Environmental Law Prof Blog

One Reason Why I'm Skeptical of Carbon Markets: UN Suspends CDM Carbon-Offset Verification Firm

Quirin Schiermeier of Nature News reported today Nature link that the UN has suspended the main company that validates carbon-offset projects in developing countries, "sending shockwaves through the emissions-trading business."  Certified emission-reduction credits from verified projects are traded and sold on the carbon emissions market, helping industrialized countries to meet their emissions-reduction targets under the Kyoto Protocol. However, only environmentally sustainable projects that would demonstrably not go ahead without additional revenue from sales of these credits (thus meeting the "additionality" requirement) may be certified.

Det Norske Veritas is the largest verification company, a billion dollar business employing 8000 staff.  In the past four years, DNV validated and certified almost half of the 1,200 projects approved under the CDM.  At its November meeting, the CDM's executive board temporarily withdrew DNV's accreditation after an audit revealed serious flaws in project management. The CDM board did not specify the projects affected by the problems, but indicated that there were problems with the company's internal auditing processes and staff qualifications, with at least one staff member who verified CDM projects without proper sectoral expertise. DNV  cannot propose new CDM projects to the UN for formal approval while suspended.  20–30 projects currently in the process of validation may be delayed and DNV cannot take new projects as long as the suspension remains in effect.  DNV will continue to validate and verify ongoing projects.

CDM projects under way in 51 countries are supposed to save some 250 million tons in greenhouse-gas emissions. The UN hopes the CDM will abate almost 3 billion tons by the end of 2012,

CGD Contribution to Development Index - Environment

Go check out the Center for Global Development's 2007 Commitment to Development Index page.  Its got some great graphics that you have to see to appreciate.  Unsurprisingly, EU countries lead the way on the Center for Global Development's index of commitment to environmentally sustainable development and the US trails the pack, scoring under 3 on a 10 point scale, while EU countries tend to score 6 or above with Norway near 9.  Center for Global Development Commitment to Development Index    CGD reports: Norway tops this year’s environment standings. Its net greenhouse gas emissions fell during 1995–2005, the last ten years for which data are available, thanks to steady expansion in its forests, which absorb carbon dioxide. Also high is Ireland, whose economy grew 6.6 percent per year faster in the same period than its greenhouse gas emissions; and the U.K., which has steadily increased gasoline taxes and supported wind and other renewable energy sources. Spain finishes low as a heavy subsidizer of its fishing industry while Japan is hurt by its high tropical timber imports. The U.S. has not ratified the Kyoto Protocol, the most serious international effort yet to deal with climate change. That gap, along with high greenhouse emissions and low gas taxes, puts the U.S. last. Two notches up, Australia cuts a similar profile, with the highest per-capita greenhouse gas emissions in the group.         The environment component of the CDI compares rich countries on policies that affect shared global resources such as the atmosphere and oceans. Rich countries use these resources disproportionately while poor ones are less equipped to adapt to the consequences, such as global warming. Countries do well if their greenhouse gas emissions are falling, if their gas taxes are high, if they do not subsidize the fishing industry, and if they control imports of illegally cut tropical timber. A healthy environment is sometimes dismissed as a luxury for the rich. But people cannot live without a healthy environment. And poor nations have weaker infrastructures and fewer social services than rich countries, making the results of climate change all the more damaging. A study co-authored by CGD senior fellow David Wheeler predicts that a two-meter sea level rise would flood 90 million people out of their homes, many of them in the river deltas of Bangladesh, Egypt, and Vietnam. The environment component looks at what rich countries are doing to reduce their disproportionate exploitation of the global commons. Are they reining in greenhouse gas emissions? How complicit are they in environmental destruction in developing countries, for example by importing commodities such as tropical timber? Do they subsidize fishing fleets that deplete fisheries off the coasts of such countries as Senegal and India?

 

Bush Administration Land Mines the Interior Department, EPA, and Other Environmental Agencies

The Washington Post reports that the Solicitor of the Interior Department has shifted half a dozen key political appointees – including Robert Comer known for his opposition to the roadless rule and a questionable grazing agreement as well as Matthew McKeown, a mining industry darling – into senior civil service posts. These transfers, called "burrowing," allows political appointees to stay in the government and create obstacles to changing policy direction.  Perhaps the practice should be called "land-mining," given its potential for derailing the peaceful transfer of power:

Between March 1 and Nov. 3, according to the federal Office of Personnel Management, the Bush administration allowed 20 political appointees to become career civil servants. Six political appointees to the Senior Executive Service, the government's most prestigious and highly paid employees, have received approval to take career jobs at the same level. Fourteen other political, or "Schedule C," appointees have also been approved to take career jobs. One candidate was turned down by OPM and two were withdrawn by the submitting agency. The personnel moves come as Bush administration officials are scrambling to cement in place policy and regulatory initiatives that touch on issues such as federal drinking-water standards, air quality at national parks, mountaintop mining and fisheries limits.

As the Washington Post goes on to report, the practice is not an invention of the Bush administration.  However, there has seldom been so striking a change in public sentiment between the 2004 Bush re-election and the precipitous decline in public regard for Bush as manifest in the Obama "tsunami" -- and thus so much reason to jettison the flotsom and jetsom of the Bush years.

WP continues:

The practice of placing political appointees into permanent civil service posts before an administration ends is not new. In its last 12 months, the

Clinton

administration approved 47 such moves, including seven at the senior executive level. Federal employees with civil service status receive job protections that make it very difficult for managers to remove them...In a report dated Oct. 13, 2004, Interior's inspector general singled out Comer in criticizing a grazing agreement that the Bureau of Land Management had struck with a Wyoming rancher, saying Comer used "pressure and intimidation" to produce the settlement and pushed it through "with total disregard for the concerns raised by career field personnel." McKeown -- who as

Idaho

's deputy attorney general had sued to overturn a

Clinton

administration rule barring road-building in certain national forests -- has been criticized by environmentalists for promoting the cause of private property owners over the public interest on issues such as grazing and logging....One career Interior official, who spoke on the condition of anonymity so as not to jeopardize his position, said McKeown will "have a huge impact on a broad swath of the West" in his new position, advising the Bureau of Land Management and the Fish and Wildlife Service on "all the programs they implement." Comer, the official added, will help shape mining policy in his new assignment. "It is an attempt by the outgoing administration to limit as much as possible [the incoming administration's] ability to put its policy imprint on the Department of Interior," the official said...But environmental advocates, and some rank-and-file Interior officials who spoke on the condition of anonymity for fear of hurting their careers, said the reassignments represent the Bush administration's effort to leave a lasting imprint on environmental policy...."What's clear is they could have done this during the eight years they were in office. Why are they doing it now?" said Robert Irvin, senior vice president for conservation programs at Defenders of Wildlife, an advocacy group. "It's pretty obvious they're trying to leave in place some of their loyal foot soldiers in their efforts to reduce environmental protection."

Cabinet Speculation

 Here are some predictions/picks on the Cabinet positions of most significance to environmental matters according to Politico's semi-official leaks.  My picks and comments are in green.

Attorney general: Virginia Gov. Tim Kaine; Eric Holder, who was deputy AG under Clinton and is now with Covington & Burling and led Obama’s vice presidential search; Massachusetts Gov. Deval Patrick; Arizona Gov. Janet Napolitano. Odds on favorite is Holder

Supreme Court nominee: Washington superlawyer Robert Barnett; legal scholar Cass Sunstein; Massachusetts Gov. Deval Patrick; 2nd U.S. Circuit Court of Appeals Judge Sonia Sotomayor of New York; Elena Kagan, dean of Harvard Law School. Consensus is it would most likely be a woman. First nominee has got to be a woman - Kagan is smart and has credibility, but this is a much shorter list than Obama will look at.

Secretary of State: New Mexico Gov. Bill Richardson; Sen. John F. Kerry (D-Mass.); Sen. Richard Lugar (R-Ind)  State is too important to give to a Republican, Kerry's too valuable in the Senate, and Richardson was UN Ambassador so he knows  international diplomacy

Environmental Protection Agency administrator: Former Sen. Lincoln Chafee (R-R.I.); Kathleen McGinty, former head of the Pennsylvania Environmental Protection Agency Again, McGinty is an odds on favorite who knows her stuff

Commerce secretary: Penny Pritzker, Kansas Gov. Kathleen Sebelius, Sen. Olympia Snowe (R-Maine)  Need some Republicans and Olympia Snowe is a liberal one; although she's more valuable in the Senate.  So maybe one of the non-environmental positions will go to a Republican and Obama will stick with a Democrat.  I'd take Sebelius -- she's articulate and mid-Western.

Secretary of the Interior: Rep. Jay Inslee (D-Wash.), Robert F. Kennedy Jr.  This is the position most likely to go to someone who hasn't been in the running.

Secretary of Energy: California Gov. Arnold Schwarzenegger (R), Sen. Jeff Bingaman (D-N.M.); My pick would be Lincoln Chafee, a liberal Republican who understands environmental issues as well as energy issues.  Again, Bingaman's too valuable in the Senate. 

Secretary of Agriculture: Former Iowa Gov. Tom Vilsack, Rep. Collin Peterson (D-Minn.)  Vilsack is odds on favorite.

 

 

 

 

 

Strategic Trade - An Opening for Sustainability

Yesterday the Guardian published an opinion piece by Kevin Gallagher (Washington Consensus Dead?) on Nobel Laureate Paul Krugman's work on strategic trade policy, pointing out that his Nobel Prize is the nail in the coffin of the free trade "Washington consensus."  Krugman explains why it is rational for governments to engage in strategic use of tariffs and subsidies in order to create a niche industry.  The same sort of strategic trade policy makes it rational for governments to engage in strategic use of tariffs and subsidies to support ecological sustainability and social well-being.  Perhaps the pendulum will swing against the free traders enough so that we can protect the global environment through trade and other economic sanctions against nations unwilling to act in a socially and environmentally responsible manner.

Gallagher's opinion:
Last Friday the New York Times quoted the World Bank as saying "There's no question the Washington consensus is dead," indeed it "died at the time of the $700bn bail-out." If the bail-out is death, then awarding Paul Krugman the Nobel prize for economics is the nail in the coffin.

Paul Krugman did not win the Nobel for his popular critiques of Bush-era economic policy in his New York Times column, though the column no doubt helped raise his profile outside the economics profession. The Nobel committee cited Krugman's theoretical contributions to the economics of international trade, the policy implications of which fly in the face of the Washington consensus ( where the mantra is to free up trade every chance you get).

Among Krugman's achievements in the field of international trade is "strategic trade policy". In this work Krugman (and others) showed that tariffs and subsidies to domestic industries can divert profits away from highly concentrated foreign firms and increase a nation's income. Though Krugman himself shies away from prescribing such policy, the textbook example of strategic trade theory is the choice by the Brazilian government to subsidise and develop the aircraft company Embraer. The free-trade theories espoused by the Washington consensus would warn Brazil of the high cost of subsidisation. To free traders, Brazil should focus on its advantage in agricultural products and forget about climbing the manufacturing ladder. Strategic trade theory helps explain why Brazil was willing to gamble in the short term to become one of the finest aircraft manufactures over the long term. They squeezed foreign firms out of the market and carved out a global niche for themselves.

In another classic book, Development, Geography, and Economic Theory, Krugman argued that the government should also play a role in connecting beneficiaries of strategic trade policy to the overall economy. Evoking the work of economists such as Albert O Hirschman and Paul Rosenstein Rodan, Krugman argued that developing countries often needed a "big push" of coordinated government investments to help strategic industries get off the ground and to link the growth of such industry to the economy as a whole.

Problem is, today's trading system is out of whack with these frontier issues in economic thought. In a study published by Boston University's Pardee Centre for the Study of the Longer-Range Future, trade lawyer Rachel Denae Thrasher and I examined the extent to which the World Trade Organisation (WTO) agreements, European Union trade agreements, and United States trade agreements bit into a nation's ability to deploy strategic trade and other industrial policies to benefit from the globalisation process.

We find that in general the world's trading system makes it much more difficult for nations to craft strategic trade and industrial policies for growth and development. Indeed, enshrined in virtually all trade agreements is the "national treatment" idea that says a nation may not treat its domestic industries any differently than foreign ones. That may make sense when rich nations compete against each other, but in a world where 57.6% of the population lives on less than $2.50 per day, one size can't fit all. This restriction is accentuated in provisions for foreign investment, intellectual property, and subsidies.

Interestingly however, we find that there is more "policy space" for innovative growth strategies under the WTO than under most regional trade agreements – especially those pushed by the US. In fact, we find that US-style trade agreements are the most severe in constraining the ability of developing countries to deploy such policy. EU agreements, interestingly, tend to have the same policy space as the WTO.

It doesn't make sense that the World Bank and (implicitly) the Nobel committee are declaring the death of the Washington consensus when the US is choking the ability of nations to use policies that are gaining increasing legitimacy in theory and practice. Change is in the air. As we know in the aftermath of the financial crisis, the US has justified – like never before – a strong role for government in economic affairs. And, of the two presidential candidates, Obama has expressed concern over the direction of US trade policy and has pledged to rethink it. Perhaps these events will make strategic trade and industrial policy rise again.

McCain's Freeze on Discretionary Spending Includes all Energy and other R&D

Jeffrey Mervis of ScienceNOW Daily News [link] reported yesterday that next year's federal budget will not contain even one penny more for scientific research, technology development, and science education if McCain is elected, assuming Congress cannot muster enough votes to override a veto.  McCain intends to freeze all discretionary spending for a year to evaluate all programs.  Democratic Senator Barack Obama (IL), on the other hand, proposes doubling the budgets of many U.S. science agencies over the course of the next decade.

McCain had promised support for R & D in August, but his science aide Brannon said yesterday that there's been no talk within the campaign of allowing any flexibility in the proposed freeze. It would be part of McCain's 2010 budget submission next spring to Congress for the fiscal year that begins in October 2009, should he defeat Obama in November. "Senator McCain realizes that it's difficult to evaluate the effectiveness of basic research," Brannon told Science. "But the freeze applies to the entire budget, most of which doesn't relate to science."

Legislative Climate Change Targets in the 110th Congress

For those of you teaching climate change, WRI has a great comparison of the emission reduction targets of various legislative proposals. WRI analysis of US climate legislation targets The World Resources Institute’s analysis of emissions targets and cumulative emissions budgets attempts to compare on a consistent basis the GHG reductions from explicit carbon caps and complementary policies contained in climate proposals.  Emissions from capped sectors are calculated based on the text of the respective legislation. For sectors that are not covered by the legislation, emissions are estimated to continue uncontrolled in line with projections published by EPA. WRI disclaims: "This analysis is not a projection of actual future emissions under the various proposals nor is it an analysis of economic impacts resulting from the enactment of these policies."

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Findlaw Environmental Law Case Summaries

   

ENVIRONMENTAL LAW CASES

                  

• Kentucky Waterways Alliance v. Johnson
• Geerston Seed Farms v. Monsato Co.
• Wong v. Bush
• Sierra Club v. Johnson
• Ctr. for Biological Diversity v. California Fish and Game Comm'n.

   

To view the full-text of cases you must sign in to FindLaw.com.

   

                           

             

U.S. 6th Circuit Court of Appeals, September 03, 2008
Kentucky Waterways Alliance v. Johnson, No. 065614
In a matter brought under the Clean Water Act (CWA), judgment of district court in favor of defendant Environmental Protection Agency (EPA) is affirmed in part, reversed in part, vacated in part and remanded where: 1) with respect to plaintiffs' challenge to the EPA's approval of Kentucky's categorical exemption of six types of pollution discharges from Tier II review, though the EPA's decision document details the tests conducted to measure each exemption's impact, the document often fails to include the resulting measurements; 2) court cannot review this legal conclusion's reasonableness without the EPA first discussing its assimilative-capacity loss estimates and explaining why it deems them insignificant; 3) EPA's approval of Kentucky's classification of certain waters as eligible for Tier I protection rather than Tier II protection was not arbitrary, capricious, and contrary to law. Case is remanded to EPA so that it may address the deficiencies in its consideration of ! state's de minimis exemptions. Read more...

U.S. 9th Circuit Court of Appeals, September 02, 2008
Geerston Seed Farms v. Monsato Co., No. 07-16458
In a National Environmental Policy Act case, grant of permanent injunction against planting disputed genetically engineered alfalfa seed pending completion by the U.S. Animal and Plant Health Inspection Service (APHIS) of an Environmental Impact Statement and deregulation decision, is affirmed despite the lack of an evidentiary hearing because the district court performed the traditional balancing test and the injunction would last only until completion of APHIS analysis. Read more...

U.S. 9th Circuit Court of Appeals, September 05, 2008
Wong v. Bush, No. 07-16799
In a case alleging First Amendment and National Environmental Protection Act violations by the U.S. Coast Guard in establishing safety zones insulating a private super-ferry from blockade by local protesters, denial of declaratory judgment is affirmed despite plaintiff's standing to sue where: 1) the safety zones established by the Coast Guard did not violate the First Amendment; and 2) the Coast Guard need not consider the secondary environmental effects of the super-ferry itself in the decision to establish safety zones. Read more...

U.S. 11th Circuit Court of Appeals, September 02, 2008
Sierra Club v. Johnson, No. 0711537
In a Clean Air Act case involving a dispute over what triggers the Environmental Protection Agency's statutory duty to object to the issuance of a Title V operating permit, petition to review EPA decision is denied where: 1) EPA Administrator's actions fell within the bounds of his discretion; and 2) a violation notice and civil complaint are merely initial steps in an enforcement action and do not, by themselves, inevitably trigger the EPA Administrator's duty to object under 42 U.S.C. section 7661d(b)(2). Read more...

California Appellate Districts, September 02, 2008
Ctr. for Biological Diversity v. California Fish and Game Comm'n., No. C055059
Judgment overturning rejection of petition is affirmed where the California Fish and Game Commission erred in rejecting at the threshold a petition to add the California tiger salamander to the Commission's list of endangered species, under the California Endangered Species Act (CESA). Read more...

 

OSU scientists establish the value of old growth forests as carbon sinks

Today, OSU scientists and other international researchers are publishing an analysis in Nature that runs counter to 40 years of conventional wisdom.  Their report suggests that old growth forests are usually "carbon sinks" - they continue to absorb carbon dioxide from the atmosphere and mitigate climate change for centuries.

According to the OSU press release:

these old growth forests around the world are not protected by international treaties and have been considered of no significance in the national "carbon budgets" as outlined in the Kyoto Protocol. That perspective was largely based on findings of a single study from the late 1960s which had become accepted theory, and scientists now say it needs to be changed.

"Carbon accounting rules for forests should give credit for leaving old growth forest intact," researchers from Oregon State University and several other institutions concluded in their report. "Much of this carbon, even soil carbon, will move back to the atmosphere if these forests are disturbed."

The analysis of 519 different plot studies found that about 15 percent of the forest land in the Northern Hemisphere is unmanaged primary forests with large amounts of old growth, and that rather than being irrelevant to the Earth's carbon budget, they may account for as much as 10 percent of the global net uptake of carbon dioxide.

In forests anywhere between 15 and 800 years of age, the study said, the net carbon balance of the forest and soils is usually positive – meaning they absorb more carbon dioxide than they release.

"If you are concerned about offsetting greenhouse gas emissions and look at old forests from nothing more than a carbon perspective, the best thing to do is leave them alone," said Beverly Law, professor of forest science at OSU and director of the AmeriFlux network, a group of 90 research sites in North and Central America that helps to monitor the current global "budget" of carbon dioxide.

Forests use carbon dioxide as building blocks for organic molecules and store it in woody tissues, but that process is not indefinite. In the 1960s, a study using 10 years worth of data from a single plantation suggested that forests 150 or more years old give off as much carbon as they take up from the atmosphere, and are thus "carbon neutral."

"That's the story that we all learned for decades in ecology classes," Law said. "But it was just based on observations in a single study of one type of forest, and it simply doesn't apply in all cases. The current data now makes it clear that carbon accumulation can continue in forests that are centuries old."

When an old growth forest is harvested, Law said, studies show that there's a new input of carbon to the atmosphere for about 5-20 years, before the growing young trees begin to absorb and sequester more carbon than they give off. The creation of new forests, whether naturally or by humans, is often associated with disturbance to soil and the previous vegetation, resulting in decomposition that exceeds for some period the net primary productivity of re-growth.

Old growth forests, the study said, continue to sequester carbon for many centuries. And when individual trees die due to lightning, insects, fungal attack or other causes, there is generally a second canopy layer waiting in the shade to take over and maintain productivity.

One implication of the study, Law said, is that nations with significant amounts of old forests may find it somewhat easier to offset greenhouse gas emissions if those forests are left intact. It will also be necessary, she said, for land surface models that attempt to define carbon balance to better characterize function of old forests.

Many of the conclusions from the study were based on data acquired from the AmeriFlux and CarboEurope programs, researchers said. Multiple funding sources included the U.S. Department of Energy, CarboEurope, the European Union, and others. Authors were from institutions in the U.S., Belgium, Germany, Switzerland, France and the United Kingdom.

House Select Committee battles for global warming documents

The House Select Committee on Energy Independence and Global Warming has sought documents related to the Department of Transportation’s assertion that California’s rights to issue regulations to reduce greenhouse gas emissions from motor vehicles using Clean Air Act authority are preempted by the Energy Policy and Conservation Act.  Chairman Ed Markey again asked in August for drafts of the  proposed fuel economy rules and the names of individuals involved in the decision to assert that California motor vehicle standards are preempted by the EPCA.

The Select Committee has been investigating the political influence on the EPA's scientific decisions regarding EPA’s national vehicle emissions regulations.  Markey has indicated that those decisions "were twisted by political forces from deep within the White House," arguing "It’s imperative that we now discover if there were similar machinations within the Department of Transportation trying to shoot down California’s right to reduce global warming pollution from vehicles."

According to the committee, Chairman Markey asked in June for documents and information pertaining to the National Highway Traffic Safety Administration’s (NHTSA’s) Notice of Proposed Rulemaking (NPRM) on fuel economy standards. The NPRM was responding to the energy bill passed in December that raised fuel economy standards to at least 35 miles per gallon by 2020. Chairman Markey asked about the gas price estimates used for creating fuel economy targets, and whether those estimates were high enough to reflect the current and future prices of gas, given the estimates used in the NPRM were below $3 per gallon.

Chairman Markey also asked for information pertaining to California’s rights to proceed with its clean car regulations. The NPRM contained the administration’s view that state regulations to reduce heat-trapping pollution from motor vehicles were preempted by national policy. In subsequent exchanges, when asked for more information on how this decision was reached, and by whom, NHTSA responded that they would not provide any of the documents to the Select Committee because the documents were "pre-decisional." In today's response letter, Chairman Markey notes: "I am not aware of any court that has recognized ‘pre-decisional’ as an adequate basis to withhold documents from a valid Congressional request." The letter further stated that if the agency is relying on a claim of executive privilege to withhold the documents, then that claim should be formally asserted.

Along with a request for the documents themselves, in all forms, Chairman Markey also asks whether any White House or other executive branch officials assisted in drafting NHTSA’s NPRM, and lists of any names, dates of any meetings, conversations, correspondence or any other interactions between NHTSA and other administration officials.

The letters can be found on the Select Committee website and below:

Chairman Markey’s letter calling on NHTSA to stop stonewalling on its views on the California regulations (8.7.08):

http://globalwarming.house.gov/tools/2q08materials/files/0141.pdf

Response from NHITSA General Council (7.28.08):

http://globalwarming.house.gov/tools/2q08materials/files/0140.pdf

Response from Department of Transportation General Counsel (7.28.08):

http://globalwarming.house.gov/tools/2q08materials/files/0142.pdf

Chairman Markey’s original request for information (6.17.08):

http://globalwarming.house.gov/tools/2q08materials/files/0143.pdf

IEA Sees Potential Long-term Reduction in US Oil Demand

The International Energy Agency (IEA link) cut its estimate for global oil demand today based on the changes Americans are making in their lifestyles in response to high gasoline prices and the recession.  North American demand fell 5.3% and 2.9% in July, part of a seven month decline in US demand.  This decrease in demand may be exacerated by OPEC's reduced production: 715,000 barrels per day in August and September, reducing OPEC's production ceiling from 32.2 million barrels per day to 28.8 million barrels per day.                                                                                                                               This appears to be a response to oil prices failing towards $100 per barrel in August.  IEA seemed to be warning OPEC that any attempt to maintain oil prices over $100 per barrel would likely cause long-term changes in behavior and purchasing habits undercutting oil demand in OECD countries and Asian countries, such as Taiwan, Thailand, the Phillipines and Malaysia, are reducing subsidies that have fueled demand.  The extent of reduction in demand may depend upon the extent of China's supposed economic slowdown.

EPA Sued for Failure to Regulate CO2 in Oil Refinery NSPS

Planet Ark reports:

New York, California, Connecticut, Delaware, Massachusetts, Maine, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, and Washington, as well as the District of Columbia and the City of New York,  are suing federal environmental regulators over greenhouse gas emissions from oil refineries. The states and cities contend EPA violated the federal Clean Air Act by refusing to issue new source performance standards to control global warming pollution emissions from oil refineries.  States have also sued the EPA to require it to regulate global warming emissions from power plants (2006 petition for review) and protect the states' right to regulate pollution emissions from automobiles.  The suit was filed in the US Court of Appeals for the D.C. Circuit.  About 15 percent of US industrial emissions of carbon dioxide come from crude refineries, which burn oil as they make gasoline and jet fuel. The suit seeks to force the EPA to control oil refinery emissions of greenhouse pollution and to order the agency to adopt the standards. Planet Ark link  NY AG's office link

Findlaw Environmental Law Case Summaries

   

ENVIRONMENTAL LAW CASES

                  

• Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin.
• El Comite para el Bienestar de Earlimart v. Warmerdam
• James River Ins. Co. v. Ground Down Engineering, Inc.
• Sierra Club v. Envtl. Prot. Agency

Sign into Findlaw to read full cases

             

U.S. 9th Circuit Court of Appeals, August 18, 2008

Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., No. 06-71891
States' and public interest organizations' petition for review of a rule issued by the NHTSA setting corporate average fuel economy tandards for light trucks, including many SUVs and other vehicles, is granted where: 1) the rule is arbitrary and capricious, contrary to the Energy Policy and Conservation Act (EPCA) in its failure to monetize the value of carbon emissions, failure to set a backstop, failure to close an SUV loophole, and failure to set fuel economy standards for all vehicles in a particular weight class; and 2) an Environmental Assessment was inadequate under NEPA and petitioners raised a substantial question as to whether the rule may have a significant impact on the environment. (Substituted opinion) Read more...

U.S. 9th Circuit Court of Appeals, August 20, 2008
El Comite para el Bienestar de Earlimart v. Warmerdam, No. 06-16000, 06-16131
In a challenge under section 304 of the Clean Air Act (CAA) brought by a coalition of community organizations against California state officials responsible for designing and implementing a state air quality plan, challenging the process by which EPA approval of the plan was obtained and the final outcome of the approval process, summary judgment for plaintiff and a remedies order are reversed and vacated where, because section 304 of the CAA provides jurisdiction only to enforce an "emission standard or limitation," and because the challenged conduct did not implicate such a standard or limitation, the court was without jurisdiction to order a remedy. Read more...

U.S. 11th Circuit Court of Appeals, August 20, 2008
James River Ins. Co. v. Ground Down Engineering, Inc. , No. 07-13207
In plaintiff-insurer's claim seeking a declaratory judgment that it is not obligated to provide a legal defense to defendant-insured, dismissal of claim is vacated where: 1) district court erred in holding that the pollution exclusion does not apply; and 2) the pollution exclusion clearly covers the claims asserted against defendant. Read more...

Teaching in the 21st Century -- An Experimental Offering -- Hands of God

Dear friends and colleagues, Here's my video offering called "Hands of God."  I am busy taking a course in Communication Theology -- and I'm reading about how 21st century students learn differently and may even have brains structured differently than those of us who are 20th century babies..  Obviously, if you are here, you are somewhat familiar and comfortable with new media.  I am just experimenting with how to use YouTube and other new media to communicate with and teach our 21st century digital native students.  If you haven't tried this, give it a whirl -- but be forewarned -- a 5 minute video, even one as imperfect as this, is about a 25 hour investment.  It may only be worth the effort if the message is really important.  That's why I bothered with this one.

D.C.Circuit - EPA's delay on regulating CO2 is just alright with us

The D.C. Circuit denied Sierra Club's petition for mandamus (PDF Mandamus Petition) in Massachusetts v. EPA with a per curiam decision.  (Mandamus Denial  PDF) Judge Tatel wrote a thoughtful opinion concurring that mandamus was not warranted, but dissenting in the Court's decision to deny mandamus, rather than hold the petition in abeyance.  He observed that the Court regularly holds the Agency's feet to the fire by requiring regular reports on the Agency's progress on remand.  Tatel referenced the shenanigans of the Bush Administration in tabling EPA's proposed regulation. 

Boxer releases new, improved Senate global warming bill

Sen. Barbara Boxer (D-Calif.) released a substitute global warming bill (PDF) today with significant changes from the version approved last December in the Environment and Public Works Committee.    It includes an $800 billion tax break to help Americans cope with high energy prices, greater use of international forestry programs and a cost-containment program that allows extra greenhouse gas emission allowances to be auctioned off if the price for carbon credits reaches a certain level.

Some of you may not follow the bouncing ball of global warming legislation, so here's my summary.

• The bill caps annual US greenhouse emissions at 5775 million tons in 2012, reducing the cap every year until it reaches 1732 in 2050 -- a 70% reduction from projected 2012 emissions.

• Covered facilities are required to obtain allowances for every carbon dioxide equivalent (CDE) of greenhouse gases that they emit

• Covered facilities include:
  • (A) any entity using more than 5,000 metric tons of coal in a year;
  • (B) natural gas processing plants (except in Alaska)
  • (C) natural gas producers in Alaska and federal waters within the Alaska OCS;
  • (D) natural gas importers, including liquefied natural gas
  • (e) petroleum or coal-based manufacturers of fuel (i.e. refineries) that causes GHG emissions;
  • (F) importers of oil, coke, coal or petroleum based liquids or fuels that cause GHG emissions;
  • (G) any entity manufacturing  more than 10,000 carbon dioxide equivalents of non‐HFC GHG;
  • (H) importers of more than10,000 carbon dioxide equivalents of non‐HFC greenhouse gas; and
  • (I) manufacturers of HFCs.

• Allowances may be obtained through several means: allocation, regular auctions, cost-containment auctions, domestic offset projects (up to 15% annual US allowances), international offsets and allowances (up to 5% annual US allowances so long as and to the extent that domestic projects are less than 15%).

• Covered facilities that fail to secure enough allowances must pay three times (3x) the market value of the allowances that they are short and must provide an equal or greater amount of allowances the next year.  They also are subject to enforcement and citizen suits under the Clean Air Act.

• An advanced clean fuel efficiency standard is set for fleets at the average 2010 GHG emissions in 2010, reduced to the baseline adjusted for renewable fuels in 2012-2022, reduced to 5% less than baseline by 2023, and finally reduced to 10% less than baseline by 2028.

• A carbon duty or tariff is placed on covered goods from countries that do not make a comparable effort to the United States.

• An enormous variety of programs are created that either (1) directly allocate allowances to protect the interests of particular groups affected by the cap and trade program or (2) provide for auctions of allowances to create funds for various carbon mitigation and adaptation efforts.

• State regulations of GHG are protected by a broad savings clause for state regulation of greenhouse gases:   
  (a) IN GENERAL.—Except as provided in subsection (b), nothing in this Act precludes, diminishes, or abrogates the right of any State to adopt or enforce—
  (1) any standard, limitation, prohibition, or cap relating to emissions of greenhouse gas; or
  (2) any requirement relating to control, abatement, mitigation, or avoidance of emissions of greenhouse gas.
  (b) EXCEPTION.—Notwithstanding subsection (a), no State may adopt a standard, limitation, prohibition, cap, or requirement that is less stringent than the applicable standard, limitation, prohibition, or requirements under this Act.

• EPA may authorize tribes to be treated as states for purposes of the Act.

• Enforcement will occur through the enforcement and citizen suit provisions of the Clean Air Act.

• Judicial review will be largely in accord with the judicial review provisions of the Clean Air Act.

• The President is given authority to make an emergency proclamation modifying provisions of the Act for up to 6 months where the President determines that a national security, energy security, or economic security emergency exists, and that it is in the paramount interest of the United States to modify any requirement under this Act to minimize the effects of the emergency.

Here are some of the details about the allocation and funding programs created by the bill:

• Allocation programs include:

• Carbon intensive manufacturers of iron, steel, pulp, paper, cement, rubber, chemicals,
  glass, ceramics, sulfur hexafluoride, or aluminum and other non‐ferrous metals will be allocated 11% of the annual allowances for the first 10 years, with the allocation reduced by 1% per year until it reaches 0 in 2030. EPA may allocate 10% of these allowances to petroleum refiners.

• Petroleum refiners also are guaranteed their own allocation of 2% of annual allowances from 2012-2017 and 1% of annual allowances from 2018-2030.

• Natural gas processing plants (Alaska), natural gas producers, and natural gas importers will receive 3/4 of 1% of the annual allowances through 2050.

• Power plants will be allocated 18% of the annual allowances in 2012, which will reduce to 2.75% of the annual allowances by 2030.

• States heavily dependent on coal and manufacturing will receive 3% of the annual allowances initially, increasing gradually to 4% for 2031-2050

• A Renewable Energy Program will be allocated 4% of annual allowances from 2012-2030 and 1% of allowances from 2031-2050.

• States that led in reducing emissions, as scored annually according to their historical State investments and achievements in reducing greenhouse‐gas emissions and increasing energy efficiency, will be allocated 4% of the annual allowances in 2012, gradually increasing to 10% for 2032-2050.  However, states that have established their own cap-and-trade program.

• Celluosic Biofuel producers will allocated 1% of annual allowances in the first 2 years, 3/4 of 1% from 2014-2017, and 1% from 2018-2030.

• Allowance funded programs include:                

• A Climate Change Worker Training and Assistance Fund funded with 1% of annual allowances for 2012-2017, rising to 2% for 2018-2027, 3% for 2028-2030, 4% for 2031-2019, and dropping to 3% for 2039-2050.

• A Consumer Assistance Fund will initially be allocated 3.5% of the annual allowances for auction, increasing gradually to 15% from 2035-2050.

• A Transportation Emission Reduction Fund will initially be allocated 1% of the annual allowances for auction, increasing to 2.75% between 2022-2050.

• A Energy Efficiency and Conservation Block Grant Program will be allocated 2% of the annual allowances for auction.

• An Efficient Energy Use Program will auction 2.25% of annual allowances to reward efficient buildings, efficient equipment, and efficient manufacturing (divided equally).

• A Zero or Low Carbon Generation Technology Fund will provide incentives for manufacturers by auctioning 1.75% of annual allowances 2012-2021, 2% 2022-2030, and 1% 2031-2050.  Advanced research into such technologies will be funded from auctions of .25% of annual allowances over the entire period.

• A Carbon Sequestration and Storage Early Deployment Program will provide financial support for early CSS projects through a "Kick-Start" Program, funded by auctioning 1% of annual allowances from 2012-2025.  Long-term incentives will be created by allocating 3% of allowances to those projects from 2012-2025, 4% from 2026-2030, dropping to 1% from 2031-2050.  Bonus allowances will also be made available, starting at 2% in 2012 and gradually dropping to 1/2 of 1% in 2050.  The legislation sets the following performance standards to qualify for allowances:  (1) Existing units that commence operation of CCS equipment in 2015 or earlier must treat at least the amount of flue gas equivalent to 100 MW of output and meet a 85%  capture and sequester standard; (2) Existing units that commence operation of CCS equipment after 2016 must achieve an average annual emissions rate of not more than 1,200 pounds of CO2/MWH; (3) New units for which construction of the unit commenced prior to July 1, 2018 must achieve an average annual emissions rate of not more than 800 pounds of CO2/MWH; (4) New units commenced on or after July 1, 2018 must achieve an average annual emissions rate of not more than 350 pounds of CO2/MWH; (5) Units at covered facilities that are not electric generation units must achieve a 85% average annual capture standard.

                   The bill also contains a variety of provisions necessary to create sequestration capacity.

• Commercial fleet owners who purchase clean hybrid vehicles will be rewarded from 2012-2017 through an auction of 1/2 of 1% of annual allowances

• A Federal Natural Resources program will fund federal lands firefighting efforts and implementation of a Federal Wildlife Adaption Strategy with funds from auctioning 3% of allowances in 2012, 2.5% from 2013-2022, 3% from 2023-2024, 4% from 2025-2031, and 5% from 2032-2050.

• International efforts will be funded also through 1% for forestry capacity building, 1/2 of 1% for clean development technology deployment, and most significantly 1% in 2012 gradually rising to 7% in 2039-2050 for international climate change adaptation efforts.

• Last, but decidedly not least, reduction of the federal deficit will be funded by 5.75% of allowances in 2012, rising gradually to 19.75% in 2031, dropping to 17.75% for 2032-33, and stabilizing at 16.75% for 2034-2050.

 

CO2 Inventory Data Source

Like local data to pique your students' interest???  Want to know the facilities that you should target to make big gains in CO2 reduction???  Project Vulcan has made its complete database available -- and it produces cool maps like the one to the left.  2002 CO2 Inventory Data
Small databases with state by state and county by county inventories for 8 sectors are also available.  Enjoy!

An example of what a student might do: I looked at the Oregon inventory regarding mobile emissions.  It turns out that 75% of Oregon's emissions come from 15 of its 35 counties. Vulcan_2002_oregon_co2_inventory.xls   Since most of those are counties where urbanites support measures to control CO2, it might be possible to design a state program to reduce vehicle miles traveled in just those 15 counties -- and garner the support of rural legislators.  The idea is obvious -- but here are the numbers to prove it.

An example of the data available on a county by county basis is this Oregon

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.