficiency makes up 64 percent of investments. Funded programs are expected to return $1.3 billion in lifetime energy bill savings to over 141,000 participating households and 5,700 regional businesses.[37] Clean and renewable energy makes up 16 percent of investments, and investments in these technologies are expected to return $785.8 million in lifetime energy bill savings to 19,600 participating households and 122 regional businesses.[38] Greenhouse gas abatement makes up 4 percent of investments and are expected to avoid the release of 636,000 short tons of CO₂.[39] Finally, direct bill assistance makes up 10 percent of investments accounting for $40.4 million in bill credits and assistance to consumers.[40] One independent report notes that while RGGI states each have their own unique auction revenue investment programs, “[o]verall, greater than 60 percent of proceeds are invested to improve end-use energy efficiency and to accelerate the deployment of renewable energy technologies,”[41] which far exceeds the 25 percent investment “for a consumer benefit or strategic energy purpose” required by the Model Rule.

Whether or not RGGI has been successful is the subject of debate. As designed, it applies only to CO₂and only to emissions from some 164 power plants with the capacity to generate twenty-five megawatts or more.[42] Since CO₂accounts for only 20 percent of total GHG emissions in the RGGI states, and electricity generation accounts a fraction of total CO₂emissions, RGGI’s potential is limited.[43] The Congressional Research Service has thus described the initiative’s contribution to global GHG reductions to be “arguably negligible.”[44] In addition, RGGI significantly overestimated emissions from member states for its first compliance period and set an initial emissions cap that was actually above realized emissions levels.[45] This limited participation in the program and allowed participating facilities to bank substantial amounts of unused allowances. After the 2012 program review, RGGI lowered the cap by 45 percent between 2014 and 2020.[46] And after the most recent review in 2016, RGGI lowered the cap by an additional 30 percent between 2020 and 2030.[47] The extent to which these adjustments will hasten emissions reductions to be seen. On the other hand, several studies have shown that the combination of the price signal created by RGGI and the investment of allowance auction proceeds in other environmental programs has been the dominant driver of the recent emissions decline in the region.[48]

California’s Cap-and-Invest Program

In 2006, California enacted its landmark climate change law, the Global Warming Solutions Act, also known as AB (“assembly bill”) 32.[49] The statute established an aggressive goal of reducing GHG emissions to 1990 levels by 2020, and an 80 percent reduction from 1990 levels by 2050, across multiple sectors of the state’s economy.[50] AB 32 directed the California Air Resources Board (CARB), the state’s air pollution regulator, to implement a cap-and-trade program, which went into effect in 2013.[51]

According to CARB, the program, which covers approximately 450 entities, “sets a statewide limit on sources responsible for 85 percent of California’s greenhouse gas emissions, and establishes a price signal needed to drive long-term investment in cleaner fuels and more efficient use of energy.”[52] It is “designed to provide covered entities the flexibility to seek out and implement the lowest-cost options to reduce emissions.”[53] The 2013 cap was set at about 2 percent below the emissions level forecast for 2012, declines an additional 2 percent in 2014, and declines 3 percent annually from 2015 to 2020.[54]

Unlike RGGI, California’s program distributes free allocations of emission allowances earlier in the program, but those allocations decrease over time as the program transitions to an auction process.[55] The allocation for most industrial sectors is set at approximately 90 percent of average emissions and is updated annually based on each facility’s production.[56] Electrical distribution and natural gas facilities receive free allowances on the condition that the value of allowances must be used to benefit ratepayers and achieve GHG emission reductions.[57] The allocation for electrical distribution utilities is set at about 90 percent of average emissions, and for natural gas utilities, is based on natural gas supplied in 2011 to non-covered entities.[58] The program includes cost containment measures and allows for the banking of allowances, has a three-year compliance period with an annual obligation to surrender 30 percent of their previous year’s emissions, and allows for offsets of up to 8 percent of a facility’s compliance obligation.[59] AB 32 also employs a substantial penalty mechanism for facilities that fail to meet their compliance obligations: “If the compliance deadline is missed or there is a shortfall, four allowances must be provided for every ton of emissions that was not covered in time.”[60]

California’s cap-and-trade program became linked with Québec’s cap-and-trade system on January 1, 2014 and became linked with Ontario’s cap-and-trade program on January 1, 2018.[61] All allowances issued by the California, Québec, and Ontario programs before and after the linkage can be used for compliance interchangeably across jurisdictions.[62] The three jurisdictions also hold joint allowance auctions.

On January 1, 2015, suppliers of transportation fuels, including gasoline and diesel fuel, became covered under the program.[63] A fuel supplier is defined as “a supplier of petroleum products, a supplier of biomass-derived transportation fuels, a supplier of natural gas including operators of interstate and intrastate pipelines, a supplier of liquefied natural gas, or a supplier of liquefied petroleum gas.”[64] All fuel suppliers that deliver or import 10,000 metric tons or more of annual CO₂equivalent emissions are subject to a reporting requirement, but only suppliers that reach a 25,000 metric ton threshold are covered by the cap-and-trade program.[65]

Proceeds from the allowance auctions are deposited in the state’s Greenhouse Gas Reduction Fund and are appropriated by the state legislature for “investing in projects that reduce carbon pollution in California, including investments to benefit disadvantaged communities, recycling, and sustainable transit.”[66] As of 2017, some $3.4 billion had been appropriated to state agencies implementing GHG emission reduction programs and projects, collectively referred to as the California Climate Investments.[67] Of that amount, $1.2 billion has been expended on projects “expected to reduce GHG emissions by over 15 million metric tons of carbon dioxide equivalent.”[68]

Applying a Cap-and-Invest Approach to Northeast and Mid-Atlantic Transportation Sector

Under business-as-usual trends, carbon emissions in RGGI states will be 23 percent below the 1990 baseline in 2030.[69] These states must achieve much deeper emissions reductions across multiple economic sectors in order to achieve their “greenhouse gas emission reduction targets for 2030 that range from 35 to 45 percent, centered around a 40 percent reduction from 1990 levels.”[70] Since transportation represents the largest share of GHG emissions in the RGGI states, that sector should be a primary focus of policymakers’ attention.

One study finds that the levels of emissions reductions necessary to meet the GHG reduction goals of the states in the region could be accomplished “through a suite of clean transportation policies” including financial incentives for the purchase of clean vehicles, such as electric and hybrid light-duty vehicles and natural gas powered heavy-duty vehicles; investments in public transit expansion including bus rapid transit, light rail, and heavy rail; promotion of compact land use; investment in bicycle infrastructure; support for travel demand management strategies; investment in system operations efficiency technologies; and investment in infrastructure to support rail and short-sea freight shipping.[71]

One potential mechanism for achieving the levels of reductions necessary for the RGGI states to meet their targets “would be to implement a transportation pricing policy, which could both achieve GHG reductions and generate proceeds that could be used to fund clean and resilient transportation solutions.”[72] For example, “carbon-content-based fees, mileage-based user fees, and motor-fuel taxes” could “generate an average of $1.5 billion to $6 billion annually in the region.”[73] A mid-range pricing policy that generated approximately $3 billion annually “would create a price signal that would promote alternatives to single-occupancy vehicle travel and result in modest additional emission reductions. It would also raise a cumulative $41 billion to $46 billion for the region during 2015-2030.”[74] Proceeds from such a pricing policy would offset projected declines from existing state and federal gasoline taxes and could be used to fund other clean transportation initiatives.[75]

A hypothetical regional cap-and-invest program for vehicle emissions might be structured as follows. Member states would establish a mandatory regional cap on GHG emissions from the combustion of fossil transportation fuels calculated using volumetric fuel data and fuel emission factors available from the Environmental Protection Agency.[76] The cap would decline over time. States would auction allowances equal to the cap and establish an entity like RGGI, Inc. to administer the program, auction platform, and allowance market.[77] Regulated entities would achieve compliance by purchasing allowances at auction or from other market participants, and possibly with offsets earned from reductions in other aspects of their operations.[78] As with RGGI, individual member states would commit to invest a percentage of their auction proceeds into other initiatives aimed at reducing GHG emissions, including from transportation, and could retain the discretion to decide individually how to allocate those funds.[79]

Because power plants are stationary and relatively few in number, their GHG emissions can be regulated directly, i.e., at the stack. Vehicles, however, are mobile and far more numerous. To regulate the emissions from every fossil fuel powered vehicle at the tailpipe would entail a substantial and possibly prohibitive administrative burden, and would likely be politically unpalatable. An alternative is to use transportation fuel as the point of regulation. Determining which types of fuels and which entities in the fuel supply chain to cover under the cap-and-invest program will be critical.

Transportation fuels that could be covered include gasoline, on-road and off-road diesels, aviation fuels, natural gas, propane/butane, and marine fuels.[80] Considering both the volume of each type of fuel consumed and the comparative emissions resulting from its consumption, the program should cover, at a minimum, gasoline and on-road diesel, which account for approximately 85 percent of carbon emissions from transportation in the region.[81] Other fuels may make up too small a portion of total emissions to justify the additional technical and regulatory burden of covering them.[82] In addition, because all states in the region currently require reporting on gasoline and on-road diesel, the most straightforward approach would be to regulate those fuels. Covering other fuels would require at least some states that do not already require reporting of these fuels to establish new reporting requirements.[83]

Another key design choice is the point of regulation: which entities within the transportation fuel supply chain should be subject to the regulatory obligation to hold sufficient allowances. Because all states in the region have existing reporting and enforcement mechanisms for gasoline and on-road diesel (and many also tax off-road diesel and aviation fuel), one option would be to regulate existing state points of taxation for these fuels.[84] However, state points of taxation are not uniform throughout the region. They can include many different types of entities in the supply chain and in some states the point of taxation is different for different fuels.[85] State regulations also differ with respect to what actions by covered entities trigger the reporting requirement.[86] Many states have points of regulation low in the supply chain, such as entities that purchase fuel from the terminal rack and distribute it to retailers.[87] Thus, while using existing state points of taxation to regulate transportation fuels would make use of existing state regulatory mechanisms, it would also require regulating over one thousand entities across the region, many of which are smaller distributors.[88]

Another possible point of regulation would be one that is as far upstream as possible, i.e., entities that refine fuel in the region for use in the region, and those that import fuel into the region for use in the region.[89] This would include refineries, and for fuels refined outside the region, the first importers into the region.[90] Eight refineries in the region and an unknown number of first importers, including foreign suppliers and suppliers from U.S. states outside the region, would be subject to regulation.[91] This option would require reporting of the destination of all fuel produced in or that enters the region to ensure that a fuel to be used outside the region is not inadvertently covered.[92] While the Energy Information Administration (EIA) and the Environmental Protection Agency generally require destination data from refiners and importers into the U.S. and from interstate suppliers, the agencies do not publicly disclose this data.[93] Thus, regulating refiners and importers would likely cover many fewer entities as compared to existing state points of taxation, most of which would be large petroleum companies.[94] However, because only three states in the region have refineries within their borders, and because importers are not systematically tracked throughout the region, accounting for fuels that are transported through states to prevent double-counting would likely require the establishment of new regional reporting requirements that would include points of origin and destination.[95]

A third possible point of regulation would be entities known as prime suppliers, defined by the EIA as “suppliers who produce, import, or transport product across state boundaries and local marketing areas and sell to local distributors, local retailers, or end-users.”[96] For the region, this includes approximately 30 refiners, other producers of finished fuel, interstate resellers and retailers, and importers.[97] EIA requires these entities to report the amount of fuel, including gasoline, diesel, and aviation fuel, sold or transferred for end use by state on a monthly basis.[98] Although EIA does not publicly provide disaggregated prime supplier data because of statutory privacy restrictions, organizations may enter into data-sharing arrangements with EIA to obtain individual prime supplier data.[99] Thus, while the prime supplier group would include a larger number of regulated entities than importers and refiners, it would provide a consistent definition of a point of regulation already understood by the regulated entities.[100] Regulating prime suppliers, most of which are higher in the supply chain than existing state points of taxation, would also relieve most smaller entities of compliance obligations.[101]

Conclusion

States in states in New England and the mid-Atlantic region must make much deeper emissions reductions in the transportation sector in order to meet their overall GHG emission reduction targets. Recognizing this reality, representatives from Connecticut, Delaware, Maryland, Massachusetts, New York, Rhode Island, Vermont, and Washington, D.C., at the 2017 Conference of the Parties to the United Nations Framework Convention on Climate Change, signed a joint statement affirming their commitment to reducing GHG emissions from the transportation sector. In that statement, they identified “market-based carbon mitigation strategies” as potential pathways to achieving needed emissions reductions.[102]

Despite its early struggles, the cap-and-invest approach to mitigating emissions in the northeast and mid-Atlantic electricity generation sector has achieved, at a minimum, some emissions reductions, substantial investment in other GHG mitigation efforts, and overall net benefits within the region. California has achieved substantial GHG emissions reductions across multiple sectors, including transportation, and has invested substantial sums in a suite of other green programs. These examples demonstrate the potential of using a cap-and-invest approach to accomplish environmentally and economically sound policy objectives, both within the RGGI region and in the context of transportation. If properly structured, such an approach could achieve significant emissions reductions in the region and raise substantial funds for other GHG mitigation and climate change adaptation initiatives.

How would a cap-and-invest approach to transportation emissions be structured? The fundamental aspects of RGGI and California’s cap-and-invest program are similar in most respects. California occupies a unique position in federal regulation of automobile emissions and had the benefit of constructing a program applicable only to itself, although its program is now linked with programs in other jurisdictions. RGGI already covers much of the Northeast and mid-Atlantic region, could be expanded to include other sectors of those states’ economies, including transportation, and could be linked with the California-Québec-Ontario cap-and-invest system to create a larger and more efficient allowance market.

Owing to the practical differences between directly regulating emissions from power plants and indirectly regulating transportation emissions by fuel type and supply chain point, the mechanics of using a cap-and-invest approach to mitigate transportation emissions, especially across jurisdictions, poses some potentially challenging design issues. The program should cover, at a minimum, gasoline and on-road diesel. Identifying the appropriate point of regulation will require policymakers to consider a host of technical, administrative, and policy issues. Existing state points of taxation are numerous and vary by jurisdiction and by fuel type within jurisdictions. Upstream refiners and importers are far fewer in number but regulating these entities would likely require the development of new regional reporting mechanisms that might make this option administratively undesirable. While the prime suppliers group is larger in number than refiners and importers, regulating prime suppliers would provide a consistent state-based definition of a point of regulation already understood by the regulated entities, and would not subject most smaller entities to complia

* James Flynn is an LL.M. candidate at New York University School of Law and the graduate editor of the NYU Environmental Law Journal.

[1] See Energy Information Administration, State Carbon Dioxide Emissions Data (last visited Feb. 10, 2018), https://www.eia.gov/environment/emissions/state/.

[2] See Gabe Pacyniak, et al., Reducing Greenhouse Gas Emissions from Transportation: Opportunities in the Northeast and Mid-Atlantic, Georgetown Climate Center 8 (2015), http://www.georgetownclimate.org/files/report/GCC-Reducing_GHG_Emissions_from_Transportation-11.24.15.pdf.

[3] Regional Greenhouse Gas Initiative, Welcome (last visited Feb. 10, 2018), https://www.rggi.org.

[4] Regional Greenhouse Gas Initiative, RGGI Benefits (last visited Feb. 10, 2018), https://www.rggi.org/investments/proceeds-investments.

[5] Brian C. Murray and Peter T. Maniloff, Why have greenhouse emissions in RGGI states declined? An econometric attribution to economic, energy market, and policy factors, Energy Economics 51, 588 (2015).

[6] See Paul J. Hibbard, et al., The Economic Impacts of the Regional Greenhouse Gas Initiative on Nine Northeast and Mid-Atlantic States, Analysis Group 5 (July 14, 2015), http://www.analysisgroup.com/uploadedfiles/content/insights/publishing/analysis_group_rggi_report_july_2015.pdf; Ceres, The Regional Greenhouse Gas Initiative: A Fact Sheet (2015), https://www.ceres.org/sites/default/files/Fact%20Sheets%20or%20misc%20files/RGGI%20Fact%20Sheet.pdf.

[7] Regional Greenhouse Gas Initiative, The Investment of RGGI Proceeds in 2015 3 (Oct. 2017), https://www.rggi.org/sites/default/files/Uploads/Proceeds/RGGI_Proceeds_Report_2015.pdf.

[8] See Energy Information Administration, supra note 1; Gerald B. Silverman and Adrianne Appel, Northeast States Hit the Brakes on Carbon Emissions From Cars, BNA (Oct. 16, 2017), https://www.bna.com/northeast-states-hit-n73014470981/.

[9] Pacyniak, supra note 2.

[10] Id.

[11] See Gabe Pacyniak, et al., Reducing Greenhouse Gas Emissions from Transportation: Opportunities in the Northeast and Mid-Atlantic, Appendix 3: State GHG Reduction Goals in the TCI Region, Georgetown Climate Center 4-13 (2015), http://www.georgetownclimate.org/files/report/Apndx3_TCIStateEnergyClimateGoals-Nov2015-v2_1.pdf.

[12] See, e.g., Center for Climate and Energy Solutions, California Cap and Trade (last visited Feb. 10, 2018), https://www.c2es.org/content/california-cap-and-trade/.

[13] See Joel B. Eisen, et al., Energy, Economics and the Environment 326 (4th ed. 2015).

[14] Id.

[15] Id.

[16] See id.

[17] Id.

[18] See id.

[19] See id.

[20] See Regional Greenhouse Gas Initiative, supra note 3.

[21] See id.

[22] Regional Greenhouse Gas Initiative, Program Design (last visited Feb. 10, 2018), https://www.rggi.org/program-overview-and-design/elements.

[23] Regional Greenhouse Gas Initiative, A Brief History of RGGI (last visited Feb. 10, 2018), https://www.rggi.org/program-overview-and-design/design-archive.

[24] Id.

[25] Jonathan L. Ramseur, The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Congress,

Congressional Research Service 3 (May 16, 2017), https://fas.org/sgp/crs/misc/R41836.pdf.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id. at 4.

[32] Id. at 3.

[33] See Brian M. Jones, Christopher Van Atten, and Kaley Bangston, A Pioneering Approach to Carbon Markets: How the Northeast States Redefined Cap and Trade for the Benefit of Consumers, M.J. Bradley & Associates 4 (Feb. 2017), http://www.mjbradley.com/sites/default/files/rggimarkets02-15-2017.pdf.

[34] Regional Greenhouse Gas Initiative, The Investment of RGGI Proceeds in 2015 (Oct. 2017), https://www.rggi.org/sites/default/files/Uploads/Proceeds/RGGI_Proceeds_Report_2015.pdf.

[35] Id. at 3.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Jones, supra note 33.

[42] Id.

[43] See id. at 3.

[44] Id. at 17.

[45] Id. at 4.

[46] Regional Greenhouse Gas Initiative, Elements of RGGI (last visited Feb. 10, 2018), https://www.rggi.org/program-overview-and-design/elements.

[47] Regional Greenhouse Gas Initiative, Summary of RGGI Model Rule Updates 1 (Dec. 19, 2017), https://www.rggi.org/program-overview-and-design/elements.

[48] See Murray, supra note 5 at 25-26; Man-Keun Kim and Taehoo Kim, Estimating impact of regional greenhouse gas initiative on coal to gas switching using synthetic control methods, Energy Economics 59, 334 (2016).

[49] California Air Resources Board, Assembly Bill 32 Overview (last visited Feb. 10, 2018), https://www.arb.ca.gov/cc/ab32/ab32.htm.

[50] Id.

[51] Id.

[52] Id.

[53] California Air Resources Board, Overview of ARB Emissions Trading Program 1 (last visited Feb. 10, 2018), https://www.arb.ca.gov/cc/capandtrade/guidance/cap_trade_overview.pdf.

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id. at 2.

[60] Id.

[61] California Air Resources Board, Facts About The Linked Cap-and-Trade Programs 1 (updated Dec. 1, 2017), https://www.arb.ca.gov/cc/capandtrade/linkage/linkage_fact_sheet.pdf.

[62] Id.

[63] California Air Resources Board, Information for Entities That Take Delivery of Fuel for Fuels Phased into the Cap- and-Trade Program Beginning on January 1, 2015 1 (last visited Feb. 10, 2018), https://www.arb.ca.gov/cc/capandtrade/guidance/faq_fuel_purchasers.pdf.

[64] Id. at 2.

[65] Id.

[66] California Air Resources Board, 2017 Report to the Legislature on California Climate Investments Using Cap-And-Trade Auction Proceeds i (2017), https://www.arb.ca.gov/cc/capandtrade/auctionproceeds/cci_annual_report_2017.pdf.

[67] Id.

[68] Id. at v.

[69] Elizabeth A. Stanton, et al., The RGGI Opportunity, Synapse Energy Economics, Inc. 3 (revised Feb. 5, 2016), http://www.synapse-energy.com/sites/default/files/The-RGGI-Opportunity.pdf. Notably, this study took into account the anticipated effect of the Clean Power Plan, which President Donald Trump and Environmental Protection Agency Administrator Scott Pruitt propose to repeal. See id. at 4.

[70] Id. at 2.

[71] Pacyniak, supra note 2 at 22. The Georgetown Climate Center serves as the facilitator for the Transportation Climate Initiative, which is “a collaboration of the agency heads of the transportation, energy, and environment agencies of 11 states and the District of Columbia, who in 2010 committed to work together to improve efficiency and reduce greenhouse gas emissions from the transportation sector throughout the northeast and mid-Atlantic region.” Id. at i.

[72] Id. at 25.

[73] Id.

[74] Id.

[75] Id. at 26-27.

[76] Drew Veysey, Gabe Pacyniak, and James Bradbury, Reducing Transportation Emissions in the Northeast and Mid-Atlantic: Fuel System Considerations, Georgetown Climate Center 7 (Nov. 13, 2017), http://www.georgetownclimate.org/files/report/GCC_TransportationFuelSystemConsiderations_Nov2017.pdf.

[77] Id.

[78] Id.

[79] See id.

[80] Id. at 9.

[81] See id. at 11-13.

[82] See id. at 33.

[83] Id. at 20.

[84] Id.

[85] Id. at 16.

[86] Id.

[87] Id. at 17.

[88] Id. at 33.

[89] Id. at 21.

[90] Id.

[91] Id.

[92] Id. at 22.

[93] Id.

[94] Id. at 33.

[95] Id.

[96] Id. at 24.

[97] Id.

[98] Id.

[99] Id. at 25.

[100] Id. at 33

[101] Id.

[102] See Transportation and Climate Initiative, Northeast and Mid-Atlantic States Seek Public Input As They Move Toward a Cleaner Transportation Future (Nov. 13, 2017), https://www.transportationandclimate.org/northeast-and-mid-atlantic-states-seek-public-input-they-move-toward-cleaner-transportation-future; Sierra Club, Northeast and Mid-Atlantic Governors Lauded for Announcement on Transportation and Climate, Press Release (Nov. 13, 2017), https://www.sierraclub.org/press-releases/2017/11/northeast-and-mid-atlantic-governors-lauded-for-announcement-transportation.

Summary: An Ohio jury awards $1.6 million after finding DuPont liable for dumping toxic chemicals into drinking water near its Washington Works Plant in Parkersburg, West Virginia. The Environmental Protection Agency has yet to set a definitive standard allowable for the chemical, C8, in drinking water even though it is hazardous to human health, making it difficult to hold companies responsible for their actions.

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By Lauren Gates

On October 7, 2015, an Ohio jury awarded Carla Marie Bartlett $1.6 million ($1.1 million for negligence and $500,000 for emotional distress) after finding DuPont liable for leaking a toxic chemical into drinking water near one of its plants. Bartlett, who lived in Coolville, Ohio, a few miles away from the Parkersburg plant, was diagnosed with kidney cancer in 1997. This case, Bartlett v. E.I. du Pont de Nemours & Co. , was the first of two test cases that are part of more than 3,500 cases for individuals that either reside near or work at DuPont’s Washington Works Plant in Parkersburg, West Virginia. The plaintiffs all believe they contracted one of six diseases linked to the same chemical, perfluorooctanoic acid, or C8. The chemical was used by DuPont to make Teflon and is found in numerous household items such as kitty litter, cosmetics, and dental floss.

For decades DuPont buried C8 in unlined landfills and also dumped up to 50,000 pounds per year directly into the Ohio River but it was not until March 2001 that an attorney, Robert Bilott, tried to hold DuPont accountable and eliminate the chemical from the water supply. Billot sent packages containing over 100 documents he obtained through discovery in 1999 to the West Virginia Department of Environmental Protection and the Attorney General of the United States. The documents revealed that DuPont knew for years that C8 is dangerous to health and that it entered drinking water so urces. The Environmental Protection Agency filed a lawsuit against DuPont in July of 2004 alleging that DuPont concealed evidence and DuPont eventually settled with EPA for $165 million, which pales in comparison to the $1 billion per year DuPont made in revenue for products containing C8.

In September of 2004, attorneys represented 80,000 plaintiffs in a class action lawsuit against DuPont which settled for $374 million. Part of the agreement stipulated that a portion of the money would go to fund a study to determine whether C8 actually harmed people. In 2005, residents near the Washington Works Plant were invited to be part of a health study conducted by court-appointed epidemiologists. In 2012, the results from the study were released and scientists found “more likely than not” that C8 exposure was linked to numerous health conditions including: testicular cancer, kidney cancer, liver cancer, thyroid disease, ulcerative colitis, high cholesterol, and pregnancy-induced hypertension. Based on these results, 3,500 residents that did not settle in the 2004 class action suit have brought individual liability lawsuits against DuPont for health problems linked to C8.

As of 2014, EPA found C8 in 94 public water systems in 27 states, serving over 6.5 million Americans. Additionally, C8 is in the bloodstream of 99.7% of Americans. The Toxic Substances Control Act of 1976 empowers EPA to study health impacts of chemicals and regulate its use but EPA has little authority to prevent use of chemicals before it is shown to be safe. Currently, EPA does not have an official drinking water standard for C8 and has only set a health advisory level for drinking water of .4 parts per billion. Studies suggest that even the advisory level for drinking water is not enough to protect the public. In May of 2015, over 200 scientists, including chemists, toxicologists, and epidemiologists, signed a statement urging governments to restrict the use of C8 because of the “risk of adverse effects on human health and environment.” If EPA sets definitive standard it would help people interpret results from water monitoring and would enable those affected to hold companies accountable for their actions.

Lauren Gates is a 3L at Vermont Law School, working towards her Masters of Environmental Law a

nd Policy, Water Law Certificate, and Energy Law Certificate. Prior to

law school, she attended Fairmont State University in West Virginia where she earned a B.S. in Biology. She is currently interning for the Vermont Natural Resources Board. Lauren enjoys reading, traveling, and spending time with friends and family.

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Summary: Many people believe being green costs more money. Here are 5 ideas that will help you go green without breaking the bank either.

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By Jessica Kane

Many people want to go green but they don’t know where to start, or it seems to be an overwhelming task. It is possible to preserve and protect your environment while saving money at the same time. Although many eco-friendly enhancements such as buying energy-efficient appliances can initially cost you money, there are many ways to adopt a green lifestyle that can save you lots of money. While some of these methods may require you to make a small upfront investment, the benefits will be immense. The following ideas will help you on your way to going green.

1. Plant trees

According to th e US Depa rtment of Energy, strategic tree planting can reduce the air conditioning costs of an unshaded home by up to 50 percent. Utility companies usually provide their clients with free trees all-year-round to help reduce their energy costs through strategic planting. So, check with your utility service provider to see if they offer such programs. Also, some local governments provide trees as part of Arbor Day celebrations that take place every last Friday of Aprildifferent states may celebrate it on different days. Check your local government website to see if they are giving away trees during the Arbor Day celebrations. You can also become a member of the Arbor Day Foundation for $10 and receive ten free trees. This membership also entitles you to a 33 percent discount when you buy trees online from the foundation.

2. Bike to work

According to the US Environmental Protection Agency (EPA), if you leave your car at home for two days a week, you reduce your greenhouse gas emissions by over 3,000 pounds annually. Also, you will save money on parking and gas if you bike to work instead of driving. For instance, you can save about $7 daily by biking instead of driving if you have a 16-mile round trip to work. If you find this difficult, you can also drive less by setting up a carpool, walking, or using public transportation.

3. Use a programmable thermostat

According to the Energy Department, you can save up to 10 percent annually on cooling and heating costs. During winter, you can save costs by setting the thermostat to 69 degrees while you are awake, and you can program it to a lower temperature when you’re away from home, or asleep. During summer, set the thermostat to 79 degrees and increase the temperature when you’re away from home.

For each degree you lower or increase the temperature during summer or winter, you shed about one percent off your utility bills. And when you get home, you won’t need to use more energy to cool or warm your house as many people misconceive.

4. Use water-efficient fixtures

By installing water-efficient toilets, showerheads, and faucets, you can save lots of money on your water bills. When shopping for these fixtures, look for those labeled WaterSense. These are certified to be at least 20% more efficient, and they don’t sacrifice their performance either. For example, a WaterSense toilet will save a family of five over $90 on the water bill each year, and over $2,000 during the lifetime of the toilet.

5. Purchase a power strip

“Energy vampires” is a nickname for appliances that use power even when they are not in use. According to EPA, these appliances cost Americans about $10 billion annually, and they account for about 11 percent of all US energy use. If you want to avoid unplugging all electronics when they are not being used, buy an affordable power strip where you can plug in all your electronics and turn them off with the flip of a switch. A Smart Strip Power Strip costs about $25 and will automatically shut down computer peripherals such as scanners, monitors, and printers when they are not in use.

Going green is not as difficult as many people think. By making certain lifestyle adjustments, you can preserve your environment while saving money at the same time.

Jessica Kane is a professional blogger who writes for Econoheat ., the world’s #1 leading manufacturer of the largest waste oil burning product line.

The post 5 Tips for Going Green That Will Save You Money appeared first on Vermont Journal of Environmental Law.

Summary: Green-roof zoning laws may provide a solution to the Urban Heat Island Effect, which contributes to anthropogenic climate change through heat pollution originating from large cities. US legislators may follow the lead of Stuttgart, Germany, where exemplary city-greening zoning laws have greatly reduced urban pollution.

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By Gabriela Steier, Esq.

Green-roofs are an overlooked solution to the complex problem of heat pollution, which contributes to anthropogenic climate change. As Catherine Malina wrote in a Georgetown International Environmental Law Review article in 2011, however, green-roof zoning laws could be effective and cost-efficient options to mitigate heat pollution from urban microclimates known as

The UHIE is a problem in major cities around the world, but the US could learn from Germany’s examples to mitigate the resulting heat pollution. Stuttgart , Germany, for example, is the hub of major car producers Audi and Mercedes-Benz, and is known as “the cradle of the automobile.” It would resemble Detroit in the US, but for the major distinguishing factor that Stuttgart has prevented a mass exodus and post-industrialization impoverishment. Stuttgart is leading the city-greening way.

One method of city greening is roof greening, planting vegetation atop buildings to offset some of the UHIE . Thus, the important and novel approach here suggests green-roof zoning laws to reduce the UHIE.

Targeting Climate Change with Green-Roofs

The UHIE affects public health and contributes to climate change. According to the US Environmental Protection gency (EPA) , the UHIE occurs in metropolitan areas and “can affect communities by increasing summertime peak energy demand, air conditioning costs, air pollution and greenhouse gas emissions, heat-related illness, . . . mortality, and water quality.” In fact , “[o]n sunny summer days, city roofs and pavement, which are dry and exposed, may be 50-90°F hotter than natural surfaces, which are shaded or moist.” Correspondingly , the World Health Organisation (“WHO”) “estimates that the warming and precipitation trends due to anthropogenic climate change of the past 30 years already claim over 150,000 lives annually,” especially where the UHIE is the greatest. In fact, EPA estimates that “a city with 1 million people or more can be 1.8-5.4°F (1-3°C) warmer than its surroundings” during the day and 22°F (12°C) in the evening. Predictions based on the 1995 Chicago and 2003 Europe heatwaves anticipate 25-31 percent higher frequencies and 72-76 percent longer heatwaves by 2090. Studies in the largest metropolitan areas in the US also confirm the links between mortality, the UHIE, and climate change.

According to meteorological simulations , green-roofs can cut the urban global warming contributions in half and could reduce urban carbon emissions dramatically. A recent report published by the National Academy of Science explains that,
continued conversion of existing lands to urban landscapes has the potential to drive significant local and regional climate change, compounding global warming. At the same time, how cities choose to expand and develop will be critical to defining how successful society will be in adapting to global change. Because cities are, in a real sense, fundamental units of both climate change adaptation and mitigation, development choices in the coming century will lead to either significant exacerbation or significant reduction in the impacts of global change.

Additionally, as noted in Malina’s article, Michigan State University researchers “found that a square meter of vegetation captures 375 grams of carbon, which suggests greening Detroit’s rooftops could remove as much carbon from the atmos the Urban Heat Island Effect (UHIE), urban heat absorption and radiation on impervious surfaces, such as concrete, asphalt and brick.phere as taking 10,000 mid-sized SUVs and trucks off the road for a year.”

Green-roofs buffer some stormwater, sequester carbon, and improve water quality in flood-prone regions. Notably, global urbanization facilitates UHIE accumulation, thereby driving climate change by up to 4°C. According to the United Nations Environment Programme , “30-40% of all primary energy is used in buildings” contributing greatly to fossil fuel use and climate change, especially in the US, where 82 percent of people live in cities. Cutting these figures in half through green-roofs would mitigate climate change significantly.

Correspondingly, in the US, land use laws aim at environmental protection after urban development but no specific regulation addresses the UHIE. The EPA maintains a Heat Island Reduction Program, which merely provides non-binding guidance for local action. Through green-roofs , the overall energy consumption of the building is lowered, and green-roofs “provide a beneficial environmental modification that reduced building energy needs and protects against two current public health stressors: high summertime heat and ground-level ozone . . . . ” Strikingly, although the business and environmental cases for green-roofs have been established and despite the surge in green construction, no streamlined approaches of government intervention have emerged to support and incentivize green-roofs.

Green-Roofing Benefits to Offset the UHIE

In Stuttgart, the Federal Nature Conservation Act (BNatSchG), the Nature Conservation Act of the state of Baden-Württemberg (NatSchG), and the federal German building code (BauGB) govern the preservation of green spaces, including green-roofs. The overarching general principle of the federal BNatSCHG is “to permanently safeguard (1) biological diversity, (2) the performance and functioning of the natural balance, including the ability of natural resources to regenerate and lend themselves to sustainable use, and (3) the diversity, characteristic features and beauty of nature and landscape. . . . ” These German laws create a culture of city greening that extended to Stuttgart’s roofs and even industrial buildings. Accordingly, Stuttgart’s Urban Climatology Office implemented these provisions by mapping the UHIE and establishing specific city-greening zoning based on the climate atlas maps. Figure 1 Stuttgart’s Climate Atlas Map . This classified thermal map illustrates the highest UHIE in Stuttgart. Red and orange zones have the greatest variance from normal temperatures and overlap with the most densely populated areas with the least vegetation where the UHIE is most significant. Green and blue areas show the coolest regions which coincide with green areas and woods.

In the US, green-roof policy insufficiently targets the UHIE. Such policy includes pilot projects, financial incentives, and command-and-control strategies, which lack behind Stuttgart’s model in practicality, likelihood of success, and legislative impact to create a culture of city greening resembling the one in Stuttgart. First, pilot projects are only examples and curtail setting national roof-greening trends without effective green-roof legislation. Second, general financial incentives ineffectively reduce market barriers – or else there would be more green-roofs in the US.

Portland, Oregon, for example, actually used zoning in its direct financial incentive program, and are somewhat successful, but these plans generally do not create a lasting commitment and ignore the underlying reason of mitigating climate change. Third, current building regulation is opaque, inconsistent, and unpopular with developers. In sum, legal tools in the US exist to promote green-roofs but local legislation could complement them to overcome current shortcomings.

Rethinking Zoning

US zoning laws may follow Stuttgart’s implementation of the BNatSchG, NatSchG and BauGB through green-roof zoning legislation. By analogy, local legislative action, informed by the EPA’s heat island effect program, may target microclimates to mitigate climate change by tailoring US zoning laws to regional city-greening requirements. Ideal green-roof zoning laws would combine features already nested in municipal urban agriculture, impervious overlay zoning, or tax codes. Boston Zoning Code § 89(5) , for example, allows both open-air and greenhouse rooftop farming. Additionally, green-roofs slow stormwater runoff in mapped districts that zone for total impervious cover limits. Urban farms on roof tops, for example oasify barren roof surfaces, thereby effectively using otherwise lost space. Applied to megapolitan heat islands, reversing the heat desertification by planting roof top gardens, it may also help to expand urban farming.

Overall, green-roof zoning laws put climate change mitigation control in the hands of communities and provide benefits that extend far beyond their target cities. Comprehensive city-wide green-roof acts from Toronto or New York’s tax abatement should proliferate green-roofs to offset the respective city’s heat pollution. Minneapolis , for instance, incentivizes green-roofing indirectly by offering utility fee reductions for managing stormwater quality or quantity. Correspondingly, Philadelphia offers green-roof tax incentives of one quarter of the construction cost, thereby removing market barriers. Lessons from these cities could be easily translated across metroplitan areas in the US. In following Stuttgart’s example, green-roof zoning can mitigate climate change while improving urban resilience to environmental impacts. Green-roof zoning offsets urban heat pollution by literally putting “green on top.”

Gabriela Steier, Esq., joined the Vermont Law School as an LLM Fellow in Food and Agriculture Law in August, 2015. Originally from Germany, she and earned a B.A. from Tufts University, a J.D. from Duquesne University, and pursues a doctorate in comparative law from the University of Cologne, Germany. Prior to joining the Vermont Law School, she worked as a Legal Fellow at the Center For Food Safety in Washington, D.C., where she focused on food safety, public health, pollinator protection, animal welfare, international trade, and GMO issues domestically and in the European Union. She has published widely on international food law and policy and has earned several awards for her work. In her free time, she enjoys sharing healthy and delicious foods with friends and family, painting, traveling, and nature walks. This paper is devoted to my father, mentor and best friend, Prof. Dr. Liviu Steier with heartfelt gratitude for brainstorming with me and for all of his support. Warm thanks go to Dr. Regina Steier and Fany Sontag with love and to Morrice for his patience. Special thanks to my classmates and to Professor Craig Pease for their helpful suggestions and insightful critiques of earlier drafts in the Vermont Law School’s LLM Seminar Fall 2015.

The post Green on Top: Zoning Against Climate Change with Green-Roof Legislation appeared first on Vermont Journal of Environmental Law.

The following article is part of an Eco-Perspective special in which the Vermont Journal of Environmental Law is collaborating with the VLS COP21 Observer Delegation

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By Sara Barnowski

Delegates and negotiators have worked around the clock for days (weeks, months, and years for some) to put together an agreement with prospects of being adopted. If everything goes according to plan, today, their efforts will come to fruition. COP21 President , Laurent Fabius, made an impassioned appeal this morning in support of the final text, urging delegates to set aside any remaining doubts and to approve this agreement for the good of mankind.

This afternoon the final version of the Paris Agreement was released. The plenary was originally set to reconvene at 3:45pm, after the delegates had time to review the new draft. But, in order to accommodate additional negotiation meetings, the plenary has now been rescheduled for 5:30pm. In the meantime, everyone is sitting in groups and circulating amongst constituents to review and discuss this historic document.

The venue is practically vibrating with anticipation. Yet, at the same time, there is an anticlimactic feeling in the air. Because the event was officially scheduled to end yesterday, the vendors have all vacated, the NGOs and other advocacy organizations have abandoned their posts, and most of the civil society members are either traveling home or are participating in the demonstrations throughout Paris. Booths are being deconstructed, rooms are emptying, and even the water fountains have been turned off. All of the remaining energy in the building is going toward high-level political meetings that will determine whether this agreement thrives or fails.

The mood in the observer hall rather accurately reflects my own personal feeling toward portions of the final version of the text. The agreement as a whole represents an historic shift in the global response to climate change. There are many ambitious provisions, and the Parties have done an admirable job compromising to create a workable agreement. For all those who have been lucky enough to be part of this process, it is a wonderful and exciting moment. However, the language related to the scale of developed countries’ financial commitment to climate change has been removed from the legally binding portion of the agreement, here, at the eleventh hour.

While the non-binding goal of the agreement calls upon the Parties to set a “new, collective quantified goal from a floor of USD 100 billion per year,” by 2025, the agreement itself only notes that, “mobilization of climate finance should represent a progression beyond previous efforts.” This organization leaves generic and ambiguous language in the heart of the agreement, and transitions the specific objectives to the unenforceable portion of the agreement. As someone who has focused on the finance components of this text for several months, this end result seems somewhat disappointing.

Nevertheless, this agreement does achieve many important goals and creates a framework to combat climate change that many did not think would be possible. All that is left is to wait for the Party representatives to approve it. As President Fabius noted this morning: “The world is holding its breath. It counts on all of us.”

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The following article is part of an Eco-Perspective special in which the Vermont Journal of Environmental Law is collaborating with the VLS COP21 Observer Delegation

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By Annie Warner

At this morning’s Comité de Paris meeting, COP President Laurent Fabius channeled Nelson Mandela, saying: “It always seems impossible until it’s done.” At tonight’s COP meeting, Parties adopted the Paris Agreement in a historical and long-awaited moment. While past Agreement drafts have been full of brackets, options, and red line changes, these notations are notably absent from the final Paris Agreement.

With a green light (and ceremonial strike of a green gavel) for the Paris Agreement, it is worth taking a moment to pause and look at the final Agreement language in light of what came before it. Article 7 on Adaptation starts with a paragraph on the global goal on Adaptation. In the beginning of this week, it was unclear whether this goal for Adaptation would ensure Adaptation in the context of the global temperature goal. The final Agreement established the Adaptation response in the context of the temperature limit increase. This ensures that the global goal on Adaptation is grounded in a quantitative, and not only a qualitative, target. In the final Paris Agreement, this language was strengthened by adding that an Adaptation response must be “adequate.”

Paragraph 4 focuses on Adaptation needs and Adaptation in conjunction with Mitigation. The paragraph describes how greater levels of Mitigation can reduce the need for Adaptation effort. In the December 9 ^th and 10 ^th versions of the Agreement, this paragraph closed by referencing “that greater rates and magnitude of climate change increase the likelihood of exceeding adaptation limits.” This phrase referenced L&D from the permanent and irreversible impacts of climate change. It also acknowledged that Adaptation, Mitigation, and L&D are closely interlinked, and that attending to all of them is important. However, this phrase on L&D did not make it into the final Agreement text. This change is part of the larger uncertainty that has surrounded the issue of L&D.

In the beginning of this week, the fate of L&D in the Agreement was very uncertain. One text option briefly recognized the issue of L&D, with a footnote that the text could end up elsewhere in the Agreement likely in the article on Adaptation and not as its own article. Adaptation and L&D are separate issues that require different approaches, and therefore the final Agreement’s inclusion of a distinct Article on L&D is an accomplishment for the Paris Agreement. The December 10 ^th draft Agreement separated the intention on L&D from the implementation mechanism, the Warsaw International Mechanism on L&D (WIM). Importantly, the final Paris Agreement bridged this disconnect and integrated these issues, saying that “Parties should enhance understanding, action and support, including through the [WIM].” The duration of this mechanism will play an important role in ensuring the resilience of countries who face climate change impacts in the future.

After the adoption of the Paris Agreement, South Africa channeled Nelson Mandela again, in a statement that reflects today’s achievements and the many challenges that lie ahead in addressing climate change:

I have walked that long road to freedom. I have tried not to falter; I have made missteps along the way. But I have discovered the secret that after climbing a great hill, one only finds that there are many more hills to climb. I have taken a moment here to rest, to steal a view of the glorious vista that surrounds me, to look back on the distance I have come. But I can only rest for a moment, for with freedom come responsibilities, and I dare not linger, for my long walk is not ended.

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The following article is part of an Eco-Perspective special in which the Vermont Journal of Environmental Law is collaborating with the VLS COP21 Observer Delegation

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By Bonnie Smith

Imagine a room full of delega tes from 196 different countries waiting to begin a high-stake negotiation. The cacophonous sound of conversations in dozens of languages reverberates around the room. The meeting commences and then proceeds in
English.

Delegate after delegate raises concerns and offers ideal solutions to a controversial draft text addressing the problem of climate change. Sometimes the delegates argue for half an hour over the meaning of a single word. They are all working toward the same end goal: to produce a final climate change agreement by December 11. The delegates’ overarching goal is the same, but they approach it with different blue prints. They are trying to build a solid structure using a miscellany of materials that do not always dovetail .

Coming from so many backgrounds, the delegates do not only come to the negotiation table with differing positions on issues, but also with vastly differently ways of reading and interpreting language. As the delegates strive to work through substantive areas of disagreement and allow all voices to speak, one cannot help but wonder if a single, collective voice will form and sing out above the sonorities of divergence.

After a week of negotiations, the Parties agreed yesterday on a draft agreement to send to the Conference of the Parties (COP) next week. The draft is far from perfect and will require more negotiations between the Parties. It is, however, workable. Overall the Parties seemed optimistic during Saturday’s closing ADP plenary session. Speaking on behalf of the G-77 + China, South African Ambassador Nozipho Mxakato-Diseko said, “we have come a long way, but much more must be done next week to fulfill the task.” She struck an emotional and hopeful chord with the room with a quote from Nelson Mandela: ” It always seems impossible until it’s done.”

Having seen the Parties work past linguistic, cultural, and positional differences to produce a workable text for the COP to use next week has been inspiring for me. It has shown me the importance of remaining optimistic and hopeful during times of controversy, and also of focusing on shared end-goals while trying to achieve seemingly impossible agreements. I walk away from the first week of COP21 with optimism. Although it will be difficult, I believe the Parties will be able to focus on their collective, long-term goal of curbing the global temperature increase and will reach an agreement. The top of the tower is in sight.

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The following article is part of an Eco-Perspective special in which the Vermont Journal of Environmental Law is collaborating with the VLS COP21 Observer Delegation

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By Annie Warner

Source: Ocean for Climate

“We are at a tipping point,” warned Angus Friday, Grenada’s Ambassador to the United States, in today’s side event on “The Importance of Addressing Oceans and Coasts in an Ambitious Agreement at the UNFCCC COP 21.” Speakers at the event reported on mobilization efforts around ocean and climate issues taking place at COP21, with emphasis on the most vulnerable people and ecosystems.

Dr. Biliana Cicin-Sain, President of the Global Ocean Forum, said that a new article in the Paris agreement on oceans is unlikely. However, she encouraged the more likely optionaccepting the suggested revision referring to oceans in the December 5 ^th draft agreement addendum. This textual suggestion to the preamble is in bold below:

Also recognizing the importance of the conservation and enhancement, as appropriate, of sinks and reservoirs of greenhouse gases referred to in Article 4, paragraph 1(d), of the Convention, including biomass, forests and oceans as well as other terrestrial, coastal and marine ecosystems, including through internationally agreed approaches [such as REDD-plus and the joint mitigation and adaptation approach for the integral and sustainable management of forests], and of their non-carbon co-benefits,

Whether this reference to oceans will be accepted in the final Paris agreement remains to be determined. Dr. Carol Turley, an ocean scientist at Plymouth Marine Laboratory stressed the pressing importance of this issue: “The ocean needs a voice, and the time is now to get the ocean into the text.”

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The following article is part of an Eco-Perspective special in which the Vermont Journal of Environmental Law is collaborating with the VLS COP21 Observer Delegation

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By Kelsey Bain

Family Planning may be the most cost-effective weapon against climate change. At least according to a new report from the University of California, San Francisco’s Bixby Center for Global Reproductive Health. According to the report, family planning could provide between 16 and 29 percent of the needed greenhouse gas emission reductions.

Additionally, last year the Intergovernmental Panel on Climate Change recognized for the first time the benefits of family planning for impacting climate change. The IPCC report recognized the importance of family planning in areas with a high vulnerability to climate change, including the Sahel region of Africa, as well as in rich countries like the United States. Increasing access to family planning not only helps reduce human suffering, especially in extremely vulnerable areas, but also decreases overall consumption and greenhouse gas emissions.

Today the world population is over 7 billion, a number that is relatively recent in the history of human civilization. Between 1900 and 2000 the world population increased from 1.5 to 6.1 billion. That is, in just 100 years the population increased three times more than it had during the entire history of human kind. The effects of this astounding increase in human beings on the environment is staggering. Increasing populations threaten the survival of plant and animal species around the world, reduce air quality, increase energy demands, effect groundwater and soil health, reduce forests, expand deserts, and increase waste. And these effects will only get worse, as the United Nations predicts that the world population will reach 9.6 billion people by 2050.

According to the report from the Bixby Center, family planning programs are dollar-for-dollar the most effective way to avoid some of the worst impacts from climate change. There are currently 222 million women in the world with an unmet need for modern family planning methods. To meet this demand for family planning it will take $9.4 billion a year, an increase from current family planning spending by about $5.3 billion a year. Despite this high dollar value, family planning spending is still a relatively cheap option. According to the report, “For every $7 spent of family planning, carbon emissions would be reduced more than [one metric ton] the same emissions reductions from low-carbon energy production technologies would cost at least $32.”

Despite the cost-effectiveness, family planning still remains a contentious issue. But things may be looking up. As part of their Intended Nationally Determined Contributions (INDCs) countries must consider their population size and its potential growth in order to envision how per capita emissions may change in the future. The new UNFCCC synthesis report of INDCs takes into account different population growth scenarios for the next fifteen years, and suggests that some governments may not be using the best population data for calculating business as usual emissions scenarios. Additionally, in the report some governments state that population density and growth within their countries remains a constraint on their ability to adapt to climate change.

What this means is that family planning is necessary. Not only is it necessary on a human level (family planning is one of the best ways to improve education and quality of life for women around the globe), it remains one of the most effective tools at our disposal for combatting climate change.

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The following article is part of an Eco-Perspective special in which the Vermont Journal of Environmental Law is collaborating with the VLS COP21 Observer Delegation

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By Professor Tracy Bach

If all politics are local, but greenhouse gases find their way into the atmosphere’s international space, how can the global community act collectively on climate change? In 1992, the solution was to adopt an international treaty. The United Nations Framework Convention on Climate Change (UNFCCC) declared climate change a “common concern of mankind,” and committed 166 countries to tackling it. Most UNFCCC parties were developing countries, who had contributed relatively few emissions given their pre-industrial poverty but were nonetheless already experiencing the irreversible, negative effects of climate change. Under the convention’s principle of “common but differentiated responsibilities and respective capacities” (CBDRRC), developed countries and top greenhouse gas emitters like the European Union and the United States agreed to take the lead.

Yet, progress has been slow. In 2007, this leadership took the form of the UNFCCC’s Kyoto Protocol, which placed clear greenhouse gas emission limits on developed countries while imposing none on developing countries. When the United States refused to ratify, its emissions, along with those of rapidly industrializing developing countries like China, India, and Brazil, escaped international regulation. Consequently, when negotiations for continuing the protocol beyond its first 2008-2012 period faltered at COP15 in Copenhagen, a new approach to international limits on greenhouse gas emissions began to take shape. It gained momentum at the two subsequent conferences of parties (COPs) held in Cancun and Durban. Now, almost six years on, there is emerging agreement that all partiesdeveloped and developing countriesshould make individual, international climate change mitigation pledges determined by each party’s national government.

At COP21 in December, the current 196 UNFCCC parties will decide if they can sign on to this new paradigm of international climate change regulation. The Durban Mandate requires the parties to “develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties” by the end of 2015. In Paris from Nov. 30 to Dec. 11, 2015, the parties will have their last opportunity to shape the international climate change law that will take the place of the Kyoto Protocol when it ends in 2020.

During four negotiation sessions this year, the parties drafted a “Paris Package” that consists of a core legal agreement based on a system of nationally determined contributions and several COP decisions addressing implementation and political issues. The current 31-page draft agreement outlines how parties’ individual contributions will be internationally measured, reviewed, and verified. These pledges no longer focus solely on mitigation. Consistent with appeals from the developing world, the draft agreement pays almost equal attention to adaptation and finance actions. Likewise, it sets out conditions for transparent international reporting. Under it, parties take responsibility for determining whether their national efforts collectively keep global temperature rise below the Intergovernmental Panel on Climate Change (IPCC)’s recommended upper limit of 2 degrees Celsius.

This new system of national pledges that are internationally made and scrutinized for sufficiency had a trial run this year. By Oct. 1, 2015, 147 parties had submitted their Intended Nationally Determined Contributions (INDCs), covering approximately 86 percent of total global emissions. While each INDC derives from national priorities, overall they tend to include substantive contributions on mitigation, adaptation, and finance, as well as important process pledges on reporting and verification, technology transfer, and capacity building. Developed countries have pledged absolute mitigation targets and resources for vulnerable developing countries. Higher-income developing countries like Brazil, China, and Mexico have made concrete greenhouse gas mitigation pledges. Other developing countries have described their mitigation and adaptation efforts and goals, but made them conditional on receiving financial assistance. Transparency in this pledging process has been prioritized: INDCs are publicly available at the UNFCCC website and have been reviewed closely by the UNFCCC secretariat, non-governmental organization (NGOs), and the press.

That’s the good news. The bad news is that, at least in the short term, these intended contributions do not add up to keeping atmospheric warming below the 2-degree Celsius goal. A Nov. 1, 2015, UNFCCC report concluded that while the INDC pledgesif fulfilledwould slow down the global rate of greenhouse gas emissions, they will not maintain the global temperature increase below 2 degrees Celsius. Likewise NGOs like Climate Action Tracker (CAT) and Climate Interactive reach the same conclusion. CAT calculates that achieving the unconditional INDC pledges would still likely lead to a 2.7-degree Celsius increase. Climate Interactive’s math adds up to a predicted 3.5-degree Celsius increase.

So how could COP21’s Paris Package address this shortfall and result in a new international agreement that leads parties to bend the global emissions curve to a 2-degree Celsius or lower pathway?

First, it would use these INDCs as a starting point only and include provisions in the new agreement that require all parties to increase their contributions in regular, transparent cycles. In this way, COP21 serves as “a way station in this fight, not a terminus,” as Bill McKibben recently wrote.
Second, it would emphasize the need for all parties to adapt to changes already locked in by historical emissions, and recognize the permanent loss and damage experienced by the most vulnerable developing countries.
Third, to achieve these first two, it would show agreement on the amount and kind of financing available for developing countries to achieve their pledges. COP15’s promise of mobilizing $100 billion per year by 2020 for mitigation and adaptation activities is still on the table. A recent OECD report indicates that climate finance reached $62 billion in 2014. But many note that mobilizing private finance is not the same as pledging public funds, and call for developed country governments to do more.
Fourth, it would include a COP decision that ramps up the INDC pledges before the new agreement takes effect in 2020. From now until then, non-state actors like cities, states, and provinces, as well as businesses and consumer groups, have focused their subnational powers on renewable energy and energy efficiency actions intended to narrow the emissions gap.
Fifth, it would reflect a new understanding of CBDRRC. While this core principle no longer translates into developing countries getting a bye on greenhouse gas emissions limits, it also does not exempt developed countries from their historical responsibility for climate change and their capacity to provide finance and technology for low- or no-carbon development. The deep tension over how to fairly bring all parties into a common framework that recognizes different starting points permeates the draft text through heavily [bracketed] language.

The UNFCCC requires consensus to lift these brackets. The negotiations thus far have produced little of it. Instead, despite its fractured international politics, the G77+China has flexed its negotiation muscle through disciplined coordination of member countries that otherwise align with the diverse agendas of the Africa Group, Arab Group, and Like Minded Developing Countries (LMDCs). AOSIS, which represents low-lying countries whose very existence is threatened by sea level rise, works with the least developed countries group (LDCs) to press for strong adaptation and loss and damage provisions. The E.U. and U.S. are committed to market mechanisms for achieving mitigation reductions and private climate financing along with government contributions. Two negotiating groups, the Environmental Integrity Group (EIG) and AILAC, seek to find common ground. The EIG is the only group that includes both developed and developing countries. AILAC’s members are middle-income Central and South American countries that are growing rapidly yet can still reorient toward low-carbon pathways. But these national negotiators can go only so far: While they are masters of the technical details and crafting precise legal language, it appears that the true power to compromise resides in their national capitals.

Leading up to COP21, weekly meetings of heads of state and their environmental, foreign affairs, and finance ministers have taken place. In this way, local politics are actively engaged on the international problem of climate change. All parties preparing for Paris have said clearly what they want to avoidno repeat of COP15, no “ghosts of Copenhagen” haunting COP21. It will be a day-by-day proposition with some bumpy rides along the way. Follow the journey here till its finish!

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The post Ready for COP: COP21 Begins in 24 Hours: Will a Paris Agreement [Decrease] [Solve] [Do Nothing On] Climate Change? appeared first on Vermont Journal of Environmental Law.

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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Mitigating Greenhouse Gas Emissions in the Northeast and Mid-Atlantic Transportation A Cap-and-Invest Approach

Lauren Gates is a 3L at Vermont Law School, working towards her Masters of Environmental Law a

nd Policy, Water Law Certificate, and Energy Law Certificate. Prior to

law school, she attended Fairmont State University in West Virginia where she earned a B.S. in Biology. She is currently interning for the Vermont Natural Resources Board. Lauren enjoys reading, traveling, and spending time with friends and family.

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2. Bike to work

3. Use a programmable thermostat

4. Use water-efficient fixtures

5. Purchase a power strip