Declaring a Climate Change Emergency: A Citizen’s Guide, Part I
This is the first part of a post that was originally published on Legal Planet. Click to read Part II. Reprinted with permission.
Based on press reports, it now seems likely that President Joe Biden will soon declare climate change to be a national emergency. Would this be legal? Would it unlock important powers that could be used to fight climate change? My answers are: It would probably be legal, and it would unlock some significant powers. But an emergency declaration is not a magic wand that gives presidents a blank check. It would allow some constructive steps to be taken, but within limits.
I wrote several blog posts about the idea of a climate emergency in 2019. Back then, interest in presidential emergency powers had been sparked by former President Trump’s use of emergency power to help build his border wall. I’ve adapted the final post in that series to take account of intervening developments.
In 2019, I was worried that using this precedent to fight climate change will require some real soul-searching. Trump had violated a long-standing norm of presidential restraint in using emergency powers to address domestic policy. Whether to disavow or exploit that change …
The apparent death of an urgently needed clean energy and climate justice bill is a staggering loss for the country and the climate.
Because no Senate Republicans were expected to support the legislation, passage fell to Democrats, who hold a razor-thin majority in the U.S. Senate — and efforts to make an intraparty deal failed to emerge despite months of effort.
Senate Majority Leader Chuck Schumer (D-N.Y.) and Sen. Joe Manchin (D-W.V.) had reportedly reached an agreement on a prescription drug plan — a major sticking point in negotiations over the legislation, originally known as the Build Back Better Act. But Manchin effectively killed the bill’s clean energy provisions on July 14.
Left on the Senate’s cutting room floor appear to be up to $300 billion in clean energy provisions, including:
- Clean energy tax credits that would have incentivized clean manufacturing, including credits for …
Duke Energy, a major corporation with near-monopoly control over North Carolina’s electric grid, has outsized influence over the state’s decarbonization plan, which is now under review. The state legislature ordered the utility commission to make a 70 percent reduction in carbon emissions by 2030 and to reach carbon neutrality by 2050. Duke Energy has submitted a plan to the commission to meet those goals, but the plan fails to take affordability and equity into full account. What’s worse: Low-wealth people aren’t required — or, in many cases, even able — to participate in the planning process. They’re shut out.
For too many low-wealth North Carolina residents, energy bills are already too high. These communities have contributed little to climate change, but they face steep increases in electricity rates as the planet heats up and storms become more frequent and severe. There is a better …
The Center for Progressive Reform has joined close to 1,000 organizations and individuals in providing comments on California's long-awaited plan for achieving carbon neutrality, the Draft 2022 Scoping Plan Update (Draft Plan). Gov. Gavin Newsom gave the California Air Resources Board (CARB), the state agency tasked with coordinating the plan, a daunting challenge: achieving carbon neutrality by 2045 at the latest.
Our comments conclude that the state should (1) be more ambitious, (2) more explicitly achieve multiple objectives, including environmental justice, and (3) develop a supplemental plan that more specifically outlines the policy tools the state will employ to achieve its objectives.
Reduce Reliance on Fossil Fuels More Quickly
The Draft Plan's 2045 timeline — spanning more than two decades — will perpetuate fossil fuel use and associated pollution. The plan proposes deadlines for ending the sale of fossil-fuel based goods, like trucks, cars, and appliances, but assumes …
An article co-written by Center for Progressive Reform Member Scholar David Adelman and Attorney Advisor at the U.S. Environmental Protection (EPA) Jori Reilly-Diakun was selected for inclusion in this year’s Environmental Law and Policy Annual Review (ELPAR). ELPAR is a student-edited volume published annually in the August issue of the Environmental Law Reporter. It features abridged versions of selected articles with commentary from environmental experts.
Adelman, a law professor at the University of Texas, holds a Ph.D. in chemical physics and a law degree from Stanford University. Previously, he worked on environmental cases as a staff attorney for the Natural Resources Defense Council, promoting environmentally conscious practices. He was appointed to the U.S. Department of Energy’s Environmental Management Advisory Board and has served on multiple committees as a science expert.
His and Reilly-Diakun’s article, “Environmental Citizen Suits and the Inequities of …
Throughout the first half of 2022, the U.S. Environmental Protection Agency (EPA) has announced several actions in pursuit of the goals it laid out in its PFAS Strategic Roadmap — the blueprint it released last October outlining plans for addressing widespread PFAS contamination in the United States.
Per- and polyfluoroalkyl substances, or PFAS, are a group of more than 9,000 synthetic chemicals that pose serious risks to human health, including increased blood pressure and cholesterol levels, abnormal liver function, decreased birth weights, and certain cancers. Exposure to even extremely low levels of certain PFAS are unsafe for humans.
For most people, the primary source of PFAS exposure is drinking water contaminated by industrial discharge and runoff of PFAS-containing foam used by firefighters and members of the military. Through a comprehensive analysis of state and federal reports, the Environmental Working Group found PFAS contaminates thousands of water …
In West Virginia v. EPA, the U.S. Supreme Court slayed a phantom, a regulation that does not exist. Why? The justices in the majority could not contain their zeal to hollow out the EPA’s ability to lessen suffering from climate change in ways that impinge the profits of entrenched fossil fuel interests.
In doing so, the activist justices reached out to interpret the Clean Air Act despite the Court’s traditional restraint in deciding only cases where plaintiffs suffering individualized harm present a focused, redressable dispute. The Court has been particularly strict in foreclosing judicial review when environmental plaintiffs complain about prospective rules and actions. But today’s decision eagerly engaged with the speculative harms presented by West Virginia and coal companies. They were not harmed by a regulation that never took effect and that never will be implemented.
In its “what if” analysis, the …
This op-ed was originally published by The Revelator. Reprinted under Creative Commons license CC BY-NC-ND 3.0.
These days, the Federal Energy Regulatory Commission can no longer be described as a technocratic, under-the-radar agency that sets policies on energy infrastructure and market rules, rates, and standards.
As energy policy has become front-page news — driven by climate change and recent price volatility — FERC has begun updating its regulations to meet new exigencies. The agency has taken big steps this spring to support affordability and a transition to cleaner energy, including proposing updates to the way it permits natural gas pipelines and beginning to overhaul how regions plan and pay for the expansion of electricity transmission infrastructure.
These moves have provoked controversy because their stakes are high: Billions of dollars of infrastructure expenditures are on the table. What gets built, who pays, who hosts this infrastructure, and who makes …
This op-ed was originally published by Bloomberg Law.
In November 2021, over 70% of New Yorkers voted to amend the state's constitution to explicitly protect New Yorkers' fundamental right to clean air, clean water, and a healthful environment. New York thus joins Montana and Pennsylvania in enshrining robust constitutional environmental rights in the state constitution.
The first cases making claims under the new constitutional provision are now being filed, and states contemplating the adoption of environmental rights will be closely watching how courts define and apply New York's amendment. Those states include New Mexico, Maine, and Maryland.
Unsurprisingly, corporate defendants argue that the new right doesn't change anything. They claim that the environmental right is not self-executing, i.e., that the constitutional right provides no new protections and is instead defined and limited by pre-existing environmental laws. They could not be more wrong and courts in New …
This post was originally published on Legal Planet. Reprinted with permission. To learn more about the Federal Energy Regulatory Commission, its role in climate and energy justice, and how it can advance energy and regulatory democracy, see our April 2022 report.
The Federal Energy Regulatory Commission (FERC) has been called the most important environmental agency that no one has heard of. Recently, the D.C. Circuit decided two undramatic FERC cases that illustrate the agency's environmental significance. One involved a bailout to coal and nuclear plants, the other involved water quality.
The first case, Turlock Irrigation District v. FERC, involved FERC's role in approving licensing and relicensing of hydroelectric dams. It also raised an important issue about the role of state governments in approving federal projects and licenses.
Under the Clean Water Act, dam owners need to get certifications from state authorities that the dam will not …
