Cross-posted by permission from Legal Planet.
As reported in the L.A. Times and Wall Street Journal, the U.S. Chamber of Commerce has petitioned EPA to hold a trial-type hearing before finalizing its proposed finding that greenhouse gas emissions endanger public health and welfare. (We blogged about the proposed endangerment finding here.)
The main argument in the petition is that a formal hearing is required to effectuate the administration’s stated commitment to scientific integrity and transparency. Don’t be fooled. Scientific integrity is nowhere near the top of the Chamber’s wish list. Chamber officials have made that clear by telling the L.A. Times that the proceeding they have in mind would be “the Scopes monkey trial of the 21st century.” Scopes was convicted in 1925 of violating Tennessee’s law against teaching evolution in the public schools. His trial was a media circus (no doubt something the Chamber would like to replicate), but hardly a triumph for scientific integrity or transparency. No expert scientific testimony was presented at the Scopes trial because the only legally relevant question was whether the defendant had taught evolution. The trial did not address, much less resolve, the truth of evolution. (NPR has a timeline and retrospective on the Scopes trial here.)
But putting motivation aside, is there anything to the Chamber’s claim that a trial-type hearing on endangerment would enhance scientific integrity or transparency? Absolutely not.
The “informal rulemaking” process EPA is following in the endangerment proceeding is actually a better vehicle for exploring the strength of the scientific evidence than the formal hearing the Chamber seeks. And it is much better suited to resolving the policy issues that are at the heart of the Chamber’s objections to EPA’s proposed finding.
Full textThis item cross-posted by permission from Legal Planet.
When it comes to climate change, lawyers and policymakers (and scientists too) have been guilty of emphasizing greenhouse gas emission reduction, almost to the exclusion of everything else. Adapting to climate change has taken a distant back seat, even as it has become increasingly clear that the world is already committed to some pretty dramatic changes.
That’s beginning to change. Earlier this summer, the U.S. Global Change Research Program issued a major report detailing the present and expected future impacts of climate change in the U.S. Scientific studies with troubling data continue to pile up, like this one published this week by researchers from the US Geological Survey’s Western Ecological Research Center finding that large-diameter trees are declining in Yosemite National Park, an effect they attribute primarily to water stress and expect to accelerate as California warms. (Hat tip: LA Times Greenspace) The findings of this study are similar to another I blogged about in January finding surprisingly high mortality rates in old-growth trees across the west.
Policymakers are beginning to catch on as well. The Waxman-Markey climate bill addresses the need for adaptation planning, although not in much detail, as Alejandro Camacho and I explained here. Always one step ahead of the curve, California has now issued the first state-level draft climate adaptation strategy for managing climate risks. At this point, the draft is mostly a call for more study and planning, at large and small scales, calling for example for state agencies to identify habitats that could change significantly in the next century, and for consideration at the state and local level of “project alternatives that avoid significant new development in areas that cannot be adequately protected from flooding due to climate change.”
Full textOne of the ongoing tensions in environmental law is the conflict between uniformity and flexibility, constancy and change. Many of the environmental successes over the past thirty years derive from uniform standards that are straightforward to administer and enforce. The Clean Water Act’s requirement, for example, that all industrial polluters are obligated to utilize the same end-of-pipe, technology-based pollution controls is responsible for dramatically cleaning up our waters.
There are, of course, still more low-hanging fruit to be addressed under our existing laws, but building upon the environmental gains we have made is also challenge. The remaining problems are often complex, the pollution sources more dispersed, ecosystems change. Developing policies to clean up or prevent a particular mess is one thing, but developing policies that respond to new scientific information and promote ecosystem health more broadly is quite another. Environmental managers, regulators, and policymakers are thus growing increasingly interested in the concept of resilience to develop new approaches to protecting natural resources, particularly in light of climate change.
Ecologists at the Resilience Alliance define resilience as “the capacity of an ecosystem to tolerate disturbance without changing into a qualitatively different state.” Put another way, resilience is the ability to persist and adapt to stress and change without falling apart. So some key questions for natural resource managers include: How do we develop ecosystem resilience? When is it too late? What laws and policies foster or impede resilience? What adaptive management practices promote or impede resilience?
Full textOne of many approaches to combating climate change is “Carbon Capture and Geologic Sequestration” (CCS). It’s a pretty straightforward idea: capture climate-change-causing carbon emissions and lock them up underground, rather than letting them float up into the atmosphere where they would contribute to global warming.
The concept may be simple, but the actual engineering of it is as complicated as you might guess. The first problem is capturing and transporting CO2 emissions to their “resting place.” And then comes the second, injecting the CO2 into a deep geologic formations that will trap it underground for hundreds to thousands of years. Suitable homes for such captured CO2 include oil and gas fields (they’re already drilling deep down anyway), saline aquifers, and deep coal seams.
As it happens, several CCS projects are underway in Norway, Algeria, and Canada and more are planned in the United States, China, Australia, and other European countries. In fact, four CCS projects are currently active, each injecting roughly 1 million metric tonnes of CO2 per year. Two projects involve injecting CO2 far below the seafloor into deep gas formations – the Sleipner natural gas field in the North Sea, about 250 kilometers off the coast of Norway; and the Snøhvit natural gas field in the Barents Sea. A third project in In Salah, Algeria, involves injecting captured CO2 into a land-locked deep gas formation. Finally, the Weyburn-Midale CO2 project in Saskatchewan, Canada, involves injecting CO2 into depleted oil fields in order to increase reservoir pressure and oil fluidity – the better to extract additional oil from the fields, while trapping the CO2 underground.
This item cross-posted by permission from Legal Planet.
Greenwire reports that one issue in the confirmation hearing may be a case involving climate change. The plaintiffs sued under the federal common law of nuisance for injunctive relief against public utilities for their carbon emissions. The case has now been pending before a panel including Judge Sotomayor for several years.
It’s definitely an interesting case. The district court held that the case presented a “political question” and hence was not justiciable. This was a somewhat peculiar application of the political question doctrine, which applies when a case lacks any legal standards (like the reasonableness of the period required to ratify a constitutional amendment), or the Constitution assigns an issue to another branch of government (like impeachment), or the court would be interfering with the conduct of foreign affairs (like deciding the date on which a war has ended). But courts hear nuisance cases all the time. The district judge argued that the scale of the climate change issue made this case different, but the Supreme Court has never said that the importance of a case made it a “political question” — and certainly didn’t think so in Bush v. Gore.
It seems unlikely that the Second Circuit will affirm on the basis of the political question doctrine, but there are many other issues in the case. Still, the long delay is peculiar.
What is likely to make this an unproductive topic for questioning is that Judge Sotomayor really can’t say anything about deliberations in a pending case. So there probably won’t be much to talk about.
Waxman-Markey passed the House. Was it the right thing to do? What's the outlook from here? Here are a few views from around the web.
The concerns about measuring and enforcing offsets are genuine (and increased because of Waxman-Markey’s reliance on USDA to do the job.) But those problems aren’t insurmountable either. Instead of complaining about reliance on offsets or the inclusion of USDA, we need to think about how to improve the offset program.
When you draw intersecting curves of “what needs to be done” and “what can realistically be done,” Waxman has time and again put himself at the intersection, and I think it involves a fair amount of hubris to think that you know better than him what the best feasible legislative outcome is.
That said, there’s really no getting around the fact that the best feasible legislative outcome isn’t good enough according to the climate science. What we’re left with is essentially the hope for an iterative process—a flawed bill that makes progress helps spur a productive meeting in Copenhagen helps spur some kind of bilateral deal with China which helps create the conditions for further domestic legislation. I think this is the best idea anyone has, but it’s a pretty dicey proposition.
Full textI want to congratulate the Peterson amendment for the positive things it does do—consider numerous progressive agricultural practices as part of a comprehensive climate bill. I recognize just how powerful that is and I certainly do not want to underplay such inclusions. Progressive farmers absolutely must play a role in the climate change debate and mitigation strategies—no doubt. But to create an amendment that does so and then turns right around and grandfathers in questionable biofuels, pushes aside science and doesn’t include other government agencies in its GHG Advisory committee is counterproductive to the point that I have to wonder how effective the amendment will be in achieving the overall goal of the Waxman-Markey bill.
Yesterday, I explored the various ways that the USDA takeover of bio-sequestration offsets could affect how well the offsets provision of the Waxman-Markey Climate Security Act would work. Today, we have legislative language in the form of an amendment offered by Rep. Collin Peterson (D-MN), which fills in some of the details. While some of the changes may be helpful, others are cause for worry.
The amendment gives all offset authority over bio-sequestration and agricultural activities to the USDA – the authority to initially approve offset rules; to create rules for “additionality,” leakage, and permanence; to approve offsets themselves; and to account for reversals. The language does remain specific about what must guide the rulemaking, and is also specific about accounting for reversals and holding offset credits in reserve for reversals. The offset reversal part of the law does expand the list of offsets eligible for requirements of insurance or reserve, but it also gives the USDA unilateral power to not require that reserves be replenished for unintentional failure of offsets if it was because of a “natural disaster.” (Sec. 504(c)(3)(B)(iii)).
Besides these changes, the effect of the change from the EPA to the USDA over the majority of domestic offsets depends on whether or not one thinks that the USDA can do as good a job or not at coming up with genuine rules and adequately policing these rules. Because the USDA is not primarily an enforcement and compliance body (unlike the EPA), environmentalists have their worries.
Full textThe House Agriculture Committee yesterday released the language of an amendment by Agriculture Committee Chairman Collin Peterson (D-MN), which Rep. Waxman has agreed to accept as part of the final House climate change bill in order to secure support from Peterson and other farm-state representatives. Peterson represents a large, heavily ag-dependent district in central and western Minnesota, and makes no apologies for his desire to protect the interests of farmers in his district and elsewhere. From that perspective, the Peterson-Waxman deal represents one of Peterson’s most significant legislative accomplishments to date as Ag Committee chairman. From the point of view of environmentalists, however, the deal involves some major concessions to the ag and forestry sectors, and a serious weakening of the bill.
Peterson's amendment notably exempts the ag and forestry sectors from , and moves authority to draw up and administer rules for offset credits generated by those industries to the U.S. Department of Agriculture (USDA). The bill still requires that offset credits be awarded only to activities generating GHG emission reductions that are “additional to” any reductions that would have occurred anyway in the absence of the credit -- the so-called “additionality” requirement. But the Peterson amendment defines “additionality” broadly to allow offset credits for farmers who previously participated in voluntary offset programs, or who adopted GHG-reducing practices like no-till farming after 2001, or who elect to participate in USDA conservation programs (including programs that pay them to take acreage out of production), or who undertake conservation measures required by other laws and regulations -- all categories that might have been ineligible under the original Waxman-Markey bill.
Full textLast night, House Energy and Commerce Chair Henry Waxman announced that he had agreed with Agriculture Committee Chair Collin Peterson that the USDA could have jurisdiction over agricultural offsets in the massive American Clean Energy and Security Act, which the House may vote on this Friday.
In agreeing to what had been one of the major sticking points to bringing farm Democrats on board, Waxman appears to believe that any concerns over USDA’s role are outweighed by the other good things in the bill. There are a lot of potential concerns with the USDA having the lead role on agricultural offsets. Most environmentalists have asserted that the EPA would be more likely to properly enforce the requirements that offsets be additional, verifiable, and not have leakage.
It is hard to make predictions about the effect of this change without specific legislative language, which is expected later today. But if we assume that most of the offset provisions of the bill otherwise remain the same, we can address some of the likely variables.
Giving the USDA primary jurisdiction over agricultural offsets essentially gives it control over most domestic offsets, since the largest categories of offsets are likely to be forestry sequestration, changes in land management, and methane capture from farms through the use of bio-digesters. The key in the legislative language will be defining “primary” jurisdiction. New legislative language could authorize USDA jurisdiction over approval and monitoring of individual offset applications or also include jurisdiction of the approval of offset categories. If only the former, the impact of putting USDA in charge is much less than if the latter.
Full textThe Waxman-Markey bill, in its current form, continues the nation’s wise respect for the complementary roles of the federal government and the states. By establishing a national cap and a national trading program, the bill would draw all states into the essential task of reducing greenhouse gas (GHG) emissions. But, like the federal environmental laws before it, the bill simultaneously provides states with the power to achieve more stringent reductions. Although industry may resist the prospect of state control, Congress should maintain the balance between federal and state power the bill has established.
The Clean Air Act, which the bill amends, already allows states to set more stringent regulatory standards for facilities in their states. In a national cap-and-trade program, however, that power could be rendered meaningless due to the interconnections among the states created by a national trading system. For example, if a state were to impose more stringent GHG standards on in-state facilities, the facilities would, as a result, use fewer allowances from the national trading system. But the emissions reduction would be illusory: less heavily regulated facilities in other states would simply buy up the allowances freed up by sources in more-heavily regulated states. Thus, even though the Clean Air Act already includes language that appears to allow states to be more stringent, the dynamics of a trading system would erase that ability.
The Waxman-Markey bill provides a mechanism that allows states to continue to set more stringent goals – in practice, not just in theory. Section 334 of the bill would amend the Clean Air Act’s existing savings clause by giving states the explicit authority to set their own more stringent emissions caps.
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