Author: ELJME

ELRS Post: Week of December 21, 2020

ELRS Post: Week of December 21, 2020

This week’s post, Introducing a Voluntary Extended Producer Responsibility Scheme for the New Plastics Economy, was written by Hannah Yang, a third-year student at New York University School of Law and an Articles Editor of the New York University Environmental Law Journal. Read the post here.

Introducing a Voluntary Extended Producer Responsibility Scheme for the New Plastics Economy

Introducing a Voluntary Extended Producer Responsibility Scheme for the New Plastics Economy

By Hannah Yang This post is part of the Environmental Law Review Syndicate. Introduction Ocean plastic pollution is a large-scale problem that stems from multiple points of the plastics life cycle, ranging from design, production, use, disposal, and environmental leakage. Voluntary extended producer responsibility (EPR)…

“A Great Deal of Discretion”: <i>Bostock</i>, Plain Text, and the Future of Climate Jurisprudence

“A Great Deal of Discretion”: Bostock, Plain Text, and the Future of Climate Jurisprudence

By Grace Weatherall

This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment.


Bostock v. Clayton County was marked for a place among landmark Supreme Court jurisprudence as soon as it arrived.1. The decision protected LGBTQ+ employees from discrimination based on their sexual orientation or gender identity,2 and LGBT activists and allies rightly celebrated it as an affirmation of basic human rights and dignity. But amidst this celebration, excitement arose from a different, surprising, quarter: climate change activists.

Before the ink had dried on Bostock—or, more accurately, before many readers had managed to battle through the download delay that Justice Alito’s unwieldy dissent caused the Court’s servers3—various climate scholars were already arguing that the language and reasoning that Justice Gorsuch employed in his majority decision could have major implications for climate regulation under the federal Clean Air Act (CAA).4 Specifically, scholars posited that Gorsuch’s use of progressive textualism, and his specific acknowledgment that old statutes may be used to address new problems,5 bodes well for the durability of future climate change policymaking under CAA authority.6 Following the Bostock framework, climate litigants could, in theory, argue that the text of the CAA must allow for broad regulation of greenhouse gas as a pollutant, despite Congress’s failure to address greenhouse gases or climate change directly.

Climate advocates and policymakers are certainly justified in searching for a silver bullet of legal theory to convince the Supreme Court to uphold a major CAA climate rulemaking. Climate scientists across the globe are warning policymakers that time is running out to save the world from climate disaster,7 and lacking climate-specific legislation, it seems more important than ever that the Environmental Protection Agency (EPA) undertake significant action under its existing authority. I have suggested elsewhere that EPA should institute National Ambient Air Quality Standards (NAAQS) for greenhouse gases (GHGs) under CAA sections 108–10, in order to activate broad federal power over state implementation plans (SIPs) for emissions reduction.8 Similarly, several scholars have argued stridently for the implementation of a GHG SIPs program under section 115.9 Either way, regulating GHGs through SIPs represents the broadest possible approach to GHG regulation under the existing CAA,10 but represents a difficult legal argument to make to the Supreme Court. Moreover, the Court has already demonstrated wariness of EPA attempts to address climate change under the CAA,11 and climate litigants can expect this wariness to increase as the conservative wing of the Court grows.12 Since a successful EPA climate rule must survive judicial review, in this article I examine whether Justice Gorsuch’s Bostock framework could indeed aid EPA in future climate rulemaking and advocacy before the Court.

Ultimately, I conclude that Bostock is not the legal silver bullet that climate activists seek.13 As attractive as the Bostock framework is, it cannot save climate change policymaking under the CAA from a textualist standpoint because interpretation of the word “pollutant” in the  CAA, unlike “sex” in the Civil Rights Act, involves deference to an agency head. Thus, the battle for CAA GHG regulation must be fought on the fields of reasonability analysis, not textualism. And this raises a second problem for EPA. In a future climate case, the Court may reject Chevron deference entirely and instead utilize either the deregulatory “major questions” doctrine, or the Schechter-era nondelegation doctrine—and in either case, Bostock offers no useful tool to climate litigants. I do not argue that EPA has no chance of enacting climate policy under the CAA, nor that the agency should not attempt to do so. On the contrary, I feel strongly that EPA is morally obligated to make every effort possible to enact significant GHG regulation. I conclude, however, that future climate jurisprudence will be governed not by precise textualism, but by broad judicial and political philosophy—and that realistically, climate advocates’ best bet is to pursue the appointment of as many liberal justices to the Supreme Court as possible.


I. Overview of Bostock v. Clayton County and Its Potential Relevance to Climate Litigation
A. Bostock v. Clayton County

Bostock v. Clayton County began in its life in Clayton County, Georgia, when Gerald Bostock, a county employee with an excellent work performance record,14 joined a gay softball league and was promptly fired for “conduct unbecoming a county employee.”15 Bostock sued, alleging that the county had violated Title VII of the Civil Rights Act of 1964.16 The district court ruled against Bostock,17 and the Eleventh Circuit agreed, holding that Title VII’s prohibition of discrimination “on the basis of sex” did not apply to sexual orientation.18 The Supreme Court reversed.19

Justice Gorsuch, writing for a six-three majority, announced in the first paragraph of his seventeen-page opinion that the phrase “discrimination . . . on the basis of . . . sex” included discrimination on the basis of sexual orientation because sexual orientation itself depends on sex.20 “An employer who fires an individual for being homosexual or transgender,” Justice Gorsuch explained, “fires that person for traits or actions it would not have questioned in members of a different sex,”21 and thus “[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”22 In the following pages, Justice Gorsuch also rejected protests that Title VII cannot be used to protect LGBT employees because such a result is at odds with the “expected applications” of the law.23 Such an application of purposivism, Gorsuch insisted, has no place in Supreme Court jurisprudence today.24 Instead, he reasoned, the ordinary public meaning of the word “sex,” and its use in the statute,25 requires the Court to recognize protections for gay and transgender individuals—and it has always done so.26 Ultimately, Gorsuch declared, the fact that the framers of the statute may not have realized that such protections existed was no reason to deny these protections now, because “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”27

Moreover, Justice Gorsuch specifically forestalled potential objections on “elephants in mouseholes” grounds.28 While Gorsuch acknowledged the late Justice Scalia’s adage that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions,”29 Gorsuch insisted that this canon “ha[d] no relevance” in the Bostock case, because while the policy implications of Gorsuch’s interpretation are sweeping—an indisputable “elephant”—Title VII’s prohibition against sex discrimination is hardly a “mousehole.”30 Instead, Gorsuch wrote, the prohibition is “written in starkly broad terms,” which necessarily, according to the ordinary public meaning of the word “sex,” include sexual orientation discrimination.31

B. Parallels to Climate Rulemaking and Litigation

The implications of Bostock to future climate litigation and jurisprudence are complex, but a series of parallels can be identified as follows. First, it can be argued that a prohibition against “discrimination on the basis of sex” is to LGBT employee protections under the Civil Rights Act—a statute that never mentions sexual orientation—as “air pollutant” is to GHGs under the Clean Air Act—a statute that never mentions climate change, but which empowers EPA to broadly regulate “air pollutants”32 for the protection of the “public health and welfare.”33 In other words, both phrases explicitly identify a general issue that their statute is designed to address, and thus both should implicitly include specific aspects of that broader issue in the same way: sexual orientation discrimination is a type of sex-based discrimination (and civil rights violation), as climate change-causing GHG is a type of air pollutant (and a threat to public health and welfare). Second, climate change and sexual orientation discrimination are both issues that have been neglected by most national politicians until relatively recently,34 despite decades of advocates’ efforts, and both seem ripe for regulation under an old statute that was designed to address a general issue but that did not directly acknowledge this specific problem. Third, Gorsuch’s choice in Bostock to brush aside “elephants in mouseholes” concerns, despite the broad policy implications of his holding, is encouraging to climate activists because the Supreme Court has made clear in past climate cases that it considers broad GHG regulation programs to constitute an elephantine effect on national industry.35

C. Overview of Relevant Climate Jurisprudence

For those hoping for a friendly judicial reception to climate change regulation, Justice Gorsuch’s Bostock arguments are tantalizing. I am convinced, however, that the series of parallels outlined above will not, alone, be enough to ensure the protection of an ambitious Clean Air Act GHG regulation scheme. In order to understand why not, we must first understand the history of the three Supreme Court cases that have addressed GHG regulation under the CAA thus far: Massachusetts v. EPA (Mass. v. EPA),36 American Electric Power Co. v. Connecticut (AEP v. Connecticut),37 and Utility Air Regulatory Group v. EPA (UARG v. EPA).38

1. Massachusetts v. EPA and the Origins of Greenhouse Gas Regulation Under the Clean Air Act

 The Supreme Court first addressed GHG regulation under the CAA in 2007, in Mass. v. EPA. Today, this case represents the basis for EPA regulation of GHGs as pollutants. Mass. v. EPA began in 2003 when EPA made an official determination declaring that it lacked authority under the CAA to regulate GHGs as pollutants in the context of climate change.39 A coalition of states, cities, and environmental organizations brought suit, arguing that section 202 of the CAA—requiring EPA to set emissions standards for “any air pollutant” produced by vehicles—included GHGs.40 The Supreme Court agreed, finding that GHGs “fit well within the Clean Air Act’s capacious definition of ‘air pollutant.’”41 Accordingly, in 2009, EPA under the newly-elected President Obama made an “endangerment finding” officially establishing that the six primary “well-mixed” greenhouse gases together constituted a singular “air pollutant” under section 202.42

2. AEP v. Connecticut, Stationary Source Regulation, and the Potential for Future Rulemaking

 AEP v. Connecticut, decided in 2011, subsequently expanded EPA’s ability to regulate GHGs as an air pollutant beyond section 202 (vehicle regulation) to include subsections 111(b) and (d) (stationary source regulation). AEP v. Connecticut began when an alliance of states and environmental interests sued a group of energy companies, attempting to use federal common law authority to force the companies to reduce GHG emissions from their power plants.43 The Supreme Court dismissed the case.44 Writing for a 6-0 majority,45 Justice Ginsburg held that the CAA had foreclosed common law litigation on matters of interstate air pollution, because the Act “speaks directly” on this issue46—and after Mass. v. EPA, it was “plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act.”47 Significantly, in addition to confirming EPA GHG regulatory authority under sections 202 and 111, Justice Ginsburg also left the door open for GHG rulemaking under other sections of the CAA, including the NAAQS program.48 “The Act,” she wrote, “provides multiple avenues for enforcement, [and i]f EPA does not set emissions limits for a particular pollutant or source of pollution, States and private parties may petition for a rulemaking on the matter.”49

3. UARG v. EPA and the GHG Regulation – Textualism Mismatch

 Mass. v. EPA and AEP together constitute an essential foundation to federal GHG regulation, but UARG v. EPA, decided in 2014, provides the most relevant precedent for future attempts at ambitious GHG regulatory policy. UARG began in 2010, when EPA, reacting to Mass. v. EPA, determined that it must regulate GHG emissions under the “prevention of significant deterioration”50 (PSD) and Title V programs, which require emissions permits for “major sources.”51 Per the statute, a “major source” is any source emitting 250 tons of “any air pollutant” each year52––but many sources emit GHGs in such vast amounts that millions of nontraditional sources, including residences, would count as “major sources” if GHGs were considered “air pollutants” under these programs.53 Seeking to avoid unmanageable permitting responsibilities, EPA designed the “Tailoring Rule,” which specified that sources would be considered “major” due to their GHG emissions alone only if they emitted at least 100,000 tons of GHGs each year.54

Energy interests challenged the Tailoring Rule in the D.C. Circuit, and the Supreme Court struck it down.55 Writing for a deeply divided plurality which only Chief Justice Roberts and Justice Kennedy joined in full,56 Justice Scalia held that EPA had been wrong to “tailor” a statutory provision this way.57 In writing a rule that purported to recognize GHG sources as “major” for purposes of regulation only if they emitted at least 100,000 tons per year, Scalia wrote, EPA had illegally “revise[d] statutory terms.”58 The only solution to the legal and practical problem at hand, Scalia held, was to read an implicit exemption into the phrase “any air pollutant” in the context of the PSD and Title V programs.59 Thus, according to Justice Scalia, GHGs are officially not “air pollutants” under sections 165, 169, or 171–73 of the CAA.60

Justice Breyer, meanwhile, argued in a partial concurrence that the Court had misplaced its implicit exemption. While Scalia had decided that the term “any air pollutant” must be read to exclude “non-traditional” pollutants like GHGs, Breyer argued that it would instead be possible to read the term “any major source” to exclude those sources, like private residences, which are unsuited to Title V permitting.61

Finally, Justice Alito argued in a separate partial concurrence that EPA should not be allowed to regulate GHGs under the CAA at all.62 Alito argued that GHGs are fundamentally unsuited to regulation under the CAA and that while EPA had attempted to gloss over the problems of GHG regulation under the CAA by arguing that the Act grants the agency “a great deal of discretion,” ultimately “[t]hat is not what the Clean Air Act contemplates.”63

This, then, is the state of Supreme Court climate jurisprudence after ten years of EPA GHG regulation and climate cases before the Court. After UARG, the Court’s conservative wing has made its suspicion of ambitious GHG regulation clear––but the door is not closed to climate rulemaking entirely. Would-be climate policymakers and litigants, anticipating a possible Biden presidency, will keep all this in mind as they seek a successful legal framework for ambitious policy.

II. Textualism, Deference, and the Nondelegation Doctrine: What Bostock Does and Does Not Mean for the Future of Climate Jurisprudence

Based on the precedent outlined above, it appears that the Bostock textualist approach cannot be used as a template for climate litigation. This is true both because the Court has already held that “any air pollutant” does not actually mean “any,” and because interpretation of the term “pollutant” in the context of the CAA fundamentally involves relative deference to the EPA administrator. In theory, litigants could argue that the plain text of the CAA mandates full deference to the EPA Administrator in identifying those pollutants that endanger public health or welfare and are thus subject to CAA regulation. Realistically, however, the battle for climate regulation will depend not on textualism, but on the broader questions of reasonability and deference. And unfortunately for EPA, this Court is likely to forego Chevron altogether and dismiss a climate rule either on major questions grounds, or, in a worst-case-scenario situation, through the revival of the nondelegation doctrine. This unfortunate possibility is now more likely than ever in light of Justice Ginsburg’s death and likely replacement with conservative judge Amy Coney Barrett.64

A. The Textualist Mismatch Between Title VII’s “on the Basis of Sex” and the Clean Air Act’s “Any Air Pollutant”

Despite Bostock’s progressive textualist appeal, it is unlikely that the Bostock framework will aid a future EPA in establishing GHGs as “any air pollutant” throughout the Clean Air Act. As noted above, Justice Gorsuch in Bostock put forth a compelling argument for the inclusion of an implicit, specific issue within an explicit, general statutory term and mandate. The Civil Rights Act’s prohibition against “discrimination on the basis of sex”, Gorsuch insisted, must include a prohibition against sexual orientation discrimination.65 It is tempting to conclude by the same logic that the CAA’s reference to “any air pollutant” must include GHGs––but this does not necessarily follow from likely Supreme Court reasoning, for two reasons.

First, it is important to note that Bostock itself overturned no Supreme Court precedent—instead, it announced the existence of a previously unrecognized inherent meaning in the phrase “discrimination…on the basis of sex.”66 By contrast, the Supreme Court has already addressed the question of whether the term “air pollutant” could include GHGs, and purports to have settled the matter under more than one section of the CAA. According to Mass. v. EPA and AEP v. Connecticut, GHGs are air pollutants under sections 202 and 111.67 But according to UARG, GHGs are not air pollutants under section 169.68 It is already clear, then, that the Court does not believe that the phrase “any air pollutant” must always include GHGs.

Second, both sides of the ideological spectrum have already exhibited an aversion to a plain text approach in the context of climate change. In UARG, Justice Scalia and Justice Breyer’s majority and dissenting opinions are opposite in function but identical in form: both engage in a textualist approach of a sort, yet explicitly reject the bounds of plain meaning. Each Justice notes that the term “any” need not mean “any in the universe,”69 and each acknowledges the need to read an implicit exemption into the text—accordingly, Scalia proposes to read the relevant line as “any air pollutant except greenhouse gases,”70 and Breyer proposes “any major source except non-traditional sources.”71 In advancing a plain text approach to support GHG regulation throughout the CAA, litigants would need to convince the Supreme Court to both overturn decided precedent and abandon longstanding methods of interpretation. Neither proposition is likely to succeed.

B. A Textualist Obligation to Afford Deference?

Certainly, the status of greenhouse gases as air pollutants remains unsettled under several thus-far unlitigated sections of the Clean Air Act—including, notably, the NAAQS program. The NAAQS program empowers the EPA Administrator to identify a list of ambient air pollutants which she feels may “endanger public health or welfare”72 and develop national standards for these pollutants, and it provides an excellent example of why the Supreme Court has good reason to eschew a plain text approach in interpreting “any air pollutant” under the CAA. Despite Justice Alito’s protestations, the CAA does indeed grant EPA “a great deal of discretion”73—in particular, regarding which substances to regulate as pollutants. The Administrator’s choice of pollutant under the NAAQS program is of course reviewable in theory, but thus far the Court has essentially granted EPA free reign in identifying criteria pollutants74—cabined by the traditional “reasonableness” metric for evaluating agency discretion.75

Arguably, this means that despite the clear failure of a plain text approach to defining the term “any air pollutant,” there may still be hope for a plain text argument in support of deference to the EPA Administrator. The NAAQS program demands that the Administrator be allowed to exercise her “judgment” in identifying and listing criteria pollutants.76 Thus climate advocates could adopt a sort of Bostock framework and argue that the CAA has always given EPA the ability to regulate any substance which can reasonably be said to endanger health or welfare, regardless of cost or regulatory reach.77 I have argued elsewhere that under the NAAQS program at least, EPA is clearly authorized to regulate GHGs as an air pollutant, in part because of the broad discretion granted to the Administrator in the stark language of the CAA.78 Under this theory, the Court would be required to accept EPA’s identification of GHGs as a pollutant, and subsequently engage in the traditional reasonability and arbitrary and capriciousness analysis of whatever the resulting rule may be.

C. Major Questions, New Tricks, and the Court’s Evolution Away from Deference

As noted above, while an intellectually honest textualist approach may in theory require the Court to grant EPA the discretion to regulate GHGs as a pollutant throughout the CAA, in practice it is unlikely that defending a massive GHG regulatory program will be as simple as a text-based argument for EPA discretion. Furthermore, this Court is likely to forego a Chevron reasonability analysis altogether, and instead either invoke its “major questions” doctrine to bar EPA’s regulatory authority over GHGs for lack of a “clear statement,”79 or use a major climate rule as a vehicle to revisit the Schechter-era nondelegation doctrine.80

First, the Supreme Court could invoke its “major questions” jurisprudence, used to great effect in UARG,81 and declare that EPA cannot, for example, regulate GHGs as a pollutant under the NAAQS program without a “clear statement” from Congress authorizing it to do so—because GHGs are not “conventional” pollutants,82 and because any major climate rule would surely have a transformative effect on industry. Justice Scalia, of course, is no longer on the Court, but other justices seem eager to pick up his mantle on this point.83 Justice Kavanaugh, for instance, has already demonstrated his fondness for the major questions principle on environmental and administrative law issues in particular.84 In oral argument for West Virginia v. EPA, the 2016 D.C. Circuit case regarding the legality of the Obama EPA’s ambitious Clean Power Plan, then-Judge Kavanaugh pressed government counsel on major questions grounds.85 It is not difficult to imagine that Kavanaugh and like-minded justices would be swift to invoke the “major questions” rule in a major climate case to bar EPA from regulating GHGs as a pollutant under major sections of the CAA.

More troubling still, the Court’s conservative wing has recently been sending signals that it is eager to move away from the Chevron tradition altogether in favor of the nondelegation doctrine of the Schechter era, which could require Congress to outline a highly specific “intelligible principle” before agencies may develop regulatory schemes.86 This shift was most recently demonstrated in Gundy v. United States,87 a case addressing whether the Sex Offender Registration and Notification Act, in stating that the Attorney General has “the authority to specify the applicability of the requirements of [the Act] to sex offenders convicted before [its] enactment,” fails to establish an intelligible principle cabining the Attorney General’s authority and thus violates the nondelegation doctrine.88 Although Justice Kagan’s plurality opinion did not alter Supreme Court precedent on the matter, the conservatives in dissent made their displeasure with this result clear.89 Indeed, those heralding the Bostock decision as a harbinger of friendly climate jurisprudence may find reason to be concerned with the fact that Justice Gorsuch himself wrote a dissenting Gundy opinion, joined by the Chief Justice, Justice Kavanaugh, and Justice Thomas. Specifically, Gorsuch argued that Gundy would have been an opportunity to revisit the nondelegation doctrine because the statute in question inappropriately “hand[ed] off to the nation’s chief prosecutor the power to write his own criminal code.”90 It is not difficult to imagine that Justice Gorsuch might feel the same way about the argument that the CAA grants EPA the power to identify and regulate any pollutants that endanger health or welfare in any way. And Justice Gorsuch would likely find particular reason to be concerned if EPA applied this reasoning to the regulation of GHGs because GHGs are well-mixed, globally dispersed, dangerous only on an international scale, and impossible to effectively control without a significant shift in the American energy industry.91

In response to this concern, climate advocates may cite the second significant Bostock finding: the idea that old statutes can perform new tricks, regardless of their framers’ intent.92 Certainly, this holding may help to defeat an “elephants in mouseholes” challenge, following Justice Gorsuch’s Bostock reasoning, because while deference to EPA in regulating GHGs as pollutants is certainly an elephant, the text of the Clean Air Act grants EPA the authority to identify and regulate pollutants that endanger public health and welfare—and thus no “mousehole” exists.93 Ultimately, however, I fear that in light of the Court’s shift toward the major questions and nondelegation doctrines,94 this is but a hollow victory.


Having considered the future of climate jurisprudence in light of Bostock, relevant climate cases, and the Court’s current trend toward nondelegation, I conclude that the problem with climate advocates’ search for a silver bullet may not be that no such bullet exists, but rather that the Court is unlikely to acknowledge one. It may be true, in theory, that the text of the Clean Air Act demands deference to the EPA Administrator in identifying pollutants for regulation, but the Court may refuse to acknowledge this, either by citing major questions or by announcing a revival of the intelligible principle requirement. Ultimately, I do not suggest that climate advocates and a theoretical Biden EPA should cease regulatory attempts under the Clean Air Act. For one thing, I believe that the Act provides a clear mandate for EPA action in identifying pollutants that endanger public health or welfare and regulating emissions of those pollutants. And despite the challenges, I do not think it is impossible that Justice Roberts or Gorsuch could be persuaded to support a new significant climate rulemaking. In the end, however, it is clear that climate advocates’ best bet is not to craft a brilliantly reasoned rulemaking to impress this Court, but instead to elect a President who will appoint one or two climate-friendly justices—and perhaps, given recent events on the Court, even to initiate a Court-packing plan. Time, after all, is running out.


A Blooming Problem:  How Florida Could Address the Causes and Effects of Red Tide

A Blooming Problem: How Florida Could Address the Causes and Effects of Red Tide

By John Niedzwiecki, Senior Editor, Georgetown Environmental Law Review This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. I. An algae bloom in the Gulf of Mexico is wreaking havoc on Florida’s economy and environment. An…

Conduit for Peace in the Middle East: An Analysis of the Red Sea – Dead Sea Water Conveyance Project

Conduit for Peace in the Middle East: An Analysis of the Red Sea – Dead Sea Water Conveyance Project

By Sarah L. Fine Sarah Fine is a J.D. candidate at Lewis & Clark Law School and an Online Journal Editor of Environmental Law. This post is part of the Environmental Law Review Syndicate. As the old saying goes, whiskey is for drinking—water is for…

Mitigating Greenhouse Gas Emissions in the Northeast and Mid-Atlantic Transportation Sector: A Cap-and-Invest Approach

Mitigating Greenhouse Gas Emissions in the Northeast and Mid-Atlantic Transportation Sector: A Cap-and-Invest Approach

By James D. Flynn

James Flynn is an LL.M. candidate at New York University School of Law and the graduate editor of the NYU Environmental Law Journal.

This post is part of the Environmental Law Review Syndicate.

I. Introduction

In recent years, states in New England and the mid-Atlantic region have made significant progress in reducing climate change-inducing greenhouse gas (GHG) emissions from the electricity generation sector.[1] Several factors–including the effects of the economic recession, shifts in energy markets from coal to natural gas and renewable energy sources, and carbon pollution mitigation and clean energy programs like renewable portfolio standards–have been identified as principal drivers of these reductions.[2] Another is the Regional Greenhouse Gas Initiative (RGGI), a cooperative effort among nine northeastern and mid-Atlantic states to reduce carbon dioxide (CO2) emissions from the power sector.[3] RGGI employs a cap-and-invest approach in which the participating states set a regionally uniform, decreasing cap on CO2 emissions from covered power plants, periodically auction off emission allowances, and invest auction proceeds in other programs including end-use energy efficiency, renewable energy, greenhouse gas abatement, and direct customer electric bill assistance.[4] One study estimates that CO2 emissions in the RGGI region would have been approximately 24 percent higher in 2015 but for the program, which took effect in 2009.[5] At the same time, it is estimated that through 2015, RGGI generated approximately $2.9 million in net economic benefits,[6] and that the investment of RGGI allowance auction proceeds in 2015 alone will return $2.31 billion in lifetime energy bill savings for consumers.[7]

Over approximately the same period of time, however, CO2 emissions from the transportation sector in RGGI states have remained relatively level or have increased. Transportation accounts for 44 percent total CO2 emissions in the region, more than any other sector.[8] Each RGGI member state has adopted a long-term GHG reduction goal, set by statute or executive order, or in climate- or energy-related plans, “generally consistent with achieving an 80 percent reduction of GHG emissions by 2050 from 1990 levels.”[9] Most states’ goals do not include sector-specific emission targets, but because transportation is the largest source of emissions in the region, shifting to a cleaner transportation system is a “critical component of the action needed to meet economy-wide goals and to avoid further catastrophic harms of climate change.”[10] RGGI states already employ a variety of policy mechanisms aimed at decarbonizing transportation,[11] but have been considering whether to employ a cap-and-invest approach similar to RGGI or California’s multi-sector cap-and-invest program, which includes the state’s transportation sector.[12]

This paper first discusses the mechanics of RGGI and California’s cap-and-invest program generally, including how auction proceeds are invested. It then discusses the potential to use a cap-and-invest approach to mitigate GHG emissions from transportation in the Northeast and mid-Atlantic and addresses two key policy considerations: the type of fuels to be covered and the point of regulation. It concludes that, if properly designed, a cap-and-invest approach could achieve significant GHG reductions from transportation in the region and generate substantial funds for other GHG mitigation and climate change adaptation initiatives.

II. The Cap-and-Invest Model

Cap-and-trade programs generally operate as follows.[13] The government sets an overall emissions target–the cap–and determines which facilities will be covered. Emission allowances, each generally equal to one ton of emissions, are periodically auctioned or distributed without cost—or both—to covered facilities.[14] The total number of allowances is equivalent to the cap number, which decreases over time.[15] A market is created in which covered facilities may purchase or sell allowances from other covered facilities. Covered facilities are required to hold enough allowances to cover their emissions at the end of a compliance period, which may range from one to three years.[16] If a facility lacks sufficient allowances, it will be assessed a monetary penalty in addition to having to purchase enough allowances to cover the shortfall.

This market-based approach provides covered facilities three options: (1) they may reduce their emissions to meet the number of allowances they purchase or receive; (2) they may purchase additional allowances on the market and emit more; or (3) they may reduce their emissions below the allowances they hold and sell the remainder on the market.[17] The advantage of cap-and-trade programs is that facilities that can reduce their emissions more cost-effectively will do so, while those that face higher emissions reduction costs will purchase additional allowances at auction or on the market.[18] Accordingly, cap-and-trade schemes provide firms with flexibility to design cost-effective, tailored emissions plans, and the regulator achieves its policy objective by means of the overall emissions cap.[19] “Cap-and-invest” refers to cap-and-trade programs that invest their proceeds into other policy initiatives intended to address the pollutant or its effects.


RGGI is the first market-based regulatory program in the United States designed to reduce GHG emissions.[20] It is a cooperative effort among the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont to cap and reduce CO2 emissions from the electricity generation sector.[21] RGGI is composed of individual CO2 budget trading programs implemented in each participating state. Through independent regulations, each state’s CO2 budget trading program limits emissions of CO2 from electric power plants with the capacity to generate 25 megawatts or more (some 164 facilities), issues CO2 allowances, and establishes participation in regional CO2 allowance auctions.[22]

RGGI began with discussions among the governors of seven New England and mid-Atlantic states, which led to a 2005 Memorandum of Understanding that outlined the program.[23] In 2008, the RGGI states issued a Model Rule that participating states could use as guidance to establish and implement their individual programs.[24] RGGI’s designers expected the initial program might be expanded in the future by covering other emission sources, sectors, GHGs, or states.[25] CO2 emissions from covered facilities in RGGI states account for approximately 20 percent of GHG emissions in the region.[26]

At the end of each three-year compliance period, covered facilities must surrender one allowance for each ton of CO2 emissions generated during the period.[27] Covered facilities are permitted to bank an unlimited number of emission allowances for future use.[28] Over 90 percent of allowances are distributed through periodic auctions, and a reserve price sets a price floor for allowances.[29] RGGI employs a “cost containment reserve” that allows for additional allowances to be auctioned if certain price thresholds are met.[30] In limited circumstances, covered facilities may also submit offsets, which are measurable reductions, avoidances, or sequestrations of emissions from non-covered sources, in lieu of emission allowances.[31] The RGGI states agreed that each would use at least 25 percent of its individual auction proceeds “for a consumer benefit or strategic energy purpose.”[32]

Member states invest the proceeds from allowance auctions in a variety of consumer benefit programs at scale.[33] In October 2017, RGGI, Inc. (the corporate entity that administers RGGI) released a report that tracks the investment of RGGI auction proceeds in 2015 and the benefits of these investments throughout the region.[34] The report estimates that “[t]he lifetime effects of these investments are projected to save 28 million MMBtu of fossil fuel energy and 9 million MWh of electricity, avoiding the release of 5.3 million short tons [4.8 million metric tons] of carbon pollution.”[35] The report also notes that “RGGI investments in 2015 are estimated to return $2.31 billion in lifetime energy bill savings to more than 161,000 households and 6,000 businesses which participated in programs funded by RGGI investments, and to 1.5 million households and over 37,000 businesses which received direct bill assistance.”[36] RGGI states have discretion as to how they invest RGGI proceeds.

The report breaks down these investments into four categories. Energy efficiency makes up 64 percent of investments. Funded programs are expected to return $1.3 billion in lifetime energy bill savings to over 141,000 participating households and 5,700 regional businesses.[37] Clean and renewable energy makes up 16 percent of investments, and investments in these technologies are expected to return $785.8 million in lifetime energy bill savings to 19,600 participating households and 122 regional businesses.[38] Greenhouse gas abatement makes up 4 percent of investments and are expected to avoid the release of 636,000 short tons of CO2.[39] Finally, direct bill assistance makes up 10 percent of investments accounting for $40.4 million in bill credits and assistance to consumers.[40] One independent report notes that while RGGI states each have their own unique auction revenue investment programs, “[o]verall, greater than 60 percent of proceeds are invested to improve end-use energy efficiency and to accelerate the deployment of renewable energy technologies,”[41] which far exceeds the 25 percent investment “for a consumer benefit or strategic energy purpose” required by the Model Rule.

Whether or not RGGI has been successful is the subject of debate. As designed, it applies only to CO2 and only to emissions from some 164 power plants with the capacity to generate twenty-five megawatts or more.[42] Since CO2 accounts for only 20 percent of total GHG emissions in the RGGI states, and electricity generation accounts a fraction of total CO2 emissions, RGGI’s potential is limited.[43] The Congressional Research Service has thus described the initiative’s contribution to global GHG reductions to be “arguably negligible.”[44] In addition, RGGI significantly overestimated emissions from member states for its first compliance period and set an initial emissions cap that was actually above realized emissions levels.[45] This limited participation in the program and allowed participating facilities to bank substantial amounts of unused allowances. After the 2012 program review, RGGI lowered the cap by 45 percent between 2014 and 2020.[46] And after the most recent review in 2016, RGGI lowered the cap by an additional 30 percent between 2020 and 2030.[47] The extent to which these adjustments will hasten emissions reductions to be seen. On the other hand, several studies have shown that the combination of the price signal created by RGGI and the investment of allowance auction proceeds in other environmental programs has been the dominant driver of the recent emissions decline in the region.[48]

b. California’s Cap-and-Invest Program

In 2006, California enacted its landmark climate change law, the Global Warming Solutions Act, also known as AB (“assembly bill”) 32.[49] The statute established an aggressive goal of reducing GHG emissions to 1990 levels by 2020, and an 80 percent reduction from 1990 levels by 2050, across multiple sectors of the state’s economy.[50] AB 32 directed the California Air Resources Board (CARB), the state’s air pollution regulator, to implement a cap-and-trade program, which went into effect in 2013.[51]

According to CARB, the program, which covers approximately 450 entities, “sets a statewide limit on sources responsible for 85 percent of California’s greenhouse gas emissions, and establishes a price signal needed to drive long-term investment in cleaner fuels and more efficient use of energy.”[52] It is “designed to provide covered entities the flexibility to seek out and implement the lowest-cost options to reduce emissions.”[53] The 2013 cap was set at about 2 percent below the emissions level forecast for 2012, declines an additional 2 percent in 2014, and declines 3 percent annually from 2015 to 2020.[54]

Unlike RGGI, California’s program distributes free allocations of emission allowances earlier in the program, but those allocations decrease over time as the program transitions to an auction process.[55] The allocation for most industrial sectors is set at approximately 90 percent of average emissions and is updated annually based on each facility’s production.[56] Electrical distribution and natural gas facilities receive free allowances on the condition that the value of allowances must be used to benefit ratepayers and achieve GHG emission reductions.[57] The allocation for electrical distribution utilities is set at about 90 percent of average emissions, and for natural gas utilities, is based on natural gas supplied in 2011 to non-covered entities.[58] The program includes cost containment measures and allows for the banking of allowances, has a three-year compliance period with an annual obligation to surrender 30 percent of their previous year’s emissions, and allows for offsets of up to 8 percent of a facility’s compliance obligation.[59] AB 32 also employs a substantial penalty mechanism for facilities that fail to meet their compliance obligations: “If the compliance deadline is missed or there is a shortfall, four allowances must be provided for every ton of emissions that was not covered in time.”[60]

California’s cap-and-trade program became linked with Québec’s cap-and-trade system on January 1, 2014 and became linked with Ontario’s cap-and-trade program on January 1, 2018.[61] All allowances issued by the California, Québec, and Ontario programs before and after the linkage can be used for compliance interchangeably across jurisdictions.[62] The three jurisdictions also hold joint allowance auctions.

On January 1, 2015, suppliers of transportation fuels, including gasoline and diesel fuel, became covered under the program.[63] A fuel supplier is defined as “a supplier of petroleum products, a supplier of biomass-derived transportation fuels, a supplier of natural gas including operators of interstate and intrastate pipelines, a supplier of liquefied natural gas, or a supplier of liquefied petroleum gas.”[64] All fuel suppliers that deliver or import 10,000 metric tons or more of annual CO2 equivalent emissions are subject to a reporting requirement, but only suppliers that reach a 25,000 metric ton threshold are covered by the cap-and-trade program.[65]

Proceeds from the allowance auctions are deposited in the state’s Greenhouse Gas Reduction Fund and are appropriated by the state legislature for “investing in projects that reduce carbon pollution in California, including investments to benefit disadvantaged communities, recycling, and sustainable transit.”[66] As of 2017, some $3.4 billion had been appropriated to state agencies implementing GHG emission reduction programs and projects, collectively referred to as the California Climate Investments.[67] Of that amount, $1.2 billion has been expended on projects “expected to reduce GHG emissions by over 15 million metric tons of carbon dioxide equivalent.”[68]

III. Applying a Cap-and-Invest Approach to Northeast and Mid-Atlantic Transportation Sector

Under business-as-usual trends, carbon emissions in RGGI states will be 23 percent below the 1990 baseline in 2030.[69] These states must achieve much deeper emissions reductions across multiple economic sectors in order to achieve their “greenhouse gas emission reduction targets for 2030 that range from 35 to 45 percent, centered around a 40 percent reduction from 1990 levels.”[70] Since transportation represents the largest share of GHG emissions in the RGGI states, that sector should be a primary focus of policymakers’ attention.

One study finds that the levels of emissions reductions necessary to meet the GHG reduction goals of the states in the region could be accomplished “through a suite of clean transportation policies” including financial incentives for the purchase of clean vehicles, such as electric and hybrid light-duty vehicles and natural gas powered heavy-duty vehicles; investments in public transit expansion including bus rapid transit, light rail, and heavy rail; promotion of compact land use; investment in bicycle infrastructure; support for travel demand management strategies; investment in system operations efficiency technologies; and investment in infrastructure to support rail and short-sea freight shipping.[71]

One potential mechanism for achieving the levels of reductions necessary for the RGGI states to meet their targets “would be to implement a transportation pricing policy, which could both achieve GHG reductions and generate proceeds that could be used to fund clean and resilient transportation solutions.”[72] For example, “carbon-content-based fees, mileage-based user fees, and motor-fuel taxes” could “generate an average of $1.5 billion to $6 billion annually in the region.”[73] A mid-range pricing policy that generated approximately $3 billion annually “would create a price signal that would promote alternatives to single-occupancy vehicle travel and result in modest additional emission reductions. It would also raise a cumulative $41 billion to $46 billion for the region during 2015-2030.”[74] Proceeds from such a pricing policy would offset projected declines from existing state and federal gasoline taxes and could be used to fund other clean transportation initiatives.[75]

A hypothetical regional cap-and-invest program for vehicle emissions might be structured as follows. Member states would establish a mandatory regional cap on GHG emissions from the combustion of fossil transportation fuels calculated using volumetric fuel data and fuel emission factors available from the Environmental Protection Agency.[76] The cap would decline over time. States would auction allowances equal to the cap and establish an entity like RGGI, Inc. to administer the program, auction platform, and allowance market.[77] Regulated entities would achieve compliance by purchasing allowances at auction or from other market participants, and possibly with offsets earned from reductions in other aspects of their operations.[78] As with RGGI, individual member states would commit to invest a percentage of their auction proceeds into other initiatives aimed at reducing GHG emissions, including from transportation, and could retain the discretion to decide individually how to allocate those funds.[79]

Because power plants are stationary and relatively few in number, their GHG emissions can be regulated directly, i.e., at the stack. Vehicles, however, are mobile and far more numerous. To regulate the emissions from every fossil fuel powered vehicle at the tailpipe would entail a substantial and possibly prohibitive administrative burden, and would likely be politically unpalatable. An alternative is to use transportation fuel as the point of regulation. Determining which types of fuels and which entities in the fuel supply chain to cover under the cap-and-invest program will be critical.

Transportation fuels that could be covered include gasoline, on-road and off-road diesels, aviation fuels, natural gas, propane/butane, and marine fuels.[80] Considering both the volume of each type of fuel consumed and the comparative emissions resulting from its consumption, the program should cover, at a minimum, gasoline and on-road diesel, which account for approximately 85 percent of carbon emissions from transportation in the region.[81] Other fuels may make up too small a portion of total emissions to justify the additional technical and regulatory burden of covering them.[82] In addition, because all states in the region currently require reporting on gasoline and on-road diesel, the most straightforward approach would be to regulate those fuels. Covering other fuels would require at least some states that do not already require reporting of these fuels to establish new reporting requirements.[83]

Another key design choice is the point of regulation: which entities within the transportation fuel supply chain should be subject to the regulatory obligation to hold sufficient allowances. Because all states in the region have existing reporting and enforcement mechanisms for gasoline and on-road diesel (and many also tax off-road diesel and aviation fuel), one option would be to regulate existing state points of taxation for these fuels.[84] However, state points of taxation are not uniform throughout the region. They can include many different types of entities in the supply chain and in some states the point of taxation is different for different fuels.[85] State regulations also differ with respect to what actions by covered entities trigger the reporting requirement.[86] Many states have points of regulation low in the supply chain, such as entities that purchase fuel from the terminal rack and distribute it to retailers.[87] Thus, while using existing state points of taxation to regulate transportation fuels would make use of existing state regulatory mechanisms, it would also require regulating over one thousand entities across the region, many of which are smaller distributors.[88]

Another possible point of regulation would be one that is as far upstream as possible, i.e., entities that refine fuel in the region for use in the region, and those that import fuel into the region for use in the region.[89] This would include refineries, and for fuels refined outside the region, the first importers into the region.[90] Eight refineries in the region and an unknown number of first importers, including foreign suppliers and suppliers from U.S. states outside the region, would be subject to regulation.[91] This option would require reporting of the destination of all fuel produced in or that enters the region to ensure that a fuel to be used outside the region is not inadvertently covered.[92] While the Energy Information Administration (EIA) and the Environmental Protection Agency generally require destination data from refiners and importers into the U.S. and from interstate suppliers, the agencies do not publicly disclose this data.[93] Thus, regulating refiners and importers would likely cover many fewer entities as compared to existing state points of taxation, most of which would be large petroleum companies.[94] However, because only three states in the region have refineries within their borders, and because importers are not systematically tracked throughout the region, accounting for fuels that are transported through states to prevent double-counting would likely require the establishment of new regional reporting requirements that would include points of origin and destination.[95]

A third possible point of regulation would be entities known as prime suppliers, defined by the EIA as “suppliers who produce, import, or transport product across state boundaries and local marketing areas and sell to local distributors, local retailers, or end-users.”[96] For the region, this includes approximately 30 refiners, other producers of finished fuel, interstate resellers and retailers, and importers.[97] EIA requires these entities to report the amount of fuel, including gasoline, diesel, and aviation fuel, sold or transferred for end use by state on a monthly basis.[98] Although EIA does not publicly provide disaggregated prime supplier data because of statutory privacy restrictions, organizations may enter into data-sharing arrangements with EIA to obtain individual prime supplier data.[99] Thus, while the prime supplier group would include a larger number of regulated entities than importers and refiners, it would provide a consistent definition of a point of regulation already understood by the regulated entities.[100] Regulating prime suppliers, most of which are higher in the supply chain than existing state points of taxation, would also relieve most smaller entities of compliance obligations.[101]

IV. Conclusion

States in states in New England and the mid-Atlantic region must make much deeper emissions reductions in the transportation sector in order to meet their overall GHG emission reduction targets. Recognizing this reality, representatives from Connecticut, Delaware, Maryland, Massachusetts, New York, Rhode Island, Vermont, and Washington, D.C., at the 2017 Conference of the Parties to the United Nations Framework Convention on Climate Change, signed a joint statement affirming their commitment to reducing GHG emissions from the transportation sector. In that statement, they identified “market-based carbon mitigation strategies” as potential pathways to achieving needed emissions reductions.[102]

Despite its early struggles, the cap-and-invest approach to mitigating emissions in the northeast and mid-Atlantic electricity generation sector has achieved, at a minimum, some emissions reductions, substantial investment in other GHG mitigation efforts, and overall net benefits within the region. California has achieved substantial GHG emissions reductions across multiple sectors, including transportation, and has invested substantial sums in a suite of other green programs. These examples demonstrate the potential of using a cap-and-invest approach to accomplish environmentally and economically sound policy objectives, both within the RGGI region and in the context of transportation. If properly structured, such an approach could achieve significant emissions reductions in the region and raise substantial funds for other GHG mitigation and climate change adaptation initiatives.

How would a cap-and-invest approach to transportation emissions be structured? The fundamental aspects of RGGI and California’s cap-and-invest program are similar in most respects. California occupies a unique position in federal regulation of automobile emissions and had the benefit of constructing a program applicable only to itself, although its program is now linked with programs in other jurisdictions. RGGI already covers much of the Northeast and mid-Atlantic region, could be expanded to include other sectors of those states’ economies, including transportation, and could be linked with the California-Québec-Ontario cap-and-invest system to create a larger and more efficient allowance market.

Owing to the practical differences between directly regulating emissions from power plants and indirectly regulating transportation emissions by fuel type and supply chain point, the mechanics of using a cap-and-invest approach to mitigate transportation emissions, especially across jurisdictions, poses some potentially challenging design issues. The program should cover, at a minimum, gasoline and on-road diesel. Identifying the appropriate point of regulation will require policymakers to consider a host of technical, administrative, and policy issues. Existing state points of taxation are numerous and vary by jurisdiction and by fuel type within jurisdictions. Upstream refiners and importers are far fewer in number but regulating these entities would likely require the development of new regional reporting mechanisms that might make this option administratively undesirable. While the prime suppliers group is larger in number than refiners and importers, regulating prime suppliers would provide a consistent state-based definition of a point of regulation already understood by the regulated entities, and would not subject most smaller entities to compliance obligations.

[1] See Energy Information Administration, State Carbon Dioxide Emissions Data (last visited Feb. 10, 2018),

[2] See Gabe Pacyniak, et al., Reducing Greenhouse Gas Emissions from Transportation: Opportunities in the Northeast and Mid-Atlantic, Georgetown Climate Center 8 (2015),

[3] Regional Greenhouse Gas Initiative, Welcome (last visited Feb. 10, 2018),

[4] Regional Greenhouse Gas Initiative, RGGI Benefits (last visited Feb. 10, 2018),

[5] Brian C. Murray and Peter T. Maniloff, Why have greenhouse emissions in RGGI states declined? An econometric attribution to economic, energy market, and policy factors, Energy Economics 51, 588 (2015).

[6] See Paul J. Hibbard, et al., The Economic Impacts of the Regional Greenhouse Gas Initiative on Nine Northeast and Mid-Atlantic States, Analysis Group 5 (July 14, 2015),; Ceres, The Regional Greenhouse Gas Initiative: A Fact Sheet (2015),

[7] Regional Greenhouse Gas Initiative, The Investment of RGGI Proceeds in 2015 3 (Oct. 2017),

[8] See Energy Information Administration, supra note 1; Gerald B. Silverman and Adrianne Appel, Northeast States Hit the Brakes on Carbon Emissions From Cars, BNA (Oct. 16, 2017),

[9] Pacyniak, supra note 2.

[10] Id.

[11] See Gabe Pacyniak, et al., Reducing Greenhouse Gas Emissions from Transportation: Opportunities in the Northeast and Mid-Atlantic, Appendix 3: State GHG Reduction Goals in the TCI Region, Georgetown Climate Center 4-13 (2015),

[12] See, e.g., Center for Climate and Energy Solutions, California Cap and Trade (last visited Feb. 10, 2018),

[13] See Joel B. Eisen, et al., Energy, Economics and the Environment 326 (4th ed. 2015).

[14] Id.

[15] Id.

[16] See id.

[17] Id.

[18] See id.

[19] See id.

[20] See Regional Greenhouse Gas Initiative, supra note 3.

[21] See id.

[22] Regional Greenhouse Gas Initiative, Program Design (last visited Feb. 10, 2018),

[23] Regional Greenhouse Gas Initiative, A Brief History of RGGI (last visited Feb. 10, 2018),

[24] Id.

[25] Jonathan L. Ramseur, The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Congress,

Congressional Research Service 3 (May 16, 2017),

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id. at 4.

[32] Id. at 3.

[33] See Brian M. Jones, Christopher Van Atten, and Kaley Bangston, A Pioneering Approach to Carbon Markets: How the Northeast States Redefined Cap and Trade for the Benefit of Consumers, M.J. Bradley & Associates 4 (Feb. 2017),

[34] Regional Greenhouse Gas Initiative, The Investment of RGGI Proceeds in 2015 (Oct. 2017),

[35] Id. at 3.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Jones, supra note 33.

[42] Id.

[43] See id. at 3.

[44] Id. at 17.

[45] Id. at 4.

[46] Regional Greenhouse Gas Initiative, Elements of RGGI (last visited Feb. 10, 2018),

[47] Regional Greenhouse Gas Initiative, Summary of RGGI Model Rule Updates 1 (Dec. 19, 2017),

[48] See Murray, supra note 5 at 25-26; Man-Keun Kim and Taehoo Kim, Estimating impact of regional greenhouse gas initiative on coal to gas switching using synthetic control methods, Energy Economics 59, 334 (2016).

[49] California Air Resources Board, Assembly Bill 32 Overview (last visited Feb. 10, 2018),

[50] Id.

[51] Id.

[52] Id.

[53] California Air Resources Board, Overview of ARB Emissions Trading Program 1 (last visited Feb. 10, 2018),

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id. at 2.

[60] Id.

[61] California Air Resources Board, Facts About The Linked Cap-and-Trade Programs 1 (updated Dec. 1, 2017),

[62] Id.

[63] California Air Resources Board, Information for Entities That Take Delivery of Fuel for Fuels Phased into the Cap- and-Trade Program Beginning on January 1, 2015 1 (last visited Feb. 10, 2018),

[64] Id. at 2.

[65] Id.

[66] California Air Resources Board, 2017 Report to the Legislature on California Climate Investments Using Cap-And-Trade Auction Proceeds i (2017),

[67] Id.

[68] Id. at v.

[69] Elizabeth A. Stanton, et al., The RGGI Opportunity, Synapse Energy Economics, Inc. 3 (revised Feb. 5, 2016), Notably, this study took into account the anticipated effect of the Clean Power Plan, which President Donald Trump and Environmental Protection Agency Administrator Scott Pruitt propose to repeal. See id. at 4.

[70] Id. at 2.

[71] Pacyniak, supra note 2 at 22. The Georgetown Climate Center serves as the facilitator for the Transportation Climate Initiative, which is “a collaboration of the agency heads of the transportation, energy, and environment agencies of 11 states and the District of Columbia, who in 2010 committed to work together to improve efficiency and reduce greenhouse gas emissions from the transportation sector throughout the northeast and mid-Atlantic region.” Id. at i.

[72] Id. at 25.

[73] Id.

[74] Id.

[75] Id. at 26-27.

[76] Drew Veysey, Gabe Pacyniak, and James Bradbury, Reducing Transportation Emissions in the Northeast and Mid-Atlantic: Fuel System Considerations, Georgetown Climate Center 7 (Nov. 13, 2017),

[77] Id.

[78] Id.

[79] See id.

[80] Id. at 9.

[81] See id. at 11-13.

[82] See id. at 33.

[83] Id. at 20.

[84] Id.

[85] Id. at 16.

[86] Id.

[87] Id. at 17.

[88] Id. at 33.

[89] Id. at 21.

[90] Id.

[91] Id.

[92] Id. at 22.

[93] Id.

[94] Id. at 33.

[95] Id.

[96] Id. at 24.

[97] Id.

[98] Id.

[99] Id. at 25.

[100] Id. at 33

[101] Id.

[102] See Transportation and Climate Initiative, Northeast and Mid-Atlantic States Seek Public Input As They Move Toward a Cleaner Transportation Future (Nov. 13, 2017),; Sierra Club, Northeast and Mid-Atlantic Governors Lauded for Announcement on Transportation and Climate, Press Release (Nov. 13, 2017),

ELRS Post: Updates from Last Semester

ELRS Post: Updates from Last Semester


Opportunities to Address Climate Change in the Next Farm Bill

Opportunities to Address Climate Change in the Next Farm Bill

Sara Dewey,[1] Liz Hanson,[2] & Claire Horan[3] This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. Introduction The Farm Bill affects nearly every aspect of agriculture and forestry in the United States. Therefore, its next reauthorization…

Soil Conservation in California: An analysis of the Healthy Soils Initiative

Soil Conservation in California: An analysis of the Healthy Soils Initiative

Danika Desai. Managing Editor, UCLA Journal of Environmental Law & Policy.

This post is part of the Environmental Law Review Syndicate

I.                             Introduction to California’s Soils

California is called the golden state, named for the gold trapped in the Sierra Nevada mountains that drew desperate men like flies. Later, when the dream of easy wealth dried up, those same men moved to California’s Central Valley and planted wheat—acres and acres of it;[1] a different kind of gold. It turned out that California’s true wealth was in its soils, not in its precious metals.[2]

How do those soils fare today? Agricultural production has long served as a proxy for soil health, but it is an inaccurate proxy. Because top soil takes hundreds of years to form,[3] and erodes faster than the lifespan of civilizations but slower than the human lifespan, it is not the most immediate limiting factor upon agriculture nor the most visible.[4] This is especially true in California, where a fluctuating water supply dictates what and how much farmers can grow.

Moreover, California’s agriculture still flourishes, at least superficially. California remains the leading agricultural production state in the nation in terms of both value and crop diversity.[5] The counties within the San Joaquin Valley produce more food than any other comparably sized region in the world.[6] No other state, or combination of states, matches California’s productivity per hectare.[7] Stunning achievements all, but the continuing productivity of California’s agricultural sector has more to do with the Green Revolution’s miraculous technological trifecta: chemical fertilizers, pesticides, and controlled water supply[8] than with the health of the State’s soils.

Indeed, California’s soils face many challenges. Soil erosion detrimentally affects some 8.8 million acres in California.[9] Nitrogen fertilizer, the tech-fix to boost crop productivity and grow food in unhealthy soils, creates excess nitrogen in the soil, which leaches into the State’s waters, polluting them.  About 419,000 tons of nitrogen leach into California’s groundwater each year, 88% of it from agricultural sources.[10] Most of that nitrogen accumulates there, and will remain there for millennia.[11] The nitrogen problem, like most problems, affects poor people first. Groundwater in Tulare Lake Basin and Salinas Valley regularly exceeds state and federal standards for nitrate levels in drinking water.[12] The roughly 200,000 people who depend on that water are therefore highly susceptible to nitrate exposure from their drinking water.[13]

The most serious challenge that California’s soils face, at least from an agricultural perspective, is salinization.  More than half of California’s irrigated cropland is affected by salinization; the Imperial Valley and the Western San Joaquin Valley are the most impacted regions. [14] A study from the University of California, Davis found that if salinization continues at its current rate until 2030, it could cost the State between 1 and 1.5 billion dollars.[15]  In the San Joaquin Valley, more than 80,000 hectares of irrigated lands have been retired from agriculture, partly to reduce the load of selenium reaching the San Joaquin River and other waterways.[16] 

Farmers, the California government, academics, even the informed citizenry are not unaware of these challenges. But most of the proffered solutions revolve around water. In fact, almost all state-based attempts to address soil degradation rely on water quality standards, rather than soil protective measures. [17] While there is a close nexus between water and soil, not all soil degradation can be solved through water standards. Recently, however, there has been a renewed interest in soil health, as demonstrated by the California Healthy Soils Initiative, passed by the California Legislature in 2016. This paper examines the Healthy Soils Initiative within the larger context of soil conservation programs on the state and federal level. Although the Healthy Soils Initiative is an exciting step forward within the realm of soil conservation, soil, as the long-neglected environmental resource, deserves more; a comprehensive soil management program is necessary to truly realize the potential of healthy soils in California.  

II.                         Healthy Soil as a Solution to a Multitude of Environmental Problems

The National Resources Conservation Service (NRCS) defines soil health as “the continued capacity of soil to function as a vital living ecosystem that sustains plants, animals, and humans.”[18] Attributes of healthy soils include a diverse population of beneficial organisms, high levels of decomposed organic matter, low levels of toxic compounds, adequate (rather than excessive) levels of nutrients, a sufficiently porous surface, and good tilth.[19]

The benefits of healthy soils are manifold; proper soil management has the potential not only to mitigate all the challenges described in the previous section, but also to mitigate seemingly unrelated environmental problems.  Healthy soils reduce nutrient leaching; more nutrients are recycled and can be used by crops again. This means that less nitrogen makes its way into groundwater and other waterways, preventing water pollution.[20] Healthy soil holds more water and releases less water to evaporation.[21] Thus, fields would not have to be over-irrigated, a major cause of salinization,[22] and would also be more resilient to drought conditions, an important quality in drought-prone California. Healthy soils also improve plant health and yields, have the potential to sequester and reduce greenhouse gases, reduces sediment erosion and dust, improve water and air quality, and can promote biodiversity and provide wildlife benefits.[23]

III.                     Policies and Laws for Soil Health

A.                         Federal Laws and Programs for Soil Health

Most of the soil management programs in the United States were born out of the Dust Bowl, which was set in the context of the Great Depression. Even today, vestiges from that era mark the way the US thinks about soil. For one, unlike air and water, soil does not have its own sweeping protective statute. There are several reasons for this including the fact that soil’s crisis moment occurred in the 1930s rather than the 1960s, at a time when federal power was not yet fully centralized. In addition, soil erosion is mostly invisible to the public, soil is often privately owned unlike air and water; soil degradation is incremental and therefore invisible, and it can be compensated in the short term with increasing applications of commercial fertilizer.[24] Furthermore, soil management techniques are considered land-use decisions, which are normally regulated at the local level, rather than at the state or federal level.[25] All of these factors are challenges for implementing soil management practices today, and posed bigger obstacles in the 1930s, when large-scale soil management programs were just beginning.

Even though the Dust Bowl was perhaps the largest environmental catastrophe the US had experienced, it was partially overshadowed by the concurrent catastrophe of the Great Depression. Then President Franklin Delano Roosevelt saw soil conservation programs as a politically acceptable way to provide much needed economic relief to farmers. [26] Thus soil conservation programs have always had a dual and sometimes contradictory purpose: to conserve soil and to subsidize farmers, with the stronger emphasis on increasing farm income and improving crop productivity.[27] The early soil conservation programs were not designed to decrease soil erosion as much as possible per dollar, and until the 1980s, subsidies were not linked at all to conservation practices.[28]

Still, though imperfect, the soil management infrastructure that was instituted then, is the framework for the soil management programs that exists today. The Soil Conservation Act of 1935 established the Soil Conservation Service (SCS), which made funding available to farmers who implemented conservation practices on their land.[29]  These conservation practices included crop rotation, cultivation on contours, seeding grass waterways, creating windbreaks, and the use of pastures.[30] Farmers were also paid to retire old farmland.[31] The new SCS also encouraged soil conservation districts to organize landowners to tackle soil conservation democratically on the local level, and established demonstration projects to exemplify and encourage conservation practices.[32] This led to the formation of Soil Conservation Districts—now called conservation districts—3,000 of which still exist today.[33]

In 1994, the SCS became the Natural Resources Conservation Service (NRCS) of the United States Department of Agriculture,[34] and it still provides funding to farmers who implement conservation practices on their land. In fact, many of the conservation measures eligible for funding also remain the same.[35] Currently, the NRCS administers two main programs to combat soil degradation: the swampbuster and sodbuster programs, which condition farm bill subsidies on the implementation of certain conservation practices on land if that land is either highly erodible or wetlands.[36]

B.                         Soil Programs and Policies at the State Level
1.                           History of Soil Conservation Programs in California

All of the methodologies used for soil conservation at the federal level exist in California on the state level as well. In 1938, California adopted a modified version of the federal Standard Soil Conservation Act, which organized land into soil districts by founding the Resource Conservation Commission (RCC) and the Division of Resource Conservation (DRC).[37]  The DRC’s authority was codified in the California Resource Code §§ 9400 et. seq. The DRC was responsible for creating a comprehensive statewide Soil Conservation Plan.[38] However, the last statewide Soil Conservation Plan seems to have been completed in 1987.[39] The chief of the DRC was also supposed to “advise with organized resource conservation districts as to plans and proposals relating to resource conservation activities, and, when such plans or proposals are presented to him, approve, disapprove, or suggest modifications of such plans or proposals.”[40]

While the Division of Resource Conservation was an incredibly active governmental organization, at one time having more than 40 employees, it was eliminated in the 1970s because legislators believed that its purpose was redundant and already performed at the federal level by the SCS or at the local level.[41]  Between the 1970s and today, there has been a long line of agency deaths and rebirths. The closest living relative to the Division of Resource Conservation today is the Division of Land Resource Protection (DLRP), housed in the California Department of Conservation. [42]

Although the DRC has been eliminated, the Soil Conservation Districts within California (now called Resource Conservation Districts or “RCDs”) are still active. The RCDs have four main goals: to control runoff, to prevent erosion, to build developments for the redistribution of water, and to improve land capabilities. [43]  Originally RCDs were supposed to be guided by the DRC.[44] Now that the DRC no longer exists, RCDs have no official governmental overseer. Rather, they have formed the California Association of Resource Conservation Districts. The power of RCDs was greatly curtailed with the passage of Prop 13, which placed restrictions on property taxation.[45]

Today, the DLRP, the hereditary organization of the DRC, is responsible for administering the Agricultural Land Mitigation Program, the Sustainable Agricultural Lands Conservation Program, the California Farmland Conservancy Program, the Williamson Act, and the Farmland Mapping and Monitoring Program.[46] The DLRP also provides technical assistance and grants to the RCDs.[47] Aside from the RCDs most of these programs do not address soil directly, but rather provide easements, either agricultural or conservation easements, so that land is not converted into a more intensive use such as urban and residential use, or used for resource extraction.

The California Department of Food and Agriculture (CDFA) also provides some soil management programs. In 1995, the California Legislature passed the Cannella Environmental Farming Act.[48] The Act, codified in The California Food and Agriculture Code §§ 560-568, required the CDFA to “shall establish and oversee an environmental farming program. The program shall provide incentives to farmers whose practices promote the well-being of ecosystems, air quality, and wildlife and their habitat.”[49] The Act also created the Scientific Advisory Panel on Environmental Farming to “advice and assist, federal, state, and local government on issues relating to air, water, and wildlife habitat” in the context of agriculture.[50]

Today the CFDA’s Office of Environmental Planning and Innovation, coordination with the Scientific Advisory Panel, oversees five programs: The Dairy Digester Research and Development Program, the State Water Efficiency Enhancement Program, the Office of Pesticide Consultation and Analysis, the Alternative Manure Management Practices, and most recently, the Healthy Soils Initiative Program.[51]

2.                           The Healthy Soils Initiative

The Healthy Soils Initiative (hereinafter “Initiative”) is a “is a collaboration of state agencies and departments, led by the California Department of Food and Agriculture, to promote the development of healthy soils.”[52] The program has five main goals: to protect and restore soil organic matter in California’s soils; to identify sustainable and integrated financing opportunities to facilitate healthy soils; to provide for research, education and technical support to facilitate healthy soils; to increase governmental efficiencies to enhance soil health on public and private lands; and to promote interagency coordination and collaboration to support soils and related state goals.[53]

In some ways, the Initiative is heavily modeled off of existing federal soil conservation programs like those administered by the NCRS. Like the NRCS’ sodbuster program, the Initiative provides funding to farmers who adopt an array of good soil management practices. [54] In fact, many of these practices are the same practices that the NRCS already subsidizes. In this way, the Initiative is merely a state supplement to an existing federal soil management scheme. However, the Initiative has added the practice of compost applications to the list of subsidized practices, something the NRCS does not yet cover. [55]   

Also, like early soil conservation programs, the Initiative is dedicating 40% of its overall funding, 3 million dollars, to demonstration projects.[56] Unlike the subsidies for general good soil management practices, the demonstration projects are more closely aimed at carbon sequestration. The demonstration project must “incorporate farm management practices that result in greenhouse gas benefits across all farming types with the intent to establish or promote healthy soils.”[57] The objective of the demonstration projects is to “demonstrate to the farmers and ranchers in California Agriculture that specific management practices sequester carbon, improve soil health and reduce atmospheric greenhouse gases.”[58] Although the soil health requirement is still incorporated into the demonstration project, the main goal seems to be successful carbon sequestration. Like the early soil conservation programs, then, the Initiative also has a dual purpose: mitigating climate change and promoting soil health.

However, the Initiative also departs from previous soil conservation programs in one respect: the Initiative recognizes soil as an ecosystem and attempts to manage it that way. The Healthy Soils Action Plan states “[h]ealth of agricultural soil relates to its ability to build and retain adequate soil organic matter via the activity of plants and soil organisms. Adequate soil organic matter ensures the soil’s continued capacity to function as a vital living ecosystem with multiple benefits that sustains and produces food for plants, animals, and humans.”[59] This is an exciting step forward. One of the major critiques of previous soil conservation programs is that they “address soil quality in an after-the-fact manner, much as the first generation of air and water pollution laws focused on end-of-the-pipe pollution…Today, soil programs in the United States address erosion and contamination, but not nutrient loss and other fundamentals essential to sustainable soils. A new law inspired by an awareness of the ecological dimensions of soil policy would recognize the major role that healthy soils play.”[60] The Initiative does recognize this ecological dimension of soils, stating that soils can improve plant health and yields, increase water infiltration and retention, sequester and reduce greenhouse gases, reduce sediment erosion and dust, improve water and air quality, and improve biological diversity and wildlife habitat.[61] Consequently, the Initiative is a holistic approach to soil management, and has the potential to actually promote the production of healthy soils rather than solving just one isolated consequence (such as nutrient leaching) of unhealthy soils.

Moreover, unlike the soil conservation programs arising out of the Dust Bowl, the Initiative is not a welfare program in disguise. Instead, the primary goals of the Initiative are environmental, not economic: “The objective of this new Healthy Soils Program is to build soil carbon and reduce agricultural greenhouse gas (GHG) emissions.”[62] Governor Brown emphasized this goal again in his 2015-2016 proposed budget, stating, “as the leading agricultural state in the nation, it is important for California’s soils to be sustainable and resilient to climate change.” While sustainability has long been recognized as a need in US soil conservation programs (that is the whole point of reducing erosion), resilience implies an added dimension—it is not just ensuring that top soil exists for future generations, but that the quality of that soil is healthy and thriving in all its component parts.

3.                           Challenges for the Healthy Soil Initiative

The Initiative faces a few obstacles in reaching its goal of achieving healthy soil in California. First, although the Initiative is not a welfare program in disguise, like the early soil conservation programs, it too has a dual purpose: climate change mitigation and the promotion of healthy soils. While the Initiative itself makes much of the fact that these two goals align, this is not always the case. Second, and relatedly, the Initiative has limited funding—and that funding comes from the climate change fund, meaning it is in jeopardy if the program fails to help farmers and ranchers actually sequester carbon. Third, the Initiative’s success relies on the implementation at the local level, something that requires coordination with local agencies and existing organizations that provide technical assistance to California’s agricultural producers. This coordination, especially with the RCDs, could be strengthened.

a)                           The Initiatives’ Dual Purpose

As stated above, the Initiative has a dual purpose: to mitigate climate change and to promote healthy soils. Indeed, one of the main flaws of the federal soil conservation programs was the confusion of its purpose: soil erosion control or farmer welfare, which allowed the goal of increasing farm productivity and sustaining the financial stability of farmers to overtake the soil conservation goals. [63] Here, there is the possibility of the same.

While healthy soils have a range of positive benefits, carbon sequestration is not always one of them. For example, one indicator of healthy soils is the amount of organic matter the soil contains (i.e. the carbon content of the soil), and this has been touted as a climate change mitigation measure. However, while the addition of manure or crop residues to the soil is “an excellent means of improving soil physical, chemical, and biological conditions…it does not represent a transfer of [carbon] from atmosphere to soil.”[64] Instead, it can serve to move carbon from one soil to another, with no effect on atmospheric carbon.[65] Thus increasing the carbon content of soils has a climate change mitigation effect when that carbon would have otherwise been burned, but not if that carbon was going to return to the soil anyway.[66] In particular, carbon additions to grasslands (such as the application of compost to grasslands) will have almost no climate mitigation effect because there is very little contact between the manure and the grassland soils, so most of the carbon just returns to the atmosphere.[67]

Other practices, like no-till agriculture, which reduces the disturbance of surface soils and therefore more permanently stores carbon in the soil, may also not mitigate climate change in the long run because no-till sometimes increase nitrous oxide emissions from the soil, which is also a greenhouse gas.[68] Despite the questionable nature of these practices as climate change mitigation measures, the Initiative includes both (compost application to grasslands and no-till agriculture) as subsidized soil management practices.

Conversely, sometimes a practice might actually be good for mitigating climate change but bad for soil health. For example, burning straw rather than using it as mulch could mitigate climate change if it is used to replace fossil fuels as an energy source.[69] However, this would also decrease soil quality, as it removes carbon that would otherwise return to the soil, and releases it into the atmosphere.

The actual sequestration of carbon in soils “would require major changes in cropping systems or significant research.”[70] These practices include the use of agroforestry and intercropping, which increases the rate of input of organic matter to soils, using perennials in place of annual crops because perennials store more carbon than annuals, and breeding crops to have longer and deeper roots so that they can exude carbon into subsoils for more permanent storage.[71] However, currently these practices are not among those that the Initiative will subsidize.[72]  

Thus it is clear that some soil management practices improve both soil health and mitigate climate change (agroforestry, intercropping, the use of perennials, the use of plants with deep roots), some soil management practices improve soils but do not mitigate climate change (no-till), some practices mitigate climate change but are detrimental to soil health (burning straw), and some soil management practices do neither (compost application to grasslands). The Initiative will have to resolve these sometimes contradictory practices, and prioritize certain goals over others.

            Moreover, although the point of the Initiative may not be economic relief to farmers, crop productivity still features as a goal for the demonstration projects funded by the Initiative.[73] If carbon sequestration and soil health sometimes require different practices, it will be even more challenging to discover practices that not only sequester carbon and build healthy soils, but also improve crop yields. Indeed, the application of Nitrogen fertilizer, which is perhaps the single biggest contributor to the increase in yields following the Green Revolution, has a documented negative effect on carbon sequestration in soils because it decreases the soil microbial community and prevents plants from growing longer and deeper roots—both of which increase the soil’s potential to store carbon.[74]

b)                           The Initiative’s Funding

Another challenge the Initiative must grapple with is the available funding. Successful incentive and educational programs are highly dependent on funding. The CDFA has appropriated 7.5 million dollars for the Healthy Soils Program. Given the scope of the challenges facing California’s soils, this amount of money is not that much. For example, the USDA-NRCS has a fund of 19 million dollars to combat criteria air pollution from agricultural sources in the San Joaquin Valley alone,[75] a problem that could also be mitigated through the development of healthy soils.  

In addition, the Initiative is funded through the Greenhouse Gas Reduction Fund.[76] As discussed above, not all the practices embraced by the Initiative actually reduce greenhouse gasses. Moreover, the demonstration projects, which are supposed to “increase on-farm carbon sequestration, greenhouse gas reductions, increase water holding capacity and increase crop yields”[77] are funded for three years.[78] The last of the three years funded partially by the demonstration project itself and partially by the Initiative.[79]  Since changes in the carbon content of soil occur slowly,[80] it is unclear that a three-year demonstration project will actually yield relevant results. If, for example, the Initiative succeeds in improving soil quality but fails at mitigating climate change, will the program be deemed a success or a failure? Healthy soils have huge environmental benefits regardless of whether they also mitigate climate change or increase crop yields. Mixing multiple goals dilutes the Initiative’s effectiveness at protecting soil.   

c)                            The Initiative’s Collaboration with Existing Programs and Organizations.

American soil management is internationally recognized as successful, in large part because of farmer participation at the local level.[81] One key player in the local implementation of soil conservation practices in California are the RCDs. However, the Initiative is not using the RCDs to their fullest potential. In a comment letter on the Healthy Soils Program, the California Association of Resource Conservation Districts encouraged the Initiative to work with the RCDs, noting that “[c]ollaboration with existing NRCS and RCD programs and funding will be vital in order to ensure the practical applicability and longevity of [the Initiative],” and emphasizing that the RCDs’ rapport with landowners and communities are necessary to successfully implement  new management practices.[82] Likewise in another comment letter to the CDFA about the Initiative, the Center of Carbon Removal noted that the role of non-profits and NGOs to assist and coordinate with agricultural producers was not well-established in the Initiative: “avenues for non-profit and non-governmental actors to assist and coordinate with agriculturalists are not well established…Clarification on the avenues for nonprofit or academic partnership… offer an opportunity to increase the involvement of non-agriculturalists and ensure long term success of pilot projects.”[83] In addition, certain parts of the state have poor access to RCDs. The San Joaquin Valley, one of the regions most impacted by agricultural pollution and a region where very few farmers use conservation practices, has only one RCD for the entire Fresno County. [84] Since RCDs are key in providing technical assistance to agricultural producers, certain areas of the state (and perhaps the portions most in need of assistance) may not have the same kind of access to the resources that the Initiative provides.

This lack of coordination with local organizations is a symptom of a decentralized, bottom-up approach to tackling an environmental problem. With no single oversight organization addressing soil pollution, it is difficult to locate the organizations that have expertise, identify the areas in California most in need of help, and coordinate between different government-funded programs. This will make it difficult for the Initiative to fully deploy all the resources at its disposal in the most efficient way possible. This challenge is not new to soil regulation—soil conservation programs, largely because of the lack of a protective statute—has led to a “fragmented…program formed by laws enacted in a piecemeal fashion without forethought as to how activities interacted.”[85] The Initiative, in a certain sense, is another piecemeal attempt to address a systematic and pervasive problem—but one that diverges from previous efforts by recognizing soil as an ecosystem rather than an inert resource.

IV.                     Beyond the Healthy Soil Initiative

A.                         Using Existing Water Law to Prevent Soil Degradation

Currently, the way that states regulated soil, in the absence of a comprehensive statute, is through water laws. The Clean Water Act can be used to reduce nutrient run-off into waterways. If a waterbody is impaired, states can set Water Quality Standards that limit the amount of nutrients allowed in the water. The EPA even encourages states to use trading programs to encourage sources to leach fewer nutrients into waterways.[86] California currently has one of the most aggressive programs to curb erosion and sedimentation into rivers by strongly regulating forestry practices.[87] However, these controls only limit certain problems associated with soil degradation, like nutrient leaching or erosion into waterways. They cannot address the multifaceted challenges affecting soil health.

In addition, water regulatory bodies do not always feel that soil regulation is within their statutory mandate. For example, in 2016, the California Department of Water Resources and the State Water Resources Control Board received comments when implementing Executive Order B-37-16 to increase water conservation in the State. The Order required certain agricultural producers to develop An Agricultural Water Management Plan and use Efficient Water Management Practices.[88] Several organizations suggested that one Efficient Water Management Practice should be to develop healthy soils, as healthy soils retain more water content and require less irrigation.[89] However, this recommendation was not adopted. Evidently, soil health was outside the purview of the water regulatory agencies.

Scholars also have suggested using water quality as a means of protecting soil. In Achieving Sustainable Irrigation Requires Effective Management of Salts, Soil Salinity, and Shallow Groundwater, Wichelns and Qadir suggest that requiring farmers to pay a deposit related to the salt in their irrigation water would encourage farmers to utilize salt management programs on their farms. [90]  A farmer would have to pay the government an amount of money based on the load of salt he/she applied to the land.[91] The amount would be determined by a governmental agency and would vary depending on how much salt was present in the water during a certain season.[92]

Trading programs or pricing nutrient leakage are both good ideas, but both treat isolated consequences of unhealthy soils rather than attempting to promote healthy soils.  In other words, these kinds of trading systems are still fragmented—they can be used to mitigate nutrient leaching and salinization, two effects of unhealthy soils, but they cannot solve other aspects of soil degradation such as lackluster microbial communities, compaction, or decreased carbon content. For that, a comprehensive soil management program is necessary.

B.                         Creating New Legislation: a Comprehensive Soil Management Program

Although the Healthy Soils Initiative is an exciting step toward realizing the potential benefits of soil in California, it is not enough to realize healthy soils in by itself. Additional solutions are necessary, and ultimately, a comprehensive soil conservation program is necessary to manage soil in a way that promotes and sustains the integrity of soil quality in the state. Currently, soil is managed through a collection of programs and fragmented environmental laws. But soil deserves to be treated like the invaluable resource that it is. A comprehensive soil management program would have what other resources like air and water have, namely: an agency dedicated to soil management and a statute protecting a baseline of soil quality. Like the other major resources, soil should not have to depend only upon voluntary and incentive-based measures. Rather, like both water and air, there should be a mix of incentive and regulatory mechanisms to protect soil as a resource. Moreover, soil should be protected for its own sake—not as a means to increase crop productivity or as a means to sequester carbon, even though both those goals are important.

1.                           An agency dedicated to soil management

In California, air has the Air Resource Board and water has the State Water Resources Control Board, both administered by the California Environmental Protection Agency. Soil deserves a similar agency. This could be accomplished simply by resurrecting the Division of Resource Conservation, formerly in charge of the RCDs, and “administratively abolished” in the 1970s.[93] The defunct DRC already had a mandate to “consider the whole problem of soil conservation within the state, and…formulate, in cooperation with other state agencies, interested organizations, and citizens, a comprehensive resource conservation policy for the state.”[94] This mandate could be updated to incorporate some of the ecosystem approaches described in the Healthy Soils Initiative. Currently, however, no organization or person is carrying out that mandate, even though a comprehensive soil plan is exactly what is needed to actually realize healthy soils in California. This should be all the easier given the statutory framework already exists under California law.

If reinstating the DRC is too complicated, the Association of Resource Conservation Districts could be charged with creating the state-wide plan for soil conservation and management instead.[95] However, the Association would have to be funded appropriately and have a head appointed by the California Department of Conservation, in order to have unified leadership.  Whatever the implementing body, an integrated vision for the fate of California soils is necessary to avoid the piecemealed, gap-filled, inadequate soil protections that exist today.

2.                           A protective state statute for soil

Some scholars have suggested that in order to adequately protect soil as a natural resource, a statute designed to protect soil is necessary. In Farms, Their Environmental Harms, and Law, J.B. Ruhl suggests that while direct regulation may not be the best method for controlling most farm-related pollution (including soil erosion and nutrient leaching), regulatory approaches would be appropriate for the largest farms, that operate more like factories than traditional farms.[96] A soil protection statute could directly regulate these largest agricultural polluters without creating an impossible administrative burden by attempting to capture every farm in the state.

Likewise, in Our Sedimentation Boxes Runneth Over: Public Lands Soil Law as the Missing Link in Holistic Natural Resources Protection, Peter Lacy describes how a protective federal statute for soil on federal public lands could serve to protect soil and fill statutory gaps in other environmental regulation.[97] Based on soil conservation goals about the soil’s ability to regulate water flow, sustain plant and animal diversity, filter, buffer, immobilize, and detoxify pollutants, and cycle and store nutrients, Lacy suggest that the law could classify soil management areas needing differing levels of protection.[98] These designations would rely on local soil surveys. Like the designated use provisions in the federal Clean Water Act, the designated use of a soil management area would determine the level of protection needed to achieve the use of the soil in that area.[99]   Achievement of a certain level of soil protection could be monitored and enforced using objective metrics such as the levels of organic matter and nutrients in the soil, level of O-horizon disturbance, slope characteristics, and  physical, chemical, and biological properties within soil (like ph, microbial life, compaction, etc.).[100] Lacy argued that this would be possible because there is an extensive database of information available about soil properties from around the country; the federal government has been collecting this kind of information since 1895.[101] Indeed, the United States is a world leader in soil research and monitoring.[102] This extensive information database would provide the perfect springboard to create science-based legislation that could “be used to designate different levels of protection and management, set standards, assess proposed agency actions, and implement mitigation requirements.”[103]

Although both these suggestions were targeted at federal level rather than a state level, the current political reality makes new federal environmental legislation impossible. Meanwhile, California remains a leader in environmental issues not only in the United States, but around the world. California could be the first state to introduce comprehensive soil legislation, simultaneously bringing large farms into the environmental regulatory fold and achieving a holistic environmental regulatory program that protects more facets of the natural world.

V.                         Conclusion

We breathe air. We drink water. And we eat food, grown in soil. Yet soil regulation has fallen far behind other environmental protections in the United States. This is all the more surprising given that soil degradation may well be the oldest and most enduring environmental problem, plaguing ancient civilizations in the Middle East, Greece, Rome, and beyond.[104]  One can, after all, measure the lifespan of a civilization by how fast that civilization erodes its topsoil.[105] While the Healthy Soils Initiative is an exciting step forward, recognizing that soils are an ecosystem within themselves, and must be managed as such, a comprehensive soil management scheme is necessary to ensure true soil health in the state. In order to accomplish this, California should give soil its due: provide it with a statute of its own and an agency to administer that statute.


[2]  For an example of how perfect California soils were for agriculture see George West, San Joaquin County Biographies, in A HISTORY OF THE SAN JOAQUINE VALLEY 526 (J.S. Slater ed., 1890) (stating “…the deep stratum of heavy, marly, sub-soil, overlaid by rich, black loam, with surface water enough to maintain a moist condition of the sub-soil without saturation—the vegetation being influenced by the warm summers of the San Joaquin Valley, tempered at that point by the inward flow of moist air which follows tide water to Stockton….Perfect maturity of large crops is attained…under these conditions, and the composition of the soil insures the qualities sought by connoisseurs”).

[3] David Montgomery, Soil erosion and Agricultural Sustainability, PROCEEDINGS OF THE NATIONAL ACADEMY OF SCIENCES OF THE UNITED STATES OF AMERICA 13268, 13270 (2008).

[4] D.S. Powlson et al., Soil Management in Relation to Sustainable Agriculture and Ecosystem Services, 36 FOOD POLICY S72, S74 (2010). 


[6] Environmental Farming Act Science Advisory Panel: Biannual Report, CDFA 1, 28 (2013)

[7] W.E. Rees, North American Soils and World Food, in INTERNATIONAL YEARBOOK OF SOIL LAW 2016 1, 26 (Herald Ginzky et al eds., 2016).

[8] See B.H. Farmer, Perspectives on the ‘Green Revolution’ in South Asia, 20 MODERN ASIAN STUDIES 175, (1986) (describing technologies of the Green Revolution).

[9]Ralph Grossi et al., California’s Shrinking Farmland, CALIFORNIA DEPARTMENT OF WATER RESOURCES, Bulletin 22,

[10] The California Nitrogen Assessment: Challenges and Solutions for People, Agriculture, and the Environment, UNIVERSITY OF CALIFORNIA AGRICULTURE AND NATURAL RESOURCES 1, 7. (Thomas P. Tomich, ed.)

[11] Id.

[12] Id. at 10.

[13] Id.

[14] Soil Salinization, CDFA,

[15] Salinity in the Central Valley: A Critical Problem, WATER EDUCATION FOUNDATION,, (last visited May 9, 2017).

[16] Dennis Wilchelns and Manzoor Qadir, Achieving Sustainable Irrigation Requires Effective Management of Salts, Soil Salinity, and Shallow Groundwater, 157 AGRICULTURE WATER MANAGEMENT 31, 35 (2015).

[17] J. William Futrell, The IUCN Sustainable Soil Project and Enforcement Failures, 24 PACE ENV. L. R. 99, 110 (2007).


[19] SUSTAINABLE AGRICULTURE RESEARCH & EDUCATION, Qualities of a Healthy Soil,, (last visited May 9, 2017).

[20] Bobby Bell and Brenda Platt, Building Healthy Soils with Compost to Protect Watersheds, THE INSTITUTE FOR LOCAL SELF-RELIANCE 1, 7 (2013)


[22] NATIONAL RESOURCES CONSERVATION SERVICE, Soil Quality Resource Concerns: Salinization (1998)

[23] CALIFORNIA DEPARTMENT OF AGRICULTURE, Healthy Soils Initiative, (last visited May 9, 2017).

[24] John H. Davidson, Factory Fields: Agricultural Practices, Polluted Water and Hypoxic Oceans, 9 GREAT PLAINS NAT. RESOURCES J. 1, 17 (2004).

[25] Id.

[26] Sandra S. Batie, Soil Conservation in the 1980s: A Historical Perspective, 59 AGRICULTURAL HISTORY 107, 110 (1985).

[27] Id.  

[28] Id.

[29] Zachary Cain and Stephen Lovejoy, History and Outlook for Farm Bill Conservation Programs, CHOICES (May 9, 2017),

[30] Davidson, supra, note 24.

[31] NATURAL RESOURCES CONSERVATION SERVICES, More Than 80 Years of Helping People Help the Land: A Brief History of NRCS, (last visited May 9, 2017).



[34] Davidson, supra note 24, at 18.

[35] NATURAL RESOURCES CONSERVATION SERVICE, Core4 Conservation Practices Training Guide: The Common Sense Approach to Natural Resource Conservation, i, iv (1999)

[36] NATIONAL RESOURCE CONSERVATION SERVICE, Highly Erodible Land Conservation Compliance Provisions, (last visited May 10, 2017).

[37] CALIFORNIA DEPARTMENT OF CONSERVATION, DLRP Helps California Balance Growth with Agricultural Production, (last visited May 9, 2017).

[38] Cal. Pub. Res. Code § 9108. 

[39] California Agricultural Evaluation and Site Assessment Model: Instruction Manual, 1, 3 (1997),

[40] Cal. Pub. Res. Code § 9063.

[41] CALIFORNIA DEPARTMENT OF CONSERVATION, supra note 37; Although weirdly, the existence of the DRC is still statutorily mandated. See Cal. Pub. Res. Code § 9051“There is in the Department of Conservation the Division of Resource Conservation.”


[43] Cal. Pub. Res. Code § 9151; The Resource Conservation District Guidebook: A Guide to District Operations and Management, CDC 1, 5 (1999),

[44] SAN MATEO RESOURCE CONSERVATION DISTRICT, Authorizing Statute for California Resource Conservation Districts,, (last visited May 9, 2017).

[45] Id; The Resource Conservation Guidebook, supra note 43.

[46] CALIFORNIA DEPARTMENT OF CONSERVATION, (last visited May 9, 2017).

[47] Id.

[48] California Food and Agriculture Code § 560.

[49] California Food and Agriculture Code § 566(a).

[50] Id.

[51] CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, The Office of Environmental Farming, (last visited May 9, 2017).

[52] CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, Healthy Soils Initiative Fact Sheet, (last visited May 9, 2017).

[53] Id.

[54] See Environmental Farming Act Science Advisory Panel California Department of Food and Agriculture Meeting Agenda PowerPoint (March 16, 2017), [hereinafter EFASA PowerPoint] (including No-till and Reduced-till, Cover crops, Cropland and Grassland Compost Application (Not a separate NRCS Practice), Improved Nutrient Management, Herbaceous Cover and Riparian Herbaceous Cover, Herbaceous Wind Barriers and Vegetative Barriers, Contour Buffer Strips and Riparian Forest Buffers, Field Borders, Filter Strips, Woody Cover, Windbreak/ shelterbelt establishment/renovation, Hedgerow Planting, and Silvopasture as subsidized practices).

[55] Id.

[56] Id. at green p. 3.

[57] Id at green 6.

[58] Id.

[59] CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, Healthy Soils Action Plan, (last visited May 9, 2017).

[60] J. William Futrell, New Action for Soil Protection A Solid Understanding of the Vital Role of Sustainable Soils Is an Environmental Imperative, 39 ENVTL. L. REP. NEWS & ANALYSIS 10077, 10078–79 (2009).

[61] CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, Healthy Soils Initiative, (last visited May 9, 2017).

[62] CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, Healthy Soils Incentives Program, (last visited May 9, 2017).

[63] Batie, Agricultural History, supra note 26 at 109.

[64] D.S. Powlson et al. Soil Carbon Sequestration for Mitigating Climate Change, in HANDBOOK OF CLIMATE CHANGE AND AGROECOSYSTEMS: IMPACTS, ADAPTATION, AND MITIGATION, 400 (Daniel Hillel and Cynthia Rosenzweig, eds., 2011).

[65] Id.

[66] Id.

[67] Id.

[68] Powlson, supra note 4.

[69] D.S. Powlson et al, supra note 64.

[70] Id.

[71] Andy Whitmore et al., Sub-Project A of Delfra Project SP1603: Studies to Support Future Soil Policy, DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS RESEARCH PROJECT FINAL REPORT 1, 5 (2010).


[73] See CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE, supra note 59 (stating that demonstration projects should “increase on-farm carbon sequestration, greenhouse gas reductions, increase water holding capacity and increase crop yields.”) (emphasis added).

[74] S.A. Kahn et al, The Myth of Nitrogen Fertilization for Soil Carbon Sequestration, 36 J. ENVIRON. QUAL. 1821,; Daniel Kane, Carbon Sequestration Potential in Agricultural Lands: A Review of Current Science and Available Practices, NATIONAL SUSTAINABLE AGRICULTURE COALITION BREAKTHROUGH STRATEGIES AND SOLUTIONS 1, 10 (2015)

[75] NATIONAL RESOURCES CONSERVATION SERVICE, $19 Million Available to California’s Farmers to Improve Air Quality, (last visited May 10, 2017).


[77] Id.

[78] EFASA PowerPoint, supra note 54.

[79] Id.

[80] Powlson et. al, supra note 4.

[81] Futrell, supra note 17 at 102  (“The U.S. is a world leader in citizen participation in soils programs and other environmental programs could learn from their experience.”).

[82] Letter from Karen Buhr of the California Association of Resource Conservation Districts to the Environmental Farming Advisory Panel (February 2017) (on file with the California Department of Food and Agriculture at

[83] Letter from Noah Diech of the Center for Carbon Removal to Amrith Gunasekara of the Environmental Farming Advisory Panel (26 February 2017) (on file with the California Department of Food and Agriculture at

[84] Letter from Janaki Jagannath of the Community Alliance for Agroecology, Kevin D. Hamilton of the Central California Asthma Collaborative and Sarah Aird of the Californians for Pesticide Reform to the Environmental Science Advisory Panel (March 1, 2017) (on file with the California Department of Food and Agriculture at

[85] J. William Futrell, The IUCN Sustainable Soil Project and Enforcement Failures, 24 PACE ENV. L. R. 99, 110 (2007).

[86] Testimony from Michael H. Shapiro to the Congressional Subcommittee on Environment and Public Works (May 22, 2013) (on file with the EPA at

[87] Futrell, supra note 86.

[88] CALIFORNIA DEPARTMENT OF WATER RESOURCES, Making Water Conservation a California Way of Life, (last visited May 10, 2017).

[89] Letter from Ben Chou of the NRDC et al to the California Department of Water Resources and the State Water Resources Control Board (October 14, 2016) (on file with author).

[90] Wichelns and Qadir, supra note 16.

[91] Id.

[92] Id.


[94] Cal. Pub. Res. Code § 9018.

[95] Cal. Pub. Res. Code § 9063.

[96] J.B. Ruhl, Farms, Their Environmental Harm, and Environmental Law, 27 ECOLOGY L. Q.  263, 335 (2000).

[97] Peter M. Lacy, Our Sedimentation Boxes Runneth Over: Public Lands Soil Law as The Missing Link in Holistic Natural Resources Protection, 31 ENVTL. L. 433, 467 (2001).

[98] Id.

[99] Id.

[100] Id.

[101] Id.

[102] Futrell, supra note 17 at 102.

[103] Lacy supra note 97 at 467.

[104] Montgomery, supra note 3 at 13268.

[105] Id. at 13271.

The Case for Cap-and-Trade: California’s Battle for Market-Based Environmentalism

The Case for Cap-and-Trade: California’s Battle for Market-Based Environmentalism

Theodore McDowell*  This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. The California Cap-and-Trade program has been a beacon of success for market-based environmentalism. The program masterfully incorporated the lessons learned from previous cap-and-trade initiatives by…