Greenhouse Gas Regulations: Drama, Rebellion, and Quiet Progress (episode I)

Last week I had the opportunity to travel to a conference on Greenhouse Gas (GHG) Regulations.  I learned a lot, and I will share some of the more interesting tidbits here over several posts.  For starters, I will not waste your time laying out too much of the background science, arguing about whether or not GHG's are accumulating in the atmosphere, or whether this is having an effect on the planet.  They are, it is.  Concentrations of CO2 have reached 400 ppm, the highest level in hundreds of thousands of years.  Even if humans stop emitting all CO2 today, we have already made significant, long lasting changes in our atmosphere, in the Earth's natural cycles.  The planet has warmed, it will warm further, and the consequences of this are far-reaching.  Comment if you like to argue these points if need be, but this isn't about what you might choose to believe--it is about science, facts.

I'm going to assume that if you are reading this you're already know at least a little about this topic, so I may skip over some of the most basic elements.  This piece is an overall introduction, and I'll also write several more specific posts.  California has some of the most progressive laws in the country regulating GHGs.  AB32 (CA Global Warming Solutions Act, 2006) and SB375 (Sustainable Communities and Climate Protection Act, 2008) are the two primary laws in CA that address the issues.  The brief summary is that these laws are designed to reduce GHG emissions to 1990 levels by 2020, and they do so by targeting many of the different sources of GHG emissions.

In California, the vast majority of GHGs are generated by 3 primary sources: the transportation sector (primarily cars & trucks), industry, and the electrical generation.  Further, although there are several different GHGs, the primary concern centers on CO2 emissions, as they account for most of the GHGs.  By regulating these three areas, California can do a lot of curb CO2 emissions.

California has therefore created a "cap and trade" system that limits the amount of CO2 various industries, electrical generators, etc. can emit per year.  The goal is first to "cap" the total amount of CO2 being released into the atmosphere.  Then, set a dollar value as to what a ton of CO2 is worth to an emitter. Emitting CO2 is tied to economic activity--the production of electricity, goods, services.  Therefore, anyone electing to emit CO2 can price this into their economic model. By allowing would-be emitters to buy/trade these CO2 credits on an open market, cleaner/more efficient companies can elect to sell their credits to another company that is struggling to comply with the restrictions.

These restrictions get progressively tighter with time, forcing companies to adopt new cleaner technologies, pay more for the right to pollute, or ultimately go out of business if they cannot adapt.  You can imagine that a power utility would turn away from coal, or even natural gas, in favor of cleaner sources of energy such as wind, solar, tidal, geothermal, etc.  Cities can contribute as well, by redesigning streets to improve traffic flow, building more public transit, siting goods and services in retail hubs that may be walking distance from high density housing or public transportation, etc.

In the next few days I'll go deeper into the laws California has put in place to try and mitigate this harm as much as it can.  Of course California is only one state, and California cannot solve this problem on its own.  However California can help lead the nation, the world, in solving this problem.

A Catalyst for Action

In 2002, I had the honor of attending the World Summit on Sustainable Development (WSSD) in Johannesburg, South Africa.  This UN Conference brought the world together 10 years later to follow up on the historic 1992 Earth Summit in Rio de Janeiro.  Without getting into too many details here, many considered the WSSD a disappointment--a missed opportunity to make meaningful progress on a host of important environmental issues.  The global community kicked the can down the road.

Twelve years later, the world has gathered again--this time in New York City. Yes, there are still some people making excuses, claiming that Climate Change is not real, that humans cannot possibly be responsible for changing the temperature, weather, climate of the entire planet.  These Climate Deniers are a small but very vocal group that still have tremendous political influence in the United States.  Fortunately, the rest of the world is not listening.  Countries from Germany to China have realized: 1) the science speaks for itself, 2) this is happening now, and 3) we've already missed the chance to mitigate some harm.  We'd better act NOW or else the harm will be a whole lot worse.  Some clever people have also realized there's money to be made in new technology, and this doesn't need to be a "jobs vs. the environment" debate.  

So, what are some news organizations most worried about?  Whether or not a football player committed a crime (pick one), whether President Obama was disrespectful with his latte-salute, or whether one of the Kardashians or Jenners or whomever they are did X (pick anything).

Dear readers, this is all just one big distraction from things that really matter.  We are facing real problems, and we're (humans) the cause of these problems.  Today in Oklahoma, some guy cut off a woman's head apparently due to misguided religious beliefs.  Wildfires burning near Lake Tahoe were started by an arsonist.  ISIS and the Taliban are committing genocide and creating havoc in the Middle East while Putin is still making a mess in Ukraine.  Perhaps most alarming is that ebola could actually turn into a global pandemic--in large part due to misinformation, lack of education, superstitions...and the fact that the global community is pretty much failing to fund any sort of meaningful response.  

Really?  Really?!?  I look at my little boy sleeping peacefully as I write this.  I wonder what world we're going to leave him?  I am afraid it won't be nearly as nice as the world I was born into, and I hate that we as a country, as a species, can't figure out that we're wasting precious time on nonsense.

So, if you've taken the time to read this far, I ask you please--do this one thing.  Make the world slightly better with your time here.  I don't care what it is.  Add beauty through art or music.  Waste less.  Be kinder.  Invent something that makes things better.  Learn something new, and share it.  Help underprivileged kids.  Just. Do. Something. Good.

And me?  I'm about to start really educating myself much more thoroughly on Green House Gas emissions, renewable energy, and some related topics so I can take a more active role in this area.  I will also be sharing these new insights in my blog.  (Of course, if I happen to get involved in a dog-bite case, I may still talk about that too...)  Twelve years ago I flew all the way to South Africa to try and make things a little bit better.  I think now it is time to finally make good on that promise.  

Finally...Justice

Hello Everyone--

Yes, it has been another long gap since I have posted anything--sorry.  Suffice to say I have been busy both with work, and with family--but let's get on with more exciting news!  

Kareem Lane was finally found Not Guilty by a jury in Columbus, GA, for the tragic murder of school superintendent Jim Burns.  

• I say finally, because this was a cold case prosecution for a murder that happened in 1992.  
• I say finally because this was the second time Mr. Lane had been tried for this case.  In 2012 the jury had deadlocked 10-2 in favor of acquittal.  
• I say finally because Mr. Lane was arrested for this crime in 2009.  He was incarcerated for two and a half years, from the time of his arrest until the end of the first trial.  
• I say finally because the prosecution sat on this for another year+ before finally deciding this January to retry Mr. Lane.  
• I say finally because due to this case, Mr. Lane and his wife Carol have been unable to live anything approximating a normal life for over 5 years.  

If you have read some of my entries from 2012, you know that I played an active (albeit small, pro bono) role in Mr. Lane's defense.  Although I am not normally a criminal defense lawyer, I was uniquely situated to assist GA attorney Stacey Jackson defend Mr. Lane and fight this injustice.  In doing so, I became very familiar with the (lack of) evidence against Mr. Lane, and I was shocked that the DA's office even considered bringing this to trial.    

There's an expression that "Justice Deferred is Justice Denied."  I think that there is a lot of truth to that.  Mr. Lane, his wife, his entire family have had to live with this burden for years.  There is no doubt that this case has forever changed the course of his life.  However, I have to say that after 5 years of fighting, to finally hear the words "Not Guilty" was awfully sweet to me.  I can only imagine how it felt for the Lane family!  Justice may have been deferred for far too long, but in the end Mr. Lane was finally vindicated.  He can go home.      

Unfortunately this case will not draw much media attention outside of Columbus, GA.  This is a shame.  This is such a ridiculous example of prosecutorial overreach, perhaps even misconduct?  I know that is a strong assertion, and winning such a case is terribly difficult, but I have many reasons for saying this.  Perhaps this shall be topic of another blog entry?  Regardless of whether I ever decide to grind that ax publicly, I am happy to say that finally, after 5+ long years, an innocent man walks free.  I am so glad that I saw justice served.  Finally!  

Something Borrowed--MAP Pricing

This is a piece I wrote for an attorney friend of mine who contacted me for more information about the issues below.  This is an area I have a lot of experience in, and I was able to help him on this topic.  I am posting it here as it may be relevant to my own readers.  

MAP Pricing and Anti-competitive practices

The holiday season is nearly upon us, and retailers are battling to capture market share.  Although price is not always the most important factor in a shopper’s buying decision, new programs and phone apps that allow customers to easily price compare make it so much more important for any retailer to be competitive on price.  This has become and even more contentious issue as Internet retailers continue to grab market share from more traditional “brick and mortar” stores.

In recent years, “MAP pricing” has gained a lot of attention in the business community, and has both staunch advocates and outspoken detractors.  MAP stands for “Minimum Advertised Price.”  In practice, this means that if a manufacturer establishes a minimum price, anyone selling their product cannot advertise that item for less.

Often when people hear this, their thoughts turn to price-fixing and they begin considering anti-trust violations.   However, MAP pricing was legitimized in 2007 when the United States Supreme Court ruled in Leegin that no longer were such practices per se violations, but instead had to be reviewed under the rule of reason standard.  In other words, any particular MAP pricing might be reasonable, or it might be a violation, depending upon the particular circumstances.

 

Why would anyone support MAP pricing?  After all, the general outlook in market economics is that competition is good, and that price supports are generally bad.  The idea here is that not all competition is necessarily good for the manufacturer.  Two examples:

First, you have an Internet retailer with little overhead, no store front to maintain, and no or very little inventory.  They are competing with a brick-and-mortar store that sells shoes.  As a consumer, you may want to try on several different types of shoe to see what looks best, and of course try different sizes to see which fits your foot the most comfortably.  You cannot do this easily over the Internet, but of course you can walk into a store and try on shoes for hours.  The store cannot stay in business if it sells the shoes for less than $99, for example, but the Internet site has the same shoes advertised for $89.  You find the shoe you like best, walk out of the store, and then go buy it on-line.  Obviously it won’t take long for the retail location to go out of business.

 

Second example, you have a retailer that is dedicated to being a “full-line merchant” of your products, let’s say bicycles.  They stock all sizes, all models, they can do repairs, and they have spare parts.  You can bring your bike in to be fixed and maybe be out the door in an hour or two.  The store down the street, or another Internet retailer, only carries a few of the best-selling models, and they advertise them for 15% less.  They know they can do well on a few hot items, and they don’t care about supporting the rest of the line.  Soon enough, the full-line store will likely have lost a significant part of their business, and will be left selling the odd-ball “specialty” items—if they can stay in business at all.

Neither scenario helps the manufacturer or the consumer.  First, the manufacturer suffers when people cannot come see, touch, and try on their shoes—or when their selection of merchandise is limited to a few popular bikes.  Many manufacturers have a diverse product line, and they may want to have their items in both shops and sold on line.  If they have and enforce a MAP policy, both the Internet retailer and the brick and mortar store can sell the products on a level playing field

. 

But what about the consumer?  Do they not suffer by paying higher prices?  Three things: first, this is only a Minimum Advertised Price.   Retailers of all stripes can ultimately sell the products for less so long as they do not advertise them below MAP.  Second, this presumes that price is all that matters to customers, and that they do not also benefit from better selection & service at the stores they shop in.  Finally, consumers benefit from the choice of being able to shop on-line, go to stores, etc.  If all that exists is a race to the bottom on price, the only retailers left will be the ones with a few popular products, big discounts, and little service.

 

Thus, whether or not you have a legitimate claim of price-fixing or an anti-trust violation will depend a lot on just what the circumstances are surrounding the particular price structure, and industry, that will be scrutinized.  The Federal Trade Commission routinely investigates these issues.  I can review your unique circumstances and advise you whether or not you have a MAP issue.

Who's Yelping Now?

One of the reasons that I became an attorney is that I felt it was (is!) an honorable profession that helps make the world a better place. One of my law professors described my legal education as both a sword & a shield. The shield is so you can defend yourself, or your clients, from wrongs that may be committed against you or them. The sword is so you can go an actively smite wrong doers that may have harmed you (or them), or attempted to do so. I like that idea. While I am a live and let live person by nature, I cannot stomach people who try and take advantage of others. Someone needs to be willing to stand up to the wrong doer.

So, it always saddens me when I hear of lawyers behaving badly. As attorneys, we have ethical obligations to be honest, fair, etc. Because we are officers of the court, and due to the nature of our training, we must adhere to a higher standard. There's little that is very tricky--most of the ethical rules are pretty common sense. Nevertheless, every month there are new reports released of lawyers doing something fundamentally wrong.

The latest I saw (in The Daily Transcript this week) is a law firm that is being sued by Yelp for allegedly using its own employees posing as clients to write positive reviews on Yelp about their own firm. OK, back one step: you've heard of Yelp, right? It is a website that will give you the scoop on good restaurants, doctors, solar panel providers--you name it, Yelp may have a category for it. Moreover, Yelp reviewers (Yelpers?) are normal people who tell you about their experiences, and you get to take their opinion for whatever it is worth. Frankly, some of the reviews are pretty bizarre, but hey--give their opinion whatever weight you think it merits!

Now, if your a law firm, you might think that you'd know better than to write bogus reviews about your own firm, right? Right?

Something Old

Some of you--my faithful readers!--may remember that almost exactly a year ago I was up to my ears helping defend a man accused of murder. I can't believe it has been a year--it went so quickly!

Oh, the case had all of the drama of a movie, or something you'd see on TV. You may remember from my earlier posts that although we did not get the defendant acquitted, the jury was hung 10-2 in favor of acquittal. I think a very telling thing about that trial was that post-trial, the judge presiding over the case dropped the bail from $750,000 to $30,000, and waived any travel restrictions against the defendant. He was literally free to travel to any state or country he chose.

Now, the defendant has gotten on with his life. Without getting into too many personal details, let's just say that he and his wife are reunited again after his long incarceration, and they are happier then ever. I feel GREAT having played a role in helping end his two-year incarceration over a crime the evidence shows he did not commit.

Nevertheless, the District Attorney has neither refused to drop the charges, nor has she or her office pursued a retrial. This was a cold-case to begin with (1992!), and the DA has a reputation for trying to clean up old cases. However, it is unconscionable to me that in light of the DNA evidence, in light of all the testimony, that the DA should even consider retrying this particular defendant.

Maybe it is time to let this case become history--or else the DA needs a new theory on who actually committed the murder.

Something New

Six months--how they go by in a flash! Well, I may have taken a break from blogging, but the world is still moving. Happily, today's news indicates we're moving a step forward into the 21st century. The EPA just released NEW proposed rules for carbon limits for NEW power plants. This is good news. These rules would make it extremely difficult to get a new coal-fired plant approved, due to the amount of CO2 released from the burning of coal. Natural gas facilities, and of course renewables (wind, solar, etc) would have a much easier time passing the standards. The new rule caps CO2 emissions at 1100 lbs of CO2 emitted for each megawatt hour of electricity produced.

Why pick on coal? Simply put: coal is responsible for more CO2 emissions than other sources. In 2012, coal fired plants accounted for 18% of the energy consumed nationwide, but were responsible for 31% of energy related carbon emissions.

Anyone who watches television has seen ads for "clean coal technology." (Also known as Carbon Capture and Sequestration, or CCS). Unfortunately, CCS is an idea that hasn't really left the drawing board--yet. The problem with capturing and storing CO2 on a large scale is that it is currently unfeasible for two major reasons. First, from a logistical standpoint we lack the infrastructure to capture, transport, and store, significant amounts of CO2. Further, the energy required to do so negates most of the energy generated in the first place. It makes little economic sense.

Could that change in the future? Certainly. A few new coal-fired plants are being built in the U.S. and Canada that may be able to capitalize on technological advances. Interestingly the coal industry that promotes clean coal technology is fighting the new EPA rules--because even the coal industry cannot say if these new plants will actually be successful.

The EPA is doing what it can to limit the amount of CO2 entering the atmosphere, and it is going after one of the biggest sources of CO2 with these new regulations. The next step will be tightening the regulations on existing power plants, especially the handful of oldest, dirtiest plants that are responsible for such a disproportionate amount of the CO2 emitted in the US.