Climate Crisis: Keystone XL Supreme, Cap and Trade Takes Hit and California Geoengineering
Welcome back to TRNN’s Climate Crisis News Roundup. In recent weeks, this column has focused heavily on the intersection between COVID-19 and the climate crisis, and that will continue as the pandemic sweeps the world. Add to that the recent police killing of George Floyd in Minneapolis and eruption of protests across the country and it’s an understatement to say that we live in some crazy, scary, and historic times.
With that in mind, this space will continue to report on and examine news from an environmental and climate justice lens.
If you have a story you think deserves a spot in the roundup or story pitches in general, get in touch with me at [email protected] or on Twitter at @SteveAHorn. You can read the previous edition here.
Trump Keystone XL Supreme
The Alberta, Canada to Steele City, Nebraska Keystone XL Pipeline could potentially soon go before the highest court in the land. And the fate of many other pipelines, present and future, could soon get a hearing before the U.S. Supreme Court.
That’s because on June 16, President Donald Trump’s Solicitor General Noel Francisco (who resigned on June 17) filed a petition to the Court to bring a case currently in its early stages in the U.S. Court of Appeals up to the panel of nine. The legal question in dispute is use of the Nationwide Permit Program 12 (NWP 12), a fast-track permitting program overseen by the U.S. Army Corps of Engineers. The Corps has used the permit thousands upon thousands of times since 2012 to issue permits to several handfuls of pipelines.
Thousands, really? How so? Because NWP 12 oversees permits for “single and complete” projects half an acre in size and smaller which cross federal waters. To get an NWP 12, then, pipeline owners must get hundreds and sometimes over 1,000 NWP 12 licenses from the Army Corps to complete their projects.
Environmental groups have long argued that using NWP 12 in this way, dating to its first use in 2012 for the southern leg of Keystone XL—which runs from Cushing, Oklahoma to both Port Arthur, Texas and the Houston Ship Channel—is a form of illicit “segmentation” and a violation of basic tenets of the National Environmental Policy Act, the bedrock environmental law. But they had never gotten a landmark win until April 15, when Judge Brian Morris ruled for a vacating of NWP 12 on the grounds that Keystone XL owner TC Energy—formerly known as TransCanada—did not analyze the impacts crossing the Yellowstone River and Cheyenne River could have on species living in that habitat, and thus violated the Endangered Species Act.
Corporate attorneys took notice after Morris’ ruling, writing that vacating NWP 12 could have enormous impacts across the pipeline industry. Several companies and trade associations legally intervened in that case—including American Gas Association, American Petroleum Institute, Association of Oil Pipe Lines and TC Energy—making their case for the Court of Appeals to halt Morris’ order to vacate the program until the appellate case runs its course. The Court of Appeals denied this request, though. And so the Trump administration has upped the ante, making the same ask of the U.S. Supreme Court.
“The district court had no warrant to set aside NWP 12 with respect to Keystone XL, let alone for the construction of all new oil and gas pipelines anywhere in the country,” argued Francisco, who called Morris’ order a violation of Article III of the U.S. Constitution because that section of the Constitution bars using a “vacatur or an injunction — except to the extent necessary to redress a concrete and particularized injury suffered by the plaintiff in suit.”
Francisco further stated that, since 2017, 58% of NWP 12 permits granted have gone to oil and gas pipeline companies and 3,200 permits were pending when Morris published his April 15 ruling. The Associated Press reported that the Trump administration has used NWP 12 37,000 times since March 2017.
American Petroleum Institute and the broader industry coalition has also written a brief asking for a stay of the vacating of NWP 12, writing that “Coalition member’s project may face up to two years of delay and significant increases in costs” if the District Court ruling remains in place, adding that “The District Court’s order creates a real and immediate likelihood that pipeline projects, and their environmental benefits, will be delayed, halted, or stopped as a result of the need to obtain an individual permit in lieu of the streamlining authorization provided by NWP 12.”
TC Energy also filed a brief with the Supreme Court, saying that a Supreme Court stay of the District Court’s vacate order by early July will allow the company “to commence construction by early August, which would enable the company to complete a meaningful, though truncated,amount of pipeline construction in 2020.”
“Without such authorization by early August, however, TC Energy would be forced to delay almost all of the pipeline construction to 2021, limiting work in 2020 to construction of certain pump stations, camps, and other ancillary facilities,” the company further explained. “If faced with such a delay, TC Energy would undertake accelerated construction in 2021 to try to complete two-year’s worth of pipeline construction in 2021, which would increase costs by approximately $200 million.”
Tar sands oil is among the most carbon-intensive crude on the planet. For Bill McKibben, co-founder of the organization 350.org, the climate advocacy organization which has led the fight against Keystone XL since the 2011 Tar Sands Action multi-day civil disobedience event held in front of the White House—the latest move by the Trump administration comes as no surprise.
“The Trump administration treating new pipeline construction as an emergency during the hottest year yet recorded, and amidst an enormous glut of oil, is a reminder that when it comes to energy the White House is just a branch office of the fossil fuel industry,” McKibben, author of the first journalistic book on climate change published in 1989, wrote via email. “The president should wash your windshield with every fill up.”
California Cap and Trade Case
In a June 12 ruling, the California Court of Appeal shot down a cap and trade system proposed in San Diego County which had served as a centerpiece of its Climate Action Plan proposed in 2011.
Per the Global Warming Solutions Act of 2006, every county must have a Climate Action Plan. San Diego County, the second most populous in the state and fifth most nationwide, proposed in 2011 to utilize a cap-and-trade carbon offset plan to enable real estate developers to continue “sprawl” style bailout of housing. That scheme, which allows those developers to purchase external carbon offsets as emissions allowances, came under fire by the climate and environmental movement though.
Responding, those groups—including Sierra Club, Center for Biological Diversity, Climate Action Campaign and others—filed a lawsuit saying that the cap-and-trade system will not solve the county’s climate issues, but rather exacerbate them. The groups argued that the plan ran counter to the California Environmental Quality Act because it did not properly analyze foreseeable emissions increases which could occur if put into place.
Cap-and-trade has long faced criticism from the climate justice movement for offering a de facto “indulgence” system for polluters—such as the fossil fuel industry, Big Ag and in this case Big Real Estate—to continue business as usual and then pay back for its emissions sins via offsets. Cap-and-trade also does little, they say, to tackle the pollution impacts faced by communities with people who are disproportionately working class and people of color.
In California, emissions from vehicles create 41% of the state’s greenhouse gas inventory, overwhelmingly the top emissions source in California. The plaintiffs in the case argued that the county’s cap-and-trade plan would only incentivize more buildout of housing in the county’s outskirts in its wildlands, in turn putting more vehicles on the roads.
Because its policy would have major impacts on the state’s ability to meet climate goals, California Attorney General Xavier also intervened in the case in October 2019, filing an amicus brief detailing why the state opposed the county’s plan.
“Ultimately, the CAP in its current form will perpetuate current sprawling development patterns, which will impede the ability of the region and State to reach their long-term climate objectives,” Becerra wrote of the San Diego County plan in his October 2019 amicus brief. “This is particularly concerning because of the crucial role of local governments in obtaining important [vehicle miles traveled] reductions.”
Ultimately, the Court of Appeal agreed, concluding that the county’s plan creates “unenforceable performance standards and improperly defers and delegates mitigation.”
“The CAP is not inconsistent with the County’s General Plan,” wrote the Court. “However, the County abused its discretion in approving the CAP because the CAP’s projected additional greenhouse gas emissions from projects requiring a general plan amendment is not supported by substantial evidence.”
San Diego County climate advocates celebrated the court ruling, calling it a win against “sprawl” style real estate development.
Join us in calling on the County of San Diego to develop a new Climate Action Plan that:
1) protects our health and safety,
2) meets state law,
3) stops sprawl development in favor of smart growth near jobs and transit.
Read the Court’s decision: https://t.co/I58K6oa1w1
— CAC (@sdclimateaction) June 16, 2020
Reacting to the ruling, Becerra tweeted that, “Victories like this will help California get back on track to meet its greenhouse gas reduction goals.”
Victories like this will help California get back on track to meet its greenhouse gas reduction goals under SB 375.
— Xavier Becerra (@AGBecerra) June 13, 2020
But the Court, in no uncertain terms, wrote that the ruling did not apply more broadly to cap-and-trade schemes elsewhere in the state. That includes the state’s own cap-and-trade system, contested for many of the same reasons as the San Diego County plan by climate justice groups. Cap-and-trade is the centerpiece of climate policy in California, renewed in 2017 until 2030.
“To be abundantly clear, our holdings are necessarily limited to the facts of this case,” the Court ruled. “Our decision is not intended to be, and should not be construed as blanket prohibition on using carbon offsets—even those originating outside of California—to mitigate [greenhouse gas] emissions under CEQA.”
Gary Hughes, the California Policy Monitor for Biofuelwatch and a longtime critic of the state’s cap-and-trade system, critiqued the ruling’s narrowness.
“It seems like the court is exposing contradictions in offsetting that obviously would apply in other contexts, even if in this instance it is outside of scope of litigation,” he told The Real News. “The court may be willing to give the state a pass on flawed science and erroneous assumptions underpinning pollution trading, for whatever political or legal reason. The global climate is, however, totally indifferent to politics.”
Diane Takvorian, executive director of the San Diego Environmental Health Coalition and a member of the California Air Resources Board, which oversees the state’s cap-and-trade system, also applauded the ruling and offered a broader critique.
“Offsets and other market mechanisms that allow developers to buy their way out of reducing pollution are not acceptable,” she told The Real News. “These programs exacerbate inequities in disadvantaged communities that are most vulnerable to the health and climate crisis.”
The ruling comes as the state’s cap-and-trade system is in a different crisis, an economic one, because it is entirely reliant on high emissions levels to fund the program. Emissions are way down in 2020 due to the COVID-19 economic crisis. That a system which in theory is meant to curb carbon emissions finds itself in crisis when emissions levels sink symbolizes the very contradictions noted by Hughes. The California Legislature’s budget passed on June 15 calls for the California Air Resources Board “to conduct rulemaking to consider changes to the Cap-and-Trade Program” in light of the economic struggles.
And California again, but this time in the state capital, Sacramento.
As recently reported by The Real News, the state’s climate leadership is toying with the idea of geoengineering in recent months by considering a technique called Direct Air Capture. Geoengineering is a plan to use sophisticated technology to reverse engineer the greenhouse gas effect that causes climate change and direct air capture is a proposal to vacuum in carbon dioxide caught in the ambient air, backed by companies such as Occidental Petroleum, Chevron, and ExxonMobil.
But it’s not the only technology under consideration by the state’s climate policymakers. The California Strategic Growth Council is also seemingly considering another technique called Solar Radiation Management (SRM) in partnership with a team of researchers convened by Harvard University. Calling the coalition Stratospheric Controlled Perturbation Experiment (SCoPEx), the group says it will engage in “a scientific experiment to advance understanding of stratospheric aerosols that could be relevant to solar geoengineering.” Louise Bedsworth, Executive Director of the Strategic Growth Council, serves as chair of the advisory council for SCoPEx.
SRM, if achieved on a large-scale, would redirect some of the sunlight radiating through the greenhouse canopy in the Earth’s atmosphere. But the technique has also garnered much trepidation due to its still widely unknown and understudied atmospheric impacts. And like cap-and-trade, climate justice groups say it enables business as usual to unfold.
“It gives political leaders a false but enticing way to avoid confronting the carbon giants,” wrote dozens of environmental justice groups from around the world last year in an open letter to SCoPEx responding to its launch. “The fossil fuel industry has been promoting and funding several forms of geoengineering projects for years for one simple reason: it will allow them to continue with their oil, gas and coal business, and avoid addressing the root causes of climate chaos.”
After coming under criticism by that group, the Newsom administration is now distancing itself from the SCoPEx. Recently, Harvard scrubbed the Strategic Growth Council’s logo from its website, with no explanation given as to why.
After not getting a response to the open letter and seeing the website scrubbed, members of that same coalition pressed the Chairwoman of the Strategic Growth Council and Newsom’s top climate aide, Kate Gordon, for answers. Gordon, a longtime confidante of climate philanthropist and major Demoratic Party donor Tom Steyer—who ran for president earlier on in this presidential cycle—distanced the Growth Council from SCoPEx.
“Bedsworth participates in SCoPEx in her personal capacity; no state resources have been expended on this work and it is unrelated to her work at the Strategic Growth Council,” wrote Gordon in a letter to the group that they published online.
On May 16, nearly a year after SCoPEx’s launch, Bedsworth endorsement of the program with the Strategic Growth Council logo still remained on the Harvard group’s website. Nothing mentioned her working in a personal capacity in that initial statement.
But by just a couple weeks later, the advisory committee had created an entirely new website that does not show the Strategic Growth Council’s logo.
Image Credit: Twitter
In a May 18 letter published on its website the advisory committee wrote “We are contributing to this Committee as individuals with different expertise, experiences, and perspectives, and we will remain true to our values and beliefs as we conduct this work.” Gordon pointed to this letter in her response to the groups.
Bedsworth also wrote similarly of the relationship between the Strategic Growth Council and SCoPEx.
“I am undertaking this work in a volunteer capacity based on my previous work on broader issues of research governance, related both to solar geoengineering and other topics,” she wrote in a June 11 open letter. “The SCoPEx team has received no funding or endorsement by the Council, nor have any state resources been used to support this work. We have updated the Advisory Committee’s website to make this clear.”
Bedsworth did not respond to a request for comment seeking clarification on what types of ethics clearances took place allowing her to work on the advisory council in this capacity. Gordon responded by pointing The Real News Network to Bedsworth’s statement, offering no further clarifications.
The groups see the whole episode as Newsom administration climate officials merely changing window dressing.
“Strategic Growth Council officials, including Bedsworth, have attempted to backpedal by issuing statements claiming the Strategic Growth Council has nothing to do with SCoPEx, and that Bedsworth is acting in a personal capacity,” they wrote. “To date, Bedsworth has not stepped down. The Executive Director of the California Strategic Growth Council continues to serve as the chair of a committee designed to legitimize something it has no authority to authorize.”
Correction 06/22/2020: A previous version of this article referred to Louise Bedsworth, Executive Director of the California Strategic Growth Council, as the chair of SCoPEx. She is actually the chair of the advisory council for SCoPEx and we have updated the article accordingly. We regret the error.