perchloroethylene
Burgeoning legal movement pits landowners against pipelines.
Justin Lugar is representing 10 landowners in the path of the proposed Mountain Valley pipeline in an ambitious lawsuit that challenges the standard federal process for pipeline development and land acquisition through eminent domain.
Justin Lugar is more familiar with white-collar criminal defense than the intricacies of pipelines and eminent domain law.
And yet the Roanoke, Va.-based Gentry Locke attorney recently found himself at the center of a potentially precedent-setting battle over a gas project slated to sweep 300 miles across Appalachia.
Lugar is representing 10 landowners in the path of the proposed Mountain Valley pipeline in an ambitious lawsuit that challenges the standard federal process for pipeline development and land acquisition through eminent domain.
"This is way out of left field for me," he said. "I love litigating, I love fighting and I love being the underdog. But there's always that unknown."
The pipeline battle has also led Carolyn Reilly to unfamiliar territory. The southern Virginia resident saw her daily routine upended when Mountain Valley backers in 2014 unveiled plans to cut through 4 acres of the small farm she runs with her husband and parents in rural Franklin County.
The family has spent the past three years working with neighbors to oppose the project, and in February, Reilly signed on to work as a "regional pipeline fighter" for Bold Alliance, the anti-pipeline group that sprang from opposition to Keystone XL in Nebraska.
Just last week, Bold Alliance and more than 50 landowners, including Reilly, filed their own lawsuit against government officials and builders of the Mountain Valley proposal and the Atlantic Coast pipeline, a separate project proposed farther north in Virginia.
Like Lugar and his clients, they're taking aim at the Federal Energy Regulatory Commission's delegation of eminent domain power to private companies that build pipeline infrastructure across the country. Attorney Carolyn Elefant, who is representing the group, said the agency's longtime practice of giving that power to builders treads on property rights protected under the Fifth Amendment.
Attorney Justin Lugar studies a map of areas affected by the Mountain Valley pipeline. Ellen M. Gilmer/E&E; News
"Those rights are given to the pipeline without any real assessment of whether the pipeline is serving a public use," she said, referring to the amendment's decree that private property can be taken for public use when owners receive just compensation.
Both lawsuits — Elefant's in the U.S. District Court for the District of Columbia and Lugar's in the U.S. District Court for the Western District of Virginia — stem from rising tension between landowners and the backers of new projects that have stretched across the country to move natural gas from shale fields to markets.
"We have more projects, and we have the public more focused on the issue, more worked up about the issue and a sense that momentum is perhaps building in that area," said Alexandra Klass, a University of Minnesota law professor who has researched the use of eminent domain for pipelines.
Indeed, the two lawsuits are just the start. Additional eminent domain litigation is on deck for the Appalachia projects, and another case challenges property takings for the Nexus natural gas pipeline in Ohio, which just received FERC approval.
Klass and other property and energy law experts are watching the cases with interest. While many are skeptical that the landowners will ultimately prevail, some say the issue is ripe for debate in the courtroom.
"I think it's a good vehicle because, interesting enough, no one has previously challenged FERC's eminent domain authority under the Natural Gas Act," said David Bookbinder, a former Sierra Club lawyer who is now chief counsel for the libertarian Niskanen Center.
What counts as public use?
Indeed, FERC's practice of granting eminent domain authority to pipeline builders has gone largely unchallenged for decades.
The right vs. pipelines?
Recent legal battles over the use of eminent domain for oil and gas pipelines have prompted some unlikely alliances between property rights advocates and environmentalists.
As pipeline opponents challenge how eminent domain is used at the state and federal levels to take land for pipeline construction, many right-leaning groups that tend to champion the U.S. energy industry have lined up on the plaintiffs' side.
"What I think is so interesting in all of these cases is it's created these whole new alignments between environmental groups and property rights advocates who otherwise have very little in common," said University of Minnesota energy law professor Alexandra Klass.
Some of that is by design, said Carolyn Reilly, an organizer for the antipipeline group Bold Alliance.
"The reason Bold has focused on this is because it covers areas a lot of environmental groups don't touch on," said Reilly, who lives in the path of the proposed Mountain Valley gas pipeline in southern Virginia.
Reilly and more than 50 other landowners, who come from across the political spectrum, are challenging the use of eminent domain for the project. She said the lawsuit has helped bridge a gap between those primarily concerned about property rights and those concerned about environmental issues.
"Focusing on something like challenging eminent domain for private gain, it was a way to connect people," she said. "There are a lot of rural landowners who are not thinking about climate change, who are not thinking about the concerns of water and environmental issues with these pipelines. But what's been really fascinating to see is these landowners who get concerned and involved in community groups on the ground and learn more about these environmental impacts beyond property rights."
Reed Watson, executive director of the right-leaning Property and Environment Research Center, said that for his group, the protection of property rights transcends any secondary goals of supporting domestic energy production and transport.
"We see this as an opportunity because it sort of pits property rights, which we hold as paramount and sacrosanct, against this notion of pro-energy development — which, by the way, we also think is important, but not to the detriment of property rights," he said.
PERC is considering filing an amicus brief in one of the recent pipeline challenges, especially if one moves to the appellate courts. Watson said he doesn't feel pressure from donors to avoid challenges to the energy industry and that, even if he did, PERC's priorities are clear: "property rights first and energy availability, maybe not even second, but further down the list."
David Bookbinder of the libertarian Niskanen Center said his group is considering weighing in on one of the cases, too. Earlier this year, the center filed an amicus brief in litigation over the Dakota Access oil pipeline at the Iowa Supreme Court, urging the court to adopt a narrow interpretation of what qualifies as a "public use" meriting property takings.
The Institute for Justice — which represented a landowner in Kelo v. City of New London, the Supreme Court's broadest protection of eminent domain powers — is also monitoring pipeline cases. The libertarian law firm filed an amicus brief opposing the use of eminent domain for a natural gas liquids pipeline in Ohio earlier this year.
IJ Senior Attorney Robert McNamara said the group is also watching new cases that challenge the Federal Energy Regulatory Commission's practice of granting eminent domain authority to companies building natural gas pipelines.
"FERC is extraordinarily liberal in granting permission for these projects to go forward," he said. "Looking at it from the armchair, it looks a lot like an approval process aimed at deciding whether a pipeline should be permitted, rather than a process aimed at authorizing eminent domain."
The institute is not currently involved in any litigation challenging eminent domain in the pipeline context, but McNamara said the group is keeping tabs on the issue. Brian Hodges, an attorney for the Pacific Legal Foundation, said his group is also monitoring the cases.
George Mason University law professor Ilya Somin, who studies eminent domain, said he was pleased to see more right-leaning groups involved in the pipeline debate.
"It is my belief that particularly before Kelo, we didn't do nearly enough to protect property rights," he said. "So I'm glad that people on different sides of the political spectrum are beginning to see that."
Bookbinder criticized other conservative groups for failing to speak up.
"To a large extent, groups like Cato and Heritage that consider themselves to be libertarian have been captured by right-wing corporate interests," he said, referring to the Cato Institute and the Heritage Foundation. "And they have no interest in alienating their funders."
A Cato representative said the group hasn't looked at the new challenges to FERC because it only gets involved in cases that reach appellate courts. Heritage did not respond to a request for comment.
— Ellen M. Gilmer
As laid out in amendments to the Natural Gas Act in 1947, developers are allowed to take land, with compensation, from any holdout landowners along an approved route after FERC grants what's known as a "certificate of public convenience and necessity."
Elefant and Lugar say it's time to take a closer look at whether that arrangement meets the constitutional public use standard for taking property, especially in light of major changes to pipeline regulation and natural gas markets.
"Once upon a time when the Natural Gas Act was passed, pipelines did serve a public use: They acted as utilities, delivering gas to remote communities to keep Grandma warm in the winter," Elefant said. "Today, with deregulation, all of that has changed. Today's pipelines are basically being used as a platform ... for supporting commodity sales and gas for export. Those are activities that don't constitute public use."
The two lawsuits include a number of distinct issues but overlap in their core challenge to how the eminent domain process works. They say FERC's criteria for pipeline builders to receive a certificate fall short of the constitutional public use standard.
While the agency's process has evolved through the years, its current approach is spelled out in a 1999 policy statement that establishes a balancing test weighing potential public benefits against adverse effects.
"FERC cannot change the constitutional standard," said Brian Hodges, an attorney for the property-rights-focused Pacific Legal Foundation. "FERC is an administrative agency, so issuing a certificate authorizing the exercise of eminent domain upon a showing that the public benefit will outweigh any harms that may result from establishing a pipeline is not the constitutional standard for determining public use. The public use still has to be determined consistent with the Constitution."
Lugar says FERC's practice also runs afoul of the nondelegation doctrine, which requires Congress to give agencies an "intelligible principle" to steer regulations.
"Congress, however, failed to set forth any set standard, known as an intelligible principle, rendering its delegation of power overly broad and unconstitutional," Lugar's lawsuit says. "Without boundaries from Congress, FERC has run wild in the years since, and has unconstitutionally subdelegated the power of eminent domain to private parties seeking private profits."
FERC has responded forcefully in legal filings that urge the district court in Virginia to throw out the case on procedural grounds.
While the plaintiffs have argued that the constitutional nature of their challenges make district court the proper venue, FERC counters that the lawsuits amount to challenges to certificate proceedings — which the Natural Gas Act places under appellate courts' jurisdiction.
Plus, the agency argues, the issue is not ripe for review. FERC hasn't yet made a final decision on certificates for the pipelines, and even when it does, landowners must first make any complaints to the agency before they can seek judicial review, FERC lawyers told the Virginia district court last month. If the lawsuits are not dismissed, the agency will respond to the substance of the plaintiffs' allegations over the next few months.
Backers of the pipelines are quick to note, too, that the projects are being built to serve growing demand from public utilities in the region.
"Our region's existing pipelines are fully tapped and are unable to meet the growing energy needs of public utilities and the economy," said Aaron Ruby, a spokesman for Atlantic Coast backer Dominion Energy Inc. "The FERC will thoroughly evaluate public need in its final order."
Steep battle
On a recent tour of Mountain Valley's proposed route near Roanoke, Lugar looked down an abrupt slope of a transmission corridor on Poor Mountain, imagining the even bigger footprint of the pipeline and the many affected landowners along the route.
"You've got to draw a line somewhere, and our Constitution is supposed to do that," he said. "If nobody stands up and says no, then the default is that it's OK. And it's not."
Still, he acknowledged, the fight will be an uphill battle — "a very steep, steep mountain."
Many legal experts tend to agree with that outlook, largely because public use has been broadly interpreted for years — making it less likely that a court would second-guess FERC's analysis today.
"You've got a lot of deference to FERC in their determinations, and that deference seems to be given by the Natural Gas Act itself," said Klass, the Minnesota law professor.
The biggest development in eminent domain law in recent years was the Supreme Court's landmark Kelo v. City of New London in 2005. In the 5-4 decision, the court sided with New London, Conn., in its effort to use eminent domain to transfer land from one private owner to another for redevelopment.
The majority adopted a broad interpretation of public use to include economic development.
Many say the decision supports expansive application of eminent domain in other contexts, including pipelines. But others believe the high court — if it ever considers the pipeline question directly — will view the use of eminent domain for modern gas projects as a bridge too far.
"How do we as a society think about delegating the ability to infringe on people's property rights to a private corporation?" said Reed Watson, executive director of the Property and Environment Research Center, a Montana-based group that prioritizes property rights and free markets. "That, to me, is Kelo 2.0, if you will."
Bookbinder agreed, arguing that FERC's criteria for approving pipelines and granting eminent domain power could catch the court's attention because they do not "rise to the level of even what the court found acceptable in Kelo."
State reform and its limits
Outside the pipeline context, Kelo actually led to major reforms in eminent domain law across the country.
Several states were concerned at the breadth of power protected by the decision and worked to tighten state-level rules for taking property. But those state reform efforts generally focused on restricting economic development takings and did not change the way land is acquired for energy infrastructure.
In more recent years, some states have turned their attention to oil pipelines, which go through a state-level route approval process. South Carolina and Georgia, for example, have restricted the use of eminent domain for oil pipelines. Landowners in other jurisdictions, including Ohio and Iowa, have challenged property takings for pipelines in court.
"What [Kelo] did, and the legislative reaction and the backlash to that case did, was make property rights advocates and property owners more emboldened to take on 'What is a public use?' and to try to litigate that in different contexts," Klass said.
But, she cautioned, the debate is more complicated for gas projects.
"If you're a landowner, you don't really care whether it's an oil pipeline or a gas pipeline, right? It's a pipeline; it has the same impact on your property," she said. "And so in terms of public opinion, the fact that one is state and one is federal doesn't matter that much.
"From a legal standpoint, it matters a lot."
That's because, unlike oil pipelines, natural gas lines are approved at the federal level — through FERC's certificate process. That means changes to state laws, constitutions and case law don't affect how interstate gas pipelines are approved, and any legal challenges must take on the federal permitting process and the broad eminent domain power protected under Kelo.
Robert McNamara, an attorney for the Institute for Justice, which represented the landowner in Kelo, said plaintiffs are trying to export that state-level "just skepticism" of eminent domain to the federal level. But it's hard to know what will happen in federal courts, he said.
A foothold?
George Mason University law professor Ilya Somin, who has spent the past 12 years studying Kelo and its implications, said a targeted effort to get the court to reconsider aspects of the decision might be possible with the right case.
"While I think Kelo makes it very hard to challenge a taking ... it's possible that they might rethink parts of Kelo or maybe even overrule it," he said. "I don't think it's super likely that Kelo would be overruled in the immediate future, but it certainly could potentially be narrowed, and overruling is not out of the question."
Many landowners around Roanoke, Va., have voiced opposition to the proposed Mountain Valley pipeline. Ellen M. Gilmer/E&E; News
The ideal case, he said, would involve what's known as a "pretextual taking," in which the stated purpose of a project is merely a pretext for benefiting a private party. To make a strong case, pipeline challengers would need to show that a project is not designed to serve multiple shippers, that it will financially benefit just one or two companies and that those private benefits are the primary motivation for development, he said.
But it's not clear these pipeline cases would rise to that level, he added.
"It's possible that they might be able to somehow show that the taking is actually pretextual, but overall, I'm not optimistic that they could win under the Supreme Court's current approach to the federal public use clause," he said.
Indeed, the pipeline backers have sought to dispel the notion that the projects don't serve the public. EQT Corp. has touted regional energy reliability benefits from the Mountain Valley pipeline, and Dominion has noted that the Atlantic Coast pipeline proposal was a direct response to requests from regional utilities for more natural gas capacity.
Given the legal hurdles, Klass said the most effective path toward eminent domain reform for pipelines would be an amendment to the Natural Gas Act. But that would be a heavy lift in the current Congress, which is more focused on streamlining infrastructure development.
Somin noted, however, that dissipating public support for eminent domain for natural gas pipelines could at least crack open the door to legal changes.
"Sometimes with these kinds of things, the trend of opinion at one level of government can affect the other level," he said. "So people might be rolling the dice and saying, 'Let's try.' We could be looking at a period where the ground begins to shift in this area of jurisprudence."
For Reilly, the southern Virginia landowner and Bold Alliance organizer, that shift can't come soon enough. She fears the pipeline will disrupt her family farm and, worse, that it will steamroll property rights in the region.
"'Is there anywhere we can try to get a foothold on a case like this?'" she said, recalling her early deliberation about bringing an eminent domain challenge. "Part of it to me as a landowner, too, was, 'We don't know if we don't try.' It's worth making the effort and taking a position and standing up for what we know is right."
Twitter: @ellengilmer Email: egilmer@eenews.net
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Houston’s polluted Superfund sites threaten to contaminate floodwaters.
Harris County has at least a dozen federal Superfund sites, more than any county in Texas. Up to 30 percent of the county is under water, spurring worries about toxics leaking.
As rain poured and floodwaters inched toward his house in south Houston, Wes Highfield set out on a risky mission in his Jeep Cherokee. He drove in several directions to reach a nearby creek to collect water samples, but each time he was turned back when water washed against his floorboard.
“Yesterday as these large retention ponds filled up, eight feet deep in places, kids were swimming in them, and that’s not good,” said Highfield, a scientist at Texas A&M; University’s Galveston campus. The Brio Refining toxic Superfund site, where ethylbenzene, chlorinated hydrocarbons and other chemical compounds were once pooled in pits before the Environmental Protection Agency removed them, sits “just up the road, and it drains into our watershed,” he said.
Harris County, home to Houston, has at least a dozen federal Superfund sites, more than any county in Texas. On top of that, the state lists several other highly toxic sites managed by the Texas Commission on Environmental Quality. Up to 30 percent of the county is under water. Like other scientists in the area, Highfield is deeply worried about toxins leaking into the water during an unprecedented rainfall and flooding from Hurricane Harvey that caused dams to spill over for the first time in history. On Tuesday, ExxonMobil reported that two of its refineries east of Houston had been damaged in the flood and released pollutants. “I made a couple of phone calls to colleagues who said bottle up [samples], label them and we’ll run them all,” Highfield said.
On Tuesday, EPA officials in Washington traveled to Houston to monitor environmental risks. On Monday, a spokesman for the Texas commission, Brian McGovern, wrote in an email that its workers “took steps to secure state sites in the projected path of Hurricane Harvey” by removing drums with chemical wastes and shutting down systems. McGovern said that “EPA has been coordinating with potentially responsible parties” that created the federal toxic sites to secure them.
“The TCEQ and EPA will be inspecting sites in the affected areas once reentry is possible,” McGovern wrote. But Highfield and a colleague at Texas A&M;, Samuel Brody, want to know what’s in the water now, as residents with children sometimes plunge into it as they wade to safety from flooded homes.
With its massive petroleum and chemical industry, Houston, part of the “Chemical Coast,” presents a huge challenge in a major flooding event, said Mathy Stanislaus, who oversaw the federal Superfund program throughout the Obama administration.
Typically the EPA tries to identify Superfund sites in a major storm’s path to “shore up the active operations” and “minimize seepage from sites,” Stanislaus said. “This is not the time to dictate; it’s the time to work together well with state and local officials to think about needs that need to be met.”
Before Sandy, the powerful and destructive weather system that vacillated between a hurricane and tropical storm as it bore down on New Jersey and New York, the agency rushed to sites in harm’s way. Still, Stanislaus said, “There was some spread of contamination.”
The EPA tested Superfund sites after Hurricane Katrina in 2005 and found that contamination was relatively contained, said Nancy Loeb, director of the Environmental Advocacy Center at Northwestern University’s Pritzker School of Law. But she cautioned that other more risky sites lie in the path of any storm that strikes a major metropolitan area such as Houston.
Risks at Superfund sites where the contamination hasn’t been completely resolved “are of the flooding picking up contaminants as it goes,” Lobe said. “If the water picks up contaminated sediment from sites, that may get deposited in areas where people frequent — residential properties, parks, ballfields — that were never contaminated before. We can’t say for sure it will happen, but it’s certainly a possibility.”
Residents who use well water are especially vulnerable, Loeb said: “There’s no testing of their water to know whether it’s been contaminated.”
In addition to the toxic pits at the Brio in Houston’s Friendswood community, Harris County’s polluted Superfund sites include the low-lying San Jacinto River Waste Pits that “is subject to flooding from storm surges generated by both tropical storms (i.e. hurricanes) and extra tropical storms” that push water inward from Galveston Bay, according to an Army Corps of Engineers report released last year.
There’s also the Many Diversified Interests site near the heart of the city, the Crystal Chemical Co. site in southwest Houston, the Patrick Bayou site off the Houston Ship Channel, and the Jones Road Plume dry cleaning waste site. They include oily sludge and contaminants dangerous to inhale or touch: perchloroethylene, trichloroethylene and chlorinated hydrocarbons, to name a few.
Highfield became alarmed Saturday when he saw teenagers swimming near a football field where water had risen to the crossbar of the goal post. He mentioned what he saw to Brody and recalled that they both reacted with worry.
“I’ve been thinking a lot about this,” Brody said, so much so that the professor instructed a graduate student to analyze the distance between toxic release inventory areas such as Superfund sites and dry cleaners that store chemicals to 100-year and 500-year floodplains where housing and business developments sit.
According to the analysis, the average distance between the facilities to a 100-year floodplain in Harris County was 44 feet, compared with more than 2,000 feet in nearby Galveston and Chambers counties. The average distance to a 500-year floodplain in Harris County was about 70 feet, compared with more than 3,700 feet in Galveston County and 2,300 feet in Chambers County.
“I would love to do a study that combines sampling and physical measurements to understand the confluence of toxins to these flooding events,” Brody says. “When you get water in your home, it’s not just water, it’s sediment and debris. It’s the sediment that these toxic molecules bind to and become dangerous, like dioxins. Once you get water in the home and it has to be cleaned out, people are exposed.”
Both Brody and Highfield said Monday that they were fortunate: Water had not entered their houses. A month ago, Brody packed his family of four and moved from the Friendswood section of Houston that’s now being devastated by the flood, leaving his friend Highfield there. Brody specifically searched for a house on higher ground and is confident that water won’t enter it.
Highfield is less sure as the flood creeps toward his driveway. All around him, houses and cars are underwater. It fuels his concern about what might enter his house with the water, and what his neighbors and their children encounter when they frolic in the water.
“It was absolutely those kids swimming” that triggered his determination to test the water, regardless of whether Texas or the EPA did it. “That was kind of the aha moment. I plotted a path earlier thinking I could get kind of a back road path where I thought the water would be lower at the creek.”
But it was no use. His car was no match for what is by far the worst flooding ever in a city that has flooded since the month it was first founded. “I need it to stop raining. And I need things to drain a little bit,” Highfield said.
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How humans can avert mass extinctions of animals.
Unlike other creatures, humans can consciously shape the future for generations to come. We should use ingenuity for the benefit of the countless creatures with which we share the Earth. That would also be good for our species.
For millions of years, Australia had no human inhabitants. When people finally arrived there some 45,000 years ago, the continent had 24 different creatures weighing 100 pounds or more. Within a few millennia, 23 were wiped out.
In his book "Sapiens," Yuval Noah Harari notes: "Long before the Industrial Revolution, Homo Sapiens held the record among all organisms for driving the most plant and animal species to their extinction. We have the dubious distinction of being the deadliest species in the annals of biology."
From all indications, we are not about to be dethroned. A new study published in a journal of the National Academy of Sciences says nearly 200 species have vanished in the past century, and 9,000 have seen substantial reductions in their numbers. Only 7,000 cheetahs are left, and the population of West African lions is down to 400. Scientists suggest that Earth is well into the sixth mass extinction of the last half-billion years.
We are seeing "a massive erosion of the greatest biological diversity in the history of Earth," which negatively affects the resources that sustain human life, says the article. The authors call for a reversal of "human overpopulation" and "overconsumption, especially by the rich." One of the scholars, Paul Ehrlich of Stanford, told The Washington Post, "I am an alarmist."
But the alarmism may be overdone. Ehrlich is infamous for erroneously predicting imminent mass global famine in his 1968 book "The Population Bomb." Humans turned out to be more adaptive and resourceful than he expected then, and there is no reason to believe they won't act to prevent the catastrophe being predicted now.
Climate change is one significant factor in the loss of creatures, and the nations of the world have entered into an accord to combat it by curbing greenhouse gas emissions. Even without the participation of the United States, that effort is bound to do some good — and it can be done without hobbling economic growth.
A materially richer world is likely to be a more ecologically conscientious one. "The countries that are wealthiest do the most to protect habitat and species health," says Reed Watson, executive director the Property and Environment Research Center, a think tank in Bozeman, Mont.
That's because conservation is one of the things people come to value more and more as their disposable income grows. Poor nations can't afford to worry so much about the plight of animals because they are preoccupied with feeding and housing people.
Humans are good at finding ways to protect the environment and our fellow creatures when the need is there. When the federal Wilderness Act was passed in 1964, it designated 9 million acres of land as wilderness. Today, we have nearly 110 million acres that provide unspoiled habitat for innumerable species.
Other federal lands such as national parks and forests are also protected from most forms of development — amounting to more than one-seventh of all the land in the country. Neighboring residents have learned that they can profit from tourists who come to hike remote woodland trails and see grizzly bears, eagles and wolves. All this is the fruit of prosperity, not poverty.
One challenge in saving species is devising methods that encourage humans to see animals as an asset, not a burden or danger. American bison, once hunted almost to extinction, have rebounded partly because ranchers raise them for food. Ocean fisheries have been rebuilt by limiting the annual harvest while granting fisherman transferable rights to a share of it —thus giving them a stake in conservation.
Namibia has boosted the number of black rhinoceroses, once down to six, to more than 1,400, reports NPR, while doubling the numbers of both cheetahs and elephants. It has also virtually eliminated poaching. How? By enabling communities to establish conservation areas and administer them in ways that benefit the people living there. One element that PERC's Watson acknowledges is "counterintuitive" is regulated trophy hunting, which generates income that rewards locals for protecting iconic species.
The report provides a sobering picture of how much irreversible damage could be done to worldwide biological diversity. Unlike other creatures, humans can consciously shape the future for generations to come. We should use ingenuity for the benefit of the countless creatures with which we share the Earth. That would also be good for our species.
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Here's how California could change its cap-and-trade program for climate change.
Here’s a look at how cap and trade works now and how it could work in the future.
California has some of the world’s most extensive policies for slashing greenhouse gas emissions, including regulations on vehicle tailpipes and requirements for renewable energy. But none of them has drawn as much attention as the cap-and-trade program, which requires companies to buy permits to release emissions into the atmosphere.
It’s a complex system intended to provide a financial incentive for oil refineries, food processors and other industries to clean up their operations, and state lawmakers are debating whether to extend the program. Although many of the proposals are highly technical, they could have a dramatic effect on the state’s fight against global warming.
Here’s a look at how cap and trade works now and how it could work in the future:
What kinds of pollution would be targeted?
Current program
Right now, cap and trade is focused on reducing greenhouse gases such as carbon dioxide and methane.
These emissions contribute to global warming, but they’re not the type of pollution responsible for air quality issues that contribute to public health problems such as asthma.
Assembly Bill 378
This proposal would modify the program so it also limits criteria pollutants, including smog-causing nitrogen dioxide, and toxic air contaminants, such as perchloroethylene from some dry cleaning operations.
Companies would face stricter rules on greenhouse gases if they violated regulations on other kinds of pollution.
How much would emission permits cost?
Current program
Companies bid on the permits in state-run auctions and the minimum price is currently about $13 per metric ton of greenhouse gases.
Permits can also be traded on a secondary market, allowing companies to sell excess permits or obtain more if needed.
The state also distributes a limited number of permits for free to help industries comply with regulations.
Analysts are concerned that prices have been too low to persuade companies to reduce their emissions to avoid needing to buy permits.
Senate Bill 775
This proposal would set stricter rules for minimum and maximum prices of permits during state auctions, and the prices would increase annually at steeper rates.
In 2021, bids would need to stay between $20 and $30. By 2030, the price range would be between $60 and $120.
No permits would be distributed for free.
Supporters of the proposal believe the higher prices would provide a better financial incentive for companies to clean up their operations.
How much money would be generated and where would it go?
Current program
Annual revenue from cap and trade has ranged from several million dollars to more than $1 billion in recent years, although there’s potential for much higher amounts if permits become more costly.
The money can only be spent on initiatives that reduce greenhouse gas emissions, such as rebates for electric cars and affordable housing near mass transit.
Gov. Jerry Brown has also used some of the money to build the bullet train from Los Angeles to San Francisco.
Senate Bill 775
Legislative analysts have not estimated how much revenue the proposal could generate, but it could reach tens of billions of dollars because of escalating prices.
Money would be allocated to environmental projects, scientific research and rebates to Californians, but it hasn’t been decided how much would go to each.
The rebate, called a “climate dividend,” would help offset higher costs for gasoline and electricity that could result from state regulations.
How would the program help the state meet its emission goals?
Current program
Right now the state sells a limited number of permits in auctions, no matter the price that companies bid.
This allows cap and trade to act like a backstop, assisting the state’s ability to meet its goal for reducing emissions by 2030.
Critics fear wide fluctuations in revenue and the potential for price spikes if permits become much more valuable.
Senate Bill 775
This proposal would require the state to sell an unlimited number of permits if the price reaches the maximum level.
By making this change, supporters say there would be less chance for price spikes during auctions or in the secondary market.
Opponents say this would make the program function more like a tax and provide less certainty that the state will meet its goals.
How would the program support other environmental projects?
Current program
Instead of buying emission permits or reducing their own emissions, companies can comply with regulations by financing offsets, which are projects intended to reduce greenhouse gases elsewhere.
The most popular offsets involve preserving forests. Others include turning methane from cow manure into electricity or destroying chemicals that would otherwise escape into the atmosphere.
Because climate change is a global problem, supporters say reducing emissions anywhere is helpful. Offset credits can also be cheaper than permits, providing a less expensive option for companies.
AB 151 and SB 775
Opponents of offsets are skeptical of their environmental benefits or dislike the opportunity for California companies to meet their obligations without changing their own operations.
There’s also opposition because offsets can be financed anywhere in the country. AB 151 would encourage companies to develop offsets in disadvantaged communities.
SB 775 would go a step further, preventing the use of any offsets to comply with regulations.
chris.megerian@latimes.com
Twitter: @chrismegerian
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Australian clean energy heading for 'valley of death.'
Australia's clean energy research efforts are heading for "the valley of death" if Parliament passes the Coalitions's omnibus package of cuts, according to leaders in the sector.
Australia's clean energy research efforts are heading for "the valley of death" if Parliament passes the Coalitions's omnibus package of cuts, according to leaders in the sector.
Hundreds of researchers around Australia, including dozens at both the Australian National University and the University of NSW, will be faced with the dole queue if cuts to Australia'™s renewable energy research agency are passed by the Parliament, according to one of the sector's pioneers.
Deep cuts to the funding of the Australian Renewable Energy Agency, contained in the Turnbull government's omnibus "œbudget repair" bill before the Parliament this week, is an "existential threat" to clean energy innovation in Australia, Professor Andrew Blakers says.
Professor Blakers of the ANU is a world leader in renewables research and he says many of his colleagues nationwide will lose their jobs if the government gets its bill through Parliament and advances that would deliver major economic benefits to the country would be lost.
The ANU and the University of NSW are world leaders in solar energy research with PERC solar cells, now the commercial standard globally with more than $9 billion in sales, invented by Professor Blakers and his colleague Martin Green at the NSW institution.
ARENA was established in 2012 by the Gillard government and abolished by the Abbott government in 2014.
The agency received a stay of execution in March 2016 but Coalition policy now wants to strip $1.3 billion of funding from ARENA and merge its funding role with the Clean Energy Finance Corporation, which expects to see a financial return on money it invests in research.
The Clean Energy Council has published a briefing paper that likens de-funding ARENA to "plunging into the clean energy valley of death".
ARENA chief executive Ivor Frischknecht told Fairfax that existing commitments would be met even if Parliament agreed to back the Coalition's cuts.
"The proposed reduction in ARENA's uncommitted funding will not affect existing commitments," Mr Frischknecht said.
"Projects currently receiving ARENA funding will continue to receive funding and ARENA will continue to oversee ongoing contract management and knowledge sharing outcomes for these projects."
The office of Energy Minister Josh Frydenberg did not respond before deadline on Tuesday to a request for comment and Labor says it has not arrived at a position on the ARENA cuts.
Professor Blakers said the decision, if passed, may mean the end of Australia'€™s clean energy research effort and said both sides of politics would shoulder the blame.
"€œThere is an existential threat to renewable energy research, innovation and education in Australia," Professor Blakers said.
"€œIf ARENA is dismantled, then many people would lose their jobs including dozens at ANU.
"œIn the longer term, Australia's leadership in solar energy would vanish.
"After the fiasco involving CSIRO climate scientists, we now have a potential fiasco in mitigation of climate change."
The research leader called on the Labor Party not to just "waive through" the proposed cuts.
"œIt appears that the ALP might waive through a change to the ARENA Act, which would allow the end of ARENA granting," Professor Blakers said.
"€œFor 30 years there has been a renewable energy funding agency in one form or another in Australia.
"€œThis has led to phenomenal success in generation of technology and education.
"The worldwide silicon solar cell industry owes its existence in large measure to Australians who were supported by grants from government renewable energy agencies.
"Billions of dollars of benefits have accrued to Australia."
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