By DAVID CORREIA
In November of 2010, the New Mexico Environmental Improvement Board announced that “[c]limate change caused by anthropogenic emissions of GHGs [Greenhouse Gases] will have a particularly severe impact o[n] the American Southwest, including New Mexico. The warming trends in this region are double the annual global average.”
The statement was a no-brainer coming as it did on the heels of more than a decade of severe drought in the U.S. southwest, a drought that stressed piñon/juniper forests to the breaking point, weakening piñon trees in particular so much that they became little more than brunch for the bark beetle and kindling for the massive forest fires of the past few years. In some parts of northern New Mexico, drought and bark beetle infestations killed more than 95 percent of piñon trees. Fire got whatever was left.
Thankfully, the statement by the EIB was not just window dressing. Instead it signaled a sea change in New Mexico’s approach to climate change. The board voted to limit carbon emissions in New Mexico by joining an existing regional or national emissions reduction program, such as the market–based cap and trade program begun in 2008 by the Western Climate Initiative (WCI).
The WCI began in February 2007 when five western Governors (AZ, CA, NM, OR, and WA) agreed to collaborate on ways to reduce greenhouse gas emissions. The most significant outcome of those efforts was the market-based cap and trade program first described by WCI in September 2008.
Cap and trade, or emissions trading, is a market-based approach to carbon reduction in which carbon emissions are capped and firms are given tradable rights to pollute within that cap—rights they can use to pollute or sell. The idea is that the ability to sell rights to pollute will provide an incentive for firms to invest in clean technologies and therefore, eventually, pollute less. In theory the approach allows a firm to pollute as much as it wants as long as it can purchase the right to do so from another firm that pollutes less than it otherwise would. When it works the plan slowly reduces overall emissions over time, due to increased efficiency, to a level set by a regulatory agency.
In December of 2010, by a vote of 4 to 1, the New Mexico EIB approved a second rule—one proposed by a group called New Energy Economy—that required electric generating facilities with emissions greater than 25,000 metric tons of carbon dioxide (CO2) to reduce those emissions by a specified percentage every year for eight years (this was the cap) or to offset those emissions by paying other firms to reduce their emissions (here’s the trade).
Predictably, Southwestern Public Service Company appealed the decision. Regrettably, Susana Martinez was elected Governor of New Mexico.
On January 4, 2011, Martinez fired all the members of the Environmental Improvement Board who approved the first two climate change rules. “Unfortunately,” she wrote in a press release announcing the putsch, “the majority of EIB members have made it clear that they are more interested in advancing political ideology than implementing commonsense policies that balance economic growth with responsible stewardship in New Mexico.”
She quickly appointed Jeff Bryce, a vice president of an engineering design firm with an extensive work history in the petroleum industry; Gregory Fulfer, a rancher from Jal; James Casciano, a manager at Intel in Rio Rancho; Deborah Peacock, an intellectual property rights attorney from Albuquerque; and two others.
The new board quickly repealed both EIB climate change recovery rules.
Enter Akilah Sanders-Reed, a 17-year old skiing enthusiast and East Mountain resident. In May of last year, she joined with WildEarth Guardians and filed a lawsuit against Martinez and the State of New Mexico (No. D-101-CV-2011-1514) in which she asked the court to compel the state to prevent further increases in CO2 emissions and reduce existing greenhouse gas emissions.
Sanders-Reed’s complaint is based on the Public Trust Doctrine, the legal idea that certain natural resources, like air and water, are essential to human health and therefore must be protected and preserved for public use. Under this doctrine, the government serves in a fiduciary role and is obligated to protect nature for the common benefit of all.
Martinez disagreed and filed a motion to dismiss the case in July of 2011. In January her attorneys argued that no public trust doctrine is recognized in New Mexico and therefore the case should not proceed. First District Court Judge Sarah Singleton disagreed with Martinez, concluding that the atmosphere could be considered part of the public trust. She gave both parties leave to amend their arguments.
After a five-month pause, the case reconvened in Singleton’s court last week. On June 29th, Singleton considered Sanders-Reed’s amended complaint. In it her attorneys argued that “despite studies undertaken by agencies such as the Office of the State Engineer and the U.S. Bureau of Reclamation acknowledging the impacts of climate change in New Mexico resulting from human-caused greenhouse gas emissions, Governor Martinez has repeatedly stated her belief that science has not established a link between climate change and human activities. This erroneous belief has led the Governor and the State to repeal the preliminary measures put in place by the previous administration to address the human causes of climate change in New Mexico.”
The amended complaint also asked the court to compel the Governor to “produce a plan for redressing and preventing further substantial impairment to the atmosphere and mitigating the effects of climate change on the State’s trust resources. Because of the urgency of the crisis and the need for quick and decisive action, Plaintiffs also respectfully request that the Court impose a timeline for the preparation of the assessment and plan.”
The argument was persuasive enough that Singleton rejected the Governor’s motion to dismiss and allowed the case to continue. Sanders-Reed’s lawsuit is part of a broader legal strategy to force state governments to address climate change. To date young plaintiffs like Ms. Sanders-Reed have asked courts in 49 states, the District of Columbia, and the federal government to force state governments to develop climate recovery plans and reduce greenhouse gas emissions by at least 6 percent—a reduction based on the path-breaking work of Dr. James Hansen, a NASA climatologist and renowned climate change scientist.
WildEarth Guardians called the suit “one of the most remarkable legal actions that has the potential to halt human-induced climate change.”
We hope they’re right. But there’s little evidence that governments, any governments, are willing to do anything substantive about climate change.
Teenagers like Sanders-Reed know this better than anyone. Youth climate activists, frustrated by another round of toothless plans offered up by bought-and-sold bureaucrats, walked out of the recent Rio+20 meeting in Brazil. For many young activists, governments have been talking about climate change longer than they’ve been alive. Entire lifetimes have been spent waiting for political progress on climate change. The frustration dominated reports from Rio. “World leaders have delivered something that fails to move the world forward from the first Rio summit, showing up with empty promises and empty pockets at Rio+20,” said young California activist Mariana Calderon. “This text is a polluters plan,” she complained, “and unless leaders start listening to the people, history will remember it as a failure for the people and the planet.”
Much of the frustration among activists young and old is based on the suspicion that national and international efforts to mitigate climate change, particularly plans promulgated in places like Rio and Kyoto, are nothing more than thinly veiled attempts by government functionaries to turn the frightening implications of climate change into business opportunities for their friends and flunkies. These meetings have become nothing more than junkets for what has become a climate political class—a permanent class of bureaucrats who jet around the world attending conferences about climate change and whose interests are not necessarily (or at all) tied to resolving the serious implications of global climate change. God forbid they lose their frequent flyer miles.
This pessimism began with the 1997 Kyoto Protocols, the plan upon which all other cap and trade programs are based. Kyoto, unfortunately, does not courageously confront the challenges of climate change but pathetically panders to the interests of business and industry. Read the text of Kyoto here and then check out Annie Leonard’s brilliant analysis of Cap and Trade here.
The problem with Kyoto is not the theory so much as the practice (though the theory’s pretty bad too). A common criticism among environmental scientists is that Kyoto incentivizes all sorts of strange activities. It gives credit for planting forests to sequester carbon, but does so in a way that allows for the destruction of wetlands—an outcome that can produce CO2 releases in excess of what a forest might sequester.
Stranger still, Kyoto includes a variety of technology transfer agreements, multi-tiered standards, and various ways for firms and industries to get under caps not through reducing emissions but through investment and trading; what looks like reductions on paper often means an actual increase to GHG emissions in practice.
For example, the plan creates a two-tiered system of countries—those from the developed world in one category and developing countries in another. An industry in the developed world can get under a hard cap by investing in clean technology projects in the developing world. The idea is that wealthy countries have the technology, the capital, and the wherewithal to reduce GHG emissions and the trick is to just somehow get that expertise into developing countries; great in theory but a disaster for GHG emissions in practice. If an electricity producer in Ghana, say, proposes to build a dirty coal plant, a utility company in France, for example, can step in and invest in the project so that, voila!, the Ghanians build a coal-fired power plant that previously didn’t exist. And this is considered progress under Kyoto.
How did we get this business-friendly plan? Weren’t there alternatives? Yes, even in Kyoto, the cap and trade plan that delegates finally selected was only one of many. There were six plans considered in Kyoto:
- Phase out subsidies for oil and support new environmental movements
- Develop low/non carbon technologies on a regional basis
- Tax the use of the global atmospheric dump
- Assign nontradable restricted property rights to the carbon dump for each country. Countries would decide how to get under the cap.
- Auction atmospheric units to private owners
- Create a global trust to sell rights to polluters
In Kyoto activists believed that the science of climate change would provide all the motivation necessary to compel governments to pursue vigorous climate mitigation plans. But then industry interests bankrolled reactionary attacks against the science of climate change—and climate change scientists, too.
Does the Sanders-Reed’s suit, and the scores of others like it, mark a new period in climate change politics? One that ends the reign of business-friendly climate schemes and announces the beginning of an honest, and legally mandated, effort to reduce GHG emissions?
Up to now, it has seemed a fool’s errand to pursue plans to compel the capitalist state to transform a political and economic system wholly constructed on the burning of fossil fuels. It has seemed unlikely, to say the least, that the law could compel the capitalist state to force itself to, well, not be itself.
But the WildEarth Guardians/Sanders-Reed lawsuit offers an exciting possibility. Instead of hoping science and logic will win the day, the Sanders-Reed lawsuit takes a more pragmatic approach. According to WildEarth Guardian’s attorney, Samantha Ruscavage-Barz, once the transcript of Judge Singleton’s ruling on June 29th is released, the plaintiffs will pursue a motion for summary judgment. In it they will ask the court to order New Mexico to “(1) produce an assessment of the degree of impairment to the atmosphere from current greenhouse gas levels and the concomitant climate change impacts in New Mexico based on current climate change science; and (2) to produce a plan for redressing and preventing further substantial impairment to the atmosphere and mitigating the effects of climate change on the State’s trust resources.” Finally they will ask the Court to “impose a timeline for the preparation of the assessment and plan.”
If science won’t sway them, let the courts make them. But the plan has its weaknesses. The WildEarth Guardians will not ask the Court to order the state to measurably reduce greenhouse gas emissions. A number of similar lawsuits in other states have been thrown out of court because judges have refused to order states to reduce greenhouse gas emissions by 6 percent annually. The Courts universally refuse to serve as a monitoring or regulatory agency.
The same is true in New Mexico. Judge Singleton told both parties she would not impose standards on the state. Creating and administering a plan is the job of the Environmental Improvement Board. So if the result of the lawsuit is a return to cap and trade, it will be a hollow victory. But the Sanders-Reed lawsuit is, no doubt, an important beginning in a new struggle over climate change in New Mexico.