Environmental Law Prof Blog

Agricultural Law Blog Post on Renewable Fuel Standard

On Tuesday, Josh Fershee posted a critique of the US renewable fuel standard (RFS), which mandated expanded use of biofuels, including ethanol.  Agricultural Law post  He criticized the RFS on the grounds that cellulosic fuels are more green, and the RFS acan be met with ethanol from corn and other non-cellulosic sources.  In addition, Fershee noted that the studies indicating that fuel crops were greener than gasoline did not consider whether the fuel crops would replace rangelands or forest lands already sequestering carbon.  He opines:

A better ethanol policy would include requirements and incentives linked to new or emerging technologies that don’t create new competition for other already viable (e.g., corn) crops with established markets or lead to cleared tropical forests or savannas. Policies should instead promote only ethanol derived from growing high-diversity prairie hay grown on degraded lands, for instance, or from corn cobs.

I agree, but I would go further.  The policy should restrict ethanol to cellulosic fuels that are not produced on lands converted from food crops.

Crude prices exceed $ 115

According to MarketWatch, crude oil prices reached a new record high above $115 a barrel today, as US crude inventories fell for the second week, from 316 million barrels to 313.7 million barrels, according to Energy Information Administration.  Due to the weak demand arising from the recession, analysts had expected an increase of 1.5 million barrels.  US inventories have dropped about 5 million barrels in the past two weeks. A variety of factors is driving price increases for crude oil and refined gasoline: low inventories due to reduced imports by refineries running far below capacity, the decline in the value of the dollar, and speculators buying up commodies as a hedge against recession.MarketWatch

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.

Bread

I went to purchase some bread for a student potluck last night.  The store's bakery had posted apologies about the price of bread, citing the rise in wholesale wheat prices.  I knew  prices were going up -- to be expected when the falling value of the dollar encourages exports, I thought.  But I was shocked to pay almost $ 4 for a loaf of bread.  So I began to wonder -- why?  Is the effect of biofuels showing up already in food prices?  What's happening?

Here's what I found in my brief review on how much bread I paid for bread.  The United Nations Food and Agriculture Organization (FAO) Food Price Index during the last month is about 50% higher for all foods than a year ago -- led in large part by even greater increases in meat and grain prices, including rice, corn and wheat, "supported by a persistent, tight supply and demand situation''    Bloomberg report   Unlike crude oil, wheat prices have not yet hit inflation-adjusted highs -- that honor is left for the period of Soviet Union's desperate wheat purchases during the 1970s. But they have increased 50% in the last 6 months. 

The NY Times reported that the world’s wheat stockpiles have fallen to their lowest level in 30 years, and stocks in the United States have dropped to levels unseen since 1948. The Food and Agriculture Organization of the United Nations estimates that world wheat production will rise this year to nearly 664 million tons, from about 655 million tons — not enough to replenish stocks and push down prices. In December, the organization noted that high international grain prices were causing food shortages, hoarding and even riots in some places.  The NYT reports:

The United States Department of Agriculture’s 10-year forecast, released Tuesday, sees the wheat shortage as temporary. Stockpiles were predicted to fall this year to 312 million bushels, from 456 million bushels, before rebounding to about 700 million bushels by the end of the decade.Higher prices “will encourage additional acreage and production,” the report said. Wheat plantings will rise to 65 million acres in the 2008-9 season, from 60.4 million this year, the Agriculture Department said, though it predicted the number would then fall because of competition from other crops. NYTimes story

So, we can expect a year or so of relief from these prices.  And then?  "Competition from other crops" -- does that mean biofuels?  I'm still looking for an answer, so stay tuned.

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.

Today's AMS Seminar addresses relative contributions of GHG emissions, solar radiation, and cosmic rays to global warming

American Meteorological Society's Environmental Science Seminar Series

Solar Radiation, Cosmic Rays and Greenhouse Gases: What's Driving Global Warming?

What are the relative contributions from the sun, cosmic rays, and greenhouse gases, to the observed warming in the late 20th century and what are their expected contributions during the 21st Century? How does this compare to natural climate variability of past centuries and millennia? What is the principle driver or drivers of global warming in the 20th and 21st centuries? How are cosmic rays different from solar irradiance? Are there direct measurements of solar irradiance changes over the last 30 years or so? If so, what do these measurements show? What are the signals of this solar variability in the Earth’s atmosphere, and how do climate models reproduce these? Are we likely to observe additional changes in solar irradiance in the future and what might such variability have as an effect on climate? How is the ozone layer affected by solar activity changes and how does it influence surface weather and climate?

Today's seminar with Dr. Judith Lean, Senior Scientist for Sun-Earth System Research, Space Science Division, Naval Research Laboratory, Washington, DC and Dr. Caspar Ammann, Research Scientist, Climate and Global Dynamics Division, National Center for Atmospheric Research, Boulder, CO answered those questions.  According to the Program Summary  which is available below, climate reconstructions suggest there has been a small, but persistent, climate response to solar variability on both a global/hemispheric scale as well as in some regions. Solar forcing and volcanic activity appear to have driven the majority of global/hemispheric climate variations over the past Centuries. But from about the mid-20th Century onward, the sum of these natural factors is no longer consistent with the observed warming. Only anthropogenic forcings, such as greenhouse gas increases and emissions of aerosol particles, can explain the observed temperature record. This explanation is even stronger when the vertical structure of the trends is included in the explanation. The panelists suggest that future natural solar variations will be insufficient to counter global warming that we can anticipate from future increases in greenhouse gas concentrations.

The next AMS Seminar is scheduled for April 7, 2008. Tentative Topic: Adapting to Climate Change: What Happens to Our Energy and Transportation Infrastructure?

S

eparating Solar and Anthropogenic (Greenhouse Gas-Related) Climate Impacts

During the past three decades a suite of space-based instruments has monitored the Sun’s brightness as well as the Earth’s surface and atmospheric temperatures. These datasets enable the separation of climate’s responses to solar activity from other sources of climate variability (anthropogenic greenhouse gases, El Niño Southern Oscillation, volcanic aerosols). The empirical evidence indicates that the solar irradiance 11-year cycle increase of 0.1% produces a global surface temperature increase of about 0.1 K with larger increases at higher altitudes. Historical solar brightness changes are estimated by modeling the contemporary irradiance changes in terms of their solar magnetic sources (dark sunspots and bright faculae) in conjunction with simulated long-term evolution of solar magnetism. In this way, the solar irradiance increase since the seventeenth century Maunder Minimum is estimated to be slightly larger than the increase in recent solar activity cycles, and smaller than early estimates that were based on variations in Sun-like stars and cosmogenic isotopes. Ongoing studies are beginning to decipher the empirical Sun- climate connections as a combination of responses to direct solar heating of the surface and lower atmosphere, and indirect heating via solar UV irradiance impacts on the ozone layer and middle atmosphere, with subsequent communication to the surface and climate. The associated physical pathways appear to involve the modulation of existing dynamical and circulation atmosphere-ocean couplings, including the El Nino Southern Oscillation (El Nino/La Nina cycles) and the Quasi-Biennial Oscillation . Comparisons of the empirical results with model simulations suggest that models are presently deficient in accounting for these pathways.

The Sun's Role in Past, Current and Future Climate Change

Correlations of instrumental or reconstructed climate time series with indices of solar activity are often being used to suggest that the climate system is tightly coupled to the sun. Yet correlations have to be used with caution because they are not necessarily synonymous with cause-and-effect relationships. Therefore, it is critical to understand the physical mechanisms that are responsible for the signals. Independent tests can then be applied to validate or reject a hypothesized link. Spatial structures that are related to the processes that translate the solar influence into a climatic response can serve as such a test. A particularly powerful example is obtained by looking at the vertical extent of the solar signal in the atmosphere. While the 11-year solar cycle can be found and the signal is consistent with the expected physical response throughout the atmospheric column, the underlying trends in temperature, however, are inconsistent with increased solar activity. These differences in trends correspond to the response to an increase in atmospheric greenhouse gas concentrations.

Another way of evaluating the consistency of a sun-climate relationship can be gained from extending the time scale from the most recent solar cycles back over the instrumental period and further into the historical past. However, solar forcing is not the only factor affecting climate, and thus other influences should not be neglected. Examples of the danger of over-interpretation of a purported solar link arising from superposition of multiple forcings are the famous Maunder Minimum (a period in the second half of the 17th and the early 18th Century when hardly any sunspots appeared on the solar surface), and the early 20th century where a general but small increase in solar activity coincided with changes in greenhouse gas concentration. The sun probably played some role in both of these cases, but the occurrence or absence of volcanic eruptions and other influences might have been just as important.

Nevertheless, climate reconstructions suggest that a small, but persistent, climate response to solar variability exists on the global/hemispheric scale as well as in some regions. Solar forcing and volcanic activity appear to have driven the majority of global/hemispheric climate variations over the past Centuries. But from about the mid-20th Century onward, the sum of these natural factors is no longer consistent with the observed warming. Only anthropogenic forcings, such as greenhouse gas increases and emissions of aerosol particles, can explain the observed temperature record. This explanation is even stronger when the vertical structure of the trends is included in the explanation. Therefore, one can also predict that future natural solar variations will most likely be insufficient to counter the changes that we can anticipate from future increases in greenhouse gas concentrations.

Biographies

Dr. Judith Lean is Senior Scientist for Sun-Earth System Research in the Space Science Division of the Naval Research Laboratory in Washington, DC. She has served on a variety of NASA, NSF, NOAA and NRC advisory committees, including as Chair of the National Research Council (NRC) Working Group on Solar Influences on Global Change and, most recently, the NRC Committee on a Strategy to Mitigate the Impact of Sensor De-scopes and De-manifests on the NPOESS and GOES-R Spacecraft. A member of the AGU, IAGA, AAS/SPD and AMS, she was inducted as a Fellow of the American Geophysical Union in 2002 and a member of US National Academy of Sciences in 2003. She is the recipient of a number of NASA research grants, in collaboration with other SSD and US scientists, and is currently a Co Investigator on the SORCE, TIMED/SEE, SDO/EVE and GLORY/TIM space missions. A US citizen since 1992, she has a Ph.D. in Atmospheric Physics, 1982, from the University of Adelaide, Australia and B.S. (with Honors) from the Australian National University (1975). The focus of her research is the Sun’s variability and its impact on the Earth system, including climate change and space weather. She has published over 100 peer-reviewed papers in journals and books, and delivered over 250 presentations documenting her research.

Dr. Caspar Ammann is a research scientist, in the Climate and Global Dynamics Division of the National Center for Atmospheric Research in Boulder, Colorado. He has a M.S. degree in Geography and Geology from the University of Bern, Switzerland and a Ph.D. in Geosciences from the University of Massachusetts. His primary research is focused on the climate of past centuries and millennia, and how the current changes compare to this natural background. He has reconstructed past climates as well as volcanic forcing from proxy (e.g., ice cores, corals etc..) records and then simulated climate variability and response to forcings in state-of-the-art coupled Atmosphere-Ocean-General Circulation Models. Currently, Dr. Ammann’s research awards include an National Science Foundation Collaborations in Math- and Geosciences multi-institution program award to develop new Bayesian Hierarchical Models to reconstruct climate from proxies with different resolution and uncertainties and a project to improve regional impact studies based on better representation of forced, natural climate variations. He is a collaborator in several efforts to understand the effects of natural forcings on past Arctic climate and to improve model representation of the external forcing from the sun and volcanoes. He is also the organizer of the IGBP-PAGES Paleoclimate Reconstruction (PR) Challenge to assess spatial reconstruction methods and a member of the NASA Living with a Star, Targeted Research & Technology Scientific Steering Committee. Dr. Ammann has authored or co-authored more than 30 peer-reviewed articles in scientific journals and books, and made over 200 scientific presentations to peer-scientific, professional and student, as well as public audiences.

http://www.ametsoc.org/atmospolicy/ESSSRegister.html

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.

DOT Downplays Transportation Report on Climate Change Impacts and Prevents Press from Interviewing the Author

HT to Lance Olson Climate Change Yahoo group:

The Government Accountability Project reported today on a major study on climate change impacts released on Wednesday by U.S. Department of Transportation (DOT) and the U.S. Climate Change Science Program.Gulf Coast Transportation study   This study reported on the likely impacts of global climate disruption on transportation infrastructure in the Gulf Coast region.  GAP indicates that the  report release was buried by the DOT, and officials have been blocking journalists from speaking with the report's lead author.

Specifically the report, Impacts of Climate Change and Variability on Transportation Systems and Infrastructure: Gulf Coast Study, analyzes how Gulf Coast roads and highways, transit services, oil and gas pipelines, freight handling ports, transcontinental railroad networks, waterway systems, and airports are likely to be harmed by heat waves, extreme precipitation events, sea level rise, increased hurricane intensity, and storm surge damage associated with climate change. The report outlines why changes must be incorporated in transportation planning now in order to avoid serious future problems.

Three hours after the report was posted online Wednesday, DOT issued an uninformative and misleading press release on a separate Web site. The press release lists only one contact - a DOT press official. Reporters who have tried to interview the report's lead author, Federal Highway Administration official Michael Savonis, have been explicitly told by DOT officials that the author and the press cannot communicate with each other. As lead author, Savonis should be allowed to brief and respond to press inquiries.

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.

The Buzz on Climate Legislation

According to E & E, Rep. Ed Markey (D-Mass.) will send House Speaker Pelosi a report from the Select Committee on Energy Independence and Global Warming with legislative proposals to address climate change on or before the House Energy and Commerce Committee holds a markup on a major piece of climate legislation.  Markey was selected by Pelosi as chair of the Select Committee on Energy Independence and Global Warming, which Pelosi created  when the Democrats took control of Congress last year.  Markey's committee lacks legislative authority, but has held more than 30 hearings on climate change and energy issues.

Markey's staff reportedly has been meeting with alternative energy firms, labor groups, finance specialists, and others seeking legislative ideas.  Markey's report is expected after House Energy and Commerce Chairman John Dingell releases his draft climate legislation in mid-April. Dingell (D-Mich), of course, has been protective of the automobile industry -- for example, he attempted last summer to preempt California's GHG emission standards for motor vehicles.   If displeased with the bill ultimately reported by Dingell, Pelosi could seek a special rule making Markey's legislative proposal(s) the basis of floor debate, in lieu of Dingell's bill.  If Dingell bill's is overly protective of narrow interests or insufficiently stringent, that sort of end run just might happen.

Crude oil surpasses $ 108

Crude-oil futures surpassed $108 for the first time, before closing above $107 a barrel.  The gloomy economic outlook in the United States increases the prospect that the Fed will cut interest rates again, creating an even weaker dollar.  The euro was trading at $1.5358, near its record high. A weaker dollar pushes oil prices up as it makes dollar-denominated oil less expensive to buyers holding other currencies.

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

The Disinformation Campaign Continues: Utilities Say EEI Exaggerates Costs to Address Climate Change

According to Greenwire, eight utility executives, including PG & E, FPL, and Entergy, wrote Edison Electric Institute seeking changes in EEI's report on the cost of implementing pending   climate change legislative proposals.  "It appears that EEI has been circulating this material as an effort to scare senators from moving forward with the Lieberman-Warner legislation," Frank O'Donnell of Clean Air Watch wrote the Miami Herald in an e-mail. "In a polite, corporate way, the power execs appear to be wood-shedding EEI CEO Tom Kuhn" (John Dorschner, Miami Herald, March 6).

Loan Program for Rural Power Plants Suspended on Climate Change Grounds

HT Bill Buzbee on UO envlawprofessor list - from Greenwire:

The federal government is suspending a major loan program for coal-fired power plants in rural communities, saying the uncertainties of climate change and rising construction costs make the loans too risky.

After issuing $1.3 billion in loans for new plant construction since 2001, none will be issued this year and likely none in 2009, James Newby, assistant administrator for the Rural Utilities Service, a branch of the U.S. Department of Agriculture, said Tuesday.

The program's suspension marks a dramatic reversal of a once-reliable source of new coal plant financing. It follows the announcement last month that several major banks will require plant developers to factor in climate change when seeking private funding (Greenwire, Feb. 4).

At the time of the suspension, at least four utilities had been lined up for loans totaling $1.3 billion - for projects in Kentucky, Illinois, Arkansas and Missouri. A project in Montana was denied funding last month. Two more were recently withdrawn: last October in Wyoming and earlier this week in Missouri (AP/International Herald Tribune, March 5)

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.

By any measure, oil hits historic high price over $ 104

In 1980, when OPEC used its monopoly power to dramatically cut the supply of oil, oil prices reached an inflation-adjusted high between $ 90 and $ 103.  The wide variation reflects the difficulty in those times of establishing the market price of oil and the difficulty in choosing a way to adjust for inflation.  But now we don't need to worry about those details: oil prices are hitting historic levels.  Dow Jones Marketwatch

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.

Oil Prices Exceed $ 101/barrel Today

The intraday high for crude reached $ 101.15/barrel today and ultimately settled to $ 100.88.  MarketWatch link And this is in the midst of a recession!  Seems like OPEC may have manipulated the rest of us into an awfully tight spot -- or may be it is just peak oil rearing its ugly, but inevitable head.

Election 2008 -- The Candidates Speak in Their Own Words -- Part III:John McCain

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.  Today's post is John McCain.

Here's the foreign policy of John McCain with respect to the environment (especially global warming) in his own words:

SECURING ENERGY AND SAVING THE ENVIRONMENT

America's dependence on foreign oil constitutes a critical strategic vulnerability. America accounts for 25 percent of global demand for oil but possesses less than three percent of the world's proven reserves. Most of the world's known reserves are in the Persian Gulf, in the hands of dictators or nationalized oil companies. Terrorists understand our vulnerability: had it succeeded, the attempted suicide attack on a Saudi refinery in February 2006 would have driven the world price of oil above $150 per barrel. The transfer of American wealth to the Middle East through continued oil purchases helps sustain the conditions under which extremism breeds, and the burning of oil and other fossil fuels spurs global warming, a gathering danger to our planet.

My national energy strategy will amount to a declaration of independence from our reliance on oil sheiks and our vulnerability to their troubled politics. This strategy will include employing technology to achieve new efficiencies in energy extraction and consumption, enforcing conservation, creating market incentives to encourage the development of alternative sources of energy and hybrid vehicles, and expanding sources of renewable energy. I will also greatly increase the use of nuclear power, a zero-emission energy source. Given the proper incentives, our innovators, scientists, entrepreneurs, and workers have the capability to lead the world in achieving energy security; given the stakes, they must.

I have proposed a bipartisan plan in the U.S. Senate to address the problem of climate change and ensure a sustainable future for humankind. My market-based approach will set reasonable caps on emissions of carbon dioxide and other greenhouse gases, provide industries with tradable emissions credits, and create other incentives for the deployment of new and better energy sources and technologies. It is time for America to lead the world in protecting the environment for future generations.