Plugging a hole to the sky

"Unfracking is a method of plugging orphan wells using biochar."

 

Nordstream II leak, as captured by Danish Defense Ministry

[Jimmy Carter] had foresight in calling for renewable energy to make up 20% of the nation’s energy mix by 2000 — a target the US still hasn’t met but is finally getting close to. Shortly before he left office, Carter’s White House issued a report on global warming which advised that countries limit temperature rises to 2C above preindustrial levels — a goal adopted 35 years later in the Paris Agreement on climate change.

— Bloomberg Green Feb 23, 2023

A few years ago I was in a press conference at a UN COP and representatives of the IPCC were running through the numbers — greenhouse gas emissions were up, especially methane. None of the guardrails agreed to in earlier conferences seem to be working. They were either ignored, gaslighted, or kicked down the road. I rose and asked a question.

How much of this rise is from fugitive methane leaking from pipelines, retired but uncapped wells, and unconventional oil and gas (a.k.a. fracking)?

They said they didn’t know but did not consider those to be major factors. Mic drop.

Since then IPCC has learned much more about fugitive methane. New IR satellite imaging has allowed scientists to map methane hotspots around the world. The next generation of remote sensors in space, authorized by recent legislation, will pinpoint sources and quantify volumes to fine detail. Still, I was recently on a call with experts in this area and they tell me the vast majority of methane emissions today — now rising at an unprecedented clip — can be traced to their origins — human or “natural” — by molecular signature. The blip we see comes from sources other than the oil and gas industry or cattle feedlots.

 

That answer is disturbing. If the sharp rise of methane in the atmosphere is from natural sources, it means that Earth systems have crossed tipping points we have been warned about — permafrost melt; shallow coastal clathrates; accelerated microbial activity from changing weather, soil and water conditions. If the sharp rise being observed is from fracking and pipeline leakage, we are in for it because fracking is rapidly expanding to parts of the world and new pipelines are all the rage. Ones in war zones, like the Nordstream II, are especially concerning.

Energy Infrastructure as Target

Nordstream had 750 miles of methane — 300 million cubic meters — under pressure that was released when it was ruptured by a coordinated NATO bombing to prevent European countries from buying Russian gas. That amount of methane will have about the same global warming over a 100-year timeframe as about 6 million tons of carbon dioxide.

Images from: Daily Mail 28 Sep 22 and 8 Feb 23 courtesy Leo Delauncey/MailOnline

That’s roughly on par with the amount of CO2 emitted in a year by mid-sized cities such as Havana, or Helsinki or Dayton, Ohio.

As it turned out, concern that Europeans would lose their resolve to adhere to sanctions on Russia in the gales of General Winter were misplaced. Germany completely eliminated its dependence on Gasprom by speeding up its green power conversion and buying more from Norway. No one had to freeze in the dark. There was no need to slow the decommissioning of toxic and target-prone nukes. There was no need to blow up Nordstream II.

28 Sep Daily Mail: Ursula von der Leyen, head of the EU Commission, this morning vowed the ‘strongest possible response’ to what she called ‘sabotage’ of the pipelines — but stopped short of directly blaming Russia. It was also revealed last night that the CIA warned weeks ago the pipes could be attacked after agents sent a ‘strategic warning’ to European allies including Germany, sources told Der Spiegel last night, though they refused to say whether Russia was identified as a culprit. The warning was not specific and did not pinpoint a time or location for an attack, the New York Times added. However, heavy suspicion for the attack has fallen on the Kremlin — with European officials briefing the Washington Post last night that ‘no-one is thinking this is anything other than Russian sabotage’.

Methane Migrations

The US, Mexico, Nigeria, China and other countries are littered with abandoned oil and gas wells that have no owner and are a major source of methane emissions. High populations of such orphans are located in Texas, West Virginia, Pennsylvania, Oklahoma, Colorado, California, New York State, Ohio, Louisiana, Kentucky, Illinois and New Mexico. These abandoned wells also create an unacceptably high risk of toxic chemical exposure and water and air quality contamination in the communities where they are located. The United States Environmental Protection Agency (EPA) estimates that methane emissions from over 2 million inactive, unplugged wells, of which documented orphan wells are a subset, produce the equivalent of 2 to 5 million cars. (EDF 2022)

Unfracking is a method of plugging orphan wells using biochar. Mixed into a gravel and water slurry, biochar makes a stronger plug, absorbs methane, nitrous oxide and other gases, and mitigates the ongoing climate effects of leaking wells by locking up photosynthetic carbon for thousands of years. It takes carbon from the air and sends it down a deep well shaft. It can also produce energy, since pyrolysis of biomass generates available heat that can run turbines.

— Open Air

New state legislation in Colorado will encourage biochar use in local well plugging. This legislation can be adapted and advanced in other orphan-well heavy states and countries.

 

On Thursday February 23, 2023, OpenAir, a grassroots volunteer collective dedicated to advancing carbon removal technologies, hosted a free webinar on fugitive methane solutions using biochar. We can close with a short video they posted to their website. The webinar was recorded and should be available soon.

Now wouldn’t it have been nice if we had plugged the Nordstream II with biochar before we blew it up?

Tree versus Tree

"How much steel and copper is needed to grow a forest?"

Last week in Gaia’s Way Out we looked at natural trees in comparison to artificial trees in their ability to pull carbon dioxide from the atmosphere and restore climate balance before we all go extinct. Advocates for artificial trees, known to climate wonks and tech industrialists as Direct Air Capture (DAC) or Direct Air Carbon Capture and Storage (DACCS), are keen to tell you one of their “trees” is 10,000 times more effective at vacuuming CO2 than a natural tree. Let’s examine that claim more closely.

One clue lies in the acronyms. DAC is simply a machine that separates carbon dioxide from ambient air, usually by a chemical reaction. DACCS adds an extension to the machine to keep the CO2 safely stored — think of the bag on a vacuum cleaner. To get DAC going, start-up projects have focused on air capture followed by mediated release. The example I gave last week was a CO2-infused vodka. Once it leaves the bottle it is headed back to the atmosphere. Indeed, beverage companies have been one of the early sponsors of DAC, because they need CO2 to carbonate your favorite beverage. Greenhouses also benefit from high CO2 concentrations, so flower-growing companies provide another value proposition partnership for DAC start-ups. So does “enhanced oil recovery” that pushes CO2 gas into tight rock formations to drive commercially valuable shale gas and methane to the surface.

I like to call this “catch and release.”

Long-term storage — centuries to millennia and beyond — is not as simple as catch and release. In Iceland, Climeworks accomplishes CCS by pumping captured CO2 — after scrubbing it from the DAC device with chemical reagents — down deep shafts into volcanic rock where it “marries” recently formed lava basalts that are receptive to bonding with carbon. That traps the captured carbon in the rock, more or less permanently.

There are some receptive basaltic formations in North America, but they are few and far between. Drilling into them may mean sinking a borehole a mile deep and then using powerful pumps to take CO2 transported to the site by pipeline and forcing it down to the rock interface. Once that interface has been saturated with gas, the insertion point has to move up or down until the zone has been saturated, and then a new borehole is drilled. Typical CCS boreholes cost several million dollars.

The energy requirement in Iceland is met by cheap, abundant geothermal and hydropower. In North America, as in much of the rest of the world, power would need to come from some other source. If you don’t care to negate the whole purpose by burning fossil energy, the preference would be renewables like wind, solar and hydropower or the far more expensive, dangerous and toxic nuclear alternative.

Climeworks estimates their DACCS energy requirement is 7.2 GJ (or 2,000 kWh/tCO2). Carbon Engineering estimates energy requirements of around 8.8 GJ/tCO2 (or 2,400 kWh/tCO2).

A quick back-of-the-envelope calculation tells us 60% of world electricity production would be required to reduce CO2 levels — currently 200 ppm too high — by 1 ppm. That number is actually low because it does not account for ocean off-gassing that will quickly (within 30 years) replace any CO2 you pull from the atmosphere.

Using all of that renewable energy to do carbon capture while trying to use it to replace fossil energy, switch to electric cars, replace gas stoves with induction burners, and build bullet trains to replace air travel puts the whole renewables transition in jeopardy.

Doing DAC in Iceland where you have free energy, a high concentration of CO2 and basaltic geological repositories all in one place makes sense. Not so much in Montreal, Houston, or Sacramento. If throwing money would change that then perhaps there would be some rational justification for taxpayers spending $3.5 billion for four DAC hubs, $100 million for a commercial DAC prize, and $15 million for a pre-commercial DAC prize in the 2022 DoE authorization, or the $4.6 billion taxpayer funding going to support enabling infrastructure like CO2 pipelines and geologic sequestration.

However, power is not the only consideration. Increases in the producer price index in the past two years have raised the cost of:

• Fabricated steel plate by 54%
• Carbon steel piping by 106%
• Electrical equipment by 25%
• Fabricated structural steel by 70%
• Copper wire and cable by 32%

Scarcity of resources is one reason that Small Modular Reactors that Bill Gates said would be available to Walmart shoppers by 2025 have gone up in price from $12 per MWe to $102 per MWh since 2016. These pre-positioned dirty bombs — whose warranties will expire long before the plutonium they generate — will not be coming soon to a Blue Light Special near you, even if you live in the remote Wyoming town Gates and Buffet bought for their experiment.

How much steel and copper is needed to grow a forest and sequester carbon? What rare and expensive resources are necessary to start a kelp plantation that will not just boost CO2 removal but also revive decimated fish stocks? As more forests reclaim lands they once occupied, my prediction is that the price of wood will come down, not the opposite. More people can be housed and heated. More biochar can be made to prevent wildfires and regenerate soils. And as more kelp forests are planted, so too will multiply the fish in the sea.

The first line of defense techno-cornucopians raise when I make this argument is how much land would be needed to do all this with natural trees and kelp forests. DAC machines have a much smaller footprint, they argue. But that is incorrect, on both counts. In the lifetime of my parents there were 6 trillion trees on our planet. Now there are fewer than two trillion and at the rate we are going, there will be fewer than one trillion during my lifetime. There is plenty of space. Let us not forget that forests make their own rain and they shelter more than just humans.

One of the favorite tech bro responses to natural climate solutions is that all the biomass on Earth is only 550 GtC (billion tons of carbon). The theory goes that therefore it would be inadequate to sequester the 682 GtC necessary to return the atmosphere and ocean to pre-industrial harmony and therefore we need artificial trees or solar radiation management or some such.

I want to somehow get you to think 4D not 3D. Here is what I mean by that. That 550 GtC is not stable but dynamic. It replaces itself on timescales ranging from minutes to centuries, mostly toward the fast end of the scale.

If we could intercept a large chunk of the decay part of the cycle where dead or burning biomass decomposes and returns to the atmosphere and ocean, then we can rack up continuous withdrawals on the same growing stock.

Here is an example: Wolffia, also known as duckweed, is the fastest-growing green-leaf plant. Most species of duckweed will double every 2 to 3 days. They replace their biomass 100 times per year. They grow as fast or faster overnight as during the day (absorbing carbon from water). If all global plant biomass (495 GtC) were duckweed, the sequestration potential would be 49,500 GtC/y or 181,500 GtCO2. (182 trillion tons of carbon dioxide) Converting that much duckweed to biochar would return the climate to its pre-industrial 280 ppm in 11 hours.

Of course, we are never going to do that, it’s only hypothetical. But now substitute for duckweed all of the useful plants that can be withheld from decay — trees, bamboo, kelp, etc — and not only can we recover the preindustrial atmosphere rapidly but we can provide good livelihoods in the process.

Calculating the footprint of a DAC machine by the area crossed by its shadow is like limiting the radioactive releases of nuclear energy to the reactor, or perhaps just to the control room, and ignoring the entire dirty fuel cycle. What is the ecological and land area footprint of mining ore, smelting it, disposing of mine and mill tailings, transportation, fabrication, construction, maintenance and repair? Of safeguarding the waste for 4.5 billion years? Hint: It is a lot more than 10,000 trees.

When Albert Einstein or Greta Thunberg says we cannot get ourselves out of this pickle with the same kind of mindset that got us into it, they mean we need to challenge our assumptions about a human ability to muster greater intelligence than the whole of the natural world. Mother Nature developed her instincts with a time trial 2000 times longer than human-like creatures have walked the Earth. As an infant, trusting your mother’s instincts, even if you don’t fully understand them, is usually a safe bet.

References:

Lebling, K., Leslie-Bole, H., Byrum, Z., & Bridgwater, L. (2022). 6 Things to Know About Direct Air Capture, World Resources Institute.

Ray, D., The most important climate change paper of 2022 you never heard of (2023).

 

Gaia’s Way Out

"Gaia is no dummy. She is in the process of shifting from supporting humanity to killing it off. "

 

I’ve never completed writing a book without offering a positive solution. Granted, those are sometimes long shots. Some may even be futile. But we don’t know unless we try and if we don’t try then we make the outcome certain in a negative direction.

Just to recap the predicament, in the framework currently used by climate scientists, there are 16 tipping elements—large, interconnected, biophysical systems that regulate the habitability of Earth. Nine of these have recently—within my lifetime—become unstable and others are showing signs of instability or awaiting further study. By changing the heat balance of the planet, with more sunlight trapped in the infrared spectrum (due to heat-trapping greenhouse gases) than Earth is capable of reflecting, we have messed up these large biophysical systems, and we are for the most part incapable of repairing them.

Gaia is no dummy. She is in the process of shifting from supporting humanity to killing it off.

Today we are experiencing the warmest temperatures since the last ice age. In fact, warmer than the past half dozen ice ages. We’ve already locked in a 20-meter (66-foot) sea level rise, that will erase all the coastal cities. We are in the process of doubling or tripling that rise by melting all the ice at the poles. Long-term, thermal expansion of ocean water will make ice melt seem like child’s play. During the transition from the last ice age/glacial maximum, starting about 18000 years ago, sea level rose ~120 meters over a ~10,000-year period.

Worse, as these tipping points fall like dominoes they’ll reduce, then remove, the human capacity for adaptation.

Merely eliminating fossil fuels by replacing them with renewables will no longer save us. That is a bandaid on a spurting jugular vein. Had we started half a century ago when Lyndon Johnson, Richard Nixon and Jimmy Carter were briefed, we might have been able to switch in time. We missed the turn. In fact, we mashed the accelerator and are still burning more fossil carbon every year. The “bridge out ahead” signs come up faster every mile we travel. Our bridge to the future—renewables—is a footbridge.

As this decade proceeds we draw ever closer to our Thelma and Louise moment.

 

Thelma and Louise (1991) courtesy Metro Goldwyn Mayer

We have already come to the point where fewer areas are suited for farming. As freshwater rivers and lakes dry up, billions of people will try to migrate. Extreme weather, hurricanes and wildfire lick at their heels. Climate change may also produce more volcanoes, earthquakes and tsunamis. Civil order will fray. Chaos will reign.

That is the doomsplain.

Now for the good news. What do we choose — retreating coastlines hundreds of miles or pulling CO2 out of the air? The good news is that biogeophysical response moves slower than we do. Australian climate scientist Darren Ray compares the melting at the poles to moving a block of ice from your freezer to your fridge. The block takes a while to melt, but you know it will absolutely turn into a puddle of water eventually. Antarctic and Greenland ice sheets take many thousands of years to melt—they were still adding ice in my lifetime—so think 1–2 meters higher sea level in your lifetime, not ten times that. Sea level rise in 2022 was 4 millimeters—1/16 inch—although not evenly distributed.

Averaging the transition from the last ice age/glacial maximum, the sea level rise was 12 mm/y. We are only experiencing one-third of the rate of rise we had over 10,000 years before the industrial era. Studies now recommend coastal region planners should assume a greater than two-meter rise this century because we know the rate will speed up—to 25 mm/y on average and likely double that by the 2090s.

Likewise, not every summer will have heatwaves and droughts where you live. There are still variables like the El Niño and La Niña cycles and the ability of forests to regenerate after a fire. Hotter air evaporates more water and holds more, so it will rain more, on average, as Earth warms.

Gaia knows she has a fever and is doing what she does to reduce it. Stratospheric clouds are cutting the amount of sunlight reaching the surface and bouncing it back to space. Wherever allowed, forests are reclaiming lands once cleared, on their own. Forests have both a net cooling effect and suck greenhouse gases out of the air, converting CO2 to oxygen and soil fertility.

We have been trying to learn from forests and although it might take us a million years to catch up to the wisdom Gaia gained from trial and error over periods 2000 times longer than that, we now know how to make an artificial tree that can do the carbon removal work of 10,000 real trees. Of course, that comes with a hitch. It needs welded metals, processed chemicals and electricity. A lot of electricity.

Darren Ray says,

If we can’t strongly reduce emissions to zero before 2050, our other option to avoid the 10m higher sea level is then to reduce the atmospheric radiative forcing from the higher CO2 levels, by sucking down CO2 out of the atmosphere and reducing methane emissions. That is the fancy scientific way of saying “ we need to turn the temperature knob in the fridge compartment down to a lower level”.

He has done some useful calculations.

Currently, it seems to take between 1200 to 2000 kWh of energy to remove 1 tonne of CO2 from the atmosphere. .

That is a lot of energy. And 1 tonne of CO2 is about a return flight from Paris to New York. Or maybe 1/4 of emissions for driving your car, not SUV, around for a year.

So… to remove just 1 ppm of CO2 using current technology would use:

8x10⁹ x 2x10⁶ Watthours of energy = 1.6x10¹⁶ Watthours of energy

This is also ignoring the likely effect of CO2 that the oceans have taken up coming re-gassing back out of the oceans as atmospheric levels are reduced. I have no idea what that might end up being but could make it roughly twice as difficult.

Just taking the above figures, current global electricity production that could run direct air capture is 27 PetaWh (10¹⁵) or 2.7x10¹⁶Wh.

So, using current technology being used by people like Climeworks, it would take 60% of world electricity production to reduce CO2 levels by 1 ppm… assuming ocean CO2 out-gassing does not occur.

Or, to offset the 2022 2.5ppm increase in CO2 would we have to increase world electricity consumption by 50% and then use all of it for direct air capture :( …again assuming no ocean CO2 outgassing occurs.

 Vodka infused with CO2 captured by DAC machines

 

This is why I like Gaia’s trees better. Even if they are less efficient than DAC machines at pulling out CO2, they have lots of co-benefits, repair themselves and make their own replacements. And Ray is right about the outgassing. It does work out to approximately double the amount of CO2 you have to remove. Therefore to offset 2022’s increase in CO2 coming from human civilization world electricity production would need to double and all of be devoted to DAC. Just to offset the 2.5 ppm increase.

I have written three whole books with these natural climate solution calculations so rather than extend this essay let me just summarize the key points:

• There is enough land available to reforest enough trees to rebalance the carbon cycle, assuming we phase out fossil burning

• Using biochar agroforestry and cascades of durable forest products, carbon sequestration by forests can be multiplied a hundredfold or a thousandfold

• If that were not enough, farming and reforesting the ocean, again with a virtuous biochar harvesting cycle, can do the trick

• Farming the ocean with kelp, for instance, and converting coastal seaweed to biochar, for instance, would take us to net drawdown territory, even factoring in outgassing

• None of this requires electricity. You can use that to watch your favorite streaming service while you crank up the A/c and distill some water from the air

• Pyrolysis is exothermic, so you can make electricity by doing this

• Kelp and plankton farming and foresting would also help thwart the ocean outgassing factor as well as offering huge biodiversity gains—de-desertifying the ocean.

Darren Ray also ran the numbers on what it would cost to suck enough CO2 from the atmosphere using artificial trees to reduce CO2 from say 420 ppm to ~350 ppm:

Using $50 US per tonne of CO2. The total cost is ~$20 trillion total. The global economy generates about ~$90 trillion per year, and we unbelievably still give ~$6 trillion US per year to fossil fuel companies in subsidies — so this is feasible if CO2 capture can be made less expensive in the future, and even at $1000 US per tonne is probably still a positive return on investment.

$20 trillion is a small price to pay, especially if it can save cities like Miami and New Orleans! But where will all that electricity come from? Fusion? Renewables?

Sorry, DAC fans, but I prefer Gaia’s way. Just not the part about eliminating humans.

References:

 

Lebling, K., Leslie-Bole, H., Byrum, Z., & Bridgwater, L. (2022). 6 Things to Know About Direct Air Capture, World Resources Institute.

Ray, D., The most important climate change paper of 2022 you never heard of (2023).

 

Who ya gonna call? Greenbusters!

"ESG, they are coming for you"

For a few decades in my youth, I pursued a career as a public interest attorney. To my clients this service was free, but lawsuits can be expensive so as much time was spent on fundraising as writing briefs or arguing in court. Occasionally I would be part of a class action with some bigger firms and then it was easy. I just did what I did best.

I came to recognize in those years that class action litigation evolves like pest resistance or warfare. Offense (the plaintiffs’ bar) develops tactics that work for a few years and the gravy train seems endless. There is an offensive weapon advantage. Then the defense counters with its own weapons. The train derails and the gravy spills.

Tobacco, asbestos, radiation and OxyContin all had their day. Eventually, paid-for legislation cut back liability, shortened statutes of limitations, or capped awards so as to neuter plaintiffs. Lately, there has been a spate of class actions against Google, Facebook, Zoom, and TikTok over personal data mining. Let's see how that goes once the social media lobbyists spend out their budgets. Politicians have seldom been cheaper. It is a buyer's market.

One of the most promising new offensive weapons in the class action arsenal is ESG. You know it is getting on corporate legal defense radar when you see hit pieces planted in mainstream media.

ESG is not what you put on a steak to bring out the flavor or a vitamin supplement that stops hair loss. ESG stands for environmental, social, and governance.

The term was first introduced by World Bank senior economist Herman Daly in 1996, in a paper with Robert Goodland for the Ecological Society of America:

After deploring the mystification of the term sustainability and tendencies to conflate it with society's desiderata, we desegregate three types of sustainability: social, economic, and environmental. After clarifying these three linked and overlapping concepts, and construing them with sustainable development, we distinguish quantitative throughput growth from qualitative development, and mention intergenerational equity and scarcity of natural capital that together lead to the definition of environmental sustainability by the output/input rule, i.e., keep wastes within assimilative capacities; harvest within regenerative capacities of renewable resources; deplete non-renewables at the rate at which renewable substitutes are developed. After distinguishing development from sustainability and from growth, the paper describes the concept of natural capital and uses the concept to present four alternative definitions of environmental sustainability.

Today, European companies are subject to a number of laws and regulations related to ESG, including*:

• The Non-Financial Reporting Directive (NFRD) This directive, which was updated in 2018, requires large companies and groups operating in the European Union to disclose information on a range of ESG topics, including climate change, human rights, and anti-corruption measures, in their annual financial reports.

• The Shareholders' Rights Directive (SRD) Updated in 2019, this requires companies to disclose information on how they engage with shareholders on ESG issues, as well as how they consider the long-term interests of the company and its shareholders.

• The EU Taxonomy Regulation This regulation, which came into force in 2021, establishes a framework for sustainable finance in the EU, including a classification system for sustainable activities, which companies need to disclose in their reporting.

• The EU Green Deal This package of laws and regulations aims to make the EU economy carbon-neutral by 2050. Companies operating in the EU will need to comply with the regulations and laws that come out of this package, which are expected to include measures such as emissions reduction targets, energy efficiency regulations, and green procurement guidelines.

• The EU Transparency and Accounting Directive This directive, which came into force in 2019, requires companies to disclose information about the risks and opportunities related to climate change and the impacts on their business and strategy.

These are just some of the laws and regulations that European companies need to comply with. Requirements may vary by country and industry. Danone, the French yogurt company, was recently sued by Zero Waste France, Surfrider Europe and ClientEarth for making false claims about reducing single-use plastic. The company had pledged to reduce its plastic use by 12 percent from 2018 to 2021 but had instead increased plastics as its product line expanded. Single-use plastic is responsible for more greenhouse gas pollution than airplanes. The groups sued under a French “duty of vigilance” law enacted in 2017. The Paris civil court is being asked now in 2023 to force the company to produce a plan within six months to phase out plastics. Should the company fail to meet that deadline, plaintiffs are demanding damages of 100,000 euros ($108,000) per day of delay.

 

photo by Albert Bates

While not specifically termed ESG, companies in the United States and Canada are also subject to similar laws and regulations that relate to ESG principles, including*:

United States:

• The Securities and Exchange Commission (SEC) has issued guidance on disclosure of climate change risks and impacts on a company's business and strategy. However, these guidelines are not mandatory and not all companies are required to disclose this information. The Commission is still reviewing thousands of comments on its proposal to force publicly traded companies to disclose the risks they face due to a changing climate—potentially stranded assets as well as the emissions in their production and supply chains (Scope 2). The SEC is expected to finalize the proposal before the end of March, opening the floodgates of industry litigation and political bribery to undo this needed regulation with new laws (potentially minting some Congressional unicorns and presidential candidates).

• The Environmental Protection Agency (EPA) and other regulatory agencies have a wide range of laws and regulations related to issues such as air and water quality, hazardous waste, and emissions. EPA was gutted during the Trump years and hundreds of career specialists resigned or took early retirement so it is a mere shadow of its former self, with a decade-long backlog of violations to deal with.

• The Occupational Safety and Health Administration (OSHA) has regulations related to workplace safety and health but is often accused of regulatory capture by the regulated industries. OSHA is a serious impediment to labor policy reform.

• The Federal Trade Commission (FTC) has regulations related to the use of environmental marketing claims. Complaints, which are rare, can take years to process. The members of the FTC are all presidential appointments. President Trump appointed 4 of the 5 current commissioners, each with a 7-year term. 

   

  
  Canada:

• National Instrument 58-101 Disclosure of Corporate Governance Practices requires publicly traded companies to disclose information about their governance practices and policies.

• Canadian Securities Administrators (CSA) have issued guidance on the disclosure of climate change-related risks and opportunities by publicly traded companies.

• The Canadian government also has regulatory agencies concerned with environmental issues such as air and water quality, toxic waste and emissions; workplace safety and health; nuclear; and marketing claims.

• Additionally, many companies in the US and Canada comply with international standards such as the Global Reporting Initiative (GRI) and the Sustainability Accounting Standards Board (SASB) to report on their sustainability performance.

According to Bloomberg:

A survey by the law firm Norton Rose Fulbright found that 28% of more than 430 general counsel and in-house litigation leaders said their so-called ESG dispute exposure increased in 2022, and 24% expect it to deepen over the next 12 months. The key reasons are the absence of clear environmental, social and governance metrics and requirements, and the heightened regulatory scrutiny on the importance of ESG.

***

The growing attention of corporate litigators in industries ranging from financial services to technology corresponds with the growing tide of class actions tied to greenwashing. This is partly due to the California’s plaintiffs’ bar having “figured out the blueprint for how to bring these cases,” according to Norton Rose. In a nutshell, this means companies that put out generalized ESG statements will sometimes find themselves as targets in product-specific cases.

In other words, if a company decides, for whatever reasons, to pledge it will achieve carbon neutrality by some date, or that it will buy voluntary offsets to take away the climate footprint of customers or clients, or that it will boycott products in its supply chain that harm Amazonian indigenous peoples, Palestinians, dolphins, mountain gorillas, or whomever, it had better do it and not just claim it.

Rachel Roosth, the disputes partner at Norton Rose, told Bloomberg that the food and beverage sector had the highest proportion of respondents (40%) who expect increased exposure to ESG disputes in the coming year. Why food? Single-use plastics, she said.

If I were just starting out as a lawyer these days and wanted to retire a millionaire by 30, I would be looking at greenwashing class actions. There is likely to be a window in the US, as there is now in Europe, when ESG litigation confers a distinct advantage to plaintiffs. Such suits can be cloned, briefs written by AI engines, and settlements will likely break new records for payouts. Why? Because greenwash is an epidemic. It is as though it were being taught in business schools as a required subject. Defendants don’t yet realize how ESG is going to rock their world.

All of this is not without pushback. Over two dozen states and a coalition of oil companies are suing the Biden Administration in an effort to halt the Department of Labor’s ESG rule that would allow retirement plans and securities managers to consider climate change when selecting investments. One of the red states’ attorney generals tweeted that the rule “sacrifices Americans’ retirement accounts on the altar of woke corporations’ radical leftist agenda.” Florida has barred any state-licensed fund managers from considering ESG factors.

At US$35 trillion, ESG already represents one-third of global assets under management, according to Bloomberg Intelligence, with more than 40% growth projected through 2025. This demand has led to “ESGwashing” — deceptive signaling to appear ESG-aware, which undercuts ESG credibility more broadly. Former BlackRock CIO Tariq Fancy compared ESG investing to offering wheatgrass to a cancer patient. ESG-screened portfolios only defer society’s hard choices into the future, Fancy said, when what are needed are carbon taxes and emission penalties that actually sting. Divestment changes ownership but valuations and access to capital are functions of the market, where value hunters and less scrupulous private funding are always on the search for opportunity.

The trade publication, Advisor’s Edge, in a piece called “An inconvenient truth about ESG investing,” concluded:

The risk with engagement is that the largest managers dictate the agendas while profiting from higher-fee ESG products. The risk with regulation is that nothing will happen, and this is the most inconvenient truth of all.

* Disclosure: I used ChatGPT to identify international legal standard-setting bodies.