28/02/2022

(USA NYT) Will The Supreme Court Frustrate Efforts To Slow Climate Change?

New York Times - Jody Freeman

Sophia Deng




Author
Professor Jody Freeman teaches environmental and administrative law at Harvard University.
She was counselor for energy and climate change in the Obama White House in 2009 and 2010 and advised the Biden transition team.
Professor Freeman is an independent director on the board of ConocoPhillips, a producer of oil and natural gas.
With Congress doing little on climate change, President Biden must use his executive authority to regulate greenhouse gas emissions across the U.S. economy.

The Supreme Court appears determined to thwart him.

In a case to be argued on Feb. 28, the court seems poised to restrict the Environmental Protection Agency’s legal authority to limit carbon pollution from power plants and, by doing so, frustrate the country’s efforts to slow the pace of climate change.

The justices went out of their way to take the case brought by coal companies and Republican-led states even though no federal rule in effect regulates greenhouse gas emissions from power plants, and no company or state is required to take any action to control those emissions.

No power company petitioned the court for its review, and in fact, several of the nation’s biggest power companies opposed the justices’ adding the case to their docket.

The Biden administration argues that the court should wait until the E.P.A. issues a rule, as it plans to do; otherwise, any decision would be an advisory opinion based on a hypothetical, which the court has said repeatedly the Constitution does not allow.

But the State of West Virginia and its fellow petitioners, including 17 other states and coal and mining companies, argue that any agency rule to cut carbon from the electric power sector will have such enormous consequences that the court should act now to curtail the agency’s authority.

In a brief to the court, those states warned in alarmist language against empowering the agency “to reorganize American industry.” The plaintiffs want a sweeping ruling to neutralize the E.P.A.’s power to set any meaningful emissions standards.

Just by accepting the case, the court has suggested where it is headed — which is toward curbing the E.P.A’.s flexibility. The court’s conservative majority has been deeply skeptical of federal regulatory authority unless Congress has been extremely explicit in its instructions on what agencies can do.

But Congress cannot anticipate every possible situation and for good reasons often delegates broad authority to agencies, letting them make expert judgments in technical domains.

The Supreme Court has repeatedly held that the Clean Air Act authorizes the E.P.A. to regulate greenhouse gas emissions, including those from power plants. Congress told the E.P.A. to choose the best system to reduce emissions.

Yet the court might be so eager to restrict climate regulation under the Clean Air Act that it may be willing to overrule its own precedents, disregard foundational constitutional principles requiring plaintiffs to show concrete harm and ignore the business needs of the affected industry.

In doing so, the court may inadvertently harm the power sector more than it helps it, by ruling out practical, inexpensive or flexible strategies that the industry and many states support to reduce emissions.

Burning fossil fuels to generate electricity is responsible for about 25 percent of the nation’s greenhouse gas emissions, behind only transportation. Substantial reductions in power plant emissions are critical if the United States is to meet its pledge in the Paris Agreement to cut greenhouse gas emissions economywide by 50 percent to 52 percent below 2005 levels by 2030.

Mr. Biden has set a goal of eliminating those emissions from electricity generation by 2035.

The case is complicated but the question underlying it boils down to this: Is the E.P.A.’s regulatory authority over power plant emissions narrowly limited to requiring only negligible improvements at each source, which would produce minimal if any emission reductions? That is what the coal companies and the states bringing this case want.

Or can the agency use a broader approach based on other things power plants can do to cut emissions, for example, by combining coal with other, less-polluting fuels like natural gas, biogas and hydrogen; integrating renewables; using technology that captures the emissions before they leave the smokestack; and by allowing companies to trade emissions credits or average emissions reductions across a company’s fleet?

That is what the E.P.A. and many power companies want. They also want the states to be free to consider such measures when deciding how best to achieve federal emissions limits.

The legal saga leading to this point goes back to the Obama administration, when the E.P.A. adopted what was known as the Clean Power Plan. This rule required power plants to cut emissions 32 percent from their 2005 levels by 2030.

But the Supreme Court temporarily blocked it, and the Trump administration later repealed it, substituting a much weaker rule. Then, before Mr. Trump left office, the United States Court of Appeals for the District of Columbia Circuit rejected the Trump rule, saying its cramped view of what the E.P.A. could do under the Clean Air Act was wrong.

The court also ordered, and all parties agreed, that no power plant regulation would take effect until the E.P.A. issued a new rule.

Normally, the case would have ended there. The Biden administration is now developing its own power plant standards with input from industry and others with a stake in the outcome.

The Supreme Court typically does not review a hypothetical or proposed regulation until it is final, and for good reason.

Without the benefit of an agency’s thinking and a detailed administrative record of how it reached its decision, the court runs the risk that its abstract ruling will have unintended consequences, including harming the affected industry.

The court has a way out. It can dismiss the case because, with no rule in place, no one is suffering any legal harm — a requirement known as standing, which is necessary for the court to assert jurisdiction. That would preserve everyone’s right to litigate in the future while allowing the E.P.A. to develop a new rule.

It is sensible to wait. Economic conditions and technology have evolved considerably in the past decade. The court should allow the E.P.A. to conduct a fresh assessment of what power plants can reasonably do to cut carbon emissions using available technologies at an acceptable cost.

Many in the electricity industry support this approach. Ten power companies, with operations in virtually every state, sided with the Biden administration. The trade association representing all U.S. investor-owned electric companies filed a brief urging the court to retain the E.P.A.’s authority.

These companies need stable, predictable federal rules to make economic decisions and plan investments.

The coal industry likes to argue that without the court’s intervention and direction, the E.P.A. will run amok. But the record shows that if anything, the agency tends to underestimate what business can do to control pollution.

The power sector exceeded the targets in the Clean Power Plan years ahead of time, even without a rule in place, showing that those standards were neither too costly nor transformative.

The justices should restrain themselves and let the regulatory process play out.

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(AU The Conversation) Like Rivers In The Sky: The Weather System Bringing Floods To Queensland Will Become More Likely Under Climate Change

The Conversation - |

Flooding in Gympie, Queensland, February 26, 2022. AAP Image/Supplied by Brett's Drone Photography

Authors
  •  is a PhD Researcher in Atmospheric Science, The University of Melbourne
  •  is Senior Lecturer in Climate Science, The University of Melbourne
The severe floods in southeast Queensland this week have forced hundreds of residents to flee the town of Gympie and have cut off major roads, after intense rain battered the state for several days. The rain is expected to continue today, and travel south into New South Wales.

We research a weather system called “atmospheric rivers”, which is causing this inundation. Indeed, atmospheric rivers triggered many of the world’s floods in 2021, including the devastating floods across eastern Australia in March which killed two people and saw 24,000 evacuate.

Our recently published research was the first to quantify the impacts these weather systems have in Australia, and another study we published in November looked closely at the floods in March last year

We found while atmospheric rivers bring much-needed rainfall to the agriculturally significant Murray-Darling Basin, their potential to bring devastating floods will become more likely in a warmer world under climate change. What are atmospheric rivers?

 Atmospheric rivers are like highways of water vapour between the tropics and poles, located in the first one to three kilometres of the atmosphere. They are responsible for about 90% of the water vapour moving from north to south of the planet, despite covering only 10% of the globe.

When atmospheric rivers crash into mountain ranges or interact with cold fronts, they rain out this water with potentially disastrous impacts. Mountains and fronts lift the water vapour up in the atmosphere where it cools and condenses into giant, liquid-forming bands of clouds. Intense thunderstorms can also form within atmospheric rivers.

A snapshot of water vapour in the atmosphere. Atmospheric rivers are the narrow streamers branching off the equator. Space Science and Engineering Center, University of Wisconsin-Madison

Three atmospheric rivers last year were particularly devastating.

In January, California was hit with a strong atmospheric river that caused record-breaking rainfall and blizzards. It also triggered a landslide on California’s iconic Highway 1.

In November, British Columbia, Canada was battered with record breaking rainfall that left Vancouver isolated from the rest of the country.

And in March, Eastern Australia copped a drenching that led to widespread flooding and A$652 million worth of damage. All mainland states and territories except WA faced simultaneous weather warnings. What we found

Our recently published research provides the first quantitative summary of atmospheric rivers over Australia. It’s not all bad news – most of the time, atmospheric rivers bring beneficial rainfall to Australia. About 30% of southeast Australia’s rainfall comes from atmospheric rivers, including in the Murray-Darling Basin.

Rainfall is vital to this region. The Murray-Darling Basin supports over 500 species of birds, reptiles and fish, and around 30,000 wetlands. Agriculture in the Murray-Darling Basin contributes A$24 billion to the Australian economy.

However, we also found that 30-40% of the heaviest rainfall days in the Northern Murray-Darling Basin, where towns such as Tamworth, Dubbo and Orange are located, were associated with atmospheric rivers.

A heavy downpour in Australia’s bread basket might lead to happier farmers during a dry period, but following a wet summer – such as from La Niña – these days are less welcome.

Queensland residents are facing one of the most severe weather systems in a decade. AAP Image/Jono Searle

La Niña saturates soil

La Niña can play a big role in flooding, as it exacerbates damage wrought by atmospheric rivers.

A La Niña was declared in spring in 2020 and fizzled out by March in 2021. A second La Niña arrived in the summer of 2021 and 2022.

During a La Niña, winds that blow from east to west near the equator strengthen. This leads to cold, deep ocean water rising up to the surface in the East Pacific, near South America, and warm ocean waters to build near Australia.

Warm sea surface temperatures promote rainfall, which is why La Niña is associated with rainier weather over much of Australia.

Soil is like a kitchen sponge. It absorbs water, but once it becomes saturated it can no longer soak up any more. This is what happened to eastern Australia in the months before the March floods – and when the record-breaking rain fell, the ground flooded.

On March 23, 2021, 800kg of water vapour flowed over Sydney every second. Shutterstock

Our recent research found that in March 17-24 last year, NSW experienced an almost constant stream of high water vapour in the atmosphere above from both an atmospheric river that originated in the Indian Ocean and a high pressure system in the Tasman Sea.

On March 23, over 800kg of water vapour passed over Sydney every second - that’s 9.6 Sydney Harbours of water in one day.

Likewise, soil moisture in south-east Queensland has been above average since October last year. Last November was Australia’s wettest November on record with south-east Queensland receiving very-much-above average rainfall.

This meant the ground was already sodden. So when the heavy rain fell this week, Queensland flooded.

The soil in Queensland was already saturated due to higher than average rainfall since October last year. AAP Image/Jono Searle
What’s the role of climate change?

We also calculated the likelihood of future atmospheric rivers as big as the one in March 2021 flowing over Sydney using the latest generation of climate models.

Earth is currently on track for 2.7℃ warming by the end of the century. Under this scenario, we found the chance of a similar weather event to the March floods will become 80% more likely. This means we are on track for more extreme rainfall and flooding in Sydney.

We also know climate change will increase the occurrence of atmospheric rivers over the planet, but more research is needed to determine just how often we can expect these damaging events to happen, including in southeast Queensland.

However, this path is not final. There is still time to change the outcome if we urgently reduce emissions to stop global warming beyond 1.5℃ this century. Every little bit we do to limit carbon emissions might mean one less flood and one less person who has to rebuild.

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(AU ABC) Politicians Rated On Climate Credentials As Environment Is Front And Centre For Voters Of Today And Tomorrow

ABC Central Victoria - Jo Printz

Castlemaine school children striking for action on climate change as part of a previous schoolstrike4climatechange. (Twitter @StrikeClimate)


Key Points
  • Environmental issues and the climate crisis could be major election issues
  • Community environment groups and students want voters to make informed decisions
  • They say understanding candidates' policies and environmental credentials are important
While coronavirus and other global issues may have put the climate crisis on the backburner recently, activists say the upcoming federal election is an opportunity to put the state of the planet back on the agenda. 

Elsie L'Huillier is part of the Bendigo United Climate Challenge Alliance, a group of community members and organisations that rate local political candidates on their environmental position and policies.

"It's a reasonably long tradition now, particularly for environmental groups trying to target the information, to work out what are the things we really need answers to," she said.

"Instead of waiting to go through all the policy guff that comes out, we're asking the hard questions.

"[We're] also setting up some sort of a system whereby you can ask the same questions of everyone and rank them according to those particular topics.

Elsie L’Huillier says the Bendigo United Climate Challenge Alliance is providing information that can be relied upon. (ABC Central Victoria: Jo Printz)
"In terms of the federal government cycles, this will be the first one where there clearly is evidence that the greater majority, not just the majority, believe there is a problem with climate change and that we need better legislation around how we're protecting the environment."

Ms L'Huillier believes the group is providing information people in the community can trust.

"It's come from fellow locals; they can eyeball us and go what's the basis for that?" she said.

Climate at the forefront of young voices

Harriet O'Shea Carre, a 17-year-old student activist from Castlemaine isn't yet old enough to vote but that hasn't stopped her from holding politicians to account on climate change.

One of the founding members of the School Strike for Climate movement in Australia, Harriet says it's easy to become complacent, particularly during a pandemic, but every vote really does count.

"One thing about this pandemic is that it's shown us ... when our leaders are committed to making changes and protecting society, we can take really urgent action, which is what is necessary with climate change."
"We really need policies that are moving towards 100 per cent renewable energy and prioritising future generations and the planet over profit."
Castlemaine’s Harriet O’Shea Carre (centre) with School Strike for Climate in Australia co-founders Milou Albrecht (left) and Callum Neilson Bridgfoot (right) at a Melbourne rally in 2021. (Supplied: Harriet O’Shea Carre) 
She said it can be frustrating that some people have that attitude of complacency when there is plenty of information and resources available on the issues we're facing, but they don't take the time and effort to do a little research.

"All votes are important for future generations; it's young people now and in the future who will be inheriting this planet and these policies ... so if you're going into this system thinking you can't make a difference, we're never going to get anywhere."

Euan Ritchie, a professor in wildlife ecology and conservation at Deakin University, knows more than most the imperatives of how we deal with the climate and extinction crisis in the next few years and agrees voters can't be complacent.

"No vote in Australia is ever wasted because we have a preference system; by exercising your values by whoever you choose to vote for, you're absolutely having a really important contribution to the democratic process," Dr Ritchie said

Voters need to ask the tough questions

Dr Ritchie says there's a whole range of questions voters should be asking themselves in trying to gauge the environmental credentials of an aspiring politician or political party.

"We know from reviews around the world that Australia is underspending by a large amount what it should be spending on conserving its threatened species, so how much money is being committed is really important," he said.

Thousands attend climate protests
"The next part of that is whether that money is being targeted on the right things; so planting trees is really important, but it may not conserve some threatened species if it's done in the wrong places."
"We know that the climate and extinction crisis are probably the two big crises that we face globally right now, so they absolutely should be front and centre at the next election."
He added that transparency in political donations and policy alignment were also very important.

"If we have ambitions to restore and conserve the environment, but continue with policies supporting fossil fuels, for example, that is obviously in direct contradiction to conserving the environment," Dr Ritchie said.

He finds it frustrating that these aren't the main issues being discussed or addressed by politicians.

"The environment is our only home — it keeps us alive and happy — and if we take care of the environment, we know it has immense value, whether that's socially, culturally, economically with things like tourism, and of course environmentally.

"So investing in the environment is one of the best things we could possibly do and will come back and pay us off many times over."
"If we don't (take care of the environment) there's going to be really broad-reaching problems both for these species being affected, but also for humanity, whether it's food shortages, or floods or storms, it's going to have a big, negative impact so we need to be addressing it."
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