Environmental Law Prof Blog

Zg Plater, Pat Parenteau and others to appear at 30th Anniversary Symposium of TVA v. Hill

Here is the announcement:

“A Symposium on TVA v. Hill:
A 30-Year Retrospective on the Legendary Snail Darter Case”

at The University of Tennessee College of Law, Knoxville, Friday, April 18.
The Symposium will start at noon EDST, and you are welcome to join via Webcast.  The Symposium website has a variety of intersting materials.Symposium Website link   The WEBCAST itself can be accessed at Webcast Link   The different sections of the webcast (which will have to be individually cued, starting at noon), are

Welcome
The Little T Valley:  Home of the Snail Darter
The Saga of How a Citizen Suit Goes National
The TVA History of the Darter Case
The Snail Darter Case in a National Perspective
Overview Wrap-Up Panel

Exactly 30 years before this coming Friday the Supreme Court heard the oral arguments in Tennessee Valley Authority v. Hiram Hill, et al., perhaps the most dramatic national legal story to come out of Tennessee in the past 75 years. Developing over the course of most of a decade, the Tennessee lawsuit— the little endangered snail darter fish versus TVA’s Tellico Dam — became a cultural icon, famous or infamous around the world.

The University of Tennessee College of Law’s thirty-year darter-versus-dam symposium offers a beneficial opportunity finally to put the case into an academic forum and accurate perspective, free of the spins, disinformation, and politicking that graced its years of notoriety, 1973-1980. Thirty years later the elements of the controversy have become broadly clear — the dam project was never a hydro project, but a recreational and land development scheme that was found to be economically dysfunctional from the start, in a unanimous decision  by the world’s first “God Committee” session under the ESA. Within a year, however, an appropriations rider nevertheless ended the case and the river. The merits of this saga will be addressed objectively in an academic forum, and lessons drawn.

Presenters include Dr. David Etnier who discovered the endangered species, several farmers who were displaced by Kelo-like condemnations, Zygmunt Plater who spent six years on the judicial, agency, and congressional battles in the case, Hank Hill & Peter Alliman who shaped the litigation effort as students at UT College of Law, Patrick Parenteau who provided sage support for the citizens’ efforts in Washington D.C. over three years of the case, Prof. Bruce Wheeler who co-authored an intensive internal history of TVA’s campaign to build the dam, and LSU Prof. Ken Murchison who wrote a recent book on the legal history of the case.

A bar journal cover story on the case can be accessed at Tennesee Bar Assn

Please join us electronically if you cannot be with us in person!

Supreme Court Grants Cert to Consider Whether to Reverse the Second Circuit's Decision that CWA Cooling Water Intake Structure Technology-Based Rules Cannot be Based on Cost-Benefit Analysis

The U.S. Supreme Court has granted certiorari in the Riverkeeper v. US EPA (Riverkeeper II), 475 F.3d 83 (2d Cir. 2007), which remanded EPA rules on power plant cooling water intake structures that included a number of utility-friendly provisions.  Even so, the industry has estimated that implementation of the rules will cost $ 1 billion.  According to Jim May, the Solicitor General argued against cert.  E & E reports that the US opposes the 2d Circuit decision on the merits.  Petitioners naturally expressed enthusiasm about the Court's grant of cert.  EE quoted the Entergy spokesman as saying: 

The high court "recognizes the national importance of EPA's authority and responsibility to balance the extra cost of regulations ... with the benefits that might be provided,"..."The Supreme Court should take the opportunity to establish rationality in this analysis ... and re-establish EPA's authority to draw a line in the sand about costs that are significantly greater than the benefit they create for the environment"

In Riverkeeper II, 2d Cir opinion pdf the Second Circuit held that CWA 316(b) mandated use of "best technology available" for cooling water intake structures at power plants and did not permit use of cost-benefit analysis, although cost could be considered to determine benchmark technology or to engage in cost-effectiveness analysis.  The court concluded that EPA must explain how the technology selected by EPA “approached” the performance of closed cycle cooling.  The court also held that  EPA exceeded its authority by (1) permitting existing plants to meet national performance standards via use of restoration measures and (2) including a site-specific “cost-benefit” variance.  The court sustained EPA regulation of existing as well as new power plants. Finally, the court held that two provisions, the inclusion of a site-specific “cost-cost” variance and the categorical inclusion in “existing facilities” of new units that are part of same industrial operation, violated the APA notice and comment requirements.

Recent Opinions Available through BNA

BNA recently published the following opinions.  For those of you not familiar with environmental law, BNA frequently obtains and publishes opinions that are not readily available through other sources.  subscribers can access the full test -- for a free trial or to subscribe contact BNA at http://web.bna.com or call BNA Customer Relations at 800-372-1033, Mon. - Fri. 8:30 am - 7:00 pm (ET).

California Merchant Vehicle Rules Restricting PM, NOx, and SO2 emissions from marine vessel engines within 24 miles of California coast are preempted by the Clean Air Act:(1) CAA preempts state standards regulating nonroad engine emissions unless California receives approval for specific standards from Environmental Protection Agency; (2) agency did not seek approval for its rules; (3) even though rules only apply to non-new engines, preemption under act applies to regulation of both existing and new engines; (4) agency's rules are standards under act; and (5) rules are not "in-use requirements" not subject to preemption under act. See Pacific Merchant Shipping Ass'n v. California Air Resources Board (9th Cir. 2/27/08)

9th Circuit stayed preliminary injunction prohibiting sonar testing off California coast because: (1) federal district court did not explain why injunction could not be tailored to authorize testing with mitigation measures court previously approved, (2) Navy presented substantial case on appeal, (3) Navy will be harmed absent stay, and (4) public interest in national defense militates in favor of granting stay. See NRDC v. Navy Department (9th Cir. 8/31/07)

Successor corporation claims that CERCLA 106 administrative order violates due process dismissed: (1) order did not deprive successor of protected property or liberty rights, (2) successor has meaningful opportunity to challenge order in court, (3) government's role as potentially responsible party potentially liable for cleanup of site does not render issuance of administrative order unconstitutional, and (4) Section 120(a)(1) of CERCLA only waives government's sovereign immunity and does not establish any substantive rights that Section 106 orders could violate. See Raytheon Aircraft Co. v. United States (D. Kan., 8/10/07)

Summary judgment issued for NMFS regarding claim that NMFS Hatchery Fish Policy without EIS violated NEPA.   ESA procedures displace NEPA as to listing determinations, critical habitat designations and any other action taken pursuant to the listing policy: (1) NEPA purposes were served by service providing public with notice and opportunity to comment on listing policy, (2) service considered alternatives proposed in public comments, and (3) ESA environmental protection procedures that displace NEPA EIS procedures as to listing determinations and critical habitat designations will apply to any action taken pursuant to listing policy. See Trout Unlimited v. National Marine Fisheries Service (W.D. Wash. 6/13/07)

Findlaw Environmental Law Case Summaries

These environmental law case summaries are provided by Findlaw.  To read the whole text of the cases, sign into Findlaw.

U.S. 1st Circuit Court of Appeals, April 08, 2008
Commonwealth of Massachusetts v. US, No. 07-1482, 07-1483
In an action where Massachusetts sought to participate directly in a re-licensing proceeding of two nuclear energy plants as a party before the U.S. Nuclear Regulatory Commissions (NRC) issues its renewal decision, petition for review of NRC's dismissal of the Commonwealth's hearing request is denied where: 1) Massachusetts sought the wrong path, as a matter of law, in seeking to raise safety issues as a party in the licensing proceedings; 2) Massachusetts retains a meaningful opportunity to seek judicial review under the procedural course advanced by the agency; and 3) the agency has not issued a final order regarding the rulemaking petition for purposes of judicial review. Read more...

U.S. 1st Circuit Court of Appeals, April 10, 2008
Esso Standard Oil Co. v. Lopez-Freytes, No. 07-1218
An order which permanently enjoined defendants, several members and officials of the Puerto Rico Quality Board, from imposing a $76 million fine on plaintiff is affirmed over claims that: 1) the district court should have abstained from exercising jurisdiction pursuant to the Younger abstention doctrine; and 2) in any event, the court erred in concluding that there existed bias necessitating the imposition of the injunction. Read more...

U.S. 9th Circuit Court of Appeals, April 10, 2008
US v. Vasquez-Ramos, No. 06-50553,06-50694
Denial of defendants' motion to dismiss their indictments for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit in violation of the Bald and Golden Eagle Protection Act (BGEPA), and the Migratory Bird Treaty Act (MBTA), is affirmed where, pursuant to prior circuit precedent which remains binding, the prosecutions did not violate the Religious Freedom Restoration Act (RFRA). Read more...

California Appellate Districts, April 09, 2008
Comm. to Save the Hollywoodland Specific Plan and Hollywood Heritage v. City of Los Angeles, No. B197018
In an action to compel a city to rescind its permit for a wooden fence that a homeowner had constructed atop a historic granite walls in Hollywoodland, denial of petitioners' writ of mandate is affirmed and reversed in part where: 1) although under the terms of Hollywoodland Specific Plan (HSP) and the Municipal Code, the city properly granted an exception to the HSP; nevertheless 2) the city improperly granted an exemption under the California Environmental Quality Act. Read more...

California Appellate Districts, April 10, 2008
Comm. for Green Foothills v. Santa Clara County Bd. of Supervisors, No. H030986
In a case primarily addressing the limitations period for challenging a public agency's decision under CEQA, dismissal pursuant to demurrer is reversed and remanded where the trial court incorrectly sustained defendant's demurrer without leave to amend on grounds that the proceedings were necessarily time barred by either Public Resource Code section 21167 or Government Code section 65009. Read more...

 

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.

SCOTUS commentary on Exxon Valdez argument

The SCOTUS blog commentary seems to track my view that SCOTUS will limit punitives. SCOTUS blog  The context in which the Supreme Court is deciding the case, maritime law, is interesting.  The court is acting as a common law court and developing common law rules.  So, in theory, it could write any rule, including one that follows State Farm.  But, if I understand the context correctly, due process still applies.  So even its common law rule will have to comport with State Farm.  Right? 

More expert commentary on Exxon Valdez -- Sturley on vicarious liability

The Wall Street Journal Law Blog posted comments by Michael Sturley who helped prepare ExxonMobil's brief.WSJ Law Blog   He didn't make predictions, but did highlight the vicarious liability argument that EM should not be held liable for Hazelwood's actions because they were against policy and he was not high enough in the corporation.  I find this fascinating.  In the criminal context, federal criminal statutes have been interpreted to hold corporations vicariously liable for actions of all employees within the scope of employment and that having a policy against the action does not insulate the corporation.  Why, pray tell, would we apply a different test in a punitive damages context?

Expert commentary on the Exxon Valdez Argument -- Prof. Amy Wildermuth on the Court's "affinity for the trinity"

Professor Amy Wildermuth, University of Utah, worked on an amicus brief in support of the respondents in the Exxon case and has offered these extensive comments on the argument. Wildermuth reaction In sum, her commentary agrees with my conclusion that the Court is quite interested in a possible limit of two-to-one--"an affinity for the trinity" that she asserts can be traced back to prior cases.  She points out, however, that no common law court has ever adopted that kind of ratio limit; instead, it has been exclusively legislatures that have adopted such limits.  She also raises the interesting question of whether the base for any such ratio might be reevaluated in light of Justice Kennedy's citation of the general criminal statute that uses "gross loss" as its base.

The Exxon Valdez argument -- what's law got to do with it, got to do with it?

At least for our result-oriented friend Justice Scalia, its all about the money.  Yesterday when the Exxon Valdez punitive damages case was argued before the U.S. Supreme Court, plaintiffs' counsel Jeffrey Fisher suggested hopefully that the justices had agreed to hear the case because of an unsettled aspect of maritime law, Scalia said sharply: "That," the justice said, "and $3.5 billion."  SCOTUS argument transcript for Exxon Valdez

So count the votes.

Votes to overturn the appellate court's decision reducing the verdict to $ 2.5 billion and award no punitive damages: Scalia, Roberts, Thomas.  Roberts would argue the corporation cannot be punished without culpability.  Scalia and Thomas would argue no punitive damage award is ever appropriate.

Votes to reverse and remand for punitive damages to roughly $ 800,000, which would be twice the compensatory damages consistent with the rule of thumb suggested previously in State Farm: Kennedy, Breyer, and Souter.

Votes to affirm: Ginsberg, Stevens.  Ginsberg showed her sympathies.  Stevens limited his questions to those about Exxon's responsibility for the Captain's actions -- phrased in a way that suggests he believes Exxon is liable.

My guess.  6-2 limiting damages to twice the amount, with concurring opinions by scalia and roberts.  Alito is not participating.  Lots of media are talking about the consequences of a 4-4 split, which would affirm.  I don't think there's any chance of that.

Judge Redden Approves Steady State Order on the Columbia River dam operations

Judge Redden  signed an order continuing the 2007 FCRPS operations through 2008.  US DOJ proposed the rollover in order to allow National Fisheries to focus on producing a solid final biological opinion.  The order and other information on the federal caucus' work to protect and recovery listed Columbia Basin fish fish at www.salmonrecovery.gov.  

 

SCOTUS hears lengthy argument on Exxon Valdez punitives

The Supreme Court will hear extended arguments in Exxon Shipping Co. v. Baker (07-219) today, but has refused a request by the state of Alaska to argue.  The case involves Exxon’s challenge to the $2.5 billion punitive damages verdict awarded to businesses and individuals for damages done by the massive oil spill from the tanker, Exxon Valdez, in Alaska’s Prince William Sound on March 24, 1989.

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.