December 22, 2008
The Plight of the South Pacific Islands -- visit Kiribati with PBS
In the Poland climate change meeting just concluded, a top UN official predicted that by the middle of this century, the world should expect six million people a year to be displaced by increasingly severe storms and floods caused by climate change.
But as the PBS program NOW recounts:
for many island nations in the South Pacific, climate change is already more than just a theory -- it is a pressing, menacing reality. These small, low-lying islands are frighteningly vulnerable to rising temperatures and sea levels that could cause flooding and contaminate their fresh water wells. Within 50 years, some of them could be under water. NOW travels to the nation of Kiribati to see up close how these changes affect residents' daily lives and how they are dealing with the reality that both their land and culture could disappear from the Earth. We also travel to New Zealand to visit an I-Kiribati community that has already left its home, and to the Pacific Island Forum in Niue to see how the rest of the region is coping with the here-and-now crisis of climate change.
To see the report, visit PBS NOW link
Crude falls below $40
Supply cuts can't keep up with the precipitous decline in demand in US and Asia. So OPEC considers cutting production more than last week's 2.2 million barrel cut -- which was already a greater cut than expected.
Crude-oil futures fell Monday to below $40 a barrel as demand concerns outweighed news that the Organization of Petroleum Exporting Countries could cut production further. Crude for February delivery, the new front-month contract, ended down $2.45, or 5.8%, at $39.91 a barrel on the New York Mercantile Exchange. Crude-oil imports to China and Japan slowed in November, and inventories in the U.S. rose to their highest in seven months. Meanwhile, OPEC is mulling more production cuts, on the heels of the reduction of 2.2 million barrels a day that cartel members agreed to last week.
December 21, 2008
Call for Papers: World Water Week Sessions on the Right to Water
Here is a call for contributions on the World Water Week sessions in Istanbul, August 2009, on the right to water. This posting is in both French and English (English below).
Thème 4.1 : le Droit à l’eau – Cinquième Forum mondial de l’eau, Istanbul 2009
Quatre sessions sont organisées à l’occasion du cinquième Forum mondial de l’eau à Istanbul à propos du Droit à l’eau autour du thème 4 sur la Gouvernance.
Nous invitons les contributions des parties prenantes de toutes les régions pour les sessions suivantes :
Pour savoir comment soumettre vos contributions à l’une des 4 sessions, veuillez consulter le site internet du FAN, d’où vous pourrez aussi télécharger le format des contributions à chacune des sessions :
Session 4.1.1 – Meilleures pratiques de mise en œuvre : Quelles mesures les pouvoirs publics doivent-ils mettre en place dans la réforme du secteur, la budgétisation et l’élaboration de politiques ?
Session 4.1.2 – Le droit à l’eau et l’assainissement change-t-il vraiment quelque chose pour les communautés pauvres et marginalisées ? Quelles mesures doit-on prendre pour augmenter leur aptitude à se servir du droit à l’eau comme outil pour accéder à l’eau et obliger les pouvoirs publics et autres intervenants à leur rendre des comptes ?
Session 4.1.3 – Que comprend le droit à l’assainissement ?
Session 4.1.4 – Quelle est la valeur ajoutée d’une approche fondée sur les droits face aux urgences, du point de vue des pratiques sur le terrain et des actions de plaidoyer ?
La date limite de dépôt des contributions est le lundi 12 janvier 2009 et, si votre contribution est sélectionnée, vous en serez informé d’ici le 9 février 2009. Les contributions retenues seront regroupées dans le livre des Bonnes pratiques du droit à l’eau et un nombre limité de parties intéressées seront invitées à présenter leurs causes à l’occasion du Forum mondial de l’eau à Istanbul.
Session 4.1.1 – Contacter : Thorsten Kiefer, COHRE (firstname.lastname@example.org <mailto:email@example.com> )
Session 4.1.2 – Contacter : Sanderijn van Beek, FAN (firstname.lastname@example.org <mailto:wwf5@freshwateraction.
Session 4.1.3 – Contacter : Oliver Cumming, Water Aid : (email@example.com <mailto:olivercumming@
Session 4.1.4 – Contacter : Julie Aubriot, Action contre la Faim (rechercheEAH@
Topic 4.1: The Right to Water: Fifth World Water Forum, Istanbul 2009
Four sessions are being organised for the Fifth World Water Forum in Istanbul on the subject of the Right to Water under Theme 4: Governance.
We invite contributions from all stakeholders from all regions for the following sessions:
For guidelines on how to contribute for any of the 4 sessions, please visit our website, where you can download the format for contributions for each of the sessions:
Session 4.1.1: Best practices of implementation: What measures need to be put in place by governments in sector reform, budgeting and policy formulation?
Session 4.1.2: Is the right to water and sanitation really making a difference for the poor and marginalised? What steps are needed to improve their ability to use the right as a tool to gain access and to hold governments and other actors to account?
Session 4.1.3: What does the right to sanitation comprise?
Session 4.1.4: What is the added value of a rights-based approach to emergencies, in terms of field and advocacy practices?
The deadline for contributions is Monday January 12 2009, and you will be notified on 9 February 2009 whether your contribution has been accepted. The successful contributions will be included in a book of Good Practices of the Right to Water, as well as a limited number of interested parties being invited to present their cases at the World Water Forum in Istanbul.
Session 4.1.1: Contact: Thorsten Kiefer, COHRE (firstname.lastname@example.org <mailto:email@example.com> )
Session 4.1.2: Contact: Sanderijn van Beek and Ceridwen Johnson, FAN (wwF5@freshwateraction.net)
Session 4.1.3: Contact: Oliver Cumming, Water Aid: (firstname.lastname@example.org)
Session 4.1.4: Contact: Julie Aubriot, Action Contre la Faim (rechercheEAH@
We look forward to hearing from you.
Co-ordinator, Topic 4.1
COHRE Right to Water Programme
Science's New Science Policy Blog
Here's the roundup from Science's new policy blog, ScienceInsider:
Obama, Obama, Obama. The president-elect keeps making waves in the scientific community even before he has entered office. Yesterday, we were the first news outlet to report that Barack Obama has selected physicist John Holdren as his science adviser. We also explored the impact that Obama's pick for secretary of education is having on the science education community--and what it means for the future of science in the classroom. And Obama seems to be getting advice from everyone. This week, a congressman recommended that the president-elect not fire the current NASA administrator, and the Institute of Medicine warned Obama not to forget about global health.
On the other side of the pond, U.K. universities began nervously poring over a report to see how they rank, scientifically, among their peers. Some schools will be sleeping easier than others. ScienceInsider also explored a burgeoning controversy in Sweden over whether a collaboration between a biotech company and the Nobel Foundation has tainted this year's prize in physiology or medicine.
Back in the States, the University of Pennsylvania Museum of Archaeology and Anthropology is dealing with a controversy of its own. Archaeologists condemned the museum for laying off 18 researchers, including a world-famous archaeobotanist, but now the museum's director says there was a misunderstanding. Get the full story here.
Findlaw Environmental Case Summaries
Town of Marshfield v. Fed. Aviation Admin.
Sarei v. Rio Tinto, PLC
N. Carolina Fisheries Ass'n, Inc. v. Gutierrez
Salmon Spawning & Recovery Alliance v. US Customs & Border Prot.
Club Members for an Honest Election v. Sierra Club
U.S. 1st Circuit Court of Appeals, December 18, 2008
Town of Marshfield v. Fed. Aviation Admin., No. 07-2820
Petition for review of agency decision to reroute aircraft approaching and departing Logan airport is denied. Agency did not err in finding that these rerouting measures required no environmental assessment or environmental impact statement, where its peer-reviewed noise studies showed that the impact on noise levels would not be significant. Read more...
U.S. 9th Circuit Court of Appeals, December 16, 2008
Sarei v. Rio Tinto, PLC, No. 02-56256, 02-56390
The circuit court establishes that certain Alien Tort Statute (ATS) claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law. Where the "nexus" to the U.S. is weak, courts should carefully consider the question of exhaustion, particularly with respect to claims that do not involve matters of "universal concern." Matters of "universal concern" are offenses "for which a state has jurisdiction to punish without regard to territoriality or the nationality of the offenders." In a suit brought under the ATS claiming that various war crimes, crimes against humanity, racial discrimination, and environmental torts arose out of defendant-Rio Tinto's mining operations on Bougainville, Papua New Guinea, the matter is remanded for the exhaustion inquiry using such framework. Read more...
U.S. D.C. Circuit Court of Appeals, December 16, 2008
N. Carolina Fisheries Ass'n, Inc. v. Gutierrez, No. 07-5389
Circuit court lacks jurisdiction to hear appeal regarding dispute between fisheries and the Department of Commerce over whether a new regulation drafted by the Department violates national fishery conservation standards by failing to remedy the overfishing of certain species. Although the new regulation was put into place in response to the district court's order, if the fisheries believed the new regulation was still inadequate, they were required to raise that challenge in the district court first. Read more...
U.S. Fed. Circuit Court of Appeals, December 18, 2008
Salmon Spawning & Recovery Alliance v. US Customs & Border Prot., No. 2007-1444
In a suit alleging violations of defendants' duties under the Endangered Species Act (ESA) in failing to enforce a ban on importing endangered and threatened fish, and failing to consult with National Marine Fisheries Service regarding this lack of enforcement, dismissal for lack of standing is affirmed in part where: 1) plaintiff's claim under section 9 of the ESA challenges a presumptively unreviewable agency decision; and 2) section 11(g)(1)(A) of the ESA does not allow challenges to the implementation and enforcement of the ESA. However, dismissal is reversed and remanded in part where: 1) a claim alleging a violation of the procedural requirements of section 7(a)(2) satisfies the redressibility prong of standing analysis; and 2) the section 7 claim may fall within the court's exclusive jurisdiction under 28 U.S.C. section 1581. (Revised opinion) Read more...
Supreme Court of California, December 15, 2008
Club Members for an Honest Election v. Sierra Club, No. S143087
The public interest exception to the anti-SLAPP statute in Code of Civil Procedure section 425.17(b) applies only when an entire action is brought in the public interest, and if any part of a complaint seeks relief to directly benefit the plaintiff, by securing relief greater than or different from that sought on behalf of the general public, the section 425.17(b) exception does not apply. Read more...
EPA Overreaches Again on "Interpreting" the Clean Air Act
EPA lost again in the D.C. Circuit on its interpretation of the Clean Air Act in Sierra Club v. EPA, challenging EPA's exemption of facilities from MACT standards during startup, shutdown, or malfunction (SSM). Opinion The damage done in cases such as these where the Bush administration overreached will not be limited unfortunately just to the Bush administration. When the D.C. Circuit gets in the habit of looking at EPA decisions closely and with suspicion, and not crediting the assertions made in DOJ briefs because the arguments that DOJ is pushed to make are simply not credible, the ability of EPA to utilize its expertise to shape coherent regulatory systems out of sometimes less than coherent legislation and the ability of DOJ to command the judiciary's respect suffers. Both EPA and DOJ will need to rediscover that there are legal arguments that should not be made. The bar for the government is and should be higher than that for private parties.
In Sierra Club, the court agreed that, by stripping the protections of an enforceable SSM plan out of the 1994 exemption during recent rule-making, EPA constructively reopened the 1994 SSM exemption so that Sierra Club and others could challenge the legality of the 1994 exemption. Then, on the merits, the D.C. Circuit determined that the SSM exemption is inconsistent with section 112's requirement of continuous compliance with MACT standards and that the general duty not to endanger public health and the environment through emissions of hazardous pollutants does not satisfy the CAA's requirement:
Section 112(d) provides that “[e]missions standards” promulgated thereunder must require MACT standards. 42 U.S.C. § 7412(d)(2). Section 302(k) defines “emission standard” as “a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design,equipment, work practice or operational standard promulgated under this chapter.” Id. § 7602(k). Petitioners contend that,contrary to the plain text of this definition, “EPA’s SSM exemption automatically excuses sources from compliance with emission standards whenever they start up, shut down, or malfunction, and thus allows sources to comply with emission standards on a basis that is not ‘continuous.’” Petrs. Br. at 23.
EPA responds that the general duty that applies during SSM events “along with the limitations that apply during normal operating conditions, together form an uninterrupted, i.e., continuous, limitation because there is no period of time duringwhich one or the other standard does not apply,” Respt.’s Br. at 31. “Although Chevron step one analysis begins with the statute’s text,” the court must examine the meaning of certain words or phrases in context and also “exhaust the traditional tools of statutory construction, including examining the statute’s legislative history to shed new light on congressional intent, notwithstanding statutory language that appears superficially clear.” Am. Bankers Ass’n v. Nat’l Credit Union Admin., 271 F.3d 262, 267 (D.C. Cir. 2001) (citations and quotation marks omitted).
EPA suggests that the general duty is “part of the operation and maintenance requirements with which all sources subject to a section 112(d) standard must comply,” Respt.’s Br. at 33, pointing to section 302(k)’s statement that an “emission standard” includes “any requirement relating to the operation or maintenance of a source to assure continuous emission reduction,” 42 U.S.C. § 7602(k). Section 302(k)’s inclusion of this broad phrase in the definition of “emission standard” suggests that emissions reduction requirements “assure continuous emission reduction” without necessarily continuously applying a single standard. Indeed, this reading is supported by the legislative history of section 302(k):
By defining the terms ‘emission limitation,’ ‘emission standard,’ and ‘standard of performance,’ the committee has made clear that constant or continuous means of reducing emissions must be used to meet these requirements. By the same token, intermittent or supplemental controls or other temporary, periodic, or limited systems of control would not be permitted as a final means of compliance. H.R. Rep. 95-294, at 92 (1977), as reprinted in 1977 U.S.C.C.A.N. 1077, 1170.
“Congress’s primary purpose behind requiring regulation on a continuous basis” appears, as one circuit has suggested, to have been “to exclude intermittent control technologies from the definition of emission limitations,” Kamp v. Hernandez, 752 F.2d 1444, 1452 (9th Cir. 1985).
When sections 112 and 302(k) are read together, then, Congress has required that there must be continuous section 112-compliant standards. The general duty is not a section 112- compliant standard. Admitting as much, EPA states in its brief that the general duty is neither “a separate and independent standard under CAA section 112(d),” nor “a free-standing emission limitation that must independently be in compliance” with section 112(d), nor an alternate standard under section 112(h). Respt.’s Br. 32-34. Because the general duty is the only standard that applies during SSM events – and accordingly no section 112 standard governs these events – the SSM exemption violates the CAA’s requirement that some section 112 standard apply continuously. EPA has not purported to act under section 112(h), providing that a standard may be relaxed “if it is not feasible in the judgment of the Administrator to prescribe or enforce an emission standard for control of a [HAP],” id. § 7412(h)(1), based on either a (1) design or (2) source specific basis, id. § 7412(h)(2)(A), (B).
EPA’s suggestion that it has “discretion to make reasonable distinctions concerning those particular activities to which the emission limitations in a MACT standard apply,” 68 Fed. Reg. at 32,590, belies the text, history and structure of section 112. “In 1990, concerned about the slow pace of EPA’s regulation of HAPs, Congress altered section 112 by eliminating much of EPA’s discretion in the process.” New Jersey, 517 F.3d at 578. In requiring that sources regulated under section 112 meet the strictest standards, Congress gave no indication that it intended the application of MACT standards to vary based on different time periods. To the contrary, Congress specifically permitted the Administrator to “distinguish among classes, types, and sizes of sources within a category or subcategory in establishing such standards,” CAA § 112(d)(1), 42 U.S.C. § 7412(d)(1). Additionally, while recognizing that in some instances it might not be feasible to prescribe or enforce an emission standard under § 112, Congress provided in section 112(h) for establishment of “work practice” or “operational” standards instead, but, as petitioners point out, “strictly limited this exception by defining ‘not feasible . . .’ to include only [two types of] situations,” Petrs. Br. 9, and did not authorize the Administrator to relax emission standards on a temporal basis. See NRDC, 489 F.3d at 1374. In sum, petitioners’ challenge to the exemption of major sources from normal emission standards during SSM is premised on a rejection of EPA’s claim of retained discretion in the face of the plain text of section 112. “Where Congress explicitly enumerates certain exceptions to a general prohibition,additional exceptions are not to be implied, in the absence of a contrary legislative intent”. NRDC, 489 F.3d at 1374 (quoting TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)). The 1990 Amendments confined the Administrator’s discretion, see New Jersey, 517 F.3d at 578, and Congress was explicit when and under what circumstances it wished to allow for such discretion, id. at 582. “EPA may not construe [a] statute in a way that completely nullifies textually applicable provisions meant to limit its discretion.” New Jersey, 517 F.3d at 583 (quoting Whitman, 531 U.S. at 485).
Accordingly, we grant the petitions without reaching petitioners’ other contentions, and we vacate the SSM exemption. See New Jersey, 517 F.3d at 583 (citing Allied Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)).
Not the last word on PSD
According to Trish McCubbin (HT comments on Envlawprofessors), EPA Administrator Steve Johnson issued a memo Thursday finding that CO2 is not a "regulated" pollutant for purposes of the PSD program, meaning that new or modified power plants do not have to install control technology for CO2 emissions. McCubbin points out that the memo responds to a decision last month by the Environmental Appeals Board in the Deseret Power matter that raised the issue -- without deciding -- whether CO2 is a "regulated" pollutant because power plants are required to monitor CO2 emissions under the 1990 Amendments. Johnson determined that mere monitoring requirements do not make a pollutant "regulated" for PSD purposes: he concluded that the PSD BACT and other requirement s are only applicable to pollutants subject to emission limits under other provisions of the Act. Johnson's memo is on EPA's website: Johnson memo re: applicability of PSD to CO2 . EPA's conclusion may be legally correct, but only because EPA has acted so irresponsibly with respect to regulating CO2. However, there are state programs that do regulate CO2 and thus the Johnson memo is not necessarily the last word on PSD applicability. Remember when state NSR and the national NSR programs parted ways in the mid-1990s. EPA at that time said that a state program with more stringent NSR requirements provided the NSR requirements for purposes of CAA enforcement.
Forecast: Cloudy and Rainy
The art and science of climate modeling has improved enormously over the years with both an increasing sophisticated understanding of climatic feedback effects and the empirical knowledge that can set the parameters or values used in the models. A 2005 study by Wentz indicated that global rainfall is increasing about 1.5% per decade, about five times (500%) faster than the value used in the 4th IPCC Assessment Report. A new study by Aumann and his colleagues presented at the fall meeting of the American Geophysical Union found a strong correlation between the frequency of very high clouds and seasonal variations in the average sea surface temperature of the tropical oceans. For every degree Centigrade (1.8 degrees Fahrenheit) increase in average ocean surface temperature, the team observed a 45-percent increase in the frequency of the very high clouds. At the present rate of global warming of 0.13 degrees Celsius (0.23 degrees Fahrenheit) per decade, the team inferred the frequency of these
storms can be expected to increase by six percent per decade. These two studies will help improve climate models since clouds and rain have been "the weakest link in climate prediction," according to Aumann.