Environmental Law Prof Blog

Senators call for EPA Administrator Johnson's resignation

It's about time.  Johnson has stonewalled for the Bush administration long enough.

Yesterday Environment and Public Works Committee Chair Barbara Boxer (D-CA), Sheldon Whitehouse (D-RI), Amy Klobuchar (D-MN) and Frank Lautenberg (D-NJ) called for EPA Administrator Stephen Johnson's resignation, charging that Johnson had given misleading testimony before Congress, refused to cooperate with Oversight investigations and politicized EPA decisions.  According a press release issued by the EPW committee, they also havee requested that Attorney General Mukasey investigate apparent contradictions between the sworn testimony of Administrator Johnson and the testimony of other sworn witnesses regarding the circumstances surrounding EPA's denial California's request for a waiver under the Clean Air Act to set strong standards for global warming emissions from vehicles. 

Talking Points Memo, reporting on the resignation request, noted that Johnson "repeatedly refused" to appear before Congressional committees, including the Senate  Judiciary Committee, which canceled a hearing scheduled for July 30, after Johnson informed them he would not be coming -- and that when Johnson has testified before congressional committee,  he has "driven questioners to furious distraction" by refusing to answer questions and his convenient memory loss when ask to recount events.

 

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

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

Important step forward for carbon capture and sequestration: EPA proposes UIC rule

Given the supplies of coal available to the US and China, it is critical that effective carbon capture and sequestration technologies be developed and that effective environmental protections be put in place to regulate those technologies.  While some have suggested ocean sequestration of CO2, the preferred type of carbon capture and sequestration is geologic sequestration.  With geological sequestration, CO2 is captured from flue gas produced by fossil-fueled power plants or industrial facilities, compressed to convert it from a gaseous state to a supercritical fluid, and transported to the sequestration site, usually by pipeline. The  fluid CO2 is then injected into deep subsurface rock formations through one or more wells, likely at depths greater than approximately 800 meters where pressure and temperature are sufficient to keep the CO2 in a supercritical state.  When injected, CO2 is sequestered by a combination of physical and geochemical trapping processes. Physical trapping occurs when the relatively buoyant CO2 rises in the formation until it reaches a low-permeability layer that inhibits further upward migration, or when residual CO2 is immobilized in formation pore spaces. Geochemical trapping occurs when chemical reactions between the dissolved CO2 and minerals in the formation lead to the precipitation of solid carbonate minerals. Similarly, naturally-occurring CO2 deposits have been physically and geochemically trapped in geologic formations for millions of years.

Injection of any substance into a well is regulated under the Underground Injection Control regulations promulgated under the Safe Drinking Water Act.  EPA believes that the relative buoyancy of CO2, its corrosivity in the presence of water, the potential presence of impurities in captured CO2, its mobility within subsurface formations, and large injection volumes anticipated at full scale deployment warrant specific requirements tailored to this new practice.  So, EPA has proposed a new class of UIC well for GS, a Class VI well, and requirements for such wells.  Proposed UIC CO2 Rule

The not so good news: crude fails 5% to below $140.

Crude oil jumped to record highs above $ 147 on July 11 driven by political and economic concerns after Iran fired intercontinental ballistic missiles to signal its willingness to use military force to resolve regional geopolitical conflicts.  Crude prices, of course, are always sensitive to geopolitical conflicts in the Middle East.  For a more comprehensive history of oil prices, see the excellent summary at WTRG Economics.

Yesterday, however, crude oil slide below $ 140 a barrel, losing more than 5%,  the largest single day loss in the last 17 years. Commentators attribute the loss to investors fleeing energy related stocks and commodities, reasoning that the rather severe US economic downturn would reduce demand for fuel.  MarketWatch report

The US economic troubles, particularly in the housing and now the financial sector, are remarkably severe.  Last week, AP reported that mortgage foreclosure filings in June increased more than 50% over last year's rate.  Economists expect 2.7 million homeowners to receive foreclosure notices in 2008 and more than half are expected to actually lose their homes.  MercuryNews/AP report    More and more foreclosures are likely due to continued job losses, housing prices that are plummeting in some markets, slow home sales, and increasingly tight mortgage lending restrictions.

The rapidly accelerating foreclosure problem has created a crisis in the financial markets.  :the $4 - 8 billion failure of IndyMac on Friday was one of the largest bank failures ever, occurring after a precipitous drop in its stocks.  The graph below on the left showing all stock price data for IndyMac and the graph on the right showing data for the last year demonstrate just how precipitous the cliff was for IndyMac:

 

Despite the federal government pledge Sunday to bailout the secondary mortgage giants of Fannie Mae and Freddie Mac by extending more credit or buying a stake in secondary market firms, the firms' bank financial strength ratings have been slashed and investors continue to flee from their stocks. Forbes/Thomson Financial News Though the chair of the FDIC assures us that Fannie Mae and Freddie Mac are well-capitalized, they are reportedly leveraged to the tune of nearly 70-1. 

And the continuing decline in their stock prices as of yesterday (reflected in the 1 year charts below -- click on the charts for larger pop-up images) as of yesterday continues today. 

Emergency rules issued today  restricted short sales of the two firms, but did not stem investor flight today as Freddie Mac lost $1.85, falling  26% tdoay from $7.11to $5.26 and Fannie Mae lost $ 2.66, falling  27% from $9.73 to $7.07. Bloomberg report

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And the rest of the banking sector is suffering, with some regional banks on the verge of becoming dollar, if not penny, stocks and the largest banks experiencing similar losses.

The weakness of smaller and regional banks such as National City Bankcorp, Washington Mutual, and Wachovia stock prices are illustrated by the 1 year stock price charts above.

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And the larger national banks, Bank of America, Wells Fargo, and Citibank, have a similar stock price trend, as shown by the 1 year charts below.

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And the primary brokers are also suffering (as shown by the 1 year stock price charts of Lehmann Bros. and Merrill Lynch on the top and Morgan Stanley and Goldman Sachs on the bottom).

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So, what does this have to do with environmental law?  Frankly, global poverty and ecological integrity are difficult enough to achieve when financial times are good.  When US gas prices rocketed over $4 gallon, carbon taxes and even carbon caps based on auctioned marketable rights became more politically more dangerous.  And attention shifted from achieving energy independence and carbon neutrality to reducing gas prices.

Yet, it is precisely the tendency of banks and other corporations, responding to the short-term incentives provided by stock markets, to engage in long-term economically and socially destructive behavior that caused the US financial crisis.  Business really is its own worst enemy sometimes...and ours.

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Cool widget for comparing members of Congress.

Environmental Case Summaries

Here are Findlaw's environmental case summaries:

Table of Contents
ENVIRONMENTAL LAW CASES

• City of Bangor v. Citizens CommunicationsCo.
• Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc. (continuation page)
• Wilderness Workshop v. US Bureau of Land Mgmt.
• Am. Wildlands v. Kempthorne
• N.C. v. EPA
• Florida Dept. of Envtl. Protection v. ContractPoint Florida Parks, LLC (continuation page)

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

U.S. 1st Circuit Court of Appeals, July 09, 2008
City of Bangor v. Citizens CommunicationsCo., No. 07-2193, 07-2255, 07-2759, 07-2777
In a suit involving the responsibility for the cleanup of the contamination of a river bed in Maine under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA), entry of a consent decree allocating certain responsibilities among various parties and dismissal of motions for judgment as to non-settling third and fourth parties' liability are affirmed where: 1) appellants had standing to challenge the consent decree; 2) the deference given to Maine's decision to sign onto the consent decree is not the same as that given to the EPA in a consent decree, and does not displace the baseline standard of review for abuse of discretion; 3) there was no abuse of discretion in not scrutinizing the purported assignment to test its validity; 4) there was no abuse of discretion in finding the decree to be procedurally fair; 5) the district court's substantive fairness finding was well within its discretion; 6) there was no abuse of discretion in a finding ! that the consent decree complied with CERCLA; and 7) there was no obligation to rule on the motions for judgment before it approved the decree. Read more...

U.S. 10th Circuit Court of Appeals, July 08, 2008
Wilderness Workshop v. US Bureau of Land Mgmt., No. 08-1165
In a suit challenging a decision by agency defendants authorizing defendant/intervenor to construct, operate, and maintain a natural gas pipeline through roadless national forest land, denial of plaintiffs' motion for preliminary injunction is affirmed where: 1) plaintiffs failed to show a substantial likelihood of success as to a claim that defendants' authorization of the project violated the Forest Service's Roadless Rule; 2) they also failed to show a substantial likelihood of success as to a NEPA claim; and 3) there was no abuse of discretion as to the analysis of the remaining prongs of the preliminary injunction test. Read more...

U.S. D.C. Circuit Court of Appeals, July 08, 2008
Am. Wildlands v. Kempthorne, No. 07-5179
In a petition to the Fish and Wildlife Service to list the westslope cutthroat trout as a threatened species due to interbreeding with other trout species, denial of the petition by the agency and a denial to supplement the record with material supporting plaintiffs' cause are affirmed where: 1) although new data might require a future listing of the fish as threatened, the agency engaged in reasoned decision-making based on the best available science; and 2) the district court did not abuse its discretion in refusing to supplement the record. Read more...

U.S. D.C. Circuit Court of Appeals, July 11, 2008
N.C. v. EPA, No. 05-1244
In a petition for review of various aspects of the Clean Air Interstate Rule (CAIR) and several challenges to the EPA's authority under Title I and Title IV, the circuit court vacates the rule in its entirety based on several fatal flaws in the rule, and the fact that the Environmental Protection Agency (EPA) adopted the rule as one, integral action. Read more...

 

 

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1/3 of coral reef building species in danger of extinction

One-third of coral reef-building species are in danger of extinction -- according to a recent study by Kent Carpenter.  He reviewed 704 reef-building coral species and rated them according to International Union for Conservation of Nature (IUCN) standards of extinction risk. One-third of those species fall into the threatened or near-threatened categories, which are considered at increased risk for extinction. Science.

The highest concentration of jeopardized species lives in two areas: the Caribbean Sea and the western Pacific "Coral Triangle," which spans Indonesia, Malaysia, the Philippines, and nearby areas. Using current figures and extrapolations from historical data, the researchers estimated that in the 1990s less than 5% of the 704 species would have been placed in the threatened or near-threatened IUCN categories.

A fish eye view of global warming

Global warming will extinguish dozens of marine fish species that cannot migrate to colder waters, according to a study by University of British Columbia researchers Pauly and Cheung.  Science synopsis of research   Replacing the lost biodiversity with new species will take millions of years.   A change in ocean temperature of even a degree or two forces species to migrate to new ecosystems with different foods and different predators.  Indeed, already almost two-thirds of fish in the North Sea now live in different locations or depths because of rising sea temperatures (Science, 13 May 2005, p. 937).

Pauly, Cheung and their colleagues have done ocean-wide modeling of the effects of climate change on marine fishes.  They modeled a range of habitat conditions that species can tolerate such as water temperature, depth, and distance from sea ice, predicted habitat changes that will occur in response to global warming, and predicted how fish and invertebrate populations will respond to those changes.

Changes in the polar region will likely include extinction of about 50 species of commercial fishes living at or near the poles that require cold polar water, such as the Antarctic toothfish (Dissostichus mawsoni).  Other species, living farther from the poles, will probably migrate toward the Arctic or Southern oceans, disturbing existing ecosystems.  Yet other populations such as the giant croaker (Totoaba macdonaldi), of the Sea of Cortez  and local hake (Merluccius merluccius) from the Meditteranean  Sea will be unable to migrate to colder waters and therefore face extinction.

Science reports on new hurricane model

ScienceDaily (July 9, 2008) — A new mathematical model indicates that dust devils, water spouts, tornadoes, hurricanes and cyclones are all born of the same mechanism and will intensify as climate change warms the Earth's surface.  HT Eric, Climate Change Group

University of Michigan professor Nilton Renno and UM research scientist Natalia Andronova have created a generalization of Bernoulli's equation to address all spiralling storms.  It more accurate calculates the maximum expected intensity of spiraling storms based on the depth of the troposphere and the temperature and humidity of the air in the storm's path. The model improves upon current thermodynamic models by using actual measurements of the energy feeding a storm system and friction slowing it down rather than make simplifying assumptions about those variables.

    "This model allows us to relate changes in storms' intensity to
    environmental conditions," Renno said. "It shows us that climate
    change could lead to increases in how efficient convective vortices
    are and how much energy they transform into wind. Fueled by warmer
    and moister air, there will be stronger and deeper storms in the
    future that reach higher into the atmosphere."

The model predicts that each increase of 3.6 degrees Fahrenheit will increase storm intensity by at least several percent.  The destruction power of intense storms could increase by 10%.  This prediction provides theoretical support for the empirical observations of scientists who suggest that hurricance intensity has increased as sea surface temperatures have risen.

Katy Kuh on Congestion Pricing

NYC's Congestion Pricing and the Dormant Commerce Clause

Had Mayor Bloomberg's proposal to impose a charge on drivers entering southern Manhattan during peak hours managed to survive Albany politics, its next stop would almost certainly have been the courts.  See, e.g., Tom Hester Jr., Corzine weighs legal action against congestion pricing plan, Newsday.com (April 8, 2008). 

One possible legal challenge to congestion pricing could be that it violates the dormant commerce clause.  In Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981), the Supreme Court found that an Iowa law prohibiting 65-foot double-trailer trucks within the state violated the dormant commerce clause. Although the plurality in Kassel struck down Iowa's law under the Pike balancing test, the plurality, along with a two-person concurrence, appeared to agree that barring vehicles from a jurisdiction to reduce traffic is a parochial (and therefore discriminatory and impermissible) purpose: 

"Iowa seems to have hoped to limit the use of its highways by deflecting some through traffic . . . . [A] State cannot constitutionally promote its own parochial interests by requiring safe vehicles to detour around it."  Id. at 677-78. 

The Court was particicularly concerned by evidence indicating that Iowa's purpose in enacting the truck ban was to "discourage interstate truck traffic" and that "the only apparent safety benefit to Iowa was that resulting from forcing large trucks to detour around the State, thereby reducing overall truck traffic on Iowa's highways."  Id. at 677, 668.  Kassel may raise a real question as to whether NYC's congestion pricing proposal -- which overtly seeks to limit vehicle access to much of Manhattan to reduce traffic (while permitting residents within the zone to drive freely) -- could be deemed discriminatory and thereby violative of the dormant commerce clause. 

I would argue that NYC's congestion pricing is not discriminatory, even adopting a broad interpretation of Kassel.  The sine qua non in ascertaining whether a measure is discriminatory for purposes of the dormant commerce clause is whether it affords benefits to residents of the enacting jurisdiction while imposing costs on those outside of the jurisdiction (and unable to vote on its adoption).  In the context of NYC's congestion pricing proposal, the benefits (less congested streets) accrue in large measure to those upon whom the charge is levied -- i.e., people driving into Manhattan during peak hours -- and not just residents of the zone.  Moreover, although New Jersey drivers are not politically represented with respect to NYC's adoption of congestion pricing, many outer borough voters (coming from Brooklyn, Queens, Staten Island and the Bronx) are and those outer borough voters will likewise bear the costs of a congestion fee.

I'm optimistic that NYC congestion pricing will someday triumph over Albany politics and, if it does, I'm likewise optimistic about its chances in court (at least with respect to a dormant commerce clause challenge).

Katrina Fischer Kuh
Associate Professor
Hofstra University School of Law
w (516) 463-6123

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

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