Climate Change: The Move to Action (AOSS 480 // NRE 501) Richard B. Rood Space Research Building (North Campus) Winter 2008 March 18, 2008

Class News A ctools site for all –AOSS W08 This is the official repository for lectures Class Web Site and Wiki –Climate Change: The Move to ActionClimate Change: The Move to Action –Winter 2008 TermWinter 2008 Term

Next 4 lectures March 20: Paul Higgins (climatepolicy.org) March 25: Jasper Kok (Alternative energy) March 27: Ben Santer (Fingerprinting climate change: Is there a smoking gun?) April 1: 15 minute interim report on projects.

Readings on Local Servers Assigned –Supreme Court: Massachusetts versus EPASupreme Court: Massachusetts versus EPA –Sigman: Liability and Climate PolicySigman: Liability and Climate Policy Of Interest –Massachusetts Petition to the U.S. Supreme CourtMassachusetts Petition to the U.S. Supreme Court –US Govt Response to Massachusetts PetitionUS Govt Response to Massachusetts Petition Foundational Reading –University of Pennsylvania Law Review (2007)University of Pennsylvania Law Review (2007)

Lectures coming up

Outline of Lecture Uncertainty and Divergence of Policy Development –Motivators, catalysts for policy Spatial scales and time scales Law / Litigation –Massachusetts versus EPA

Climate Change Science: Knowledge and Uncertainty Knowledge from Predictions Motivates policy Uncertainty of the Knowledge that is Predicted Policy 1)Uncertainty always exists 2)New uncertainties will be revealed 3)Uncertainty can always be used to keep policy from converging What we are doing now is, largely, viewed as successful. We are reluctant to give up that which is successful. We are afraid that we will suffer loss.

Summary moment It is sensible to look at governance and policy to address climate change –It’s a “greater good” problem –It relates to natural resources and waste from the use of natural resources –It impacts economic and national security –There is precedence in environmental management There is a need for a “carbon policy” to govern our emission of greenhouse gases into the atmosphere. –Credible evidence of potential “dangerous” climate change.

Motivators for Policy More is needed than scientific knowledge to motivate the development of policy. –A policy accelerator or catalyst is needed to promote convergence on policy. Apparent benefit Excess risk

Climate Change Science: Knowledge and Uncertainty Knowledge from Predictions Motivates policy Uncertainty of the Knowledge that is Predicted 1)Uncertainty always exists 2)New uncertainties will be revealed 3)Uncertainty can always be used to keep policy from converging What we are doing now is, largely, viewed as successful. We are reluctant to give up that which is successful. We are afraid that we will suffer loss. “POLICY” BENEFIT RISK

Climate Science-Policy Relation CLIMATE SCIENCE KNOWLEDGE UNCERTAINTY POLICY PROMOTES / CONVERGENCE OPPOSES / DIVERGENCE

Energy Security-Policy Relation ENERGY SECURITY KNOWLEDGE UNCERTAINTY POLICY PROMOTES / CONVERGENCE OPPOSES / DIVERGENCE

Economics-Policy Relation ECONOMIC ANALYSIS KNOWLEDGE UNCERTAINTY POLICY PROMOTES / CONVERGENCE OPPOSES / DIVERGENCE

Energy-Economy-Climate Change ENERGYECONOMY CLIMATE CHANGE THESE THREE ARE BIG WHAT ARE THEIR ATTRIBUTES? ______________________________ HOW ARE THEY RELATED? ______________________________

We keep arriving at levels of granularity TEMPORAL NEAR-TERMLONG-TERM SPATIAL LOCAL GLOBAL WEALTH Small scales inform large scales. Large scales inform small scales.

A moment with time scales 25 years 50 years75 years100 years0 years ENERGY ECONOMY CLIMATE CHANGE

Energy-Economy-Climate Change ENERGYECONOMY CLIMATE CHANGE WHAT IS THE POLICY ENVIRONMENT IN WHICH OPTIMAL RESULTS CAN BE ACHIEVED? POLICY ENVIRONMENT

Energy-Economy-Climate Change Because of the global reach of Energy, Economy, and Climate Change, solutions need to be woven into the fabric of our behavior. Solutions need to be able to evolve from the near-term to the long-term. Solutions need to address both local and global attributes of the problem. Solutions are impacted by wealth There is no one solution; we need a portfolio of solution paths.

Market-based solutions A leading policy mechanism is an environmental market which places valuation on carbon dioxide in the atmosphere and its impact on natural resources that are sensitive to the climate. Valuation (currency) becomes the common unit of transference, how we “talk” to each other.

Elements of environmental pollutant market ENERGY PRODUCTION FUEL SOURCES ABATEMENT SHARES OF POLLUTANT CREDITS F1cF1c F2cF2c FicFic F1AF1A F2AF2A FiAFiA A1A1 A2A2 AiAi GDP. POLLUTANT efficiency COST GAP Common Unit of Transference Cost  $

What about the carbon market

Aside from markets, what else permeates society? Law

In the past year The picture of polar bears in the sea motivated a lot of discussion about the Endangered Species Act... but, legal approaches have a difficult path, cause and effect, who are the damaged and damaging parties, what laws are relevant...

So what are the legal pathways? Public nuisance Clean Air Act National Environmental Policy Act Federal policy of pre-emption –Less stringent federal regulations rather than more stringent state regulations Like tobacco liability litigation Like gun liability litigation Endangered Species Act

National Environmental Quality Act (1969) Purpose Sec. 2 [42 USC § 4321]. The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.

What are the obstacles? Political Question / Judicial Competence –Court being asked, essentially, to make policy Standing –The ability to show particular, or personal harm. Causation –Demonstration that a particular, say, power plant or manufacturer has caused the harm

An interesting set of papers The complete issue of University of Pennsylvania Law Review (Vol, 155, 2007) –Intersection of climate science, economics, and law. University of Pennsylvania Law Review (2007)

A case that received a lot of attention Connecticut versus American Electric Power –Public nuisance –Determined that court was being asked to address what was essentially a policy question. Senator Imhoff a principal in having the case thrown out

A case that continues to attract attention Massachusetts versus US Environmental Protection Agency –Clean Air Act

A case that continues to attract attention Relevant text of Section 202(a) of the Clean Air Act” "The Administrator [of EPA] shall by regulation prescribe... standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." Section 302(g) of the Clean Air Act defines "air pollutant" as "any air pollution agent or combination of such agents, including any physical... substance or matter which is emitted into or otherwise enters the ambient air." 302(h) states that "effects on welfare" include "effects on soils, water, crops,... wildlife, weather... and climate...”

California and Clean Air Act When the Clean Air Act was written California was given the ability to make more stringent standards. –States can choose either the California standard or the less stringent national standard (A motivator for federal policy is often the existence of many state and local policies.)

Supreme Court Decision Supreme Court found in favor of Massachusetts –Had argued that they were threatened by sea level rise. There was standing. –Had argued that carbon dioxide was a pollutant. Supreme Court said carbon dioxide is a pollutant based on the definition in the Clean Air Act. –EPA did have the regulatory authority to regulate CO 2.

EPA Arguments That to control carbon dioxide from cars was an issue of efficiency, which was the sole domain of the Department of Transportation. That for the EPA to act would be a piecemeal approach to the problem, against the President’s wishes. That taking action on cars would have no real effect because of other sources of CO 2, including China. That there was a political history that precluded EPA from acting.

Since then EPA has not, formally, taken action, and even their own lawyers have been quoted in the press as saying that EPA is not on solid legal grounds for doing nothing. –A political decision.

Since then California Attorney General Petition to EPACalifornia Attorney General Petition to EPA –“Global warming threatens California's Sierra mountain snow pack, which provides the state with one-third of its drinking water. California also has approximately 1,000 miles of coastline and levees that are threatened by rising sea levels.”

Where does litigation sit in the climate problem? Motivator for the development of policy. Law works on short-term and local scales. –Does not, often, extend to long-term and global scales. Deliberative, case-by-case

Where does litigation sit in the climate problem? Liability?

Next 4 lectures March 20: Paul Higgins (climatepolicy.org) March 25: Jasper Kok (Alternative energy) March 27: Ben Santer (Fingerprinting climate change: Is there a smoking gun?) April 1: 15 minute interim report on projects.