Friday, October 30, 2009
No New Environmental Cases Today
The U.S. federal courts of appeal did not issue any opinions today in the environmental area.
EPA Orders AEP to Test Stability of Ash Piles
The EPA announced yesterday that it is requiring American Electric Power (AEP) to come up with a plan for safety testing of dams holding back coal ash slurry ponds at a disposal site on the Ohio River in West Virginia. The order is part of a nationwide review of the integrity of such dams, which hold back piles of coal ash collected from coal being burned for power at sites throughout the country. According to EPA's press release, EPA officials will oversee the entire safety testing process.
The AEP dam is similar to the one that collapsed at a TVA site in Kingston TN last Christmas, causing massive devastation to the adjacent river and surrounding farmland, and prompting hearings on the issue before Senator Boxer's Senate Environment and Public Works Committee.
As the New York Times reported earlier this month (and activists and those unfortunate enough to live in the shadows of coal plants have known for years), all the pollutants that are prevented from going out the top of smoke stacks get collected in the coal ash. As time goes on, and the technology-forcing provisions of the Clean Air Act (CAA) operate to require stricter controls on new coal-fired power plants, the coal ash gets more and more toxic. (This is why there's no such thing as "clean coal.") Yet, due to lacunae in the CAA and the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq, along with EPA's 2000 decision not to treat coal and other fly ash as hazardous waste--all of which can be traced to industry pressure--we treat it the same way as we do ordinary municipal waste. As a result, it is regulated at the federal level only under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 321 et seq. EPA never issued regulations it promised in 2000 governing the disposal of coal ash under RCRA, so, functionally, we rely on state regulations (and regulators) to control how the ash is disposed. In most states--especially those where coal and power-company interests predominate state politics--there are few controls if any, allowing power companies to dispose of the ash in clay-lined slurry ponds without as much as a plastic liner. (You can read about an attempt to tighten regulations in one such state, North Carolina, here.) As the folks in Kingston experienced last year, that clay can give way all too easily, causing devastation as the toxic sludge spills into the landscape.
After Senator Boxer pushed, the EPA released a list of 44 highly hazardous coal ash disposal sites last June. (The press release from Senator Boxer's office can be seen here, and a McClatchy news article including a map of the sites here.) The order to AEP is the next step in EPA's plan, announced at that time, to review the coal-ash sites and order cleanup and repairs as needed. EPA has also promised to finally issue those regulations governing coal-ash disposal under RCRA by the end of the year.
While this is a welcome development, much more remains to be done from a legal standpoint. In an ideal world, TSCA would be amended so that there will be no question that we must treat coal ash as the toxic waste that it is. But industry lobbyists continue to push hard to prevent that, terrified of the costs of proper disposal. (You can read a recent release, in which they call for "federal non-hazardous waste regulation of coal-combustion byproducts implemented by the states," here.) Meanwhile, water leaking from the ponds is getting into ground- and drinking water, and power companies are getting away with creative (and terrifying) disposal methods like using coal ash to create golf courses and fill wallboard used in construction. As one expert quoted in this excellent overview of the issue by the New York Time's Shaila Dawan, “[y]our household garbage is managed much more consistently” than coal ash, because we have this major "loophole in the country’s waste management strategy.”
The AEP dam is similar to the one that collapsed at a TVA site in Kingston TN last Christmas, causing massive devastation to the adjacent river and surrounding farmland, and prompting hearings on the issue before Senator Boxer's Senate Environment and Public Works Committee.
As the New York Times reported earlier this month (and activists and those unfortunate enough to live in the shadows of coal plants have known for years), all the pollutants that are prevented from going out the top of smoke stacks get collected in the coal ash. As time goes on, and the technology-forcing provisions of the Clean Air Act (CAA) operate to require stricter controls on new coal-fired power plants, the coal ash gets more and more toxic. (This is why there's no such thing as "clean coal.") Yet, due to lacunae in the CAA and the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq, along with EPA's 2000 decision not to treat coal and other fly ash as hazardous waste--all of which can be traced to industry pressure--we treat it the same way as we do ordinary municipal waste. As a result, it is regulated at the federal level only under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 321 et seq. EPA never issued regulations it promised in 2000 governing the disposal of coal ash under RCRA, so, functionally, we rely on state regulations (and regulators) to control how the ash is disposed. In most states--especially those where coal and power-company interests predominate state politics--there are few controls if any, allowing power companies to dispose of the ash in clay-lined slurry ponds without as much as a plastic liner. (You can read about an attempt to tighten regulations in one such state, North Carolina, here.) As the folks in Kingston experienced last year, that clay can give way all too easily, causing devastation as the toxic sludge spills into the landscape.
After Senator Boxer pushed, the EPA released a list of 44 highly hazardous coal ash disposal sites last June. (The press release from Senator Boxer's office can be seen here, and a McClatchy news article including a map of the sites here.) The order to AEP is the next step in EPA's plan, announced at that time, to review the coal-ash sites and order cleanup and repairs as needed. EPA has also promised to finally issue those regulations governing coal-ash disposal under RCRA by the end of the year.
While this is a welcome development, much more remains to be done from a legal standpoint. In an ideal world, TSCA would be amended so that there will be no question that we must treat coal ash as the toxic waste that it is. But industry lobbyists continue to push hard to prevent that, terrified of the costs of proper disposal. (You can read a recent release, in which they call for "federal non-hazardous waste regulation of coal-combustion byproducts implemented by the states," here.) Meanwhile, water leaking from the ponds is getting into ground- and drinking water, and power companies are getting away with creative (and terrifying) disposal methods like using coal ash to create golf courses and fill wallboard used in construction. As one expert quoted in this excellent overview of the issue by the New York Time's Shaila Dawan, “[y]our household garbage is managed much more consistently” than coal ash, because we have this major "loophole in the country’s waste management strategy.”
Suit Filed to Stop Nuclear Expansion in Georgia
Yesterday, lawyers and students at the Emory University Turner Environmental Law Clinic filed suit in the DC Circuit on behalf of a coalition of environmental groups to reverse a federal Nuclear Regulatory Commission (NRC) decision from earlier this year. The NRC granted Georgia Power, a subsidiary of Southern Company, an early site permit (ESP) to build new reactors at its Plant Vogtle facility near Atlanta. The petition contends that: "the NRC violated the Atomic Energy Act, 42 U.S.C. § 201 1 et seq., the National Environmental Policy Act [(NEPA)], 42 U.S.C. § 4321 et seq., the Administrative Procedure Act, 52 U.S.C. § 701 et seq.," and their implementing regulations. Petitioners seek review and reversal of the permit(s) issued for the site, as well as an injunction, presumably against any construction that may commence as a result of the permits.
The coalition includes the Center for a Sustainable Coast, Savannah Riverkeeper, Southern Alliance for Clean Energy (SACE) (a former client of mine), Georgia Women’s Action for New Directions (WAND), and the Blue Ridge Environmental Defense League.
The joint press release can be read here. And the complaint here.
Georgia Power and Southern Company are heavily coal-dependent, conservative on energy issues and extremely powerful, and will be formidable foes. Their websites, like those of other power companies these days, highlight their interest in energy efficiency and other forms of sustainable energy. But they enjoy an unusual amount of political and market power in their home states based on longstanding monopoly production of (fossil fuel fired) power, and are interested in keeping it that way. That means advocating projects such as nuclear expansion, "clean" coal gasification (with dubious environmental benefit), and carbon sequestration (the risks surrounding which it seeks to have industry indemnified from, as a way to keep coal viable if federal GHG regulation materializes), and resisting state- or federal-level energy efficiency or renewable energy portfolio standards. They have also opposed rigorous cap-and trade legislation--in part through lobbying groups like the American Coalition for Clean Coal Electricity. And, in a development that caused a huge brouhaha in Georgia last year (that you can read about here), they pushed a "construction work in progress" (CWIP) bill through the Georgia Legislature that means they will be paid for new power plants even while they are being built. This shifts all of the risks that expensive projects they undertake--such as, um, building nuclear reactors--might not be completed/economically viable in the end because of rising fuel prices, federal climate legislation, or community opposition onto the shoulders of Georgia ratepayers.
Coverage of the suit from the Augusta Chronicle can be seen here.
The coalition includes the Center for a Sustainable Coast, Savannah Riverkeeper, Southern Alliance for Clean Energy (SACE) (a former client of mine), Georgia Women’s Action for New Directions (WAND), and the Blue Ridge Environmental Defense League.
The joint press release can be read here. And the complaint here.
Georgia Power and Southern Company are heavily coal-dependent, conservative on energy issues and extremely powerful, and will be formidable foes. Their websites, like those of other power companies these days, highlight their interest in energy efficiency and other forms of sustainable energy. But they enjoy an unusual amount of political and market power in their home states based on longstanding monopoly production of (fossil fuel fired) power, and are interested in keeping it that way. That means advocating projects such as nuclear expansion, "clean" coal gasification (with dubious environmental benefit), and carbon sequestration (the risks surrounding which it seeks to have industry indemnified from, as a way to keep coal viable if federal GHG regulation materializes), and resisting state- or federal-level energy efficiency or renewable energy portfolio standards. They have also opposed rigorous cap-and trade legislation--in part through lobbying groups like the American Coalition for Clean Coal Electricity. And, in a development that caused a huge brouhaha in Georgia last year (that you can read about here), they pushed a "construction work in progress" (CWIP) bill through the Georgia Legislature that means they will be paid for new power plants even while they are being built. This shifts all of the risks that expensive projects they undertake--such as, um, building nuclear reactors--might not be completed/economically viable in the end because of rising fuel prices, federal climate legislation, or community opposition onto the shoulders of Georgia ratepayers.
Coverage of the suit from the Augusta Chronicle can be seen here.
Republicans Spoiling for a Boycott on Kerry-Boxer
The New York Times is reporting that Senator Inhofe (R, OK) has signaled, himself, that "he has unanimous support among the panel's minority members to boycott the session until they get more data on the legislation from U.S. EPA and the Congressional Budget Office." The full article can be read here. The article further reports that Boxer continued to dismay committee Republicans by calling them out each time she thought they were distorting the truth (as I observed in an earlier post, here.) According to the article, "Sen. George Voinovich (R-Ohio) complain[ed] yesterday that Boxer had been unfairly chiming in after any remarks that did not square with her point of view."
Thursday, October 29, 2009
Evening News Roundup: Day Three of Senate EPW Climate Bill Hearings
The big news out of today's hearings seems to be Boxer's determination to press ahead with her plan to get the bill out of committee on November 3--this coming Tuesday. The objections, presaged in Republican questioning of Tuesday's cabinet-level panelists, as described here, are that the Congressional Budget Office has not done a full analysis, and neither has the EPA. Boxer apparently replied that neither of these pass the "smell test," since CBO analyses usually don't occur until after a bill is out of committee, and since Kerry-Boxer borrows so heavily from Waxman-Markey, the EPA analysis of the differences between the two bills was sufficient. Politico reports on this here, the Washington Post here, and Dow Jones here. In response, Reuters reports in this article, committee Republicans are dangling the possibility of boycotting next week's committee work sessions to prevent a vote from happening at all (since they don't have the votes to keep it in committee if they do meet.)
Meanwhile, this Greenwire article reports that Senator Specter (D, PA) is now officially pushing to get a Clean Air Act preemption clause in the bill, and that Senator Baucus (D, WY) has told reporters that he has not made up his mind on the bill. Senator Boxer can do without their votes in committee, but will need them later on in the process, as explained in this earlier post.
Meanwhile, this Greenwire article reports that Senator Specter (D, PA) is now officially pushing to get a Clean Air Act preemption clause in the bill, and that Senator Baucus (D, WY) has told reporters that he has not made up his mind on the bill. Senator Boxer can do without their votes in committee, but will need them later on in the process, as explained in this earlier post.
No New Environmental Cases Today
No new opinions from the circuit courts on environmental law today. Alas.
Going Off-line for the Afternoon
For the past week, I've been in the fair city of Nashville, Tennessee, where I presented to my friend Nita Farahany's torts class at Vanderbilt Law on the benefits of joint and several liability under Superfund. (I've long been interested in how liability schemes shake out for cleanups under the Act, and filed an amicus brief on behalf of the U.S. Conference of Mayors in United States v. Atlantic Research a couple years ago.) Interestingly, even as tort-reform advocates succeeded in advancing the cause of abolishing or scaling back common law joint and several liability in state houses across the country, getting 18 states to pass reforms in 1986 and 1987, other lobbyists succeeded in getting Congress to codify the right of contribution among jointly and severally liable parties under Superfund in the 1986 Superfund amendments.
At any rate, I will be flying back to DC this afternoon, and off-line until early evening. Expect more postings on Kerry-Boxer, and any new environmentally relevant cases to come out of the federal appeals courts at that time.
Suit Filed to Jumpstart ESA Listing for American Pika
Earthjustice attorneys again trying to use (California) ESA to regulate global warmingEarthjustice and the Center for Biological Diversity announced yesterday that they have filed a lawsuit in California state court against the California Fish and Game Commission, for its refusal to list the American Pika (which I have a soft spot for, because it is a lagomorph) under the California Endangered Species Act. The groups' theory is that the pika is threatened by the effects of global warming in California. The Commission rejected their petition once, and they succeeded in getting the decision remanded for reconsideration. This appeal is the groups' second.
[Ed's note: The animal pictured here is a lagomorph, but not a pika.]
NRDC Reacts to Ninth Circuit Water-Efficiency Decision
As I reported yesterday, in the post "California Beats Back DOE Refusal of Right to Set Efficiency Standards," the Ninth Circuit remanded a DOE decision not to grant California a waiver from preemption under the Energy Policy and Conservation Act (EPCA), after essentially rejecting the whole thing as pretextual.
The Legal Director of NRDC's Western Energy and Climate Project, Kristin Grenfell, lauds the decision in a statement on their website, here. Among other things, she points out that conserving water is an energy conservation issue, as, she says, 20% of California's electricity is used to move water.
The Legal Director of NRDC's Western Energy and Climate Project, Kristin Grenfell, lauds the decision in a statement on their website, here. Among other things, she points out that conserving water is an energy conservation issue, as, she says, 20% of California's electricity is used to move water.
Morning News Roundup on Kerry-Boxer Bill: Day Three
This morning, Politico is describing the tough path ahead for the Senate climate bill, given the doubts expressed by Senator Baucus (D, WY), but also reports that Senator Boxer (D, CA) is determined to get the bill out of committee even without Baucus, given negotiations she conducted with Senator Carper (D, DE) "who played a major role in negotiating a deal with coal-state members and is expected to back the legislation." (It looks, given the grumvblings reported in the article, like Senator Boxer knew that she had to overshoot Waxman-Markey's 17% GHG reduction goal initially in order to hold firm on it in the end, because a lot of folks are taking aim at the 20% figure.)
ClimateWire is reporting that the generosity initially seen in Kerry-Boxer in allocating more allowances to pro-climate moves like sustainable transportation and energy efficiency (as an earlier post discusses here) may not really improve on the House bill, given required deficit-reduction measures, in "Reality Sets In; Senate Allocation Pie Smaller Than House Climate Bill's."
And NPR reports on the "Battle of [the] Statistics" at yesterday's hearings, in which Senator Boxer announced to the assembled Republicans "Since you held up a chart [on Tuesday] we're going to have our little chart wars today — you hold up one and we hold up one; it's kind of equal time." (Its nice to see Boxer tackling the naysayers head-on: On Tuesday, she responded to statistical pronouncements and descriptions of research papers that she felt were distorted immediately, prompting Republicans to complain that she might drag the proceedings into a tit for tat.) According to NPR, Boxer's tough tone didn't stop (fossil fuels) industry executives from trying to invoke scary job-loss numbers, however. The full article can be seen here.
ClimateWire is reporting that the generosity initially seen in Kerry-Boxer in allocating more allowances to pro-climate moves like sustainable transportation and energy efficiency (as an earlier post discusses here) may not really improve on the House bill, given required deficit-reduction measures, in "Reality Sets In; Senate Allocation Pie Smaller Than House Climate Bill's."
And NPR reports on the "Battle of [the] Statistics" at yesterday's hearings, in which Senator Boxer announced to the assembled Republicans "Since you held up a chart [on Tuesday] we're going to have our little chart wars today — you hold up one and we hold up one; it's kind of equal time." (Its nice to see Boxer tackling the naysayers head-on: On Tuesday, she responded to statistical pronouncements and descriptions of research papers that she felt were distorted immediately, prompting Republicans to complain that she might drag the proceedings into a tit for tat.) According to NPR, Boxer's tough tone didn't stop (fossil fuels) industry executives from trying to invoke scary job-loss numbers, however. The full article can be seen here.
Day Three of Hearings before Senate EPW on Kerry-Boxer
Hearings will start in half an hour before the Senate Environment and Public Works Committee on the Kerry-Boxer climate change bill. The full schedule can be viewed here. Again, the hearings will be split into four panels.
Panel 1 is a mixed panel, including, for example, the President of Exelon (which describes itself as "the nation's largest electric and natural gas utility" and has its own plan for emissions reduction underway [Ed's note: unevaluated by Ed.]), the President of Environmental Defense (EDF) (which has been active in lobbying for energy efficiency), the President of the Ohio Coal Miner's Association, and the President of the American Farm Bureau Association.
Panel 2 is focused on transportation efficiency and sustainable communities, including several transportation experts and the Executive Director of the Sacramento Area Council of Governments (which provides transportation planning and funding for the Sacramento region).
Panel 3 will provide economists' takes on climate policy, from the presidents of the (progressive) Center for American Progress Action Fund, Center for Clean Air Policy, and World Resources Institute, as well as the libertarian Competitive Enterprise Institute.
Panel 4 is a mixed panel, including the head of the California EPA, the Director of the Climate Center for NRDC, two Union representatives, and two industry executives.
The full schedule can be accessed here, and the hearings heard here.
Panel 1 is a mixed panel, including, for example, the President of Exelon (which describes itself as "the nation's largest electric and natural gas utility" and has its own plan for emissions reduction underway [Ed's note: unevaluated by Ed.]), the President of Environmental Defense (EDF) (which has been active in lobbying for energy efficiency), the President of the Ohio Coal Miner's Association, and the President of the American Farm Bureau Association.
Panel 2 is focused on transportation efficiency and sustainable communities, including several transportation experts and the Executive Director of the Sacramento Area Council of Governments (which provides transportation planning and funding for the Sacramento region).
Panel 3 will provide economists' takes on climate policy, from the presidents of the (progressive) Center for American Progress Action Fund, Center for Clean Air Policy, and World Resources Institute, as well as the libertarian Competitive Enterprise Institute.
Panel 4 is a mixed panel, including the head of the California EPA, the Director of the Climate Center for NRDC, two Union representatives, and two industry executives.
The full schedule can be accessed here, and the hearings heard here.
Wednesday, October 28, 2009
Inhofe Still Fuming
But Baucus, Specter and others like them may be the ones to watch
Senator Inhofe (R, OK) has posted his opening statement from Wednesday morning's hearings before the Senate Environment and Public Works Committee on the Kerry-Boxer climate change bill. It begins with "Based on all the evidence we've seen, in this and other committees in the Senate, I can say with confidence that Kerry-Boxer will destroy jobs, weaken our national security, and raise electricity prices for consumers" and continues in that vein. (You can read the complete statement here.)
It is becoming very clear that we are seeing a shift in our economy, from one based on non-renewable fossil fuels and some nuclear energy, to a more diversified method of providing for our energy needs through renewable energy, advanced batteries, demand response, and energy efficiency, as well as fossil fuels and nuclear energy. There will be winners and losers as investment, jobs and political capital shift from one set of industries to another. The folks on Senator Inhofe's team are the losers in this scenario, and he's not happy about it.
Senator Inhofe (R, OK) has posted his opening statement from Wednesday morning's hearings before the Senate Environment and Public Works Committee on the Kerry-Boxer climate change bill. It begins with "Based on all the evidence we've seen, in this and other committees in the Senate, I can say with confidence that Kerry-Boxer will destroy jobs, weaken our national security, and raise electricity prices for consumers" and continues in that vein. (You can read the complete statement here.)
It is becoming very clear that we are seeing a shift in our economy, from one based on non-renewable fossil fuels and some nuclear energy, to a more diversified method of providing for our energy needs through renewable energy, advanced batteries, demand response, and energy efficiency, as well as fossil fuels and nuclear energy. There will be winners and losers as investment, jobs and political capital shift from one set of industries to another. The folks on Senator Inhofe's team are the losers in this scenario, and he's not happy about it.
But Inhofe's sour grapes should not distract from a more important set of signals that will foretell the direction of this bill--the opinions of moderate Democrats from fossil-fuel-dependent states. On the Environment and Public Works Committee these include Senator Baucus (D, WY), whose state produces 40% of the coal used in the U.S. every year, and Senator Specter (D, PA), whose state is home to massive bituminous coal fields.
As reported here, Senator Baucus expressed "serious reservations" about achieving the 20% GHG emissions reduction target in the Kerry-Boxer bill, stating that "We cannot afford the unmitigated impacts of climate change but we also cannot afford the unmitigated effects of legislation.” He lines up with Republicans on the committee in asking that the bill include a preemption clause to prevent the EPA from using the Clean Air Act to regulate GHGs. And not only does he have a vote on EPW, but also, as Chairman of the Senate Finance Committee, he will have a crack at rewriting major provisions of the bill before it gets to the Senate floor.
Senator Specter, who only just defected from the Republican party, could be the critical 60th vote to overcome a potential Republican filibuster. In his opening statement on Tuesday, he staked out his position as follows: "My state, Pennsylvania, is a microcosm. It has been built upon coal and steel, and it is critical that any legislation take into account those factors. My state has a great deal of natural gas with the new Marcellus Shale opening clean fuel for the future. . . . A week ago today I held a hearing in Pittsburgh on the potential of green jobs, but at the same time I’m concerned as to what would happen in southwestern Pennsylvania in the coal mines." And he made it clear during questioning on Tuesday that he also wants to see a clause in the bill preventing EPA from using the CAA to regulate GHGs.
So while Inhofe may be making the most noise, just as with Waxman-Markey in the House, it will be the moderate Democrats who ultimately move this bill the most in the Senate.
As reported here, Senator Baucus expressed "serious reservations" about achieving the 20% GHG emissions reduction target in the Kerry-Boxer bill, stating that "We cannot afford the unmitigated impacts of climate change but we also cannot afford the unmitigated effects of legislation.” He lines up with Republicans on the committee in asking that the bill include a preemption clause to prevent the EPA from using the Clean Air Act to regulate GHGs. And not only does he have a vote on EPW, but also, as Chairman of the Senate Finance Committee, he will have a crack at rewriting major provisions of the bill before it gets to the Senate floor.
Senator Specter, who only just defected from the Republican party, could be the critical 60th vote to overcome a potential Republican filibuster. In his opening statement on Tuesday, he staked out his position as follows: "My state, Pennsylvania, is a microcosm. It has been built upon coal and steel, and it is critical that any legislation take into account those factors. My state has a great deal of natural gas with the new Marcellus Shale opening clean fuel for the future. . . . A week ago today I held a hearing in Pittsburgh on the potential of green jobs, but at the same time I’m concerned as to what would happen in southwestern Pennsylvania in the coal mines." And he made it clear during questioning on Tuesday that he also wants to see a clause in the bill preventing EPA from using the CAA to regulate GHGs.
So while Inhofe may be making the most noise, just as with Waxman-Markey in the House, it will be the moderate Democrats who ultimately move this bill the most in the Senate.
Reactions to Today's Hearings
Today, a number of panelists with expertise on different aspects of the climate change issue--energy economics, national security, impacts of climate change, and electricity--testified on the Kerry-Boxer bill before the Senate Environment and Public Works Committee. Reuters describes the first group in this way: "Leaders at companies that develop low-carbon energy told a Senate panel that climate legislation would create millions of new jobs, but lawmakers from fossil-fuel dependent states said the bill would hit employment in the traditional energy economy." (The full article can be accessed here.) Greenwire goes into more detail about the gloom and doom forecast by the petroleum industry, here.
More reviews to follow.
More reviews to follow.
California Beats Back DOE Refusal of Right to Set Efficiency Standards
In California Energy Commission v. U.S. Department of Energy, handed down by the Ninth Circuit today, the California Energy Commission (CEC) appealed from DOE's denial of a waiver it sought from preemption under the Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. § 6297, so it could establish water efficiency standards for residential clothes washers. (As the panel explains, the "EPCA expressly preempts state regulation of energy efficiency, energy use, or water use of any product covered by federal energy efficiency standards.") To get the waiver, CEC had to show that the state regulation was “needed to meet unusual and compelling State or local . . . water interests.” 42 U.S.C. § 6297(d)(1)(B).
If you haven't heard, California has been having a drought for a while now.
In 2002, California passed a state law mandating water-efficiency standards for washing machines, which the CEC duly issued. The CEC petition for a waiver of express EPCA preemption, and the (Bush II) DOE accepted its application as complete in December 2005. DOE rejected the petition a year later, giving the following reasons:
As a preliminary matter, the panel had to establish that it had jurisdiction. DOE challenged the court’s jurisdiction under the EPCA to review the denial of the waiver, on the basis that EPCA granted appeals only from specific EPCA provisions to the circuit courts. This wasn't one of them, so CEC should have gone to federal district court first. The Ninth Circuit responded that, well, EPCA grants appeals from another specific set of provisions to the federal district courts, too, and this wasn't one of those, either. Since the logic could be applied both ways, obviously this was left up to the discretion of the courts, and, duly filling in the blanks from Florida Power & Light Co. v. Lorion, 470 U.S. 729, 741-45 (1985), as to how it should exercise this jurisdiction, the Ninth Circuit said yup, we should take it. (I'd go into the reasoning, but its pretty clear to me that if the panel had not wanted to take the case, and order CEC to head to district court, it could have filled in the blanks that way, too.)
On the substance, the Ninth Circuit panel rejected DOE's reasons for refusing to grant the waiver as arbitrary and capricious, in violation of the APA. The panel's reasoning for rejecting the first justification is, to be honest, a bit opaque: Basically, they said that its ridiculous to reject an application for a waiver on the basis that when it finally got approved, there would not be a long enough wait, because they could have just changed the effective date or consulted with CEC on that point. And further, since the DOE approval timeline was unpredictable, it was arbitrary for DOE to be strict about what dates the information provided pertained to. See Slip Op at 14581 ("The DOE argues, in effect, that it was entitled to reject the CEC’s data and analysis as entirely irrelevant and inapplicable because the proposed implementation timeline could not be granted under the EPCA. This argument is contrary to the preponderance of evidence standard, as well as common sense.").
As for the second justification, the panel noted that, contrary to what DOE contended, CEC did support its conclusions with underlying data sufficient for DOE's purposes, as shown by the record itself. In the record, "the CEC provided 'a full explanation of its assumptions, data, and analyses' in the form of its own rulemaking record" for the California regulations. In fact, the Ninth Circuit noted, DOE referred to that portion of the record itself--proof that it not only was there, but that DOE actually knew it was there.
Finally, the Ninth Circuit panel rejected the third justification, because the preponderance of the evidence did not show that the class of washers in question--top loading washing machines--would not be available in 2010, when that part of the regulations was to go into effect. DOE, it said, had to "weigh the commenters’ evidence of future availability of top-loaders against that offered by the CEC. The DOE’s finding cannot be sustained on the strength of its citation only of the commenters’ evidence with reference to present capabilities." (emphasis added).
The panel remanded the petition to the DOE for re-consideration. The tone of today's opinion betrays a strong suspicion that the rejection of the waiver petition was pretextual. Therefore, what the (Obama) DOE does with the petition on remand will be telling.
If you haven't heard, California has been having a drought for a while now.
In 2002, California passed a state law mandating water-efficiency standards for washing machines, which the CEC duly issued. The CEC petition for a waiver of express EPCA preemption, and the (Bush II) DOE accepted its application as complete in December 2005. DOE rejected the petition a year later, giving the following reasons:
First, CEC’s proposed regulations purported to take effect on January 1, 2007, far less than the statutory three-year minimum, and CEC did not provide any information necessary to support a different effective date.
Second, CEC did not meet the statutory standard, which requires a state to show unusual and compelling water interests. CEC contended that a cost-benefit analysis showed that its regulation would be preferable to non-regulatory alternatives, but CEC’s petition did not support its conclusions with the underlying data that would have allowed DOE to determine whether the statutory standard was satisfied.
Third, the record demonstrated that CEC’s proposed regulation would make a class of washers unavailable in California, requiring denial of the waiver petition.CEC appealed to the Ninth Circuit.
As a preliminary matter, the panel had to establish that it had jurisdiction. DOE challenged the court’s jurisdiction under the EPCA to review the denial of the waiver, on the basis that EPCA granted appeals only from specific EPCA provisions to the circuit courts. This wasn't one of them, so CEC should have gone to federal district court first. The Ninth Circuit responded that, well, EPCA grants appeals from another specific set of provisions to the federal district courts, too, and this wasn't one of those, either. Since the logic could be applied both ways, obviously this was left up to the discretion of the courts, and, duly filling in the blanks from Florida Power & Light Co. v. Lorion, 470 U.S. 729, 741-45 (1985), as to how it should exercise this jurisdiction, the Ninth Circuit said yup, we should take it. (I'd go into the reasoning, but its pretty clear to me that if the panel had not wanted to take the case, and order CEC to head to district court, it could have filled in the blanks that way, too.)
On the substance, the Ninth Circuit panel rejected DOE's reasons for refusing to grant the waiver as arbitrary and capricious, in violation of the APA. The panel's reasoning for rejecting the first justification is, to be honest, a bit opaque: Basically, they said that its ridiculous to reject an application for a waiver on the basis that when it finally got approved, there would not be a long enough wait, because they could have just changed the effective date or consulted with CEC on that point. And further, since the DOE approval timeline was unpredictable, it was arbitrary for DOE to be strict about what dates the information provided pertained to. See Slip Op at 14581 ("The DOE argues, in effect, that it was entitled to reject the CEC’s data and analysis as entirely irrelevant and inapplicable because the proposed implementation timeline could not be granted under the EPCA. This argument is contrary to the preponderance of evidence standard, as well as common sense.").
As for the second justification, the panel noted that, contrary to what DOE contended, CEC did support its conclusions with underlying data sufficient for DOE's purposes, as shown by the record itself. In the record, "the CEC provided 'a full explanation of its assumptions, data, and analyses' in the form of its own rulemaking record" for the California regulations. In fact, the Ninth Circuit noted, DOE referred to that portion of the record itself--proof that it not only was there, but that DOE actually knew it was there.
Finally, the Ninth Circuit panel rejected the third justification, because the preponderance of the evidence did not show that the class of washers in question--top loading washing machines--would not be available in 2010, when that part of the regulations was to go into effect. DOE, it said, had to "weigh the commenters’ evidence of future availability of top-loaders against that offered by the CEC. The DOE’s finding cannot be sustained on the strength of its citation only of the commenters’ evidence with reference to present capabilities." (emphasis added).
The panel remanded the petition to the DOE for re-consideration. The tone of today's opinion betrays a strong suspicion that the rejection of the waiver petition was pretextual. Therefore, what the (Obama) DOE does with the petition on remand will be telling.
First Circuit Kicks out Challenge to LNG Facility
No substantive issue reached, just consternation at repetition of unripe claim
In Nulankeyutmonen Nkihtagmikon v. Impson, handed down today, the First Circuit rejected a challenge by a group of members of the the Passamaquoddy Tribe in Maine over a Bureau of Indian Affairs (BIA) decision to allow the lease of a plot of Passamaquoddy land for the construction and operation of a liquefied natural gas ("LNG") facility. The lease was approved by tribal authorities in May 2005. The BIA looked at the lease under the Indian Long-Term Leasing Act, 25 U.S.C. § 415, and rubber stamped it in a week--albeit only for the permitting phase, and subject to FERC approval. This FERC approval was to include NEPA review (though, given 2005 amendments to the Natural Gas Act, and subsequent FERC implementing regulations, the NN group had reason to doubt how rigorous this was going to be.)
NN filed suit in the District of Maine, challenging the BIA approval for failure to properly follow the requirements of NEPA, 42 U.S.C. §§ 4321-4327, the National Historic Preservation Act, 16 U.S.C. § 470 et seq., the Indian Leasing Act, and the APA, 5 U.S.C. §§ 701-706, by not conducting environmental and other reviews or providing opportunity for public comment. The BIA succeeded in getting the case dismissed for failure to exhaust administrative remedies, since NN had not exhausted the available administrative review at Interior.
What happened next is textbook How To Sink Your Own Case. As the panel describes it: "Back in the district court, NN preserved its administrative remedies, and then, instead of arguing any 'exception' excused its failure to exhaust, told the district court that this court had erred by imposing the exhaustion requirement in the first place." (This reminds me of a case that was before the Tenth Circuit the year I was clerking, Park Lake Resources v. USDA, 378 F.3d 1132 (10th Cir. 2004). In that case, a suit by a mining organization challenging a "research forest" designation that put it off limits to mining, also brought twice, the Tenth Circuit held: "our dismissal of the earlier action for lack of ripeness requires dismissal of this action as well. Plaintiffs can overcome the previous dismissal only by showing satisfaction of the conditions for ripeness set forth in [the prior suit]. Having failed to do so, Plaintiffs cannot proceed with their claim." Doh.) The district court said, no, you have not yet exhausted your remedies, no dice. NN appealed. The First Circuit, in today's opinion, repeated itself--forcefully.
So although, as an environmentalist, I may be sad that this LNG terminal in what is presumably very beautiful country has not yet been stopped, as a lawyer, I have to shake my head. When your panel has to remind you that "when our mandate issued, it established the law of the case," you haven't done your most basic homework, and should be sent home.
In Nulankeyutmonen Nkihtagmikon v. Impson, handed down today, the First Circuit rejected a challenge by a group of members of the the Passamaquoddy Tribe in Maine over a Bureau of Indian Affairs (BIA) decision to allow the lease of a plot of Passamaquoddy land for the construction and operation of a liquefied natural gas ("LNG") facility. The lease was approved by tribal authorities in May 2005. The BIA looked at the lease under the Indian Long-Term Leasing Act, 25 U.S.C. § 415, and rubber stamped it in a week--albeit only for the permitting phase, and subject to FERC approval. This FERC approval was to include NEPA review (though, given 2005 amendments to the Natural Gas Act, and subsequent FERC implementing regulations, the NN group had reason to doubt how rigorous this was going to be.)
NN filed suit in the District of Maine, challenging the BIA approval for failure to properly follow the requirements of NEPA, 42 U.S.C. §§ 4321-4327, the National Historic Preservation Act, 16 U.S.C. § 470 et seq., the Indian Leasing Act, and the APA, 5 U.S.C. §§ 701-706, by not conducting environmental and other reviews or providing opportunity for public comment. The BIA succeeded in getting the case dismissed for failure to exhaust administrative remedies, since NN had not exhausted the available administrative review at Interior.
What happened next is textbook How To Sink Your Own Case. As the panel describes it: "Back in the district court, NN preserved its administrative remedies, and then, instead of arguing any 'exception' excused its failure to exhaust, told the district court that this court had erred by imposing the exhaustion requirement in the first place." (This reminds me of a case that was before the Tenth Circuit the year I was clerking, Park Lake Resources v. USDA, 378 F.3d 1132 (10th Cir. 2004). In that case, a suit by a mining organization challenging a "research forest" designation that put it off limits to mining, also brought twice, the Tenth Circuit held: "our dismissal of the earlier action for lack of ripeness requires dismissal of this action as well. Plaintiffs can overcome the previous dismissal only by showing satisfaction of the conditions for ripeness set forth in [the prior suit]. Having failed to do so, Plaintiffs cannot proceed with their claim." Doh.) The district court said, no, you have not yet exhausted your remedies, no dice. NN appealed. The First Circuit, in today's opinion, repeated itself--forcefully.
So although, as an environmentalist, I may be sad that this LNG terminal in what is presumably very beautiful country has not yet been stopped, as a lawyer, I have to shake my head. When your panel has to remind you that "when our mandate issued, it established the law of the case," you haven't done your most basic homework, and should be sent home.
EPW Hearings on Kerry-Boxer Day Two Underway
The schedule for today's hearing can be viewed here. The hearings are proceeding in four different rooms simultaneously. Up this morning on panel 1 is a group of industry representatives, ranging from pro cap-and-trade organizations such as the Apollo Alliance and Google (long a quarry of lobbyists in favor of the bill, because it has a long-term interest in keeping down energy costs for its server farms), to organizations that will oppose it as an unwarranted tax on industry, such as the Virginia Manufacturers Association, and oil company Valero Industries.
To get a feel for the position VMA is presenting, you can read its president, Brett Vassey's, recent opinion piece here (which states, inter alia, that "most major economic impact studies demonstrate that the 'cap & trade' scheme proposed in the Waxman-Markey bill will create massive consumer costs with undefined environmental benefits.").
Panel 2 consists of government and former government officials with foreign policy and security credentials, including former Virginia Senator John Warner (who, despite his conservative credentials, supports climate change legislation, and introduced his own legislation last year, the Warner Lieberman Climate Security Act); a retired General and a retired Vice Admiral, and representatives from the Defense Department, the Truman National Security Project, and a military research project at the Heritage Foundation.
Panel 3 consists of representatives of the electricity sector, including investor-owned (private) utility executives, public utilities, state regulators, and outside experts. Panel 4 consists of experts on the impact of global warming, ranging from representatives from the National Wildlife Doundation (NWF) and the Union of Concerned Scientists, to local government officials and an expert from the American Enterprise Institute.
The hearings can be viewed here.
Panel 2 consists of government and former government officials with foreign policy and security credentials, including former Virginia Senator John Warner (who, despite his conservative credentials, supports climate change legislation, and introduced his own legislation last year, the Warner Lieberman Climate Security Act); a retired General and a retired Vice Admiral, and representatives from the Defense Department, the Truman National Security Project, and a military research project at the Heritage Foundation.
Panel 3 consists of representatives of the electricity sector, including investor-owned (private) utility executives, public utilities, state regulators, and outside experts. Panel 4 consists of experts on the impact of global warming, ranging from representatives from the National Wildlife Doundation (NWF) and the Union of Concerned Scientists, to local government officials and an expert from the American Enterprise Institute.
The hearings can be viewed here.
Tuesday, October 27, 2009
Morning News Roundup on Kerry-Boxer Bill: Day Two
The New York Times covered yesterday's hearings as part of a larger story entitled "White House Steps up Climate Efforts." They boiled the partisan battle down to this:
The Washington Post ran several stories, including this article, arguing that yesterday's hearings set the stage for a major fight over the impact of cap and trade on the economy, this article, pointing out that federal tax incentives and new loan guarantees for nuclear were put in the bill to "woo" wavering Senators, and this column by Dana Milbank describing Senator Inhofe as ever-more isolated in his resistance to the reality of global warming. (The AP echoes the Post's story line that we should expect a debate ahead about the impact of the bill on the economy, here.)
Huffington Post doesn't mince words in its coverage of the hearings, saying that "If Tuesday was any indication, the Senate's climate-change bill has a ways to go before it gets weak enough to garner the 60 votes it needs for passage."
McClatchy Newspapers focuses a bit more on the panelists' presentations, here. The Dallas Morning News focuses on the impact on utilities and refineries, here.
Republicans on the committee dismissed the bill as an overly complex one that will harm the economy, kill jobs and favor some parts of the country over others. Democrats generally defended it as a market-based approach to a serious environmental problem that will create jobs by spurring energy innovation.
The Washington Post ran several stories, including this article, arguing that yesterday's hearings set the stage for a major fight over the impact of cap and trade on the economy, this article, pointing out that federal tax incentives and new loan guarantees for nuclear were put in the bill to "woo" wavering Senators, and this column by Dana Milbank describing Senator Inhofe as ever-more isolated in his resistance to the reality of global warming. (The AP echoes the Post's story line that we should expect a debate ahead about the impact of the bill on the economy, here.)
Huffington Post doesn't mince words in its coverage of the hearings, saying that "If Tuesday was any indication, the Senate's climate-change bill has a ways to go before it gets weak enough to garner the 60 votes it needs for passage."
McClatchy Newspapers focuses a bit more on the panelists' presentations, here. The Dallas Morning News focuses on the impact on utilities and refineries, here.
Republican Exodus from EPW Hearing
If you can't beat them, leave them
Twelve senators asked questions at this mornings hearings on the Kerry-Boxer bill. By the time they got to Senator Whitehouse (D, RI), number 10, all the Republicans had left the hearing. (He noted this, saying to the panelist: "The fact that every single one of our Republican colleagues has departed ... shows how difficult" the process is going to be. (You can read a full run down of the Q & A session in this earlier post, here.) Daniel Stone, on Newsweek's The Gaggle, was forced to conclude the following:
Twelve senators asked questions at this mornings hearings on the Kerry-Boxer bill. By the time they got to Senator Whitehouse (D, RI), number 10, all the Republicans had left the hearing. (He noted this, saying to the panelist: "The fact that every single one of our Republican colleagues has departed ... shows how difficult" the process is going to be. (You can read a full run down of the Q & A session in this earlier post, here.) Daniel Stone, on Newsweek's The Gaggle, was forced to conclude the following:
Timing can often be unpredictable in committee hearings and most members keep strict schedules, so several empty seats on their own are not terribly newsworthy. But zero Republicans present to hear four cabinet secretaries shines light on the depth of the partisan disconnect on a climate-and-energy bill.I'm no expert on parliamentary niceties, but it did seem a bit rude. The rest of Mr. Stone's analysis is here.
Does Kerry-Boxer Improve on Waxman-Markey?
Plus, NGO reactions to the bill and hearings
The Chairman's Mark of the Kerry-Boxer climate bill is huge--923 pages. But the good news for those following the debate is that almost all of the material is derived from the Waxman-Markey bill that passed the House last June, with a few changes. The most important differences between the Senate bill and Waxman-Markey are that the Senate bill:
[Update: Defenders of Wildlife is choosing to wear rose-colored glasses, announcing that "Sens. Bingaman, Baucus, Whitehouse and Udall champion legislation," here. And EarthJustice makes a statement here.]
The Chairman's Mark of the Kerry-Boxer climate bill is huge--923 pages. But the good news for those following the debate is that almost all of the material is derived from the Waxman-Markey bill that passed the House last June, with a few changes. The most important differences between the Senate bill and Waxman-Markey are that the Senate bill:
- improves on the GHG emissions reduction goal, from 17% by 2020 to 20% by 2020
- places more emphasis on carbon capture and sequestration (CCS), which is needed to attract support from coal states.
- specifically allocates allowances to transportation-sector improvements that will reduce GHG emissions.
- increases allowance allocations to utility-scale renewable energy projects
- specifically allocates allowances to energy efficiency programs, including a requirement that allowances going to the states be dedicated to the Retrofit for Energy and Environmental Performance (REEP) program implemented by State Energy Offices.
- sets floors and ceilings on the price of emissions permits.
[Update: Defenders of Wildlife is choosing to wear rose-colored glasses, announcing that "Sens. Bingaman, Baucus, Whitehouse and Udall champion legislation," here. And EarthJustice makes a statement here.]
The Breakthrough Institute, which put together a spreadsheet of how allowances are distributed in both Kerry-Boxer and Waxman-Markey over the weekend, is unhappy that: "[l]ike its House sibling, the . . . Kerry-Boxer climate bill allocates the vast majority (64%) of the tens of billions annually in emissions allowances created by the bill's cap and trade program to shield energy consumers and industry from the impacts of carbon prices. Just 13% of the value of allowances . . . are invested in clean energy technologies." (The spreadsheet can be downloaded here, and a pie chart of the allowances here.)
ACEEE issued a report, timed to coincide with the start of committee hearings, urging that the place of energy efficiency be elevated in any bill to come out of the Senate.
Unfortunately, its not clear when any such amendments can be made. The bill will move quickly through EPW: Senator Boxer said this morning that she wants the bill to be out of the Environment and Public Works Committee by November 3. If Waxman-Markey is instructive, the bill will get watered down, not strengthened, as it goes through other committees in the Senate (although I would love to be corrected on this). And Senator Inhofe was intoning darkly this morning about what will happen when the bill gets to the floor.
Unfortunately, its not clear when any such amendments can be made. The bill will move quickly through EPW: Senator Boxer said this morning that she wants the bill to be out of the Environment and Public Works Committee by November 3. If Waxman-Markey is instructive, the bill will get watered down, not strengthened, as it goes through other committees in the Senate (although I would love to be corrected on this). And Senator Inhofe was intoning darkly this morning about what will happen when the bill gets to the floor.
Senate EPW Committee Questions Chu, Salazar, LaHood, Jackson, and Wellinghoff on Climate Bill
As it happened:
Senator Boxer (D, CA) opens the Q & A session with a request to Secretary Salazar to discuss the urgency of the bill. Secretary Salazar responds with anecdotes on the effect on public lands and national parks, including the almost certain prospect that there will be no glaciers left in Glacier National Park by 2020. Turning to Administrator Jackson, Senator Boxer asks about whether cap and trade is new. Catching the softball, Administrator Jackson describes the salutary effects of the cap and trade method of decreasing SO2 in prior programs under the Clean Air Act (CAA). Boxer then asks Secretary Chu about how important the certainty of incentives is to ensuring investments in renewable energy. Secretary Chu responds that, given the long-term investments required in the energy industry in any technology, the decision makers need to know that their investments will reap rewards for five or six decades into the future.
Senator Inhofe (R, OK), the very grumpy former chairman of the committee, starts by referring to the outrage of the teabaggers. (!) That they are worried about health care, and this "energy tax." He uses his questioning time to, instead of asking questions, refute points in Senator Kerry's presentation made at the beginning of the hearings--including refuting the science behind climate change. "The science is not settled," he says. "Everyone knows its not settled."
Finally turning to Administrator Jackson, he asks unspecified questions about acid rain, the endangerment finding for polar bears, and presumably its consequences. He then asks that each of the presenters address his assertion that the United States gas, oil and coal reserves are now the largest in the world, and what they plan to do to exploit that. He asks that the questions be answered in writing, however, and Senator Boxer asks the presenters that they make those available by COB tomorrow.
Senator Klobuchar (D, MN) takes the mic, asking Secretary Chu to talk about the signal that the bill will send to the private sector for energy investment--which is clearly the overwhelming point Secretary Chu is here to make. He talks about opportunities lost--that Germany has had more success than we have with wind turbines, because they provided sustained funding for the industry. And he talks about "brilliant ideas" popping up in various pilot programs, and Senator Klobuchar finishes his thought for him, that if we don't provided sustained signals for these entrepreneurs, then we will lose their poitential.
Senator Klobuchar also presses Secretary Chu for details on nuclear incentives. Secretary Chu describes this as "the beginning of the start of a new nuclear industry." As for the timeframe for getting a new nuclear power plant up and running, Secretary Chu can only answer "that depends," averting to the role of the Nuclear Energy Regulatory Commission (NERC). "Ideally," he says, "it could be between five and ten years."
Senator Voinovich (R, OH) is up, and this should be good, because he earlier decried EPA's lack of thoroughness in its analysis. Brushing past the fact that the Senate and House bills are extremely similar, and EPA analyzed the differences, Senator Voinovich intones that, nonetheless, "[t]he fact is that you have not done a full analysis, is that correct?" Administrator Jackson admits that it is true, and that it would take four to five weeks to run full models on the Senate bill. The Senator also talks about preemption, noting that, on his read, this legislation would not preempt the use of the CAA to regulate GHGs. Administrator Jackson says that she still believes that there would be no preemption--that the CAA can still be used to mitigate the harm of some GHG emissions, but that what is really needed is economy-wide action through a bill like this.
Turning to Secretary Chu, Senator Voinovich states his concern that we will not have the technology in place to meet the cap and trade goals. Seemingly wanting to meet them through carbon capture and sequestration (CCS) of emissions from coal plants, he notes that it is urgent that we have CCS in place by 2020, especially if we are going to continue to compete with China (which he notes, as many did in the Senators' preliminary statements, is building one or two coal-fired power plants per week.) Senator Chu responds that energy conservation--if "we really think hard about it"--is the most cost-effective way of reducing carbon, that solar and wind power is very promising, and that we need to press hard and act aggressively, but that we can meet the goals.
Next, Senator Specter (D, PA) addresses Administrator Jackson. He notes that a big selling point for people who don't like climate legislation is the idea that the EPA would no longer be able to come in and use the CAA to regulate CO2 or other GHG emissions. Apparently believing that Administrator Jackson is not familiar with basic strategic concepts, he asks whether she would be able to make concessions in this area. Administrator Jackson responds that, despite the benefits of a cap and trade bill, the EPA will still need the authority to, e.g., address localized pollution sinks that may remain (which is a bit confounding, since we are talking about GHGs, which have a global effect.). Senator Specter says, nonetheless, that he would like to see this bill given preemptive force over the CAA in the area of GHG regulation, and that "if there are other things that you want [to see in the bill], let us know about them," because there is a lot of value in certainty. He explains that "we don't want to buy a pig in a poke." Finally, turning to FERC Chairman Wellinghoff, Senator Specter notes that his constituents are very concerned about transmission lines and pipelines, and asks that he come out and hold hearings before making siting decisions.
Senator Sanders (D, VT), averting to Vermont's strides in energy efficiency, asks Secretary Chu about the benefits of a Smart Grid--specifically the cost savings that we can achieve through peak shifting. Secretary Chu responds that *just* peak shifting would achieve $100 billion in savings a year. Senator Sanders then presents a chart to Secretary Chu showing that the most cost-effective way to go forward is through wind and solar--and that nuclear is the most expensive form of new energy. Secretary Chu, seeking good marks but not wanting to just parrot Sanders, responds that energy efficiency is the cheapest way of going about this. Senator Sanders, not satisfied, makes his own point for himself--that wind, solar, and geothermal are the cheapest form of new energy, but complains that everyone on the committee seems only to be talking about nuclear and coal.
Senator Sanders asks Secretary of Transportation LaHood why we don't have the same type of rail systems seen in Europe and Asia. The Secretary responds, promptly and boisterously, that its "lack of investment." That had Truman made the investment in railroads that he did in highways, we would have those rail systems. But "instead we have a state of the art interstate highway system." Then, Senator Sanders rounds out his questioning by playing to his constituency, extracting statements from the Secretary of his intent to invest in transportation links for rural America.
Senator Udall (D, CO) takes the mic, and ask FERC Chairman Wellinghoff about renewable energy. The Chairman replies that it is important that we have a national standard, and that this bill does that. Turning to Secretary Chu, the Senator asks about the importance of natural gas in future energy plans. Secretary Chu notes that they are funding pilot programs for fueling cars with natural gas, and talks about recovering natural gas from shale as a lower carbon option than some of our current fuel sources. (An answer that should dismay environmentalists aware of the devastating effects of oil shale extraction.) Finally, Senator Udall asks about the costs of wind and solar. Secretary Chu says he is optimistic that solar and wind costs are continuing to drop. Finally, he asks Secretary LaHood about the benefits of investing in passenger rail. Secretary LaHood replies, boisterous again, that it would "[t]ake a lot of cars off the road, take a lot of CO2 [out] of the air. .... When someone gets on a train, they're out of their automobile, and the benefits will be enormous." Underscoring his point, he reprises that "I want to be clear on this, we haven't made the investments in America in passenger rail."
Senator Lautenberg (D, NJ) seeks another assurance from Secretary Chu on the achievability of a 20% reduction in GHG emissions, asking if it can't be achieved through energy efficiency alone. Secretary Chu replies that it can be achieved, but that it will involve looking in every corner, and counting carbon offsets such as reforestation. Turning to Secretary LaHood, Senator Lautenberg asks for more specifics about the effects of increased train service on CO2 emissions, and Secretary LaHood promises a more detailed answer on the exact effects in writing. Senator Lautenberg averts, in the end, to the "cost of doing nothing."
Senator Merkley (D, OR) takes his turn, again talking about the extraordinary benefits of energy efficiency, referring to a McKinsey report issued last year. He notes that it is the cheapest way of providing for new energy needs by far, and will actually reduce household bills. So he asks, "Are we underinvesting in energy efficiency in this bill? Do we need to be going further, and actually have a separate standard?" (I can hear the cheering from ACEEE from where I sit.) Secretary Chu answers, point blank, "Yes." But "there are some barriers at work here. ... What we call market failures. Many people don't know what to do, its inconvenient, there's inertia, and there are also finance barriers. Energy efficiency, you can't just say make it happen. You have to be very proactive, because of these market barriers." Senator Merkley says that he would like to work further with the Department of Energy to help break down the barriers, saying that he would really like to see us achieve the 20% reduction by 2020 through energy efficiency alone, a technology "that pays us back." Secretary Chu replies that the Department will be trying to pilot programs over the next year to see if it can bring down costs--presumably, including barriers.
Finally Senator Merkley asks if we should really be pushing electric cars as a way to reduce CO2 emissions. Secretary LaHood cheers for the GM Volt, but none address whether electric cars would really result in net emissions reductions.
Senator Whitehouse (D, RI) takes over, and notes "the fact that every single one of our Republican colleagues has departed ... shows how difficult" the process is going to be. Turning to a specific issue, he urges that "as you look at the nuclear component of our energy portfolio, that you look aggressively at the nuclear waste" and see about converting it into fuel. "One day, we should be burning this nuclear waste as fuel." Secretary Chu says that the Department has started a detailed look at this. He notes that only 1% of the energy content of the uranium dug out of the ground is actually used.
Senator Whitehouse asks Chairman Wellinghoff about dispatch orders for when power plants are turned on and off. "It is my understanding that these dispatch rules do not take the environmental effects into account whatsoever," and says he would like to work with FERC to make sure that those environmental effects are taken into account in the dispatch rule. Finally, turning to Administrator Jackson, Senator Whitehouse states that "the perspective that I have on this is that for many years, corporate polluters have been ducking and dodging on their responsibilities under the CAA" by building smokestacks. "Right now, in Rhode Island, on a bright summer day, the radio today could easily announce that today is a bad air day ... because of what is being rained down on us by these [out-of-state] power plants. . . . As we look at the CAA ... I very strongly believe that it is time that these power plants are held to account ... So I hope that you will stand firm on the CAA."
Senator Cardin (D, MD), bringing up the rear, thanks the panelists for their public service. He seeks to "underscore two points," about energy policy and investment. Transportation represents 30% of our GHGs, and 60-70% of our oil use. He notes that he would like to get public transportation going far beyond passenger rail, and thanks the Chairwoman for doing that with the bill. He then turns to how the panelists use their existing authority--and thanks Administrator Jackson for putting the environment back on the EPA's priority list. Again playing the good cheerleader, he says "We need to get this done. .... [But] be aggressive with the tools that are already available."
A great note on which to end today's hearings.
Senator Boxer (D, CA) opens the Q & A session with a request to Secretary Salazar to discuss the urgency of the bill. Secretary Salazar responds with anecdotes on the effect on public lands and national parks, including the almost certain prospect that there will be no glaciers left in Glacier National Park by 2020. Turning to Administrator Jackson, Senator Boxer asks about whether cap and trade is new. Catching the softball, Administrator Jackson describes the salutary effects of the cap and trade method of decreasing SO2 in prior programs under the Clean Air Act (CAA). Boxer then asks Secretary Chu about how important the certainty of incentives is to ensuring investments in renewable energy. Secretary Chu responds that, given the long-term investments required in the energy industry in any technology, the decision makers need to know that their investments will reap rewards for five or six decades into the future.
Senator Inhofe (R, OK), the very grumpy former chairman of the committee, starts by referring to the outrage of the teabaggers. (!) That they are worried about health care, and this "energy tax." He uses his questioning time to, instead of asking questions, refute points in Senator Kerry's presentation made at the beginning of the hearings--including refuting the science behind climate change. "The science is not settled," he says. "Everyone knows its not settled."
Finally turning to Administrator Jackson, he asks unspecified questions about acid rain, the endangerment finding for polar bears, and presumably its consequences. He then asks that each of the presenters address his assertion that the United States gas, oil and coal reserves are now the largest in the world, and what they plan to do to exploit that. He asks that the questions be answered in writing, however, and Senator Boxer asks the presenters that they make those available by COB tomorrow.
Senator Klobuchar (D, MN) takes the mic, asking Secretary Chu to talk about the signal that the bill will send to the private sector for energy investment--which is clearly the overwhelming point Secretary Chu is here to make. He talks about opportunities lost--that Germany has had more success than we have with wind turbines, because they provided sustained funding for the industry. And he talks about "brilliant ideas" popping up in various pilot programs, and Senator Klobuchar finishes his thought for him, that if we don't provided sustained signals for these entrepreneurs, then we will lose their poitential.
Senator Klobuchar also presses Secretary Chu for details on nuclear incentives. Secretary Chu describes this as "the beginning of the start of a new nuclear industry." As for the timeframe for getting a new nuclear power plant up and running, Secretary Chu can only answer "that depends," averting to the role of the Nuclear Energy Regulatory Commission (NERC). "Ideally," he says, "it could be between five and ten years."
Senator Voinovich (R, OH) is up, and this should be good, because he earlier decried EPA's lack of thoroughness in its analysis. Brushing past the fact that the Senate and House bills are extremely similar, and EPA analyzed the differences, Senator Voinovich intones that, nonetheless, "[t]he fact is that you have not done a full analysis, is that correct?" Administrator Jackson admits that it is true, and that it would take four to five weeks to run full models on the Senate bill. The Senator also talks about preemption, noting that, on his read, this legislation would not preempt the use of the CAA to regulate GHGs. Administrator Jackson says that she still believes that there would be no preemption--that the CAA can still be used to mitigate the harm of some GHG emissions, but that what is really needed is economy-wide action through a bill like this.
Turning to Secretary Chu, Senator Voinovich states his concern that we will not have the technology in place to meet the cap and trade goals. Seemingly wanting to meet them through carbon capture and sequestration (CCS) of emissions from coal plants, he notes that it is urgent that we have CCS in place by 2020, especially if we are going to continue to compete with China (which he notes, as many did in the Senators' preliminary statements, is building one or two coal-fired power plants per week.) Senator Chu responds that energy conservation--if "we really think hard about it"--is the most cost-effective way of reducing carbon, that solar and wind power is very promising, and that we need to press hard and act aggressively, but that we can meet the goals.
Next, Senator Specter (D, PA) addresses Administrator Jackson. He notes that a big selling point for people who don't like climate legislation is the idea that the EPA would no longer be able to come in and use the CAA to regulate CO2 or other GHG emissions. Apparently believing that Administrator Jackson is not familiar with basic strategic concepts, he asks whether she would be able to make concessions in this area. Administrator Jackson responds that, despite the benefits of a cap and trade bill, the EPA will still need the authority to, e.g., address localized pollution sinks that may remain (which is a bit confounding, since we are talking about GHGs, which have a global effect.). Senator Specter says, nonetheless, that he would like to see this bill given preemptive force over the CAA in the area of GHG regulation, and that "if there are other things that you want [to see in the bill], let us know about them," because there is a lot of value in certainty. He explains that "we don't want to buy a pig in a poke." Finally, turning to FERC Chairman Wellinghoff, Senator Specter notes that his constituents are very concerned about transmission lines and pipelines, and asks that he come out and hold hearings before making siting decisions.
Senator Sanders (D, VT), averting to Vermont's strides in energy efficiency, asks Secretary Chu about the benefits of a Smart Grid--specifically the cost savings that we can achieve through peak shifting. Secretary Chu responds that *just* peak shifting would achieve $100 billion in savings a year. Senator Sanders then presents a chart to Secretary Chu showing that the most cost-effective way to go forward is through wind and solar--and that nuclear is the most expensive form of new energy. Secretary Chu, seeking good marks but not wanting to just parrot Sanders, responds that energy efficiency is the cheapest way of going about this. Senator Sanders, not satisfied, makes his own point for himself--that wind, solar, and geothermal are the cheapest form of new energy, but complains that everyone on the committee seems only to be talking about nuclear and coal.
Senator Sanders asks Secretary of Transportation LaHood why we don't have the same type of rail systems seen in Europe and Asia. The Secretary responds, promptly and boisterously, that its "lack of investment." That had Truman made the investment in railroads that he did in highways, we would have those rail systems. But "instead we have a state of the art interstate highway system." Then, Senator Sanders rounds out his questioning by playing to his constituency, extracting statements from the Secretary of his intent to invest in transportation links for rural America.
Senator Udall (D, CO) takes the mic, and ask FERC Chairman Wellinghoff about renewable energy. The Chairman replies that it is important that we have a national standard, and that this bill does that. Turning to Secretary Chu, the Senator asks about the importance of natural gas in future energy plans. Secretary Chu notes that they are funding pilot programs for fueling cars with natural gas, and talks about recovering natural gas from shale as a lower carbon option than some of our current fuel sources. (An answer that should dismay environmentalists aware of the devastating effects of oil shale extraction.) Finally, Senator Udall asks about the costs of wind and solar. Secretary Chu says he is optimistic that solar and wind costs are continuing to drop. Finally, he asks Secretary LaHood about the benefits of investing in passenger rail. Secretary LaHood replies, boisterous again, that it would "[t]ake a lot of cars off the road, take a lot of CO2 [out] of the air. .... When someone gets on a train, they're out of their automobile, and the benefits will be enormous." Underscoring his point, he reprises that "I want to be clear on this, we haven't made the investments in America in passenger rail."
Senator Lautenberg (D, NJ) seeks another assurance from Secretary Chu on the achievability of a 20% reduction in GHG emissions, asking if it can't be achieved through energy efficiency alone. Secretary Chu replies that it can be achieved, but that it will involve looking in every corner, and counting carbon offsets such as reforestation. Turning to Secretary LaHood, Senator Lautenberg asks for more specifics about the effects of increased train service on CO2 emissions, and Secretary LaHood promises a more detailed answer on the exact effects in writing. Senator Lautenberg averts, in the end, to the "cost of doing nothing."
Senator Merkley (D, OR) takes his turn, again talking about the extraordinary benefits of energy efficiency, referring to a McKinsey report issued last year. He notes that it is the cheapest way of providing for new energy needs by far, and will actually reduce household bills. So he asks, "Are we underinvesting in energy efficiency in this bill? Do we need to be going further, and actually have a separate standard?" (I can hear the cheering from ACEEE from where I sit.) Secretary Chu answers, point blank, "Yes." But "there are some barriers at work here. ... What we call market failures. Many people don't know what to do, its inconvenient, there's inertia, and there are also finance barriers. Energy efficiency, you can't just say make it happen. You have to be very proactive, because of these market barriers." Senator Merkley says that he would like to work further with the Department of Energy to help break down the barriers, saying that he would really like to see us achieve the 20% reduction by 2020 through energy efficiency alone, a technology "that pays us back." Secretary Chu replies that the Department will be trying to pilot programs over the next year to see if it can bring down costs--presumably, including barriers.
Finally Senator Merkley asks if we should really be pushing electric cars as a way to reduce CO2 emissions. Secretary LaHood cheers for the GM Volt, but none address whether electric cars would really result in net emissions reductions.
Senator Whitehouse (D, RI) takes over, and notes "the fact that every single one of our Republican colleagues has departed ... shows how difficult" the process is going to be. Turning to a specific issue, he urges that "as you look at the nuclear component of our energy portfolio, that you look aggressively at the nuclear waste" and see about converting it into fuel. "One day, we should be burning this nuclear waste as fuel." Secretary Chu says that the Department has started a detailed look at this. He notes that only 1% of the energy content of the uranium dug out of the ground is actually used.
Senator Whitehouse asks Chairman Wellinghoff about dispatch orders for when power plants are turned on and off. "It is my understanding that these dispatch rules do not take the environmental effects into account whatsoever," and says he would like to work with FERC to make sure that those environmental effects are taken into account in the dispatch rule. Finally, turning to Administrator Jackson, Senator Whitehouse states that "the perspective that I have on this is that for many years, corporate polluters have been ducking and dodging on their responsibilities under the CAA" by building smokestacks. "Right now, in Rhode Island, on a bright summer day, the radio today could easily announce that today is a bad air day ... because of what is being rained down on us by these [out-of-state] power plants. . . . As we look at the CAA ... I very strongly believe that it is time that these power plants are held to account ... So I hope that you will stand firm on the CAA."
Senator Cardin (D, MD), bringing up the rear, thanks the panelists for their public service. He seeks to "underscore two points," about energy policy and investment. Transportation represents 30% of our GHGs, and 60-70% of our oil use. He notes that he would like to get public transportation going far beyond passenger rail, and thanks the Chairwoman for doing that with the bill. He then turns to how the panelists use their existing authority--and thanks Administrator Jackson for putting the environment back on the EPA's priority list. Again playing the good cheerleader, he says "We need to get this done. .... [But] be aggressive with the tools that are already available."
A great note on which to end today's hearings.
Preliminary Fireworks Over
Witnesses take their seats before Senate EPW
Before getting to the scheduled speakers this morning, the Senate Environment and Public Works Committee members aired their views on the Kerry-Boxer climate bill. In short, the Republicans at best complained that the committee was moving too fast, and at worst decried the bill as an "energy tax bill" that would "kill jobs." The Democrats, at their most moderate, praised their bill, and at their most liberal, decried the fact that it does not move fast enough. (More details will be posted in this space.)
Meanwhile, Secretary Chu has begun his presentation, here. His opening speech scolded that “[w]hen the gun sounded on the clean energy race, the United States stumbled” and that we need to incentivize investments in this sector to keep up with the rest of the world. But, he warned, “[o]n again and off again incentives will not drive the investment in carbon neutral energy we need.” Instead, he explained, cap and trade will provide the steady incentives we need. [Update: The text of Secretary Chu's testimony can be seen here.]
Secretary LaHood of the Department of Transportation is now speaking about investing in "livable, sustainable communities," the key to which will be transportation that will allow people in all communities, urban, suburban, and rural, to get around without having to get into a car. He would like to see much more robust transportation planning techniques, to make sure that investments in transportation "generate the best outcomes" in creating these communities.
Secretary Salazar of the Department of Interior opens that "this issue is an imperative issue of our time." "First, we need to get our country to a point of energy independence," second, we need to create new jobs, and third, we need to protect our planet for our children and our children's children. He describes the Department of Interior as the "steward" of America's natural and cultural resources. He notes that "the new energy frontier" is exciting to all in the Department of Interior, and that they have been moving quickly forward to enable it to be exploited, including fast-tracking permits for solar energy on public lands. He is also touting the capabilities of the Department to promote hydropower, wind power, and creating carbon sinks within the U.S. by preserving public lands. [The text of Secretary Salazar's remarks can be found here.]
Next up is Administrator Lisa Jackson of the EPA. She touts EPA accomplishments since she last appeared before the committee in July, including the new fuel economy regulations announced in the early fall which will avoid huge amounts of GHG emisssions. She hints about the capabilities of the CAA, saying that "even as the [agency] moves forward under existing legislation" it looks forward to new action from the Senate. "I applaud the many Senators .... who have contributed meaningfully to the Chairman's Mark," and commends those who have acted in a bipartisan fashion. Turning to the EPA analysis of the Senate climate bill released last Friday, she explains that they believe that it would bring about a transformation in the energy economy at a price less than 50 cents a day, and that it would avoid a global temperature increase of two degrees celsius, which would expose the American people to unacceptable risks. "Americans have waited decades ... while we have failed to safeguard" our children and grandchildren. She concludes that "[t]he [Senate Bill] is a significant milestone" on the road to our clean energy future. [The text of Administrator Jackson's statement can be accessed here.]
Finally, the Chairman of the FERC, Jon Wellinghoff speaks. He notes that the reason we are not taking the negative effects of GHGs into account in our energy production is because they are externalized, and touts the Senate bill as a method of taking care of that. He says the FERC is addressing barriers to increasing the amount of renewable energy in our energy portfolio, but notes that added federal power to site transmission lines and other infrastructure (an issue mentioned on this blog yesterday) is essential to this. He also talks about the importance of demand response, including energy efficiency. And says that the bill before the committee is "the key to making this right." [The text of Chairman Wellinghoff's remarks can be found here.]
Before getting to the scheduled speakers this morning, the Senate Environment and Public Works Committee members aired their views on the Kerry-Boxer climate bill. In short, the Republicans at best complained that the committee was moving too fast, and at worst decried the bill as an "energy tax bill" that would "kill jobs." The Democrats, at their most moderate, praised their bill, and at their most liberal, decried the fact that it does not move fast enough. (More details will be posted in this space.)
Meanwhile, Secretary Chu has begun his presentation, here. His opening speech scolded that “[w]hen the gun sounded on the clean energy race, the United States stumbled” and that we need to incentivize investments in this sector to keep up with the rest of the world. But, he warned, “[o]n again and off again incentives will not drive the investment in carbon neutral energy we need.” Instead, he explained, cap and trade will provide the steady incentives we need. [Update: The text of Secretary Chu's testimony can be seen here.]
Secretary LaHood of the Department of Transportation is now speaking about investing in "livable, sustainable communities," the key to which will be transportation that will allow people in all communities, urban, suburban, and rural, to get around without having to get into a car. He would like to see much more robust transportation planning techniques, to make sure that investments in transportation "generate the best outcomes" in creating these communities.
Secretary Salazar of the Department of Interior opens that "this issue is an imperative issue of our time." "First, we need to get our country to a point of energy independence," second, we need to create new jobs, and third, we need to protect our planet for our children and our children's children. He describes the Department of Interior as the "steward" of America's natural and cultural resources. He notes that "the new energy frontier" is exciting to all in the Department of Interior, and that they have been moving quickly forward to enable it to be exploited, including fast-tracking permits for solar energy on public lands. He is also touting the capabilities of the Department to promote hydropower, wind power, and creating carbon sinks within the U.S. by preserving public lands. [The text of Secretary Salazar's remarks can be found here.]
Next up is Administrator Lisa Jackson of the EPA. She touts EPA accomplishments since she last appeared before the committee in July, including the new fuel economy regulations announced in the early fall which will avoid huge amounts of GHG emisssions. She hints about the capabilities of the CAA, saying that "even as the [agency] moves forward under existing legislation" it looks forward to new action from the Senate. "I applaud the many Senators .... who have contributed meaningfully to the Chairman's Mark," and commends those who have acted in a bipartisan fashion. Turning to the EPA analysis of the Senate climate bill released last Friday, she explains that they believe that it would bring about a transformation in the energy economy at a price less than 50 cents a day, and that it would avoid a global temperature increase of two degrees celsius, which would expose the American people to unacceptable risks. "Americans have waited decades ... while we have failed to safeguard" our children and grandchildren. She concludes that "[t]he [Senate Bill] is a significant milestone" on the road to our clean energy future. [The text of Administrator Jackson's statement can be accessed here.]
Finally, the Chairman of the FERC, Jon Wellinghoff speaks. He notes that the reason we are not taking the negative effects of GHGs into account in our energy production is because they are externalized, and touts the Senate bill as a method of taking care of that. He says the FERC is addressing barriers to increasing the amount of renewable energy in our energy portfolio, but notes that added federal power to site transmission lines and other infrastructure (an issue mentioned on this blog yesterday) is essential to this. He also talks about the importance of demand response, including energy efficiency. And says that the bill before the committee is "the key to making this right." [The text of Chairman Wellinghoff's remarks can be found here.]
Morning News Roundup on Kerry-Boxer Bill
Earnest show of intent expected
Hearings are underway on the Kerry-Boxer climate change bill. The AP reports that although "Senate Democrats have all but abandoned the likelihood of getting a climate bill passed this year, . . . they hope[] that they c[an] show some progress at a Senate hearing on the issue -- such as clearing a bill out of a key committee -- in advance of international climate negotiations in [Copenhagen] Denmark in December." Reuters says much the same thing here. Politico reports that Senator Boxer may be making some headway with Democratic Senators from coal states--something that may make environmentalists a little bit worried--here. And ClimateWire looks into how much loading the bill with incentives for nuclear power may help its passage, here.
Hearings are underway on the Kerry-Boxer climate change bill. The AP reports that although "Senate Democrats have all but abandoned the likelihood of getting a climate bill passed this year, . . . they hope[] that they c[an] show some progress at a Senate hearing on the issue -- such as clearing a bill out of a key committee -- in advance of international climate negotiations in [Copenhagen] Denmark in December." Reuters says much the same thing here. Politico reports that Senator Boxer may be making some headway with Democratic Senators from coal states--something that may make environmentalists a little bit worried--here. And ClimateWire looks into how much loading the bill with incentives for nuclear power may help its passage, here.
Hearings on Kerry-Boxer Bill Today
Monday, October 26, 2009
First Circuit Rules FERC Preempts State Power over Altering Coastlines for LNG Terminals
Explicit Bush-era extension of FERC authority to cut through state law impediments to energy development comes to industry's aid
In Weaver's Cove Energy v. Rhode Island Coastal Resources Management Council (CRMC), the First Circuit overturned two attempts by the CRMC to prevent dredging in a Rhode Island waterway (and a federal navigation channel) for ships delivering gas to a new liquified natural gas (LNG) terminal.
The case implicates the Natural Gas Act (NGA), 15 U.S.C. §§ 717-717z, and the Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451-66.
A 2005 amendment to the NGA grants FERC "exclusive authority to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal." 15 U.S.C. § 717b(e)(1). (Weaver's Cove applied to FERC for a permit to build the LNG terminal at issue.) The exclusive FERC approval authority is limited only in areas in which states are granted rights, i.e. under the CZMA and two other federal statutes.
The CZMA gives states authority to create coastal management plans (CMPs) subject to NOAA approval. In Rhode Island, CMPs are administered by the Rhode Island CRMC. As the First Circuit panel explains, "an applicant for a federal permit wishing to undertake any activity the state [CMP] regulates must certify with the local agency that the proposed activity is consistent with the [CMP]." 16 U.S.C. § 1456(c)(3)(A). But "[o]nce an applicant submits its consistency certification, the state agency has six months either to concur with the certification or to object if it concludes that the proposed activity is inconsistent with the [CMP]." 16 U.S.C. § 1456(c)(3)(A). Otherwise, concurrence is presumed. This limitation is explicit; in the eyes of the panel, it is meant to prevent "one state [from] delay[ing] the federal approval process."
Rhode Island state law also requires, separately, that any party wishing to dredge Rhode Island navigable waters must obtain a so-called "Category B Assent" from the CRMC.
(It is worth noting that the Republican Congress in the second Bush term acted more than once to prevent states from delaying expansion of U.S. energy capabilities. For example, section 216 of the Federal Power Act (FPA), also added in 2005, gives FERC permitting authority for electric transmission lines in "national interest corridors" when state utility commissions have "withheld approval [of a permit application] for more than 1 year." 16 U.S.C. § 824p(b)(1)(C). This is currently the subject of heated litigation. See, e.g., Piedmont Environmental Council v. FERC (4th Cir., Feb. 2009); a related case is pending before the Ninth Circuit. The impetus for these changes was the impression that U.S. energy infrastructure was falling behind the times while myriad state authorities dragged their feet.)
In the instant case, Weaver's Cove received conditional FERC approval for its LNG facility, but needed CRMC to sign off. Specifically, the Rhode Island plan under the CZMA required them to acquire a letter from any "upland facility" accepting the fill dredged up from the shipping channel. CRMC maintains that Weaver's Cove's application, first submitted in 2004, is incomplete because it lacks such a letter. Weaver's Cove maintains that no such letter is needed because they were not putting the fill in any Rhode Island "upland facility," instead sending it out of state. Both sides dug in. CRMC maintains that the application is incomplete, and the six-month NGA limit on its consistency determination is therefore tolled. Weaver's Cove says that since the letter was not needed to comply with the CZMA, the incompleteness determination is invalid, and the six-month limit long past. CRMC has also not granted state-law Category B assent, which Weaver's Cove argues is preempted by the NGA and the dormant commerce clause anyway.
Weaver's Cove sued in federal court, seeking a declaratory judgment that CRMC's basis for saying the application was incomplete is invalid, and the consistency determination should therefore be deemed constructively granted under the NGA. Weaver's Cove also sought a determination that Category B assent was preempted by the NGA, or, in the alternative, unconstitutional under the dormant commerce clause.
The district court granted summary judgment to Weaver's Cove on both counts, and the First Circuit agrees. The panel ruled that "upland facility" only includes to facilities in Rhode Island based on the text of the regulation and of other complementary regulations; since Weaver's Cove plans to send the fill out of state, the CZMA requirement that they get such a letter does not apply. The panel also rejected, among other additional arguments, CRMC's sovereign-police-powers-esque argument that it had "an interest in confirming that material dredged from its coast is properly disposed, regardless of the ultimate location."
The panel accepted Weaver Cove's preemption argument "for the narrowest reason, that of conflict preemption." It ruled that "Category B Assent clearly conflicts with FERC's 'exclusive authority' [under the NGA] . . . to license the 'siting, construction, expansion, or operation' of LNG terminals" because it "both conflicts with and is an obstacle to the authority FERC has asserted in this case." The panel refused to affirm on the basis of express or field preemption, and did not reach the dormant commerce clause argument.
Finally, CRMC argued that its power over approving changes to the coastline were somehow saved from preemption by the federal Rivers and Harbor Act, under which the federal Coast Guard has authority over dredging activities. The panel paraphrased CRMC's argument as being that "[s]ince the Army Corps's approval process under the Rivers and Harbors Act does not preempt state licensing schemes, . . . the savings clause in the NGA must therefore protect Category B Assent." The panel was not persuaded by this savings-by-association idea, and turned down CRMC's final gambit.
In one sense, Weaver's Cove Energyv. Rhode Island CRMC is a victory for those who would like to see the balance of power tilted in favor of the feds in energy policy. The wider impact of the decision, however, should be limited by the explicit nature of the operative clause of the NGA.
[Ed.'s Note: My old co-clerk on the D.C. Circuit, Adam White of Baker Botts, was one of the attorneys for Weaver's Cove. I am therefore bursting with pride over his win. But I have tried not to let this influence my description of the case in any way.]
In Weaver's Cove Energy v. Rhode Island Coastal Resources Management Council (CRMC), the First Circuit overturned two attempts by the CRMC to prevent dredging in a Rhode Island waterway (and a federal navigation channel) for ships delivering gas to a new liquified natural gas (LNG) terminal.
The case implicates the Natural Gas Act (NGA), 15 U.S.C. §§ 717-717z, and the Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451-66.
A 2005 amendment to the NGA grants FERC "exclusive authority to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal." 15 U.S.C. § 717b(e)(1). (Weaver's Cove applied to FERC for a permit to build the LNG terminal at issue.) The exclusive FERC approval authority is limited only in areas in which states are granted rights, i.e. under the CZMA and two other federal statutes.
The CZMA gives states authority to create coastal management plans (CMPs) subject to NOAA approval. In Rhode Island, CMPs are administered by the Rhode Island CRMC. As the First Circuit panel explains, "an applicant for a federal permit wishing to undertake any activity the state [CMP] regulates must certify with the local agency that the proposed activity is consistent with the [CMP]." 16 U.S.C. § 1456(c)(3)(A). But "[o]nce an applicant submits its consistency certification, the state agency has six months either to concur with the certification or to object if it concludes that the proposed activity is inconsistent with the [CMP]." 16 U.S.C. § 1456(c)(3)(A). Otherwise, concurrence is presumed. This limitation is explicit; in the eyes of the panel, it is meant to prevent "one state [from] delay[ing] the federal approval process."
Rhode Island state law also requires, separately, that any party wishing to dredge Rhode Island navigable waters must obtain a so-called "Category B Assent" from the CRMC.
(It is worth noting that the Republican Congress in the second Bush term acted more than once to prevent states from delaying expansion of U.S. energy capabilities. For example, section 216 of the Federal Power Act (FPA), also added in 2005, gives FERC permitting authority for electric transmission lines in "national interest corridors" when state utility commissions have "withheld approval [of a permit application] for more than 1 year." 16 U.S.C. § 824p(b)(1)(C). This is currently the subject of heated litigation. See, e.g., Piedmont Environmental Council v. FERC (4th Cir., Feb. 2009); a related case is pending before the Ninth Circuit. The impetus for these changes was the impression that U.S. energy infrastructure was falling behind the times while myriad state authorities dragged their feet.)
In the instant case, Weaver's Cove received conditional FERC approval for its LNG facility, but needed CRMC to sign off. Specifically, the Rhode Island plan under the CZMA required them to acquire a letter from any "upland facility" accepting the fill dredged up from the shipping channel. CRMC maintains that Weaver's Cove's application, first submitted in 2004, is incomplete because it lacks such a letter. Weaver's Cove maintains that no such letter is needed because they were not putting the fill in any Rhode Island "upland facility," instead sending it out of state. Both sides dug in. CRMC maintains that the application is incomplete, and the six-month NGA limit on its consistency determination is therefore tolled. Weaver's Cove says that since the letter was not needed to comply with the CZMA, the incompleteness determination is invalid, and the six-month limit long past. CRMC has also not granted state-law Category B assent, which Weaver's Cove argues is preempted by the NGA and the dormant commerce clause anyway.
Weaver's Cove sued in federal court, seeking a declaratory judgment that CRMC's basis for saying the application was incomplete is invalid, and the consistency determination should therefore be deemed constructively granted under the NGA. Weaver's Cove also sought a determination that Category B assent was preempted by the NGA, or, in the alternative, unconstitutional under the dormant commerce clause.
The district court granted summary judgment to Weaver's Cove on both counts, and the First Circuit agrees. The panel ruled that "upland facility" only includes to facilities in Rhode Island based on the text of the regulation and of other complementary regulations; since Weaver's Cove plans to send the fill out of state, the CZMA requirement that they get such a letter does not apply. The panel also rejected, among other additional arguments, CRMC's sovereign-police-powers-esque argument that it had "an interest in confirming that material dredged from its coast is properly disposed, regardless of the ultimate location."
The panel accepted Weaver Cove's preemption argument "for the narrowest reason, that of conflict preemption." It ruled that "Category B Assent clearly conflicts with FERC's 'exclusive authority' [under the NGA] . . . to license the 'siting, construction, expansion, or operation' of LNG terminals" because it "both conflicts with and is an obstacle to the authority FERC has asserted in this case." The panel refused to affirm on the basis of express or field preemption, and did not reach the dormant commerce clause argument.
Finally, CRMC argued that its power over approving changes to the coastline were somehow saved from preemption by the federal Rivers and Harbor Act, under which the federal Coast Guard has authority over dredging activities. The panel paraphrased CRMC's argument as being that "[s]ince the Army Corps's approval process under the Rivers and Harbors Act does not preempt state licensing schemes, . . . the savings clause in the NGA must therefore protect Category B Assent." The panel was not persuaded by this savings-by-association idea, and turned down CRMC's final gambit.
In one sense, Weaver's Cove Energyv. Rhode Island CRMC is a victory for those who would like to see the balance of power tilted in favor of the feds in energy policy. The wider impact of the decision, however, should be limited by the explicit nature of the operative clause of the NGA.
[Ed.'s Note: My old co-clerk on the D.C. Circuit, Adam White of Baker Botts, was one of the attorneys for Weaver's Cove. I am therefore bursting with pride over his win. But I have tried not to let this influence my description of the case in any way.]
Morning News Roundup on Kerry-Boxer Bill
This morning, several newspapers have unfurled their analyses of the newest version of the Kerry-Boxer climate bill, which was released in its "Chairman's Mark" form late Friday night. The bill is similar to Waxman-Markey in its awesome length (923 pages) and breadth. For now, though, now it has a lower overall reduction target (GHG emissions 20% below 2005 levels by 2020, as compared to 17% in Waxman-Markey), and seems to place a greater emphasis on shoring up the coal power industry through carbon capture and sequestration (CCS). As the New York Times describes it, the Kerry-Boxer bill
Of course, the idea that environmentalists are simply settling in to defend the bill is a little misleading, since internally at least, the environmental community was quite disappointed in the final version of Waxman-Markey. (In their eyes, it started out a little weak, and got significantly weaker, and more compromised, as it went through the committee process.) What environmentalists would have liked to see was a much stronger version of the bill coming out of Boxer's committee, with reinvigorated renewable and energy efficiency targets, stronger protections for forests and natural resources in the scramble for biofuels, and less emphasis on trying to curb the negative effects of (what they see as) irredeemably dirty sources of energy, like coal. (Many in the environmental community have severe doubts that CCS will ever happen.)
The rest of the Times story can be read here. The Wall Street Journal, which notes that the oil industry, in particular, is unhappy with its share of the pie, posted an article here. The Washington Post's take can be found here.
largely mirrors a House version of legislation that passed in June, with a few tweaks here and there. The similarities between the two bills leave lobbying interests largely in the same place they were in months ago[ with e]nvironmentalists . . . settling in to defend the new bill's stronger emissions reduction targets, . . . [and] many industries and interest groups . . . unsatisfied with their share of the proceeds.
Of course, the idea that environmentalists are simply settling in to defend the bill is a little misleading, since internally at least, the environmental community was quite disappointed in the final version of Waxman-Markey. (In their eyes, it started out a little weak, and got significantly weaker, and more compromised, as it went through the committee process.) What environmentalists would have liked to see was a much stronger version of the bill coming out of Boxer's committee, with reinvigorated renewable and energy efficiency targets, stronger protections for forests and natural resources in the scramble for biofuels, and less emphasis on trying to curb the negative effects of (what they see as) irredeemably dirty sources of energy, like coal. (Many in the environmental community have severe doubts that CCS will ever happen.)
The rest of the Times story can be read here. The Wall Street Journal, which notes that the oil industry, in particular, is unhappy with its share of the pie, posted an article here. The Washington Post's take can be found here.
Sunday, October 25, 2009
EPA Analysis of Kerry-Boxer Climate Bill
The EPA waited until 11 p.m. Friday night to release their economic analysis of the Kerry-Boxer climate bill (which had been expected that day), on which hearings will begin in the Senate next week. It found very little change in cost as compared to the Waxman-Markey bill that passed the House at the beginning of the summer, estimating that it would cost the average household about $80 to $110 a year.
The full EPA analysis can be found here. Senator Boxer's press release on the EPA report can be found here.
At the same time, Senator Boxer's office issued the Chairman's Mark of the bill, which can be found here. Senator Boxer's office has also provided a summary of the key changes between the original bill and the Chairman's mark, here. The New York Times analysis of the Mark can be found here, and Grist's analysis here.
The full EPA analysis can be found here. Senator Boxer's press release on the EPA report can be found here.
At the same time, Senator Boxer's office issued the Chairman's Mark of the bill, which can be found here. Senator Boxer's office has also provided a summary of the key changes between the original bill and the Chairman's mark, here. The New York Times analysis of the Mark can be found here, and Grist's analysis here.
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