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The Insider

Rise Of Novel Technologies Prompts Searches For New Legal Frameworks

As new technologies arise to combat environmental problems from climate change to waste disposal, proponents are looking for ways to fit them into federal or even global regulatory structures -- or to craft new ones that are a better fit for those emerging approaches.

Inside EPA’s Environment Next has exclusive coverage of emerging issues in environmental protection, including the rise of novel technologies and efforts to fit them into current laws and frameworks, or to create new ones around them.

Environment Next is a free service to our subscribers featuring wide-ranging looks at coming developments for environmental protection and policy, including interviews, in-depth reporting and profiles of key figures, companies and other groups that are reshaping regulation and private governance on air, water, waste and climate change. The features offer a new way of reporting about the shift from command-and-control regulation to innovative, market-based measures and other efforts, including voluntary programs and government action outside EPA’s orbit.

This week, we reported from an Environmental Law Institute (ELI) event on climate geoengineering that analyzed how existing international environmental pacts could provide an avenue for governments to sign off on projects to alter the makeup of the atmosphere or ocean in order to blunt climate change impacts:

Global Agreements Might Provide Framework For Geoengineering Policies
Long-standing pacts between the United States and other countries on ocean dumping and biodiversity could provide the framework for international approval of geoengineering techniques for mitigating global temperature rise and other greenhouse gas impacts, experts say, though a lack of global expertise on the topic might hinder the effort.

Due to the “failure of the worldwide community” to cut emissions quickly, geoengineering is “increasingly becoming a credible potential response,” said Wil Burns, co-director of the Institute for Carbon Removal Law and Policy at American University and moderator on the ELI panel.

But Burns and other panelists warned that any attempt to actually conduct a global geoengineering project, such as releasing sunlight-reflecting aerosol particles into the atmosphere, would have to go through some legal regime and be approved by the international community.

Without a framework for unified international decisions on the subject, any effort would have to pass muster under a long list of laws built for other purposes, starting with the Clean Air Act, National Environmental Policy Act and other U.S. laws in addition to their equivalents in other countries, said Robert A. James, a partner at the industry-focused law firm Pillsbury Winthrop Shaw Pittman.

The alternative, Burns said, could be to repurpose existing international agreements that touch on matters related to geoengineering, such as ocean dumping and species loss. He said the 1972 London Convention on marine waste dumping, which has 89 member countries, could be the most likely regime to govern water-based geoengineering approaches, while the U.N. Convention on Biological Diversity (CBD), which includes a “capacious definition of geoengineering” in the activities it governs, could apply to airborne measures.

But he also noted that the CBD does not allow for legally binding decisions, and neither convention has built up expertise on geoengineering specifically -- meaning more work would have to be done even to fit them into existing agreements.

Environment Next in recent days also featured the work of the non-partisan Rocky Mountain Institute, which is working to advance market-based approaches that would boost adoption of renewable energy technology:

Profile: Rocky Mountain Institute Eyes Market-Based Methods For Clean Energy
The non-partisan Rocky Mountain Institute (RMI), which advocates for a low-carbon future, is looking at options for promoting market-based methods to accelerate the global adoption of clean energy by companies, cities, and others as a key strategy for tackling climate change.

For example, RMI has in place a Cities Renewables Accelerator program, a partnership that supports the Bloomberg American Cities Climate Challenge and the Urban Sustainability Directors Network of cities that have adopted renewable energy commitments. RMI helps the cities discover “how they can procure their renewables,” and what RMI learns with those cities “we share with other cities,” Carla Frisch, a former Department of Energy policy director and now a principal at RMI, told Environment Next.

RMI is also working with industries to reduce their methane emissions using market incentives, Frisch notes. The International Energy Agency and the America’s Pledge climate action coalition of cities, corporations, and others -- a main focus of Frisch’s work -- have identified oil and gas methane emissions as a top priority in reducing global greenhouse gas emissions.

In Congress, Democrats recently unveiled a new bill to foster plastic recycling efforts that relies heavily on the extended producer responsibility model, where manufacturers would be responsible for planning out and funding efforts to keep their products out of landfills and oceans, including local recycling programs and greater use of recycled feedstock on the industry side:

Democrats’ Plastics Bill Adopts State, Local Pollution Reduction Programs
Democrats’ newly introduced recycling bill adopts several novel strategies that state and local officials are pursuing to tackle plastics waste, including extended producer responsibility (EPR) mandates, single-use plastics bans and bottle deposit fees, that its sponsors say are needed to “comprehensively tackle” plastics.

The “Break Free From Plastic Pollution Act,” introduced Feb. 11 by Sen. Tom Udall (D-NM) and Rep. Alan Lowenthal (D-CA), would set up nationwide EPR requirements on a wide array of sectors, ban many stores from distributing single-use plastic bags to their customers and limit distribution of other single-use goods like fast-food utensils, alongside a raft of new EPA air and water rules for plastic production.

It draws on a wide range of approaches that have been tested and debated in lower levels of government, such as legal limits on single-use items and enforceable EPR duties, as well as in voluntary initiatives by companies that make plastic and plastic-packaged goods.

Yet state-level EPR bills are still novel, with few actually on the books and none for plastic packaging -- a sign of how aggressive the Udall-Lowenthal proposal is relative to other plastics legislation in Congress.

EPR is one of a spectrum of possible solutions that local governments are hoping will help them deal with the rising cost of running recycling programs, after China’s decision to close its doors to much of the waste it used to import turned what used to be a profitable industry into a money-loser for many municipalities:

Cities’ Increasing Recycling Cost Problems Add To Plastic Waste Concerns
Cities are struggling with increasing costs of revising their long-running recycling programs after China’s decision to turn away most waste imports transformed collections from a money-maker into a net cost for local governments, adding to their existing concerns about how to handle rapidly increasing amounts of plastic waste.

“It’s a challenge that all of us cities are right now facing, as we’ve moved from a place where we were all getting paid for our recyclable materials to one where we are now paying for people to take them from us,” says St. Petersburg, FL, Mayor Rick Kriseman (D), who chairs the U.S. Conference of Mayors’ environment committee, told Environment Next.

Since prior to that shift most of the waste collected in U.S. recycling programs was sent to China for processing, the result has been a glut of plastics, paper, glass and other materials in the domestic market. With domestic facilities unequipped to process the amount of material that once went overseas, more and more of it has instead been disposed in landfills or found its way to waterbodies, where it poses largely unknown threats to the environment.

Kriseman said city leaders are trying to share data on how they approach those challenges, in forums like the mayors’ group’s recent winter meeting. “We know that everything else we’ve tried before hasn’t worked, so let’s try something new. If it works, great, let’s share it. If it doesn’t work, let’s share that too so others don’t try it and spin their wheels,” he says.

And industry-led groups such as the Recycling Partnership (RP) are looking for ways to support those efforts as part of their overall goal of achieving a “circular economy” where all waste plastic is reused as feedstock for industry sectors rather than being disposed.

“We see these investments as being an investment on the long term,” RP Vice President of Public Affairs Elizabeth Biser told Environment Next.

Finally, the Fuel Cell and Hydrogen Energy Association (FCHEA) is putting together a “roadmap” of how the federal government could help bolster prospects for vehicles that use its low-emitting technology:

Hydrogen Energy Sector Readies ‘Roadmap’ To Promote Low-GHG Fuel
A major industry group representing advocates of a hydrogen fuel-powered economy plans to soon release a “roadmap” for how the United States could rapidly expand the hydrogen energy sector as a key step toward cutting greenhouse gases and advancing clean energy goals.

Although the market for hydrogen-powered vehicles has grown in recent years, including some on-road models but also forklifts, drones and trains, FCHEA Director of Communications and Outreach Jennifer Gangi told Environment Next, “the hydrogen economy is not here yet,” and the “roadmap” is designed to help advance the idea.

The European Hydrogen Council, which describes itself as “a global initiative of leading energy, transport and industry companies with a united vision and long-term ambition for hydrogen to foster the energy transition,” in 2017 at the United Nations climate change conference in Bonn, Germany, published its own roadmap for achieving a hydrogen economy by 2050. FCHEA’s roadmap will describe hydrogen’s potential by 2030 and “how to get there,” Gangi said.