Exclusive Q&A on Environmental Law with Peter Alpert
What does COP21 mean for the future of environmental law?
Properly and fully implemented in the United States, COP21 will necessitate political change more than it will require dramatic changes to prescriptive environmental law. In the U.S. a general conceptual framework already exists for the implementation of COP21. As interpreted in 2007 by the Supreme Court in the Massachusetts v. EPA case, the Clean Air Act permits USEPA to regulate carbon emissions if the agency makes a prior finding of “endangerment” to human health. The agency issued its endangerment finding in 2009, and since then has issued regulations aimed at controlling carbon emissions from the largest industrial sources, most importantly the “Clean Power Plan” regulation in October of 2015. Every major regulation has been challenged in court, delaying or derailing these regulatory efforts. Minor technical adjustments to existing law could clarify EPA’s regulatory powers and eliminate these obstacles, but such measures, and therefore achievement of the emission reductions envisioned in COP21, are impossible in the current political environment. If the US comes short of its commitments, other existing laws will come under more strain to accommodate the adaptive measures necessary to protect vulnerable communities and sectors from the consequences of unmitigated climate change.
Have there been any other recent regulatory changes or interesting developments?
USEPA issued the Clean Power Plan in advance of COP21. This regulation aims at a 32% reduction in overall carbon emissions from fossil-fuel fired electric generating plants by 2030, relative to emissions from these facilities in 2005. This rulemaking is the primary regulatory mechanism for the US to achieve emission reduction targets set in Paris. It was immediately challenged on technical grounds under the Clean Air Act, and its implementation has been stayed until the litigation is resolved, which could take several years. In the meantime, the US must rely on extra-legal mechanisms, such as macro-economic factors reducing demand for coal and social responsibility movements, to achieve significant emission reductions.
What are the key pieces of environmental legislation and can you outline the main regulatory authorities in your jurisdiction?
The mainstays of environmental law in the US have for many decades been the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response Cleanup and Liability Act. These respectively protect air quality, water quality, prevent the contamination of land, and respond to legacy contamination from the pre-regulatory era. The Clean Air act is the only of these statutes equipped to respond to the challenge of climate change. The other laws are relevant in various degrees to strategies for response and adaptation to climate change. The substantive framework for the implementation of these laws is set by the federal EPA. Most responsibility for the implementation, administration and enforcement of these laws is delegated to environmental protection authorities in the individual states.
In the face of rapidly increasing concerns regarding climate change, biodiversity loss and ocean acidification, where are policy makers currently focusing their attention towards more effective governance?
Primarily at the state level, policy makers are focused on creating economic and regulatory incentives for the development of energy sources that are renewable or less carbon-intensive, such as solar and wind generating facilities and hydrofracking. Many states have established renewable portfolio standards for large regulated utility companies. These measures are easier to pursue because of a generally bipartisan consensus that they make sense for economic reasons regardless of their environmental benefits. Alignment is also possible around the need for effective adaptation strategies because all sides can agree, for example, that measures should be taken to protect coastal communities from inexorably rising sea levels without having to agree on the root causes of the problem.
Are there any incentives for companies to become more sustainable?
Yes, but these incentives are more social and economic than legal. Many companies not directly involved in the fossil fuel extraction or electricity generation sectors perceive many benefits from reducing their carbon footprint and otherwise promoting sustainability. There is pressure towards sustainability from shareholders, consumers, and the young people that these companies need to recruit for the future. Developers of commercial real estate are under significant pressure from corporate tenants to “green” their buildings to meet stringent standards set by NGOs or, in the case of some cities, local government. Time will tell whether these “soft” incentives towards sustainability economy will be sufficient to make up for a paucity of legal and regulatory mandates.
To what extent does corporate responsibility vs. legality affect the way environmental and human decisions are made?
After profitability, legality may be the chief driver of corporate decisions. Good corporate citizenship cannot be claimed in the absence of legality. Corporations devote most of their outside legal spend to compliance activities, and not to the pursuit of normatively “responsible” activities not compelled by law. When it comes to environmental protection, all corporations face a basic choice between bare compliance and enhanced sustainability. Bare compliance will generally be adequate to avoid downside reputational risk. Enhanced sustainability will in many cases attract customers, win market share, and lower operating costs over the long term if not initially. The general trend is for the market to demand an enhanced environmental ethos, and for corporations to see and pursue these rewards rather than wait for sustainable practices to be legally mandated.
Peter Alpert, a Partner at Ropes & Gray, has practiced environmental law for nearly 25 years. Peter’s practice focuses on the remediation of contaminated land advising strategic and financial participants in M&A and financing transactions on understanding and managing environmental risk, the entitlement of complex real estate development projects, and the defense of enforcement actions brought by federal and state environmental authorities. Peter is a member of the board of directors of the National Audubon Society, a non-profit organization dedicated to the conservation of birds and the places they depend on, and to advocacy for action on climate change.
Peter can be contacted on +1 617 951 7906 or by email at Peter.Alpert@ropesgray.com