Tag: climate change

United Nations: A Renewed Focus on Climate Change This Week in New York

Covington BUrling Law Firm

Regardless of your perspective on the subject, expect significantly increasing media and public attention around climate change and greenhouse gas emissions this week.

The Secretary General of the United Nations, Ban Ki-moon, is convening a Climate Summit on Tuesday in conjunction with the meeting of the UN General Assembly in New York.  More than 120 world leaders are expected to attend this gathering, making it significant and historic to have so much focus on this issue.  The Climate Summit prompted activists to put together a People’s Climate March on Sunday calling for action by the assembled world leaders.  Hundreds of thousands of people reportedly joined the march in New York — creating media and popular momentum– and demonstrations also occurred in cities around the world.

This focus on climate change has come to be known as Climate Week in New York City.  One of the most notable features of it is the role that businesses are playing in promoting private sector innovation for clean energy solutions, accounting for their climate-related activities, and even advocating for clearer governmental climate emissions policies.  The week is filled with dozens of meetings and forums featuring such business approaches.  Today, for example, Apple’s CEO Tim Cook will be joining Climate Week opening day events to discuss his company’s approach, and dozens of CEOs will be attending a Private Sector Forum tomorrow at the UN.  These meetings include financial firms and investors, as well as greenhouse gas emitters.  The Carbon Disclosure Project (CDP) will be at the New York Stock Exchange on Tuesday to release its annual survey of company reporting on carbon emissions, showing that some 70% of the S&P 500 companies voluntarily report on their carbon emissions.  Several major companies are expected to announce commitments to power 100% of their operations from renewable energy.

The business discussions in New York will increasingly center on a call for companies to put an internal price on carbon, as a complement to efforts to have governments establish regulatory mechanisms — such as emissions limits or trading schemes — that likewise impose such a price.  A carbon price is believed to sharpen the business focus on climate change risks, costs and opportunities.  The UN Global Compact and the World Bank are promoting leadership criteria for companies based on such reporting.  Indeed, a just released report  from the Carbon Disclosure Project (CDP) shows that some 150 companies have developed internal carbon pricing schemes.  It would not be surprising for calls for company pricing policies to increasingly appear in future shareholder resolutions.

This increasing private sector focus complements the accelerating pace of the official UN negotiations.  Interestingly, the Climate Summit is merely an effort by the Secretary General to enhance the focus on the climate treaty negotiations, which are happening elsewhere.  The next step is the annual meeting of the parties of the UN Framework Convention on Climate Change in Lima, Peru in early December to continue with drafting a framework.  Countries will then submit emissions reduction commitments in the Spring, with an effort  to reach a global agreement at the Paris meeting of the parties in December 2015.  Yesterday, the Major Economies Forum of the largest nations met to tackle these issues and discuss next steps to accomplish such an agreement.  Several observers see this meeting as a demonstration of the increasing importance of this issue, as for the first time that meeting consisted of country Foreign Ministers (Secretary of State Kerry attended) rather than simply energy or environmental officials.  Issues around addressing the growing emissions from rapidly developing economies, such as China and India — which currently sit outside of the existing UN framework — remain central to the ultimate success of this endeavor.

Key to the United States’ position are the significant emissions reductions that would be derived from the Environmental Protection Agency’s recently proposed rules for existing power plants. They are a central piece in fulfilling the President’s international pledge in 2009 that the United States would reduce its carbon emissions by 17% by the year 2020.  The President’s speech this week will be important in setting a trajectory for how much further the United States may be willing to go after 2020.

The UN’s chief climate change official, Christian Figueres, speaking at a small gathering yesterday, regards the week’s activities as an indication that the climate issue may be reaching a tipping point.  She characterizes the public demonstrations as a statement that the nations of the world “must” address climate change, the business actions as a demonstration that governments “can” address climate change, and believes that governmental leaders are now poised to assert that they “will” address it.  While the outcomes may not be fully settled for some time, companies can expect to see a renewed public focus on these issues and will likely find that they present a range of increasing risks and opportunities.

ARTICLE BY

Gary S. Guzy
OF
Covington & Burling LLP
© 2014 Covington & Burling LLP

Two Polar Bear Decisions in Two Weeks: Their significance for Climate Change, Endangered Species and Project Development

The National Law Review recently published an article by Lowell M. Rothschild with Bracewell & Giuliani LLP titled, Two Polar Bear Decisions in Two Weeks: Their significance for Climate Change, Endangered Species and Project Development:

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The end of February saw a flurry of news regarding the status of the Polar Bear under the Endangered Species Act.  On February 20, the US Fish and Wildlife Service reissued its so-called “4(d)” rule regarding the Bear, outlining the rules “necessary and advisable” to protect it.  Nine days later, the U.S. Court of Appeals for the DC Circuit upheld FWS’s listing of the Polar Bear as a “threatened” species under the ESA.   Each development is significant in its own right; together, they offer solid guidance as to where FWS is heading on using the ESA to address climate change and how climate change is affecting the listing of potentially endangered species.

Endangered v. Threatened

The latter question was at the heart of the litigation decided by the DC Circuit.  There, the court faced the question of whether FWS correctly identified the Polar Bear as “Threatened”, rather than “Endangered”.  Under the ESA, the difference between the two is essentially whether the species is currently in danger of extinction (Endangered) or whether it is likely to become endangered in the foreseeable future (Threatened).

The Polar Bear’s Listing

The Polar Bear is heavily dependent on sea ice, and climate change is decreasing the amount of arctic sea ice.  FWS’s decision that the Bear was Threatened, rather than Endangered, was based, essentially, on the Service’s view of how quickly climate change was causing arctic sea ice to melt.  If it is happening “quickly,” FWS would list the Bear as Endangered.  If it is happening very slowly, FWS wouldn’t list the Bear at all.  FWS took the middle path, deciding that climate change is happening fast enough that those species face the threat of extinction in the foreseeable future.  Given the limitations of climate science, FWS chose 45 years as the “foreseeable” future and the Court upheld FWS’s use of this timeframe.

What the Listing Shows about FWS’s View of Climate Change’s Impact on Species

The Court upheld FWS’s listing decision, doing so in the face of challenges on both sides of the decision –  some argued that the Bear shouldn’t be listed at all and others argued that it faces an imminent risk of extinction and should be considered Endangered, not just Threatened.   The takeaways from FWS’s listing decision and the court’s refusal to strike it down are that, at least for the ESA:

  • climate change is occurring
  • it will have significant adverse impacts to species in the foreseeable future
  • those impacts are still reversible

The 4(d) Decision

So, since FWS has determined that climate change is adversely affecting species, will it use the ESA to regulate climate change?  That question was at the heart of the other major development: FWS’s issuance of the “4(d)” rule for the Polar Bear.  At a very high level, a 4(d) rule outlines the steps FWS believes are necessary and advisable to protect a Threatened species.  These steps can include either restrictions on public action, such as limitations on development in the species’ habitat, or the allowance of otherwise prohibited activity, such as permitting certain specified, limited adverse impacts to the species.

What the Polar bear 4(d) Decision Means for Using the ESA to Regulate Climate Change

For the Polar Bear’s 4(d) rule, the main public policy question was how to address activities outside of the Bear’s range that increased the potential for climate change.  Since we know the Polar Bear needs sea ice to survive and that climate change is reducing arctic sea ice, would FWS’s 4(d) rule attempt to protect the Bear from further reductions in sea ice by addressing activities that affect the climate change? Boiled down to its core, would the 4(d) rule require greenhouse gas-emitting projects far from the Polar Bear’s range to obtain an ESA permit for those emissions?  FWS’s rule says no.

The Takeaways

The rule is consistent with FWS’s prior 4(d) rule for the Polar Bear, issued in 2008 and struck down by US District Court for the District of Columbia in 2011.  The rule is also consistent with Bush Administration guidance addressing how FWS should examine the ESA impacts of GHG emissions.  It is therefore a reliable and useful marker as to FWS’s view of the ESA.  The new 4(d) rule is more likely to be upheld than the prior one – the prior one was struck down for largely procedural reasons and for a few inadequate findings which FWS appears to have since corrected.

The takeaway here is that FWS has taken a consistent position over time on the use of the Act to regulate GHGs. The Service has used and will continue to use the Act to protect species affected by climate change, but only from actions taken against them directly or in their range – it will not use the ESA to regulate GHGs on a national or global level.

© 2013 Bracewell & Giuliani LLP