Cooling a Heat Wave with Paper Fans: Can the United States’ Rulemakings Cure Climate Change?
Commentary
By Stan Millan*
Introduction
Earth experienced a nearly 50% increase in warming gases since the start of the industrial age.[1] Consequently, debates about global warming, a subset of climate change, caused by greenhouse gases continually occur. The United Nations (UN), scientists, politicians, and the public routinely voice growing fear of a climate disaster on Earth, yet many governments have been slow to combat the threat.[2] While there are still some unknowns of when, where, and how bad effects of global warming could be, resistance is not futile. However, how do we forestall or avoid the inevitable (including climate wars)?
Well, the djinn is in the departments; bureaucrats can run the planet, and the people look to governments for cures. Thus, this Commentary will provide an overview of the U.S. climate change effort,[3] review the proposed regulative solutions, and provide alternative legal solutions to the new offending weaknesses in environmental rules, as the best tool we currently have. The next administration and others could be met with regulatory “sinkholes” created by the existing rules discussed herein.
I. The Climate Change Catalyst: Greenhouse Gases
Greenhouse gases (GHG) are warming gases, such as carbon dioxide (CO2), methane, and nitrous oxide (NOx), that trap heat on Earth by absorbing infrared light.[4] Measurements show increases to their natural occurrences due to human additions of such gases to the atmosphere.[5] An estimated fifty-one billion tons per year of GHG are added to the atmosphere.[6] Manufacturing, transportation, electricity, and heating and cooling are among the man-made contributions to GHG gases.[7] Natural sources also contribute to GHG, such as El Nino, volcanic eruptions, storms, and wildfires.[8] Since many GHG are long lived in the atmosphere, they cause overall warming of the planet.[9]
Scientists typically measure GHG in the atmosphere with laser beams, spectroscopy, and satellites.[10] For comparison purposes, scientists obtain historic GHG values by measuring gas bubbles in ice cores from Antarctica and Greenland.[11] Current measurements are presumably unbiased since they are taken in neutral or isolated locations, like Hawaii, rather than direct hot spot sources, like traffic or fires.[12]
Overall, National Aeronautics and Space Administration reports a 45% increase of GHG in the atmosphere since the preindustrial age.[13] The International Panel on Climate Change warns that there should be a warming limit by year 2100 of 1.5 degrees Celsius rise since the preindustrial age.[14] “Net zero” is the global goal to be achieved by 2050.[15] To achieve net zero, the amount of GHG emitted into the atmosphere must equal the amount absorbed on Earth via natural or artificial carbon “sinks,”[16] such as lakes, rain forests, carbon capture and sequestration (CC&S), and other methods.[17] Failure to address these stark statistics could cost a sustainable planet.
What is the U.S.’s plan to reduce GHG contributions? With a divided Congress, is the answer paper rules which are hopefully to become action forcing? The U.S. Securities and Exchange Commission (SEC), the Environmental Protection Agency (EPA), and the Council on Environmental Quality (CEQ) are among the federal departmental leaders in this effort. Together, these federal agencies prioritize ending reliance on fossil fuels, funding and marketing electric vehicles (EVs), closing coal fired powered power plants, and focusing more on climate change.[18] Additionally, the current U.S. President summarized his views in March 2024, stressing the need for solar power, battery manufacturing, clean energy workers, and an American Energy Corps.[19]
How will this all contribute to the U.S.’s objective to quell climate change? This Commentary will next explain and comment on the newest rules in place, then discuss doctrinal and juridical challenges to these rules.
II. Rules to Combat Climate Change
A roadmap of current regulatory processes includes imbuing socio-economic and environmental policy into large and small companies via environmental, social, and governance (ESG) policies and the SEC, instigating action forcing technology changes for transportation and creating natural gas and less or non-fossil power plants via the EPA, and encouraging more transparency and depth in federal agency-wide environmental decisions under the National Environmental Policy Act (NEPA). Thereby, these rules inspire private and company actors, pressure manufacturers and energy companies, and revolutionize agencies.
A. Environmental, Social, and Governance Policies
The United Nations founded ESG policies as Principles for Reasonable Investment.[20] Though voluntary, these principles are mantels for global investors, banks, shareholders, supply chains, and government agencies.[21] Large companies do not solely implement ESG policies, as their policies trickle down to smaller businesses through subcontracts with these large companies and from economic pressures from financial institutions.[22] Importantly, these principles serve as a basis for the SEC rules.[23]
While the “S” and “G” facets are certainly significant, the “E” is currently trending due to climate change driven rules, like the SEC’s required emission disclosures.[24] There are three categories, or “scopes,” of GHG monitoring and disclosures that a company should adopt when considering the “E” in their ESG principles.[25] Scope one includes direct emissions from a facility and its energy use.[26] Scope two contemplates downstream emissions from its suppliers, and scope three entails upstream emissions from users, or customers, which are the most difficult to measure.[27]
B. The SEC’s Enhancement & Standardization of Climate-Related Disclosures for Investors
The SEC regulates larger public companies, including regulation of their impact on climate change, as investors and agencies are increasingly interested in a company’s GHG emissions and related risks.[28] Thus, companies' accounting of their GHG emissions becomes crucial in the fight against global warming. However, accounting for these emissions is not an easy task for anyone, let alone business owners. Companies strive to complete energy audits in various areas, such as HVAC, lighting, leaks, energy use, or building occupancy times, to provide footprints for the business’s emissions.[29] Importantly, this does not include miles driven for business purposes, vendors’ energy use, and so forth, which agencies want companies to disclose.[30]
To better provide “consistent, comparable, and reliable—and therefore decision useful—information to investors” regarding “climate-related risks” in their investments, the SEC, on March 6, 2024, finalized their Enhancement and Standardization of Climate-Related Disclosure for Investors in public companies.[31] However, the final rule, effective on May 28, 2024, waters down the rules from their initial broader 2022 proposal.[32]
Disclosures to the SEC occur in registration statements; financial statements; annual reports, such as forms 10-K and 10-Q regarding financial performance and business activities, filed annually and quarterly, respectively;[33] risk business or management filings; or other tagged electronic filings.[34] These new SEC rules only mandate monitoring and disclosure of scope one (direct emissions from the business)[35] and scope two (indirect energy emissions resulting from the business’s actions), defined under the aforementioned ESG policies.[36] The SEC requires disclosure of scope one and two GHG emission equivalents for registrants of the largest public traded companies, meaning those with public floats or offerings of $75-$700 million or valued over $700 million, when the risks related to scope one and two emissions within its strategy, business model, and outlook, in the short (12 months) and long terms (over 12 months) are material.[37] In other words, the company must be 1) large and 2) present material risks associated with scope one and two emissions. What constitutes large companies and material risks must therefore be understood.
Larger companies may be either an Accelerated Filer (AF) or a Large Accelerated Filer (LAF), such as most utility, energy, oil and gas, and pipeline companies.[38] AF companies must file limited assurances; whereas LAFs must file reasonable assurances of their GHG emission disclosures.[39] The latter requires engineering or audit backups.[40] Thus, the new rule either exempts or phases in smaller companies which are non-accelerated filers that are neither smaller reporting companies (SRC), AF, nor LAF, and emerging growth companies (EGC).[41] Under federal securities laws, materiality is determined by whether a prudent investor would want to know the risk in order to buy/sell shares or vote on proxies.[42]
The proposed rule and enacted rule differ in several ways. For example, the SEC failed to adopt the requirement of scope three emission disclosures (indirect emissions from suppliers and customers) from the 2022 SEC proposed rule, but other jurisdictions like California and Europe, ESG programs, as well as investors, banks, markets, or prime contracts do require disclosure of all three scopes.[43] Also, unlike the 2022 proposed rule, the 2024 rule does not mandate disclosure of climate change strategies, transition plans, or board of directors’ expertise unless a company already enforces such plans or roles; however, any actual board oversight or management assessment roles for climate change are to be disclosed.[44] A company safe harbor is provided in the SEC rules to prevent strict liability lawsuits related to future-predictive, meaning not historic, climate related disclosures.[45]
Costs, expenditures, and losses associated with climate or natural disasters, such as hurricanes, tornados, drought, or sea level rise, are only required disclosures if they equal or exceed 1% of the companies’ financial statement disclosed worth.[46] Costs, expenditures, and losses, for carbon offsets or renewable energy credits (off-site reductions purchased by a company) are also required disclosures if such transactions are part of a company's disclosed climate related goals.[47]
Businesses should expect the new rule to be phased in between fiscal years 2025-2027.[48] However, litigation exists over the SEC rule by both industry and environmental interests that alleges issues of SEC authority and arbitrary and capriciousness.[49] As a result, the SEC paused the rule while litigation continues in the United States Court of Appeals for the Eighth Circuit.[50]
C. The EPA’s Regulation of Vehicles
The EPA professes in its new rules that vehicle emissions significantly contribute 50% of GHG emissions,[51] a compelling reason for its regulation of vehicles through clean fuel mandates and the cessation of tailpipe controls. On March 20, 2024, the EPA finalized rules on new emission standards for light duty and medium vehicles, effective in June 2024 and intended to be phased in between 2027-2032.[52] These vehicles include passenger cars, light trucks, and large passenger vehicles, but not heavy-duty vehicles.[53] The rules intend to cut-back vehicle NOx, particulate matter, and GHG emissions by 50% in 2032.[54] Manufacturers maintain the right to decide on the mix of technologies implemented to achieve this goal, including cleaner gasoline, hybrids, plug-in hybrids, and batteries for EVs.[55] The EPA issued a similar final rule for heavy duty vehicles, such as buses and trucks, on March 29, 2024.[56]
Litigation surrounds other rules regulating vehicles. For example, the United States Court of Appeals for the District of Columbia in State of Ohio et al v. EPA on April 9, 2024 held that the EPA’s waiver of California’s GHG standards on vehicles was valid, notwithstanding an equal sovereignty argument by other states that felt one state could not impose standards on another.[57] These California fuel standards can be more aggressive than the EPA’s standards and may lead to confusion and uncertainty.
Also, the Federal Highway Commission’s rule for states to set on-road CO2 emission reduction targets on national highways currently awaits review in the United States Court of Appeals for the Fifth Circuit after having been set aside on March 27, 2024, in Texas, et al v. U.S. Department of Transportation (DOT), et al., in the United States District Court of Northen Texas.[58] The lower court opined that Congress clearly confined the DOT’s authority to managing the state’s infrastructure, not measuring GHG emissions.[59]
D. The EPA’s Rules for Power Plants
On April 25, 2024, the EPA also finalized rules on GHG emission standards for existing coal, gas, and new methane power plants.[60] Plants operating past 2039 must meet CO2 standards equal to installation of CC&S at 90% efficiency by 2032.[61] If a plant cannot meet this standard, it must be retired by 2039.[62] Broader rules are being crafted for existing gas powered plants.[63]
Industry argues that CC&S requirements 1) create uncertainty for power plants, 2) impose too short deadlines, and that 3) the clean air standard is beyond the EPA’s power under West Virginia v. EPA, which limited the EPA in that it could not authorize “major rules” in the Clean Air Act (CAA) without express congressional authorization.[64] Alternatively, the EPA expressed that since CC&S technology is available, the rule is not so major.[65] Again, judicial challenges are expected.
The EPA recently revealed additional rules related to power plants. The “Good Neighbor” rule, announced on March 15, 2023, intends to reduce smog emitted from plants which negatively effects many upwind states.[66] The reduction of NOx, especially from coal powered plants, may result in their closure if plants cannot meet their emission limits by the agency’s set deadlines.[67] However, the Supreme Court temporarily stayed this rule.[68] Furthermore, the EPA’s methane reduction rules for crude oil and natural gas operations will significantly impact this energy sector via an intention to reduce flaring and increase monitoring of methane emissions.[69]
When renewable energy sources (RES) like wind and solar are more abundant, will the nation’s power grid be ready for them?[70] RES need integration into the power grids. This process is sure to take time, and it also necessitates more investments and funding in large batteries, transmission lines, and infrastructure for grid capacity and reliability for RES.[71] Due to these challenges, the year 2032 may come too soon.
E. New National Environmental Policy Act Rules
NEPA lists requirements for evaluating the significant impacts of various federal projects, actions, permitting processes, and so forth on the environment.[72] NEPA does not apply to most state actions unless these actions are federally funded or controlled, but it does apply to most federal actions.[73] It requires a federal agency to conduct these evaluations in an environmental assessment (EA) of its actions potential impacts on the environment which also determines whether an environmental impact statements (EIS) is required.[74] While there are some exemptions for minor activities, the majority of federal actions must be evaluated in an EA[75] which is often time consuming, expensive, and subject to public scrutiny.
The original NEPA rules lacked clarity regarding the threshold of an action’s environmental impact determined in the EA that in turn required an EIS for permitting purposes.[76] Specifically, the rules stated that a federal action that may “significantly impact” the environment necessitated an EIS.[77] Subsequently, the Fiscal Responsibility Act (FRA) of 2023 and proposed changes to NEPA §§ 4331 and 4332 altered NEPA rules that cover agency actions, including studies on permits.[78] These rules parallel the federal permitting process in the Building U.S. Infrastructure through Limited Delays & Efficient Reviews (BUILDER) Act within FRA § 321.[79] Now, a project must have a “reasonably foreseeable” significant impact on the environment to require an EIS.[80] This change probably requires a more direct assessment, unless an agency views any climate impact as significant. As long as continued climate change is “reasonably foreseeable,” the agencies may still have some factual policy discretion on where the cut-off point is for a decision on permitting.[81]
Furthermore, the 2022 phase 1 rule of NEPA already restored the need to assess the broad categories of indirect, secondary, and cumulative effects a specific action poses on the environment.[82] This latter inclusion of the category of “cumulative effects” alone arguably includes an action’s potential contribution towards global warming and may also oddly enlarge the threshold NEPA analysis in FRA § 106, as amended.[83]
On April 30, 2024, the CEQ finalized the Phase 2 rule of NEPA.[84] This agency tends to view the rules as more substantive and not just procedural guidelines.[85] Besides an ongoing focus on environmental justice, phase 2 rules illustrate that global warming analysis is now more explicitly stressed in agency environmental studies.[86]
Although NEPA itself does not mandate any particular action, it opens the door to a wise environmental decision.[87] Thus, future project disclosure of “excess” greenhouse gas emissions, could force agency alternatives for reduction or halting a project. However, it may be difficult to correlate project level emissions with reasonably foreseeable climate change effects absent assumptions and models.[88]
III. Challenges to Regulatory “Sinkholes”
A. The Looming Threat of the Major Questions Doctrine
The so-called “Major Questions doctrine’’ presents itself as a substantial challenge many of these rules must overcome. This jurisprudentially created doctrine means that unless Congress speaks clearly on its delegated authorization to agencies, courts will not allow an overly broad agency interpretation of vague statutes imposing economic and political significance.[89] As stated by the Supreme Court, “Congress does not usually ‘hide elephants in mouseholes.’”[90]
This doctrine does not appear to have a guiding, consistent legal framework with one possible exception. In West Virginia v. EPA—a case that stands for either 1) an unheralded agency action or 2) a transformative change in agency authority—the agency in question imposed a carbon emission reduction measure and a “generation shifting” approach meant to end reliance on coal power plants and shift to natural gas plants in its Clean Power Plan (CPP).[91] Failure to do so, would culminate in a power plant’s eventual closure. [92] Multiple states and affected industry companies challenged the EPA’s authority to enact and enforce these regulations.[93] The majority did not adopt Justice Gorsuch’s concurring opinion in West Virginia of a “clear statement” rule, meaning there is no requirement that Congress explicitly state their intention to delegate authority to one of its agencies in its legislation.[94] Instead, the majority adopted non-exclusive factors that together will remove an agencies’ authority to enforce rules of great political significance, affecting a large portion of the American economy or the domain of the states.[95]
Perhaps Biden v. Nebraska better articulated the doctrine when the Court held that absent clear congressional authorization to the Department of Education, the student debt forgiveness program of $500 billion that significantly impacted U.S. politics and economy was unauthorized.[96] Importantly, the Court reasoned that the program affected one-third of the nation’s discretionary spending.[97]
Also, the Loper Bright case demonstrates a recent eclipse in judicial deference to agency interpretations of the law, greatly impacting agency rule-making.[98] This case overruled the forty-year old “Chevron doctrine” that granted agencies the deference to interpret ambiguous statutes they administer.[99] The Chevron doctrine’s “two step analysis” asks in step one whether the statute is clear.[100] An affirmative answer in step one, which is no mean feat, ends the inquiry, whereas an negative outcome leads to step two.[101] This next step asks whether the statute is ambiguous, and if so, deference must be given to a permissible agency interpretation of the ambiguous rule.[102]
The Loper Bright majority rejected this deferential outcome, however, and held that courts must use “independent judgment” on the law, meaning statutory interpretations, as opposed to facts or policy. Therefore, the Court no longer defers to agencies’ legal interpretations.[103] A likely reduction in judicial deference for agencies’ reading of statutes will undoubtedly spell trouble for administration policies.[104] This does not mean that an agency’s interpretation is necessarily incorrect, such as when the statute is clear, and the agency follows the law; nor does it mean that agency interpretation is always legally best in the Court’s view.[105] Although under the facts in Loper Bright, the Department of Commerce may have erroneously interpreted that the law required certain commercial fishers pay for government observers onboard to collect fish conservation and management data, the Court remanded that specific issue, as the lower court simply deferred to the agency on it.[106]
B. Other Judicial Challenges and a Suggested Solution via State Legislation
This Commentary will next address other cases attempting to enforce or create the government’s rules intended to combat climate change.
Juliana v. United States,[107] pending against the EPA for eight years now, addresses whether the Government owes its people a sustainable environment under an arguably statutory, due process, or public trust duty.[108] However, cases and controversies in courts require legal standing: injury in fact, causation by a defendant, and judicial redressability.[109] The case failed a legal standing tests for plaintiffs, as their requested relief for an injunction requiring a plan change in the national energy system’s reliance on fossil fuels extended beyond the Court’s Article III redressability powers, according to the Ninth Circuit.[110]
The plaintiffs accordingly amended their case to ask for lesser declaratory relief declaring that the government’s fossil fuel energy system was illegal.[111] However, on May 1, 2024, the United States Court of Appeal for the Ninth Circuit dismissed the amended standing claim and remanded the case for dismissal without any leave to amend the complaint.[112] Similar state law-based cases are pending in other states, including Utah, Oregon, Hawaii, and Virginia.[113]
Additionally, nineteen “red states” have filed complaints at the Supreme Court under Its original jurisdiction, challenging other states’ climate-related tort lawsuits against fossil fuel companies on grounds of the unconstitutionality of attacks on national energy policy.[114] These types of actions indicate an influx of state level opposition to climate change litigation and ancillary problems for any set of proactive rules or plans. Any successful final results in remaining environmental cases may still amount to a paper plan that the newer regulations already envisioned. That result depends on how the U.S. implements any such plan in future administrations.
The exception to an impasse may lie in more statutes like Vermont’s Climate Superfund Cost Recovery Program,[115] modelled loosely after the EPA Superfund law.[116] Such cost recovery programs are meant to hold major fossil fuel companies responsible for the damage to the environment.[117] For example, responsible parties under Vermont’s act include extractors and refiners of fossil fuels who attributed more than one billion metric tons of GHG between the covered period of 1995-2024.[118] The law’s basic tenets include:
Strict liability for responsible parties’ climate change contributions and joint and several liability to other entities if under a single employer;[119]
Proportionate liability of each responsible party with its share of liability based on the ratio of their GHG emissions into the atmosphere to the aggregate of GHG emissions during 1995-2024.[120]
Compensation recovered from responsible parties is intended for cost of climate change adaption projects and qualifying expenditures.[121] These projects respond to the negative impacts of climate change, and broadly include costs for repairs, flood protection, upgrades to drainage, transportation system, and grids, recovery from extreme weather, medical care, and retrofitting infrastructure.[122]
While Vermont’s statute is new, other states such as New York, California, Massachusetts, and Maryland seemingly approve of the statute, as they each currently consider similar programs.[123] However, the program is not without potential critique. First, its limited class of “responsible parties” could be expanded.[124] While it is based on strict, joint and several liability, such liability only retroactively applies to 1995.[125] The program also includes cost recovery, but perhaps a critical flaw exists therein since most of the demand for compensation would be for past damage, not future technology upgrades likely needed for innovation projects in the future.[126] Finally, this is a state-made program that will likely be challenged by industry on grounds such as retroactivity, due process, causation, personal jurisdiction, ambiguity, and so forth, claims which the federal EPA Superfund statute overcame.[127]
III. Technology Enhancement as an Alternative to Rules
Implementation of the aforementioned various rules and plans will take time, if they survive their many potential court battles, resulting in the need for alternative tactics. This section will address more direct technology approaches to combat climate change through innovative and firmer options, including wind power, EVs, solar power, geoengineering, and “green” buildings.[128]
One promising innovative technology advancement for alternative energy exists in wind power, and the Federal Inflation Reduction Act and Infrastructure Investment and Jobs Act provides funding for research and development (R&D) in this area.[129] Specifically, the federal government subsidized $15.6 billion for renewable energy in 2022.[130] Wind in place of fossil fuels, on land and in coastal states’ waters, subject to States or Department of Interior permits, promises progress in the search for carbon neutral energy resources.[131] Additionally, advancements for EV’s is another possible replacement of GHG-producing energy sources.[132]
However, these alternatives are not without their pitfalls, as there is no such thing as “unobtainium”—something useful but infeasible to derive.[133] For example, wind presents potential costs, such as those to protected species, pipelines, and lands; and EVs create costs for downstream energy use, structures, and battery production.[134] Alternatively, solar improvements are proven more realistic in short term.[135] Unfortunately though, renewable solar energy lacks reliability when the sun is down, just as wind energy may be obsolete on windless days.[136] Thus, other renewables need backup from traditional utilities, as well as better storage capacity since due such renewables replenishment may outpace users’ consumption.[137]
Geoengineering methods intended to cool the planet, [138] such as gradual cloud seeding with dry ice or salt[139] and neutralization of carbonic acid precipitated out,[140] are mostly ignored due to their underlying risks. Besides complex engineering and crucial timing necessary to implement these methods, international agreements would also probably be needed.[141] These difficulties can be addressed with funding, study, and cooperation, no easy matter. Yet, these prospects require more sweat capital than found in the current American approach of mere paper rules.
One low hanging fruit of possible change may be found in buildings, estimated to be a source of 65% of all U.S. carbon emissions largely due to reliance on construction materials like concrete and steel known as “embodied” carbon materials.[142] Thus, green building organizations, spurred in part by the ESG movement, currently strive to upgrade their rating systems to address a more holistic approach that accounts for the effects that building construction and renovations have on global warming.[143] Such groups envision changes to building materials, preferred operations systems like heating and cooling, types of refrigerants used, and overall location of projects to minimize transportation needs.[144] This prospect is more of a social affair at the moment.
Overall, policy and rules without technology are futile. Innovative technology can at least buy us time to reach net zero.[145]
IV. Concluding Proposals
The viewpoint of administrations is crucial and arguably determinative to our Nation’s defense against global warming. The current administration, if its environmental policies had carried forward, would have probably continued with the tradition of defending and funding major rules and policies. Alternatively, a completely new administration may modify or rescind those rules. However, nothing will happen by abandoning the plan to chance. Our solutions can be divided into new federal laws or a modified Supreme Court stance on anti-deference, to new state laws, and finally, to innovation.
First, with a united Congress, which appears to be happening again,[146] more or different statutory progress may be achieved. For instance, 5 U.S.C. § 706, detailing the scope of judicial review for agencies, could be amended by adding to the opening clause, “the reviewing court shall decide all relevant questions of law . . . giving respect to agency expertise.”[147] This solution is in light of Loper Bright’s, relying largely upon the Administrative Procedure Act (APA) and separation of powers in overruling the Chevron judicial agency deference doctrine.[148] This would preserve Loper Bright’s judicial interpretation command but also accommodate its narrow dicta about respect for specific agency expertise in given scientific fields.[149] After all, the courts have long recognized agency expertise.[150] Even Loper Bright emphasized, however, that this recognition depends on which expert “field” is calling for respect.[151]
Even without APA legislation, it is plausible to argue that a court may resolve whether a disputed issue is within in an agency’s scientific field or only a matter of common terms. If the language in question is plain or inartful, what a statute or rule says should mainly be resolved by a court using cannons of interpretation.[152] If a law’s trade custom or usage involves technical language, that should also be resolved by a court, as in analogy to contract law.[153] However, if a term involves a scientific determination, e.g., “distinct populations” or protected subspecies, then court’s respect for the agency’s finding may be the “best” interpretation.[154] Thus, this ruling is more than mere deference.[155] It is more like “two-step” Loper Bright, wherein step one considers whether there is mere common language in dispute for the courts to decide.[156] Where there is no common word in dispute, and it is more inlaid in scientific or technical language, the court will move onto step two and impose judicial scientific respect to the agency so long as the field is within the agency’s bailiwick.[157]
Overall, in the future, Congress must be clearer in statutory delegations to agencies, and regulations must be more technical to survive proactive judicial scrutiny. Likewise, judicial suspicions of agency election year regulatory policy reversals without strong rationale could alone make it difficult for any new administration to undo or do more than refine recent environmental regulations.[158] But agency environmental “flip flopping” on some federal environmental rules constantly emerged in recent administration. For example, NEPA expanded its rules, and the Clean Water Act’s increased its regulation of “wetlands.”[159] Therefore, the political motivations behind such rules could become clouded or mooted by any new administration.
Second, the emergence of new federal laws is possible without a divided Congress. One such long range proposal is a Climate Superfund-like statute assessing atmospheric GHG restoration costs for companies that contribute to global warming, regardless of common law causation. That law could mirror the state laws like in Vermont.[160]
Finally, although federal funding aids technological innovation, at least for alternate energy,[161] it may be too little too late. Perhaps public education on realistic options is critical. When facing global threats, either you change and adapt, you leave the surface, or you pass on. That would be a strong message even if the crisis spreads over more decades. An American Energy Corps could then lead the march to more green buildings, green infrastructure, and geoengineering. Although there is no magic button to end feasibly fossil fuels now, more than a magic rule is essential too. After all, “[i]f one day we discover the need and technology to terraform a new planet to live on, why didn’t we start terraforming Earth first?”[162]
Appendix – Acronym Reference
Accelerated Filer (AF)
Administrative Procedure Act (APA)
Carbon capture and sequestration (CC&S)
Carbon Dioxide (CO2)
Clean Air Act (CAA)
Clean Power Plan (CPP)
CO2 equivalents (CO2e)
Council on Environmental Quality (CEQ)
Department of Transportation (DOT)
Electric vehicles (EVs)
Emerging growth companies (EGC)
Environmental assessment (EA)
Environmental impact statements (EIS)
Environmental Protection Agency (EPA)
Environmental, Social, and Governance policies (ESG)
Fiscal Responsibility Act (FRA)
Greenhouse gases (GHG)
Large Accelerated Filer (LAF)
National Environmental Policy Act (NEPA)
Nitrous Oxide (NOx)
Renewable energy sources (RES)
Research and development (R&D)
Smaller reporting companies (SRC)
Securities & Exchange Commission (SEC)
United Nations (UN)
Footnotes:
* By Stanley A. Millan, S.J.D., LEED AP, Adjunct Professor of Law at Loyola College of Law and Tulane Law School, member of the Louisiana and other bars, and in law practice for over 50 years. The views herein mostly are the author’s alone and are not intended to influence policy or elections. These views are no more dramatic than prime numbers.
[1] NASA, Carbon Dioxide, https://climate.nasa.gov/vital-signs/carbon-dioxide/?intent=121 (last visited Nov. 9, 2024)
[2] See American Psychological Association, Psychology and Global Climate Change: Addressing a Multi-faceted Phenomenon and Set of Challenges, Task Force Report (2010), https://www.apa.org/science/about/publications/climate-change. Climate change largely relates to human behavior. Id. However, doubt is cast for these climate concerns stemming from people not feeling risk now and thereby discounting the future, uncertainty, lack of cures, and socioeconomic fears. Id. See also Yale Experts Explain Climate Anxiety, Yale Sustainability (Mar. 13, 2023), https://sustainability.yale.edu/explainers/yale-experts-explain-climate-anxiety (stating that governments are usually shaped by their constituency).
[3] Of course, climate change is an international issue, but this Commentary focuses on recent U.S. attempts to quell climate change. It does not cover more proactive countries like Norway, New Zealand, Finland, Denmark, Sweden, Switzerland, Singapore, Austria, Iceland, or Germany. See Brianna Navarre, The 10 Countries Leading the Way on Climate Change, U.S. News (Apr. 9, 2024), https://www.usnews.com/news/best-countries/slideshows/countries-leading-the-way-on-climate-change?onepage. For instance, the International Tribunal for the Law of the Sea ruled in Request for an Advisory Opinion Submitted by the Commission of Small Island States on Climate Change and International Law, on May 21, 2024, that signature parties to the UN Convention on the Law of the Sea are obligated to go beyond the Paris Accord and to monitor and report risks, as well as to protect and preserve, the oceans from climate change impacts and acidification. See Claire Simpson, Int'l Tribunal Says Countries Must Do More To Protect Oceans, Law 360 (May 22, 2024), https://www.law360.com/articles/1839891/int-l-tribunal-says-countries-must-do-more-to-protect-oceans. However, the U.S. is not a party to this convention. Id. Additionally, despite the global efforts, no “best” country earns the top scores in the 2024 Climate Change Performance Index’s evaluation of emissions, renewables, and energy use. See Navarre, supra note 3.
[4] David L. Chandler, Explained: Greenhouse Gases, MIT News (Jan. 30, 2017), https://news.mit.edu/2017/explained- greenhouse-gases-0130.
[5] Id.
[6] Bill Gates, How to Avoid a Climate Disaster: The Solutions We Have and the Breakthroughs We Need 3 (Feb. 23, 2001).
[7] Global Greenhouse Gas Overview, U.S. EPA, https://www.epa.gov/ghgemissions/global-greenhouse-gas-overview (last visited Oct. 8, 2024).
[8] Xi-Liu Yue & Qing-Xian Gao, Contributions of Natural Systems and Human Activity to Greenhouse Gas Emissions, ScienceDirect (Dec. 2018), https://www.sciencedirect.com/science/article/pii/S1674927818300376.
[9] See chart at Climate Change Indicators: Greenhouse Gases, U.S. EPA, https://www.epa.gov/climate-indicators/greenhouse-gases (last visited Oct. 8, 2024). For instance, many of the longest-lived gases are NOx (109 years), CO2 (1,000 years), and some fluoride gases (1,000 years).
The global warming potential of each GHG varies in their lives and intensity and are estimated per gas. Understanding Global Warming Potentials, U.S. EPA (Mar. 18, 2024), https://www.epa.gov/ghgemissions/understanding-global-warming-potentials. They are also mathematically conformed to CO2 equivalents (CO2e). See C02 Equivalents, https://climatechangeconnection.org/emissions/co2-equivalents/ (last visited Oct. 25, 2024). CO2e is measured for a 100-year global warming potential; methane has twenty-five times the warming potential as CO2, so one unit of methane emissions equals 25 units of CO2e. Id..
[10] See Andrew Moseman, How Are Gases in the Atmosphere Analyzed and Measured?, MIT Climate Portal (Oct. 18, 2021), https://climate.mit.edu/ask-mit/how-are-gases-atmosphere-analyzed-and measured#:~:text=By%20shining%20different%20kinds%20of,light%2C%20and%20in%20what%20amounts.
[11] See id.
[12] See id.
[13] See also Alan Buis, The Atmosphere: Getting a Handle on Carbon Dioxide, NASA Science (Oct. 9, 2019), https://science.nasa.gov/earth/climate-change/greenhouse-gases/the-atmosphere-getting-a-handle-on-carbon-dioxide/.
[14] Global Warming of 1.5° C, IPCC Special Report (Oct. 8, 2015), https://www.ipcc.ch/sr15/.
[15] See Global Warming of 1.5° C, IPCC Special Report (Oct. 8, 2015), https://www.ipcc.ch/sr15/.
[16] What is a Carbon Sink?, ClientEarth (Dec. 22, 2020), https://www.clientearth.org/latest/news/what-is-a-carbon-sink/
[17] See Global Warming of 1.5° C, supra note 14.
[18] See infra Sections II.A–E.
[19] See Trever Higgins, et al., The Biden Administration Has Taken More Climate Action Than Any Other in History, Center for American Progress (Mar. 6, 2024), https://www.americanprogress.org/article/the-biden-administration-has-taken-more-climate-action-than-any-other-in-history/. For federal agency climate adaption plans, see Federal Sustainability Plan: Catalyzing America's Clean Energy Industries and Jobs, www.sustainability.gov/federalsustainabilityplans/resilence.html (last visited Oct. 7, 2024).
[20] What are the Principles for Responsible Investment?, Principles for Responsible Investment, https://www.unpri.org/about-us/what-are-the-principles-for-responsible-investment (last visited Oct. 16, 2024).
[21] See Aligned Incentives, Navigating mandatory Scope 3 emissions reporting in the EU, US, and beyond (Apr. 26, 2024), https://alignedincentives.com/mandatory-scope-3-emissions-reporting-eu-us-uk-international/.
[22] Matthew Karmel, Trickle-Down ESG: The Impact of ESG Initiatives on Small-and-Medium-Sized Businesses, E+E Leader (Mar. 8, 2023), https://www.environmentenergyleader.com/stories/trickle-down-esg-the-impact-of-esg-initiatives-on-small-and-medium-sized-businesses,3761
[23] See infra Section II.B.
[24] Thomas R. Burton, III et al., A Mintz ESG Primer: The Current State of Environmental, Social, and Governance Matters in American Corporations 13 (Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 2023); see infra section II.B.
[25] Scopes 1, 2 and 3 Emissions Inventorying and Guidance, United States Environmental Protection Agency (Mar. 8, 2024), https://www.epa.gov/climateleadership/scopes-1-2-and-3-emissions-inventorying-and-guidance.
[26] Scopes 1, 2 and 3 Emissions Inventorying and Guidance, United States Environmental Protection Agency (Mar. 8, 2024), https://www.epa.gov/climateleadership/scopes-1-2-and-3-emissions-inventorying-and-guidance.
[27] Id. Examples of indirect emissions include those associated with “the purchase of electricity, steam, heating, or cooling. See The Enhancement and Standardization of Climate-Related Disclosures for Investors, 89 Fed. Reg. 21668 (Mar. 28, 2024) (to be codified at 17 C.F. 210). EPA Center for Corporate Climate Leadership, Scopes 1, 2 and 3 Emissions Inventorying and Guidance, supra note 25 (stating that “[a]lthough scope 2 emissions physically occur at the facility where they are generated, they are accounted for in an organization’s GHG inventory because they are a result of the organization’s energy use.”).
[28] SEC Adopts Rules to Enhance and Standardize Climate-Related Disclosures for Investors, U.S. SEC (Mar. 6, 2024), https://www.sec.gov/files/33-11275-fact-sheet.pdf.
[29] See Manaswini Rao, How to Conduct a Commercial Energy Audit? A Step-By-Step Guide, Facilio (Aug. 31, 2023), https://facilio.com/blog/commercial-energy-audit/.
[30] See Aligned Incentives, supra note 21.
[31] The Enhancement and Standardization of Climate-Related Disclosures for Investors, 89 Fed. Reg. at 21334.
[32] Id.
[33] See Form 10-K, Legal Information Institute, https://www.law.cornell.edu/wex/form 10-k (last visited Oct. 23, 2024); See Form 10-Q, Legal Information Institute, https://www.law.cornell.edu/wex/form_10-q (last visited Oct. 23, 2024). This relates to the E in ESG from the UN Principles for Responsible Investment (2006). See supra Section II.E.
[34] See generally The Enhancement and Standardization of Climate-Related Disclosures for Investors, 89 Fed. Reg. at 21334 (noting that these electronic filings are searchable via Inline XBRL software tool).
[35] Examples of direct emissions include emissions associated with fuel combustion in places like the business’ facilities or from company vehicles. See id. at 21668; Scopes 1, 2 and 3 Emissions Inventorying and Guidance, supra note 25.
[36] See supra Section II.A.
[37] 17 C.F.R. § 229.1502 (2024).
[38] The Enhancement and Standardization of Climate-Related Disclosures for Investors, 89 Fed. Reg. at 21668.
[39] 17 C.F.R. § 229.1506 (2024).
[40] Id.
[41] Id. § 229.1505 (2024). SRC includes companies with $250,000 in public floats or those with less than $100 million in annual revenue. Id. EGCs include companies with annual gross revenues of $1.25 billion and no sold equity yet. Id.
[42] See id.
[43] Aligned Incentives, supra note 21.
[44] The Enhancement and Standardization of Climate-Related Disclosures for Investors, 89 Fed. Reg. at 21668.
[45] 17 C.F.R. § 229.1507 (2024).
[46] Id. § 229.1500 (2024).
[47] The Enhancement and Standardization of Climate-Related Disclosures for Investors, 89 Fed. Reg. at 21668.
[48] Id.
[49] See West Virginia v. EPA, 597 U.S. 697, 699 (2022). The Court struck down the Obama-era CPP as ripe and not clearly authorized by the Clean Air Act. The CPP mandated converting electricity generation from coal power plants to generation by natural gas or renewable energy. The Court’s ruling exemplifies the “major rule doctrine” over excessive agency rules, a doctrine which is not well defined. See State of Iowa et al. v. SEC, no. 24-1522 (8th Cir. Mar. 12, 2024).
[50] The Enhancement and Standardization of Climate-Related Disclosures for Investors, 89 Fed. Reg. at 21668.
[51] Multi-Pollutant Emissions Standards for Model Years 2027 and Later Light-Duty and Medium-Duty Vehicles, 89 Fed. Reg. 27842-01 (April 18, 2024) (to be codified at § 86.1811-27 Part (b)(6)(i)).
[52] Id.
[53] Id.
[54] Administration Proposes Strongest-Ever Pollution Standards for Cars and Trucks to Accelerate Transition to a Clean Transportation Future, EPA (April 12, 2023), https://www.epa.gov/newsreleases/biden-harris-administration-proposes-strongest-ever-pollution-standards-cars-and.
[55] Andrew P. Collins, EPA's New Rules Mandates Big Emissions Cuts, but Doesn't Eliminate Gas Cars, The Drive (Mar. 24, 2024), https://www.thedrive.com/news/epas-new-rule-mandates-big-emissions-cuts-but-doesnt-eliminate-gas-cars.
[56] Final Rule: Greenhouse Gas Emissions Standards for Heavy-Duty Vehicles – Phase 3, EPA (June 17, 2024), https://www.epa.gov/regulations-emissions-vehicles-and-engines/final-rule-greenhouse-gas-emissions-standards-heavy-duty#:~:text=On%20March%2029%2C%202024%2C%20the,model%20year%20(MY)%202027; Greenhouse Gas Emissions Standards for Heavy-Duty Vehicles—Phase 3, 89 Fed. Reg. 78, 29440 (Mar. 24, 2024).
[57] Ohio v. EPA, 98 F.4th 288, 314 (D.C. Cir. 2024). Under the Clean Air Act, the EPA waived tougher California vehicle standards in 1993 and 2013 and then reinstated the waivers in 2022 for non-gas vehicles by 2035 and rising requirements for zero-emission EVs in 2026. See Benjamin M. Barczewski et al., California and Clean Air Act (CAA) Waiver: Frequently Asked Questions, Cong. Rsch. Serv (August 30, 2024) https://crsreports.congress.gov/product/pdf/R/R48168. Otherwise, the EPA has final authority over vehicle emissions. 42 USC §7543(a).
[58] Texas v. U.S. Dep't of Transportation, No. 5:23-CV-304-H, 2024 WL 1337375 at *5 (N.D. Tex. Mar. 27, 2024).
[59] Id. at *11.
[60] EPA, Administration Finalizes Suite of Standards to Reduce Pollution from Fossil Fuel Sources (Oct. 23, 2023), https://www.epa.gov/newsreleases/biden-harris-administration-finalizes-suite-standards-reduce-pollution-fossil-fuel.
[61] Robert Zullo, New Rules Will Force Fossil Fuel Power Plants to Cut Pollution, Ohio Capital Journal (Apr. 30, 2024) https://ohiocapitaljournal.com/2024/04/30/new-epa-rules-will-force-fossil-fuel-power-plants-to-cut-pollution/; See 40 C.F.R. § 60 (2024).
[62] Id.
[63] Zullo, supra note 61.
[64] Id.; West Virginia v. EPA, 597 U.S. 697 (2022) (holding that the EPA did not have the clear statutory power to mandate power companies to switch from coal to natural gas electricity generation).
[65] Zullo, supra note 61.
[66] 40 C.F.R. pts. 52, 97 (2024).
[67] Id.
[68] See generally Ohio v. EPA, 144 S. Ct. 2040 (2024) (ordering emergency stays of the EPA’s federal emissions reduction rule, “the Good Neighbor Plan,” due to the EPA’s rulemaking violations, including its 1) lack of explanations, 2) not addressing commentators’ concerns, and 3) disregard of the Clean Air Act mandate that states are primarily responsible for preventing pollution).
[69] Carbon Pollution Standards for Existing Power Plants, 88 Fed. Reg. 16.820 (Mar. 8, 2024). See N. Dakota v. U.S. Dep't of the Interior, No. 1:24c–v–00066 (D.N.D. Sept. 12, 2024). However, the government and environmental groups have petitioned the Supreme Court in Okla. et al. v. EPA, et al., and in Continental Resources, et al., v. EPA, to block industry efforts to halt the implementation of the new methane rule covering new and existing oil and gas sources, increased monitoring for “super emitters, and stronger requirement to for flares. See Brief for Petitioner, Oklahoma v. EPA, No. 24A213, 2024 WL 4394716, (U.S. Oct. 4, 2024); Brief for Petitioner, Cont'l Res., Inc. v. EPA, No. 24A215, 2024 WL 4394717, (U.S. Oct. 4, 2024), The Supreme Court denied the emergency stay on October 4, 2024. Id.
[70] See How the Grid Operators Can Integrate the Coming Wave of Renewable Energy, McKinsey & Company (Feb. 8, 2024), https://www.mckinsey.org /industries/electric-power-and-natural-gas/our-insights/how-grid-operators-can-integrate-the-coming-wave-of-renewable-energy (last visited June 3, 2024).
[71] Id.
[72] EPA, What Is the National Environmental Policy Act?, https://www.epa.gov/nepa/what-national-environmental-policy-act (Sept. 4, 2024).
[73] A Citizen’s Guide to NEPA, Council on Environmental Quality (Dec. 2007), https://ceq.doe.gov/docs/get-involved/Citizens_Guide_Dec07.pdf.
[74] EPA, supra note 72.
[75] A Citizen’s Guide to NEPA, supra note 73.
[76] National Environmental Policy Act (NEPA) of 1969 §102(2), 42 U.S.C. § 4322(2).
[77] Id.
[78] Div. C, Title III, Pub. L. No. 118-5, 118th Cong. (2023); National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321, 4322. See also NEPA Amendments and CEQ’s Implementation in FRA Act of 2023, Council on Environmental Quality, https://ceq.doe.gov/laws-regulations/fra.html (last visited Oct. 25, 2024).
[79] Pub. L. No. 118-5, 137 Stat. 10 (2023) (enacting H.R. 3746, 118th Cong.).
[80] Id. See also Act of 2023, Council on Environmental Quality, https://ceq.doe.gov/laws-regulations/fra.html (last visited Oct. 25, 2024).
[81] See infra text accompanying notes 89-106 (discussing the major question doctrine).
[82] 40 C.F.R. § 1508.1 (2024).
[83] See Council on Environmental Quality, Guidance Documents, https://ceq.doe.gov/guidance (last visited Oct. 25, 2024).
[84] National Environmental Policy Act Implementing Regulations Revisions Phase 2, 89 FR 35442-01 (June 2, 2023).
[85] Id.
[86] See 40 C.F.R. § 1502.16(6) - (7) (2024); 40 C.F.R. § 1508.1(i)(4)(2024); National Environmental Policy Act Implementing Regulations Revisions Phase 2, 89 FR 35442-01 (June 2, 2023); Hannah Perls, Key changes in CEQ’s Phase 2 Regulations Implementing NEPA, Environmental & Energy Law Program: Harvard Law School (Aug. 8, 2024), https://eelp.law.harvard.edu/nepa-phase2-final/#:~:text=The%20Phase%202%20rule%20adds,proposed%20project's%20effects%20are%20significant.
[87] Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756 (2004).
[88] Brandon Tuck, et al., The New NEPA Regulations: What You Need to know About the "Significant Effects" the Final Phase 2 Rule Could Have on Permitting and Infrastructure Project, Vinson & Elkins (May 30, 2024), https://www.velaw.com/insights/the-new-nepa-regulations-what-you-need-to-know-about-the-significant-effects-the-final-phase-2-rule-could-have-on-permitting-and-infrastructure-project/.
[89] West Virginia v. Env't Prot. Agency, 142 S. Ct. 2587, 2605 (2022).
[90] Nat’l Fed’n of Indep. Bus. v. Occupational Safety & Health Admin., 142 S. Ct. 661, 669 (quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)); see also Ling Ritter, Elephants in Mouseholes: The Major Questions Doctrine in Lower Courts, 76 Stan L. Rev. 1381 (2024).
[91] West Virginia, 142 S. Ct. at 2610.
[92] Id.
[93] Id.
[94] Id .at 2617.
[95] Id. at 2620–21.
[96] Biden v. Nebraska, 143 S. Ct. 2355, 2373 (2023).
[97] Id.
[98] Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2247 (2024).
[99] Id. at 2273; Chevron, U.S.A, Inc. v. Nat. Res. Def. Council, Inc. 467 U.S. 837, 844 (1984).
[100] Chevron, 467 U.S. at 842–43.
[101] Id.
[102] Id
[103] Loper, 144 S. Ct. at 2273.
[104] See e.g., Robert Lafolla, GOP-Picked Judges Take Hard Line on Regulations Post-Chevron (1), Bloomberg Law (Sep. 4, 2024, 10:22AM), https://news.bloomberglaw.com/immigration/gop-picked-judges-take-hard-line-on-rules-after-chevrons-demise (discussing the new trend in anti-deference holdings resulting from a very narrow interpretation of Loper).
[105] Loper, 144 S. Ct. at 2263.
[106] Id. at 2273. The D.C. Circuit still has this interpretation issue on remand. See also Kisor v. Wilkie, 588 U.S. 558, 574-79 (2019) (holding that a non-deferential standard on an agency interpreting its own rule should apply, unless the rule is ambiguous, and the agency interpretation is within its expertise, is fair, reasonable, and official). It is probably in the author’s opinion just as likely that courts will not automatically defer to an agency’s interpretation of judicial case law over which an agency has no delegation of power.
[107] See Petition for a Writ of Mandamus to the United States District Court for the District of Oregon, Juliana v. United States., No. 6:15–cv–1517 (Feb. 2, 2024).
[108] Juliana v. United States, 947 F.3d 1159, 1164 (9th Cir. 2020). The plaintiff’s brought this lawsuit to attempt to force the U.S. to develop a plan to combat global warming. Id.
[109] Id. As stated, legal standing requires injury in fact, causation, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). These requirements can be met in most environmental cases, but when the legal issue is national or worldwide in scope, a plaintiff may have difficulty in showing injury beyond mere speculation. C.f., Juliana, 947 F. 3d at 1169. Also, if the relief requested is more than an injunction or penalties for redress, a court’s Article III powers will be stretched, as illustrated so far in the Juliana case. Id. The Juliana plaintiffs initially wanted a federal plan to combat climate change. Id. at 1165. However, this was too political for the courts. Id. at 1169-73. Thus, the Juliana plaintiffs now seek a constitutional or public trust mandamus for the government not to focus energy policy on fossil fuels. G.B. v. EPA, CV 23–10345–MWF, 2024 U.S. Dist. LEXIS 107578, at *13–15 (C.D. Cal. May 8, 2024). It is still a close question. Id.
[110] Juliana, 947 F.3d at 1170.
[111] See Response Brief of Real Parties in Interest to Petition for Writ of Mandamus, Juliana v. United States, No.24-684, No. 6:15–cv–1517.
[112] Juliana v. United States, No.24-684, D.C. No. 6:15–cv–1517, (9th Cir. July 12, 2024).
[113] See, e.g., G.B. v. EPA, 2024 U.S. Dist. LEXIS 107578, at *13–15.
[114] Brief in Opposition, Alabama v. California, Supreme Court No. 220158 (Aug. 21, 2024).
[115] Climate Superfund Act, S. 259, 2023–2024 Sess. (Vt. 2024).
[116] Compare Vt. S. Act 259 with 42 U.S.C. § 9601 (2018).
[117] Adam Aton & Lesley Clark, A Superfund for Climate? These States are Pushing for It, E&E News (Mar. 6, 2024, 6:20 AM), https://www.eenews.net/articles/a-superfund-for-climate-these-states-are-pushing-for-it/.
[118] Vt. S. Act 259 § 596(22).
[119] Id. § 598(a); Id. § 596(5)(A).
[120] Vt. S. Act 259 § 598(b). EPA GHG inventories and emission factors are to be calculate GHG emissions. Compare Vt. S. Act 259 § 598(d) with EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks (last updated April 11, 2024), https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks.
[121] Vt. S. Act 259 § 596(2); Vt. S. Act 259 § 597(1).
[122] Id.
[123] Aton, supra note 117.
[124] Vt. S. Act 259 § 598(a); Vt. S. Act 259 § 596(5)(A).
[125] Vt. S. Act 259 § 7.
[126] See infra Section III.
[127] See Stanley A. Millan, The Fifth Circuit’s Wetland Determination and Superfund Liability Requirements, 40 Loy. L. Rev. 581, 611, 619–24 (1994).
[128] In his book, How to Avoid a Climate Disaster, Bill Gates suggested that the following innovations are needed to avoid a climate disaster: hydrogen produced without emitting carbon; grid-scale electricity storage that can last a full season; electro fuels and biofuel; zero-carbon cement, steel and fertilizer; plant and cell-based meat and dairy; next generation nuclear fission, fusion, and carbon capture; and other changes. See generally Gates, supra note 6. Additional changes included underground electricity transmission; zero carbon plastics; geothermal energy; pumped hydro; thermal storage; drought and flood tolerant crops; zero carbon palm oil; and coolants that do not require Freon gases. Id. In various chapters, Gates discusses the innovation needed in each area. See e.g., id. at 169–75. This requires market incentives, such as funding for R&D, carbon tax and trade, state energy portfolios, funding shutdowns, zoning, lowering green premiums, and greener buildings. Id. Gates also views climate control is part of environmental equity and justice as the poorest may otherwise suffer the most with the least causal role. Id.
[129] Department of Energy, Administration Announces $27 Million to Innovate Manufacturing and Accelerate Deployment of Wind and Water Energy Technologies (Sept. 21, 2023), https://www.energy.gov/articles/biden-harris-administration-announces-72-million-innovate-manufacturing-and-accelerate. See H.R. 812, 118th Cong. (2023-24); Infrastructure Investment and Jobs Act, H.R. 3684, 117th Cong. (2021). Clean and efficient energy, electric transportation, and infrastructure are envisioned over time. Id. Renewable infrastructure must be pursued responsibility as mining and processing raw materials can otherwise cause environmental harm. See U.S. Department of Energy Office of Fossil Energy and Carbon Management, FECM Update (Sept. 2024), https://content.govdelivery.com/accounts/USDOEOFE/bulletins/3b2cdce (stating the Department of Energy Office of Fossil Fuel Energy and Carbon Management is providing hundreds of million dollars in funding, including for carbon capture and direct air capture projects).
[130] Reuters, U.S. Doubles Renewable Subsidies to $15.6 Billion in Last Several years, EIA Says (Aug. 2, 2023), https://www.reuters.com/business/energy/us-doubles-renewable-subsidies-156-billion-last-seven-years-eia-2023-08-02/.
[131] The White House, FACT SHEET: Biden-Harris Administration Hits Offshore Wind Milestone, Continues to Advance Clean Energy Opportunities (Sept. 5, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/09/05/fact-sheet-biden-harris-administration-hits-offshore-wind-milestone-continues-to-advance-clean-energy-opportunities/.
[132] Electric Vehicle Benefits and Considerations, U.S. Dep't of Energy Vehicle Tech. Off., https://afdc.energy.gov/fuels/electricity-benefits (last visited Oct. 24, 2024).
[133] Unobtainum is an engineering solution that requires scarce items or ones that are too expensive. Unobtainium in Technology and Culture: A Dual Perspective, KnowledgeNile, https://www.knowledgenile.com/blogs/unobtainium-in-technology-and-culture-a-dual-perspective (last visited Oct. 24, 2024).
[134] Advantages and Challenges of Wind Energy, Wind Energy Technologies Office, https://www.energy.gov/eere/wind/advantages-and-challenges-wind-energy (last visited Oct. 24, 2024). See, e.g., Nicholas Rapp & Matthew Heimer, The dark side of electric vehicles: Here are the countries where driving an EV can be dirtiest, Fortune (Oct. 9, 2023), https://fortune.com/2023/10/09/electric-vehicles-co2-emissions-by-country-china-coal-energy-tesla-byd-gm/. Further, renewable resources involve complex processes, such as the Bureau of Ocean and Energy Management which outlines the process for renewable energy projects involving planning, leases, NEPA site assessments, and construction. See generally 30 C.F.R. § 585 (2022); The White House, supra note 131. Additionally, offshore wind power faces litigation. See Stephen J. Odell, Oregon Offshore Wind Faces Early Legal Challenge, Marten Law (Sep. 26, 2024), https://martenlaw.com/news/oregon-offshore-wind-faces-early-legal-challenge (discussing a new Oregon Tribes' NEPA wind case and addressing twelve other wind energy project lawsuits).
[135] See The Problem with Renewables, and How to Fix It, Sympower, https://sympower.net/the-problem-with-renewables-and-how-to-fix-it (last visited Oct. 24, 2024).
[136] Id.
[137] Id.
[138] James Temple, What is Geoengineering—and why should you care?, MIT Tech. Rev. (Aug. 9, 2019), https://www.technologyreview.com/2019/08/09/615/what-is-geoengineering-and-why-should-you-care-climate-change-harvard/. See, e.g., Krystal Vasquez, Solar Geoengineering Could Wreak Havoc on the Planet, Sierra Club (Sep. 21, 2023), https://www.sierraclub.org/sierra/2023-3-fall/stress-test/solar-geoengineering-could-wreak-havoc-planet. See also Julia Jacobo et al., These Geoengineering Technologies Could Help Combat the Climate Crisis, Scientists, ABC News (Apr. 21, 2023), https://abcnews.go.com/US/geoengineering-technologies-combat-climate-crisis-scientists/story?id=98476205. This article includes cloud seeding and other methods to speed matters up. Id.
[139] Cloud Seeding, Atl. Oceanographic & Meteorological Lab'y, https://www.aoml.noaa.gov/hrd/hrd_sub/cseed.html (last visited Oct. 25, 2024)
[140] Jens Hartmann et al., Enhanced Chemical Weathering as a Geoengineering Strategy to Reduce Atmospheric Carbon Dioxide, Supply Nutrients, and Mitigate Ocean Acidification, Am. Geophysical Union (Feb. 3, 2015), https://agupubs.onlinelibrary.wiley.com/doi/full/10.1002/rog.20004.
[141] See Vasquez, supra note 138.
[142] Louise Kerr, A Guide to LEED v5: Overview and addressing decarbonization, in U.S. Green Building Council (Apr. 17, 2024), https://www.usgbc.org/education/sessions/guide-leed-v5-overview-and-addressing-decarbonization-12857220; New Residential Carbon Emissions, U.S. Department of Energy, Office of Efficiency & Renewable Energy, https://www.nrel.gov/docs/fy23osti/83049.pdf.
[143] See e.g., Mission and Vision, U.S. Green Building Council, https://www.usgbc.org/about/mission-vision; About Green Building Initiation, GBI, https://thegbi.org/about/.
[144] Id.
[145] Gates, supra note 6, at 176–78.
[146] Loper Bright Enters., 144 U.S. at 2295–96; See also Loper Ignites Senate GOP Regulatory Attack, Bloomberg Law (Aug. 13, 2024) (explaining that Republicans are moving the Senate for a codification of Loper Bright, while the Democrats are moving for a codification of Chevron, just the opposite).
[147] 5 U.S.C. § 706.
[148] Loper Bright Enters., 144 U.S. at 2254-58, 2261-62.
[149] Id. at 2294–95.
[150] See Perez v. Mortage Bankers Ass’n, 575 U.S. 92, 128 (2015); State of Wisconsin v. Weinberger, 745 F.2d 412, 421 (7th Cir. 1984) (holding the Court does not have authority in its NEPA function to resolve health effects of electromagnetic radiation); Fed. Power Comm'n v. Florida Power & Light Co., 92 U.S. 637, 645 (1972) (affirming the Federal Power Commission’s jurisdictional determination that multi-state electrical interconnections are in “interstate commerce”).
[151] Loper Bright Enters., 144 U.S. at 2273. For instance, charging commercial fishers for a federal observer is more legal in substance (of what is necessary and proper under the statute), while what federal quotas should exist to prevent overfishing a species sounds more technical in nature.
[152] Stephen Adams, Listing of Canons of Interpretation, https://isb.idaho.gov/wp-content/uploads/canons_w_commentary.pdf (last visited Oct. 24, 2024).
[153] See e.g., Contra Proferentem, Wex, https://www.law.cornell.edu/wex/contra_proferentem (July 2022).
[154] See Loper Bright Enters., 144 U.S. at 2294–95.
[155] This is akin to “deference” referenced in Skidmore v. Swift & Company. 323 U.S. 134, 139-40 (1944). Yet, this is really not deference at all; instead, it is a court’s finding that an agency’s interpretation is persuasive: “depend[ing] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade. . . .” Id. at 140. Loper Bright also endorsed such persuasiveness. See Loper Bright Enters., 144 U.S. at 2244, 2284, 2298, 2300.
[156] See Loper Bright Enters., 144 U.S. at 2294–95.
[157] Id.
[158] San Francisco Baykeeper v. EPA, 492 F. Supp. 3d 1030, 1038 (N.D. Cal. 2020).
[159] See supra text accompany notes 72-88; see also Sackett v. EPA, 598 U.S. 651, 657-59 (2023) for a brief history of the Clean Water Act’s expansion.
[160] Leah Sarnoff, Vermont Officially Becomes 1st State to Charge Big Oil for Climate Change Damage, ABC News Network (May 30, 2024), https://abcnews.go.com/US/vermont-bill-charge-big-oil-climate-change-damage/story?id=110148158. However, rather than solely for damages, it could require natural resource restoration to the air poisoned by GHG. Id.
[161] See supra text accompanying notes 130-132.
[162] Paraphrase of Neil deGrasse Tyson, Terraforming Mars with Neil deGrasse Tyson, YouTube (Nov. 28, 2019), https://youtube.com/watch?v=7XdkKMhAdn.
