Dispatches from COP22: Envisioning International Climate Policy in the Trump Era

By Melissa Powers, GEI Director and Jeffrey Bain Faculty Scholar & Professor of Law, Lewis & Clark Law School

The former head of the U.S. climate change delegation, Jonathan Pershing, held a brief press conference on Monday to discuss the future of U.S. climate policy. Although Dr. Pershing noted at the outset that he could not predict where U.S. international climate policy will go, because Donald Trump has not yet appointed a transition team to navigate the U.S. position regarding the global climate treaty, most of the questions from the press focused on the potential impacts of a Trump Administration. The press asked about U.S. follow-through with its funding commitments, the potential U.S. withdrawal from the Paris Agreement or even the United Nations Framework Convention on Climate Change (the treaty signed by George H.W. Bush and ratified by the U.S. Senate), potential retaliatory responses from the European Union through a border carbon tax if the United States does rescind its climate commitments, and the degree to which any U.S. withdrawal would affect other countries’ compliance. On the positive side, it seems clear that other countries are committed to following through with their own climate mitigation strategies. However, the questions also revealed the extent to which the United States would lose standing on a number of other global issues if it retreats from the climate treaty.

The Paris Agreement is arguably one of the most significant climate achievements of the Obama Administration. Before President Obama took office, the United States had developed a decidedly poor reputation due to the George W. Bush Administration’s repudiation of the Kyoto Protocol and continued resistance to binding climate mitigation commitments. When President Obama took office in 2009, hopes rose that the U.S. negotiating position would change significantly. However, many countries loudly opposed President Obama’s support for and behind-the-scenes negotiations of the Copenhagen Accord, a generally weak document that uses a bottom-up approach for securing countries’ climate commitments. While President Obama walked away from Copenhagen having broken a major logjam in the climate treaty-making process, his focus on negotiating the Accord with only a handful of major emitting countries left many developing countries feeling alienated and betrayed.

Since then, however, the Obama Administration’s persistent efforts to address climate change domestically (through, for example, regulation of greenhouse gas emissions from motor vehicles; support for renewable energy research, development, and deployment; and carbon dioxide emissions limitations from power plants) have strengthened the United States’ standing on the international climate stage. Most significantly, the Obama Administration’s bilateral negotiations with China led to a joint agreement for both countries to reduce greenhouse gases and increase renewable energy development. This agreement paved the way for the Paris Agreement—the first international climate treaty in which nearly all countries of the world have agreed to take action to address climate change.

It is hard to overstate how much the Obama Administration’s efforts have paid off in terms of good will for the United States. It is also hard to overstate how damaging another U.S. retreat from the international climate regime will be—not only to the world at large, but to the United States itself. Good faith participation in the global climate treaty-making process has allowed the United States to exert its influence on many countries in a positive and collaborative way. U.S. funding and support for technology innovations and developing country access to clean energy have allowed the United States to develop and maintain effective working relationships around the world. U.S clean energy companies have also benefitted from access to new markets as more countries increase their own use of renewable energy. If the United States retreats from the climate regime, other countries will step in to fill the gap. These countries will not only provide their own industries ready access to emerging clean energy markets; they will displace the United States as one of the more influential parties in the climate regime. In fact, China’s delegates have specifically said that the U.S. retreat will give China the moral high ground as it moves to occupy the space left vacant by the U.S.

A friend of mine commented the other day that the election of Trump will erode the United States’ status as one of the world’s superpowers, particularly if the Trump Administration follows through with its threats to withdraw from the Paris Agreement and the larger climate treaty regime. Perhaps that’s hyperbole. But at the end of the press conference, the man sitting next to me revealed how happy he is with Donald Trump’s election. “I’m Russian,” he said.

Turning Up the Heat: Nations Cut Use of AC Chemicals to Stop Climate Change

By Joni Sliger, Energy Fellow

President Obama has pushed a strong climate change agenda,
including renewable energy deployment and international action.
Credit: The White House

Earlier this month, even as U.S. efforts to  address greenhouse gas emissions from the energy sector remained locked in a legal battle, the U.S. and almost 200 other countries formed a new international agreement to combat climate change. In Kigali, Rwanda, world leaders met this month for the 28^th Meeting of the Parties to the Montreal Protocol and agreed to monumental cuts in the use of potent greenhouse gases known as hydrofluorocarbons.

Hydrofluorocarbons, or HFCs, are popular refrigerants used for air conditioning systems and refrigerators. HFCs have been the primary chemical replacement for ozone-depleting chlorofluorocarbons, which themselves were eliminated by the Montreal Protocol (although a new NASA study notes that HFCs also deplete ozone). However, HFCs are also known for their strong greenhouse gas effects; HFCs are 120 to 12,000 times as potent as greenhouse gases than carbon dioxide.

Under the Kigali Accord, countries agreed to specific timetables for freezing HFC production and for reducing consumption thereafter. The timetable varies: by 2019, developed countries must reduce use by 10% from 2011–2013 levels, and by 85% by 2036; many developing countries (including China and Brazil) agreed to peak use by 2024, and other developing countries (including India and Pakistan) agreed to freeze use by 2028. The relaxed timetable for some countries recognizes in part that air conditioning could be more expensive with chemicals besides HFCs or CFCs and that air conditioning may be a necessity rather than a luxury in heat-stricken areas. Admirably, many developing countries voluntarily joined the midlevel timetables rather than the lowest level they could have chosen; leaders noted that combatting climate change had become a greater prerogative than expanding access to luxuries like air conditioning or refrigeration. 

By cutting production and consumption of HFCs by over 80% by 2050, the Kigali Accord promises to avoid more than 80 billion metric tons of CO₂-equivalent, possibly avoiding up to 0.5°C of climate change. That is a significant amount for the world to avoid. Recall, for comparison, that under the United Nations Framework Convention of Climate Change, nations agreed that a rise of 2°C over preindustrial levels is the amount of change the world must avoid to prevent catastrophic climate change. Unfortunately, earlier this year, the atmospheric concentration of CO₂ exceeded 400 ppm, the level scientists say is necessary to avoid 2°C of climate change. Even though the world may already be on set to exceed the 2°C goal, however, the scenarios predicted by the Intergovernmental Panel on Climate Change become increasingly catastrophic with greater temperature increases. The Kigali Accord may not be enough for the world to reach its original goal of avoiding 2°C, but it still represents a significant and major action in the fight against climate change.

Proponents note the Kigali Accord could have as much or more impact than last year’s Paris climate deal. Secretary of State John Kerry said, “It is likely the single most important step we could take at this moment to limit the warming of our planet and limit the warming for generations to come.” In large part, this is because the agreement represents a mandatory action for nations: specific and clear cuts in HFCs. In contrast, under the Paris agreement, countries’ actions to greenhouse gas emissions are purely voluntary.

Although only voluntary, the Paris Agreement is legally binding as an international treaty; it is not, however, a treaty under the U.S. Constitution. By framing it instead as an executive agreement under U.S. law, President Obama avoided having to seek the Senate’s ratification of the Paris Agreement.

Unfortunately, President Obama might need to seek the Senate’s unlikely and reluctant ratification of the Kigali Accord. Legally, it is unclear whether he needs to. The Kigali Accord amends the Montreal Protocol; the U.S. already signed and ratified the Montreal Protocol. Some reporters claim that an amendment to an already ratified treaty does not need to be ratified. Others note that it is unclear whether the Obama administration believes it needs ratification. A State Department representative commented that the Department is currently reviewing the Accord to assess whether President Obama needs to submit it to the Senate or not. Several law professors cited in the news say that ratification is necessary, both under international law and U.S. precedence. Others say it only needs ratification to be legally enforceable under U.S. domestic law. One law professor summed up the debate this way: “The president is going to have to go to the Senate or face a lot of political heat.”

Even without ratification, President Obama can push for compliance through more executive actions. Indeed, the White House has already celebrated getting commitments to reduce HFC use from the private sector. With or without ratification, observers expect HFC reductions to continue.

While the U.S. Clean Power Plan languishes in the courts, President Obama is continuing to push his climate change legacy. The Kigali Accord promises real, measurable avoided emissions in the years to come.

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Climate and Energy Initiatives From President Obama's Final SOTU: Are they Enough?

By Tyler Johnson, GEI Policy Extern

                                                                                      

President Obama addressed the nation this past Tuesday with his final State of the Union Address. The President made a number of comments regarding climate change and energy. Specifically, President Obama’s address mentioned 1) the need to revise the nation’s federal coal leasing program; 2) the need to transition the nation’s transportation system for the twenty-first century; and 3) the need to advance renewable energy development.

Coal Leasing on Federal Lands

Most significantly, Obama called for a “push to change the way we manage our oil and coal resources, so that they better reflect the costs they impose on taxpayers and our planet.” The administration followed up the claim on Friday by issuing an Executive Order to overhaul the coal mining leasing process on federal lands. The stated purpose of the Order is to “consider whether and how the program may be improved and modernized to foster the Orderly development of Bureau of Land Management (BLM) administered coal on Federal lands in a manner that gives proper consideration to the impact of that development on important stewardship values, while also ensuring a fair return to the American public.” The Order calls for a significant review of the Federal coal-mining program and a temporary pause on new leases. The US Geological Survey will also monitor greenhouse gas emissions from all resources extracted on federal lands.

According to the Executive Order, federal coal represents 41% of U.S. coal production and 10% of total US greenhouse gas emissions. Furthermore, coal royalties, currently set at 12.5% for coal surface mining, are remarkably lower than the royalties received for offshore oil and gas exploration (18.75%), and don’t adequately account for environmental costs. A Congressional report concluded that the government is missing out on billions of dollars in lost revenue due to the low royalty rate (and additional accounting failures). The Executive Order directs BLM to address whether the current rate of return on leases is fair and whether it adequately accounts for externalities such as environmental harm. A rate adjustment could thus potentially be a win for both the environment and taxpayers.

While this is a step in the right direction, more must be done. For one, enough leases already exist on federal lands to maintain the current rate of coal production for another 20 years. Recently, Parties of the UN Climate Change Conference in Paris articulated that current science suggests that zero global emissions must zero out somewhere between 2030 and 2050 to hold global warming at 1.5 degrees Celsius above pre-industrial levels. Anything above a 1.5 degree global increase is predicted to come with drastic effects for humanity, including rising sea level, increased storm intensity, drought, and more. As unrealistic as it seems to achieve zero global emissions in the next 20-30 years, that’s no excuse to not do everything possible. Due to these warnings, many groups are calling for a complete end to fossil fuel extraction on federal lands, which doesn’t seem likely from this order.

Republican backlash is another cause for concern. The temporary pause on federal coal leases and the promise of a thorough review still remain in doubt with the looming 2016 presidential election. Republicans are reportedly furious over the Order, raising legitimate concerns that a Republican victory for the White House will result in the Executive Order being withdrawn.

A 21^st Century Transportation System?

In addition to a federal coal mining lease overhaul, President Obama also referenced the need to transition to a 21^st century transportation system. On Friday, the White House released plans to invest $4 billion in automated car research. The administration has been active in other transportation initiatives as well. For example, Beyond Traffic is “an invitation to the American public—including the users, developers, owners, and operators of the transportation network and the policy officials who shape it—to have a frank conversation about the shape, size, and condition of that system and how it will meet the needs and goals of our nation for decades to come.” Also, the Smart City Challenge offers $40 million for one mid-sized city to “put forward bold, data-driven ideas to improve lives by making transportation safer, easier, and more reliable.”

These transportation initiatives sound great because they address important concerns regarding how our cities are positioned to adapt to climate change and the new energy economy. However, the actions taken by the administration again only represent first steps. Much more needs to be done. As scientists repeatedly warn, we don’t have time to wait on action. Obama was correct in stating that we need an effort akin to the space race in the 1960s. These policy initiatives, by themselves, are not enough to jumpstart such an effort. One can hardly blame the administration, however. Executive action alone can only achieve limited progress. Congress must pass new laws to effectively deal with greenhouse gas emissions. Unfortunately, up to now the current Congress has been unwilling to take action to legitimately address greenhouse gas emissions or climate change.

Advance Renewable Energy

After criticizing climate deniers, President Obama’s State of the Union address also offered an economic argument to justify adopting policies to advance renewable energy development. President Obama called for American companies to be at the forefront of the new energy economy.

The modern economy thrives on innovation. If we as a nation give into special interest groups such as coal and big oil, who argue for the status quo, we are denying ourselves a fantastic economic opportunity by inhibiting technological innovation in the new energy economy. Investing in renewable technologies will both help ensure a more sustainable environment AND help the economy grow. While the scientific alarm for a potential environmental catastrophe is enough to act on climate change, economic benefits should not be ignored as another justification for embracing renewable energy development. As an added benefit, making the economic argument more often may help persuade climate skeptics that encouraging renewable energy development is sound policy.

White House Rejection of Keystone Embraces U.S. Leadership Role in Tackling Climate Change

When is a Pipe Just a Pipe?

By Brandon Kline, Energy Law Fellow

Late last week, President Obama rejected the proposed Keystone XL Pipeline Presidential Permit application, even as project sponsor TransCanada requested the U.S. Department of State to suspend review of its application just days earlier.

Had the application been approved, the pipeline would have stretched 875 miles, from Western Canada and parts of Montana and North Dakota to the existing Keystone Pipeline system at Steele City, Nebraska. There it would have transported approximately 800,000 barrels a day of petroleum to existing refineries in the Texas-Gulf Coast area.

Because TransCanada’s project crosses international borders, the company was required to file an application for a Presidential Permit. The legal standard for approval of permits of this sort lies with whether the project will serve the U.S. national interest. See generally Executive Order 11423 on Pipelines (Aug. 1968); also see Executive Order 13337 on Issuance of Permits With Respect to Certain Energy-Related Facilities and Land Transportation Crossings on the Inter-national Boundaries of the United States (April 2004) (directing the Secretary of State to authorize those border crossing facilities that the Secretary has determined would “serve the national interest.").

The Obama Administration concluded that one more pipeline project would not serve American interests because it would not significantly boost our economy and strengthen energy security, nor would it decrease gas prices. In other words, “sometimes a pipe is just a pipe” (apologies to Dr. Freud).

Proponents of TransCanada’s application asserted the national interest threshold was met because the new pipeline would provide a secure, reliable source of Canadian crude oil to meet the demand from U.S. refineries and markets, supplying “critically important market access” to developing domestic oil supplies in Montana and North Dakota, and “reducing U.S. reliance on crude oil supplies from Venezuela, Mexico, the Middle East and Africa.” In writ, the Keystone XL Pipeline would have expanded the current system, and increased production of Alberta’s oil sands (a mixture of sand, water, clay and bitumen). Bitumen is oil that is too heavy or thick to flow or be pumped without being diluted or applying new steam extraction technologies.

As Keystone underwent review pursuant to the National Environmental Policy Act, interagency comments were submitted by eight federal departments and agencies, including the U.S. Environmental Protection Agency. EPA noted that the "foundational facts from which analysis of Keystone XL proceeds is that oil sands crudes have significantly higher lifecycle greenhouse gas emissions than other crudes. If GHG intensity of oil sands crude is not reduced, over a 50 year period the additional CO2 from oil sands crude transported by the pipeline could be as much as 935 million metric tons.” Keystone would have produced 17% more pollutants than conventional oil extraction. This is the equivalent of seven coal-fired power plants operating around the clock, or having 6.2 million cars on the road for 50 years, according to the National Resources Defense Council.

The nearly 1,700 mile-long project came to symbolize the partisan fervor over fossil fuels. “And all of this obscured the fact that this pipeline would neither be a silver bullet for the economy, as was promised by some, nor the express lane to climate disaster proclaimed by others,” Obama said.

At bottom, the political struggle over Keystone is a climate policy debate about what is the smartest way to invest in job creation and economic growth. To be sure, a construction project of continental scope results in near-term job gains. However, State Department analysis concludes that Keystone comes up short on long-term economic potential, ultimately creating only 35 permanent jobs once completed.

Meanwhile, a new study indicates global emission controls could save the U.S. economy trillions of dollars. Chelsea Harvey writes in the Washington Post that there is “a strong economic reason for the United States to support a strong international agreement to curb carbon emissions.”

The comprehensive report conducted by New York University School of Law’s Institute for Policy Integrity finds that “there are trillions of dollars to be gained at home from other countries’ climate mitigation efforts.” The report says “that other nations’ existing climate policies, by lessening the impacts of climate change, have already benefited the United States to the tune of more than $200 billion, and additional pledges” could save the U.S. $10 trillion more by the middle of the century.

America needs to invest in sustainable, clean jobs created from a clean, renewable energy foundation. Building this foundation requires taking steps to cut greenhouse gas emissions. We’ll never get there by constructing one more pipeline and continuing along the old-school path of a fossil fuel economy.