What We Are Watching: Atmospheric Trust Doctrine in the 9th Circuit

Three judges in the 9th Circuit are poised to rule on the leading question in environmental litigation: the legal right to a livable climate. 

Unlike the early decades of U.S. climate action, which focused on legislation and federal agencies, environmental advocates in recent years have increasingly had to rely on states and the courts to demand progress. The 2005 court ruling in Massachusetts v. EPA recognized that sea level rise injures coastal states and required the EPA to regulate greenhouse gasses as pollutants. More recently, cities like New York and Boulder filed suit against Exxon Mobil for their role in the climate crisis. In 2015, youth petitioners brought what may become the flagship climate case of our time against the President and government of the United States. Juliana v. United States alleges that government inaction is denying young people their right to an inhabitable planet. Juliana relies on a long history of public trust doctrine that requires the state to responsibly manage resources held in trust for the public, and advances a new field of “atmospheric trust” litigation. Colorado-based youth climate organization and CEA ally Earth Guardians is a lead plaintiff in the case. 

Thus far, the government has filed numerous procedural challenges seeking to have the District Court throw out the case, or for higher courts to intervene. The case has cleared most of these procedural roadblocks, and the higher courts, although expressing some skepticism about its overall viability, have allowed the case to proceed. 

Most recently, the government filed an appeal to the 9th Circuit to review the plaintiffs’ standing to bring a case. The question of standing often determines the fate of environmental litigation. For example, one of the key hurdles states cleared in Massachusetts v. EPA  was the lack of direct injury due to the small amount of state-owned land that would be affected (the Supreme Court ultimately found that climate change represented a sufficient threat to state sovereignty to give them a claim to injury). In this case, the question of standing challenges the core of atmospheric trust doctrine as the basis for a legal claim. Oral arguments were heard on June 4th

Now the nation and the world waits to see whether the 9th Circuit will allow the case to proceed to trial by affirming Judge Aiken’s conclusion that the youth of this country have a cognizable legal right to a climate capable of sustaining human life.

Further reading: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2954661

Thank You For An Amazing Colorado Gives Day!


Thank You To Everyone Who Donated To CEA!

Your support helped raise enough money to allow us to continue to lead the way in addressing climate change and accelerate the transition to the post-fossil fuel world.

 

Our work has never been more vital, and because of yours and others’ generous donations we will continue to help shape Colorado’s energy future.

Thank you again, your gift is helping to make a better environment for the next generations.

Reflecting on Sierra Club’s ‘Building a Carbon Free Grid’ Conference

This month, I had the opportunity to represent Clean Energy Action at the Sierra Club’s ‘Building a Carbon Free Grid’ conference in New Orleans, where hundreds of lawyers, energy economists, policy experts and organizers convened to strategize over the technical and movement-building requirements to achieving a just transition away from fossil-fuel powered electricity system towards one that is powered by renewable energy.  Over the course of three inspiring, information-rich days, dozens of panelists provided a broad survey of the work that is being done across America to facilitate the transition to a renewably-powered future; the grassroots campaigns, the economic analyses and the legal battles. Since the conference, a few realizations have been solidified in my mind and they’re mostly good news:

  1. The movement for energy democracy is alive and well.

Perhaps the most inspiring takeaway is the realization that the fight for energy democracy is alive and well and the fight is taking place across the United States from California and Colorado to Mississippi and Philadelphia.  Take for example the work of Soulardarity, a non-profit in Highlands Park, Michigan that is combatting energy poverty by installing community-owned solar powered street lights after their utility, DTE Energy removed over 1000 streetlights from the community to cut costs.  Or consider the work of One Voice, a non-profit from Jackson, Mississippi that is educating and empowering historically disadvantaged community members to run for leadership positions within Mississippi’s rural electric cooperative utilities that provide electricity to 50% of the state’s population.  These are just two examples among many of organizations that are harnessing the opportunity to regenerate economic and political power amidst the transition towards a clean, affordable, flexible energy system.

  1. Clean energy portfolios are a cost-effective and technically-feasible alternative to natural gas generation.

A second huge take away from the Building a Carbon Free Grid conference is the understanding that as coal-fired power plants are retired across the country, utilities need not rush to build new natural gas plants.  Rather we can replace coal-fired generation capacity with clean energy portfolios and expect similar or cheaper electricity rates, lower emissions and similar or better grid-reliability services compared to natural gas-fired electricity generation.  Consider findings from a report by Rocky Mountain Institute titled ‘The Economics of Clean Energy Portfolios,’ which demonstrates that our vision for a 100% clean energy system is the least cost option AND it is technically feasible, today.  The report features 4 real-life case studies of utilities across the country that are considering their options for building new electricity generation, showing that in each case, building out clean energy portfolios would be cost-competitive, equally reliable and allow utilities to circumvent ill-advised investments in natural gas plants that may become stranded assets sooner than we expect.

  1.  There are multiple paths towards a clean energy future.

The last key takeaway, and perhaps a launching point for further discussion, is the realization that multiple paths exist towards the destination of 100% clean energy — paths that differ in notable ways.  Some paths prioritize policies that regenerate political and economic power within communities most-impacted by climate change. Others define success more narrowly as the integration of large amounts of renewables + storage as quickly as possible by whatever means available.  As society moves towards a carbon-free grid we would do well to explore all possible paths that exist and weigh the respective benefits and drawbacks of each. Key questions that will help communities assess their options are: ‘Who will foot the bill for bad investments in coal and natural gas?’;  ‘who will own the solar panels,wind turbines, storage devices or even the local grid when they are built?’; ‘who will determine how our energy dollars are being invested?’; ‘how will the eventual savings realized from making the switch to RE + storage and microgrids be passed onto average citizens?’.  

These questions are especially crucial to Coloradans, Xcel Energy having recently announced its plan to replace 2 of its coal-fired power plants with record low-cost wind, solar and storage.  Though Xcel’s announcement comes as good news to the folks at Clean Energy Action that have led a grassroots movement of citizen-advocates for over a decade to move Xcel away from imprudent fossil fuel investment towards renewables, the challenge for CEA and other just transition advocates will be to ensure that consumers are not forced to foot the bill for Xcel Energy’s stranded fossil fuel assets.  This challenge will continue to rear its head for years to come as the plummeting cost of clean energy threatens the financial viability of Xcel’s remaining fleet of coal and natural gas plants. (Sign up for Clean Energy Action’s newsletter to stay abreast of efforts to ensure that Xcel Energy replaces its remaining coal plants with renewables in a manner that is just for ratepayers.)

Overall, the Building a Carbon Free Grid Conference was inspiring and refreshing —  I am now certain that we will win this fight. We are already winning across the country at the state and local level thanks to the many individuals and organizations that have dedicated their lives to the vital work of transforming our energy system.

Bourbon Street, New Orleans

 

What’s Next for Colorado’s Energy Policy? A Panel Discussion

Wednesday, November 28th 6:00 PM
George Reynolds Branch Library
3539 Table Mesa Drive, Boulder CO 80305

Join Clean Energy Action this Wednesday evening at George Reynolds Branch Library for a panel discussion of the question: what’s next for Colorado energy policy? Our panel will feature professionals from a wide variety of energy-policy related disciplines and attempt to hone in on the solutions that bear promise in delivering the clean energy future that we know is possible.

Clean Energy Action Founder Leslie Glustrom will moderate the panel discussion. Panelists and subject matter expertise include:

  • Micah Parkin – Executive Director of 350 Colorado, Fossil methane and fracking
  • Steve Szabo – Boulder County Renewable Energy Society, Tri-State Utility Reform
  • Carl Lawrence – CEO of Swift Tram, Elevated transportation options
  • Laurent Meillon – Capitol Solar Energy, Solar Thermal Policy
  • Johnathon Rogers – Energetics, Electricity Competition and “Conventional Transportation”
  • Vincent Calvano – Attorney, Black Hills Energy Issues

Hope to see you there!

Dr. Sandra Steingraber Expert on Environmental and Health Impacts of Fracking

THURSDAY OCT 4TH 7:00 PM
THE CUBE at MCA, STAPLETON 

8371 Northfield Blvd, Denver, CO 80238

Clean Energy Action will welcome acclaimed ecologist and author Dr. Sandra Steingraber to speak on the detrimental health effects of fracking and natural gas production.

Join Dr. Steingraber, CEA and our allies as Steingraber dives into the hard science and overwhelming evidence regarding the serious health effects associated with fracking,  followed by a Q&A.

In speaking about a recent study released by the Physicians for Social Responsibility about the adverse health effects associated with fracking, Dr. Steingraber stated:

“What impressed us, as we reviewed and compiled the data, is just how extensive the impacts from drilling and fracking processes are. Spikes in toxic air pollution accompany fracking wherever it goes. Drinking water is destroyed. Earthquakes are triggered. Abandoned wells leak. Pipelines explode. Climate-killing methane escapes from every component part. And nearby residents are suffering health problems consistent with their exposures — including newborn infants.”

Steingraber was named Woman of the Year by Ms. Magazine, a Person of the Year by Treehugger, and one of 25 “Visionaries Who Are Changing Your World” by the Utne Reader.

There will be a gathering near fracking sites in Commerce City at 3:30 p.m. with Dr. Steingraber before the speech (press invited), as well as a reception with key energy leader at 5:30 at The Cube, MCA.

Reception and Talk–Suggested donation $30
Public Talk Only –Suggested donation $20
Larger donations from those that can afford it are much appreciated.
No one will be kept away from the public talk for lack of funds. 

We highly encourage your participation in this educational evening if you are interested in learning about the hard facts and research-based science that uncovers the adverse health effects of fracking. In the current political climate, thoroughly investigated facts and information are imperative now more than ever.

 

Where: The Cube at MCA, Stapleton
8371 Northfield Blvd,
Denver, CO 80238

When: Thursday, OCT 4th 2018 7:00 PM

See you there!

Photo credit: www.laurakozlowski.com

Accelerating the transition from fossil fuels to a clean energy economy