PARIS TO EARTH: ACT LOCALLY WITHIN A GLOBAL FRAMEWORK

Paris—In the run-up to the Conference of the Parties to the Climate Change Convention, a short humorous video, “Earth to Paris,” was widely viewed.  It was a call to delegates for take serious action on climate change at the conference.

The Paris Agreement is being hailed as an historic breakthrough by political leaders, nongovernmental organizations, and the business community. It represents the first time since the Framework Convention on Climate Change was opened for signature in 1992 that all 196 parties have agreed to take  actions to reduce their greenhouse gas emissions.  The only prior agreement even remotely comparable to the Paris Agreement—the Kyoto Protocol—limited only developed country emissions.

Not only was there unanimous approval of this agreement—a remarkable feat in itself—but its overall goal is ambitious. Countries agreed to hold “the increase in the global average temperature to well below 2 °C above pre-industrial levels.”  They also agreed to “to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.”  The parties thus increased somewhat the level of ambition from limiting warming to 2 °C, which had been the consensus objective.

They also agreed to “aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter.” That, too, is new.

And unlike Kyoto, this agreement puts primary responsibility for what happens in particular countries where it has always been—with the countries themselves. This is through the mechanism of nationally determined contributions (NDCs)—public commitments that nearly all countries made prior to Paris to reduce their greenhouse gas emissions to some extent.  The Paris agreement affirmed those agreements and made them central to the global climate change effort.

But what also sets the Paris Agreement apart—and will ultimately determine whether humanity averts or limits the worst effects of climate change—are processes that the agreement puts in place to periodically increase national ambition, assist countries in meeting their objectives, share information, and ensure methodological consistency in accounting for emissions reductions. These processes should greatly enhance the likelihood that the Paris Agreement will actually work.

Processes in the Paris Agreement that embody this approach include the following:

  • Beginning in 2020, and every five years afterwards, each country is to “communicate and maintain successive nationally determined contributions that it intends to achieve.” These, of course, are in addition to those that countries already submitted. Each “successive nationally determined contribution” is to “represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition.”
  • While financial assistance to developing countries has always been part of the international framework to address climate change, developed countries agreed to increase their level of financial support from previous levels by a nonspecific amount. Developed countries also agreed to communicate “indicative quantitative and qualitative information” about their financial support to developing countries, including projected future levels of public finance.
  • Beginning in 2023, and every five years afterwards, the conference of the parties is to “take stock of the implementation of this Agreement to assess the collective progress towards achieving” its purpose. The outcome of this “global stocktake” is to “inform Parties in updating and enhancing, in a nationally determined manner,” including enhanced “international cooperation for climate action.”
  • The agreement creates “an enhanced transparency framework for action and support.” This framework is partly to understand what NDCs actually mean and achieve. NDCs from different countries use different assumptions and baselines, and enhancing their comparability is essential. This transparency framework is also to better understand what financial contributions developed countries are actually making to developing countries.
  • Recognizing that “[a]ccelerating, encouraging and enabling innovation is critical for an effective, long-term global response to climate change and promoting economic growth and sustainable development,” the agreement creates a Technology Mechanism. The purpose of the mechanism is to strengthen existing efforts to foster technology development and the transfer of technology to developing countries. The “global stocktake” is to consider this and other efforts to support “technology development and transfer for developing country Parties.”

These processes are different from the kind of obligations we are used to in environmental law–obligations, for example, to reduce greenhouse gas emissions by a certain amount by a certain date.  Rather, these processes may be understood in terms of reflexive law and governance. Reflexive approaches are not substantive rules: they improve the capacity of governmental institutions and other entities to learn about themselves and their actions.  Reflexive approaches also stimulate them to use this information to make appropriate changes.  They create spurs to action.

In the context of the Paris agreement, reflexive governance seems intended to perform at least four key tasks. First, it should encourage or prod governments to be more ambitious over time, without being prescriptive about what they should do.  This is true not only of emissions reductions but also, for developed countries, of their efforts to provide financial and technological resources to developing countries.  Second, it will provide information to governments and others about what other governments are actually doing, as well information about the effectiveness and impacts of particular laws and policies.  This information can then be used to modify those laws and policies.   Third, because this information will be public, it means that governments are more likely to honestly and openly share what they are doing, and be responsive to the views of nongovernmental organizations and businesses as well as the public in general.

Finally, there are few areas in law and policy in which the playing field is changing faster than in climate change.   The changes are not just new agreements, but also the rapid upscaling of renewable energy as its price drops, the wide variety of international coalitions working to accelerate greenhouse gas emission reductions in particular areas or sectors, changes in the emissions profiles of China and India over the past decade, improvements in our understanding of the science, and the greater availability of private finance.  The Kyoto Protocol, hailed as an advance when approved in 1997, looks like a relic less than 20 years later.

These and other processes in the Paris Agreement are more likely to survive, accommodate, and address this shifting landscape in the years ahead.  One could wish for a stronger agreement, but these processes are likely to make the global partnership to address climate change stronger and more effective over time. And they are particularly likely to do so because every country agreed to the ambitious goals toward which they are aimed.

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THE SUPREME COURT CANDIDATES’ VIEWS ON ARTICLE I, SECTION 27 AND THE ROBINSON TOWNSHIP DECISION

THE SUPREME COURT CANDIDATES’ VIEWS ON ARTICLE I, SECTION 27 AND THE ROBINSON TOWNSHIP DECISION

Austin Langon[1]

On November 3, the people of Pennsylvania will be asked to elect their newest justices for the Supreme Court of Pennsylvania. With the plurality decision of Robinson Twp. v. Commonwealth at risk of being altered, the following information is presented to voters to serve as guide on where prospective justices stand. This past spring, the League of Women Voters presented candidates with two questions:

  1. Do you agree with the plurality opinion’s interpretation of Article 1, Section 27 of the state constitution as stated in the Robinson Township case of December 2013? If not, why not?
  2. Do you agree that the plain English language meaning of the amendment should be the basis for construing it?

Here are the candidates’ responses to these questions.

Democratic

Christine Donohue—Pittsburgh, Allegheny Co.

    • Education: 1974, East Stroudsburg University, B.A.; 1980, Duquesne University School of Law, J.D.
    • Occupation: Superior Court Judge.
  • Answer to Questions: In my opinion the Robinson Township plurality’s discussion of the Environmental Rights Amendment is well-researched and based upon a convincing recitation of the historical basis for its passage. Because the analysis is the basis of a three-justice plurality decision and the author and one of the joining justices are no longer on the court on which I hope to serve, it would be improper for me to express my agreement or disagreement with the analysis. This is by definition an open question of the law, which is likely to again be presented to the Supreme Court.
  • Question 2: For the reasons stated in my first answer, I do not believe that I can respond to this question. I note, however that it is well established in the law that the “touchstone” of constitutional interpretation is the actual language of the constitution and it must be interpreted in its popular sense. As the Robinson Township plurality opinion explains, the ultimate goal of constitutional interpretation is to determine the intent of the voters who ratified the constitutional provision.

Kevin M. Dougherty—Newtown, Philadelphia, PA

    • Education: 1985, Temple University, B.A.;1987, Antioch School of Law, J.D.
    • Occupation: Administrative Judge of the Philadelphia Court of Common Pleas Trial Div.
  • Answer to Questions: I agree with the plurality opinion’s interpretation of the Environmental Rights Amendment to the Pennsylvania Constitution. I agree with the determination that this legal dispute, in essence, sought vindication of the citizens’ rights to the quality of life on their properties and in their communities, and that insofar as the broadly granted zoning rights to the oil and gas industry attendant to Act 13 threatened the quality of air and water, as well as the health and safety of citizens and the quiet enjoyment of their own private property, the challenged sections of the Act violated the Environmental Rights Amendment.
  • Question 2: Yes, the plurality opinion makes clear that the Court employed the plain language of the Amendment as the basis for construing its provisions. The plurality correctly determined that the Amendment granted individual citizens the environmental rights to clean air and pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment. The plurality properly held that the people, including generations to come, hold common ownership of public natural resources, which the state holds in trust. The plurality properly reviewed the legislative history to conclude that the Amendment’s provisions were intended to be broadly applicable.

David Wecht—Pittsburgh, PA Indiana Township

    • Education: 1984, Yale University, B.A., summa cum laude, Phi Beta Kappa; 1987 Yale Law School, J.D.
    • Occupation: Judge, Pennsylvania Superior Court (elected January 2011)
    • Administrator; Allegheny Register of Wills (1998-2003); Vice Chair, Pennsylvania
  • Answer to Questions: I believe that laws are neither static, nor talismanic. While a reasonable jurist must read the text of the amendments to the Pennsylvania Constitution plainly and with common sense, I believe that laws, and more specifically judicial interpretation of those laws, must be allowed to evolve within our common law system.

Republican

Anne Covey, New Hope, PA—Upper Makefield

    • Education: 1984, Widener University School of Law, J.D.; 1981, University of Delaware, B.A.
    • Occupation: Judge of the Commonwealth Court
  • Answer to Questions: Judges should follow the Pennsylvania and United States Constitutions faithfully. The legislative and executive branches enact the laws and judges interpret those laws. I believe we must strike a balance between local control and uniform policy across the state. We must also work for a healthy environment while allowing for investment and job creation. Developing the policies to achieve these aims is the responsibility of the legislative and executive branch, not the judiciary.
  • Question 2: I believe in interpreting the law as written and ensuring all amendments are consistent with our fundamental Constitutional rights.

Mike George, Gettysburg, PA—Cumberland Township

    • Education: 1981, Washington & Jefferson, B.A.; 1985, Dickinson School of Law, J.D.
    • Occupation: President Judge, 51st Judicial District Court of Common Pleas (Adams Co.)
  • Answer to Questions: As my interpretation of Article 1, Section 27 of the Pennsylvania Constitution based upon the factual scenario present in the Robinson Township case involves issues which may, in the future, be revisited by the Supreme Court, I believe I am ethically prohibited from direct comment on your specific question. Personally, I am concerned with the language in the plurality opinion’s interpretation which improperly elevates the Court to a legislative and policy making body.
  • Question 2: The amendment should be interpreted based upon its actual language as understood by those at the time of adoption.

Judy Olson, Wexford, PA—Franklin Park

    • Education: 1979, St. Francis University, B.A. Magna Cum Laude; 1982, Duquesne University School of Law, J.D. (Class Rank-2/91)
    • Occupation: Judge, Superior Court of Pennsylvania
  • Answer to Questions: As a sitting judge, I do not believe that it is appropriate for me to comment on whether I agree or disagree with a decision rendered by the Pennsylvania Supreme Court, especially since there may be future litigation involving the Act at issue.
  • Question 2: I believe that a judge must always strictly construe the plain language of constitutional amendments and statutes in interpreting the law.

Independent

Hon. Paul P. Panepinto—Philadelphia, PA

  • Education: B.A. and M.A. Villanova University 1976; J.D. Widener University School of Law
  • Occupation: Judge Philadelphia Court of Common Pleas
  • Answers: N/A

 

All information was gathered from http://www.palwv.org/wp-content/uploads/2015/05/VOTERS-GUIDE-SPRING-JUDICIAL-WITH-PHOTOS.pdf and http://ballotpedia.org/Paul_P._Panepinto.

[1] Class of 2016, Widener University Commonwealth Law School.

Widener Harrisburg Offers Unique Environmental, Sustainability Opportunities

For third-year law student and Harrisburg resident Pia Aklian, presenting proposed sustainability ordinances to the Harrisburg City Council last year was more than a routine class assignment.

“I actually live here. Helping Harrisburg increase its residential recycling rates is very personal to me. Not only did this class take me out of the library, it gave me a chance to make a difference.”

Aklian did this work as part of the Sustainability Law and Practice Class she took in 2014 with Distinguished Professor of Law John C. Dernbach, a nationally-recognized environmental law expert and a prominent Pennsylvania legal theorist whose work has been cited by the Pennsylvania Supreme Court in a ground-breaking environmental and constitutional case.

To reflect this emphasis on sustainable development, Widener Harrisburg’s Environmental Law Center is being renamed as the Environmental Law and Sustainability Center.   “No other law school has our combination of environmental law, sustainability and climate change experience,” said Interim Dean Robyn L. Meadows. “And Widener Law Commonwealth’s location in the capital of the nation’s sixth most populous state makes it an influential place for the development and implementation of environmental and sustainability laws.” On July 1, Widener Harrisburg will be named Widener University Commonwealth Law School.

Professor Dernbach has long been a vocal proponent of the concept of sustainable development, which, as he puts it, is a way of addressing environmental problems while also achieving social and economic goals.

According to Dernbach, the principles of sustainability provide a framework for governments and companies to further development and environmental protection at the same time.

“It’s entirely possible to consider the environment AND the economy,” said Professor Dernbach. “In fact, it’s unacceptable NOT to consider them together.”

Aklian praised Professor Dernbach’s expertise and commitment to teaching.

“He makes sustainability and environmental law relevant; he’s so far ahead of his time. In just that one class we presented sustainability regulations to Harrisburg City Council, we had guest speakers, we toured the City of Lancaster and even met with the mayor there to talk about sustainability and urban development,” she said.

Aklian spoke proudly of her work for the City and the fact that she can count it among her clients.

“Harrisburg has low rates of residential recycling,” she said. “I was able to present them not only with updated regulations but also with some creative education and outreach ideas like more visible recycling bins, re-routing trucks to incorporate more neighborhoods with multi-family housing units, and issuing more bins to families all over the City.”

“This was more than handing in a paper. It was like moot court but on a much larger scale,” she said. “This was important public policy work; I presented real regulations to powerful people and I had to get them to believe in what I was saying. It was a unique opportunity.”

Remarkably, Professor Dernbach isn’t the only environmental scholar of national note at Widener Harrisburg. The law school is also the academic home to one of the country’s few environmental ethics experts, Professor Donald A. Brown, Scholar in Residence for Sustainability Ethics and Law.

Professors Dernbach and Brown worked for many years at the Pennsylvania Department of Environmental Resources/Department of Environmental Protection, and have extensive experience drafting, implementing, and litigating environmental laws.

Professor Brown has made it his life’s work in both public and private law practice as well as his academic teaching and scholarship to demonstrate that it is impossible to think clearly about how a nation or state should respond to climate change until the government responds to the ethical and moral dimensions of this enormous threat.

“There are features of climate change that scream for attention as seeing it fundamentally as an ethics and justice problem,” said Professor Brown.

“Not talking about the ethics of climate change is like unilaterally taking the goalie out of a hockey game,” Brown said. “This is true because the strongest arguments against those who oppose climate policies are ethical and moral responses. Yet the public discourse on climate change is ignoring the ethical and moral responses to opponents of climate change policies.”

At the invitation of the United Nations, Professor Brown will be heading to Paris in November to participate in the “21st Session of the Conference of the Parties to the United Nations Framework Convention on Climate Change (COP21/CMP11), otherwise known as “Paris 2015.” He is currently conducting a research project with the University of Auckland in New Zealand on the extent to which some two dozen countries are using ethical considerations in developing and implementing their climate policies.

Professor Dernbach leads Sustaining America, the only national project assessing U.S. sustainable development efforts and making recommendations for future activities. The project involves approximately 50 experts from a variety of sustainability disciplines and has produced three books, all published by the Environmental Law Institute in Washington, D.C.

 

Widener Law Professor’s Work Cited in Major Pennsylvania Supreme Court Opinion

The Pennsylvania Supreme Court has extensively quoted the work of Distinguished Law Professor John C. Dernbach in a high-profile decision that significantly affects the state’s booming oil and gas industry.

The case, Robinson Township v. Commonwealth of Pennsylvania, decided Dec. 19, 2014 cites Dernbach in seven instances throughout the 162-page plurality decision. The court ruled that significant parts of Act 13, Pennsylvania’s Marcellus Shale drilling law, are unconstitutional.

“It’s a very important decision,” Dernbach said, after reading the court’s four opinions, including the plurality opinion by three justices, another by a fourth justice who concurred under a different line of legal reasoning, and two separate dissents by other justices. Two more justices did not participate in the decision. “I am also gratified that members of the court found my work helpful.”

The court held unconstitutional significant parts of Act 13, a 2012 law enacted to foster gas extraction from Pennsylvania’s Marcellus Shale reserves. Several parts of the law limited local governments’ abilities to review and approve gas operations under their planning and zoning laws. Another part of the law allowed the Department of Environmental Protection to waive mandatory distance limits between gas operations and water bodies like streams and wetlands.

The three-justice plurality opinion, written by Chief Justice Ronald E. Castille and joined by Justice Debra McCloskey Todd and Seamus P. McCaffery, held these provisions unconstitutional under Article I, section 27 of the Pennsylvania Constitution. Justice Max Baer concurred under a different line of legal reasoning, and would have struck the law as violative of substantive due process.

The opinion cited multiple Dernbach publications, including two articles published in 1999 in the Dickinson Law Review. They include “Taking the Pennsylvania Constitution Seriously When it Protects the Environment: Part I – An Interpretative Framework for Article I, Section 27,” and “Taking the Pennsylvania Constitution Seriously When it Protects the Environment: Part II – Environmental Rights and Public Trust.” The plurality also cited a chapter he authored for “The Pennsylvania Constitution: A Treatise on Rights and Liberties,” published in 2004.

Dernbach said the implications of the decision will be felt for years, or even decades. He was impressed with the depth of legal reasoning that went into the opinion. “The plurality treats Article I, Section 27 as actual constitutional law, and treats its text seriously,” he said. “It begins to free the amendment from decades of judge-made limits on its meaning and applicability.”

The Real Story of the (In)famous Snail Darter Case

In its 1978 decision in Tennessee Valley Authority v. Hill, the U.S. Supreme Court held that the Endangered Species Act prohibited the closure of a dam on the Little Tennessee River.   The absence of free flowing water, the Court decided, would jeopardize the continued existence of the snail darter, a small fish that lived only in that part of the river.   But the citizens and farmers–who brought the case to protect their livelihoods against a public works boondoggle–still lost.

Professor Zygmunt Plater, professor of law at Boston College who was the lead lawyer in the case, told the story at Widener’s Harrisburg, Pennsylvania campus on April 8.  His memorable presentation was at times moving, humorous, and sobering.  A recording is available here.

Congress subsequently amended the law to provide that a special “God Committee” could let the project go ahead if it were important enough to justify the eradication of the species.  But the Committee found that even the remaining costs of the project (it was mostly completed at the time) exceeded its total benefits.  Then, because of a late-night amendment to appropriations legislation, Congress subsequently exempted this project from the act altogether, and the dam was closed.     Project advocates framed the case  as “little fish vs. big dam” and environmental extremism, and the media bought into those frames.

Professor Plater, who is also the author of the recently published book, The Snail Darter and the Dam: How Pork-Barrel Politics endangered a Little Fish and Killed a River (Yale University Press 2013), pointed out that this is not the first or only time when the facts didn’t count in the public debate over an environmental issue.  Climate disruption is another example.  The recently released reports of the Intergovernmental Panel on Climate Change and the National Climate Assessment, which provide the most sobering account of climate change yet, may or may not prompt a greater public demand for action.  Still, one thing is clear from his story: an engaged citizenry doesn’t guarantee victory, but victory is impossible without it.   His story is a tribute to perseverance and principle in the face of daunting odds, and he and his clients nearly won.

Symposium Examines Sustainable Development Implications of Deep Shale Horizontal Hydraulic Fracturing

Experts in a variety of fields assembled at Widener Law’s Harrisburg campus on Friday, September 27th for a global symposium to examine the sustainable development implications of deep shale horizontal hydraulic fracturing (known as “fracking,” “fracing,” or “HF.”) called “Marcellus Shale Development and Pennsylvania: What Lessons for Sustainable Energy?” Topics explored during the program examined the practice of hydraulic fracturing and its impact from environmental, community, public health, energy and climate change, and governance perspectives, in the context of sustainability.

Following Dean Linda Ammons’ welcome, Distinguished Professor John C. Dernbach, the codirector of Widener Law’s Environmental Law Center and the conference’s principal organizer, framed the discussion for the day with an overview of just how important and far-reaching the developments in Pennsylvania are for energy, security, and the economy. He observed that the rest of the world can learn from Pennsylvania’s experiences about the prospects of “fostering sustainability of shale gas production.”

The symposium was a collaboration between the campuses sponsored by the Widener Environmental Law Center, and featured the expertise of the Center’s faculty from both campuses. Professor and Environmental Law Center co-director and symposium co-chair James R. May then provided an overview of the myriad technical and legal issues associated with fracking. Center Professors Eggen, Family, Hodas and Kristl also served as panel moderators and/or participants. Law student Timothy Bishop also delivered a lunchtime presentation based on his the 2012-13 Widener Law Journal Best Student Article.article, “North to the Future: Modeling Pennsylvania’s Development of Natural Gas After Alaska’s Permanent Fund Dividend.”

Other speakers on the opening panel included Diana Stares (Center for Energy Policy & Management, Washington & Jefferson College), and Scott Perry (Pennsylvania Department of Environmental Protection)

The first substantive panel addressed Public Health and fracking. Panelists included Bernie Goldstein (University of Pittsburgh School of Public Health); Dean Lynn Goldman (George Washington University School of Public Health) (via Skype); and Dean Patricia Salkin (Touro Law School) and Professor Pam Ko (Sage College).

The second panel addressed fracking and Environmental Sustainability. Panelists included moderator Tim Lambert (WITF); Elizabeth Bjerke (University of Pittsburgh School of Public Health); Alan Krupnick (Resources for the Future); Tom Beauduy (Susquehanna River Basin Commission); and John Quigley (John H. Quigley LLC).

The topic of the third panel was Community Sustainability. Panelists included Professor Ross Pifer (Penn State University Law School); Professors Jonathan Williamson and Bonita Kolb (Lycoming College); and Elam Herr (Pennsylvania State Association of Township Supervisors).

Panel 4 examined Governance and Sustainability. Panelists included George Bibikos (K&L Gates LLP); Tom Merrill (Columbia University Law School); Professor David Spence (McCombs School of Business, University of Texas); Terry Bossert (Range Resources-Appalachia LLC), and, Andrew Place (Center for Sustainable Shale Development)

The final panel addressed Energy, Climate Change, and Ethics. Panelists included John Hanger (Eckert Seamans LLC); Don Brown (Widener University Law School); and, John (“Skip”) Laitner (Economic and Human Dimension Research Associates).

Widener Law commends all of the speakers for sharing their expertise on this important topic, and thanks all those who attended – whether in person or via the live webcast!

Agenda 21: A Guide for the Perplexed

By Prof. John Dernbach

What is Agenda 21 and why does it matter?

Agenda 21 is a comprehensive public strategy for achieving sustainable development. It was endorsed by the U.S. (under the presidency of George H.W. Bush) and other countries at the U.N. Conference on Environment and Development in 1992. Agenda 21 stands for two broad propositions: 1) environmental goals and considerations need to be integrated into all development decisions, and 2) governments and their many stakeholders should work out the best way to integrate environment and development decisions in an open and democratic way.

Agenda 21 contains an almost encyclopedic description of the best ideas for achieving sustainable development that existed in 1992. On land use, it specifically counsels respect for private property. It contains a detailed description of the role that many nongovernmental entities, including business and industry, farmers, unions, and others, should play in achieving sustainability.

Ironically, Agenda 21 was never taken seriously as such in the United States; there has never been much enthusiasm here for following international agreements. It is not a legally binding treaty; it contains no provisions for ratification, for example. Agenda 21 also says nothing about new ideas like green building, smart growth, and smart meters. But sustainable development as an idea— achieving economic development, job creation, human wellbeing, and environmental protection and restoration at the same time—is gaining traction.

In response, a well organized campaign against Agenda 21, spread by the Tea Party, Glenn Beck, and the John Birch Society, is attacking sustainability by making false statements about Agenda 21. They say that Agenda 21 is opposed to democracy, freedom, private property, and development, and would foster environmental extremism. Far-fetched, you say? Well, consider this: in 2012, Alabama adopted legislation that prohibits the state or political subdivisions from adopting or implementing policies “that infringe or restrict private property rights without due process, as may be required by policy recommendations originating in, or traceable to ‘Agenda 21’” (Ala. Code § 35-1-6). Similar bills have been introduced elsewhere, and should be opposed.