Environmental Law Prof Blog

Hurricanes Reach Higher Wind Speeds Due to Ocean Warming -- Another Climate Change Effect

A June 27 letter to Nature 455, 92-95 (4 September 2008) | doi:10.1038/nature07234 from James Eisner, James Kossin, and Thomas Jagger, suggests that Atlantic tropical hurricanes are getting stronger due to increased ocean temperatures.  While the same phenomenon is observed throughout the world, the effects are strongest in the tropical Atlantic.  Their study does not indicate necessarily that there are more hurricanes or stronger hurricanes in terms of average wind speed; instead, it is the maximum intensity of the hurricanes that is increasing -- in other words, their destructive potential. 

Abstract: link

Atlantic tropical cyclones are getting stronger on average, with a 30-year trend that has been related to an increase in ocean temperatures over the Atlantic Ocean and elsewhere^{1, 2, 3, 4}. Over the rest of the tropics, however, possible trends in tropical cyclone intensity are less obvious, owing to the unreliability and incompleteness of the observational record and to a restricted focus, in previous trend analyses, on changes in average intensity. Here we overcome these two limitations by examining trends in the upper quantiles of per-cyclone maximum wind speeds (that is, the maximum intensities that cyclones achieve during their lifetimes), estimated from homogeneous data derived from an archive of satellite records. We find significant upward trends for wind speed quantiles above the 70th percentile, with trends as high as 0.3 0.09 m s^-1 yr^-1 (s.e.) for the strongest cyclones. We note separate upward trends in the estimated lifetime-maximum wind speeds of the very strongest tropical cyclones (99th percentile) over each ocean basin, with the largest increase at this quantile occurring over the North Atlantic, although not all basins show statistically significant increases. Our results are qualitatively consistent with the hypothesis that as the seas warm, the ocean has more energy to convert to tropical cyclone wind.

Corps Jurisdictional Determinations are not Final Agency Actions under APA

The 9th Circuit ruled on Friday in Fairbanks North Star Borough v. U.S. Army Corp of Engineers that a final jurisdictional determination by the Army Corps of Engineers that an entire parcel is subject to CWA 404 jurisdiction is not a final agency action reviewable under the Administrative Procedure Act.  Fairbanks North Star Borough opinion   The decision indicates that, even though the Corps does not contemplate additional action regarding jurisdiction, its jurisdictional determinations do not finally fix or deprive the plaintiff of any rights or privileges.  That occurs only in the permitting decision that follows the jurisdictional determination. 

The Corps had created a regulation establishing a procedure for obtaining final jurisdictional determinations in the 1980s after defending a spat of lawsuits challenging its jurisdictional determinations.  On a policy level, the Corps preferred to litigate the question of jurisdiction early.

The 9th Circuit's decision is consistent with the Fourth Circuit's decision in Champion Intl. Paper v. U.S. EPA that EPA assuming jurisdiction to grant a permit under CWA 402(d) is not final agency action, because the agency will be making a permit decision.

Oil Prices

Despite Hurricane Ike shutting down 17% of the US oil production capacity, crude fell below $ 100 on more bad news about the financial markets.  Merrill Lynch and Lehman Bros. are going under and AIG needs $ 40 billion from the Fed to survive.  So, the Dow is taking a big hit.  Apparently energy stocks are headed south. NY Times on crude oil price.   Thus, the good news on crude is simply bad news on the economy -- no enthusiasm about oil supply, just the realization that without economic activity, oil demand is going to plummet.

Unfortunately, this not so good news was evident in July.  Its just taken a while to realize.  ELP Blog post 7-15

At least some folks agree that this is a short-term reduction in energy stocks and the price of crude.  One analyst, Byron King, considers the energy industry a bull ready to charge, forseeing future rises in energy prices."This time last year -- September 2007 -- a barrel of oil cost about $80, and rising ... Today, a barrel of oil is trading for about $107, or about a 33% increase year over year. That's no plunge ... the recent price retreat is not a plunge. It's just a correction within a long trend of rising prices for energy...Almost all of the world's largest oil fields were discovered over 30 years ago and have been lifting crude oil for 30, 40 or more years. So crude oil output from many of the world's oil fields is either flat (such as in Saudi Arabia) or falling (such as in Mexico). Even Russian oil output is dropping this year. No less an authority than the head of Gazprom recently stated that oil should sell for $250 or more per barrel."He also points out that the world is more hostile to Western oil companies: "As recently as the late 1970s, Western oil companies controlled well over half of the world's oil production. But now the NOC's [state-owned national oil companies) such as Saudi Aramco, National Iranian Oil Co., Kuwait Oil Co., Petroleos de Venezuela, Petroleos Mexicanos (Pemex), etc. control over 85% of the world's oil resources. Western majors control about 7% of the world's oil resource base." MarketWatch

 

Findlaw Environmental Law Case Summaries

   

ENVIRONMENTAL LAW CASES

                  

• Kentucky Waterways Alliance v. Johnson
• Geerston Seed Farms v. Monsato Co.
• Wong v. Bush
• Sierra Club v. Johnson
• Ctr. for Biological Diversity v. California Fish and Game Comm'n.

   

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

   

                           

             

U.S. 6th Circuit Court of Appeals, September 03, 2008
Kentucky Waterways Alliance v. Johnson, No. 065614
In a matter brought under the Clean Water Act (CWA), judgment of district court in favor of defendant Environmental Protection Agency (EPA) is affirmed in part, reversed in part, vacated in part and remanded where: 1) with respect to plaintiffs' challenge to the EPA's approval of Kentucky's categorical exemption of six types of pollution discharges from Tier II review, though the EPA's decision document details the tests conducted to measure each exemption's impact, the document often fails to include the resulting measurements; 2) court cannot review this legal conclusion's reasonableness without the EPA first discussing its assimilative-capacity loss estimates and explaining why it deems them insignificant; 3) EPA's approval of Kentucky's classification of certain waters as eligible for Tier I protection rather than Tier II protection was not arbitrary, capricious, and contrary to law. Case is remanded to EPA so that it may address the deficiencies in its consideration of ! state's de minimis exemptions. Read more...

U.S. 9th Circuit Court of Appeals, September 02, 2008
Geerston Seed Farms v. Monsato Co., No. 07-16458
In a National Environmental Policy Act case, grant of permanent injunction against planting disputed genetically engineered alfalfa seed pending completion by the U.S. Animal and Plant Health Inspection Service (APHIS) of an Environmental Impact Statement and deregulation decision, is affirmed despite the lack of an evidentiary hearing because the district court performed the traditional balancing test and the injunction would last only until completion of APHIS analysis. Read more...

U.S. 9th Circuit Court of Appeals, September 05, 2008
Wong v. Bush, No. 07-16799
In a case alleging First Amendment and National Environmental Protection Act violations by the U.S. Coast Guard in establishing safety zones insulating a private super-ferry from blockade by local protesters, denial of declaratory judgment is affirmed despite plaintiff's standing to sue where: 1) the safety zones established by the Coast Guard did not violate the First Amendment; and 2) the Coast Guard need not consider the secondary environmental effects of the super-ferry itself in the decision to establish safety zones. Read more...

U.S. 11th Circuit Court of Appeals, September 02, 2008
Sierra Club v. Johnson, No. 0711537
In a Clean Air Act case involving a dispute over what triggers the Environmental Protection Agency's statutory duty to object to the issuance of a Title V operating permit, petition to review EPA decision is denied where: 1) EPA Administrator's actions fell within the bounds of his discretion; and 2) a violation notice and civil complaint are merely initial steps in an enforcement action and do not, by themselves, inevitably trigger the EPA Administrator's duty to object under 42 U.S.C. section 7661d(b)(2). Read more...

California Appellate Districts, September 02, 2008
Ctr. for Biological Diversity v. California Fish and Game Comm'n., No. C055059
Judgment overturning rejection of petition is affirmed where the California Fish and Game Commission erred in rejecting at the threshold a petition to add the California tiger salamander to the Commission's list of endangered species, under the California Endangered Species Act (CESA). Read more...

 

OSU scientists establish the value of old growth forests as carbon sinks

Today, OSU scientists and other international researchers are publishing an analysis in Nature that runs counter to 40 years of conventional wisdom.  Their report suggests that old growth forests are usually "carbon sinks" - they continue to absorb carbon dioxide from the atmosphere and mitigate climate change for centuries.

According to the OSU press release:

these old growth forests around the world are not protected by international treaties and have been considered of no significance in the national "carbon budgets" as outlined in the Kyoto Protocol. That perspective was largely based on findings of a single study from the late 1960s which had become accepted theory, and scientists now say it needs to be changed.

"Carbon accounting rules for forests should give credit for leaving old growth forest intact," researchers from Oregon State University and several other institutions concluded in their report. "Much of this carbon, even soil carbon, will move back to the atmosphere if these forests are disturbed."

The analysis of 519 different plot studies found that about 15 percent of the forest land in the Northern Hemisphere is unmanaged primary forests with large amounts of old growth, and that rather than being irrelevant to the Earth's carbon budget, they may account for as much as 10 percent of the global net uptake of carbon dioxide.

In forests anywhere between 15 and 800 years of age, the study said, the net carbon balance of the forest and soils is usually positive – meaning they absorb more carbon dioxide than they release.

"If you are concerned about offsetting greenhouse gas emissions and look at old forests from nothing more than a carbon perspective, the best thing to do is leave them alone," said Beverly Law, professor of forest science at OSU and director of the AmeriFlux network, a group of 90 research sites in North and Central America that helps to monitor the current global "budget" of carbon dioxide.

Forests use carbon dioxide as building blocks for organic molecules and store it in woody tissues, but that process is not indefinite. In the 1960s, a study using 10 years worth of data from a single plantation suggested that forests 150 or more years old give off as much carbon as they take up from the atmosphere, and are thus "carbon neutral."

"That's the story that we all learned for decades in ecology classes," Law said. "But it was just based on observations in a single study of one type of forest, and it simply doesn't apply in all cases. The current data now makes it clear that carbon accumulation can continue in forests that are centuries old."

When an old growth forest is harvested, Law said, studies show that there's a new input of carbon to the atmosphere for about 5-20 years, before the growing young trees begin to absorb and sequester more carbon than they give off. The creation of new forests, whether naturally or by humans, is often associated with disturbance to soil and the previous vegetation, resulting in decomposition that exceeds for some period the net primary productivity of re-growth.

Old growth forests, the study said, continue to sequester carbon for many centuries. And when individual trees die due to lightning, insects, fungal attack or other causes, there is generally a second canopy layer waiting in the shade to take over and maintain productivity.

One implication of the study, Law said, is that nations with significant amounts of old forests may find it somewhat easier to offset greenhouse gas emissions if those forests are left intact. It will also be necessary, she said, for land surface models that attempt to define carbon balance to better characterize function of old forests.

Many of the conclusions from the study were based on data acquired from the AmeriFlux and CarboEurope programs, researchers said. Multiple funding sources included the U.S. Department of Energy, CarboEurope, the European Union, and others. Authors were from institutions in the U.S., Belgium, Germany, Switzerland, France and the United Kingdom.

House Select Committee battles for global warming documents

The House Select Committee on Energy Independence and Global Warming has sought documents related to the Department of Transportation’s assertion that California’s rights to issue regulations to reduce greenhouse gas emissions from motor vehicles using Clean Air Act authority are preempted by the Energy Policy and Conservation Act.  Chairman Ed Markey again asked in August for drafts of the  proposed fuel economy rules and the names of individuals involved in the decision to assert that California motor vehicle standards are preempted by the EPCA.

The Select Committee has been investigating the political influence on the EPA's scientific decisions regarding EPA’s national vehicle emissions regulations.  Markey has indicated that those decisions "were twisted by political forces from deep within the White House," arguing "It’s imperative that we now discover if there were similar machinations within the Department of Transportation trying to shoot down California’s right to reduce global warming pollution from vehicles."

According to the committee, Chairman Markey asked in June for documents and information pertaining to the National Highway Traffic Safety Administration’s (NHTSA’s) Notice of Proposed Rulemaking (NPRM) on fuel economy standards. The NPRM was responding to the energy bill passed in December that raised fuel economy standards to at least 35 miles per gallon by 2020. Chairman Markey asked about the gas price estimates used for creating fuel economy targets, and whether those estimates were high enough to reflect the current and future prices of gas, given the estimates used in the NPRM were below $3 per gallon.

Chairman Markey also asked for information pertaining to California’s rights to proceed with its clean car regulations. The NPRM contained the administration’s view that state regulations to reduce heat-trapping pollution from motor vehicles were preempted by national policy. In subsequent exchanges, when asked for more information on how this decision was reached, and by whom, NHTSA responded that they would not provide any of the documents to the Select Committee because the documents were "pre-decisional." In today's response letter, Chairman Markey notes: "I am not aware of any court that has recognized ‘pre-decisional’ as an adequate basis to withhold documents from a valid Congressional request." The letter further stated that if the agency is relying on a claim of executive privilege to withhold the documents, then that claim should be formally asserted.

Along with a request for the documents themselves, in all forms, Chairman Markey also asks whether any White House or other executive branch officials assisted in drafting NHTSA’s NPRM, and lists of any names, dates of any meetings, conversations, correspondence or any other interactions between NHTSA and other administration officials.

The letters can be found on the Select Committee website and below:

Chairman Markey’s letter calling on NHTSA to stop stonewalling on its views on the California regulations (8.7.08):

http://globalwarming.house.gov/tools/2q08materials/files/0141.pdf

Response from NHITSA General Council (7.28.08):

http://globalwarming.house.gov/tools/2q08materials/files/0140.pdf

Response from Department of Transportation General Counsel (7.28.08):

http://globalwarming.house.gov/tools/2q08materials/files/0142.pdf

Chairman Markey’s original request for information (6.17.08):

http://globalwarming.house.gov/tools/2q08materials/files/0143.pdf

IEA Sees Potential Long-term Reduction in US Oil Demand

The International Energy Agency (IEA link) cut its estimate for global oil demand today based on the changes Americans are making in their lifestyles in response to high gasoline prices and the recession.  North American demand fell 5.3% and 2.9% in July, part of a seven month decline in US demand.  This decrease in demand may be exacerated by OPEC's reduced production: 715,000 barrels per day in August and September, reducing OPEC's production ceiling from 32.2 million barrels per day to 28.8 million barrels per day.                                                                                                                               This appears to be a response to oil prices failing towards $100 per barrel in August.  IEA seemed to be warning OPEC that any attempt to maintain oil prices over $100 per barrel would likely cause long-term changes in behavior and purchasing habits undercutting oil demand in OECD countries and Asian countries, such as Taiwan, Thailand, the Phillipines and Malaysia, are reducing subsidies that have fueled demand.  The extent of reduction in demand may depend upon the extent of China's supposed economic slowdown.

NWF Honors Willamette University as Most Exemplary Program of Campus Sustainability Activities in the Nation

Willamette's current claim to fame:

In the nation’s largest survey to date, the National Wildlife Federation recognized Willamette University as first in the nation for sustainability activities. NWF’s “Campus Environment 2008: A National Report Card on Sustainability in Higher Education” surveyed 1,068 participating colleges and universities, and ranked Willamette as the school engaged in the greatest number of sustainability activities.

People at Willamette take their motto and mission seriously and genuinely try to walk the talk,” says Judy Walton, executive director of the Association for the Advancement of Sustainability in Higher Education. “I’ve rarely seen so much honest engagement and reflection on the issue of sustainability. It’s a sincere commitment, not just lip service. The university takes time to make sure its efforts are deep and thoughtful.”

Many Willamette students and professors believe that no educational experience can be meaningful unless it addresses the defining challenge of the 21st century. We take to heart our motto, “Not unto ourselves alone are we born,” as we seek to envision a world that is truly sustainable — in our sky, water and land, and in the communities that tie us together.

Willamette honors sustainability in four ways, which we call the four E’s:

• Education
• Environment
• Equity
• Economics

Best Estimate of 2100 Sea Level Rise is nearly 1 meter to as much as 2 meters

Pfeffer et al have published the first serious assessment of how projected sea level rise by 2100 due to global warming will be affected by ice sheet loss in Greenland and Antartica.  Their conclusion is that 80 cm -- slightly less than a meter -- is the minimum level and 2 meters is the maximum.  This is higher than the IPCC maximum figure on sea level rise (60 cm) because the IPCC did not include dynamic ice sheet loss in its estimates.  Real Climate's analysis of the IPCC 4th Assessment noted that no upper limit on sea level rise could be confidently set because of uncertainty about how much to allow for dynamic ice sheet processes  Real Climate post   Pfeffer has filled in this hole in the analysis and thus provided the most scientifically credible estimate of sea level rise.