06.09.08
GAO Issues “Expert Opinion on the Economics of Policy Options to Address Climate Change”
Today, June 9, 2008, the Government Accountability Office issued its report “Expert Opinion on the Economics of Policy Options to Address Climate Change.” The report represents the views of the 18 economists who were identified by the GAO working with the National Academy of Sciences.
- All of the panelists agreed that the Congress should consider using a market-based mechanism to establish a price on greenhouse gas emissions.
- 14 of 18 recommended additional actions, such as investment in research and development of low-emissions technologies.
- 14 of 18 were at least moderately certain that the benefits of their recommended portfolio of actions would outweigh the costs.
- To establish a price on greenhouse gas emissions, most of the panelists preferred either a tax on emissions or a hybrid policy that incorporates features of both a tax and a cap-and-trade program (in which the government could sell additional emissions permits if the permit price rose above a predetermined level).
- A majority of panelists agreed that the United States should establish a price on greenhouse gas emissions as soon as possible.
The panelists stressed that the market-based approach is important because it gives the government the ability to raise revenue through a tax or sale of emissions permits and to use that revenue to offset the adverse effects of the policy. In light of the failure of the Senate to comes to terms on the Lieberman Warner Climate Security Bill, it will be interesting to see how the Congress receives this report.
Senate “Debates” Global Warming Bill
With much fanfare, last week the Senate began debating the Lieberman Warner Climate Security bill, which would limit the emission of greenhouse gases. Although when the debates began in earnest, there was a good, healthy discussion back and forth between Sen. Boxer on the one hand and Sen Inhofe, a well-known global warming nay-sayer, before long the debate devolved into a session about judicial appointees. The Republicans refused to waive the reading of the Bill, so for many hours the Congressional clerk(s) read the Bill into the record, effectively filibustering the Bill from being debated, let alone voted upon. In the end, Senate Majority leader Harry Reid had to send the Bill back to Committee. The result? Critical environmental issues were left undebated and unexamined. We will have to keep an eye on Rep. Markey’s bill over in the House of Representatives.
Links to transcripts of the debates: June 2, 2008, June 3, 2008 Part 1, June 3, 2008, Part 2, June 4, 2008, and June 6, 2008,
06.03.08
Recent Environmental Law Cases
In the past week the Federal courts came down with five opinions that related to Environmental law:
- Environmental Conservation Organization v. City of Dallas, Case No. 07-10583 (5th Cir., May 27, 2008). Clean Water Act. The court dismissed the Clean Water Act citizens’ suit case as being moot. The Environmental Conservation Organization filed a lawsuit against Dallas alleging that the City had violated the Clean Water Act in the operation of the storm water sewer. Although neither the state or the Federal EPA filed a lawsuit during the 60-day notice period, the USEPA did issue a compliance order and eventually filed an enforcement action against the City. ECO declined to join in that enforcement action. The court held that the USEPA’s Consent Decree with the City effectively mooted ECO’s citizens’ suit.
- Raytheon Aircraft Co. v. United States, Case No. 05-2328 (D.Kan. May 30, 2008). CERCLA. After a ten-day trial the U.S. District Court held that Raytheon had not proved that the United States, through the actions of the Army Air Force in the early 1940’s was liable under either section 107(a) cost recovery section or section 113(f) contribution section for a portion of a clean-up of trichloroethylene (TCE). In addition, the court held that Raytheon was liable to the United States for the response costs of the USEPA.
- Sauk County v. U.S. Department of the Interior, Case No. 07-543 (W.D. Wis. May 29, 2008). NEPA. A county in Wisconsin sought to challenge the Department of Interior taking into trust five acres land for the Ho Chunk Nation. Among other things, the County alleged that the department wrongly denied the County standing to challenge the finding that the action would have no significant impact under NEPA. On a motion for summary judgment, the court held that the department decision should be affirmed. The court held that the County had not shown that it suffered a “concrete and particularized injury that is either actual or imminent, that the injury is traceable to the challenged action of the defendant and that is likely that the injury will be redressed by a favorable decision.”
- Ohio Valley Environmental Coalition, Inc. v. Apogee Coal Co., Case No. 07-0413 (S.D. W.Va. May 27, 2008). Clean Water Act. Environmental group brought a lawsuit against two mining companies under the Clean Water Act and the Surface Mining Control and Reclamation Act for discharges of selenium from their mining operations in violation of their NPDES permits. Court held, upon motion for summary judgment, that Apogee Coal Co. had violated its permit, while Hobet Mining did not.
- Ogeechee-Canoochee Riverkeeper Inc. v. U.S. Army Corps of Engineers, Case No. 606CV102 (S.D. Ga. May 27, 2008). Clean Water Act. Environmental group brought an Administrative Procedure Act claim against the Army Corps of Engineers challenging a Corps decision to exempt a proposed timber harvest from Clean Water Act regulation. Because the Corps failed to show that the area it proposed to be exempt had a history of silviculture and was presently being used for silviculture, the court granted the environmental group’s motion for summary judgment.
05.28.08
Coalition of States File Suit over Ozone Standards
A coalition of thirteen states, two state agencies, and the City of New York filed a Petition for Review against the Environmental Protection Agency in the U.S. Court of Appeals for the District of Columbia on May 27, 2008 (Case No. 08-1202) alleging that the newly promulgated federal ozone standards fail to protect the elderly, children and people with respiratory ailments, such as asthma. The Petitioners are New, York, California, California Air Resources Board, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico, Oregon, Pennsylvania Department of Environmental Protection, Rhode Island, the District of Columbia, and the City of New York.
At the heart of the Petition is the belief that in approving the standards, the EPA ignored the advice of its own scientists who recommended more stringent rules, especially for the secondary standards. A Petition for Review is a direct challenge a regulation that has been promulgated by a federal agency. Usually, it is filed in the U.S. Court of Appeals and must be filed within sixty days of the publication of the regulation. This lawsuit is separate from the Writ of Mandamus that a group of states filed last month to enforce the ruling of the U.S Supreme Court in Massachusetts v. EPA. That lawsuit involves the establishment of regulations for greenhouse gases in general and CO2 in particular.
Also filing a petition for review is a group of environmental action groups, represented by EarthJustice. Their Petition was also filed on May 27, 2008, in the U.S. Court of Appeals for the District of Columbia Circuit (Case No. 08-1203). Included as Petitioners are the American Lung Association, Environmental Defense Fund, Natural Resources Defense Council, National Parks Conservation Association, and the Appalachian Mountain Club.
05.27.08
Senate to Debate Greenhouse Gas Emissions Cuts
On June 2, 2008, the U.S. Senate will begin debate on the Lieberman-Warner Climate Security Act (now called the Boxer-Lieberman-Warner Bill after Sen. Barbara Boxer, Senate Environment and Public Works Committee Chair, offered an amendment), U.S. Greenhouse gas emissions would drop by about 2 percent per year between 2012 and 2050, based on 2005 emission levels. The bill would cap carbon emissions from 86 percent of U.S facilities, and emissions from those would be 19 percent below current levels by 2020 and 71 percent below current levels by 2050, according to a summary of the bill’s details released by the Senate Environment and Public Works Committee.
See the following for comments about the bill prior to Sen. Boxer’s amendment:
- The NRDC’s “The Cost of Climate Change”
- The AEI’s “How Green Hysteria will Hit Home”
05.20.08
EPA Administrator States Greenhouse Gas Regulation May Not Be Issued Until After January, 2009
In a statement recorded for Platt’s Energy Podium, EPA Administrator, Stephen Johnson said that EPA may not promulgate regulations on greenhouse gases emissions under the Clean Air Act “before President Bush leaves office in January,” 2009. That being said, Mr. Johnson indicated that the EPA would make a call for public comments on the subject by June 21, 2008, in an Advance Notice of Proposed Rulemaking (ANPRM).
Mr. Johnson went on to state that he believed that a “legislative fix” is a better approach to take with respect to greenhouse gas emissions, since “the Clean Air Act is [not] the most efficient and effective way of addressing a new pollutant that is a global pollutant.”
With respect to the Supreme Court decision in Massachusetts v. EPA, where the court told the EPA that if it determined that climate change posed a danger to the public, the agency must regulate CO2, the Administrator said that the Advanced Notice of Proposed Rulemaking would respond to it. No mention was made of the recently filed action to enforce the Supreme Court’s opinion in Massachusetts v. EPA.
With the Lieberman-Warner Bill working its way through Congress containing a a cap-and-trade proposal that would limit emissions and allow companies to trade permits pollute, Mr. Johnson did not say whether he would support the proposal. Although he did not specify any approach for reducing greenhouse gas emissions, he did say that emission reduction “needs to be done in a responsible way . . . a market-based approach is the most efficient and Most effective.”
Click here to listen to EPA Administrator Johnson’s statement in its entirety.
05.08.08
House Subcommittee on Aviation Hears FAA Testimony on Aircraft Emissions of Greenhouse Gases
At a May 6, 2008, hearing of the U.S. House Subcommittee on Aviation, the FAA sought to dispel several “myths” concerning the effect that aircraft emissions of greenhouse gases have on the environment. Coming a little over one month after the EPA announced its plans to issue an Advance Notice of Proposed Rulemaking for aircraft emissions of GHG (see, “EPA Plans to Release an Advance Notice of Proposed Rulemaking Emissions” below), Daniel K. Elwell, Assistant Administrator, Office of Aviation Policy, Planning and Environment, testified that there were three myths that needed to be put to rest. First, Mr. Elwell stated that aircraft emissions account for only 3% of GHG emissions, and “the largest aviation market in the world is burning less fuel today than in 2000.” Indeed, Mr. Elwell, said, aviation in general and aircraft in particular are becoming more fuel efficient, now outstripping automobiles in terms of energy intensity - that is automobiles burn more BTUs per passenger mile than aircraft. This increase in fuel efficiency and the attend reduction in GHG emissions was one of the primary themes of several other witnesses as well:
- Bill Glover, Managing Director, Environmental Strategy, Boeing Commercial Airplanes;
- James C. May, President and CEO, Air Transport Association of America, Inc.;
- Douglas E. Lavin, Regional Vice-President (North America), International Air Transport Association; and
- James K. Coyne, President, National Air Transportation Association.
Second, Mr. Elwell stated that CO2 emissions by aircraft at altitude do not have any more (or any less) effect on climate change than CO2 at ground level. David H. Fahey, a research physicist for NOAA, has a small issue with that statement, when he responded to Rep. Ehlers’ question about the effects of emissions. Dr. Fahey stated that although CO2 does not affect atmosphere any differently at altitudes, nitrous oxides, a component of aircraft emissions, do. That, in turn, affects ozone creation and methane. “That aspect of aviation is one that stands out,” Dr. Fahey stated. Moreover, Dr. Fahey continued, aircraft emission create water vapor in the upper atmosphere, i.e., contrails, which in turn creates clouds, which in turn creates “radiative forcing,” a primary element of climate change.
Finally, Mr. Elwell wanted to make clear that the U.S. was not falling behind Europe in terms of environmental impact of aircraft emissions. European aviation emissions, Mr. Elwell testified, have increased three times faster in recent years than U.S. emissions. He says that the U.S. is happy to participate in market-based environmental initiatives, as long as they are “based on mutual consent.”
This led to perhaps the testiest exchange, though came when the Subcommittee heard from Ambassador John Bruton, Head of the Delegation of the European Commission to the United States. Ambassador Bruton testified about the controversial inclusion of aviation in EU’s Emission Trading Scheme. He believed that because aviation emits far more CO2 than other industries included in ETS, such as steel and oil, aviation must be included in the ETS. Everyone seemed to acknowledge, however, that ICAO was the proper forum, although Ambassador Bruton indicated that the EU has attempted to go that route, but did not receive any indication that ICAO would take any action. The members of the Subcommittee apparently did not cotton to the idea that the EU was taking the lead on this issue. It also should be pointed out that the Lieberman-Warner Bill, currently before the Senate contains an emissions trading program.
Dr. Gerald L. Dillingham, Director, Physical Infrastructure Issues, for the U.S. Government Accountability Office also testified. It was his belief that the aviation inductry could achieve significant reductions in emissions through the use of “Next Generation Air Transportation System” (NextGen) and an increase in research and development to promote such technologies as biofuels and fuel cells. NextGen involves new technologies and air traffic procedures that can reduce aviation emissions and incorporates research and development on emissions-reducing technologies.
In short, the industry stated that it was making strides toward fuel efficiency, which would lower the amount of GHG emissions, although a more fuel efficient fleet would also increase the airlines’ and aircraft manufacturers’ bottom line, as well. The government pointed to (reasonably) successful efforts made in better management of the airports and airways. What remains to be seen is what action, if any, the House will take.
Also testifying:
- Captain Mary Ann Schaffer, Chairperson, Air Lines Pilots Association;
- Mark M. Reis, Managing Director, Seattle-Tacoma International Airport;
- Richard L. Altman, Executive Director, Commercial Aviation Alternative Fuels Initiative; and
- Opening Remarks of Subcommittee Chair, Rep. Jerry F. Costello.
For video of the session, click here for Panel I and here for Panel II
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04.03.08
States File Lawsuit to Enforce Ruling in Massachusetts v. EPA
As stated in a previous post, one year ago, on April 2, 2007, the Supreme Court in Massachusetts v. EPA struck down the EPA’s theory that it lacked legal authority to regulate global warming pollution. At that time, EPA administrator Stephen Johnson promised a firm and prompt response to the high Court’s decision. As outlined below, EPA Administrator recently stated that he was going to put the issue up for public comment, rather than promulgate any regulations. On Tuesday, April 2, 2008, a dozen states, three cities, and eleven non-profit organizations gave the EPA a anniversary present by filing a writ of mandamus in the federal court of appeals to compel EPA to comply.
The petition states, in part:
As EPA’s own statements and a Congressional inquiry demonstrate: the Administrator publicly set a firm deadline for making the endangerment determination by the end of 2007; the agency has already completed all of its work on issues that, under the Supreme Court’s decision, are relevant to that determination; the Administrator has in fact made an internal decision in favor of endangerment; and the Administrator has forwarded the full formal write-up of that determination to the White House Office of Management and Budget. The publication of the endangerment determination, however, is now being withheld. The Administrator has refused to give the petitioners or Congress a timetable for action, and he has explained his delay by reference to considerations that are not legally relevant under the Supreme Court’s ruling.
A writ of mandamus is a legal action in which a party asks the court to order a government official or governmental entity to carry out a function that only it can carry out. The court cannot compel the governmental agency to make a particular decision, for example, in this case the court cannot tell the EPA to find that greenhouse gases are a pollutant and endanger the public health and welfare of the U.S., but the court can tell the agency to perform its legally required tasks within a certain period of time.
The problem in this matter, however, is that the Supreme Court did not issue any deadline for the EPA to act in its opinion last year. Thus, the states are left with arguing that a “reasonable” amount of time has elapsed and the EPA has not made the decision that the Supreme Court told it must make. This is a much more difficult argument to make.
04.01.08
One Year Later: Whither the EPA After Massachusetts v. EPA?
On April 2, 2007, the United States Supreme Court ruled in Massachusetts v. EPA, that the Environmental Protection Agency already has the authority to regulate greenhouse gas emissions under the Clean Air Act and must make an endangerment assessment when it can.
Almost a year later, and several months after he announced that he would have proposed regulations on the books, EPA Administrator Stephen Johnson stated in a letter issued on March 27, 2008, that the EPA would not issue any regulations, but instead would issue an Advance Notice of Public Rulemaking. This means that a proposed regulations would not be finalized until early next year at the earliest. Although the delay in the promulgation of the proposed regulations should not have come as too much of a surprise, since Administrator Johnson hinted at it in testimony before the House Select Committee on Energy Independence and Global Warming:
In view of these potential effects of Clean Air Act regulation, we are continuing to evaluate the availability and potential use of various CAA authorities for GHG mitigation, to determine the best overall approach for handling the challenge of global climate change for all sources, both mobile and stationary. While we continue to make progress in developing an approach, I cannot now commit to a certain date by which we will have a fully articulated approach in place or a response to the Massachusetts case completed.
This certainly made the conservative think tanks, like the Heritage Foundation, the Washington Legal Foundation and various trade association happy. Their concerns were related mainly to the effect EPA’s regulatory action would have on Prevention of Significant Deterioration (PSD) on stationary sources.
On the other side, though, Sen. Barbara Boxer was not pleased:
For nearly eight years, this Administration has tried to duck its obligation to address global warming pollution. A year ago, the Supreme Court ruled that greenhouse gases are covered under the Clean Air Act. Now, instead of action, we get more foot-dragging.
Rep. Edward J. Markey, Chairman of the House Select Committee on Energy Independence and Global Warming was equally upset with the EPA’s stalling:
This is the latest quack from a lame-duck EPA intent on running out the clock on the entire Bush Presidency without doing a thing to combat global warming. The planet is sick, and instead of rushing to provide emergency medical attention, the Bush Administration has said ‘take 2 aspirin and call me after I leave office.’
What is left for us to do?
- The public must comment early and often that CO2 must be regulated. Instead of viewing the public comment with disdain, the American public should make its voice heard as what it believes should be done about global warming in general and CO2 in particular.
- The public must inform their elected officials - state, local and federal - of their beliefs and encourage them to comment on the need for regulation of CO2.
- If there are fears from industry that regulatory action will have unintended effects on industry, those fears should be addressed. If the effects are intended, then industry must be informed of that as well so that they can plan for the regulations.
Administrator Johnson’s capitulation (once again) to the White House may have been cowardly, but the issue of CO2 regulation is too important to get caught up in finger pointing and name calling. The behind the scenes machinations that went on with regard to the secondary standard for ozone (see John Walke’s “Science Decider in Chief”) may lead one to believe that there are those at the EPA who want regulation of CO2, but there just is not the political will at the top. The public must inform the EPA of its position on CO2, once again, so that those at the top will have no choice but to pay attention.
03.24.08
Another Source of Ozone?
In the same month that the EPA announced (somewhat) tighter Ozone Standards, a team of scientists from University of California at San Diego published an article in the March 21, 2008 edition of the journal Science about their findings that a chemical reaction in the atmosphere above major cities long assumed to be unimportant in urban air pollution is in fact a significant contributor to urban ozone.
This chemical reaction, first suggested by German scientists in the late 1990’s, involves reactions between water vapor and NO2 in electronically “excited states,” produced when NO2 absorbs visible light between the wavelengths of 450 to 650 nanometers. Although the scientists do not discuss the policy implications of their research, if they are correct that this chemical reaction is a large contributor to the creation of ozone, it would seem that the importance of NO2 may be understated in the EPA’s analysis of the ozone problem and its development of the standards.
The research was funded by Petroleum Research Fund of the American Chemical Society and the National Science Foundation.
