Judging and Mediating for the “Long Emergency”

Superstorm Sandy, New York States Regulatory Response to the

Climate Change Crisis, and Reforming the Energy Vision

ELEANOR STEIN

Not every crisis arrives full-blown, and some emergencies are processes, not events.

The federal government, New York State, New York City, and New York City's power company, Consolidated Edison, may have been well-prepared to meet the floods and storms of the past thirty years, but, as the climate change scientists had accurately warned, the past was no longer a guide to future cataclysmic weather events.

This chapter is a case study of post-Sandy decision-making by state regula­tors and government, closing with the transition to the subsequent project, New York State's Reforming the Energy Vision (REV).³ It is written from the point of view of the administrative law judge (ALJ) charged with bringing diverse parties together, ensuring equitable participation for affected com­munities, and mobilizing climate scientists and thought leaders to advise and generate meaningful recommendations to decision makers—all with an eye to the high stakes of these projects.

When Sandy struck, I was an administrative law judge at the agency re­sponsible for the regulation of the state's energy industry, the New York State Public Service Commission (PSC). I had experience presiding over com­mission cases addressing renewable energy, energy efficiency, and extreme weather-related blackouts, and I had been teaching the law of climate change since 2005 at Albany Law School and the State University of New York at Al­bany. A catastrophe of the scale of Sandy created tragedies and losses, but it also created an opportunity for the state and the energy industry to acknowl­edge that climate change was a major contributor to the storm and to reexam­ine the rising ambient heat, extreme heat waves, floods, and storms the region had suffered in increasing intensity in the previous decade. Only with this re­alization could come the development of innovative measures aimed not only at planning for the last storm but also at mitigating the power and impact of future storms and other climate-change-related catastrophes by reducing our emissions from the combustion of fossil fuels and by prudent adaptation to safeguard the state from rapidly changing conditions.

Within my capacity as an ALJ and mediator at the PSC, I brought experi­ence and expertise in climate change matters. I, along with many colleagues, hoped to move climate change to the forefront of the commission's agenda and the state's approach to Sandy's aftermath. The first vehicle presented to do so was a petition filed by leading legal climate change advocates. Calling on the PSC to recognize the new reality confronting the energy industry and the regulators, just weeks after Sandy, the Columbia Center for Climate Change Law⁴ and others filed a letter petition to the commission.⁵ It stated:

Utilities are not currently required to engage in long-term hazard mitigation planning, which would consider future projections for the natural hazards that may affect New York State given changing climate conditions and then deter­mine how best to mitigate risks to the reliable provision of utility services.

The commission did not act on the Columbia petition; however, a second vehicle presented itself only weeks later in the form of a filing submitted by Consolidated Edison Company of New York, Inc. (Con Edison), specifically, a petition seeking an increase in its rates.⁷ The Con Edison rate filing re­quested an increase in existing electric rates of approximately 3.3 percent, but it also included a request for roughly another $1 billion for what the company termed “storm hardening”: “potential storm hardening structural improve­ments over the next four years that are intended to reduce the size and scope of service outages from major storms, as well as to improve responsiveness and expedite the recovery process to better serve our customers.”⁸ In the filing letter, Con Edison anticipated working with city and state governments, as well as other stakeholders, in finalizing storm-hardening plans.

Although New York and other state regulatory commissions establish pol­icy through generic cases, it is in rate cases that policy determinations come to life in the specifics of how the utility will be spending the money it collects from its customers. Rate cases are expected to take at least eleven months to complete and have extensive requirements for public information, eviden­tiary filings, and procedure. After the utility files its initial case, PSC staff and other parties may file their own testimony, and evidentiary hearings provide for cross-examination.

Recognizing this difficulty, on July 1, 2013, the PSC established a separate collaborative track to ensure a full treatment of the resilience issues, to proceed in parallel with the litigated evidentiary proceedings.¹⁰ In a collaborative track, there was evident potential to create a mediated process to bring together gov­ernment, the energy industry, academia, customer advocates, and thought leaders on climate change. The participants included not only Con Edison and PSC staff within the Department of Public Service but also the city of New York, the state attorney general's office, the Columbia Law School Center for Climate Change Law, Pace Law School Climate Change and Energy Center (PACE), the Natural Resources Defense Council (NRDC), the Environmental Defense Fund (EDF), plus many other environmental and customer advocacy groups. The regulatory response to Sandy developed in the Con Edison rate case filed in January 2013, which included a resiliency collaborative and a reex­amination of the role of renewable energy and energy efficiency, especially of the changes needed in the organization and regulation of the energy industry. I was also the initial ALJ assigned to that case, then became a policy adviser to Public Service Commission chair Audrey Zibelman and project manager. In that capacity, I was particularly engaged in the public participation process, reaching out to energy democracy and environmental justice advocates, as well as industry, government, and consumer representatives.

In the immediate post-Sandy crisis and its aftermath, my work stretched the limitations of the usual role of ALJs in administrative cases. That role is usually characterized by judges managing the calendar and discovery proce­dures in quasijudicial proceedings; conducting formal evidentiary hearings and presiding over public statement hearings; and analyzing the evidence and penning recommended decisions for the PSC, the final decision maker, to act.

But the ALJ role is not limited to procedural decisions or mechanically applying rules. That role encompasses two critical responsibilities: building a robust and complete record to support PSC decision-making, and ensur­ing the participation of all interested stakeholders. In the post-Sandy world, I interpreted these mandates expansively to entail including record evidence on climate change and welcoming full participation by the thought leaders in this field—including climate scientists and the climate advocacy community.

The expectation that a judge or mediator be “neutral” as to substantive pol­icies, especially faced with crisis conditions, is misguided. We all have opin­ions, especially as to issues like climate change, the protection of low-income customers, and equity for communities of color. Being fair to all parties and points of view is a more relevant quality than an unattainable neutrality. My views on the urgency of addressing climate change were on full public view in my teaching and writings. There were situations, however, where it was im­portant to reveal potential conflicts of interest. In a few cases my husband, Jeff Jones, an environmental advocate and communications strategist, consulted for organizations that were parties in my case. Working with the agency ethics officer, I disclosed this potential conflict in a letter to all parties, including my commitment that this would not jeopardize my fair judgment in the case. No party ever moved for my recusal.

Once I was charged with facilitating the resiliency collaborative, I was no longer serving as a judge in the administrative litigation.

But over and above these considerations, I considered it my responsibil­ity to do everything I could to advance the discussion of climate change in government and to push for more aggressive mitigation of the greenhouse gas emissions from the energy industry's combustion of fossil fuels. In my view, that is a moral imperative given the current and future suffering of those exposed to apocalyptic climate-induced floods, storms, rising sea levels, wild­fires, and heat waves.

Background: Climate Change

In the case of climate change, this emergency has long been expected. Scien­tists predicted in the nineteenth century the consequences of adding carbon to the planet's atmosphere. When Superstorm Sandy (downgraded from a hurricane) hit New York City, the impact was disastrous, and the federal, state, and city authorities and Con Edison were ill-equipped to respond. Although government, utilities, and media generally described Sandy as not just unforeseen but unforeseeable, climate scientists had, in fact, anticipated just such a storm, and its impacts, for a long time. Corporate fossil fuel giants have been informed by their in-house scientists at least since the 1970s of the planet-altering result of burning fossil fuels and of the potentially disastrous consequences of releasing increasing tonnage of carbon dioxide and other greenhouse gases into the earth's atmosphere?³ In 1978, senior Exxon scien­tist James Black warned the company that doubling atmospheric CO2 would warm the planet by 2-3 degrees Celsius and that “present thinking holds that man has a time window of five to 10 years before the need for hard decisions regarding changes in energy strategies might become critical."i⁴

Similarly, governments have long been on notice of the climate threat. Re­nowned climate scientist James Hansen, former director of NASA's Goddard Institute for Space Studies, testified before Congress in 1988. He explained how climate change had loaded the atmospheric dice in favor of extreme heat events?⁵ But almost twenty years earlier, then-White House aide Daniel Patrick Moynihan sent a warning letter about greenhouse gas emissions to President Richard Nixon adviser John Ehrlichman: “[T]his very clearly is a problem, and, perhaps most particularly, is one that can seize the imagina­tion of persons normally indifferent to projects of apocalyptic change."¹⁶ By the late 1980s, visionary writers were already warning the rest of us of what was coming, including science writer Bill McKibben in The End of Nature and novelist Marge Piercy in He, She and It.

Superstorm Sandy awakened the state of New York to the urgency of cli­mate change: it was not merely a problem of extreme, isolated weather events and vague, distant future predictions of harm but rather a long emergency with dire consequences in the here and now. “Climate change” became part of the state government's lexicon at last.

In addition, the storm heightened the mobilization of environmental justice, customer, and community advocates pressing for action, with many government agencies, corporations, and academics stepping up to assess the causes and consequences of the storm, the protracted power outages, and the extensive damage. Notably, while the utility grid was down in much of met­ropolitan New York, facilities relying on microgrids, on solar power, and on combined heat and power were conspicuously successful in keeping the lights and heat on during the crisis.¹⁷ To prepare for future disasters based on the lessons from Sandy, the most important lesson becomes: in the Anthropocene Epoch, the past is no longer the best guide to the future?⁸

The Mediation Process at the Public Service Commission

The sources I rely on, documented here, can all be found in the public record. My role in the post-Sandy proceedings was as facilitator of a collaborative process established by the PSC. The outcome of this effort was a joint pro­posal entered into by most of the participating parties following settlement discussions on all rate case issues, including the resiliency issues stemming from the collaborative. The settlement discussions are subject to the PSC con­fidentiality rules, which provide:

No discussion, admission, concession or offer to stipulate or settle, whether oral or written, made during any negotiation session concerning a stipulation or settlement shall be subject to discovery, or admissible in any evidentiary hear­ing against any participant who objects to its admission. Participating parties, their representatives and other persons attending settlement negotiations shall hold confidential such discussions, admissions, concessions, and offers to settle and shall not disclose them outside the negotiations.

Because the PSC encourages mediation and other forms of collaboration, its confidentiality regulations apply not only to participants but also to any “neutral” parties and to the disclosure by mediators of oral or written com­munications prepared for the purpose of a mediation?⁹ Fortunately, the com­mission's public record makes publicly available testimony, comments and reply comments, as well as statements on the Con Edison resiliency report

that followed the collaborative and on the joint proposal itself. Of course, the notices and orders issued by the commission itself are also instructive and, in this case, voluminous.²⁰

Con Edison had been preparing to file its rate cases in November 2012, seeking rate increases for electric and gas service. After Superstorm Sandy struck, it postponed that filing in order to incorporate proposals for a new set of extraordinary measures designed to modify its construction practices and standards to prevent similar damage from future storms. The crisis, including billions in damages to energy infrastructure in the region, interrupted Con Edison's business as usual and opened its eyes to the new imperative posed by climate change: a hundred years of consistent weather patterns were no longer a guide to future storm events.

In Con Edison's rate filing, for example, it proposed to rebuild the storm­damaged infrastructure by raising ground-floor or otherwise vulnerable facilities?¹ But to many collaborative participants, the failures of the utility during the storm were traceable to outmoded standards and even to the fun­damental configuration of utility design. The collaborative soon became a place to interrogate what a post-Sandy utility should look like, what kinds of changes were driven by the shortcomings of a system designed decades ago, and the potential of new technologies and a mobilized community—what was called the “utility of the future.” Shaken by the crisis, Con Edison was willing to consider and adopt system changes it had not seriously entertained in the past—and it was willing to accept the intervention of collaborative members in areas that implicated historically guarded domains (in how the utility as­sessed risk, for example).

The collaborative process provided a blank canvas for the stakeholders to envision changes in risk assessment, alternatives to traditional utility capital investments, and the long-term impacts of climate change on the electric sys­tem. In the end, Con Edison and almost all other parties agreed to propose jointly to the PSC some innovative outcomes, including in areas the com­mission would have had no authority to order the utility to comply. The use of alternative dispute resolution collaboration—in the shadow of the crisis— created added value and opportunity beyond the reach of a typical regulatory rate case.

Mediators/ALJs at the PSC have had many opportunities to realize the value of collaborative conversation in times of crisis. For example, in the summer of 2006, in the course of a protracted and unanticipated heat wave, 175,000 Con Edison customers in Western Queens experienced a nine-day outage. The PSC mandated its staff to investigate whether the utility's deci­sions during the heat wave were reasonable; if not, shareholders rather than customers might have to pay the cost of recovery. A settlement process was begun in the course of the regulatory litigation on this investigation, and I was appointed settlement judge (or mediator). Normally adversarial, govern­ment, industry, utility, and community parties began a collaborative process that resulted in an extraordinary joint proposal to the commission. Critical to the collaboration was the participation of a newly formed neighborhood group, Western Queens Power to the People. That joint proposal provided for termination of the review of utility actions during the outage, in exchange for a $46 million rate benefit for all Con Edison customers—a remedy often applied in similar cases. But in addition to that remedy, Con Edison created a $17 million “community benefit fund” for the Western Queens community. This fund was dedicated as follows: half of it was returned to Western Queens customers as credits on their bills, and the other half was dedicated to a com­munity fund for uses approved by community groups. This portion went toward planting trees in the affected neighborhoods, energy reduction en­hancements, and other environmental benefits. Also included were funding for a study of the economic and health consequences of the outage and—of primary importance to the community negotiators—a personal letter of apol­ogy to affected customers from the utility's CEO. For me, this experience was an object lesson in the power of leading collective discussion and of nonpo- sitional negotiation. But it was also an object lesson in how far we had to go to seriously address the impacts of climate change on our energy systems. In that case, there was little discussion about the causes of the extraordinary heat wave or about the lack of consideration by either the utility or the state of the patterns of increases in ambient temperatures and of extreme heat events in the Northeast—patterns well understood by climate scientists at the time. During a break in the hearings on utility prudence, I asked one young Con Edison engineer, off the record, whether the outage could have been prevented by anticipating the problem and ensuring significant reductions in electric usage: “In hindsight, wouldn't it have been cheaper to install free en­ergy star air conditioners for everyone in the neighborhood?” in comparison to the costs of the outage and its aftermath. “Of course,” he responded.

I had been an ALJ at the PSC since 1994, after three years as an appel­late litigator and two as session counsel to the PSC chair at the time, Peter A. Bradford.²² As a judge I presided over many cases with environmental dimensions, from the siting of electric transmission and natural gas pipelines to New York's first Renewable Portfolio Standard (RPS). It was this case that opened my eyes to the rolling crisis that is climate change.

In his 2003 State of the State address, Governor George Pataki announced the goal of obtaining 25 percent of the state's electricity from renewable resources—solar, wind, biofuel, and hydropower—by the year 2013. After a series of hearings and public meetings, the PSC issued, for comment, my rec­ommended decision; although the commission neither used nor adopted my approach to climate change, it did adopt the RPS program. The 2004 recom­mended decision opened with this context:

The earth's warming during the twentieth century is the greatest in the past millennium, and the 1990s were possibly the warmest decade in a thousand years. This extreme climate change is producing catastrophic storms, glacial melt, ocean warming, and species extinctions. Caused by human indus­trial activity—the release and concentration of greenhouse gases, predomi­nantly carbon dioxide (CO2) in the earth's atmosphere—this trend will not easily be reversed. The generation of electricity from fossil fuel is a major contributor.”²³

Shortly after, I designed and taught courses on climate change law at both Albany Law School and the State University of New York at Albany. I con­tinue to teach these courses, increasingly with an international law, human rights, and climate justice bent. Teaching the subject both required and en­abled me to stay abreast of the rapidly changing and evolving field of climate change law. There was no casebook for the first years I taught climate change, although there are many to choose from today. I coteach with climate scien­tists and find that engagement with climate science, with changing interna­tional, federal, and state laws, keeps me engaged and current. I was also able to bring these resources into my work and to make climate scientists available to commissioners and staff at the PSC?⁴

The Con Edison Resiliency Collaborative

As one of three ALJs assigned to the Con Edison rate case, I was responsible for managing a collaborative effort among all stakeholders to assess the util­ity's recovery and reconstruction plans?⁵ These plans were characterized by Con Edison as “storm hardening” and were the underpinning of its request for $1 billion from its customers to recover the costs of rebuilding its net­work and better equipping it to withstand Sandy-type events. As in any rate case, a request by a utility to recover funds from its customers to cover con­struction projects was subject to scrutiny by the DPS staff. In this case, the storm-hardening request was also intensively assessed by the office of the New York State Attorney General, counsel for New York City and the city's Sustainability Task Force, Columbia Law School's climate change center, the EDF, and the NRDC, as well as numerous other environmental advocacy NGOs, consumer groups, and federal and state agencies.²⁶

Con Edison filed its rate case in January 2013. The utility informed the commission:

[Based] on our experience with Sandy, these new rate filings focus on the need for investments and preventive measures to further strengthen critical infra­structure designed to reduce the impact of future major storms on our custom­ers. Specifically, the filings include approximately $1 billion in potential storm hardening structural improvements over the next four years that are intended to reduce the size and scope of service outages from major storms?⁷

The NGO parties warned that the company's single-issue focus on its existing infrastructure and its response to the last storm precluded consideration of alternative approaches. These, advocates argued, would take into account a wide range of anticipated climate change impacts and birth a forward-looking energy system.

Columbia's expert witness, the climate change scientist Radley Horton, tes­tified in the rate hearings as follows:

Q: In your opinion, would a past 30-year average of New York weather ac­curately reflect the predicted future climate of New York State?

A: No. As greenhouse gas concentrations continue to rise, the climate of New York State and New York City is projected to change as well. By the 2020s, we would expect the climate of New York State and New York City to be statistically different from the climate we have experienced over the past 30 years. This difference will only increase as we move fur­ther into the 2050s, 2080s, and to 2100. Using the past 30-year average of weather as a benchmark for risk management would be unwise and contrary to our current scientific understanding.

Q: How would you recommend that Con Edison prepare for future weather conditions?

A: I would encourage Con Edison to engage with scientists to understand the climate scenario predictions and what those predictions might mean for Con Edison's vulnerability. Based on these predictions, I would also encourage Con Edison to conduct a comprehensive evaluation of its current and projected future vulnerability both to temperature increase and extreme weather events. Long-term infrastructure investments should be guided by an understanding of the climate factors that the infrastructure will have to operate in?⁸

Electric utilities are legally responsible for the reliability of their service and traditionally file regular reliability plans and emergency response plans to ensure their preparedness for extraordinary, force majeure events that may require mobilization of forces and equipment or even calling in mutual aid from neighboring jurisdictions in case of extensive outages. But these proto­cols, as we are currently witnessing in post-Hurricane Maria Puerto Rico, are designed for short-term responses to weather aberrations and turn out to be inadequate for the patterns of severe impacts resulting from changes in the climate.²⁹ Yet regulators and utilities have been reluctant to develop new ap­proaches for the new reality—until disasters strike.

A utility rate case entails almost a year of litigation, extensive filed testi­mony, and cross-examination of witnesses on a broad range of issues treating the justification for the company's request for an increase in rates. In this case, the entry of environmental parties, New York City, and the state attorney general, among others, guaranteed that momentous issues of policy would also be on the rate case agenda—that, in fact, the issues raised by Columbia's petition would be adjudicated in the rate case, a foreign forum for many who ultimately participated.

In the course of weeks of hard-fought evidentiary hearings on a range of rate issues, it became clear that the policy issues were not essentially eviden­tiary in nature and should be considered on a separate track from the tradi­tional rate-case issues. Accordingly, the PSC instituted a collaborative process in July 2013 to consider “storm hardening and resiliency issues.” The first charge to the collaborative was to establish ground rules, a working schedule, and the scope of collaboration in the context of the progress of the rate cases as a whole. By this notice, the commission appointed me facilitator of the collaborative.³⁰ Collaborative sessions continued until fall 2013, when parties began negotiation of an overall rate settlement that would encompass agree­ments on the resiliency issues.³¹

As noted, the Sandy experience exposed the vulnerability of a historically reliable power grid to threats that were not only new but also continually changing (then and now). The extended electrical outage also demonstrated the flexibility and value of solar facilities and other electric generation re­sources that were distributed—that is, decentralized—in comparison to the decades-old utility model of large, fossil-fueled, central generating stations^

The collaborative and its working groups conducted activities from July 8, 2013, to November 19 of that year. Among the key issues addressed was that the utility's reliance on long outdated Federal Emergency Management Agency (FEMA) floodplain maps was urgent in order to ensure that updated maps were used in the upcoming utility rebuilds. The participants had agreed to 2014 proj­ects and budgets for the utility. Con Edison, like New York City and many other jurisdictions and utilities, relied on FEMA floodplain maps developed in 1983.³³ Although updated, nonfinal, working maps were available, these were the basis for utility planning. The FEMA maps are the industry and government stan­dard for all infrastructure construction and repair: they indicate floodplains where construction is inadvisable or dicey. Since a great deal of utility building is on waterfronts, these sources are critical. The floodplain maps are based on records of the worst flood in a hundred years or the worst in five hundred years as a proxy for the odds of such floods recurring. So, a hundred-year flood is estimated to have a 1 percent chance of occurring in a given year. The outdated FEMA maps indicated that 33 square miles might flood; in fact, Sandy flooding exceeded the hundred-year floodplain boundaries by 53 percent. The updated working maps doubled the number of buildings included in the floodplain in New York City—from 400,000 to 800,000. Through the collaborative, the par­ties most concerned about this issue negotiated a stipulation committing the utility to use the most current FEMA floodplain maps in its upcoming planning and construction. That said, FEMA apparently still does not reflect anticipated climate change impacts, including sea-level rise, in its updated flood maps, not­withstanding that 17 percent of the city's total land mass was flooded by Sandy?⁴ In an innovative addition, the stipulation provided standards for construction in flood-vulnerable areas requiring FEMA protections, plus an additional 3 feet to take sea level-rise predictions into account.

Other major issues resolved collaboratively included a reassessment of utility risk calculations, to include consideration of probability of climate- related risks over time, and an agreement that Con Edison would contract with Columbia's Earth Institute to conduct a long-term study of adverse risks of climate change to its infrastructure and organization. The PSC also or­dered all other New York utilities to likewise work with climate experts to craft evidence-based future climate resilience plans?⁵

Finally, after considerable controversy, Con Edison agreed to modify its original filing request for over $1 billion for the construction of a new substation to meet the growing electricity needs of customers in Brownsville, Brooklyn. In the collaborative, other parties counterproposed that Brownsville's needs could be met more economically and with greater resilience by a combination of strat­egies. These strategies included making the customers' energy usage more ef­ficient and flexible, installation of solar power and other renewable energy, and relying on distributed resources from alternative sources, saving hundreds of millions of dollars and enabling communities to “island” from the central grid and maintain their own power system in times of crisis. These resolutions were also approved by the commission in its 2014 Con Edison rate order?⁶

Of these, the Brownville project, renamed Brooklyn/Queens Demand Management, became the symbol and front line of a new commission and state regulatory approach to reduction of greenhouse gas emissions, resil­iency, energy affordability, and the distribution of energy resources: Reform­ing the Energy Vision.³⁷ After being appointed ALJ for this proceeding, in September 2014, I moved from the judge's role to be appointed by PSC Chair Audrey Zibelman as project manager for REV. In that capacity I joined the chair's policy team. But I saw my best contribution as establishing ties with, and accountability to, environmental justice and climate justice groups, as well as grassroots environmental organizations and representatives of low income New Yorkers—those hardest hit by climate change and its conse­quences.³⁸ For example, the New York City Environmental Justice Alliance convened the Sandy Regional Assembly to create its own “Recovery Agenda,” with a critical analysis of New York City's post-Sandy efforts for low-income people and communities of color?⁹

Conclusion

In a recent talk, the New Yorker writer and author of two major books about climate change, Elizabeth Kolbert,⁴⁰ warned that all the major climate mark­ers are arriving earlier than anticipated: the destruction of the Australian Great Barrier Reef was anticipated, but not for thirty to forty years; pollinator populations are crashing; and fish populations are being destroyed by warm­ing waters?¹ Climate change is increasingly understood to be at the root of destabilizing population migrations4² and as a force multiplier for social dis­location, international conflict, and war.43

My climate scientist colleagues have always told me that the United States will never make real progress in recognizing the immediacy of climate change and responding with appropriate urgency, priority, and resources until this country is consumed by cataclysmic climate change events—the implication being that it is pointless to agitate for the needed level of response before that time. However, Hurricane Katrina, Superstorm Sandy, Hurricane Harvey, and Hurricane Maria have come and gone, and our federal government today has withdrawn from the Paris Agreement and is intent upon rescuing the coal industry, the most dangerous energy resource on the planet.

In times like this, meaningful action by states and cities, as well as civil society protests and activism—in the United States and around the world— become even more critically important. The day after Donald Trump an­nounced the US withdrawal from the Paris Agreement, New York, California, and a dozen other states proclaimed themselves the United States Climate Alliance, pledging to continue to meet the Paris goals and adopt even stricter emission reduction policies.

Superstorm Sandy marked a crisis point: New York's lights went out, streets became flooded, and we witnessed how crisis can do terrible damage. Now, after Hurricane Maria, we are watching climate shock used in Puerto Rico by disaster capitalists⁴⁴ to consolidate and advance their privatization and aus­terity agenda that would be unattainable under a normal democratic process. Yet post-Sandy, we see that, with collective action to respond, crisis can also be a platform for profound positive change.

NOTES

The chapter title is drawn from James Howard Kunstler, the long emergency: SURVIVING THE END OF OIL, CLIMATE CHANGE, AND OTHER CONVERGING CATASTROPHES of the twenty-first century (2005).

1 Hurricane Katrina (2005) was the costliest, but Hurricane Harvey, causing immense damage to the Houston area, and then Hurricane Maria (both in 2017), set new records. The latest study by the Milliken Institute School of Public Health at the George Washington University puts the death toll six months after the event itself at 2,975. Milliken Institute School of Public Health, George Washington University, Ascertainment of the Estimated Excess Mortality From Hurricane Maria in Puerto Rico, iii, https://publichealth.gwu.edu.

2 James M. Van Nostrand, Keeping the Lights on During Superstorm Sandy: Climate Change Adaptation and the Resiliency Benefits of Distributed Generation, 23 N.Y.U. Envtl. L.J., 92 (2015).

3 New York State Public Service Commission, Reforming the Energy Vision, No. 14-M-0101, Order Instituting Proceeding (Feb. 2014).

4 This center is now the Sabin Center for Climate Change Law at Columbia Law School; its PSC filings on the Con Edison case are filed as Columbia Law School Center for Climate Change Law, and for consistency's sake I identify the Center under that name or as Columbia.

5 In addition to Columbia, petitioners included the Natural Resources Defense Council, Earthjustice, New York League of Conservation Voters, Municipal Art Society of New York, and Hudson Riverkeeper.

6 Anne R. Siders, Letter to Commission Secretary, Colum. Ctr. for Climate Change L. 1 (Dec. 12, 2012), https://web.law.columbia.edu.

7 N.Y. P.S.C. Nos. 13-E-0030 Letter from Con Edison President Craig S. Ivey to Public Service Commission Acting Secretary Jeffrey C. Cohen, Jan. 25, 2013, 1 (hereinafter “Con Edison Rate Filing Letter”) (on file with author).

8 Id.

9 New York's Public Service Law § 65 provides that utility rates and charges must be just and reasonable—that is, approved by the state regulator. The extensive regulations governing requirements for filing for new rates and adjudicating the utility requests are found in 16 N.Y.C.R.R. The breadth and complexity of a Con Edison rate case makes participation by intervenors and the public difficult. This case concerned the company's three services—electric, natural gas, and steam, as well as issues ranging from increasing reliability to providing utility incentives to keeping rate increases (reflected in customer bills) manageable. See N.Y. P.S.C. Case 13-E-0030 et al., Order Approving Electric, Gas and Steam Rate Plans in Accord with Joint Proposal, 71 (Feb. 21, 2014), http://documents.dps.ny.gov.

10 Notice of Collaborative Meeting Concerning Storm Hardening and Resiliency Issues, Con Edison Rates, N.Y. P.S.C. Case 13-E-0030 et al., http://documents.dps. ny.gov.

11 ChiefJustice Roberts Statement—Nomination Process, U.S. Cτs. (2005), www. uscourts.gov.

12 This latitude may resemble that of problem-solving courts working in specialized areas of law, documented in Raymond H. Brescia, Capital in Chaos: The Subprime Mortgage Crisis and the Social Capital Response, 56 Clev. St. L. Rev. 271, 308 (2008).

13 Shannon Hall, Exxon Knew About Climate Change Almost 40 Years Ago, Sci. Am. (Oct. 26, 2015); see also Naomi Oreskes & Erik M. Conway, Merchants of Doubt (1st ed. 2010).

14 Hall, Exxon Knew.

15 Dr. James Hansen, Statement, NASA Goddard Inst. for Space Stud., https://climatechange.procon.org/sourcefiles/1988_Hansen_Senate_Testimony.pdf.

16 Letter from Daniel Patrick Moynihan to John Ehrlichman regarding carbon dioxide and climate change (Sept. 17, 1969), www.energyhistory.yale.edu.

17 Combined heat and power (CHP) technology provides customers with a fuel source, usually natural gas, capable of heating the premises and also generating electricity with that fuel. Along with solar installations, fourteen facilities in the Sandy-affected region functioned through the Sandy devastation. See Van Nostrand, Keeping the Light, 116.

18 Many scientists now refer to the current era as the “Anthropocene,” based on observations that “human-kind has caused mass extinctions of plant and animal species, polluted the oceans and altered the atmosphere, among other lasting impacts.” Joseph Stromberg, The Age of Humans Living in the Anthropocene: What Is the Anthropocene and Are We in It?, Smithsonian (Jan. 2013),www.smithson- ianmag.com. The Anthropocene follows the 11,700-year-old Holocene. Will Steffen, head of Australia National University's Climate Change Institute, writes about how to date this new geological era, discussing the work of the atmospheric chemist and Nobel laureate Paul Crutzen, who popularized the nomenclature in 2000. Steffen starts the epoch in the early 1800s with the Industrial Revolution or in the 1950s for the Atomic Age. Either way, he urges that the new naming is “another strong reminder to the general public that we are now having undeniable impacts on the environment at the scale of the planet as a whole, so much so that a new geological epoch has begun.” Id.

Confidentiality of Settlement Discussions, 16 N.Y.C.R.R. 3.9(d) and (e). The Commission Con Edison rate case record can be accessed at http://docu- ments.dps.ny.gov. All documents referred to in that case, 13-E-0030, are contained in this record, http://documents.dps.ny.gov/public/MatterManagement/ CaseMaster.aspx?MatterCaseNo=13-E-0030&submit=Search.

Con Edison Filing Letter from Con Edison President Craig S. Ivey to PSC Secretary Jeffrey C. Cohen (Jan. 25, 2013).

Peter Bradford had served as chairman of the Maine Public Service Commission and then as a member of the Nuclear Regulatory Commission, appointed by President Jimmy Carter. As N.Y. P.S.C. chairman he instituted extensive energy efficiency and demand-side management initiatives to reduce the state's electricity usage.

Renewable Portfolio Standard, N.Y.P.S.C. Case 04-E-0188, Recommended Decision (June 4, 2004).

For my thoughts about teaching these courses, see Eleanor Stein, Ignorance/ Denial/Fear/Paralysis/Engagement/Commitment: Reflections on a Decade Teaching Climate Change Law, 102 Radical Tchr (2015).

The Commission adopted a definition of resiliency from the report to the governor by his N.Y.S. 2100 Commission: “Resilience is the ability of a system to withstand shocks and stresses while still maintaining its essential functions.” Recommendations to Improve the Strength and Resilience of the Empire State’s Infrastructure, Con Edison Rate Order, 63 www.governor.ny.gov/assets/ documents/NYS2100.pdf. There are as many definitions of resiliency as there are definers, apparently. In my view, “resilience” is generally used as a euphemism for “climate adaptation”: safeguarding against those impacts that are already baked into the climate system as a result of past greenhouse gas emissions.

Participants in the Collaborative were: DPS Staff, Con Edison, New York City (NYC), Office of the Attorney General (OAG), Department of State Utility Intervention Unit (UIU), Department of Environmental Conservation (DEC), Westchester County, NYU School of Law Guarini Center on Environmental and Land Use Law, Institute for Policy Integrity (NYU), Public Utility Law Project (PULP), NYECC, CPA, Utility Workers Union of America (UWUA) Local 1-2, Energy Initiative Group LLC, and the Non-Governmental Organizations (NGOs), comprising EDF, Pace, Columbia, and NRDC. See Con Edison Rate Order, 63.

Filing Letter, Rates and Services of Consolidated Edison Company of New York, Inc., Nos. 13-M-0030 et al., (Jan. 25, 2013) (hereinafter “Con Edison Rate Case”). Dr. Horton was an associate research scientist at the Center for Climate System, part of Columbia University's Earth Institute. His testimony was also on behalf of the other environmental NGOs. Michael B. Gerrard, Direct Testimony of Dr. Radley Horton, Ctr. for Climate Change L. & Envtl. NGO Group (May 31, 2013), http://columbiaclimatelaw.com.

Frances Robles, FEMA Was Not Ready for Puerto Rico Storm, Report Says, N.Y. Times (July 13, 2018).

Con Edison Rates, Notice of Collaborative Meeting Concerning Storm Hardening and Resiliency Issues, Nos. 13-E-0030 et al. (issued July 1, 2013).

Van Nostrand, Keeping the Lights.

Id.

Joel Scata, FEMAs Outdated and Backward-Looking Flood Maps, NRDC Expert Blog (Oct. 2017), www.nrdc.org.

Sandy and Its Impacts, A Stronger, More Resilient N.Y., www.nyc.org. New York City is dogged by storms, floods, extreme heat events, and sea-level rise. The other state utilities also face climate dangers, but they vary with the location and terrain and the configuration of their own infrastructure. Therefore, they must be assessed individually.

Con Edison Rate Order.

See Reforming the Energy Vision, N.Y. P.S.C. No. 14-M-0101, Order Instituting Proceeding (Apr. 25, 2014); see also Order Adopting Regulatory Framework and Implementation Plan (Feb. 25, 2015).

This is a story about the power and possibility of collaborative and collective thought and action, and all the work described in this essay was based in the collaborative work of Chair Zibelman and the DPS staff. The Con Edison collaborative benefited from the hard work under crisis conditions of the Con Edison group, from the climate change advocacy of the office of the NYS Attorney General, and from the Special Initiative for Reconstruction and Resiliency team of the NYC Mayor. In the post-Sandy proceedings and REV, contributors included Rocky Mountain Institute, Regulatory Assistance Project, Energy Innovation, Michael Gerrard, Director of the Sabin Center for Climate Change Law at Columbia Law School, the Earth institute, Pace Energy and Climate Center, NRDC and EDF, We Act for Environmental Justice (WEACT), NYC-EJA, PUSH Buffalo, the Energy Democracy Alliance, and many more who are still fighting for NYS government to play a stronger and more effective role in mitigation of greenhouse gas emissions and adaptation to climate change's inevitable impacts. New York's 2019 Climate Leadership and Community Protection Act (CLCPA), requires total statewide greenhouse gas (GHG) emissions to be 40 percent below 1990 levels in 2030 and 85 percent below 1990 levels in 2050. There is an aspirational goal of a 100 percent reduction by 2050. CLCPA also mandates that 70 percent of electric power demand in 2030 be met by renewables, and 100 percent be from zero emissions in 2040.

See Movers & Thinkers: Speakers Bureau, Eddie Bautista, N.Y. Found., www.nyf. org.

Elizabeth Kolbert, Field Notes From a Catastrophe (2006), and her Pulitzer Prize-winning The Sixth Extinction (2014) are primers for the science of climate change for the nonscientist.

41 See Jacqueline Williams, Damage to the Great Barrier Reef... Irreversible, N.Y. Times (Apr. 19, 2018, www.nytimes.com/2018/04/19/world/australia/australia- barrier-reef.html.; and remarks of Elizabeth Kolbert, April 20, 2018, on the WAMC roundtable.

42 Lauren Markham, A Warming World Creates Desperate People, N.Y. Times (June 29, 2018).

43 See, e.g., S. Hsiang, K. Meng, & M.A. Cane, Civil Conflicts Are Associated With the Global Climate, Nature (2011), 476, 438-41.

44 See Naomi Klein, The Battle for Paradise: Puerto Rico Takes on the Disaster Capitalists (2018).