Environmental Law Prof Blog

Huh?: The Bush Administration Response to Massachusetts v. EPA and the Rule of Law

It is quite fashionable for American politicians and pundits to suggest that somehow the United States has a unique role in spreading the rule of law throughout the world.  The response of the Bush administration to the Supreme Court's decision certainly calls into question the United States' qualifications as an epitome of diligent observance of the rule of law.  Almost one year ago, the Supreme Court held that EPA's denial of the petition was arbitrary and capricious and remanded the case for further proceedings consistent with its opinion.  It concluded, as it always does, "It is so ordered."   EPA dutifully prepared an "endangerment" finding on the petition and forwarded it for White House review.  The White House is simply sitting on the finding, now suggesting that somehow the new CAFE rules excuse it from complying with the Court's mandate.  And now EPA has been forced to dodge and weave in oversight hearings on the Hill and decline to provide documents to Congress concerning its response.  Even if one does not regard the Bush administration's current attempt to avoid the clear import of the Supreme Court's decision as blatantly illegal or unconstitutional, the interplay between EPA, the White House, and Congress in the past year in response to the Supreme Court should be required reading for any student of law or government.

If you're interested in raising the issue, you might start with:
Massachusetts v. EPA decision  (the most relevant excerpt is posted below)
House Oversight Committee's letter to EPA's Administrator Steve Johnson
Hearing held by House Select Committee on Global Warming

EPA has refused to provide the documents that would establish the role of the White House and EPA's political management in drafting the endangerment finding required to comply with the Supreme Court's decision. e-NewsUSA Report on EPA Refusal 

Other excellent substantive blog postings include:
Center for American Progress - Robert Sussman
Hill Heat
Warming Law

J

 

Pertinent portions of Massachusetts v. EPA
April 2, 2007

...
The scope of our review of the merits of the statutory
issues is narrow. As we have repeated time and again, an
agency has broad discretion to choose how best to marshal
its limited resources and personnel to carry out its delegated
responsibilities. See Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837, 842–845
(1984). That discretion is at its height when the agency
decides not to bring an enforcement action. Therefore, in
Heckler v. Chaney, 470 U. S. 821 (1985), we held that an
agency’s refusal to initiate enforcement proceedings is not
ordinarily subject to judicial review. Some debate remains,
however, as to the rigor with which we review an
agency’s denial of a petition for rulemaking.
There are key differences between a denial of a petition
for rulemaking and an agency’s decision not to initiate an
enforcement action. See American Horse Protection Assn.,
Inc. v. Lyng, 812 F. 2d 1, 3–4 (CADC 1987). In contrast to
nonenforcement decisions, agency refusals to initiate
rulemaking “are less frequent, more apt to involve legal as
opposed to factual analysis, and subject to special formali-
————ties, including a public explanation.” Id., at 4; see also 5
U. S. C. §555(e). They moreover arise out of denials of
petitions for rulemaking which (at least in the circumstances
here) the affected party had an undoubted procedural
right to file in the first instance. Refusals to promulgate
rules are thus susceptible to judicial review, though
such review is “extremely limited” and “highly deferential.
” National Customs Brokers & Forwarders Assn of
America, Inc. v. United States, 883 F. 2d 93, 96 (CADC
1989).
EPA concluded in its denial of the petition for rulemaking
that it lacked authority under 42 U. S. C. §7521(a)(1)
to regulate new vehicle emissions because carbon dioxide
is not an “air pollutant” as that term is defined in §7602.
In the alternative, it concluded that even if it possessed
authority, it would decline to do so because regulation
would conflict with other administration priorities. As
discussed earlier, the Clean Air Act expressly permits
review of such an action. §7607(b)(1). We therefore “may
reverse any such action found to be . . . arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law.” §7607(d)(9).
VI
On the merits, the first question is whether §202(a)(1) of
the Clean Air Act authorizes EPA to regulate greenhouse
gas emissions from new motor vehicles in the event that it
forms a “judgment” that such emissions contribute to
climate change. We have little trouble concluding that it
does. In relevant part, §202(a)(1) provides that EPA “shall
by regulation prescribe . . . standards applicable to the
emission of any air pollutant from any class or classes of
new motor vehicles or new motor vehicle engines, which in
[the Administrator’s] judgment cause, or contribute to, air
pollution which may reasonably be anticipated to endanger
public health or welfare.” 42 U. S. C. §7521(a)(1).

Because EPA believes that Congress did not intend it to
regulate substances that contribute to climate change, the
agency maintains that carbon dioxide is not an “air pollutant
” within the meaning of the provision.
The statutory text forecloses EPA’s reading. The Clean
Air Act’s sweeping definition of “air pollutant” includes
“any air pollution agent or combination of such agents,
including any physical, chemical . . . substance or matter
which is emitted into or otherwise enters the ambient
air . . . .” §7602(g) (emphasis added). On its face, the
definition embraces all airborne compounds of whatever
stripe, and underscores that intent through the repeated
use of the word “any.”25 Carbon dioxide, methane, nitrous
oxide, and hydrofluorocarbons are without a doubt “physical
[and] chemical . . . substance[s] which [are] emitted
into . . . the ambient air.” The statute is unambiguous.26
Rather than relying on statutory text, EPA invokes
——————postenactment congressional actions and deliberations it
views as tantamount to a congressional command to refrain
from regulating greenhouse gas emissions. Even if
such postenactment legislative history could shed light on
the meaning of an otherwise-unambiguous statute, EPA
never identifies any action remotely suggesting that Congress
meant to curtail its power to treat greenhouse gases
as air pollutants. That subsequent Congresses have eschewed
enacting binding emissions limitations to combat
global warming tells us nothing about what Congress
meant when it amended §202(a)(1) in 1970 and 1977.27
And unlike EPA, we have no difficulty reconciling Congress
’ various efforts to promote interagency collaboration
and research to better understand climate change28 with
the agency’s pre-existing mandate to regulate “any air
pollutant” that may endanger the public welfare. See 42
U. S. C. §7601(a)(1). Collaboration and research do not
——————conflict with any thoughtful regulatory effort; they complement
it.29
EPA’s reliance on Brown & Williamson Tobacco Corp.,
529 U. S. 120, is similarly misplaced. In holding that
tobacco products are not “drugs” or “devices” subject to
Food and Drug Administration (FDA) regulation pursuant
to the Food, Drug and Cosmetic Act (FDCA), see 529 U. S.,
at 133, we found critical at least two considerations that
have no counterpart in this case.
First, we thought it unlikely that Congress meant to ban
tobacco products, which the FDCA would have required
had such products been classified as “drugs” or “devices.”
Id., at 135–137. Here, in contrast, EPA jurisdiction would
lead to no such extreme measures. EPA would only regulate
emissions, and even then, it would have to delay any
action “to permit the development and application of the
requisite technology, giving appropriate consideration to
the cost of compliance,” §7521(a)(2). However much a ban
on tobacco products clashed with the “common sense”
intuition that Congress never meant to remove those
products from circulation, Brown & Williamson, 529 U. S.,
at 133, there is nothing counterintuitive to the notion that
EPA can curtail the emission of substances that are putting
the global climate out of kilter.
Second, in Brown & Williamson we pointed to an unbroken
series of congressional enactments that made sense
only if adopted “against the backdrop of the FDA’s consistent
and repeated statements that it lacked authority under
the FDCA to regulate tobacco.” Id., at 144. We can point to
no such enactments here: EPA has not identified any congressional
action that conflicts in any way with the regula-
—tion of greenhouse gases from new motor vehicles. Even if
it had, Congress could not have acted against a regulatory
“backdrop” of disclaimers of regulatory authority. Prior to
the order that provoked this litigation, EPA had never
disavowed the authority to regulate greenhouse gases, and
in 1998 it in fact affirmed that it had such authority. See
App. 54 (Cannon memorandum). There is no reason, much
less a compelling reason, to accept EPA’s invitation to read
ambiguity into a clear statute.
EPA finally argues that it cannot regulate carbon dioxide
emissions from motor vehicles because doing so would
require it to tighten mileage standards, a job (according to
EPA) that Congress has assigned to DOT. See 68 Fed.
Reg. 52929. But that DOT sets mileage standards in no
way licenses EPA to shirk its environmental responsibilities.
EPA has been charged with protecting the public’s
“health” and “welfare,” 42 U. S. C. §7521(a)(1), a statutory
obligation wholly independent of DOT’s mandate to promote
energy efficiency. See Energy Policy and Conservation
Act, §2(5), 89 Stat. 874, 42 U. S. C. §6201(5). The two
obligations may overlap, but there is no reason to think
the two agencies cannot both administer their obligations
and yet avoid inconsistency.
While the Congresses that drafted §202(a)(1) might not
have appreciated the possibility that burning fossil fuels
could lead to global warming, they did understand that
without regulatory flexibility, changing circumstances and
scientific developments would soon render the Clean Air
Act obsolete. The broad language of §202(a)(1) reflects an
intentional effort to confer the flexibility necessary to
forestall such obsolescence. See Pennsylvania Dept. of
Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (“[T]he
fact that a statute can be applied in situations not expressly
anticipated by Congress does not demonstrate
ambiguity. It demonstrates breadth” (internal quotation
marks omitted)). Because greenhouse gases fit well within
the Clean Air Act’s capacious definition of “air pollutant,”
we hold that EPA has the statutory authority to regulate
the emission of such gases from new motor vehicles.
VII
The alternative basis for EPA’s decision—that even if it
does have statutory authority to regulate greenhouse
gases, it would be unwise to do so at this time—rests on
reasoning divorced from the statutory text. While the
statute does condition the exercise of EPA’s authority on
its formation of a “judgment,” 42 U. S. C. §7521(a)(1), that
judgment must relate to whether an air pollutant
“cause[s], or contribute[s] to, air pollution which may
reasonably be anticipated to endanger public health or
welfare,” ibid. Put another way, the use of the word “judgment
” is not a roving license to ignore the statutory text.
It is but a direction to exercise discretion within defined
statutory limits.
If EPA makes a finding of endangerment, the Clean Air
Act requires the agency to regulate emissions of the deleterious
pollutant from new motor vehicles. Ibid. (stating
that “[EPA] shall by regulation prescribe . . . standards
applicable to the emission of any air pollutant from any
class of new motor vehicles”). EPA no doubt has significant
latitude as to the manner, timing, content, and coordination
of its regulations with those of other agencies.
But once EPA has responded to a petition for rulemaking,
its reasons for action or inaction must conform to the
authorizing statute. Under the clear terms of the Clean
Air Act, EPA can avoid taking further action only if it
determines that greenhouse gases do not contribute to
climate change or if it provides some reasonable explanation
as to why it cannot or will not exercise its discretion
to determine whether they do. Ibid. To the extent that
this constrains agency discretion to pursue other priorities
of the Administrator or the President, this is the congressional
design.
EPA has refused to comply with this clear statutory
command. Instead, it has offered a laundry list of reasons
not to regulate. For example, EPA said that a number of
voluntary executive branch programs already provide an
effective response to the threat of global warming, 68 Fed.
Reg. 52932, that regulating greenhouse gases might impair
the President’s ability to negotiate with “key developing
nations” to reduce emissions, id., at 52931, and that
curtailing motor-vehicle emissions would reflect “an inefficient,
piecemeal approach to address the climate change
issue,” ibid.
Although we have neither the expertise nor the authority
to evaluate these policy judgments, it is evident they
have nothing to do with whether greenhouse gas emissions
contribute to climate change. Still less do they
amount to a reasoned justification for declining to form a
scientific judgment. In particular, while the President has
broad authority in foreign affairs, that authority does not
extend to the refusal to execute domestic laws. In the
Global Climate Protection Act of 1987, Congress authorized
the State Department—not EPA—to formulate United
States foreign policy with reference to environmental matters
relating to climate. See §1103(c), 101 Stat. 1409. EPA
has made no showing that it issued the ruling in question
here after consultation with the State Department. Congress
did direct EPA to consult with other agencies in the
formulation of its policies and rules, but the State Department
is absent from that list. §1103(b).
Nor can EPA avoid its statutory obligation by noting the
uncertainty surrounding various features of climate change
and concluding that it would therefore be better not to
regulate at this time. See 68 Fed. Reg. 52930–52931. If the
scientific uncertainty is so profound that it precludes EPA
from making a reasoned judgment as to whether greenhouse
gases contribute to global warming, EPA must say
so. That EPA would prefer not to regulate greenhouse
gases because of some residual uncertainty— which, contrary
to JUSTICE SCALIA’s apparent belief, post, at 5–8, is
in fact all that it said, see 68 Fed. Reg. 52929 (“We do not
believe . . . that it would be either effective or appropriate
for EPA to establish [greenhouse gas] standards for motor
vehicles at this time” (emphasis added))—is irrelevant.
The statutory question is whether sufficient information
exists to make an endangerment finding.
In short, EPA has offered no reasoned explanation for
its refusal to decide whether greenhouse gases cause or
contribute to climate change. Its action was therefore
“arbitrary, capricious, . . . or otherwise not in accordance
with law.” 42 U. S. C. §7607(d)(9)(A). We need not and do
not reach the question whether on remand EPA must
make an endangerment finding, or whether policy concerns
can inform EPA’s actions in the event that it makes
such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837, 843–844
(1984). We hold only that EPA must ground its reasons
for action or inaction in the statute.
VIII
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.

Drink Water for Life

This article is written by Denise Olivera, Columbia School of Journalism, about the Drink Water for Life Challenge originated by 1st Congregational Church, U.C.C. of Salem, Oregon.  The article was covered by the Great Reporter newsservice link The congregation pledges to give up some of its lattes, sodas, etc. during Lent and give the money to our Pure Water Fund.  In celebration of Lent, spring, or World Water Day, please chose to follow this lead.

EPA Sets Primary Ozone Standard at 75 ppb Ignoring Scientific Advice; Sets Unlawful Secondary Standard Based on Bush's Personal Order

EPA's Clean Air Scientific Advisory Committee recommended a primary health standard no higher than 70 ppb and EPA's Children's Health Protection Advisory Committee recommended the standard be set at 60 ppb because children are more vulnerable to air pollution.  EPA estimates that excess deaths of 1700 - 5700 will occur from the new standard as opposed to a 65 ppb standard.

In addition, EPA set the secondary standard identical to the primary standard, not based on science, but based on an order from the President.

Juliet Eilperin of the Washington Post reported yesterday:

Documents obtained by The Washington Post indicate that White House officials chafed at the idea that they could not factor costs into the ozone rule, which requires setting one standard for protecting health and a separate one for protecting public welfare, and that the president himself intervened in the process Monday. In a March 6 memo to the EPA, Susan E. Dudley of the Office of Management and Budget questioned the need for two different ozone limits, noting that the Clean Air Act's definition of public welfare includes "effects on environmental values." The EPA's Marcus C. Peacock replied the next day that it is important to keep in mind that "EPA cannot consider costs in setting a secondary standard."... The rule's preamble indicates Bush settled the dispute March 11, saying the president concluded the secondary standard should be set "to be identical to the new primary standard, the approach adopted when ozone standards were last promulgated."

Apparently industry has actively lobbied to keep the standard at 84 ppb to avoid the estimated cost to industry of $7.6 - $ 8.8 billion a year.  EPA estimates that the new standard will yield $2 billion to $19 billion in health benefits.  For many years, I've maintained that having the government prepare these estimates under EO 12866  (or allowing industry to provide agency decision-makers with its estimates) skews the process towards an illegal cost-benefit analysis.

It is no surprise that faced with numbers, President Bush interfered in what should have been a legal/scientific decision.  Legal because the secondary standard must be set to protect public welfare and there is no basis for assuming that the secondary NAAQS should be the same as the primary NAAQS.  Scientific because only the science should matter: cost and benefit numbers are not what EPA is supposed to consider under the CAA.  Bush had no business making any decision about this.  Bush should not have those cost-benefit numbers in front of him because it leads to bad choices.  Don't put cookies in front of a starving child unless you want them to eat.  Don't put a stack of million dollar bills in front of a thief unless you want to part with them. 

It was the Attorney General's responsibility to tell EPA to set the primary and secondary standards according to science, not cost-benefit estimates.  Period.  End of discussion.  Apparently, some officials at the Justice Department attempted to tell the President just that.

Juliet Eilperin of the Washington Post reported today:

EPA officials initially tried to set a lower seasonal limit on ozone to protect wildlife, parks and farmland, as required under the law. While their proposal was less restrictive than what the EPA's scientific advisers had proposed, Bush overruled EPA officials and on Tuesday ordered the agency to increase the limit, according to the documents. "It is unprecedented and an unlawful act of political interference for the president personally to override a decision that the Clean Air Act leaves exclusively to EPA's expert scientific judgment," said John Walke, clean-air director for the Natural Resources Defense Council....The president's order prompted a scramble by administration officials to rewrite the regulations to avoid a conflict with past EPA statements on the harm caused by ozone....Solicitor General Paul D. Clement warned administration officials late Tuesday night that the rules contradicted the EPA's past submissions to the Supreme Court... As a consequence, administration lawyers hustled to craft new legal justifications for the weakened standard.

I don't envy my former colleagues at the Justice Department who get to defend this embarrassingly illegal action.

Plug in to NRDC's Blog

There's a little something for everyone here -- but some of the most prominent environmental lawyers in the world are blogging here.  NRDC Blog

Pulitzer Prize Anyone??? Only if you write by March 12th

Well, no prize, but...You can become a Pulitzer Center Citizen Journalist!!! 

• Pick an issue. Issues list   "Should US environmental standards apply when multinational companies develop the petroleum resources of fragile ecosystems such as Peru's Amazon forest?" should be of particular interest. Extraterritorial application of US environmental standards

 

• Read the corresponding coverage at Pulitzer’s website. Your article should draw on information from the Pulitzer Center articles; but you may also include include original reporting of your own or firsthand experiences. The goal is to provide fresh insight in a compellingly written article.

• Share your perspective on the issue and write your best article at Helium by March 12th.

Election 2008 -- The Candidates Speak in Their Own Words -- Part II:Hillary Clinton

During the last year, Foreign Affairs published a series of pieces on the 2008 presidential election, allowing candidates to frame their foreign policy in their own words. Foreign Affairs Election 2008 I am reviewing those pieces for discussions of global environmental issues, including climate change.  I find this a particularly useful approach because it allows candidates to move beyond sound bites and into the substance of what they believe. 

I expect to look at all of the current candidates: Democratic and Republican. The first candidate I am reviewed was Barack Obama. Today's post is Hillary Clinton.

Here's the foreign policy of Hillary Clinton with respect to the environment (especially global warming) in her own words:

The tragedy of the last six years is that the Bush administration has squandered the respect, trust, and confidence of even our closest allies and friends. At the dawn of the twenty-first century, the United States enjoyed a unique position. Our world leadership was widely accepted and respected, as we strengthened old alliances and built new ones, worked for peace across the globe, advanced nonproliferation, and modernized our military....At the same time, we embarked on an unprecedented course of unilateralism:..Our withdrawal from the Kyoto Protocol and refusal to participate in any international effort to deal with the tremendous challenges of climate change further damaged our international standing....At a moment in history when the world's most pressing problems require unprecedented cooperation, this administration has unilaterally pursued policies that are widely disliked and distrusted....

We need more than vision, however, to achieve the world we want. We must face up to an unprecedented array of challenges in the twenty-first century, threats from states, nonstate actors, and nature itself...Finally, the next president will have to address the looming long-term threats of climate change and a new wave of global health epidemics....

But China's rise is also creating new challenges. The Chinese have finally begun to realize that their rapid economic growth is coming at a tremendous environmental price. The United States should undertake a joint program with China and Japan to develop new clean-energy sources, promote greater energy efficiency, and combat climate change. This program would be part of an overall energy policy that would require a dramatic reduction in U.S. dependence on foreign oil....

We must find additional ways for Australia, India, Japan, and the United States to cooperate on issues of mutual concern, including combating terrorism, cooperating on global climate control, protecting global energy supplies, and deepening global economic development...

As president, I will make the fight against global warming a priority. We cannot solve the climate crisis alone, and the rest of the world cannot solve it without us. The United States must reengage in international climate change negotiations and provide the leadership needed to reach a binding global climate agreement. But we must first restore our own credibility on the issue. Rapidly emerging countries, such as China, will not curb their own carbon emissions until the United States has demonstrated a serious commitment to reducing its own through a market-based cap-and-trade approach.

We must also help developing nations build efficient and environmentally sustainable domestic energy infrastructures. Two-thirds of the growth in energy demand over the next 25 years will come from countries with little existing infrastructure. Many opportunities exist here as well: Mali is electrifying rural communities with solar power, Malawi is developing a biomass energy strategy, and all of Africa can provide carbon credits to the West.

Finally, we must create formal links between the International Energy Agency and China and India and create an "E-8" international forum modeled on the G-8. This group would be comprised of the world's major carbon-emitting nations and hold an annual summit devoted to international ecological and resource issues.

ExxonMobil Deliberately Misled Blogosphere About Funding Global Warming Denialists

Yesterday's post on ExxonMobil (2/17/08)  highlighted that it had funded the Frontiers of Freedom and its Center for Science and Public Policy (CSPP link ) during 2006, contrary to its claim that it was not funding global warming denialists.  You may wonder about the context in which ExxonMobil made this claim.

Remember last year when the IPCC 4th Assessment report came out – the Guardian wrote a story about American Enterprise Institute soliciting result-oriented denialist analyses of the IPCC report and that report included information about ExxonMobil’s funding of AEI. Guardian 2/2/07 Report.  During conversations in late January and early February, 2007 with me and other bloggers, Maria Surma Manka from Green Options [Giant Part I Post; Giant Part II Post], Jesse Jenkins from Watthead [ExxonMobil Posts], Tom Yulsman from Prometheus [Post on earlier conversations -- I can't recall whether Tom participated in the February call, but I believe he did], Stuart Staniford from The Oil Drum [ExxonMobil AEI Post], Ken Cohen, ExxonMobil’s Vice President for Public Affairs had assured us that ExxonMobil was no longer funding controversial denialist groups like Competitive Enterprise Institute and it did not fund AEI with the intent that they engage in denialist analyses.  The first conference call occurred in late January and the second on the same day that the Guardian story and the IPCC report came out.

 

Cohen spent considerable time before the IPCC report came out in January 2007 trying to convince us that ExxonMobil was changing its Neanderthal stripes, truly accepted that anthropogenic global warming was a serious problem, and was ready to take a responsible role in the future discussions of how to reduce GHG emissions. Admittedly Cohen did that in the truly diplomatic way of saying that ExxonMobil had not effectively communicated its position that anthropogenic global warming is real and that GHG emissions need to be reduced.

 

During the February call, Cohen knew that the Guardian’s report about ExxonMobil’s funding of AEI and AEI’s alleged solicitation of result-oriented denialist analyses threatened to undercut public perception of ExxonMobil as a responsible actor. Indeed, those reports ended up on CNN. So, Cohen went out of his way to schedule this call about the Guardian’s allegations.

 

As Maria recounted that discussion:

“We had no knowledge that this was going on,” insisted Cohen. He explained that Exxon funds a lot of different groups, and “when we fund them, we want good analysis." Exxon does not condone what AEI did, but Cohen confirmed that it does continues to fund AEI, although other groups like the Competitive Enterprise Institute are not funded by them anymore.

Cohen assured us that Exxon is “trying to be a constructive player in the policy discussion and not associate [themselves] with those that are marginalized and are not welcome in that discussion.” The IPCC report “is what it is,” and Exxon does not believe in engaging in scientific research that preordains an answer. Cohen:

…that's the issue with AEI: Are they preordaining an answer?…I can understand taking a market approach or a government interventionist approach, but this is not a question of trying to find who’s right or who’s wrong. Let’s let the process work.

But, I asked, how can you grant AEI nearly two million dollars (n.b. slsmith -over the entirety of AEI operations, not annually) and not know what they’re doing with the money? Turns out that Exxon conveniently funds the “general operations” of AEI, not specific programs that would allow them to track how the money is being used. Perhaps Exxon needs to think hard next time before it funds an organization so clearly disinterested in constructive solutions.

Cohen was consistently explicit in Exxon's position that global warming is happening and mainly caused by human activities. If that is true, then how will Exxon fight the huge misperception that it’s still the planet's largest naysayer? Cohen conceded that the company needed to do a better job of communicating its position on global warming, rather than allowing a fact sheet or news release on their website to do the work.

 

Cohen kept telling us that the 2006 contribution report was coming out, but declined to give us any specifics about ExxonMobil’s contributions to AEI or other groups, but he said Competitive Enterprise Institute was no longer funded.  Cohen continued to defend AEI as a responsible, albeit very conservative, think tank doing legitimate policy research. And frankly, I supported him on that score during the calls because at least some of the work done by AEI is just that. And I was not nearly as skeptical as others about ExxonMobil's protestations of innocence.  See my post on the AEI matter ELP Blog Post on AEI

 

Here’s why yesterday I called ExxonMobil’s behavior in early 2007 deliberately misleading. Initial Post on 2006 Funding Report  

 

As the quoted material above indicates, Cohen in early February 2007 led us to believe that ExxonMobil was no longer in the denialist camp and did not condone AEI soliciting denialist analysis (if indeed that’s what they had done). He claimed that ExxonMobil no longer associated with marginalized denialist groups. He suggested that the 2006 report would indicate that ExxonMobily had disassociated itself from the Competitive Enterprise Institute, which brought us the classic, sadly humorous “Carbon dioxide: they call it pollution, we call it life!” TV commercials. You tube link to CEI Energy commercial.

 

From this discussion, it seems clear that Cohen knew precisely which “public information and policy research” organizations that were funded by ExxonMobil during 2006. Yet, while he perhaps sat with the 2006 report in front of him and refused to release its contents, the 2006 contribution report later showed that in 2006 ExxonMobil provided $ 180,000 to Frontiers of Freedom and the CSPP, the policy center it created with ExxonMobil's funding several years ago. P.S. Cohen denied funding CSPP in an e-mail today, but unless my sight is failing: CSPP is reported as the Science and Policy Center under Frontiers of Freedom Download 2006 ExxonMobil's "public information and policy research" contributions If that’s not supporting denialists and associating with marginalized denialist groups, I don’t know what is!

Take a good look at the high quality analysis of global warming that CSPP provides:

 

(1) the amicus curiae brief filed in Mass. v. EPA by lawyers from the Competitive Enterprise Institute

(2) Dr. Ball's The Science Isn't Settled powerpoint presentation - Dr. Ball is the Chairman of the Natural Resources Stewardship Project which describes its first project on understanding climate change as "a proactive grassroots campaign to counter the Kyoto Protocol and other greenhouse gas reduction schemes." NRSP describes Dr. Ball as the "lead participant in a number of recent made-for-TV climate change videos, The Great Global Warming Swindle."

(3) Joe Daleo's Congressional Seminar on global warming in March 2007 devoted to disputing the IPCC's report and arguing that anthropogenic global warming from greenhouse gas emissions are not a real problem.

(4) CSPP's May 2007 rebuttal of Al Gore's testimony, which suggests there is no scientific consensus that CO2 emissions are causing global warming

(5) a nonsensical piece on "Gore's Guru," positing that because Dr. Revelle, who died in 1991, had cautioned in 1988 and 1991 against drawing rash conclusions about global warming might still take that position.  I call it nonsensical because Dr. Revelle suggested that we wait 10-20 years to see if the trends continued.  We've waited and now we've answered that question: between 1998 and 2008 we witnessed incredibly dramatic global warming and the scientific community has spent the last 10-20 years studying whether indeed human-caused GHG emissions are responsible for much of that warming.  We and ExxonMobil know its answer to that question.

Obviously, the blogosphere is not the only group worried about ExxonMobil's funding choices.  Britain's national academy of scientists, The Royal Society,  in September 2006 took ExxonMobil to task about its funding of denialist groups.  Royal Society letter

Well, maybe ExxonMobil finally pulled the plug on FF and its “Science and Policy” center in 2007 (and so Cohen was just tap-dancing around the embarrassing, but not on-going, reality of funding denialists). Although, FF's CSPP might survive: it apparently does have funding from two major tobacco companies!

Maybe ExxonMobil has rethought its policy on funding organizations whose primary contribution to the climate change discussion is to distribute continued attacks on those who conclude that the current state of climate science supports an effective policy to reduce GHG emissions.  I’d like to think so – but we won’t know until ExxonMobil releases its 2007 contributions report. I requested that Cohen release it to me; he declined.

However, even if it had defunded FF and CSPP (and other denialist groups), I’m not sure I’d believe that ExxonMobil hadn’t found new denialist outlets to fund.

 

If the Guardian and other media or the blogosphere produce a big enough stir on this story, perhaps it will. But I am astonished that, just as it was selling itself as a responsible player on global warming, ExxonMobil would act so irresponsibly and so deceptively. And I am deeply embarrassed at my naievete in believing what Ken Cohen and ExxonMobil were selling about ExxonMobil’s born again conversion to a responsible position on anthropogenic global warming.

 

Watch out, though, ExxonMobil knows that the question is no longer whether global warming is real, but what to do about it. You can bet it is smart enough and devious enough to fund a lot of “public information and policy research” that will muddle policy discussions about global warming legislation and may assure that not much is done to regulate GHG emissions from oil and gas and that what is done doesn’t cut hardly at all into ExxonMobil’s astounding profits: $41 billion for 2007 and almost $ 12 billion in the 4th quarter of 2007 alone. ExxonMobil profits post

I have a modest suggestion for ExxonMobil: do not fund organizations whose published information, analysis, and research on global warming or climate change has primarily sought to undercut the conclusions reached by the joint statement published in 2005 by 11 national academies of science, including the United States, Canada, Great Britain, France, Germany, Italy, Japan, Russia, India, Brazil and China .  That statement is linked here:   Joint Science Academies' Statement: Global Response to Climate Change

Unless and until ExxonMobil stops funding the sort of stuff that Center for Science and Public Policy is peddling, I hope that the new President and Congress will not believe a single word that is said about global warming policy by ExxonMobil or any of denialist and anti-regulatory "public information and policy research" organizations it funds.

 

 

 

Foreign Affairs - The Candidates in Their Own Words --

During the last year, Foreign Affairs published a series of pieces on the 2008 presidential election, allowing candidates to frame their foreign policy in their own words. Foreign Affairs Election 2008  I am reviewing those pieces for discussions of global environmental issues, including climate change.  I find this a particularly useful approach because it allows candidates to move beyond sound bites and into the substance of what they believe. 

I expect to look at all of the current candidates: Democratic and Republican. The first candidate I am reviewing is Barack Obama.  I chose Obama first in part because I am torn between Clinton and Obama.  Although I respect John McCain's leadership on climate change, I could not vote for a Republican after the 1994 - 2006 Republican congressional legacy and the debacle of Bush's presidency for virtually every freedom and human need.  I also disagree with McCain's position on Iraq.

In his own words, Barack Obama primarily addresses climate change as a matter of global policy.  He ties the US response to global warming to his overall foreign policy in this way:

Strengthened institutions and invigorated alliances and partnerships are especially crucial if we are to defeat the epochal, man-made threat to the planet: climate change. Without dramatic changes, rising sea levels will flood coastal regions around the world, including much of the eastern seaboard. Warmer temperatures and declining rainfall will reduce crop yields, increasing conflict, famine, disease, and poverty. By 2050, famine could displace more than 250 million people worldwide. That means increased instability in some of the most volatile parts of the world.

As the world's largest producer of greenhouse gases, America has the responsibility to lead. While many of our industrial partners are working hard to reduce their emissions, we are increasing ours at a steady clip -- by more than ten percent per decade. As president, I intend to enact a cap-and-trade system that will dramatically reduce our carbon emissions. And I will work to finally free America of its dependence on foreign oil -- by using energy more efficiently in our cars, factories, and homes, relying more on renewable sources of electricity, and harnessing the potential of biofuels.

Getting our own house in order is only a first step. China will soon replace America as the world's largest emitter of greenhouse gases. Clean energy development must be a central focus in our relationships with major countries in Europe and Asia. I will invest in efficient and clean technologies at home while using our assistance policies and export promotions to help developing countries leapfrog the carbon-energy-intensive stage of development. We need a global response to climate change that includes binding and enforceable commitments to reducing emissions, especially for those that pollute the most: the United States, China, India, the European Union, and Russia. This challenge is massive, but rising to it will also bring new benefits to America. By 2050, global demand for low-carbon energy could create an annual market worth $500 billion. Meeting that demand would open new frontiers for American entrepreneurs and workers.

D.C. Circuit vacates the delisting and mercury rules

The D.C. Circuit just vacated the Delisting and Clean Air Mercury Rules.  New Jersey v. EPA decision
I have not read the whole decision.  But one of the implication I am most interested in is the court's vacating the delisting rule.  It seems to me that this decision opens the door for carbon dioxide from power plants to be regulated under section 112 of the Clean Air Act.  Section 112, with its Maximum Achievable Control Technology T-based standard, might be an attractive way to use the existing Clean Air Act provisions to regulate carbon dioxide.

Candidates Compete for Green Title

After the Bush administration legacy, it is refreshing to see both Democratic and some Republican candidates competing for the title of Mr. or Ms. Green. See the comparison in Grist.

Harvard Open Paper Competition -- Climate Policy Framework

SPECIAL PAPER COMPETITION - open to all

CLOSING DATE: JULY 1, 2008

The Harvard Project on International Climate Agreements invites submission of papers focused on the design of international climate policy architectures.  Papers should propose a complete policy framework to succeed the Kyoto Protocol in the post-2012 period.   

The Harvard Project will select one or more submitted papers and award winning authors an honorarium of US$3,000 per paper.   The Harvard Project will publish the winning paper through the Project’s Working Paper Series and website: www.belfercenter.org/climate.

Papers should be submitted as a PDF file attachment by email to climate@harvard.edu by July 1, 2008.  Include “HARVARD PROJECT PAPER” on the subject line of the email.  The paper should include the following: the title of the paper, name and institutional affiliation of author(s) and their disciplines on the title page; a one-page abstract; and text not too exceed 10,000 words.  Only English-language papers will be considered in the competition.  Email submissions should also include a PDF file attachment of the lead author’s curriculum vitae.

The Harvard Project will acknowledge receipt of all submissions by email.  Notification of acceptance will be made by September 1, 2008. 

This call for papers is open to policy practitioners, scholars, students, and others in all fields from developed and developing countries.  Professors, researchers, students, and others affiliated with Harvard University or Resources for the Future are not eligible to participate in this competition.

Criteria for Evaluating Papers

The Harvard Project will evaluate the submitted papers based on how effectively they address the following questions:

(1) What incentives does the policy framework provide for participation and compliance?

(2) Is the policy approach robust to various economic, political, and environmental shocks as well as the resolution of uncertainty over time?

(3) Is it politically feasible to transition from the Kyoto Protocol to the proposed policy architecture?  How does the proposed approach address major issues raised in the Bali Action Plan, including mitigation, adaptation, technology, and financial mechanisms?

(4) What are the equity implications of the proposal?

(5) How does the proposal pursue cost-effective mitigation of climate change risks?

(6) How does the proposed framework provide the basis for satisfying the ultimate objective of the Framework Convention on Climate Change (Article 2)?

(7) What are the costs and benefits of the proposed policy architecture, to the extent these can be identified?   

For examples of climate policy architectures, please refer to the proposals described in:

Architectures for Agreement: Addressing Global Climate Change in the Post-Kyoto World, Joseph E. Aldy and Robert N. Stavins, eds., Cambridge University Press, 2007.

Summaries of these proposals can also be found on the Harvard Project website: www.belfercenter.org/climate.

About the Harvard Project on International Climate Agreements

The goal of the Harvard Project on International Climate Agreements is to help identify key design elements of a scientifically sound, economically rational, and politically pragmatic post-2012 international policy architecture for global climate change. We are drawing upon leading thinkers from academia, private industry, government, and non-governmental organizations from around the world to construct a small set of promising policy frameworks, and then disseminate and discuss the design elements and frameworks with decision makers. The Harvard Project on International Climate Agreements is co-directed by Robert N. Stavins, Albert Pratt Professor of Business and Government and Director of the Harvard Environmental Economics Program, and Joseph E. Aldy, Fellow at Resources for the Future, a non-partisan, non-advocacy research institute in Washington, DC. For news, research results, and more information, see the Project’s website at www.belfercenter.org/climate.  To sign up for email alerts, please go to http://belfercenter.ksg.harvard.edu/subscribe.html and click on the “Harvard Project on International Climate Agreements” box.   

Major funding for the project has been provided by the Climate Change Initiative of the Doris Duke Charitable Foundation (www.ddcf.org ). Additional funding has been provided by Christopher P. Kaneb, AB 1990, Harvard College and the James M. and Cathleen D. Stone Foundation.


Best regards,

Joe Aldy and Rob  Stavins

Joseph E. Aldy
Co-Director, Harvard Project on International  Climate Agreements
Fellow, Resources for the Future
(202)  328-5091
Aldy@rff.org

Robert N. Stavins
Co-Director, Harvard  Project on International Climate Agreements
Albert Pratt Professor of  Business and Government, Harvard Kennedy School
(617)  495-1820
robert_stavins@Harvard.Edu

Robert C. Stowe
Project  Manager, Harvard Project on International Climate Agreements
(617)  496-4265
robert_stowe@harvard.edu

Sasha Talcott
Communications  Director, Harvard Project on International Climate Agreements
(617)  495-7831
Sasha_Talcott@harvard.edu

British Petroleum agrees to pay $70 million USD for environmental crimes

Acting Attorney General Peter D. Keisler announced yesterday that the energy company British Petroleum (BP) has agreed to pay approximately 70 million dollars in fines and restitution for environmental crimes. This includes a criminal fine of $50 million for Clean Air Act violations resulting from an explosion at BP's Texas City refinery in 2005.

"This is the largest fine ever assessed to a single entity under the Clean Air Act. And this is the first criminal prosecution under a section of the Act specifically created to prevent accidental releases that result in death of serious injury," said Keisler.

BP has also agreed to pay a $12 million criminal fine, $4 million in community service payments, and $4 million in criminal restitution for Clean Water Act violations associated with pipeline leaks of crude oil in Alaska. Additionally, BP agreed to three years of probation for the Clean Air Act and Clean Water Act violations.

"BP committed serious environmental crimes in our two largest states, with terrible consequences for people and the environment" said Granta Nakayama, EPA’s Assistant Administrator for Enforcement and Compliance Assurance. "Today's agreement sends a message that these types of crimes will be prosecuted."

The fines are part of BP's plea agreement to pay more than $373 million for environmental crimes, fraud and market manipulation. BP and several of its employees were charged by an indictment issued by a federal grand jury in the Northern District of Illinois with conspiracy to manipulate the price of propane in 2004, wire fraud, and several violations of the Commodity Exchange Act. BP will pay $303 million in restitution and criminal and civil fines for these crimes under the terms of a  deferred prosecution agreement.

Read the Department of Justice's press release.

Kansas denies air quality permit for expansion of coal-fired power plant over climate change concerns

The Kansas Department of Health and Environment has denied an air quality permit for the expansion of a coal-fired power plant because the expansion would cause a significant increase in carbon dioxide emissions. One commentator suggested that this may be the first instance where expansion of a power plant has been denied solely because of climate change concerns.

In a press release dated October 18, 2007, Secretary Roderick L. Bremby of the Kansas Department of Health and Environment (KDHE) announced his decision to deny Sunflower Electrical Cooperative's application for an air quality permit to expand operation of its Holcomb, Kansas coal-fired power generation facility. Bremby cited several state laws granting him authority to deny or modify an air quality permit to protect the health of persons or the environment. "I believe it would be irresponsible to ignore emerging information about the contribution of carbon dioxide and other greenhouse gases to climate change and the potential harm to our environment and health if we do nothing,” said Bremby.

KDHE's website makes reference to the Intergovernmental Panel on Climate Change Fourth Assessment Report, the United States Supreme Court's decision in Massachusetts v. EPA, and a policy statement issued by the Center for Disease Control and Prevention as background information in support of the Secretary's decision. The website also contains a link to a letter jointly submitted by the Attorneys General of eight states, including California and New York, urging KDHE to deny the permit. The letter states that "[c]limate change is the single greatest environmental challenge facing the world today" and that "effective action is necessary at the national, regional and state level...to achieve the necessary reductions in CO2 emissions."

 

Ruth Norton Smith (Nov 27, 1921 - Oct 14, 2007)

Ruth Norton Smith died peacefully in Boulder, Colorado  on Sunday, October 14, 2007 after enjoying her full measure of life. 

Ruth was born in Oklahoma on November 27, 1921 in a tent in Oklahoma.  She was raised during the Depression years, moving frequently as her family farmed and followed the tunneling, mining, and other work available to her father.  Ultimately, her family settled in southern California.  There Ruth met the love of her life, Herbert Frank Smith, a carpenter and union organizer, whom she married on June 4, 1941. 

In WW II, while her husband served in the Navy in the South Pacific, Ruth became a Rosie the Riveter, building bombers, and then joined the Women’s Army Corps, serving as a nurse.  After the war, they settled in the Los Angeles area, where she became a real estate broker and the mom of two children, Greg in 1948 and Susan in 1953.

In 1955, her family moved to Colorado where she worked side by side with her husband to build two of the largest home-building companies in Colorado, Happy Homes and Fireside Homes, and a prominent real estate firm.  When she left real estate and home-building in the late 1960s, Ruth became a political and market researcher for Research Services, Inc. and later became a researcher for the U.S. Census Bureau, from which she retired in 1989.

Ruth was a life-long Democratic political activist with a passion for peace, civil rights, and all aspects of social justice.  She served in every capacity: running political campaigns, serving as a precinct committee woman, county, congressional district, and state delegate, pollwatcher, and election judge.  She worked with Metro Denver Fair Housing center as a realtor, helping the first African-American families in Jefferson County to find housing.  She volunteered with youth mentoring programs in Four Points and with Metro Denver Urban Coalition, Another Mother for Peace, Meals on Wheels, and countless other organizations. 

Ruth was too busy with her family, volunteer work and career for many hobbies.  She thrived on the stimulating conversations born by inviting friends and guests from all over the world and from every walk of life to dinner.  She also found great pleasure in reading, traveling and attending theatre and opera performances.

Ruth was a warm, intelligent, extroverted vibrant woman who loved and was loved by virtually everyone she met.   Her loss will be sorely missed by the many friends and family she has left behind, including her sister Lorene, her brother Fred, her son Greg, her daughter Susan, and her grandchildren Clint Smith, Brent Smith, Nathanial Smith-Tripp and Sarah Smith-Tripp.  Her family and friends will gather at Mt. Vernon Country Club on Sunday, October 21, 2007 at 10:30 am for a celebration of her life.  The family requests that no flowers be sent and suggests donations to Meals on Wheel or a charity of your choice.

Thank you to Read/Write Web

Read/Write Web has listed Environmental Law Prof Blog prominently in its list of the 35 best environmental blogs. [35 best environmental blogs]  Thanks!

A Modest Proposal

As my Climate Change and Energy class was talking on Tuesday, I floated a modest proposal. 

Cap and trade CO2 emissions at existing power plants and other industrial consumers of fossil fuels to meet the 80% decrease from 1990 level by 2050 goal, but also put in place a little command and control regulation.  With respect to new coal-fired (and I suppose natural gas) plants, impose a uniform, national technology-based performance standard under the Clean Air Act requiring new plant carbon dioxide emissions to be equal to or less than the emissions from IGCC with carbon sequestration and storage [i.e. roughly zero].  To assure a level playing field, impose a ban on licensing of any new nuclear power plant unless and until there are fully permitted, environmentally safe locations for permanent storage of all nuclear waste produced from existing plants and the plant to be licensed.   This would assure that every new power plant built be roughly carbon neutral and more environmentally benign.

While arguably burdensome NSPS and NSR requirements for new power plants  previously created strong incentives for utilities and others to continue to use old plan