Friday, January 12, 2007
American Bar Association
February 22-23, 2007
ABA SEER Quick Teleconference on 9th Circuit Cases Revisiting Mobile-Sierra Public Interest Review of Unilateral Modifications of Power Contracts
Energy Contracts in Context: The Ninth Circuit Revisits Mobile-Sierra Review in Light of the Western Energy Crisis Wednesday, January 24, 2007 12:30 p.m. – 2:00 p.m. Eastern Time / 11:30 a.m. – 1:00 p.m. Central Time / 10:30 a.m. – 12:00 p.m. Mountain Time / 9:30 a.m. – 11:00 a.m. Pacific Time<>
The Federal Power Act requires FERC to ensure that all rates, terms and conditions for the sale of power are “just and reasonable.” Since 1956, the Supreme Court has recognized a stringent standard of review, known as the Mobile-Sierra doctrine, which under certain circumstances forbad attempts to modify contracts unilaterally unless such modifications are required by the “public interest.” For decades, this standard has been regarded by many as “practically insurmountable.” That era may now have come to a close.
On December 19, 2006, the Ninth Circuit published a pair of decisions arising from the Western Energy Crisis of 2000-2001 that revisit the application of Mobile-Standard review in the modern context of market-based rates. In Public Utility District No. 1 of Snohomish County Washington v. FERC, and its companion case, Public Utilities Commission of the State of California v. FERC, the Ninth Circuit determined that the Mobile-Sierra public interest standard of review should apply only when: “ (1) the contract by its own terms must not preclude the limited Mobile-Sierra review; (2) the regulatory scheme in which the contracts are formed must provide FERC with an opportunity for effective, timely review of the contracted rates; and (3) where . . . FERC is relying on a market-based rate-setting system to produce just and reasonable rates, this review must permit consideration of all factors relevant to the propriety of the contract’s formation.”<>
Moderator and Panelist:
Russ Campbell, Balch & Bingham LLP, Birmingham, AL Panelists:
Jared des Rosiers, Pierce Atwood LLP, Portland, ME
John Estes, Skadden, Arps, Slate, Meagher & Flom, Washington, DC
Melissa Lauderdale, Director, Industry Legal Affairs, Edison Electric Institute, Washington, DC
The NY Times published its list of the top Ten stories of 2006. One of them had been featured prominantly on this blog -- the attempt of NOAA's political management to gag Dr. James Hansen, whose public discussions of global warming deeply embarrassed the Bush Administration. That story, written by Andrew Rivkin, in some ways was a shot heard round the world. For a full color version of the story, visit the Times. The printer-friendly version is quoted below.
The Bush Administration will rework OMB's controversial risk assessment proposal after the National Research Council expert panel reviewing the proposal called the approach "fundamentally flawed." NRC Report on OMB Risk Assessment Guidelines. The January 2006 proposed risk assessment technical guidelines were developed by former OIRA director John Graham to improve federal risk assessments, which OMB criticized in the cases of dioxin, mercury, perchlorate, and mad cow disease.
The proposal generated substantial public comment over the last year. Industry supported the proposal. Public health experts and environmental groups contended that the guidelines would prevent government agencies from regulating health hazards by setting technical risk assessment standards that were difficult -- or even impossible -- to meet.
OMB submitted the proposal to the National Research Council for review. According John Ahearne, chair of the NRC review committee, the committee decided that the proposal was broken beyond repair. It contained a confusing, overly broad definition of risk assessment, omitted crucial aspects of risk assessment such as how to handle absence of adequate information and assumed sufficient data would be readily available. And, more fundamentally, OMB failed to demonstrate that costly changes in the federal risk assessment process were necessary. The 18-person NRC committee unanimously agreed that OMB should withdraw the January 2006 proposed guidelines. NRC Executive Summary
We are or will soon be teaching students from Generation Next. Generation Next is made up of 18-25 year-olds (born between 1981 and 1988). Generation X was born between 1966 and 1980 and ranges in age from 26-40. The Baby Boom generation, born between 1946 and 1964, ranges in age from 41-60. Finally, those over age 60 (born before 1946) are called the Seniors. Take a look at the Pew Research Center for the People & the Press, A Portrait of "Generation Next:" How Young People View Their Lives, Futures, and Politics, January 9, 2007. Generation Next full report
As Pew Research Center summarizes its findings:
new generation has come of age, shaped by an unprecedented revolution
in technology and dramatic events both at home and abroad. They are
Generation Next, the cohort of young adults who have grown up with
personal computers, cell phones and the internet and are now taking
their place in a world where the only constant is rapid change.
In reassuring ways, the generation that came of age in the shadow of Sept. 11 shares the characteristics of other generations of young adults. They are generally happy with their lives and optimistic about their futures. Moreover, Gen Nexters feel that educational and job opportunities are better for them today than for the previous generation. At the same time, many of their attitudes and priorities reflect a limited set of life experiences. Marriage, children and an established career remain in the future for most of those in Generation Next.
More than two-thirds see their generation as unique and distinct, yet not all self-evaluations are positive. A majority says that "getting rich" is the main goal of most people in their age group, and large majorities believe that casual sex, binge drinking, illegal drug use and violence are more prevalent among young people today than was the case 20 years ago.
In their political outlook, they are the most tolerant of any generation on social issues such as immigration, race and homosexuality. They are also much more likely to identify with the Democratic Party than was the preceding generation of young people, which could reshape politics in the years ahead. Yet the evidence is mixed as to whether the current generation of young Americans will be any more engaged in the nation's civic life than were young people in the past, potentially blunting their political impact.
The Marine Aquaculture Taskforce advocates imposition of strict environmental standards on farming fish in U.S. ocean waters. The stakeholder panel, formed by Woods Hole Oceanographic Institution with financial support from the Pew Trust, predicts rapid expansion of offshore aquaculture operations. Marine Aquaculture Taskforce report Current aquaculture operations are not ecologically sustainable because farmed fish are fed fishmeal, using 6.6 kg of wild-caught fish to grow 1 kg of farmed fish and fishmeal supply fisheries are fully or overexploited.
The panel recommends that Congress should put the National Oceanic and Atmospheric Administration (NOAA) in charge and mandate it to evaluate the risks of offshore aquaculture before granting any permits. Major hazards include pollution from excess waste and feed and the risk that escaped fish will harm wild populations. The panel recommends that non-native fish should not be allowed in coastal or open waters, unless they have been shown to pose no risk. In addition to strict regulations, the panel also suggests market-based incentives to encourage investment in sustainable aquaculture operations.
January 12, 2007 in Biodiversity, Economics, Environmental Assessment, Governance/Management, Legislation, Physical Science, Sustainability, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Thursday, January 11, 2007
Martin Enserink, ScienceNOW Daily News reported yesterday on the conceivable hazards of "pandemic Tamiflu use," which might create antiviral resistance or other unknown hazards. We don't know how quickly Tamiflu will break down in the environment, but it may be very persistent. Singer, et al built a model to predict likely concentrations in rivers. While the levels vary widely by river basin, the model predicted levels that could trigger resistance in influenza-infected birds, leading to a second wave pandemic from a slightly different pandemic strain. In addition, it could inhibit enzymes in other species, causing broader, more difficult to predict, ecological effects.
Tuesday, January 9, 2007
National Oceanic and Atmospheric Administration's (NOAA) preliminary forecast released in mid-December forecast 2006 as the third warmest year on record. See December 16 post However, NOAA reported today that last year was the warmest in the contiguous United States since record keeping began 112 years ago in 1895. The record was set in part because of extremely warm December weather: no state was colder than average and five states had record warm weather -- Minnesota, New York, Connecticut, Vermont and New Hampshire. The average temperature was about 55 degrees Fahrenheit, or 2.2 degrees above the average temperature recorded from 1901 to the end of 2000. NOAA attributed the record warmth to El Nino and overall global warming, but said "It is unclear how much of the recent anomalous warmth was due to greenhouse-gas-induced warming and how much was due to the El Nino-related circulation pattern." NOAA preliminary annual report
Monday, January 8, 2007
Public Lands and Resources and Global Oil and Gas Committees
Present a “Quick Teleconference” program
Thursday, January 25, 2007
Timothy Sullivan of the ABA SEER Endangered Species Act committee reported on the grant of cert regarding the 9th Circuit ESA case:
On Friday, January 5, 2007, the United States Supreme Court granted petitions for certiorari by the National Association of Home Builders (NAHB) and the United States Environmental Protection Agency in the consolidated cases of National Ass'n of Home Builders v. Defenders of Wildlife and United States Environmental Protection Agency v. Defenders of Wildlife (collectively, "Defenders"), 420 F.3d 946 (9th Cir. 2005).
In Defenders, the Ninth Circuit vacated EPA's decision to approve the transfer of permitting authority under Clean Water Act section 402(b), 33 U.S.C. 1342(b), to the State of Arizona. Defenders, 420 F.3d at 979. Although EPA's approval may have complied with the agency's obligations under the Clean Water Act, according to the Ninth Circuit, "compliance with a 'complementary' statute cannot relieve relieve the EPA of its independent obligations under [ESA] section 7(a)(2)." Id. at 971. The Ninth Circuit thus held that ESA section 7 requires EPA to consider the impact on endangered and threatened species and their habitat when the agency decides to transfer this authority to a state. Id. at 949. Because EPA did not consider these impacts when it approved EPA's transfer of Clean Water Act permitting authority to Arizona, the Ninth Circuit held that EPA's approval was erroneous and remanded the matter to EPA. Id. at 979.
In September 2006, NAHB filed a petition for certiorari in the United States Supreme Court in which it asked the Court to determine
Whether a court can append additional criteria to Section 402(b) of the Clean Water Act that require state NPDES programs to include protections for endangered species;
Whether Section 7(a)(2) of the Endangered Species Act constitutes an independent source of authority, requiring federal agencies to take affirmative action to benefit endangered species even when an agency's enabling statutes preclude such action; and
Whether the Ninth Circuit incorrectly applied the holding of Dep't of Transp. v. Public Citizen, 541 U.S. 752 (2004), in concluding that EPA's approval of Arizona's NPDES permitting program was the legally relevant cause of impacts to endangered species resulting from private land use activities.
In October 2006, EPA filed a petition that asked the Court to determine
Whether Section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. 1536(a)(2), which requires each federal agency to insure that its actions do not jeopardize the continued existence of a listed species or modify its critical habitat, overrides statutory mandates or constraints placed on an agency's discretion by other Acts of Congress.
The Supreme Court accepted all of these questions and stated that it will consider the following additional question:
Whether the court of appeals correctly held that the Environmental Protection Agency's decision to transfer pollution permitting authority to Arizona under the Clean Water Act, see 33 U.S.C. §1342(b), was arbitrary and capricious because it was based on inconsistent interpretations of Section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. §1536(a)(2); and, if so, whether the court of appeals should have remanded to the Environmental Protection Agency for further proceedings without ruling on the interpretation of Section 7(a)(2).
The Court has not yet set a date for oral argument, but it is expected that oral argument will take place in April 2007.
The cases are Nat. Assn. of Home Builders v. Defenders of Wildlife, et al. (06-340), and EPA v. Defenders of Wildlife, et al. (06-549).