The Law of Enhanced Weathering for Carbon Dioxide Removal

Despite scientists’ dire warnings about the catastrophic impacts of climate change, the greenhouse gases that cause it continue to be emitted in substantial amounts. While there is no question that deep, across the board cuts in greenhouse gas emissions are essential, many scientists now agree that simply cutting future emissions will not be enough. It will also be necessary to remove previously-emitted greenhouse gases from the atmosphere. This paper explores one greenhouse gas removal technique – enhanced weathering – which involves spreading finely ground silicate rocks or other materials with similar chemical composition over land or ocean waters. The materials react with carbon dioxide in the atmosphere, sequestering it in mineral form (e.g., as limestone) on land or in the oceans. While further study is needed to fully evaluate the risks associated with enhanced weathering, initial research suggests that it could result in the long-term storage of large amounts of carbon dioxide, likely for centuries or millennia. This paper examines the international and U.S. legal framework for enhanced weathering on land and in ocean waters. The paper identifies international and U.S. federal and state laws that could apply the performance of enhanced weathering projects. Laws applicable to the sourcing of materials for use in such projects are dealt with in a separate (forthcoming) paper by the author

Increasing Gasoline Octane Levels to Reduce Vehicle Emissions: A Review of Federal and State Authority

This paper explores the potential for federal and/or state regulation of gasoline octane levels. At the federal level EPA is authorized to regulate the components and/or characteristics of gasoline under section 211 of the Clean Air Act. Pursuant to that section, EPA may regulate octane if evidence before it demonstrates that switching to high octane gasoline is necessary to achieve vehicle carbon dioxide emissions standards (i.e., adopted under section 202 of the Clean Air Act) or would significantly reduce the costs of achieving those standards. If EPA promulgates regulations, or publishes a finding that regulation is unnecessary, state regulatory action will be pre-empted. There is, however, an exception for California which may adopt its own regulations regardless of any action by EPA. Regulations adopted by California are not subject to review and/or approval by EPA. The regulations only apply in California and cannot be adopted by other states, in preference to federal regulations, as is permitted with respect to vehicle emission standards

Deploying Advanced Metering Infrastructure on the Natural Gas System: Regulatory Challenges and Opportunities

Recent increases in domestic natural gas use have been widely heralded as a vital step in the fight against climate change. Proponents often characterize natural gas as a “clean” fossil fuel, emphasizing that its combustion produces fewer greenhouse gas emissions than coal and oil, per unit of energy produced. These savings at the point of combustion may, however, be offset by emissions during natural gas production and transportation. Recognizing this, a number of analysts have expressed concern that continued use of natural gas will hamper efforts to address climate change, and called for reductions in gas use. This paper explores opportunities to promote more efficient natural gas use in the residential and commercial sectors, through deployment of advanced metering infrastructure (AMI), consisting of state-of-the-art gas meters connected to a wireless network that supports two-way communication. Such systems enable hourly or daily natural gas usage figures to be collected and transmitted to customers in real-time, thereby encouraging greater conservation and leading a reduction in greenhouse gas emissions. Additional emissions reductions may also occur due to improved management of the natural gas pipeline system. Despite these benefits, to date, AMI has not been widely deployed on the natural gas distribution system in the U.S. The reasons for this are poorly understood; previous research has focused exclusively on market barriers to deploying AMI and failed to consider other possible explanations for the slow rate of deployment. This is intended to fill that gap. The paper draws on recent experience with deployment in California, Maryland, and New York to assess how regulation affects incentives to invest in AMI

International Governance of Ocean-Based Carbon Dioxide Removal: Recent Developments and Future Directions

With the impacts of climate change intensifying, and progress in reducing the greenhouse gas emissions that cause it continuing to lag, the parties to the Paris Climate Agreement have emphasized the need to accelerate efforts to remove carbon dioxide from the atmosphere, while simultaneously curbing emissions. As the parties have recognized, the ocean is already a major carbon sink, and could play an important role in future carbon dioxide removal (“CDR”) efforts. Scientists have proposed a variety of ocean-based CDR approaches, but most require further research to fully evaluate their efficacy, benefits, and risks. In-ocean testing of the approaches, and their subsequent deployment (if deemed appropriate), could prove challenging for a number of reasons. This paper focuses on the governance challenges associated with ocean CDR research and deployment. Because those activities will take place in the ocean, which is a shared resource, they may be subject to a large body of international law, including various international agreements. Most of the relevant agreements pre-date discussion of ocean CDR and adapting them to this new class of activities has proved difficult. This paper discusses recent efforts to regulate ocean CDR under three long-standing international agreements: (1) the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”), (2) the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (commonly known as “the London Convention”); and (3) the 1996 Protocol to the London Convention (commonly known as “the London Protocol”). As we will see, the latter two agreements have recently been used to restrict ocean CDR activities, even while those same activities are being encouraged under the Paris Agreement. The paper will discuss options for promoting greater coherence in international governance of ocean CDR, including the possibility of using the new Agreement under UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction to comprehensively regulate ocean CDR

Changing Tides in Water Management: Policy Options to Encourage Greater Recycling of Fracking Wastewater

The U.S. has recently experienced a domestic energy renaissance, made possible by technological advances, enabling the development of unconventional oil and gas resources. Vital to this development is hydraulic fracturing (“fracking”), whereby fluid is injected underground at high pressure to fracture the rock, thereby enabling the flow of oil and gas. Fracking has recently faced growing opposition with many concerned about its environmental impacts, particularly its potential to adversely affect water resources, because fracking uses vast amounts of fresh water that ends up as contaminated wastewater. Most of this wastewater is disposed of through underground injection, resulting in its permanent removal from the hydrological cycle. As an alternative, however, the wastewater could be recycled for use in future fracking treatments. This would lead to a decline in fresh water withdrawals for fracking, reducing the potential for water shortages, which are already becoming a problem in arid and semi-arid areas, where many fracking sites are located. In view of these benefits, policymakers in some states have recently sought to encourage greater recycling, but with limited success. This Paper outlines additional policy options for encouraging recycling. It argues that the current low rates of recycling are due, in large part, to the ease with which oil and gas producers can acquire fresh water and dispose of wastewater. After reviewing the existing legal framework for fresh water acquisition and wastewater disposal, the Paper identifies various reforms aimed at making these activities more difficult for oil and gas producers, and thereby encouraging them to invest in recycling

Increasing Gasoline Octane Levels to Reduce Vehicle Emissions: A Review of Federal and State Authority

This paper explores the potential for federal and/or state regulation of gasoline octane levels. At the federal level EPA is authorized to regulate the components and/or characteristics of gasoline under section 211 of the Clean Air Act. Pursuant to that section, EPA may regulate octane if evidence before it demonstrates that switching to high octane gasoline is necessary to achieve vehicle carbon dioxide emissions standards (i.e., adopted under section 202 of the Clean Air Act) or would significantly reduce the costs of achieving those standards. If EPA promulgates regulations, or publishes a finding that regulation is unnecessary, state regulatory action will be pre-empted. There is, however, an exception for California which may adopt its own regulations regardless of any action by EPA. Regulations adopted by California are not subject to review and/or approval by EPA. The regulations only apply in California and cannot be adopted by other states, in preference to federal regulations, as is permitted with respect to vehicle emission standards

Carbon Pricing in New York ISO Markets: Federal and State Issues

Does the law permit the New York Independent Service Operator (NYISO) to incorporate, directly or indirectly, a carbon price into New York State’s wholesale electricity market? And, if so, what is the appropriate design of a carbon pricing scheme for the NYISO market? For example, at what level should a carbon price be set and when/how should it be adjusted? How should the revenues generated by such a price be used? What impact (if any) will it have on the Regional Greenhouse Gas Initiative (RGGI) and New York’s Clean Energy Standard? This working paper explores answers to those questions with due consideration for two contextual frames. The first is federal law, specifically the Federal Power Act, as interpreted by the Federal Energy Regulatory Commission (FERC) and the courts The second is New York’s energy marketplace, meaning both the physical and economic arrangement of generation and transmission resources vis-à-vis load centers, and the state’s ongoing efforts to reconfigure and decarbonize its portion of the electric grid by encouraging greater uses of information technology, energy efficiency, and distributed energy resources. Importantly, features of this second frame are both flexible and responsive to steps NYISO might take — as the New York Public Service Commission said in its Order adopting the Clean Energy Standard in August 2016, “the Zero Emissions Credit mechanism [established as part of the Clean Energy Standard] shall be such that it can be modified or eliminated by the Commission if there is a national, NYISO, or other program instituted that pays for or internalizes the value of the zero-emissions attributes.” This paper is especially timely because NYISO’s Integrating Public Policy Project (IPPP) has begun to “investigate potential market impacts from the implementation of the New York Clean Energy Standard, and determine whether other wholesale products or alternatives for incorporating the cost of carbon into the wholesale market could improve market efficiency and address potential market impacts.” By exploring legal constraints and options, the authors intend to help inform that investigation’s progress

Policy Readiness for Offshore Carbon Dioxide Storage in the Northeast

Reducing the amount of carbon dioxide in the atmosphere is vital to mitigate climate change. To date reduction efforts have primarily focused on minimizing the production of carbon dioxide during electricity generation, transport, and other activities. Going forward, to the extent that carbon dioxide continues to be produced, it will need to be captured before release. The captured carbon dioxide can then be utilized in some fashion, or it can be injected into underground geological formations – e.g., depleted oil and gas reserves, deep saline aquifers, or basalt rock reservoirs – where, it is hoped, it will remain permanently sequestered (“carbon capture and storage” or “CCS”). Research is currently being undertaken into the possibility of injecting carbon dioxide into the seabed. One study, involving researchers from Columbia’s Lamont-Doherty Earth Observatory, aims to identify possible injection sites in the seabed along the northeast coast of the U.S. It is anticipated that, following identification of suitable sites, a demonstration project will be undertaken to assess the feasibility of offshore CCS. This paper outlines key regulatory requirements for the demonstration project and any subsequent commercial operations

Carbon Pricing in New York ISO Markets: Federal and State Issues

Does the law permit the New York Independent Service Operator (NYISO) to incorporate, directly or indirectly, a carbon price into New York State’s wholesale electricity market? And, if so, what is the appropriate design of a carbon pricing scheme for the NYISO market? For example, at what level should a carbon price be set and when/how should it be adjusted? How should the revenues generated by such a price be used? What impact (if any) will it have on the Regional Greenhouse Gas Initiative (RGGI) and New York’s Clean Energy Standard? This working paper explores answers to those questions with due consideration for two contextual frames. The first is federal law, specifically the Federal Power Act, as interpreted by the Federal Energy Regulatory Commission (FERC) and the courts The second is New York’s energy marketplace, meaning both the physical and economic arrangement of generation and transmission resources vis-à-vis load centers, and the state’s ongoing efforts to reconfigure and decarbonize its portion of the electric grid by encouraging greater uses of information technology, energy efficiency, and distributed energy resources. Importantly, features of this second frame are both flexible and responsive to steps NYISO might take — as the New York Public Service Commission said in its Order adopting the Clean Energy Standard in August 2016, “the Zero Emissions Credit mechanism [established as part of the Clean Energy Standard] shall be such that it can be modified or eliminated by the Commission if there is a national, NYISO, or other program instituted that pays for or internalizes the value of the zero-emissions attributes.” This paper is especially timely because NYISO’s Integrating Public Policy Project (IPPP) has begun to “investigate potential market impacts from the implementation of the New York Clean Energy Standard, and determine whether other wholesale products or alternatives for incorporating the cost of carbon into the wholesale market could improve market efficiency and address potential market impacts.” By exploring legal constraints and options, the authors intend to help inform that investigation’s progress