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Amicus Brief on New York’s Zero Emissions Credits and the Social Cost of Carbon
Court Filings / March 28, 2018In 2016, the New York Public Service Commission adopted the Clean Energy Standard, an ambitious plan to increase renewable generation to 50% of the market by 2030. While working toward that goal, the State found it was necessary to pay nuclear generators through a zero-emissions credits (ZECs) system, as compensation for the value they provide in avoiding emissions. The State found that this would help guard against an increase in pollution if the nuclear generators were to close. Our amicus brief to the Supreme Court of New York in Albany County argues that the Commission’s decision to base ZEC prices on the Social Cost of Carbon (SCC) was reasonable.
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Brief to Forest Service on Expansion of Colorado’s West Elk Coal Mine
The U.S. Forest Service continues to ignore climate damages in its final approval of a coal mine expansion in Colorado, despite a court ruling that asked the Forest Service to disclose the effects of greenhouse gas emissions from the expansion. In its final environmental impact statement (EIS) on the project, Forest Service quantifies how much the expansion will increase greenhouse gases emissions but only gives a generic description of climate change and its effects. By not quantifying and monetizing the effects of this increase in emissions, the EIS obscures information necessary for the public to appreciate how the expansion will result in hundreds of millions of dollars in climate damages. Our brief to the District Court of Colorado argues that Forest Service’s failure to monetize climate impacts was arbitrary and is still in violation of the National Environmental Policy Act.
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Comments on Provider Conscience Rule
The Department of Health and Human Services (HHS) recently proposed a rule purporting to clarify the scope of statutory protections for medical providers who decline to participate in certain procedures, such as abortion or euthanasia, due to religious or moral objections. HHS issued a similar rule in 2008 but rescinded it in 2011 due to concern that the 2008 rule’s expansive definitions of statutory terms would lead providers to believe, incorrectly, that statutory protections extended not just to refusals to perform particular procedures, but also to refusals to care for particular types of patients, such as LGBTQ individuals. Our comments criticize HHS for reviving the 2008 rule’s expansive definitions without acknowledging its 2011 findings that such definitions would foster confusion and discrimination.
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Comments on Department of Energy’s Energy Conservation Standards Program
The Department of Energy (DOE) requested information on adding market-based compliance flexibilities to its Appliance and Equipment Energy Conservation Standards (ECS) Program. In many cases, market-based flexibilities lowered compliance costs, incentivized innovation, and decreased administrative burdens without sacrificing policy objectives. But in other cases, these policy tools may not improve economic efficiency and may actually undermine policy objectives. Comments from our Legal Director, Jason Schwartz, recommend that DOE should only proceed with market-based flexibilities after balancing gains to efficiency against unintended negative consequences to policy goals, and that better energy labels on appliances may be necessary to help prevent consumer confusion caused by the market system.
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How the Trump Administration Is Obscuring the Costs of Climate Change
When federal and state policymakers account for the impacts of climate change, they regularly use a tool called the Social Cost of Carbon (SCC). The SCC puts a dollar value on the most significant, quantifiable damages caused by each additional ton of carbon dioxide emitted. The most recent estimate of the cost is at least $51 per ton and rising over time. But now, turning its back on years of work, the Trump administration has disbanded the federal group that developed the SCC, and produced a new “interim” estimate claiming that each ton of carbon dioxide causes as little as $1 in climate damages. This issue brief describes how the Trump Administration reached this misleading number by ignoring the interconnected, global nature of our climate-vulnerable economy and obscuring the devastating effects that climate change will have on younger and future generations. Though the administration has been proposing rollbacks of environmental rules using this problematic SCC estimate as justification, we explain why federal agencies and state governments should continue using the most recent estimate by the Interagency Working Group that developed the SCC.
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Valuing Pollution Reductions
How to Monetize Greenhouse Gas and Local Air Pollutant Reductions from Distributed Energy Resources
Distributed energy resources (DERs)—grid-connected, small-scale electric generators such as rooftop solar installations, micro-turbines, combined heat and power systems, customer backup generators, and distributed energy storage systems—are a growing part of the U.S. electric system. They can help avoid the high levels of greenhouse gases and local air pollution produced by traditional energy sources. As their use grows, state electric utility regulators are seeking to compensate DERs accurately for the benefits they offer, including reductions in pollution that contributes to climate change and harms human health. This report shows how regulators can calculate the types and amount of pollution avoided, and then monetize these benefits for use in policy.
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Federal Lands and Fossil Fuels: Maximizing Social Welfare in Federal Energy Leasing
Published in the Harvard Environmental Law Review.
The Department of the Interior is tasked with managing the nation’s mineral resources and must earn a “fair market value” for the use of federal lands and resources. But in recent years, Interior’s coal, oil, and natural gas leasing programs have been criticized for failing to keep pace with developments in modern technology, shortchanging taxpayers, and failing to adequately account for climate change and other environmental effects. This article, published in the Harvard Environmental Law Review, suggests a rational path forward for federal fossil fuel leasing. Just as a private company would seek to maximize net revenue in its operations, Interior should seek to manage its program to provide maximum net benefits to the public, to whom public resources belong. This includes accounting for all of the costs and benefits of leasing—including environmental and social costs—and adjusting the fiscal terms of its fossil fuel leases to recoup unmitigated externality costs.
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Brief on Deferred Action for Childhood Arrivals Program
Court Filings / March 20, 2018 / DownloadIn September 2017, the Department of Homeland Security (DHS) issued a memorandum rescinding the Deferred Action for Childhood Arrivals program (DACA), which had protected certain young people who were brought to the U.S. as children from deportation. A variety of plaintiffs—including the Regents of the University of California; several states, counties, and municipalities; and individual program participants—promptly challenged DHS’s decision in the U.S. District Court for the Northern District of California and secured a preliminary injunction blocking DHS from carrying out the rescission. DHS has now appealed that injunction to the U.S. Court of Appeals for the Ninth Circuit. Our brief, which urges the court to affirm the district court’s injunction, addresses only one issue in the case: DHS’s contention that it had a reasonable basis for rescinding DACA based on the “evident risk” that the program “would at a minimum be the subject of protracted litigation, and very likely be enjoined nationwide.”
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Monumental Decisions: One-Way Levers towards Preservation in the Antiquities Act and Outer Continental Shelf Lands Act
Published in Environmental Law Review
In new legal scholarship published in Environmental Law Review, Jayni Hein argues that the powers granted to the President in the Antiquities Act and Outer Continental Shelf Lands Act (OCSLA) operate in one direction only: towards preservation. Presidents do not have the authority to rescind or diminish national monument designations, nor to re-open previously withdrawn areas to offshore leasing. Congress, alone, retains this authority over public lands.
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Managing the Future of the Electricity Grid: Energy Storage and Greenhouse Gas Emissions
Recent advances in technology and the consequent decline in manufacturing costs are making energy storage systems a central element of energy and climate change policy debates across the nation. Energy storage systems have the potential to provide many benefits such as lower electricity prices at peak demand times, deferred or avoided new capacity investments, and reduced greenhouse gas emissions. Indeed, both federal and state policymakers are enthusiastically encouraging more energy storage deployment with the belief that energy storage systems will help reduce greenhouse gas emissions from the electricity sector by making intermittent and variable renewable energy resources such as solar and wind more attractive. This article, published in the Harvard Environmental Law Review, challenges this common assumption that increased energy storage will necessarily reduce greenhouse gas emissions.
The article was selected by Environmental Law Reporter as one of the five best environmental law articles published during the 2018-2019 academic year. An adapted version, The Future of Energy Storage: Adopting Policies for a Cleaner Grid, was included in the August 2019 Environmental Law and Policy Annual Review issue of Environmental Law Reporter’s News & Analysis.
