Climate of Hypocrisy? The Peculiarity of Glocal Problem Solving

To solve a global problem, you might have to bracket its local aspects.

Bill McKibben’s recent column in Medium on physics—or, more specifically, the nonnegotiability of CO2e emissions’ effects in the atmosphere—took President Obama to task for his visit to Alaska and what he called the President’s “climate change hypocrisy.”  How can the Administration claim to be fighting for future generations on climate when it’s simultaneously opening up vast areas of the Arctic to oil and gas development—areas that had been off-limits?  Many on the left have begun voicing this same hostility, perhaps channeling their inner Hugh Hewitt (“I’ll believe it’s a crisis when these people telling me it’s a crisis start acting like it’s a crisis.”)

With great respect to Mr. McKibben (who I greatly respect), this doesn’t quite capture the current predicament and may even end up further worsening it.  It raises what I think has become global climate disruption’s most frightening paradox: with both mitigation and adaptation now public imperatives (of the first order), the federal government’s response must be both to armor for the worst and to struggle, hustle, and inspire everyone to contribute to avoiding it.  This may sound like it can be done coherently.  But in our political system it has quickly ended up in a muddle of priorities, positioning and “messages.”

A ton of emissions from the Arctic oilfield of tomorrow is, for what we know, totally fungible with a ton emitted in the distant future or on the other side of the planet.  Yet the consequences of any plan to avoid emissions are an altogether different matter.  The consequences of avoided emissions are deeply, perhaps inherently, localized.  And with that comes the need to assess others’ likely responses to [our] behavior before we act.

The Challenges of Fossil Fuel Accounting

McKibben’s piece gave needed attention to a paper published in Nature early this year roughly calculating what a global carbon diet might look like.  Here’s his description:

If we’re to have any chance of meeting even Mr. Obama’s weak goal of holding temperature rise to [2°C], we have to leave most carbon underground. That paper, in particular, showed that the coal reserves in the Powder River basin in the West and the oil in Canada’s tar sands had to be left largely untouched, and that there was no climate-friendly scenario in which any oil or gas could be drilled in the Arctic.

That’s all true (except maybe the bit about a 2°C goal being “weak”).  But it’s missing the parts calculating what others around the world must leave in the ground.  And McGlade and Ekins say nothing about what others will or might do in response to US climate policies.  Take the lessees in these cases just for the sake of argument.  If Shell is frozen out of the US’s Arctic offshore lease program, will this oil “super major” just make do with less?  Will any of its peers if Obama froze them all out and ended the offshore leasing program during his term?  The vast majority of oil development on Earth today is being prosecuted by state-owned enterprises in Saudi Arabia, Egypt, Russia, Kazakhstan, Brazil, West Africa, and elsewhere.  They typically need partners like Shell, Exxon, and BP: partners with real know-how. A McKibben Administration that drove the supermajors out of the business here would probably drive them further into the business there.  In short, others’ reactions to our efforts to avoid emissions take center stage.

McGlade and Ekins summarized their claim as follows:

Our results suggest that, globally, a third of oil reserves, half of gas reserves and over 80 per cent of current coal reserves should remain unused from 2010 to 2050 in order to meet the target of 2°C. We show that development of resources in the Arctic and any increase in unconventional oil production are incommensurate with efforts to limit average global warming to 2°C. Our results show that policy makers’ instincts to exploit rapidly and completely their territorial fossil fuels are, in aggregate, inconsistent with their commitments to this temperature limit.

517 Nature 187 (Jan. 8, 2015).

Others’ development around the world must be controlled as much or more than our own by these calculations.  But the “others” aren’t just in the former Soviet Union, the Middle East or Brazil.  They include our own politicians here at home who would demagogue the paradox to maximum electoral effect, perhaps even swinging control of our highest offices to those who think climate change is a hoax.

Pub. L. No. 91-190: Stuck in the Middle

As we’ve chronicled here for a while now, the National Environmental Policy Act has become the tool of choice in the legal fights opposing, complicating, delaying, and generally trying to render uneconomic all kinds of fossil fuel developments within the legal boundaries of the United States.

Last week, the Ninth Circuit, in an unpublished opinion, overturned a district court’s confused denial of local and regional groups’ standing to challenge oil and gas leases being sold in Montana.  The lower court saw these groups’ challenge to the action and BLM’s refusal to raise and consider the GHG consequences of new leases in the attendant NEPA documents as that they were pressing “generalized grievances” which the court couldn’t address with relief against these particular leases.  In an unfortunately cryptic passage, the Ninth Circuit responded that

[a]lthough Appellants’ claims of procedural error relate to the government’s alleged failure to consider climate-change effects, Appellants’ injuries which resulted from that error need not.

Montana Envtl. Info. Ctr. v. BLM, No. 13-35688, Slip Op. at 3 (citing Duke Power Co. v. Carolina Envtl. Study Group., Inc., 438 U.S. 59, 78-79 (1978).  For constitutional standing purposes, the Ninth Circuit rightly noted, “it matters only whether the challenged governmental action would cause the plaintiff a concrete and redressable injury.”  After they show a localized injury from the surface-disturbing activities of still more fossil fuel development in Montana, the plaintiffs can argue that NEPA requires BLM to weigh the climate change implications of that development.  Maybe this points up some hypocrisy within our standing doctrines.  But I rather think it demonstrates the awkward positioning our agencies have taken up between the very localized scale and scope of their own actions and the very global scale and scope of climate change and their contributions thereto.

Action/Inaction: The Paradoxical Focus on the Immediately Obvious

Another case just handed down last week in the federal district court for the District of D.C. shows the perverse premium our system—and NEPA—puts on discrete “actions” as opposed to programmatic, directional trend lines.  Plaintiffs Friends of the Earth and some local and regional resource councils challenged the Interior Department and old-typewriterBureau of Land Management (BLM) for what they alleged was a stale EIS in connection with the “national coal leasing program.”   That EIS was completed in 1979, long before climate concerns were a part of the coal equation.  Heck it was even before the word processor came along to make “cut and paste” into NEPA’s worst habit.

The original EIS was a programmatic EIS, one of the few BLM ever did on something as big and controversial as coal leasing in general.  (Indeed, parts of that move were appealed all the way to the Supreme Court.)  The plaintiffs’ cleverly argued that the EIS has never been updated, notwithstanding the obvious fact that “new” and “significant” information about coal mining and combustion has since emerged, seemingly smack in the middle of CEQ’s guideline on when to update an EIS.  See 40 C.F.R. § 1502.9(c)(1).

The court, Judge Reggie B. Walton presiding, was obliged to deny the challenge and hold that the 1979 EIS need not be updated. The holding rests mostly on the fact that there actually isn’t a “national coal leasing program” any more if by program we mean someone in charge deciding whether, how, or by what timing to continue coal production on federal lands.  It is just something that we’ve done for a long time and continue to do bit by bit.  Indeed, it’s become so neglected, we haven’t even been charging fair market value for federal coal. {See this IPI report from NYU.}

That kind of thing as a whole won’t trigger NEPA or review under the Administrative Procedure Act in the ordinary course.  See Western Org. of Resource Councils et al. v. Jewell, ___F. Supp. 3d ___ (D.D.C, 2015), Slip Op. at 3 (citing Norton v. South. Utah Wilder. Alliance, 542 U.S. 55, 60 (2004)). If it did we might have more of our scarce cognitive resources devoted to federal mitigation planning than we seem to today. FOE’s President Erich Pica made this statement:

We are disappointed in the court’s decision but we plan to appeal and continue this effort until the BLM agrees to undertake a comprehensive environmental analysis of the entire coal leasing program. . . . Forty percent of the coal burned in the U.S. is mined on federal lands under BLM leases and was responsible for fourteen percent of U.S. fossil fuel emissions over the past decade.  BLM’s failure to consider the implications of climate change is not only contrary to [NEPA] it also undermines President Obama’s Climate Action Plan.

With climate change—as with NEPA—localized dynamics and tradeoffs have their own salience.  And they are often more decisive than the “bigger” or broader consequences that myriad actions and trends combine to threaten.  If we want to bend the whole curves involved here, we all need to pick our targets alive to that fact.

{Image: Simon Green’s Distance Field Ray experiment — inspired by M.C. Escher}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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