Environmental Law Prof Blog

Visitors from Mozambique and Inaugural Awe

Today I had the pleasure as Director of our law school's Certificate Program in Law and Government to host two visitors from Mozambique through the International Leadership Visitor Program funded by the State Department.  This program focuses on bringing emerging leaders from developing countries concerned with good governance to the United States, to expose them first-hand to various aspects of American governance.  Last year, we hosted 16 visitors from more than a dozen African countries.  Today's session was more informal and a bit more manageable.

Our visitors were the Governor of a northern province and the second in command of a major department within the national government.  They were interested in learning how the United States trains its graduate or advanced students in law and government.  We were able to share some aspects of our program, including attending and speaking with my first year Lawmaking Process class.  They were also fascinated by how the United States is evolving with its election of President Obama. 

The treat, of course, for me was to learn first-hand something about Mozambique, its politics and policy, and role in Africa.  Certainly, its thorough integration of woman into the power structure and into all aspects of administration is a lesson for Americans as well as other Africans.  This is beginning to happen here, witness Hillary Clinton, Nancy Pelosi, Diane Feinstein, the corps of talented Governors through the US and the league of women joining the Obama administration.  But, until a woman stands where President Obama stood today, we still lag behind virtually every developed country in the world -- and many, such as Mozambique, in the developed world.  Women took their place in the struggle for independence in Mozambique -- even on the battlefield.  They have continued to serve in Parliament and throughout government, with stature and an assured equality that American woman still lack.

Their challenge is to solidify their independence and their emerging democracy -- and to solve the problem of poverty.  There, President Obama gave them reason to hope: "To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds.  And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to suffering outside our boders; nor can we consume the world's resources without regard to effect.  For the world has changed, and we must change with it."

As you who read this blog regularly no doubt realize, these words, especially about providing clean water and reducing our consumption of resources, were music to my ears.  And perhaps to yours.

We have a President who in the midst of the raging storms of the failure of our economy and two wars, understands that "each day brings further evidence that the ways we use energy strengthen our adversaries and threaten our planet."  That the work to be done includes the promise that "[w]e will harness the sun and the winds and the soil to fuel our cars and run our factories."  That "we will work tirelessly...to roll back the specter of a warming planet."

As my new friends from Mozambique realize, President Obama has not become just an American president, but he is today the most important leader of the whole world.  Not just by virtue of our relative prosperity and military power, but by virtue of our willingness to turn the page of history and to pledge to live up to our responsibilities to people seeking peace and justice and equality and means to enjoy their full measure of happiness throughout the world.

Today, my friends, let us celebrate with all of our new friends...and pledge ourselves to making this vision become a reality, in law, in policy, and in how we conduct our obscure, everyday lives.

Cape Wind EIS Completed

According to MarketWatch, Jim Gordon of Cape Wind Associates, the developer of the controversial Cape Wind wind farm off the coast of Nantucket, plans to begin construction as early as 2010 now that the Cape Wind project has cleared a years-long environmental review by the federal government.  The Interior Department's Minerals Management Service has issued a 2800 page final EIS, estimating that the $1.2 billion plan to build 130 turbines in Nantucket Sound would reduce regional greenhouse gas emissions that contribute to climate change by 880,000 tons per year, create hundreds of jobs and ultimately supply most of the electricity needs for Cape Cod.  The Record of Decision is expected roughly  30 days after issuance of the FEIS.   

Opponents of the project include Sen. Ted Kennedy (D-Mass.) and other residents in the area.  Kennedy vowed to continue their fight against the project, arguing that the 400-foot turbines would kill birds, threaten sea life, and hurt tourism and fishing.  "I do not believe that this action by the Interior Department will be sustained," Kennedy said. "By taking this action, the Interior Department has virtually assured years of continued public conflict and contentious litigation."    

The Seas are Rising

EPA reports sea levels on the United States' mid-Atlantic coast are rising faster than the global average because of global warming, threatening the future of coastal communities.  Coastal waters from New York to North Carolina have crept up by an average of 2.4 to 4.4 millimeters (0.09 to 0.17 inches) a year, compared with an average global increase of 1.7 millimeters (0.07 inches) a year.  As a result, sea levels along the East Coast rose about a foot over the past century.  EPA Sea Level Assessment and Adaptation Report

The IPCC's Fourth Assessment Report indicated that the rate of sea level rise has accelerated and, by the end of the century, global sea levels could be seven to 23 inches higher.  Readers should remember that this IPCC estimate excludes the contribution of Antarctic and Greenland ice because of uncertainties about ice stability and dynamics at the time the Working Group I report was drafted.  In the last two years, additional scientific research has begun to identify a more reliable range of sea level rise associated with those areas of ice, dramatically increasing the estimate of likely global sea level rise by 2100.

EPA had focused on the mid-Atlantic region because it "will likely see the greatest impacts due to rising waters, coastal storms, and a high concentration of population along the coastline." Higher sea levels erode beaches and drastically change the habitats of species, often at a pace too fast for species to adapt and survive. Communities in the area are at greater risk of flooding as a "higher sea level provides an elevated base for storm surges to build upon and diminishes the rate at which low-lying areas drain."  Floods will probably cause more damage in the future as higher sea levels gradually erode and wash away dunes, beaches and wetlands that serve as a protective barrier. Consequently, homes and businesses would be closer to the water's edge and more likely to be damaged in extreme storm events that other scientists predict are increasing with global warming.

Rising sea levels have implications beyond the mid-Atlantic region.  Ports challenged by rising waters could slow the transport of goods across the country, and disappearing beaches could hurt resorts and affect tourism revenue, damaging an already fragile U.S. economy.

EPA, NOAA, and USGS recommend:

• Federal, state and local governments should step in now to prepare for the rising seas
• Governments should protect residents through policies that preserve public beaches and coastal ecosystems and encourage retrofits of buildings to make them higher
• Engineering rules for coastal areas be revised because those used today are based on current sea levels
• Flood insurance rates also could be adjusted to accommodate risk from rising sea levels

Oh, pity the poor millionaire, who lost so much this fall

Unfortunately, I didn't have a million to lose.

US Climate Action Partnership climate change plan launched -- behind the times

The US Climate Action Partnership (USCAP), a coalition of business, environmental and other interests, unveiled its "Blueprint for Legislative Action" climate change program today, which features a cap-and-trade approach to reducing GHG emissions.  USCAP link to 28 page Blueprint   USCAP Executive Overview  The cap-and-trade proposal is, of course, by now mainstream thinking -- and unsurprising given the Environmental Defense economic incentive approach to environmental problems. The USCAP plan is based upon an 80% reduction of 2005 GHG emissions by 2050.  Note that this goal falls far short of more ambitious proposals already made in Congress and is woefully inadequate to meet the 350 ppm, 1 degree C criterion for climate change mitigation policy proferred by James Hanson, et al. to avoid dangerous global warming impacts.

The Blueprint apparently represents two years of work by USCAP members building on their January 2007 Call for Action, which articulated  principles for climate change mitigation efforts and made recommendations urging “prompt enactment of national legislation in the United States to slow, stop and reverse the growth of greenhouse gas (GHG) emissions over the shortest time reasonably achievable.”     

The Blueprint responds to requests by federal policymakers for a detailed consensus to help inform climate change legislation. USCAP acknowledges that it does not include all stakeholders and interests.  It characterizes the Blueprint as an "integrated package of policies [providing] a pragmatic pathway to achieve aggressive environmental goals in a responsible and economically sustainable manner." 4 page

     

Excerpts from Executive Overview:

The United States faces an urgent need to reinvigorate our nation’s economy, enhance energy security and take meaningful action to slow, stop and reverse GHG emissions to address climate change.
 

USCAP agrees that the science is sufficiently clear to justify prompt action to protect our environment. Each year of delayed action to control emissions increases the risk of unavoidable consequences that could necessitate even steeper reductions in the future, with potentially greater economic cost and social disruption.
 

To address these challenges successfully will require a fundamental shift in the way energy is produced, delivered and consumed in the US and around the globe. Thoughtful, comprehensive and tightly linked national energy and climate policy will help secure our economic prosperity and provide American businesses and the nation’s workforce with the opportunity to innovate and succeed.
 

While we recognize that achieving the needed emission reductions is not free of costs, we also believe well-crafted legislation can spur innovation in new technologies, help to create jobs, and increase investment and provide a foundation for a vibrant, low-carbon economy.

International Principles
Climate change presents a global problem that requires global solutions. USCAP believes that international action is essential to meeting the climate challenge. U.S. leadership is essential for establishing an equitable and effective international policy framework for robust action by all major emitting countries. For this reason, action by the U.S. should not be contingent on simultaneous action by other countries. In our Blueprint we offer a set of principles to guide Congress and the Administration to address the global dimension of this problem.

Cap-and-Trade System Design
We believe the strongest way to achieve our emission reduction goals is a federal cap-and-trade program coupled with cost containment measures and complementary policies for technology research, development and deployment, clean coal technology deployment, lower-carbon transportation technologies and systems, and improved energy efficiency in buildings, industry and appliances. In a cap-and-trade system, one allowance would be created for each ton of GHG emissions allowed under the declining economy-wide emission reduction targets (the “cap”). Emitters would be required to turn in one allowance for each ton of GHG they emit. Those emitters who can reduce their emissions at the lowest cost would have to buy fewer allowances and may have extra allowances to sell to remaining emitters for whom purchasing allowances is their most cost-effective way of meeting their compliance obligation. This allows the economy-wide emission reduction target to be achieved at the lowest possible cost.
 

Targets and a Timetable for Action

Emission Reduction Targets 97%-102% of 2005 levels by 2012 80%-86% of 2005 levels by 2020 58% of 2005 levels by 2030 20% of 2005 levels by 2050

USCAP believes the legislation should establish a mandatory, national economy-wide climate protection program that includes aggressive emission reduction targets for total U.S. emissions and for capped sectors (see sidebar). Equally important, it is imperative that the costs of the program be manageable. USCAP believes the recommended targets are achievable at manageable costs to the economy provided that a robust offsets program and other cost containment measures, along with other critically important policies as recommended in the Blueprint are enacted. In addition, Congress should require periodic assessment of emerging climate science and U.S. progress towards achieving emission reduction targets, and social, environmental and economic impacts in order to determine if legislative revisions are necessary to improve the nation’s climate protection program.

 

Scope of Coverage and Point of Regulation
USCAP recommends the cap-and-trade program cover as much of the economy’s GHG emissions as politically and administratively possible. This includes large stationary sources and the fossil-based CO2 emitted by fuels used by remaining sources. The point of regulation for large stationary sources should be the point of emission. The point of regulation for transportation fuels should be at the refinery gate or with importers. Congress should establish policies to ensure carbon-based price signals are transparent to transportation fuel consumers and other end users, thereby encouraging them to make informed GHG-reduction choices. Emissions from the use of natural gas by residential and small commercial end users can be covered, for example, by regulating the utilities that distribute natural gas, often referred to as local distribution companies (LDCs).
 

Offsets and Other Cost Containment Measures
  Adequate amounts of offsets are a critical component of the USCAP Blueprint. Emissions offsets are activities that reduce GHG emissions that are not otherwise included in the cap. USCAP recommends all offsets meet strong environmental quality standards (i.e., they must be environmentally additional, verifiable, permanent, measurable, and enforceable). We recommend that Congress should establish a Carbon Market Board (CMB) to set an overall annual upper limit for offsets starting at 2 billion metric tons with authority to increase offsets up to 3 billion metric tons, with domestic and international offsets each limited to no more than 1.5 billion metric tons in a given year.
 

In addition, the CMB should oversee a system-wide strategic offset and allowance reserve pool that contains a sufficiently large set of additional offsets and, as a measure of last resort, allowances borrowed from future compliance periods that could be released into the market in to prevent undue economic harm in the event of excessively high allowance prices, especially in the early years of the program. USCAP recommends other measures to limit allowance price spikes and volatility including unlimited banking of allowances and effective multi-year compliance periods.
 

Allocation of Allowance Value
Emission allowances in an economy-wide cap-and-trade system will represent trillions of dollars in value over the life of the program. USCAP believes the distribution of allowance value should facilitate the transition to a low-carbon economy for consumers and businesses; provide capital to support new low- and zero-GHG-emitting technologies; and address the need for humans and the environment to adapt to climate change.
 

USCAP recommends that a significant portion of allowances should be initially distributed free to capped entities and economic sectors particularly disadvantaged by the secondary price effects of a cap and that free distribution of allowances be phased out over time.
 

The Blueprint identifies principles to guide the fair and equitable allocation of allowances to: end-use consumers of electricity, natural gas, and transportation fuels; energy intensive industries that face international competition; trade-exposed commodity products; competitive power generators and other non-utility large stationary sources; low-income consumers and workers in transition; programs to achieve technology transformation; and adaptation needs of vulnerable people and ecosystems at home and abroad. A significant portion of emission allowance value should also be allocated to electric and natural gas LDCs, which are cost regulated, to dampen the price impact of climate policy on electricity and small natural gas customers, particularly in the early years of the emission constraint.
 

Credit for Early Action
USCAP recommends a robust program to provide credit for early action for those who have or will take early actions to reduce emissions. This is an important cost-containment mechanism for early actors to ensure they will not be at a relative disadvantage compared with those who wait to take action.
 

Complementary Measures
USCAP believes that policies and measures that are complementary to a cap-and-trade program are needed to create incentives for rapid technology transformation and to ensure that actual reductions in emissions occur in capped sectors where market barriers and imperfections exist that prevent the price signal from achieving significant reductions.
 

Technology Transformation
A robust technology transformation program that results in substantial investment in new technologies is a critical complementary measure to a national strategy to cap and reduce GHG emissions. USCAP recommends a program that features federal support for emerging technology research and early demonstration and deployment of new technologies.
 

Coal Technology
USCAP recommends that Congress provide needed regulatory certainty and substantial financial incentives to facilitate and accelerate the early deployment of carbon capture and storage (CCS) technology, including addressing financial and regulatory barriers that could delay wide-spread deployment. USCAP recommends implementing CO2 emissions standards for coal plants initially permitted after January 1, 2015, subject to Congress providing adequate funding for CCS and needed regulatory certainty being in place; and retrofit requirements for coal plants initially permitted after January 1, 2009 and prior to January 1, 2015, subject to deployment thresholds being met.
 

Transportation
Achieving the USCAP economy-wide emission reduction targets and timetable will require a systematic approach that involves fuel providers, vehicle and equipment manufacturers, consumers and other end users, and public officials who set policy direction and plan and manage transportation and related infrastructure and land use. The systematic approach recommended by USCAP includes improving both fuel and vehicle GHG performance standards, as well as improving the efficiency of the transportation system.
 

Buildings and Energy Efficiency
USCAP believes one of the most immediate steps Congress can take to begin to address climate change is to enact policies and measures that improve the energy efficiency of the U.S. economy. We recommend aggressive promotion and implementation of GHG reduction programs including state- or utility-sponsored conservation and efficiency programs, tightened building codes and standards, and appliance efficiency standards. Collectively, these programs will help drive investment in cost-effective energy efficiency by encouraging utilities and consumers to improve efficiency when the cost of doing so is lower than the cost of an equivalent amount of energy in the form of electricity or natural gas.
 

EU Pesticide Ban advances through EU parliament

Yesterday, the European Parliament voted to ban highly toxic pesticides unless their effects can be proven to be negligible. If endorsed by 27 EU ministers, countries with similar geography and climate could decide whether farmers may use specific products. This implements an agreement negotiated in December that substantially reduced the number of substances to be banned.  December agreement

The EU will list EU-approved "active substances," excluding 22 ingredients that are classified as carcinogenic, mutagenic or toxic to reproduction. The chemical "blacklist" includes eight substances used in the manufacture of herbicides, 11 used in fungicides and three in insecticides, many of them produced by German chemical giants Bayer and BASF -- including Ioxynil, Amitrol and Iprodion.  That list will provide the basis for national EU governments to approve pesticides nationally or, via mutual recognition with 120 days, in the north, center, and south regions of the EU.  Currently, approvals apply only for individual countries and there is no deadline set for mutual recognition approvals. 

Already licensed pesticides remain available until their 10-year authorization expires, avoiding a sudden large-scale withdrawal of pesticides from the market.

EU countries will be allowed to ban a product, because of specific environment or agricultural circumstances.  Also, certain restrictions will be put on pesticide use, including banning most aerial crop-spraying, strict conditions on pesticides use near aquatic environments and drinking water supplies, and buffer zones requirements around water and protected areas along roads and railways.

States Set for Clean Energy Lobbying on Hill

                              

                     

FOR IMMEDIATE RELEASE   

Media contact:

Larry Kopp/Seth Allen, The T.A.S.C. Group

Ph: 646-723-4344/ cell: 917-282-2357

seth@thetascgroup.com

 

Clean Energy States Alliance To Hold Congressional Briefing on Capitol Hill

 

 

 

CESA Will Propose New Federal/State Partnership for Green Stimulus Investment

 

Washington, DC, January 9, 2009: Clean Energy States Alliance (CESA) will hold a congressional briefing on Tuesday, January 13 on the strategic role of states in supporting clean energy. The event is co-sponsored by the Environmental and Energy Study Institute (EESI) and will be held from 2:00 to 3:30 p.m. at 366 Dirksen Senate Office Building on Capitol Hill. CESA will present policy recommendations for the Obama administration and outline a new federal/state partnership for moving forward with effective clean energy economic stimulus. The key is distributing federal funds for clean energy investment directly through the many existing state clean energy funds and programs.

 

"For years, the states have been funding clean energy projects and have taken the lead in green collar job creation," said CESA President, Lewis Milford. "The federal government should use the many existing state clean energy funds as vehicles to quickly and efficiently deploy the green stimulus investment."

 

Speakers for the briefing include: Lewis Milford, President and Founder of Clean Energy States Alliance and Clean Energy Group; Janet Joseph, Director of Clean Energy Research &Market Development, New York State Energy Research and Development Authority (NYSERDA); Tom Plant, Director of Colorado Governor's Energy Office; Rob Sanders, Sustainable Development Fund Manager, The Reinvestment Fund and Peter West, Director of Renewable Energy, Energy Trust of Oregon.

 

The briefing coincides with a press conference and panel event CESA has scheduled for the morning of January 13 at the National Press Club. The press breakfast will start at 9:30 a.m. and run through 11:00 a.m. At the event, CESA will release a new report which highlights its national database of nearly 50,000 state funded renewable energy projects. The projects in the database have a capacity of 1.7 Gigawatts and generate 5.3 million megawatt hours of electricity each year, enough to power 500,000 homes. As of 2007, 12,000 state renewable energy projects have been completed and state clean energy funds have invested $1.5 billion and leveraged an additional $2.5 billion in private capital.

 

Much of the innovative and effective activity to advance clean energy has taken place at the state level. By supporting creative finance, policy, and market initiatives, the states have been serving as laboratories where ideas for implementing clean energy can be tested and proven in the real world. In many cases, the states have established special funds to promote renewable energy and other clean energy technologies. CESA will also honor five state clean energy programs with the inaugural "State Leadership in Clean Energy Awards" at the event. Representatives from CESA and the winning programs will be present.

 

The CESA and EESI briefing is open to press. Anyone interested in attending the event and scheduling interviews with CESA representatives must contact:

 

Larry Kopp/Seth Allen, Office: (646) 723-4344, Cell: (917) 282-2357, seth@thetascgroup.com

 

About Clean Energy States Alliance

Clean Energy States Alliance (CESA) is a national nonprofit organization that works with clean energy funds and state agencies to expand the nation's clean energy infrastructure and advance markets for clean energy technologies. CESA provides information and technical services to its members and shares its knowledge with the federal government and influential policymakers. CESA's member states manage programs that will invest nearly $6 billion in the next ten years to support clean energy. Clean Energy Group (CEG) created CESA in 2002 and now manages it.

 

www.cleanenergystates.org, www.cleanegroup.org

ExxonMobil supports carbon tax

This speech takes a leaf from Ken Cohen's playbook.  I think that Cohen is honestly convinced that taxes are better and that cap-and-trade is too complicated.  On the other hand, it certainly muddies the waters for quick passage of a climate change bill.  And maybe that's the real point.  The other strategic possibility is that oil companies are quick to suggest that their marginal costs of control are far higher than utilities.  If so, since utilities will control first rather than pay the tax, the tax necessary to secure reductions from the utilities will be relatively low.  So, the oil companies could pay the low tax and defer payment of the higher costs of control. 

Also, as I frequently point out to my students, environmental taxes produce a downward pressure on the level of emission control to be achieved simply because they tax each unit, not just the undesired units, of pollution.  That drives the cost of control through the roof and creates the downward political pressure.  Additionally, there is always the uncertainty of what the marginal cost of control is and thus the amount of emission reduction that will be achieved. 

WSJ reports:

The chief executive of Exxon Mobil Corp. for the first time called on Congress to enact a tax on greenhouse-gas emissions in order to fight global warming. In a speech in Washington, Rex Tillerson said that a tax was a "more direct, a more transparent and a more effective approach" to curtailing greenhouse gases than other plans popular in Congress and with the incoming Obama administration...

By backing [a carbon tax], Mr. Tillerson has become an unlikely member of a club that includes former Vice President Al Gore, consumer advocate Ralph Nader and President-elect Barack Obama's designated head of the National Economic Council, Larry Summers.

Carbon taxes have been politically unpopular. "Calling for a carbon tax could be a ploy because few observers believe such a tax is politically feasible in our Congress," says Daniel J. Weiss, a fellow at the Center for American Progress, a left-of-center think tank in Washington.

The leadership of the Democratic-led Congress and other major oil companies prefer using a cap-and-trade approach. Under this system, the government would establish economy-wide emission limits as well as limits for individual companies. There would be a market for firms to buy and sell pollution allowances based on whether they were above or below their caps.  ConocoPhillips and the U.S. divisions of BP PLC and Royal Dutch Shell PLC have all supported a cap-and-trade solution.

Mr. Tillerson said a cap-and-trade system would be costly, bureaucratic and create a "Wall Street of emissions brokers." The speech signals an evolution in the thinking of Mr. Tillerson, who became chief executive and chairman of Texas-based Exxon, the world's largest Western oil company, in 2006. Mr. Tillerson now calls the issue complex and challenging to understand, but -- in contrast to Exxon's previous party line -- he doesn't question whether fossil fuel use has contributed to rising global temperatures.

Tillerson's certainly right about the transaction costs associated with a cap-and-trade system.  This could be interesting. 

Biofuels too

A new study by Stanford Professor of Civil and Environmental Engineering Mark Jacobson entitled “Review of Solutions to Global Warming, Air Pollution, and Energy Security” Jacobson study link comprehensively analyzes various energy solutions, addressing associated impacts on water supply, land use, wildlife, resources, and pollution.  Ultimately, the study finds that “In sum, the use of wind, CSP, geothermal, tidal, solar, wave, and hydroelectric to provide electricity for BEVs [battery-electric vehicles] and HFCVs [hydrogen fuel cell vehicles] result in the most benefit and least impact among the options considered. Coal-CCS and nuclear provide less benefit with greater negative impacts. The biofuel options provide no certain benefit and result in significant negative impacts.”

 

Biofuel Soars on Air New Zealand

Due to the poor EO/EI ratio of biofuel and its competition with food crops, most of us are skeptical about widespread use of biofuel to meet transportation needs.  However, air transportation is one of the few sectors where finding alternative energy sources is difficult.  So, the recent and forthcoming tests of various biofuels in the air transportation sector are noteworthy, especially when strict conditions are placed on biofuel production.  In one recent test, Air New Zealand set three requirements for sustainable biofuel:

(1) the fuel source must be environmentally sustainable and not compete with existing food resources;

(2) the fuel must be a drop-in replacement for traditional jet fuel and technically be at least as good as the product used today; and

(3)the fuel must be cost competitive with existing fuel supplies and be readily available.

Environmental News Service reported in more detail:

A passenger jet with one of its four engines running on a biofuel blend today completed the world's first commercial aviation test flight to test a biofuel made from jatropha.  The test flight was a joint initiative with partners Boeing, Rolls-Royce and Honeywell's UOP. The two hour Air New Zealand test flight was powered by a second-generation biofuel made from the seeds of the jatropha plant that could reduce emissions and cut costs. The flight was the first to use jatropha jatropha seed oil as part of a biofuel mix [50% jatropha, 50% jet fuel]....

   

Air New Zealand test plane (Photo courtesy Air New Zealand)

       

 

                 

Jatropha seed pods (Photo courtesy Air New Zealand)

Jatropha is a plant that produces seeds that contain inedible lipid oil that is used to produce the fuel. Each seed produces 30-40 percent of its mass in oil and jatropha can be grown in a range of difficult conditions, including arid and otherwise non-arable areas, leaving prime areas available for food crops....

The jatropha used on Tuesday's flight was grown in Malawi, Mozambique and Tanzania, the airline said. The criteria for sourcing the jatropha oil required that the land was neither forest land nor virgin grassland within the previous two decades.

 

Jatropha grows on poor soil and in arid climates not suitable for most food crops. The jatropha farms that grew the seeds for this test flight are rain-fed and not mechanically irrigated.

The test flight partners engaged Terasol Energy, a leader in sustainable jatropha development projects, to independently source and certify that the jatropha-based fuel for the flight met all sustainability criteria. Once received from Terasol Energy, the jatropha oil was refined through a collaborative effort between Air New Zealand, Boeing and refining technology developer UOP. The process utilized UOP technology to produce jet fuel that can serve as a direct replacement for traditional petroleum jet fuel.

Air New Zealand aims to meet 10 percent of its fuel needs through sustainable biofuel by 2013. In February, Virgin Atlantic was the first airline to test a commercial aircraft on a biofuel blend, using a 20 percent mixture of coconut oil and babassu oils in one of its four engines. In January, two more airlines will test their biofuel blends. Continental Airlines on January 7 will conduct a test flight powered by a blend involving algae and jatropha. The flight will be the first biofuel flight by a commercial carrier using algae as a fuel source, the first using a two-engine aircraft, and the first biofuel demonstration flight of a U.S. commercial airliner.  On January 30, Japan Airlines is planning a test flight from Tokyo using a fuel based on the camelina oilseed as a way to cut greenhouse gas emissions.

Rate of Calcification of Coral Reefs Declining

Science reports on a new study showing that both rising ocean water temperatures and ocean acidification are causing a reduced rate of calcification of coral reefs in the Great Barrier Reef.  Coral reefs are threatened by from rising sea-surface temperatures, ocean acidification (the declining pH of surface seawater layers caused by the absorption of increasing amounts of atmospheric CO2), pollution, and overexploitation. Other studies have demonstrated  declines in the coverage and numbers of live coral reefs, as well as reduced coral diversity, but few examined how rates of coral calcification have been affected. The study by De'ath et al. examined growth patterns of 328 massive Porites corals from the Great Barrier Reef of Australia and found that their rates of calcification have declined by nearly 15% since 1990, to values lower than any seen for the past 400 years. The main causes of this continuing decline appear to be increasing water temperatures and ocean acidification.Science today link

The Economist on Poznan: Fiddling with Words

The Economist summarized the December Poznan, Poland meeting as fiddling with words. Economist link Likewise, in 2007, I characterized the G8 summit in these words, "Nero became infamous for fiddling as First Century Rome burned. This month, the parties at the G8 summit followed Nero's insanely frivolous, time-wasting lead. Unfortunately, this time the whole planet is burning."   Findlaw: Smith commentary But the Economist captured the situation with a different metaphor.

IMAGINE that some huge rocky projectile, big enough to destroy most forms of life, was hurtling towards the earth, and it seemed that deep international co-operation offered the only hope of deflecting the lethal object. Presumably, the nations of the world would set aside all jealousies and ideological hangups, knowing that failure to act together meant doom for all.  At least in theory, most of the world’s governments now accept that climate change, if left unchecked, could become the equivalent of a deadly asteroid. But to judge by the latest, tortuous moves in climate-change diplomacy—at a two-week gathering in western Poland, which ended on December 13th—there is little sign of any mind-concentrating effect. To be fair to the 10,000-odd people (diplomats, UN bureaucrats, NGO types) who assembled in Poznan, a semicolon was removed. At a similar meeting in Bali a year earlier, governments had vowed to consider ways of cutting emissions from “deforestation and forest degradation in developing countries; and the role of conservation [and forest management]”. After much haggling, delegates in Poland decided to upgrade conservation by replacing the offending punctuation mark with a comma.  At this pace, it seems to hard to believe that a global deal on emissions targets (reconciling new emitters with older ones) can be reached next December at a meeting in Copenhagen, seen as a make-or-break time for UN efforts to cool the world.

The Economist went on to explain some of the background factors that influenced the events at Poznan and why it was not a totally depressing waste of time:

In the background of the Poznan meeting, there was mild optimism (and a reluctance by others to put fresh cards on the table) ahead of an expected change of stance by an Obama administration in America; resentment (among the poor and green) over the refusal of Japan and Canada to promise deeper cuts; and strong demands from China for the transfer of technology from the rich to others. In the final hours of the conference, the governments of small, sinking island nations were delighted to learn that they, and not some global body, would control a fund to help them adapt to a warming world. Their mood changed when it became known that no extra money had been set aside for this purpose.  However hard it looks to put this global jigsaw together, there were some encouraging unilateral moves, especially from Latin America. Mexico vowed to halve greenhouse emissions by 2050; Brazil said it could reverse a recent rise in deforestation and cut the rate of forest loss by 70% over the next decade; Peru said that with help it could reduce deforestation to zero.

But the economist made the case that the key to progress towards an agreement in Copenhagen is the willingness of the EU to continue to provide climate leadership.  The EU's attitude seems a bit ambivalent.  As the Economist reported,

At a summit on December 11th and 12th, the EU’s leaders eventually decided to keep their targets intact while also allowing opt-outs which may yet undermine their stated goals. President Nicolas Sarkozy, who chaired the summit, boasted of a “terrific fight” which French diplomacy had managed to finesse. Despite many concessions for heavy industry and poor newcomers to the EU, the final deal (perhaps to its credit) left everybody unhappy. European industry felt too much was being asked of it, while green groups thought industry had gained rather too many concessions.  In the background of the EU’s wrangling were some goals laid out last year in pre-recession times. By the year 2020, the EU promised three things: to cut overall greenhouse gas emissions by 20% over 1990 levels; to obtain 20% of overall EU energy from renewables like wind, waves and plant waste; and to make efficiency savings of 20% over forecast consumption.  The new EU deal kept the targets, but offered sops to countries that fear an emphasis on the “polluter pays” principle may drive up electricity costs, or push heavy industry away to places, like Asia, that in Copenhagen will oppose big emission cuts. Opt-outs were granted from plans to force large polluters to buy allowances to emit carbon at auction. Poorish ex-communist countries that rely on coal for power will be allowed to dish out up to 70% of the carbon allowances needed by power firms, for no payment, for a few years after 2013. Heavy industries that face global competition will also get up to 100% of their allowances free, at least initially, if they use the cleanest available technologies. And EU nations will be allowed to buy in credits for emissions reductions far from Europe, and count them against as much as 90% of their national reduction targets. Eurocrats say a reduced emphasis on auctioning permits won’t undermine the benefits of the package; carbon-cutting discipline still comes from the ceiling on the number of allowances issued. That cap will be cut each year after 2013: this should help to support carbon prices in the EU’s Emissions-Trading Scheme. The concessions risk prolonging some follies. For example, big power firms that now get carbon allowances free have been passing on their nominal cost to customers. Handing out free allowances may also reduce revenues available to governments for investment in greenery. Moreover, some pro-market countries fret that using climate-change policies to redistribute money within the EU will cause trouble in global talks. It will make it harder to resist China and India when they seek transfers of money in the name of “solidarity”.

The ECN had a more optimist view of the EU's action, arguing that the final package passed the political test:

The energy and climate policy package was proposed in January 2008 by the European Commission and, after some adjustments, agreed by the Member States last week during a meeting of EU government leaders. The central objectives remained in place: For the year 2020, (i) to save energy use by 20%, (ii) to increase the share of renewable energy in total energy use to 20% (compared to some 8% in 2005), and (iii) to reduce total EU greenhouse gas emissions by 20% (compared to 1990).

The main instrument to achieve the greenhouse gas reduction target is the EU-wide harmonised Emissions Trading Scheme (ETS). The most contested issue in the package was whether industries would receive their emission allowances for free or whether they would have to buy them in an auction. Currently, the allowances are given out for free, which has led to power companies charging their consumers as if they are paying a carbon price, resulting in billions of windfall profits. Auctioning of the emission allowances would solve this problem, but is politically controversial as it would lead to high costs for greenhouse gas emitting industries.

On auctioning in the ETS the following was decided:

• Starting from 2013, power companies have to buy all their emission allowances at an auction. Contrary to the original EC proposal, however, the EU government leaders agreed that for existing power generators in some (mainly East-European) countries the auctioning rate in 2013 will be at least 30% and will be progressively raised to 100% no later than 2020. This means that for instance existing coal-fired power plants in Poland still get their allowances for free, but that new power plants need to pay. In the Netherlands, all power plants will have to buy their allowances.

• For the industrial sectors under the ETS, the government leaders agreed that the auctioning rate will be set at 20% in 2013, increasing to 70% in 2020, with a view to reaching 100% in 2027. The original EC proposal included 100% auctioning in 2020 rather than 2027. Industries exposed to significant non-EU competition, however, will receive 100% of allowances free of charge up to 2020.

With regard to greenhouse gas reduction in the sectors that are not covered by the ETS, such as households and transport, which cover about 55-60% of EU emissions, the Commission proposal allowed Member States to use offset credits to meet up to two-thirds of the emission reduction and the remaining part by domestic abatement measures. The EU leaders, however, agreed to allow 11 (mainly West-European) countries – including Spain and Italy – to use additional offset credits to meet their non-ETS targets.

My bottom line from all of this is that the U.S. needs to assert serious leadership on climate change -- and the green team Obama has assembled gives every reason for hope that it will do so.  In just less than a month!

The Economist Reacts to Obama's Cabinet Picks

The Economist's reaction was that Obama has chosen an all-star team of heavy weights.  Beyond Hillary Clinton at State,

... [Bill Richardson] surprised many by quitting as governor of New Mexico to become secretary of commerce. He had previously served as ambassador to the United Nations and secretary of energy under Bill Clinton. Such is his eagerness to serve that he has taken a low-profile job often given to unremarkable cronies of the president.

   

      

                              

   

 

Next in the presidential-contender list was Tom Vilsack. The former governor of Iowa was well-enough regarded (for competence if not charisma) that he briefly ran for president himself, before finding fundraising tricky. He will become secretary of agriculture. His roots in a corn-growing state have dismayed opponents of America’s corn-based ethanol subsidies. But bravely, he has proposed lowering the tariff on greener, more efficient Brazilian sugar-based ethanol. His reckons that more ethanol in the energy mix will encourage the development of a delivery infrastructure. This will boost future investment into promising forms of non-corn ethanol, such as production from cellulose.

Behind the presidential contenders come other surprisingly weighty candidates for medium-sized cabinet posts. Ken Salazar, a senator from Colorado, has been tapped for the interior department. Mr Salazar, a moderate from a state that usually swings behind the Republicans, was valuable to Senate Democrats and was thought of as an up and coming. Mr Obama’s nominee for secretary of energy is Steve Chu, a Nobel-prize-winning physicist and head of the Lawrence Berkeley national laboratory, an important research centre.

Two appointments might seem like partisan payback. Tom Daschle was the head of the Senate Democrats until his South Dakota seat was taken by gleeful Republicans in 2004. The well-connected Mr Daschle will spearhead reform as head of the Department of Health and Human Services. Eric Shinseki was pushed into early retirement as army chief of staff, after predicting the Iraq war would take hundreds of thousands of troops to win. Mr Obama has nominated him to be Secretary of Veterans’ Affairs. Yet even these two appointments have drawn surprisingly little Republican criticism.

Mr Obama’s picks may be one reason why the approval rating of his transition is high, according to polls, and well above that of George Bush or Bill Clinton at similar points. Including the appointment of Hilda Solis as Labour Secretary he has even managed to pick two blacks, three Hispanics and two Asian-Americans—and five of his cabinet are women—without any accusations of tokenism. The biggest point for criticism might be his choice of Eric Holder for attorney-general. Mr Holder is a well-respected lawyer. But he is tangentially implicated in some of the grubbier episodes of the Bill Clinton era, including Mr Clinton’s pardon of Marc Rich, a fugitive financier. Mr Holder may provide the only piece of controversy in cabinet confirmation hearings....

Economist story on a Well-Stocked Cabinet

Recent Study Shows Utilities Exploited Free Allowances in EU-ETS

An ECN study analyzing the impact of the EU Emissions Trading Scheme (ETS) on electricity prices, in particular on wholesale power markets across the EU, found that a significant part of the costs of freely allocated CO2 emission allowances are passed through to power prices, resulting in higher electricity prices for consumers and additional (‘windfall’) profits for power producers. The study discusses some policy implications of the pass-through of these costs, concluding that the pass-through of CO2 costs to electricity prices is a rational, carbon-efficient policy, while the issue of windfall profits can be addressed by either taxing these profits or auctioning - rather than free allocations - of the emission allowances.  What the study didn't consider is the political impact of artificially high electricity prices to meet the modest Kyoto protocol goals in terms of the longer term political will to achieve the far deeper emission cuts necessary to prevent the impacts of global warming from being catastrophic.EU electricity price study

Here are some of the picks of Change.gov

 

The “green dream team”

 

Tuesday, December 16, 2008 03:07pm EST / Posted by Dave Rochelson

 

President-elect Obama's picks for key members of his energy and environment team have not just drawn praise -- they've set off a wave of optimism that the time for serious action on climate change has arrived.

"This is a team with a keen interest in addressing climate change, and the talent and skills to get the job done," Eileen Claussen, President of the Pew Center on Global Climate Change, said in a statement. "With Steven Chu, Carol Browner, Lisa Jackson and Nancy Sutley at the helm, President-Elect Obama's Administration will be well-equipped to tackle the challenge of building a new clean energy future that preserves the climate while revitalizing our economy."

"These selections form a green dream team that will help President-elect Obama’s vision for solving our economic and global warming challenges through clean energy become reality," Gene Karpinski, president of the League of Conservation Voters, was quoted as saying by Congressional Quarterly's Politics blog.

In the press conference yesterday introducing the new team, President-elect Obama said of Energy Secretary-desginate and Nobel-prize winning physicist Steven Chu, "His appointment should send a signal to all that my Administration will value science, we will make decisions based on the facts, and we understand that the facts demand bold action."

That signal has been heard loud and clear.

"Obama has chosen about the most qualified scientist one can imagine to make the case for putting the E back into DOE," Science Insider, a blog run by the same organization that publishes the influential journal Science, wrote of President-elect Obama's choice to lead the Department of Energy.

Under the headline "Science Born Again in the White House, and Not a Moment Too Soon," Wired magazine's Science blog wrote that Secretary-designate Chu "recognizes the need to invest in science, from grade schools to universities to industry. He sees the imperative for the government to think in new and big ways about the energy problem. He understands we have to face up to climate change. And, most importantly, he has ideas about how to get it all done and the character to make them happen."

Reid Detchon, executive director of the Energy Future Coalition, praised the creation of a new White House post to coordinate energy and climate policy, and the choice of Carol Browner to fill it.

"The President-elect's decision...to integrate policy on the intersection of energy, environment and climate change is both visionary and overdue," he said in a statement. "All the agencies of government must be involved, and his selection of Carol Browner to lead the Council signals the importance he attaches to an effective inter-agency process."

The National Journal has more responses on its Energy and Environment blog.

   

More reaction on Obama's green team

Statement of Eileen Claussen
President, Pew Center on Global Climate Change
on President-Elect Obama's New Energy and Environment Appointments

December 11, 2008

This is a team with a keen interest in addressing climate change, and the talent and skills to get the job done.  With Steven Chu, Carol Browner, Lisa Jackson and Nancy Sutley at the helm, President-Elect Obama's Administration will be well-equipped to tackle the challenge of building a new clean energy future that preserves the climate while revitalizing our economy.   We look forward to working with the new Administration to achieve these goals.

###

Know your source: American Council for Capital Formation contends that CO2 controls will conflict with job creation and economic stimulus plans

E & E:

Can President-elect Barack Obama successfully stimulate the economy, create jobs and reduce emissions? What are some of the pitfalls of pursuing a "green" stimulus? During today's OnPoint, Margo Thorning, senior vice president and chief economist at the American Council for Capital Formation, gives her take on why some of the incoming administration's aggressive climate and economic goals may conflict with each other. Thorning assesses Obama's energy and environment Cabinet picks and explains how she believes the chairmanship shift in the House Energy and Commerce Committee will affect the push for cap-and-trade legislation.

ACCP has been an ExxonMobil-funded, conservative think tank with a climate skeptic slant.  For example, in March 2003, Dr. Thorning had this take on the minor cuts required by the Kyoto Protocol:

Given the severe macroeconomic impacts the Kyoto Protocol would impose on the United States, including reducing U.S. GDP by 1-4 percent, slowing wage growth significantly, worsening the distribution of income, and reducing growth in living standards, Dr. Thorning called for a new approach. Voluntary measures to reduce CO2 emissions should include modifications to U.S. tax policy that reduce the cost of capital for energy-efficient investments

ExxonSecrets.org reported that American Council for Capital Formation Center for Policy Research has received $1,619,523 from ExxonMobil between 1998-2006.  The 2007 report indicates that ExxonMobil still supports ACCF-CPR, again providing a $15,000 additional contribution.

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The Plight of the South Pacific Islands -- visit Kiribati with PBS

In the Poland climate change meeting just concluded, a top UN official predicted that by the middle of this century, the world should expect six million people a year to be displaced by increasingly severe storms and floods caused by climate change.

But as the PBS program NOW recounts:

for many island nations in the South Pacific, climate change is already more than just a theory -- it is a pressing, menacing reality. These small, low-lying islands are frighteningly vulnerable to rising temperatures and sea levels that could cause flooding and contaminate their fresh water wells. Within 50 years, some of them could be under water.  NOW travels to the nation of Kiribati to see up close how these changes affect residents' daily lives and how they are dealing with the reality that both their land and culture could disappear from the Earth. We also travel to New Zealand to visit an I-Kiribati community that has already left its home, and to the Pacific Island Forum in Niue to see how the rest of the region is coping with the here-and-now crisis of climate change.

To see the report, visit PBS NOW link

Crude falls below $40

Supply cuts can't keep up with the precipitous decline in demand in US and Asia.   So OPEC considers cutting production more than last week's 2.2 million barrel cut -- which was already a greater cut than expected. 

MarketWatch reports:
Crude-oil futures fell Monday to below $40 a barrel as demand concerns outweighed news that the Organization of Petroleum Exporting Countries could cut production further. Crude for February delivery, the new front-month contract, ended down $2.45, or 5.8%, at $39.91 a barrel on the New York Mercantile Exchange. Crude-oil imports to China and Japan slowed in November, and inventories in the U.S. rose to their highest in seven months. Meanwhile, OPEC is mulling more production cuts, on the heels of the reduction of 2.2 million barrels a day that cartel members agreed to last week.

EPA Overreaches Again on "Interpreting" the Clean Air Act

EPA lost again in the D.C. Circuit on its interpretation of the Clean Air Act in Sierra Club v. EPA, challenging EPA's exemption of facilities from MACT standards during startup, shutdown, or malfunction (SSM).  Opinion  The damage done in cases such as these where the Bush administration overreached will not be limited unfortunately just to the Bush administration.  When the D.C. Circuit gets in the habit of looking at EPA decisions closely and with suspicion, and not crediting the assertions made in DOJ briefs because the arguments that DOJ is pushed to make are simply not credible, the ability of EPA to utilize its expertise to shape coherent regulatory systems out of sometimes less than coherent legislation and the ability of DOJ to command the judiciary's respect suffers.  Both EPA and DOJ will need to rediscover that there are legal arguments that should not be made.  The bar for the government is and should be higher than that for private parties.

In Sierra Club, the court agreed that, by stripping the protections of an enforceable SSM plan out of the 1994 exemption during recent rule-making, EPA constructively reopened the 1994 SSM exemption so that Sierra Club and others could challenge the legality of the 1994 exemption. Then, on the merits, the D.C. Circuit determined that the SSM exemption is inconsistent with section 112's requirement of continuous compliance with MACT standards and that the general duty not to endanger public health and the environment through emissions of hazardous pollutants does not satisfy the CAA's requirement:

Section 112(d) provides that “[e]missions standards” promulgated thereunder must require MACT standards. 42 U.S.C. § 7412(d)(2). Section 302(k) defines “emission standard” as “a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design,equipment, work practice or operational standard promulgated under this chapter.” Id. § 7602(k). Petitioners contend that,contrary to the plain text of this definition, “EPA’s SSM exemption automatically excuses sources from compliance with emission standards whenever they start up, shut down, or malfunction, and thus allows sources to comply with emission standards on a basis that is not ‘continuous.’” Petrs. Br. at 23.

EPA responds that the general duty that applies during SSM events “along with the limitations that apply during normal operating conditions, together form an uninterrupted, i.e., continuous, limitation because there is no period of time duringwhich one or the other standard does not apply,” Respt.’s Br. at 31. “Although Chevron step one analysis begins with the statute’s text,” the court must examine the meaning of certain words or phrases in context and also “exhaust the traditional tools of statutory construction, including examining the statute’s legislative history to shed new light on congressional intent, notwithstanding statutory language that appears superficially clear.” Am. Bankers Ass’n v. Nat’l Credit Union Admin., 271 F.3d 262, 267 (D.C. Cir. 2001) (citations and quotation marks omitted).

EPA suggests that the general duty is “part of the operation and maintenance requirements with which all sources subject to a section 112(d) standard must comply,” Respt.’s Br. at 33, pointing to section 302(k)’s statement that an “emission standard” includes “any requirement relating to the operation or maintenance of a source to assure continuous emission reduction,” 42 U.S.C. § 7602(k). Section 302(k)’s inclusion of this broad phrase in the definition of “emission standard” suggests that emissions reduction requirements “assure continuous emission reduction” without necessarily continuously applying a single standard. Indeed, this reading is supported by the legislative history of section 302(k):

By defining the terms ‘emission limitation,’ ‘emission standard,’ and ‘standard of performance,’ the committee has made clear that constant or continuous means of reducing emissions must be used to meet these requirements. By the same token, intermittent or supplemental controls or other temporary, periodic, or limited systems of control would not be permitted as a final means of compliance.  H.R. Rep. 95-294, at 92 (1977), as reprinted in 1977 U.S.C.C.A.N. 1077, 1170.

“Congress’s primary purpose behind requiring regulation on a continuous basis” appears, as one circuit has suggested, to have been “to exclude intermittent control technologies from the definition of emission limitations,” Kamp v. Hernandez, 752 F.2d 1444, 1452 (9th Cir. 1985).

When sections 112 and 302(k) are read together, then, Congress has required that there must be continuous section 112-compliant standards. The general duty is not a section 112- compliant standard. Admitting as much, EPA states in its brief that the general duty is neither “a separate and independent standard under CAA section 112(d),” nor “a free-standing emission limitation that must independently be in compliance” with section 112(d), nor an alternate standard under section 112(h). Respt.’s Br. 32-34. Because the general duty is the only standard that applies during SSM events – and accordingly no section 112 standard governs these events – the SSM exemption violates the CAA’s requirement that some section 112 standard apply continuously. EPA has not purported to act under section 112(h), providing that a standard may be relaxed “if it is not feasible in the judgment of the Administrator to prescribe or enforce an emission standard for control of a [HAP],” id. § 7412(h)(1), based on either a (1) design or (2) source specific basis, id. § 7412(h)(2)(A), (B).

EPA’s suggestion that it has “discretion to make reasonable distinctions concerning those particular activities to which the emission limitations in a MACT standard apply,” 68 Fed. Reg. at 32,590, belies the text, history and structure of section 112.  “In 1990, concerned about the slow pace of EPA’s regulation of HAPs, Congress altered section 112 by eliminating much of EPA’s discretion in the process.” New Jersey, 517 F.3d at 578.  In requiring that sources regulated under section 112 meet the strictest standards, Congress gave no indication that it intended the application of MACT standards to vary based on different time periods. To the contrary, Congress specifically permitted the Administrator to “distinguish among classes, types, and sizes of sources within a category or subcategory in establishing such standards,” CAA § 112(d)(1), 42 U.S.C. § 7412(d)(1). Additionally, while recognizing that in some instances it might not be feasible to prescribe or enforce an emission standard under § 112, Congress provided in section 112(h) for establishment of “work practice” or “operational” standards instead, but, as petitioners point out, “strictly limited this exception by defining ‘not feasible . . .’ to include only [two types of] situations,” Petrs. Br. 9, and did not authorize the Administrator to relax emission standards on a temporal basis.  See NRDC, 489 F.3d at 1374.  In sum, petitioners’ challenge to the exemption of major sources from normal emission standards during SSM is premised on a rejection of EPA’s claim of retained discretion in the face of the plain text of section 112. “Where Congress explicitly enumerates certain exceptions to a general prohibition,additional exceptions are not to be implied, in the absence of a contrary legislative intent”. NRDC, 489 F.3d at 1374 (quoting TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)). The 1990 Amendments confined the Administrator’s discretion, see New Jersey, 517 F.3d at 578, and Congress was explicit when and under what circumstances it wished to allow for such discretion, id. at 582. “EPA may not construe [a] statute in a way that completely nullifies textually applicable provisions meant to limit its discretion.” New Jersey, 517 F.3d at 583 (quoting Whitman, 531 U.S. at 485).

Accordingly, we grant the petitions without reaching petitioners’ other contentions, and we vacate the SSM exemption. See New Jersey, 517 F.3d at 583 (citing Allied Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)).