Environmental Law Prof Blog

Buying silence...the Tejon Ranch habitat conservation plan

An AP report yesterday by Noaki Schwartz disclosed that a development company has bought the silence of  3 of the 6 or so condor specialists, evaluating the habitat conservation plan for a major housing development proposed in critical habitat of the endangered condor.  Apparently the Sierra Club, NRDC, Audubon California and other environmental groups helped negotiate the plan, which sets aside 375 square miles for the bird and other wildlife species.  And the developer then sought to retain virtually all of the scientists who could potentially testify about the plan's effects on the condor.  Environmental groups, the USFWS, and NOAA should implement a policy that rejects habitat conservation plans where the proponent seeks to silence potential independent evaluators with confidentiality agreements.  Any decision reached under such circumstances can hardly be based on the best scientific information available...just the best scientific information that hasn't been bought.Common Dreams

Crude exceeds $ 135/barrel and gas prices rise over $ 4

Last night the overnight crude oil prices exceeded $135/barrel. Marketwatch  Yesterday premium gas prices  over $ 4 .20, up 70 cents from last year, were reported. BizJournal 

So what does it mean?  Inconvenience for most of us; true hardship for some; a political football for the fall election; some parity with the prices traditionally paid in the EU; the beginning of a long and winding road to new ways of building cars and cities and new transportation habits - biking, walking, motorcycling, mass transit, less air travel and more rails.  Perhaps a slight change in the pace of American life -- definitely an improvement, although adjusting to it will take some time.

But, we ain't seen nothing yet on the price front -- peak oil and the cost of mitigating global warming certainly will make these prices a nostalgic reminder of the good old days 10 years from now. 

But, for now, just invest in renewable energy and bike stocks, move closer to work, buy an electric car, walk, take the bus, ride a bike, stop buying things you don't need, enjoy your family and friends close to home, plant a yard you don't have to water or mow, and decompress your life.  Remember change happens.

Boxer releases new, improved Senate global warming bill

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Allocation programs include:

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

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

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

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

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

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

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

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

• Allowance funded programs include:                

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

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

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

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

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

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

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

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

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

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

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

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

 

Take that!

The House overwhelmingly passed the Gas Price Relief for Consumers Act, H.R. 6074 today, waiving the sovereign immunity of OPEC nations in order to allow the Justice Department to sue OPEC members for limiting oil supplies and working together to set crude prices, subjecting OPEC oil producers, such as Saudi Arabia, Iran and Venezuela, to US antitrust laws.  Wash Post report OPEC investments in the United States would serve as the source of damage awards.  The Bush administration  threatened to veto the bill, arguing that OPEC nations would retaliate by cutting crude production, hurting US gasoline refineries and raising gas prices.  However, the 324-84 vote makes the measure veto-proof.   

According to Speaker Pelosi, the bill also (1) creates a new DOJ Petroleum Industry Antitrust Task Force to examine the existence and effects of price gouging in the sale of gasoline, anticompetitive price discrimination by petroleum refiners, unilateral actions to withhold supply in order to inflate the prices, and manipulation in futures markets and (2) requires a GAO study as to the effects on competition of prior mergers and ordered divestitures in the petroleum industry.

One interesting aspect of this legislation is Congress' willingness to make US laws applicable extra-territorially.  If the US extended labor and environmental laws to apply extra-territorially to multi-national corporations that are based or operate in the United States, especially labor and environmental laws, imagine how the world might change.

CO2 Inventory Data Source

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

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

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

There's more than one way to change ExxonMobil's neanderthal policies

Momentum seems to be building for an investor revolt at ExxonMobil's annual meeting with respect to ExxonMobil's failure to invest in renewable energy and its approach to the global warming problem.

The family of founder John D. Rockefeller has sponsored four shareholder resolutions demanding changes in corporate investment strategies on renewable energy as well as organizational structure, particularly the appointment of an independent chair of the Board of Directors.  The latter resolution, which garnered a 40% vote last year, is winning support from major institutional investor and firms advising institutional investors.  And the active involvement of the Rockefeller family this time around may push the resolution over the top.

The Guardian reports that F&C Asset Management, Morley Fund Management, the Co-Operative Insurance Society and the West Midlands Pension Fund are demanding that ExxonMobil appoint an independent chair, along with London-based corporate governance advisory service Pirc and three  U.S. advisory firms – RiskMetrics, Glass Lewis and Proxy Governance.   

Spotted Owl Recovery Plan Released

The Fish and Wildlife Service released the final recovery plan for the northern spotted owl today, emphasizing forest conservation and reducing the threat of rival barred owls.  The plan identifies 34 recovery actions necessary to address the risks from the barred owl, timber harvest and catastrophic wildfires.  The recovery plan estimates that it will take 30 years and nearly $ 500 million to reach the goal of delisting the spotted owl.  However, due to the continued decline in population during the Northwest Forest Plan, the recovery plan calls for immediate actions during the next 10 years.

The plan for the western Cascades is to create a network of 133 Managed Owl Conservation Areas with 6.4 million acres of federal land.   In addition, the plan suggests the Forest Service and BLM maintain older, complex forests outside the MOCAs to provide a buffer between barred owl and spotted owl populations.  In the eastern Cascades, the plan does not envision a connected network because of wildfires and insect infestation, but instead relies on protecting spotted owl habitat in patches.

As specified in the plan, its long-term objectives are:
• Spotted owl populations are sufficiently large and distributed such that the species no longer requires listing under the ESA.
• Adequate habitat is available for spotted owls and will continue to exist to allow the species to persist without the protection of the ESA.
• The effects of threats have been reduced or eliminated such that spotted owl populations are stable or increasing and spotted owls are unlikely to become threatened again in the foreseeable future.

The "interim expectations" for the next 10 years are:
• The Barred Owl Work Group has quantified the threats from the barred owl on the spotted owl, control techniques and appropriate implementation plans have been developed, and a decision on managing barred owls has been made.
• The MOCA network has been established in the western Provinces with appropriate management of habitat-capable lands inside the MOCAs to support spotted owls.
• The Dry-Forest Landscape Work Group has developed, and Federal land management agencies have initiated and are implementing, a comprehensive program to restore ecological processes and functions, thus reducing the potential for significant habitat loss by stand-replacement fires, insects, and disease.

The final plan is already under attack from both conservation and timber groups for lack of detail about the type and amount of older forests that will be preserved in buffer ranges.

The Hills are Alive....

As the global temperature rises, Scandinavian mountains are growing trees that require warm temperatures, such as oak, elm, maple, and black alder.   Science Daily reports that studies by Professor Leif Kullman have noted an elevation of timberline by 200 meters, allowing trees to establish in areas that have not been forested for 8,000 years.  "The changes are so rapid that plants like fireweed (rose bay) and rowan have even taken root in the gravel up on melting glaciers. Even wood anemones are appearing higher up the mountain," says Leif Kullman,"the alpine world is evincing truly major changes despite the modest increase in temperature. Present prognoses of a temperature increase of three degrees by 2100 will entail considerably more sweeping changes. We can expect fewer bare mountain areas, even more lush vegetation, and a richer flora."

Wishful Thinking About Oil Bubble

Good reading: Paul Krugman's op-ed piece in yesterday's NY Times poked a hole in the wishful thinking that the increase in oil prices over the last 5 years from $25/barrel to $125/barrel is just a speculator induced bubble.  NY Times link  The reality is that oil prices are rising and will continue to rise, especially as we start to seriously tackle the global warming problem.   It is appalling that McCain and Clinton would support a gas tax holiday to insulate Americans, who generally consume twice as much oil as similarly developed countries, from the consequences of their oil gluttony.

CO2 Levels Rising Faster than Expected

NOAA data indicates that carbon dioxide concentration in the atmosphere has reached new heights.  NOAA greenhouse gas index link  CO2 levels in the atmosphere now stand at 387 parts per million (ppm), up 40% since the industrial revolution and the highest levels experienced during the last 650,000 years.  The annual mean growth rate for 2007 was over 2.1 ppm.  In the 1960s, the growth rate was less than 1 ppm.  By the 1980s, the growth rate had increased to 1.5 ppm.  But since 2000 the annual rise has increased to an average 2.1ppm. This increasing rate of growth in CO2 concentration may indicate that forests and oceans are no longer effectively absorbing CO2 -- this suggests continuing CO2 emissions will have a greater impact on mean global temperature than predicted by existing climate models – requiring deeper cuts in emissions than those recommended by the IPCC to prevent dangerous levels of global warming.

 

Back on track

Over the course of the last two weeks, I had a close encounter with the ultimate mystery, brought to me courtesy of a bacterial blood infection -- one of those critters that we include within the broad umbrella of biodiversity.  Forgive me for the moment -- I'm not a fan of bacteria right now.