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A N 8 D 8 B 18 AR CE www. NYLJ.com SIN Volume 261—NO. 44 Thursday, March 7, 2019 Environmental Law Expert Analysis Three Legal Visions Of a ‘Green New Deal’ ep. Alexandria Ocasio- which has much the same spirit and Cortez (D-N.Y.), who has overlapping content. A3876/S2992. rocketed to such fame that Prior versions passed the Assembly she is now widely known in 2016, 2017 and 2018, and the Sen- simply as AOC, and Sen. ate (whose new leadership is sup- REdward Markey (D-Mass.), co-father portive) is now holding hearings By And of Waxman-Markey, the cap-and- Michael B. Edward on it. McTiernan trade bill that narrowly passed Gerrard This column compares and con- the House in 2009 but died in the trasts these three proposals. Senate, have introduced identical thus climate legislation might well AOC-Markey resolutions to create a “Green New pass this year. Gov. Andrew Cuomo Deal.” H. Res. 109, S. Res. 59. has introduced his own version of This resolution begins by recit- A December 2018 survey found 81 what he labels the Green New Deal ing the terrible consequences of percent of registered voters liked unchecked climate change, and of the basic concepts. No one expects the phenomena of “wage stagnation, today’s Republican President and Of the three plans, Cuomo’s is the deindustrialization, and antilabor Republican Senate to adopt this most specific in how its objectives policies,” income inequality, and resolution (which we’ll call “AOC- would be met; AOC-Markey the “systemic racial, regional, social, Markey”); it’s more of an effort to least, as it does not purport to be environmental, and economic injus- shine light on the climate crisis binding legislation, only a state- tices.” It recalls how “the Federal and to look toward the possibil- ment of aspirations covering a Government-led mobilizations dur- ity of a Democratic sweep in the ing World War II and the New Deal broad array of social issues. November 2020 elections. In Alba- created the greatest middle class ny, however, Democrats now firmly (which we’ll call the Cuomo plan), that the United States has ever seen,” control the Assembly, the Senate portions of which are incorporat- and finds that “a new national, social, and the Governor’s office, and ed in the Governor’s budget bill, industrial and economic mobiliza- A2008/S1508. tion” in a similar scale could “cre- Michael B. Gerrard is a professor and Faculty In addition, 45 members of the ate millions of good, high-wage jobs Director of the Sabin Center for Climate Change Law at Columbia Law School, and Senior Counsel to Assembly and 28 members of the … provide unprecedented levels of Arnold & Porter. Edward McTiernan is a partner Senate are co-sponsoring a pro- prosperity and economic security with Arnold & Porter, and former General Counsel of posed New York State Climate and … and … counteract systemic injus- the New York State Department of Environmental Conservation. Community Protection Act (CCPA), tices.” Thursday, March 7, 2019

AOC-Markey calls for “a 10-year is given the job of devising a “scop- proposed 2019 Executive Budget. It national mobilization” to “achieve ing plan” to outline the methods to includes a new Climate Leadership net-zero greenhouse gas emis- achieve the CCPA’s objectives. (This Act. It would statutorily mandate sions.” This would be accomplished resembles a task given the California that 70 percent of statewide elec- through “goals and projects” that Air Resources Board by that state’s tricity demand be met by renewable include “meeting 100 percent of the landmark Global Warming Solutions sources by 2030, and 100 percent of power demand in the United States Act of 2006.) DEC would receive advice New York’s electricity be “carbon through clean, renewable, and zero- from the existing Environmental Jus- free” by 2040 (that’s now 65 per- emission energy sources,” upgrading tice Advisory Group, a new 29-member cent, including nuclear), and that of all buildings for energy efficiency, State Climate Action Council, and a “as soon as practicable, the state and the widespread electrification of new Climate Justice Working Group. must sequester or offset a greater vehicles and heating systems. It also DEC is directed to “promulgate rules quantity of atmospheric greenhouse calls for “removing greenhouse gases and regulations to ensure compliance gases than are emitted within the from the atmosphere and reducing with the statewide emissions reduc- state.” pollution by restoring natural eco- tion limits,” including “legally enforce- A new Climate Action Council systems through proven low-tech able emissions limits, performance would develop a “roadmap” of ways solutions that increase soil carbon standards,” or other requirements. to achieve the objectives, such as a fee storage, such as land preservation DEC may consider “the use of mar- per ton of carbon dioxide equivalent and afforestation.” Additional goals ket-based compliance mechanisms” emitted, and “beneficial electrifica- include providing all people of the such as a price on greenhouse gas tion” of personal and freight trans- United States with “high-quality health emissions, or the sale of emission port, and of water and space heating care,” “affordable, safe, and adequate allowances with a declining cap. At in buildings. “Verifiable, enforceable, housing,” and “economic security.” least 40 percent of any funds col- and voluntary emissions reduction The resolution is non-binding. It lected must be “invested in a man- measures” are to be set forth. The says nothing about how achieving its ner which will benefit disadvantaged existing Environmental Justice and goals would be funded, enforced, or communities.” Just Transition Working Group would implemented, except that “a Green The Public Service Commission is be codified. New Deal must be developed through directed to require that at least 50 per- DEC would promulgate a statewide transparent and inclusive consulta- cent of statewide electricity demand greenhouse gas emissions limit for tion, collaboration, and partnership be met by renewable sources by 2030. 2030 of a 40 percent reduction from with frontline and vulnerable commu- (It is now about 30 percent—mostly 1990 levels. DEC would issue regula- nities, labor unions, worker coopera- hydroelectric.) The bill has extensive tions “to support compliance with” tives, civil society groups, academia provisions regarding wages, labor and this limit. They may include “legally and businesses.” job standards and worker protection. enforceable emissions reduction The CCPA expands the ability of measures or greenhouse gas emis- CCPA citizens to sue by providing: “Review sion levels.” The CCPA also begins by describ- under this act may be had in a pro- Though not in the bill, Governor ing the adverse impacts of cli- ceeding under article 78 of the civil Cuomo’s announcement said that the mate change. It calls for statewide practice law and rules at the instance state’s implementation of his plan will anthropogenic greenhouse gas of any person aggrieved.” include a quadrupling of New York’s emissions to ramp down every five offshore wind target to 9,000 mega- Cuomo Plan years until they reach zero in 2050. watts by 2035; doubling distributed The New York State Department of Governor Cuomo announced his solar deployment to 6,000 megawatts Environmental Conservation (DEC) plan on Jan. 17, 2019 as part of his by 2025, deploying 3,000 megawatts Thursday, March 7, 2019 of energy storage by 2030, and other 50 percent of 1990 levels in 2030, pro- charges. Only CCPA specifies where measures. gressively to zero in 2050. The only some of the proceeds would go. explicit exclusion is emissions from Clearly bold action is needed to Assessment livestock. Achieving zero greenhouse meet the goal of the Paris Climate A goal of 100 percent of U.S. elec- gas emissions in New York by 2050 Agreement to “achieve a balance tricity from “clean, renewable, and seems to be physically impossible. between anthropogenic emissions zero-emission energy sources” with- For example, even if New York could by sources and removals by sinks in 10 years, as suggested by AOC- require all New York-based vehicles of greenhouse gases in the second Markey, is more ambitious than the to be electric (which current federal half of this century.” Of the three most aggressive scenario that has law does not allow), the state cannot plans, Cuomo’s is the most specific been widely discussed, a proposal exclude out-of-state vehicles. There in how its objectives would be met; by Stanford’s Mark Jacobson for 80 is little prospect of zero-emission AOC-Markey the least, as it does not percent renewables by 2030 and 100 commercial aircraft by 2050. Though purport to be binding legislation, only percent renewables by 2050 (a pro- significant strides could be made in a statement of aspirations covering posal that several prominent experts a broad array of social issues. AOC- have questioned). Achieving a goal of Markey and CCPA call for the swiftest net-zero greenhouse gas emissions in Clearly bold action is needed reductions in greenhouse gas emis- 10 years is probably impossible, giv- to meet the goal of the Paris sions, but few specifics on how to do en the multiplicity of non-electricity Climate Agreement to “achieve that. If AOC-Markey passes the House, sources of greenhouse gases. How- a balance between anthropo- it will be the most significant federal ever, the wording in AOC-Markey is genic emissions by sources and legislative action on climate change somewhat ambiguous about whether removals by sinks of green- since the Waxman-Markey bill of a these goals must be finished or mere- decade ago. house gases in the second half ly advanced by the “10-year national Regardless of the high cost of meet- mobilization.” of this century.” ing the Paris goal, recent scientific The Cuomo plan would have 70 studies establish that the cost of fail- percent of New York electricity com- the electrification of space heating ure to meet it would be immensely ing from renewables in 2030, and 100 and industry by 2050, the complete higher. percent from “carbon-free” sources conversion of all systems by 2050 (presumably including nuclear) by also seems beyond reach. Moreover, 2040. The CCPA plan is the least ambi- there is no allowance for sequestra- tious on this count—50 percent of tion or offsets, making the goal even New York electricity from renewables harder to achieve. However, some in 2030, with provisions to suspend flexibility may be found in the lan- the requirement if necessary. guage in the CCPA allowing DEC to With respect to the total amount exclude sources that it deems cannot of greenhouse gas emissions in New be “monitored for compliance” or York, the Cuomo plan would have whose participation in the program levels down to 60 percent of their will not “enable [DEC] to effectively 1990 levels in 2030, with carbon neu- reduce greenhouse gas emissions.” trality “as soon as practicable.” Some Both the CCPA and Cuomo plan emissions could continue but they would give DEC rulemaking and Reprinted with permission from the March 7, 2019 edition of the NEW YORK would be sequestered or offset. The enforcement powers, and allow for LAW JOURNAL © 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 CCPA would ramp them down from imposition of a carbon tax or similar or [email protected]. # 070-03-19-10