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Peabody Energy Hires a Well-Known Gun, but Still Shoots with Blanks

December 6, 2014

David Doniger, Director, Climate and Clean Air Program, Washington, D.C.

Professor Laurence H. Tribe has had a long and distinguished career as a progressive legal thinker and a tireless advocate for such worthy causes as freedom of speech and LGBT rights. He won a 1982 Supreme Court victory for California and NRDC upholding the state’s moratorium on new nuclear power plants.  He has also chosen to represent corporate polluters on more than a few occasions, for example, in unsuccessful challenges to the constitutionality of Clean Air Act air quality standards and Superfund clean-up requirements. Now he’s lending his name and fame to coal-giant Peabody Energy in comments attacking EPA’s proposed limits on dangerous carbon pollution from the nation’s power plants, known as the Clean Power Plan

Admittedly, these are only comments to EPA, not a brief to the Supreme Court, and so it’s possible that Professor Tribe didn’t give Peabody’s cause his full attention.  For overall, the arguments in the Peabody/Tribe comments are much more Peabody than Tribe. 

The comments begin with a paean to the virtues of coal that is pure Peabody, and has nothing to do with the legality of the Clean Power Plan.

After that, the comments argue that EPA’s Clean Power Plan violates the Takings Clause of the Constitution. Peabody and the professor contend the public needs to pay the carbon polluters to make them stop.  This is a breathtaking argument.  If it had any force, it would have been impossible for the government to take toxic lead out of gasoline or paint, to ban cancer-causing asbestos insulation, to eliminate ozone-destroying CFCs, and on and on, without each time paying the polluters.

The Supreme Court has repeatedly held that the Constitution does not require taxpayers to pay corporate polluters to stop polluting.  Rather, it is a proper role of federal, state, and local governments to limit industrial activities that endanger public health and welfare, without compensating the companies that create the risks.  For example, in 1962, a unanimous Supreme Court held that a town may prohibit a company from operating a quarry in a residential area without having to compensate the company for its lost business. In 1992,  Justice Scalia wrote that “the owner of a lake-bed … would not be entitled to compensation when he is denied the requisite permit to engage in a landfilling operation that would have the effect of flooding others’ land,” and that the “the corporate owner of a nuclear generating plant” would not be entitled to compensation “when it is directed to remove all improvements from its land upon discovery that the plant sits astride an earthquake fault.”  The same principle, endorsed in countless other Supreme Court cases, applies when the corporate owner of a coal power plant is directed to stop emitting a dangerous pollutant like carbon dioxide.

Peabody and Professor Tribe offer a new twist:  the government lured hapless coal and power companies into investing in this blameless fuel in the first place, and now unfairly seeks to put the costs of preventing disastrous climate change on the same hapless corporations.  Pardon me while I tune my violin.

Next, the comments advance one of the coal industry’s favorite statutory arguments: that the Clean Air Act forces EPA to choose between regulating power plants’ mercury pollution or their carbon pollution, but that EPA may not do both. Because EPA has already set standards for power plants’ mercury pollution, the argument goes, their carbon pollution gets off scott free.  This is an argument so weak that many mere Washington lawyers have chosen not to bring it.  See here for more on why this one is a loser.

There’s a part of this argument that would receive little attention but for the fact that the comments cite a Supreme Court case for the very opposite of what it actually says.  The issue is a bit obscure:  When Congress passes and the president signs a law, it is published as enacted in the official digest of our laws called the Statutes at Large.  Subsequently, a little-known office (called the Office of Law Revision Counsel) codifies the new law into the U.S. Code, the volumes to which most lawyers turn to find federal law.  But mistakes happen; in this case Congress enacted two amendments to the same sentence – one from the House and one from the Senate – without reconciling them in conference committee.  Both appear in the Statutes at Large, but only one of the two amendments made it into the U.S. Code

The question arises, when the Statutes at Large and the U.S. Code don’t exactly match, which is the real law?  Peabody and Professor Tribe asserts that for EPA to look to the Statutes at Large – what Congress actually enacted – rather than the U.S. Code, “would raise separation of powers concerns by according no weight to the judgment of the Office of Law Revision Counsel as to how the 1990 amendments should be construed when using the U.S. Code.” They cite a Supreme Court case called United States v. Welden.  But Welden, in fact, held the exact opposite: that the Office of Law Revision Counsel’s codification decisions are entitled to “no weight” and that it is the Statutes at Large that reign supreme.  Take a peek at footnote 4 of the case: “Certainly where, as here, the ‘change of arrangement’ was made by a codifier without the approval of Congress, it should be given no weight.”

The comments’ final claim is that the Clean Power Plan violates the Tenth Amendment to the Constitution by commandeering states to perform federal functions. Here, Professor Tribe directly contradicts himself. In a 2012 presentation following the Supreme Court’s Affordable Care Act decision, Tribe noted that the Clean Air Act calls for states to submit air pollution control plans; if they choose not to, then the Act requires EPA to implement a federal plan.  This, Tribe stated in 2012, was perfectly constitutional. “[T]he existence of a backup federal plan,” he argued, alleviates any Tenth Amendment concerns.  For Peabody, however, Professor Tribe flip-flops and argues the opposite.      

Peabody has every right to employ Professor Tribe to put a shine on the company’s claims. But their claims aren’t actually very strong, with or without his patina.

From Delhi to Lima: India's Win-Win Opportunity to Grow a Low-Carbon Economy

December 6, 2014

Anjali Jaiswal, Senior Attorney, San Francisco

On Friday, I attended Environment Minister Prakash Javadekar’s press conference in Delhi before he departed for the 20th UN climate conference of the parties (“COP 20”) taking place in Peru’s capital, Lima. Minister Javadekar described the Lima conference as a “milestone,” stating that “it should build trust and foundation for the 2015 global climate agreement” in Paris.

As Minister Javadekar emphasized, India has a rapidly growing economy and is tackling the pressing challenges of development. But India also recognizes that rapid deployment of clean energy can actually boost economic growth and help address big domestic issues such as energy security, energy access and rising energy demands, in addition to lowering carbon emissions. In these ways, domestic action to shift to a low carbon economy can be a win-win for India, whose people, cities and long coastlines are some of the most at risk to the impacts of climate change.

At the press conference, Minister Javadekar highlighted the many domestic actions that India is taking to fight climate change, which we also summarize in our updated factsheet, “India: Addressing Climate Change and Moving Towards a Low-Carbon Future.” As it develops, India is moving to reduce emissions intensity to protect its people and environment, and the Modi government is poised to continue leading these efforts. India has made significant commitments to clean energy and a sustainable economy, including ramping up the existing target of 20 gigawatts (GW) of install solar energy by 2022 to a new ambitious solar target of 100 GW.

The 100 GW solar energy target—almost half of India’s total electricity generation capacity in 2013—reveals tremendous opportunities for solving India’s energy crisis through clean energy. Solar and wind energy, along with energy efficiency investments, are vital to diversifying India’s energy mix and are a viable means to meet demands for clean, affordable energy that creates jobs. The Modi government’s increased efforts are a step in the right direction – though like many countries, much more needs to be done, especially to protect communities that are the most vulnerable to climate change.

As Minister Javadekar’s press conference underscored, India’s voice is key in these international climate negotiations. India appears to be taking a much more active role in Lima than it has at past climate talks. Having the country that represents the world’s largest democracy, the second-fastest growing major economy, and the second largest population engaged in these discussions demonstrates a willingness to work toward a global deal on climate change. India’s domestic leadership to scale clean energy and shift toward a low carbon economy to support its communities exemplifies how local action on climate change can be a win-win for developing countries, and build a foundation for the 2015 climate talks.

Contributions by Meredith Connolly, NRDC Energy Law and Policy Fellow

Photo: Nehmat Kaur (NRDC)

Dizzying Renewable Energy Price Declines Can Help States Meet Ambitious Carbon Targets Under The EPA's Clean Power Plan

December 5, 2014

Nathanael Greene, Director of Renewable Energy Policy, New York City

Here’s some exciting news from the number crunchers here at NRDC:

Thanks especially to the plummeting costs of solar and wind power, states can cost-effectively cut much more carbon than the EPA originally proposed this June. As we wrote in comments submitted to the Environmental Protection Agency this week on its plan to cut carbon pollution from the country’s existing power plants, wind and solar costs are now a mind-blowing 46 percent lower than the EPA estimated in its draft proposal this summer. As a result, our updated modeling shows that the Clean Power Plan can easily and cost-effectively spur the development of an additional 143 terawatt-hours of renewable energy in 2030, compared to EPA’s June estimate. That’s enough electricity to power an additional 14 million-plus homes.

Though EPA’s draft Clean Power Plan proposal promises important carbon pollution cuts of 26 percent by 2020 and 30 percent by 2030, pollution-free power from the sun and the wind can help us deliver much healthier ones—36 percent by 2020 and a sizeable 44 percent by 2030, giving states more options as they design their compliance plans. All of this makes the EPA’s Clean Power Plan the most important potential driver of renewable energy development being debated in the country today. (And, note: our calculations don’t factor in continuing price drops or future technological improvements that may make renewable energy even cheaper and more popular still.)

As a parent who worries about my kids’ futures—both their safety in an unstable climate and their adult job prospects—here’s what I think: EPA, as you fine-tune the CPP, think big and remember what clean energy can do.

If you last tuned in in June, you might wonder how these new and much more impressive pollution numbers have emerged. The answer is simple. Though we used the same computer model as EPA, we inserted updated and far more accurate pricing data for solar and wind power. The EPA’s numbers weren’t wrong so much as out of date. When its staff did its original calculations, in 2013, it used price data from 2012 some of which was based on contracts signed in 2008. But since then, much as they have over the last decade, those prices have continued to nosedive. (Why? Government incentives have spurred renewable-energy demand, thereby speeding economies of scale and driving both investment in technology and competition in the marketplace.) As a result, the cost data EPA used for wind and solar power from 2012 is a walloping 46 percent above current averages.

The difference is astounding. While states don’t have to choose renewables, when we modeled the most cost-effective compliance options for states, we found that the CPP, as originally proposed, would likely have driven 326 terawatt-hours of wind and solar power generation in 2030. But just using the updated cost figures, we found it could spur the development of 469 terawatt-hours in that same year. (A terawatt-hour is equal to one million megawatt-hours, about the amount of energy consumed in a year by 100,000 American homes. In other words, a whole lot of renewable energy.)

Plus, when we fixed these cost numbers and made other important changes, we found that EPA can increase the renewable energy contribution to the overall state targets by a whopping 86 percent. These advances in renewable energy leave EPA plenty of room to strengthen the CPP.

And our economy. Designing, developing, installing and maintaining wind farms and solar arrays will create tens of thousands of new jobs. It will also save consumers money on energy, make the air our kids and our seniors breathe cleaner, and give consumers choices about the sources of electricity they use. Really, what’s not to like about this?

And these aren’t the only positive results. Our new findings mean states will have much more flexibility in designing their CPP compliance plans. In windy states, especially those from Montana south to Texas and across the Midwest, an increased reliance on wind power might make more cost-effective sense than, say, switching coal-burning power plants to natural gas. In the Southeast, with its great solar resources, the sun’s rays can cut carbon as they put people back to work.

All this means that in revising the CPP, the EPA can and should raise its sights and set stronger targets for states. As a parent, I’m thrilled NRDC’s modeling shows the EPA can help the country make the ambitious pollution cuts scientists tell us we need to avoid climate change’s worst impacts, with renewable energy helping lead the way. 

India Green News: UN's Montreal Protocol tackles HFCs; PM Narendra Modi makes strong pitch for clean energy at G20 summit; India plans solar army, to train 50,000 people

December 5, 2014

Avinash Kar, Senior Attorney & Director of Policy and Research, India Initiative, International Program, San Francisco

India Green News is a selection of news highlights about environmental and energy issues in India

This compilation of the India Green News was authored by Nehmat Kaur.

November 20th – November 28th


200 countries agree to hold informal talks on hydrofluorocarbons issue

New Delhi: A breakthrough in the deadlock over greenhouse gas hydroflurocarbons (HFCs) happened late Wednesday evening at the UN's Montreal Protocol on ozone depleting substances with nearly 200 countries agreeing to hold "informal discussions".

The developing nations fighting to keep HFCs out of the Protocol, which deals with production as well as consumption of ozone depleting gases, were able to buy some time with the European Union proposing an amendment to only hold informal discussions on the contentious issue.

On Wednesday, Jordan was leading the Gulf countries in opposing the formation of contact group for negotiations on HFCs. These countries, along with other developing nations such as Venezuela and Argentina, have not agreed to any formal meetings, or formation of contact groups for negotiations on the issue.

"The deadlock continues but we are better placed today than we were six months ago," Bhaskar Deol, India Representative at the Natural Resources Defense Council, said.

(Hindu Business Line, Nov. 20th, 2014)


India must be active in Lima climate change talks: Experts

New Delhi: India must get actively get involved in the climate change talks to be held in Peru next month, expressing how much it wants as its share in the "carbon budget", or the country's annual flow of emissions, and and setting up time limit to reduce its carbon footprint, experts said Thursday.

The experts also maintained a global political will laced with an ethical approach can limit the effects of climate change.

Adaptation and mitigation are some preventive options to check climate change that must be adhered to by developing as well as developed countries alike in order to be successful in containing the problem, said Navroz K Dubash, a senior fellow of the Centre for Policy Research, at an event organized by Indian Women's Press Corps.

The recently-released Fifth Assessment Report by the Intergovernmental Panel on Climate Change (IPCC), a scientific intergovernmental body under the auspices of the United Nations, highlights the rising impact on all continents due to human influence on climate system.

(First Post, Nov. 27th, 2014)

Logjam on inclusion of HFCs to continue as India remains silent

PARIS: The six-year-long logjam at the Montreal Protocol on the inclusion of greenhouse gas hydro-flurocarbons (HFCs), used as a coolant for refrigeration, is unlikely to be cleared at the United Nations this year.

India, which had been leading a group of countries, including the Gulf nations, for the last six years in protesting against proposals to amend the protocol to include HFCs, maintained its silence. However, over a dozen countries such as Saudi Arabia, Kuwait, Jordan and Venezuela, are opposed to the formation of a contact group to negotiate the issue of HFCs.

With the formation of an informal group for discussions on the proposed amendment, a breakthrough remains highly unlikely.

While India, like China and Brazil, remained neutral towards the proposed amendment, senior members of the Indian delegation also confirmed that India will not oppose the formation of a contact group, if asked at a later date.

However, if such a proposal was made the country would highlight its demands and concerns, some of which include transfer of technology from the developed countries, monetary support and others.

(Hindu Business Line, Nov. 19th, 2014)

India needs to improve energy efficiency by 2030: UN report

NEW DELHI: Nearly 100,000 premature deaths take place annually due to air pollution in India and some other countries which can be avoided by 2030 by improving energy efficiency measures in transport and industrial sectors, a United Nations report today said.

The fifth Emissions Gap Report 2014 by the United Nations Environment Programme (UNEP), which was released today, said that countries across the globe need to "shrink" greenhouse gas emissions to net zero between 2080 and 2100 in order to limit global temperature rise to two degree Celsius.

The report said that improving energy efficiency can be an excellent opportunity for linking sustainable development with climate mitigation.

Launching the report in India, report co-author and professor at TERI University Ritu Mathur said that given the frequencies observed of extreme events taking place in the world as well as developing countries like India, there is a need to improve the preparedness level as countries like India have lesser coping capacities with such extreme events.

(Business Standard, Nov. 21st, 2014


PM Narendra Modi makes strong pitch for clean energy at G20 summit

NEW DELHI: With India getting ready to give a big push to tap solar energy in the next six to eight years, the Prime Minister Narendra Modi on Sunday pitched for a global effort to make clean energy available to all through concerted actions which can be a major economic opportunity for all countries across the globe. 

He articulated his point in his statement on energy at G20 summit in Brisbane, Australia. 

Seeking collective R&D effort and collaboration in the direction of having clean energy path, Modi urged the leaders of big economies to set up a "global virtual centre" for clean energy research and development, with adequate public funding, which will fund collaborative projects in diverse sources of clean energy, smart grids and energy efficiency. 

His remarks came at the time when his government is planning to target up to 100,000 MW of solar generation by 2022, far more than an existing 20,000 MW target by 2020. 

(Times of India, Nov. 16th, 2014)

India plans solar army, to train 50,000 people

NEW DELHI: The government is planning to train around 50,000 people in areas related to solar power—a so-called solar army that would help India achieve ambitious targets in harnessing the power of the sun.

The workforce will be trained through organizations such as the industrial training institutes (ITIs) under the government’s national skill development mission. While India has a solar generation capacity of 2,900 MW, the National Democratic Alliance (NDA) government has substantially revised an earlier target of achieving 20,000 MW capacity by 2022 to 1,00,000 MW.

This would require an investment of around Rs.6.5 trillion over five years.

“For us to achieve this ambitious target, there will be a requirement of land, labour and capital. This 50,000-strong solar army will be provided three to six months training in the solar energy related areas, which will also prepare them for the job opportunities that the sector will have to offer,” a government official said, requesting anonymity. “On the other hand, they will help meet the sector’s demand for a workforce.”

(Live Mint, Nov. 19th, 2014)

IEX sees sluggish demand for renewable energy certificates

NEW DELHI: Reflecting sluggish demand, Indian Energy Exchange this month saw sale of just over 93,000 renewable energy certificates out of nearly 52 lakh that were available. 

The total number of sale bids, together in solar and non-solar segments, stood at around 51.88 lakh during the REC trading session held on Wednesday. 

However, REC trading activities this month were better than in October when only about 36,000 such certificates were sold. 

The session yesterday saw trading of 93,100 non-solar and 245 solar RECs, the exchange said in a statement today. 

Renewable energy certificates are used as instruments to help entities meet the Renewable Purchase Obligation set by states. One REC is equivalent to 1 MWh of energy generated from renewable sources. 

(Business Standard, Nov. 27th, 2014)

Indian Factories Will Count and Sell Their Energy Savings

SAN FRANCISCO: India, the world’s third-largest producer of greenhouse gas, after China and the United States, has resisted international pressure to commit to capping planet-warming emissions. But when it comes to saving energy, India is moving ahead briskly.

Its innovative and closely watched program called Perform, Achieve and Trade, is designed to encourage hundreds of the nation’s largest industrial plants to keep their energy use in check.

The program sets a goal of cutting energy use an average of about 4 percent per unit of output at the factories. Those that save extra energy can sell their savings to plants that fail to meet their targets. It is a market-style system akin to cap-and-trade, but the “cap” is an energy efficiency target. Linking the savings to output lets India reduce the intensity of energy use but still increase production to meet its needs as a developing nation.

“What’s being launched is a national program of trading in certificates representing energy savings,” said Noah Sachs, a law professor at the University of Richmond in Virginia, who spent the spring studying the program. “It’s really interesting. There’s no other country in the world that’s doing this so ambitiously.”

(NY Times, Nov. 26th, 2014)

Environmental Health & Governance

India court slams Delhi's worsening air pollution

NEW DELHI: India’s environment court has slammed the government over the capital’s horrendous air pollution, which it said was “getting worse” every day, and ordered a string of measures to bring it down.

The National Green Tribunal directed all vehicles older than 15 years be taken off New Delhi roads, pollution checks undertaken for all state-run buses and air purifiers installed at the city’s busy markets.

Environmentalists welcomed the decision, saying policymakers were failing to heed the “emergency” facing the city of 17 million people.

“We applaud the tribunal’s urgency on Delhi’s pollution which is reaching toxic levels,” Chandra Bhushan, deputy director general of the Delhi-based Centre for Science and Environment.

“But the measures need to go further to deal with issues like the 1,000 new vehicles coming on to the roads each day,” he told AFP.

“The government has a legal obligation to introduce the tribunal’s measures,” he added.

(The Guardian, Nov. 27th, 2014)

'Leapfrog to cleaner norms'

NEW DELHI: A day after National Green Tribunal gave a detailed order for tackling air pollution in Delhi, the agencies tasked to do so seemed to be in a haze. In fact, some officials claimed they were yet to read the order which has asked for a complete ban on more than 15-year-old vehicles. Delhi Pollution Control Committee (DPCC) and the environment department of Delhi government - which have been entrusted with implementation of several directions, including creating a web portal where citizens can upload pictures or complaints of open burning or other pollution-related issues, and exploring the possibility of installing air purifiers in markets - said they need time to study the order. 

"Let the officials read the order first. We will try to implement whatever the Tribunal has directed us to do," said Sanjiv Kumar, secretary, environment. Other officials, however, seemed less enthusiastic. "We are already busy with other orders of NGT. I am not sure how such elaborate directions can be implemented in Delhi," said another official.

Activists are more hopeful. Centre for Science and Environment (CSE) has appealed to NGT to broaden the scope of its order. "We appeal for more stringent measures to bring down the severe peak pollution levels in Delhi. The city needs stronger action to reduce vehicle numbers, scale up walking, cycling and public transport, and leapfrog to clean emission standards," said a CSE statement on Thursday. 

(Times of India, Nov. 28th, 2014)

Northern Rockies Wolf Makes Grand Journey South

December 5, 2014

Zack Strong, Wildlife Advocate, Bozeman, Montana

I first saw the Grand Canyon on a cold, calm, cloudless afternoon, more than a decade ago.  It was late in the day in late March.  From my vantage on the South Rim, the scene was dizzying.  Before and below me, layer upon layer of red and yellow cliffs lined an enormous chasm that stretched in either direction as far as I could see. “Vast” didn’t begin to describe its immensity.  On the other side, impossibly distant, the North Rim and Kaibab Plateau stretched long and flat against the horizon.

In the canyon’s presence I felt awed, insignificant, somehow even alone despite my family standing nearby.  Looking back, I wonder, would a lone wolf encountering the same view feel something similar?

Because, for the first time in 70 years, one recently did.

Last month, a DNA analysis conducted by the U.S. Fish and Wildlife Service (FWS) confirmed that the large canine recently sighted north of the canyon is a female gray wolf.  Incredibly, the wolf traveled to northern Arizona from somewhere in the northern Rocky Mountains, more than 450 miles away.

Such an achievement belongs not only to the wolf herself, but to the Endangered Species Act that protected her along the way. 

Though Endangered Species Act protections have been removed for wolves in Idaho and Montana (and some parts of Oregon, Washington and Utah) they remain in place in the rest of the West — and most of the rest of the country.  These protections are crucial for wolves like the Grand Canyon female who “disperse” from their packs and travel long distances to find food, new territories, and mates.  Without federal protections in place, these already difficult journeys would become much more dangerous, if not impossible.

That’s because once federal laws are removed, state laws take their place.  And, as my colleague Dr. Sylvia Fallon has pointed out, many state laws, legislatures and agencies are less than hospitable toward wolves.

For example, many states where wolves have already been “delisted” (had their federal Endangered Species Act protections removed) have authorized wolf hunting and trapping.  Others have expanded the circumstances under which landowners may legally kill wolves on their property.  Should federal protections be removed across the rest of the country, more states where wolves are present will likely do the same. 

The threat of increased killing, added to the often fatal challenges of negotiating roads, ranches and development, may make it impossible for wolves to disperse to, and recolonize, places in the Pacific West, southern Rocky Mountains, and northern New England where abundant suitable wolf habitat still remains. 

Since wolves were reintroduced to the northern Rocky Mountains in the mid-1990s, it has taken nearly two decades for lone dispersing animals to return to California and now the Grand Canyon.  Clearly, these journeys have been difficult enough, even with federal protections in place.  Without them, wolf restoration is likely at an end.

So how much longer will it take?  When can federal protections be removed?  When has a species been recovered and restored to such an extent that state management can resume? 

There will be different answers for different species.  But when it comes to wolves, the arrival of the lone female to Grand Canyon National Park gives us an emphatic, echoing, howling, hopeful, definitive response:

Not yet.


Photo: Moyan Brenn on Flickr, under Creative Commons licensing.

Home Depot and BJ's Wholesale Club take steps to limit or eliminate bee-killing neonicotinoid pesticides in their nursery plants

December 5, 2014

Jennifer Sass, Senior Scientist, Washington, D.C.

Bees and gardeners win! Public pressure successfully pushed Home Depot to start requiring labelling of its nursery plants that are treated with bee-killing neonicotinoid pesticides. This means that we can read the label, and avoid buying these plants. That will save bees and other pollinators from carrying the pesticide-laced pollen and nectar back to the hive and contaminating the food for the whole hive, including the Queen and baby bees.

Home Depot wasn’t the first. East Coast-based BJ’s Wholesale Club also went to its supply chain, asking its vendors to provide neonic-free plants by the end of 2014 or label them with “caution to pollinator” tags. Other small retailers have also kicked off plants to limit or eliminate the bee-killing pesticides from its nursery plants.

Labelling works! The stigma associated with the label, the cost of producing the new label, and the impact on consumers of avoiding buying plants with the new label all add up to pushing growers away from using neonicotinoid pesticides. In the trade press, industry reported that, “…growers must either accept the potential consumer stigma associated with neonicotinoids, or make the necessary changes and hope their alternative methods work as well.”

Lowes and Wal-Mart are lagging, so keep up the pressure on them! Friends of the Earth US is leading this effort, in partnership with environmental groups across the country.

Pollinators including bees contribute over $24 billion in pollination of our crops, wildflowers, forests, and gardens – including one-third of our food.  The number of managed U.S. honey bee colonies dropped from 6 million colonies in 1947, to 4 million in 1970, 3 million in 1990, and just 2.5 million today. There are likely multiple factors contributing to bee deaths. However, over the last several years there has been an accumulation of data that points to the role that pesticides play in the decline – specifically a class of pesticides called neonicotinoids, or neonics, which are systemic – meaning they poison the whole treated plant including the nectar and pollen that bees eat – and they are persistent, lasting months or even years in the plant, soil, and waterways. Traditional best management practices for bee protection, such as not spraying during the day or on bloom, doesn’t work for neonics. 

Neonics are not just bad for bees, but also pose a risk of harm to aquatic invertebrates and emerging evidence suggests that they may also pose a risk to people. This international scientific consensus about the ecological harm posed by neonicotinoid pesticides provided the evidence that NRDC relied upon when we filed a legal petition with EPA to expedite the review of the neonicotinoid pesticides, and cancel harmful uses in the meantime. NRDC submitted signatures from almost 275,000 of our members supporting our petition.


Don't Mess with Denton: Groups Move to Intervene in Defense of Local Ordinance

December 5, 2014

Daniel Raichel, Staff Attorney, New York

Today, the Denton Drilling Awareness Group (Denton DAG) and Earthworks, assisted by attorneys from NRDC, Earthjustice, and the Texas local government law firm Brown & Hofmeister, moved to intervene in defense of a local ordinance banning fracking within Denton city limits that has been challenged by an industry group and a Texas state agency. (To see the intervention petitions filed, see here and here.)

While the saga leading up to passage of the fracking ban in Denton — a Texas city of over 120,000 people that is increasingly dealing with the problems of a deluge of new, industrial gas wells moving into local neighborhoods (now 277 total by the City’s count) — is years old, the most recent events can fit in a nutshell.

On election day this past November, Denton became the first city in Texas to ban fracking. The people there voted 59% to 41% in favor of a ballot initiative to enact an ordinance banning the risky practice common across the state.  The vote came after several months of tireless efforts by local citizens group Denton DAG, Earthworks, and other Denton residents through the Frack Free Denton campaign. Remarkably, the nearly 20 point victory also came despite a large and very well-funded (to the tune of $770,000 by one count) industry crusade to defeat the initiative.  It was a David vs. Goliath win that affirmed the democratic voice of a community simply fed up with fracking in the areas where they live, work, and play.

The next day, the City of Denton was sued, twice.

The lawsuits (one from the Texas Oil and Gas Association and the other from the Commissioner of the Texas General Land Office, a Texas agency that manages certain state-owned lands and mineral interests) assert, among other things, that the Denton ordinance is overridden or “preempted” by state law.  And while these claims clash with the long-established tradition of Texas municipalities exercising home rule authority over oil and gas drilling activities — something neighboring Flower Mound and Dallas have used to place restrictions on fracking in their backyards — they come as no surprise.  For months leading up to the vote, the threat of litigation had been used as one tactic to discourage voters and the City government from adopting the ordinance.

But the residents of Denton won’t be bullied by powerful oil and gas interests — and they weren’t discouraged.

It’s easy to see why not.  Denton sits on top of the Barnett Shale, known as the “birthplace” of modern fracking, which has seen an explosion of drilling in the last decade.  Fracking in Denton is often done within a few hundred feet of homes, schools, and public parks — with one frack well even located directly across the street from the University of North Texas football stadium.  It often also comes with supporting infrastructure like waste pits, pipelines, compressor stations, and flare stacks.  With close to 300 wells in the City, complaints of noise, odors, air emissions, road-damaging truck traffic, and health impacts are common and generally fall on the deaf ears of drilling operators.  After years of putting up with the harms of industrial fracking (literally in their own backyards), and scant protection from state and federal authorities, the residents of Denton had little choice other than move or take matters into their own hands.

With today’s move to intervene, Denton DAG and Earthworks are taking the next step in helping secure the local law that they were integral in crafting and placing on the November ballot, and hope to join the City of Denton in defending the ordinance (the City’s answers in both cases, filed this Monday, are available here and here).  NRDC is proud to help these two organizations that are fighting on behalf of the people of Denton, and communities everywhere that want a voice in their own fracking future.

Indeed, Denton may be the first city in the traditionally oil-friendly state of Texas to ban fracking — but they are not alone. Hundreds of communities across the country have also stood up to oil and gas companies when their state and the federal governments have failed to do so for them. The message is loud and clear: American communities will exercise and defend their right to determine their own fracking fate.

Michigan: New Report Shows Big Increase in Extreme Storms

December 5, 2014

Theo Spencer, Senior Advocate, Climate Center, New York

The kind of deluges that flooded Detroit this year and Grand Rapids last year are part of 50-year trend of increasingly frequent extreme storms in Michigan. That’s according to a new report we released today along with the Rocky Mountain Climate Organization (RMCO). Extreme Storms in Michigan also found a 128% increase in big storms in densely populated Southern Michigan.

The report is based on an analysis of daily precipitation records from 37 weather stations over 50 years. It is the most comprehensive analysis yet of daily precipitation trends in Michigan, and by including data through 2013 has the most recent data of any analysis of precipitation in the Midwest.

The report documents an 89 percent increase in the annual frequency of extreme precipitation events—defined as 2 inches or more in a day—across the state over the last 50 years.

The data are further broken out regionally, with storms having increased by 62% in the Upper Peninsula; 42% in northern portions of the Lower Peninsula; and a whopping 128% increase in southern Michigan, home to most of Michigan’s residents.

The report’s principle author, RMCO’s Stephen Saunders, notes:

“The report digs deep into the data to confirm something most Michiganders already guessed—dangerous, extreme storms are on the rise across the state. Global studies already show climate change driving more extreme precipitation, and now we’ve documented how great the increase has been in Michigan, where aging infrastructure makes the resulting floods even worse.”

The flooding is dangerous and it costs the state billions. Earlier this year, six inches of rain fell in Detroit in eight hours, causing over $1 Billion in damage. April 2013 storms of two inch-plus rain wreaked havoc across the state, blocking streets, flooding basements and damaging property. In Grand Rapids, the river crested 21 feet above flood stage. Both storms prompted federal disaster designation. 

Let’s be clear: this is a climate change issue, and a changing climate is one of the most serious threats Michigan has ever faced. The report details how flood risk will grow if we don’t cut the pollution that causes climate change.

That’s where the Administration’s historic Clean Power Plan comes in. The US Environmental Protection Agency has proposed a common sense format that lets each state decide how best to cut its carbon pollution. Michigan can support the Clean Power Plan by ramping up the use of renewables like solar and wind power, and using energy smarter by using it more efficiently.

NRDC is working to pass legislation to help Michigan get 30% of its power from renewables like solar and wind and energy efficiency.  That legislation would double investment in smart energy use and reform the way utilities are paid so that they can maintain a reliable grid. 

Governor Snyder has endorsed these concepts.

The Obama Administration has made it clear that dealing with climate change means more than just cutting the pollution that causes it. President Obama convened a Task Force of local, state and tribal leaders about a year ago — including Grand Rapids Mayor George Heartwell — which recently released a suite of recommendations and actions that includes template preparedness plans, centralized resources in the form of a ‘US Climate Resilience Toolkit’, and “disaster recovery app.” You can read my blog on the Task Force recommendations here. On Wednesday, the White House announced the first winners of its Climate Change Champions Competition, highlighting cities and communities on the cutting edge of preparing for climate impacts (the Sault Ste. Marie Tribe of Chippewa Indians in northwest Michigan was among them). Winning communities will be assigned a federal coordinator to help them maximize further their work and fully take advantage of all government preparedness programs and resources.

But getting back to the storms--when it rains hard and fast, water tends to overwhelm the systems designed to deal with it. That’s especially true in communities that have combined sewer and wastewater systems. Unfortunately, Michigan has a lot of these—46--the third highest amount in the nation.

These old systems weren’t designed to handle the kind of rains our report details. And when they overflow, it causes a serious public health risk because they dump untreated human sewage and industrial waste into water that in many cases we rely on for drinking supply.

The study includes a new analysis of combined sewer overflows (CSO’s), finding that 76 percent of the worst incidents resulted from storms of two inches or more per day.  Of the largest recent CSOs from each of 17 combined sewer systems in Michigan having overflows, 13 were associated with two inches or more of precipitation in a day.

No one wants raw human waste in their drinking water supply.

We’ve got to think differently about how we deal with all this water.

That means creating more green infrastructure systems that soak up the water before it can get to the sewers, using natural surfaces to collect, filter and hold rain where it falls. Green infrastructure systems are much cheaper and faster to build than big concrete and steel projects. Forward—looking cities around the country are planting more trees and shrubs, creating more green roofs, building more bioswales, and replacing old asphalt with porous pavement that lets rain pass through into the ground. They’re also creating more parks and revitalizing wetlands.

Severe storms also put private drinking water supplies at risk. That’s a big concern in Michigan as the study notes that more people in Michigan rely on private wells than in any other state -- over one million households.

A lot to think about, and a lot to act on.

Polluter group ALEC doubles down on environmental attacks; 111 groups send joint letter in protest

December 5, 2014

Aliya Haq, Climate Change Special Projects Director, Washington, D.C.

Right now, the shadowy American Legislative Exchange Council is gathering in Washington, DC, for its annual policy summit. ALEC has not been humbled by Google and other tech companies cutting ties over ALEC’s climate denial. On the contrary, with roughly two-thirds of state legislatures now under Republican control, ALEC is redoubling its attacks against the environment, and especially against the Environmental Protection Agency (EPA). In preparation for state legislatures convening in January, this week ALEC corporate and legislative members are finalizing new model legislation to block EPA limits on carbon pollution and smog.

Meanwhile, 111 national, state and grassroots organizations sent a joint letter to all state legislators, calling on them not to affiliate with the American Legislative Exchange Council and to encourage their colleagues to cut ties as well.

ALEC cloaks itself in free-market rhetoric, but actually serves as a vehicle for corporations to quietly craft “model” anti-environmental legislation for industry-friendly state legislators to introduce. Based on ALEC’s Energy Task Force agenda this week, ALEC should change its motto to "Limited Government, Unlimited Pollution.” You can take a look at NRDC’s analysis here, which shows the ALEC agenda is really a wish-list for energy companies.

The most extreme proposal on ALEC's agenda this week is a proposal to abolish the EPA, turn all its public health and environmental protection functions over to state officials, and slash the environmental protection budget by 75%. This ludicrous ALEC proposal has may have little chance of success, but it underscores ALEC’s radical escalation against the environment.

ALEC’s proposals going after EPA’s new pollution standards have more chance of moving forward in some conservative-led legislatures. They are intended to cripple EPA, but they may well have unintended consequences.  Here’s why.

In June, EPA proposed the Clean Power Plan to limit carbon pollution from power plants, the largest source of US carbon emissions. ALEC began its attacks on the Clean Power Plan last year, months before EPA even issued its proposal. ALEC’s ultimate goal is to block any action on climate change, ignoring the millions of consumers who would save on their electric bills and the hundreds of thousands of new clean energy jobs that would emerge from the Clean Power Plan.

This week, ALEC will finalize two model bills to block states from cooperating with EPA to reduce pollution. The first ALEC bill aims to effectively repeal a state’s authority to work with EPA in implementing the Clean Air Act. It requires the state agency to obtain unnecessary legislative approval on its carbon pollution plan. States have been successfully implementing Clean Air Act standards in partnership with EPA for decades, and this bill would stymie that process.  The bill politicizes pollution reductions by allowing legislators to distort a state plan, instead of relying on state agency experts to write a plan based on technical and economic analysis.

The second model bill attacking EPA’s Clean Power Plan forces states to drag their feet, prohibiting state agencies from submitting a carbon-reduction plan to EPA until all legal challenges are resolved. This is a formula for indefinite delay, since any frivolous lawsuit could hold up the plan. This is completely unnecessary, because the courts already have the authority to act when a legal challenge to a rule warrants postponing its implementation.

These bills will backfire if ALEC succeeds in pushing them through state legislatures. Ultimately, if a state does not submit a carbon pollution plan, EPA is legally obligated to issue a federal plan for the state. ALEC is spinning these bills as empowering states, when in reality these bills actually take away a state’s control. If I were an electric utility executive, I’d want the state to design an implementation plan with my input and submit that plan on time to EPA. I would certainly want to avoid a federal plan that may end up being less efficient and more costly.

As ALEC begins pushing its polluter agenda of 2015, local and national environmental groups will be working with sensible legislators to fight back against ALEC's shadowy influence. More than 300 state legislators this showed their support with public comments on EPA's Clean Power Plan. At least 111 state, national and local groups are watching ALEC's every move to counter these bills when they appear next year.

Divest Now: Time for Universities to Stand Up to Fossil Fuel Interests

December 4, 2014

Peter Lehner, Executive Director, New York City

A group of Harvard students recently filed suit against the college’s president, fellows, and others, for “mismanagement of charitable funds.” The suit asks the court to compel the university — which boasts a $36 billion endowment, the largest of any university in the world — to divest from fossil fuels.

Harvard is just one of many colleges across the country where students, alumni and some faculty, motivated by the urgency of the climate crisis, have been pressuring administrations to move investments out of fossil fuels. But universities, by and large, have remained unmoved.

Divestment activists blockade Mass Hall, home to the office of Harvard’s president. (credit: Divest Harvard)

Carbon pollution from fossil fuels is the primary driver of climate change. Scientists estimate that sea level rise, deadly floods, droughts, heat waves and other harmful impacts of climate change could become irreversible unless fossil fuel companies keep the majority of their known reserves in the ground.

Harvard and other universities have rejected calls for divestment with the same excuse: Their concerns about financial stability, among other things, makes divestment impossible. But investment experts have demonstrated that fossil-fuel free investments can make money — just as much, if not more, than conventional investment strategies.

If fund performance isn’t the issue, why, then, the reluctance to divest? Are our universities, just like Congress, so hooked on fossil-fuel funding that they fear alienating certain deep-pocketed interests? If our celebrated institutions of higher education can’t shake free of fossil fuel influence, what hope is there for our somewhat less high-minded political system?

It’s time for universities, as they did with apartheid in the 1980s and with tobacco in the 1990s, to consider what they stand for and divest from fossil fuels. The industry is standing in the way of clean energy progress, and using its power and influence to ensure that its polluting products continue to dominate our energy system and destabilize our climate. This poses serious risks to the environment, our health, our economy and our national security. And these risks are disproportionately borne by those who have contributed least to the problem.

“People of conscience,” urged Desmond Tutu in a recent video, “need to break their ties with corporations financing the injustice of climate change.”

Harvard, my alma mater, has $34.6 million invested in the top 200 fossil fuel companies — less than .1 percent of its endowment. Yet Harvard President Drew Faust, in an open letter to the community explaining her position on divestment, claimed that divestment would risk “significantly constraining investment returns.”

At the City University of New York (CUNY), which is reportedly considering divestment, a political science professor also fell back on the same argument, telling the Wall Street Journal that divestment would come “at the expense of financial stability.” CUNY has about $10 million of its $241 million endowment in fossil-fuel securities.

Financial analysts say fossil fuels are risky

Tradition dictates that fossil fuel companies should be part of an investment portfolio — just as tradition dictates that U.S. taxpayers should subsidize the industry, at a rate that now adds up to about $8 billion every year. But financial experts have found that a strong investment portfolio doesn’t need fossil fuels.

A series of reports from the asset management firm Impax found that if fossil fuels had been removed from a global benchmark index fund for the past five and six years, performance would have improved. And if those holdings had been replaced with renewable energy and energy efficiency stocks, the fund’s performance would have been even better.

The global index provider FTSE Group, working with NRDC and asset management firm BlackRock, developed a groundbreaking ex Fossil Fuel index this year, which seeks to exclude companies that produce oil, coal, and natural gas. When FTSE compared the historic performance of the new index to its benchmark index over the past eight years, the returns were very similar — the ex Fossil Fuel Index, however, showed less volatility than the benchmark.

Other analysts simply see fossil fuels as too risky. Oil and gas companies are pushing deeper into the ocean, operating in politically unstable areas, fracking in people’s backyards, and cutting corners on safety, just to keep their business model alive. John Streur, the president of Portfolio 21 Investments, which eschews fossil fuel companies in its investment strategy, writes in his blog that he avoids these stocks “because our research tells us that these companies pose too much risk to the environment and society, and that they face too much risk based on their business operation profile.”

In other words, investing in companies that base their profits on a risky, polluting, outdated energy system may not be financially prudent.

Rockefeller and others have committed to divestment

About 180 institutions, including colleges, philanthropies, pension funds, and local governments have committed to divestment in recent years. Hampshire College, the first college to divest during the anti-apartheid movement, also became the first to divest from fossil fuels. Just before the UN Climate Summit in September of this year, the Rockefeller Brothers Fund announced it would divest from fossil fuels. Stanford recently announced it would divest from coal; the University of Dayton, a Catholic university in Ohio, also committed to divestment, saying its “values of leadership and service to humanity call upon us to act.”

As NRDC pursued its divestment strategy, our finance team — a hard-nosed bunch who don’t like risky investments — wasn’t about to put any assets in jeopardy. One of the reasons NRDC worked with FTSE to help develop a new tool that can be used by organizations interested in divestment was to satisfy these concerns. With the advent of FTSE’s fossil-free index (now a family of several indices), divestment is no longer an arcane process. Institutional investors, endowments, family offices and retail investors have an objective, transparent benchmark against which they can measure the performance, risk, and return of their divestment strategies.

These recent developments demonstrate that divesting from fossil fuels is not only the morally correct action, but need not compromise an institution’s goal of maintaining financial stability.

Other excuses for not divesting, in which university leaders echo arguments espoused by the oil and gas industry itself, have been thoroughly debunked elsewhere. The fact that only a handful of universities have committed to divestment shows just how strong the hold of the fossil fuel industry is not only on our energy system, but on our vaunted higher education system. Universities are the institutions we trust to light the way forward for the next generation. They should not be beholden to an industry that relies on the pollution of the past.

Divestment is about demonstrating there is another way forward. Universities should be the ones up front, holding the solar lantern.

Reducing Black Carbon Emissions is a Win-Win for Public Health and Climate in Latin America

December 4, 2014

Amanda Maxwell, Latin America Advocate, Washington, DC

Today at the UN climate conference in Lima, Peru, NRDC is releasing a new report that focuses on a serious threat to both public health and climate in Latin America: black carbon. A recognized carcinogen and potent pollutant, black carbon is emitted by diesel vehicles throughout the region, exposing millions of people to toxic air and further aggravating climate change. The report finds that, unfortunately, most countries in Latin America do not adequately monitor or try to combat black carbon. The good news is that proven solutions exist, and the report identifies key strategies that Latin American governments can pursue to significantly reduce black carbon emissions: a combination of cleaner fuels, vehicle emission standards and established technologies. Doing so will help millions of people in the region breathe easier and reduce greenhouse gas emissions at the same time, proving to be a win-win for public health and climate change efforts.

The report, Dumping Dirty Diesels in Latin America: Reducing Black Carbon and Air Pollution from Diesel Engines in Latin American Countries,” which was co-authored with experts at Gladstein, Neandross and Associations (GNA), begins by summarizing existing research into the global and Latin America-specific impacts that black carbon has on climate and public health. It then dives into more detailed, original research looking at air quality, air quality monitoring systems, vehicle fleet profiles, vehicle fleet growth, vehicle regulations and fuel regulations in 15 Latin American countries.* The results of this research are telling of the gravity of the problem — and also of the extent of the benefits that the solutions could bring.

Black carbon is a major component of diesel engine exhaust — the black, sooty smoke that spews from tailpipes of dirty diesel cars and trucks. And it’s not good for you. Health experts have found ties between exposure to black carbon and decreased vascular function and respiratory problems, including aggravated asthma, decreased lung function and lung inflammation. The World Health Organization has determined that diesel exhaust, outdoor air pollution and particulate matter (which includes black carbon) cause cancer.

Black carbon is also not good for the climate. In fact, scientists have identified black carbon as the second most powerful contributor to climate change after carbon dioxide. As a short-lived climate pollutant (SLCP), black carbon emissions last a matter of days in the atmosphere, meaning its effects can be felt almost immediately.  Fortunately, that means that the benefits of reducing black carbon emissions can be felt almost immediately as well.

Globally, open biomass burning is the largest source of black carbon emissions. However, in Latin America the largest anthropogenic source of black carbon is the transportation sector. Our research found that vehicle fleets in many of these 15 countries are growing at very high rates, indicating that unless solutions are implemented, more and more people will be exposed to black carbon emissions.

From Dumping Dirty Diesels in Latin America, page 17.

When we surveyed existing research about black carbon’s impacts on both climate change and public health, we and our partners at GNA found that — in contrast to global information — data about these impacts specifically in Latin America was quite sparse. Much more study needs to be done on both topics to understand the type and extent of the effects that black carbon emissions in Latin America are having on people and the environment. Nevertheless, enough data does exist to show that the problem is serious and warrants government action.

Some of our more interesting findings of the country-specific research include:

  • only nine of the 15 countries monitor for fine particulate matter emissions (which covers black carbon);
  • the air quality in all of the ten major cities that measure for particulate matter and fine particulate matter exceeded World Health Organization (WHO) recommended levels;
  • Brazil, Mexico and Argentina combined have 80 percent of the vehicles in Latin America;
  • yet the countries with the highest growth rate in vehicle fleets were Honduras and Nicaragua;
  • Chile and Mexico are the only countries with stringent vehicle emissions standards; and
  • only Chile has fuel quality standards strict enough to allow for major reductions in black carbon.

From Dumping Dirty Diesels in Latin America, page 18.

As I mentioned above, the good news is that proven strategies exist to significantly reduce black carbon emissions. In our report, NRDC and GNA recommend a three-part “systems” approach, which addresses emissions from both new and older vehicles. First, countries can adopt fuel quality standards requiring ultra-low sulfur content in diesel fuels. Second, countries can require stringent vehicle emissions standards, which would encourage the installation of emission control equipment on diesel engines such as diesel particulate filters, or promote alternative-fueled vehicles such as electric hybrids. Together these two strategies have reduced black carbon emissions from new vehicles by as much as 95 percent in other countries.

Complementing those two strategies, the third part of the system recommends that governments provide incentives to replace the oldest, most polluting trucks with cleaner, more fuel-efficient models. Interestingly, Colombia and Chile do this now. Further, 45 Latin American cities have implemented new bus routes that use clean buses and are replacing high-emitting buses.

In addition, our research clearly showed the importance of robust air quality monitoring systems in making policymakers and the general public aware of the high levels of dangerous emissions in their cities and countries. Governments can establish better air quality monitoring throughout the region, and share experiences and knowledge while doing so.

Finally, establishing other sustainable urban planning solutions such as Bus Rapid Transit (BRT) or Low Emission Zones (LEZs) can significantly help alleviate some of the congestion and air pollution in the transportation sector.  

Black carbon emissions are a major threat to public health and climate around the world. Latin American countries have an opportunity to reduce those emissions drastically, using proven solutions in the transportation sector — the region’s largest source of black carbon.

By requiring cleaner fuels and lower vehicle emissions, and replacing the oldest and dirtiest vehicles with newer, efficient ones, governments can help millions of people breathe easier — and simultaneously help combat climate change.  


Argentina, Brazil, Bolivia, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Uruguay and Venezuela. 

Landmark Transboundary Waters Agreement to Monitor Downstream Impacts of Tar Sands Development

December 3, 2014

Jennifer Skene, Ford Fellow, International Program, Washington, D.C.

A recent bilateral agreement between the governments of the Northwest Territories (NWT) and Alberta may offer Canadians increased protection against the tar sands industry’s impacts to northern watersheds. This month, after years of negotiations, the governments of the NWT and Alberta arrived at an agreement for bilateral management of the Mackenzie River Basin. The two parties released the Intentions Document for a Mackenzie River Basin Bilateral Water Management Agreement on November 5. This draft agreement provides a roadmap for protecting the ecosystems of the Mackenzie River Basin, which covers about 20 percent of Canada. Once consultations with Aboriginal governments and the public on the Intentions Document conclude, the NWT and Alberta will finalize the agreement.

The bilateral agreement, as a mechanism for protecting the waters of the Mackenzie River Basin, may also serve as an important step to monitor and possibly limit the negative impacts caused by the tar sands industry to downstream communities. Tar sands development has been identified as a major threat to the region’s water resources.  Consequently, the bilateral agreement has the potential to help ensure that tar sands operations, including tailings ponds, do not degrade the quality of water resources.  While the draft agreement contains broad goals that will require significant political will to implement, it offers a new avenue to ensure tar sands operators accountable for the ecological harm they could present.

History of Negotiations

The Mackenzie River Basin includes portions of British Columbia, Alberta, Saskatchewan, the Yukon, and the NWT and consists of major lakes and rivers such as the Athabasca River, Lake Athabasca, the Slave River, the Great Slave Lake, the Mackenzie River, the Peace River, and Great Bear Lake. It is one of the most pristine large-scale ecosystems in North America and serves as habitat for migratory birds and aquatic species.

Because the Basin spans multiple territories and provinces, any single government’s efforts to protect it would be insufficient. The 1997 Mackenzie River Basin Transboundary Waters Master Agreement between the territories and provinces sharing the Basin called for a comprehensive, collaborative plan for its protection, largely through the creation of bilateral agreements.

The NWT and Alberta initiated negotiations in 2007 when they agreed to a Memorandum of Understanding (MOU). The MOU acknowledged the need to protect aquatic ecosystems for future generations and to “support Aboriginal cultures” and the permanence of “existing developments and interests critical to the economic well-being of Alberta and the Northwest Territories.” After a drawn-out, seven-year process, the two governments announced in early November that negotiations had concluded, and they subsequently released the draft agreement.

Tar Sands and the Mackenzie River Basin

Tar sands mining is the largest resource development industry along the Athabasca River. Tar sands cover more than 600 square km, and their toxic tailings ponds cover about 170 square km. Their effects on the Mackenzie River Basin are numerous, affecting both water quality and quantity, along with the larger Basin ecosystem.  

Mackenzie River Basin. Credit: Mackenzie River Basin Board

Tar sands mining is water intensive. Extraction requires between 2 and 4.5 barrels of water to produce one barrel of oil. As of 2009, two-thirds of water allocations from the Athabasca River were for use in tar sands mining, and this number is only growing.

Athabasca River. Credit: Richard Taylor

Tar sands development also affects water quality. The industry’s extensive deforestation has reduced water filtration, leading to an increase in the deposition of contaminants. Studies have also found that the toxic tailings ponds are leaking into groundwater and rivers. Tailings dams pose the additional threat of a breach, which would have a devastating effect on the Mackenzie River Basin. According to water scientist Dr. David Schindler, a tailings breach would have a greater impact on the environment than the Exxon Valdez oil spill.

While tar sands are limited to Alberta, their effects are not. Because the rivers in the Mackenzie River Basin flow north to the Arctic Ocean, northern regions like the NWT experience effects from the actions of southern provinces like Alberta. As NWT Minister of the Environment and Natural Resources J. Michael Miltenberger has stated, “Everything they [Alberta] are doing, the repercussions tend to come this way.” While the northernmost tar sands are approximately 250 km from the NWT border, the industry’s effects can travel downstream into the NWT, especially as the industry continues to grow. Residents at Fort Chipewyan, which is less than 145 km from the border, have already reported changes in water levels and quality, health, and fish.

In addition, tar sands mining, which is greenhouse gas-intensive, contributes to climate change, which is a grave threat to the Mackenzie River Basin. Reduced snow melt has lowered the Basin’s water levels, while thawing permafrost has led to increased erosion. As the Pembina Institute has reported, climate change also affects the timing and volume of stream flow and, because of the lower water levels, pollutants become more concentrated.

Limiting the environmental impacts of growing tar sands development is thus necessary for any successful transboundary water agreement between the NWT and Alberta.

Implications for Tar Sands

While the draft agreement never explicitly addresses tar sands mining, it has several provisions that could limit or mitigate the industry’s effects.

The draft agreement’s Appendices lay the groundwork for a water classification system based on water quality and quantity at the border between the NWT and Alberta. In this Risk Informed Management (RIM) approach, the categorizations range from Class 1 for water bodies with low development and use, to Class 4 for waters that do not meet the agreement’s Transboundary Objectives. When a water body becomes Class 4, the NWT and Alberta are obligated to take immediate action to meet the Transboundary Objective.

While the draft agreement does not specify what constitutes acceptable Transboundary Objectives for water quality and quantity, it outlines procedural standards for determining what these levels are. For example, Section 6 defines the Transboundary Water Quantity Objective as “an amount of water equal to or greater than the sum of needs for the Ecological Integrity of the Aquatic Ecosystem plus 50% of the Available Water supply to the downstream Party, calculated at the border…”

With additional analysis, these broad, research-dependent definitions could result in precise requirements for water quality and quantity. Were this to happen, Alberta would be much more accountable for tar sands’ environmental effects. As it is, vagueness in environmental laws has allowed Alberta to stretch standards so that they essentially become meaningless. Explicitly mandating certain criterion for water quality and quantity would increase pressure on Alberta to mitigate the effects of tar sands so as to remain in compliance.

The transboundary agreement also creates an enforcement mechanism that could provide an additional means of holding Alberta accountable for harms caused by tar sands to water resources. Without the Canadian government’s enforcement of the Fisheries Act, Alberta has been able to avoid formal sanctions for its lax environmental regulations. The draft agreement establishes a Bilateral Management Committee, a quasi-judicial body that could, at either Party’s request, address issues related to violation or amendment of standards set forth in the agreement, known as “Transboundary Objectives.”

Perhaps the strongest influence the agreement can have on mitigating tar sands effects is through an increase in monitoring and information sharing. Despite reforms to tar sands oversight, Alberta has not established rigorous monitoring or information disclosure, and the industry remains clouded in secrecy. The province has kept much of the information on the integrity of mines and tailings dams confidential, despite promises for more disclosure. Nor have broad ecosystem effects of tar sands been investigated. This leaves the public and other governments like the NWT in the dark about possible health and environmental consequences of tar sands mining.

The draft agreement requires that the Parties share “[i]nformation about current and future Developments and Activities that might affect the Ecological Integrity of the Aquatic Ecosystem of the other Party.” The Parties are also required to implement monitoring programs necessary to fulfill the commitments in the agreement. While the information Alberta shares only has to relate to effects on the NWT, the bilateral agreement sets the stage for a heightened level of transparency for the tar sands industry.

Next Steps

Once consultations and the comment period end, the agreement will be finalized and implemented. Because the draft agreement is vague in many areas, much will depend upon the political commitment by the Alberta and NWT governments to follow through.   If Alberta is held accountable for setting and implementing the water quality and quantity standards outlined in the document and for the information sharing and monitoring requirements, this bilateral agreement could be an important step in addressing the growing impacts of tar sands development on the region’s water resources.

NRDC's Public Comments on the Clean Power Plan: How EPA Can Make Its Good Plan Even Better

December 3, 2014

David Doniger, Director, Climate and Clean Air Program, Washington, D.C.

NRDC submitted our public comments yesterday on the Environmental Protection Agency’s proposed Clean Power Plan to cut the climate-disrupting carbon pollution from the nation’s electric power plants.  NRDC supports EPA’s action under the Clean Air Act to clean up our power plants, and we show how EPA can make its good plan even better.  You can read the executive summary of our comments here, and the full comments are posted here.

Climate change is the central environmental challenge of our time, threatening our children with growing risks of rising seas, widening deserts, soaring heat, raging storms, runaway fires and withering drought.  Those threats are growing more urgent: the first ten months of 2014 have been the hottest, globally, since record-keeping began in 1880.  We have an obligation to protect future generations from the dangers of this widening scourge.

Power plants are the nation’s number one source of the dangerous carbon pollution that is driving climate disruption.  More than two billion tons of carbon dioxide — 40 percent of the nation’s total — spew forth each year from more than 1500 fossil fuel-fired power plants across the United States.  The Clean Power Plan will put the first-ever national limits on that pollution to protect our health and the stability of the climate.

Here are the main points we made to EPA: 

First, NRDC strongly supports the leadership of President Obama and EPA in issuing the Clean Power Plan under the Clean Air Act, the landmark law that after four decades continues to protect our health and our environment from dangerous pollution.  Poll after poll shows that the public is solidly behind the Clean Air Act, and solidly behind setting standards for carbon pollution from the nation’s power plants (see here, here, and here).  Americans have raised their voices to submit an unprecedented 8 million written comments in support of EPA’s carbon pollution standards for new and existing power plants.

Second, EPA can and must make its good plan even better — even more effective at cutting carbon pollution, saving customers money, and creating clean energy jobs.  NRDC has done the analysis, using the same modeling platform that EPA and industry use (the IPM® model), to show that we can cut power plant carbon pollution even more than EPA proposed for substantially the same cost as EPA’s plan, with huge public health and climate protection benefits that dwarf those costs.

The plan as EPA proposed it in June calls for cutting carbon emissions from the nation’s dirty power plants by 26 percent by 2020 and 30 percent by 2030, when compared to 2005 levels.  

By comparison, NRDC’s IPM analysis of the standards — analyzing the impact of three specific improvements that I’ll review below — yields carbon pollution reductions of 36 percent by 2020 and 44 percent by 2030, again compared to 2005 levels.  There will also be large additional reductions in sulfur dioxide and nitrogen oxides. These much larger pollution reductions can be accomplished at a cost of $6.4 billion in 2020 and $10.3 billion in 2030 (as compared with EPA’s June estimates of $7.5 billion in 2020 and $8.8 billion in 2030). 

The quantifiable value of climate protection and public health benefits from these reductions dwarfs those compliance costs.  NRDC finds climate protection and public health benefits worth up to $76 billion in 2020 and up to a whopping $119 billion in 2030.  And these are just the benefits on which economists can place a dollar value; the damage from turning our climate upside down goes well beyond that. 

What are the primary drivers of our new results?

NRDC’s comments suggest many improvements in the EPA proposal, but our modeling analysis focuses on three specific factors.

First, the costs of clean energy are falling dramatically, and EPA’s June proposal was not based on current cost data for renewable electricity and efficiency energy.  An NRDC issue brief published last month details how the costs and performance of energy efficiency and renewable energy have improved. We factored in up-to-date cost and performance data, and our analysis shows that the Clean Power Plan state-by-state emission reduction targets that EPA proposed in June 2014 can be met at a net savings to Americans of $1.8-4.3 billion in 2020 and $6.4-9.4 billion in 2030. More reliance on energy efficiency and renewables will also create hundreds of thousands of good-paying jobs that can’t be shipped overseas. And the lower costs of energy efficiency and renewable generating technologies open the door to getting substantially more carbon pollution reductions from the nation’s largest emitters.

We also took into account two other specific improvements in EPA’s proposal: 

  • In an October notice seeking further public comment, EPA explains that the original formula used to calculate state targets in its proposed rule did not correctly account for the emission reductions generated by renewables and energy efficiency. As EPA explains, the formula used in the proposed rule failed to fully account for the reduction in generation at coal and gas power plants that will occur when additional renewables are added to the grid and when we improve energy efficiency.  EPA sought comment on a corrected formula, and we used that formula in our updated analysis to capture the full emission reduction associated with ramping up renewables and efficiency.
  • EPA also asked for comment on an approach to better balancing state targets by adopting a minimum rate of transition from older high-emitting generation to lower-emitting sources.  We analyzed state targets that include conversion of 20 percent of coal generation in 2012 to natural gas generation over the period between 2020 and 2029.

These three factors — updating the cost and performance data for renewables and efficiency, correcting the target-setting formula to fully reflect the emission reductions from renewables and efficiency, and including a minimum rate of transition from higher- to lower-emitting fossil-fueled plants — produce the substantial additional carbon pollution reductions in our analysis, all at very reasonable costs.

Because NRDC’s analysis captures additional carbon pollution reductions from renewables and efficiency, we expect substantially lower natural gas consumption than EPA projected in the June proposal — about 10 percent less gas consumed in 2020, and 17 percent less in 2030.  The Clean Air Act empowers states to go beyond EPA’s minimum requirements, and we will work to ensure that their state plans maximize use of energy efficiency and renewable energy and minimize reliance on fossil fuels.

At the same time, NRDC is pressing EPA to curb dangerous leakage of methane — the second most important climate pollutant — from the oil and gas infrastructure that delivers gas to our power plants, as well as to our homes and businesses.  The reality is that while we work with the states to maximize reliance on clean energy, natural gas will be part of our energy mix for some time.  Practical, low-cost measures are available today that can cut methane leakage in half. The Obama administration is expected to decide on oil and gas methane standards this fall.  The Clean Power Plan plus action on methane are the critical one-two punch we need in the fight against climate change.

NRDC’s comments also recommend changes to make the Clean Power Plan more verifiable and enforceable.  Right now, EPA has proposed that carbon pollution cuts in each state be averaged in over a ten-year period between 2020 and 2029.  A further target takes hold in 2030.  We recommend setting five-year compliance periods — starting in 2020, 2025, and 2030, with a regular review every five years starting in 2020 to update the targets in light of new information, and to set targets for the out-years (e.g., 2035) based on the best forecasts at the time.  This is a structure that will keep the standards current as technology and costs continue to improve, and that will drive towards the long-term carbon pollution cuts we need to prevent unmanageable climate disruption. 

Many states and a number of power companies support the Clean Power Plan.  Still, we know that some quarters of the fossil fuel industry — and, of course, some politicians — will continue to howl at the proposal, and even more so at the improvements NRDC recommends.  They’ve claimed the sky is falling every single time EPA acts to clean the air, and every single time they’ve been wrong.

Some are out there saying we should put fossil fuel profits ahead of our children’s future. We’re not going to do that.  We cannot continue with business as usual and leave our children and future generations a world turned upside down by unchecked climate change. 

Others are deliberately misleading the public about this plan’s impact on coal companies and coal miners. Mechanization and market shifts are the main reasons why coal jobs have been declining, and that’s been happening while clean energy jobs are on the rise. We need to do a better job linking the opportunities of the growing clean energy sector to the skills of many in the coal mining industry who are struggling to hang on to their jobs, and we are committed to help with that as EPA completes its standards and as states write their implementation plans.

Still others warn of power shortages if we dare to move forward into the clean energy future. Most of the recent studies simply fail to account for the potential of renewables and efficiency.  Moreover, the Clean Power Plan will phase in progress in a way that complements the systems we have in place to ensure reliable and affordable energy for all Americans.  We can have both cleaner and reliable power.

Let the industry and its political allies cry wolf, as they always do. The people who built this country, and will lead it into the future, have always looked forward, not back. Looking forward, we see an American economy powered into the 21st Century by the clean energy solutions of tomorrow. We see a nation committed to protecting future generations from the dangers of climate change. And we see a people healthier, more prosperous and more secure tomorrow, because of what we choose to do today.

From sofas to streams: toxic chemicals sneak out of homes via dirty laundry

December 3, 2014

Veena Singla, Staff Scientist, Health Program, San Francisco

You might be washing more than the green guacamole stains from yesterday’s messy burrito out of your favorite shirt when you do the laundry. Surprising findings from a new paper show that toxic chemicals used in our everyday products move outside by hitching a ride in dirty laundry water, and end up contaminating ecosystems such as rivers and streams.

The study from the Washington Toxics Coalition was published in the peer-reviewed journal Environmental Science & Technology and focused on toxic flame retardant chemicals that are used in many of our products like sofas, couches, recliners, electronics and home building insulation.

We’ve known for a long time that the flame retardant chemicals used in these products are found in waters globally: oceans, lakes, streams, rivers and even drinking water. Flame retardants do travel to rivers and streams via polluted runoff, but this doesn’t account for everything. Where are the rest of the flame retardants in water coming from?

The scientists started with what we do know: that flame retardants move from products to people, as shown below.

Flame retardants are added to furniture filling but aren’t chemically attached to the material. The flame retardants continuously move out of the furniture into indoor air and dust. The chemicals enter people’s bodies when they breathe contaminated air and get contaminated dust on their hands and in their mouths.

The researchers discovered that this contaminated dust plays a key role in how flame retardants get into water, too. They tracked flame retardants through four steps as the chemicals moved from living room to lake (orange boxes in picture below).

Based on the findings of the study, it seems that contaminated dust sticks to our clothes whenever we walk into our house, sit on the couch, or otherwise come into contact with the dust. Flame retardants in indoor air also appear to be sticking to our clothes. When we put our clothes in the laundry, the flame retardants wash off into the water. The flame retardant contaminated water flows from houses to wastewater treatment plants, where the treatment processes don’t remove or break down some of the chemicals very well. Finally, the flame retardant contaminated water is released from treatment plants into water bodies like rivers.

This may seem insignificant, since such a miniscule amount of flame retardants can stick to any one person’s clothes. But, the study found that for certain flame retardants, laundry water was likely the main culprit contaminating water into and out of wastewater treatment plants. When you put it all together, it adds up to some serious toxic tonnage—the authors estimated that for one flame retardant, about 400 tons of the chemical might be released into waters nationally due to this process in one year.

For policy makers, this is yet another impact of these chemicals that needs to be considered—flame retardants used in our indoor products don’t just end up in people, but in our rivers, lakes and streams where they can affect water quality and be toxic to aquatic plants and animals. Many flame retardants are also persistent in the environment—they’re not broken down by natural processes, and can contaminate drinking water, plants and animals in our food chain.

But what does this mean for me and you? Well, this is yet one more reason to avoid flame-retarded products wherever we can.  Flame retardant chemicals have been added to the filling inside U.S. upholstered furniture, but experts agree that these chemicals are not needed in order to make furniture fire safe. There are safer, healthier options for flame retardant-free furniture available at stores now—better for you, me and the fish in the sea!

Relying More on Smarter Energy Use Will Strengthen Limits on Carbon Pollution, Lower Costs

December 2, 2014

Sheryl Carter, Co-Director, Energy Program, San Francisco

We have an obligation to protect our children’s health and their futures and that means trying to put the brakes on climate change, much of which is caused by the fossil fuels burned in power plants to meet our energy needs. And while the Environment Protection Agency (EPA) plan to cut that dangerous pollution would let states use energy efficiency to help meet their emissions reductions targets, it doesn’t take into account nearly enough of the energy savings that are possible without sacrificing our comfort or economy.

The Clean Air Act requires EPA to set the limits on carbon pollution from existing power plants at a level based on measures that have been proven to work. There’s no doubt that energy efficiency qualifies because for more than 30 years, America’s utilities, state regulators, businesses, and energy service companies have relied on investments designed to optimize our energy use and cut waste. The result? Savings for customers and avoiding the need for more costly investments like having to build new power plants that also pollute our air.

We can do more

EPA’s proposed power plant emissions limits only assume utilities and state programs (like weatherization and rebates for highly efficient appliances) can help customers save enough energy to equal 1.5 percent of total electricity sales in each state every year. But this is big underestimation of energy efficiency’s potential, which I noted in June, because it:

  1. Understates the amount we can save and how quickly we can do it;
  2. Overestimates the costs of achieving that level; and
  3. Excludes a number of important additional opportunities for cutting energy waste in buildings, appliances, multi-family housing, and industry.

When NRDC filed formal comments this week on EPA’s proposal, we focused on making a good plan even better. We showed it’s possible without much additional effort to get savings equal to at least 2 percent of annual electricity sales. And upping the target by just one-half of a percent per year would deliver major savings on customer utility bills, trigger a boom in clean energy middle class jobs, and cut power plant carbon pollution by more than 40 percent by 2030. That would far surpass the 30 percent emissions reduction goal President Obama outlined when the EPA announced its proposed Clean Power Plan last June.

Specifically, we found:

  • EPA’s projection that the equivalent of 1.5 percent of retail electric sales can be saved through energy efficiency in every state is achievable, but too low. In fact, 15 states have already achieved that level, or have standards in place to meet that target or surpass it (Arizona, California, Colorado, Hawaii, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, New York, Ohio, Rhode Island, Vermont, and Washington). NRDC calculates that using updated assumptions and additional proven energy-saving measures could produce savings equal to at least 2 percent of retail sales annually.
  • EPA projected efficiency savings could only grow by the equivalent of two-tenths of a percent of total annual electric sales, which is too low.  Arizona and Michigan are just two interesting examples of states ramping up efficiency far faster, as shown in two new charts below. In addition, our comments provided EPA with evidence of a wide cross-section of states, representing different electric industry structures, electricity costs, parts of the country with different climates and electricity needs, mixes of residential, commercial, and industrial customers, and various modes of implementation that increased savings at more than double or triple that rate. An assessment by the Analysis Group, also submitted to EPA, provides additional and significant examples of both growth and overall savings achievements.

Arizona’s Annual Energy Efficiency Savings and Ramp Rates Expressed as a Percentage of Retail Sales, 2006 – 2013

Michigan’s Annual Energy Efficiency Savings and Ramp Rates Expressed as a Percentage of Retail Sales, 2007 – 2013

Source for both figures: Paul J. Hibbard, Andrea M. Oakie, and Katherine Franklin, Assessment of EPA’s Clean Power Plan: Evaluation of Energy Efficiency Ramp Rates and Savings Levels, Analysis Group, Inc. December 1, 2014.

  • EPA assumed that energy efficiency programs cost 8.5 to 9 cents per kilowatt hour (kWh) to implement but a recent study by Lawrence Berkeley National Laboratory shows the average price is just 4.4 cents kWh. Improvements in products like LED light bulbs, energy thermal windows and other building materials that cut energy losses have made it easier for the nation to use energy smarter – and cheaper.

We need more efficiency

A recent NYT article quotes the head of energy efficiency at the International Energy Agency, Philippe Benoit, as saying “Efficiency will have to account for 40 percent of the emissions reductions if warming is to be limited to 2 degrees Celsius, as world leaders have pledged.” The agency estimates that it will cost $14 trillion between now and 2035, more than $600 billion a year, doubling the current rate of spending on efficiency. (Note: the upfront costs for cutting energy waste pay off big in reduced utility bills and less pollution when we don’t need to make as much electricity.)

Fortunately, our energy efficiency resource is vast, and grows continuously as new technologies are developed. One recent example can be found in the Northwest Power and Conservation Council (which includes Washington, Oregon, Idaho and Montana), whose Sixth Power Plan estimated available cost-effective energy efficiency potential at more than double the already aggressive levels in its plan five years earlier. The council attributed this increase in large part to technological innovation that resulted in creating new efficiency opportunities and reduced costs. In fact, the region has already greatly surpassed its doubled five-year goal.

That kind of progress shows efficiency also can help us give our children a better world. Shouldn’t we fully take advantage of the cleanest, cheapest and fastest way to reduce our carbon footprint?