How Green Is My Country

New SO2 Limits finally announced.

2010-06-03T20:33:00.000-07:00

According to the New York Times, the EPA has finally set a new NAAQS for SO2. You can also read the EPA announcement here.

No New Environmental Appellate Decisions Today

2009-11-20T18:29:00.000-08:00

Groups Join Notice of Intent to Sue NMFS over Blue Whales

2009-11-20T07:09:00.001-08:00

Yesterday, a group of environmental organizations, including the Center for Biological Diversity, Friends of the Earth, and Pacific Environment joined an earlier Notice of Intent to sue the National Marine Fisheries Service (NMFS) for the agency’s failure to implement the 1998 Blue Whale Recovery Plan issued under the Endangered Species Act (ESA). A press release can be read here.

Environmental Defense filed the original Notice of Intent to Sue in August. Yesterday's development gives CBD et al the right to sue NMFS for violation of the ESA after 60 more days have elapsed. The groups say they seek to prompt action, not to get embroiled in litigation. NMFS is part of the National Oceanic and Atmospheric Administration.

Environmental Groups Join DL and NJ Opposing Army Corps Dredging

2009-11-20T06:47:00.001-08:00

On October 30th, as described in this earlier post, Delaware filed a suit to stop the U.S. Army Corps of Engineers from dredging the Delaware River for a new shipping channel. New Jersey joined the suit a few days later.

Yesterday, a coalition of environmental groups intervened in the suit, adding their own claims against the project, including alleged violations the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), the Clean Air Act (CAA), the Endangered Species Act (ESA), the Coastal Zone Management Act (CZMA), the Magnuson-Stevens Act, the Fish and Wildlife Coordination Act, and Delaware State law. The groups include Delaware Riverkeeper Network, National Wildlife Federation, New Jersey Environmental Federation, Clean Water Action, and the Delaware Nature Society. You can read the groups' press release here, and an article from the Press of Atlantic City here. A hearing on a preliminary injunction is scheduled for December 8th.

No New Environmental Appellate Decisions Today

2009-11-19T18:46:00.000-08:00

Tenth Circuit Hears Arguments Over U.S. Magnesium RCRA Exemption

2009-11-19T09:15:00.000-08:00

Yesterday, oral argument was heard in the U.S. Court of Appeals for the Tenth Circuit in Denver over whether U.S. Magnesium in Utah should be exempt from the requirements of the Resource Conservation and Recovery Act (RCRA). The presiding panel consisted of Judge Tim Tymkovich, Judge David Ebel, and Judge Neil Gorsuch. (For those inclined to read the tea leaves, this panel is a good draw for U.S. Magnesium: Judges Tymkovich and Gorsuch are both conservatives appointed by George W. Bush, and Judge Gorsuch is also the son of Reagan-era EPA Administrator Anne Gorsuch. Judge Ebel is a Reagan appointee, and a fierce and rigorous voice on the bench.) The Salt Lake Tribune has an excellent short account of the arguments here.

As the article explains, "Utah regulators have been at odds with US Magnesium since at least 1992. The company extracts brine from the Great Salt Lake, and in its magnesium-production process releases a host of chemicals into the air, unlined ditches and a retention pond at the plant . . .In 2001 the EPA stepped in, filing a $1 billion lawsuit against the company after state authorities turned the case over to the federal government." The district court sided with the plant, and yesterday's arguments were part of the U.S. appeal of that decision.

U.S. Magnesium is arguing that Congress granted it an exemption from the Act in 1989. The U.S. is arguing that the company has far exceeded the scope of any exemption, and has taken the position that "Anything generated [at the plant] can be poured down the drain."

Making the battle a little more epic and entertaining (ok, well, maybe entertaining only for environmental law junkies), EPA declared the plant's location a Superfund site on November 4, due to high levels of arsenic, chromium, mercury, copper, zinc, acidic waste water, chlorinated organics, polychlorinated biphenyls (PCBs), dioxins/furans, hexachlorobenzene (HCB), and polycyclic aromatic hydrocarbons (PAHs) in the water and soil surrounding the plant. (You can view EPA Region 8's announcement of that listing here, and the Salt Lake Tribune's article on the listing here.) U.S. Magnesium apparently plans to contest that decision, as well.

Interior Issues ANPR to Reverse Bush Stream Buffer Zone Rule

2009-11-19T08:46:00.000-08:00

And in the meantime is rolling out a broader oversight program increasing scrutiny of MTR

The Department of Interior’s Office of Surface Mining Reclamation and Enforcement (OSM) announced yesterday that it is publishing an advance notice of proposed rulemaking (ANPR) on how to protect streams from the adverse impacts of surface mining for coal, including mountaintop removal mining (MTR). This rule will revise current regulations including the stream buffer zone rule that the Bush Administration put out at the last minute in December 2008. (You can read a prior post on the stream buffer zone rule here.) Although the ANPR has not yet been sent to the Federal Register, when it is (which OSM says will happen "shortly"), the ID number will be OSM-2009-0009.

This move fulfills a promise that Interior made to the U.S. District Court for the District of Columbia two weeks ago. (Again, see prior post.) Although folks in coal country are surely rejoicing that this is moving forward, when Interior made that promise, environmental groups decried the timetable as too slow.

Perhaps it will help that, as yesterday's press release explains, "While the new rule is being developed, Interior is taking immediate actions to strengthen protections for streams and communities in coal country, provide regulatory certainty for industry, and bolster OSM’s oversight and enforcement activities." Specifically, OSM has established a new practice under which "the review and approval of [Surface Mining Control and Reclamation Act] SMCRA permits must be coordinated with reviews and authorizations required under the Clean Water Act. OSM will work with the Corps of Engineers and the Environmental Protection Agency to coordinate these permitting processes and ensure effective and coordinated compliance with provisions of the Clean Water Act." An overview of these practices and actions can be read here.

You can read the AP's account of this development here, one from Environment News Sevice here, and AFP's, here. For a local take on the action, see the Charleston (WV) Gazette here. And for reaction from the mining community, you can read an article on Mineweb.com entitled "Obama Administration mountaintop mining siege targets state mining regulation."

No New Environmental Appellate Decisions Today

2009-11-18T20:39:00.001-08:00

Federal District Court Finds Army Corps Liable for Hurricane Katrina Flooding

2009-11-18T20:15:00.001-08:00

As you can read on CNN here and NPR's website, here. The opinion, from the U.S. District Court for the Eastern District of Louisiana, can be read here.

The Corps' liability was in tort, rather than statutory environmental law. But the entire theory of the case, and the causal link between the Corps' work and the damage from Katrina, is based on the premise that the Corps, knew it was destroying the surrounding environment in a manner that would endanger nearby residents in how it built and maintained the Mississippi River Gulf Outlet shipping canal. Judge Duvall explains in great detail how it caused massive erosion, along with salination of surrounding lakes and wetlands that destroyed plant life and limited the ability of those bodies of water to absorb Katrina's fury.

Although only about $750,000 was at stake in this case, if allowed to stand, it will set a major precedent, not just for Katrina victims, but also possibly for those living in the shadow of other major water re-routing projects built and maintained by the Corps. Some folks in Civil Appellate are going to be slammed for the next year or so, as appeal to the Fifth Circuit is inevitable.

No New Environmental Appellate Decisions Today

2009-11-17T21:26:00.001-08:00

Report Recommends Remediation of AEP Coal Ash Ponds

2009-11-17T09:11:00.000-08:00

Yesterday, the Environmental Protection Agency (EPA) released a report it commissioned on the fly ash and bottom ash ponds at American Electric Power's (AEP's) Philip Sporn Generating Plant in New Haven, West Virginia. The full report can be read here.

The report is part of EPA's investigation into the state of coal ash impoundment facilities around the country, in the wake of the massive coal ash spill at a TVA facility in Kingston, Tennessee last Christmas. Coal ash is currently classified by the EPA under RCRA (the Resource Conservation and Recovery Act, 42 U.S.C. 9601 et seq) as non-hazardous, despite massive heavy metal content, and is governed only by (generally lenient) state regulations as a result. (You can read an earlier post on coal ash, how the current regulatory regime came to be, and the Kingston spill here.),

The report concluded that the ash ponds at the AEP facility had a poor prognosis "for continued safe and reliable operation," and that "[r]emedial action is necessary." It is curious in light of this report that, once it received the report, EPA only asked AEP to conduct safety inspections of the facility. (And perhaps explains why EPA announced that it was asking for inspections on October 29th, but embargoed the report until yesterday.)

EPA is (possibly) limited in its ability to act to prevent imminent release of the coal ash under RCRA (because of its decision to classify coal ash as non-hazardous), but should have plenty of authority under CERCLA and leverage under the Clean Water Act (given the proximity of the Ohio River to the site). Obviously, EPA is proceeding gingerly, since AEP isn't used to being regulated for this sort of thing at all. (A more in-depth discussion of the disconnect between the report's conclusions, and EPA's actions, can be read here on the Charleston Gazette's Coal Tattoo blog.)

[Ed's note: "I've been coal miner all of my life. Layin' down track in the hole. . . . I've got no house and I got no job, just got a worried soul. And a blue tattoo on the side of my head left by the number nine coal. Left by the number nine coal." Coal Tattoo, Billy Ed Wheeler.]

NGO Reaction to "One Agreement, Two Steps" Framework for Copenhagen

2009-11-17T08:48:00.000-08:00

No real surprises: Greenpeace hollers, and NRDC and EDF say its the right move, considering. Politico reports on this here. (Earlier post on the framework, decided over the weekend, here.)

Settlement in Gray Wolf Case

2009-11-16T20:55:00.000-08:00

Defenders of Wildlife announced Friday that a coalition of environmental groups had reached a settlement with the Fish and Wildlife Service (FWS) in their effort to ensure protection for the endangered mexican gray wolf. These groups, represented by the Western Environmental Law Center, included Defenders of Wildlife, the Center for Biological Diversity, Western Watersheds Project, New Mexico Audubon Council, New Mexico Wilderness Alliance, University of New Mexico Wilderness Alliance, The Wildlands Network, Sierra Club, and Grand Canyon Wildlands Council.

Mexican gray wolf populations began to drop in the early 1900s due to ranching and development in the Southwest, and entirely disappeared from the wild by the 1970s. After being listed under the ESA in 1976, it was bred in captivity and finally reintroduced in 1998. (You can see a FWS chronology of the wolf's ESA recovery program and its milestones here.)

Just a few years later, in 2003, the Bush Administration handed control of managing mexican gray wolf populations in Arizona and New Mexico to the federal and state "Adaptive Management Oversight Committee," which was led by an official from Arizona Game and Fish. The Committee applied a set of "standard operating procedures, which included the rancher-friendly "Standard Operating Procedure 13" that required it to permanently remove a wolf from the wild (by killing or capturing it) if it killed three livestock in one year. According to Defenders' press release, this was done without regard to "an individual wolf’s genetic importance, dependent pups or the critically low numbers of wolves in the wild." According to this AP story on the case, there are only 50 Mexican gray wolves in the wild now, which is about half as many as the Recovery Plan envisioned by this time.

Defenders et al sued to stop SOP 13 in federal district court in Arizona in May 2008. Last week's settlement, which gets rid of SOP 13, settles the suit. FWS will also reassert control over the Committee under the settlement, as you can read in the press release and in the Arizona Daily Star, here. Arizona wildlife officials responded that the environmentalists are exaggerating--that they never controlled the committee, anyway. At the same time, the Arizona officials intimated that they would be working to make sure that the interests of ranchers continued to be represented in future Committee actions.

No New Environmental Appellate Decisions Today

2009-11-16T18:55:00.000-08:00

Suit filed against FWS over San Francisco Smelt

2009-11-16T13:51:00.000-08:00

The Center for Biological Diversity announced last Friday that it had filed suit in federal court against the Fish & Wildlife Service (FWS) seeking increased protections for two small smelt native to the Bay Area in Northern California. The group's press release can be read here.

The two species of smelt, the delta smelt and the longfin smelt, are at the bottom of a long battle over supplying water for irrigation to farmers in the region, and drinking water to area residents. As in other areas out West, much of this water is supplied through heroic diversions from once free-flowing rivers and streams that have threatened the viability of native fish species. And last week, Governor Schwarzenegger signed an $11bn water bond bill that would fund more engineering feats to get water to thirsty farmers and residents--at the expense of the longfin and delta smelt, according to CBD.

CBD and other environmentalists have been battling to force state and federal officials to take the smelt into consideration in their water use decisions using the Endangered Species Act for some time now. FWS issued a Biological Opinion last December asking that diversions be stopped to protect the delta smelt, already listed as threatened under the Act. But local water districts petitioned to have the protective actions called for by the BiOp enjoined, and the Eastern District of California granted that injunction last May.

Now that the bond bill has been passed, CBD is upping the ante. It wants the longfin smelt in the Bay-Delta area to be granted protection under the ESA as a distinct population segment (DPS)--something that FWS declined to do in this decision from April. It also wants FWS to change the delta smelt's status from threatened to endangered, which would trigger additional protections under the ESA, and possibly change the scope of action California is able to take.

You can read a pretty good article untangling the legal battle and its significance here, and access a FWS timeline of actions in the case here.

Riverkeeper Uses CWA to Challenge Improper CERCLA cleanup

2009-11-16T10:07:00.000-08:00

In an interesting coalescence of two different statutes, a company redeveloping a water front Superfund site in Oregon has been sued for violating the Clean Water Act in the process of that redevelopment. According to this article from the Oregon Daily News, Columbia Riverkeepers has sued Chinook Ventures for illegally dumping pollutants it is handling as part of the remediation of a former Reynolds Aluminum manufacturing facility on the Columbia River, using the citizen suit provisions of the Clean Water Act. Chinook is redeveloping the site, which is listed under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), to make into a private port facility. There's not much more out there on the case, but it is noteworthy, insofar as one would assume that a company conducting a CERCLA cleanup would have swarms of environmental consultants supervising the work to limit liability and ensure the work is completed to the Act's standards.

World Leaders Downgrade Copenhagen to Dress Rehearsal

2009-11-16T00:57:00.000-08:00

As hope faded that the U.S. Senate will have even a solid framework for a climate bill before negotiations are scheduled to start on the next international climate treaty in Copenhagen in three weeks, President Obama and other world leaders huddled in Singapore over the weekend to try and salvage the importance of the summit. According to this Politico article, the Danish Prime Minister flew out to Singapore to join President Obama and other world leaders in a last-minute breakfast huddle about the upcoming climate talks over the weekend. There, they decided to come up with a "one agreement, two steps" framework (obviously influenced in spirit by the sort of numerical nomenclature used in Chinese policy discussions) in which Copenhagen will, in essence, be just the first act of climate negotiations that will reconvene a year from now, as well.

Update: Politico also reports that Senator Reid was meeting with various committee chairmen to figure out how to push things along, here.

The New York Times is also reporting on the development, explaining that "this weekend in Singapore, Mr. Obama was forced to acknowledge that a comprehensive climate deal was beyond reach this year. Instead, he and other world leaders agreed that they would work toward a more modest interim agreement with a promise to renew work toward a binding treaty next year."

Tick tock, Senators, tick tock.

All Condemned, and Nothing to Build

2009-11-13T17:38:00.001-08:00

The New York Times has a great piece on how the massive private redevelopment of downtown New London at issue in Kelo v. City of New London 545 U.S. 469 (2005) . . . never happened. The article can be read here. The Volokh Conspiracy has a discussion of the development here. This development, the folks at Volokh say, helps bolster the argument that the government should not use eminent domain power to override multiple individuals' (i.e., the homeowners in the razed area) decisions about land use in favor of private redevelopment, since the government is prone to capture by large, well organized, monied corporate interests (i.e. Pfizer, which is backing out of its plans for a major research campus in the razed area).

I would posit that this rationale is not as vital, however, when it comes to how we think about "takings" via environmental regulation. In a case like Kelo, the private interest is quite powerful, and one would not suspect a troubling collective action problem on the part of the landowners. But when the government exercises its power in favor of environmental values, the concern about capture is more feeble: no matter how some property rights advocates may kvell about the power of the environmental lobby, corporate and money interests are more powerful, especially at the local level. And the likelihood of a troubling collective action problem is higher, since we can expect individual landowners to discount environmental values, which are all too often (still) externalized.

Frankly, I never understood Kelo. The colossal waste of a lovely neighborhood is unfortunate, but at least this latest development will stand as a cautionary tale for local authorities tempted to try something like this again, or for those state legislatures that have not yet passed laws forbidding the use of eminent domain powers signed off on in the case.

No New Environmental Appellate Decisions Today

2009-11-13T16:52:00.001-08:00

Coal State Senators Push for Bigger Share of (Free) GHG Permits

2009-11-13T09:52:00.000-08:00

Even though the Senate Climate Bill is currently more theoretical than real, a hypothetical bill that lies somewhere between Kerry-Boxer, Kerry-Graham-Lieberman, and whatever various Senate Committees might cook up, Senators in states that are heavily dependent on coal for power have already begun angling for a larger share of whatever free GHG emissions credits may be issued in the bill. In a letter issued yesterday, Senators Harkin (D, IA), Franken (D, MN), Dorgan (D, ND), Kohl (D, WI), Feingold (D, WI), Conrad (D, ND), Bennet (D, CO), Klobuchar (D, MN), Udall (D, CO), Byrd (D, WV), Levin (D, MI), Stabenow (D, MI), and Brown (D, OH) asked for a more "equitable" distribution of GHG emissions permits to help power companies that are more dependent on coal:

The House [Waxman-Markey] bill falls short of . . . equitable distribution . . . with its formula for allocating allowances to local distribution companies based 50 percent on emissions and 50 percent on sales. Unfortunately, the Senate bill currently under consideration includes the same 50/50 allocation provision. Under the proposed 50/50 formula, utilities that are more coal dependent will need to purchase even more allowances than they would have if all allowances were allocated based on emissions, and those higher costs will be passed on to their customers. Meanwhile, many utilities with relatively lesser emissions will receive sufficient allowances to completely cover their initial requirements. Thus, their customers will experience no price increases resulting from the legislation.

We believe it is essential that we strive to formulate legislation that equitably distributes transition assistance across individuals, as well as states and regions and economic sectors. We urge you to ensure that emission allowances allocated to the electricity sector – and thus, electricity consumers -- be fully based on emissions as the appropriate and equitable way to provide transition assistance in a greenhouse gas-regulated economy.

The full letter can be read here.

Given that these are 14 Democrats, and the Senate leadership is going to need every vote it can get to pass any climate bill, we can be assured that the distribution will be shifted as they ask. But you are right if this makes you uncomfortable. The coal-dependent power companies these Senators are defending have been warned for years by groups challenging their decisions to build new coal-fired power plants that the cost of coal power was bound to go up. These groups have consistently included in their comments before state utility commissions, state departments of environmental protection and federal authorities in charge of signing off on the plants the idea that the power companies really should be considering moves to diversify their power portfolio to wind, solar and energy efficiency--suggestions that the power companies have almost uniformly resisted (despite what their web sites often say about renewable energy and energy efficiency). So it is pretty disingenuous of them to act sad and helpless now that they are finally facing the prospect of paying up.

It is also disingenuous for the power companies, and the Senators from states in which they are powerful, to act as if their primary concern are their customers, when the lion's share of the customer rate increases they ask for (and almost always get from state utility commissions) are for building new power plants that are guaranteed to make the power companies money, but that the customers don't necessarily need. (Rate increases for energy efficiency improvements, though often the subject of much teeth gnashing by Republican state legislators all of a sudden concerned with rate payers, too, are generally tiny--especially in light of how much power they free up on the grid.) I may even be justified in saying that this is galling, in light of the sort of things that power companies expect customers to pay for, like $15,000 dinners and corporate spa retreats, as this article from the Colorado Independent discusses.

At any rate, Reuters reports on the letter here, the Hill here, and the Wall Street Journal here.

More Reaction to Forest Service Denial of Crested Butte Ski Area Expansion

2009-11-12T23:13:00.000-08:00

More news outlets in Colorado and environs are reacting to the Forest Service's decision (discussed in this post from Monday) to turn down Crested Butte Ski Area's application for a "special use" permit to expand ski runs and lifts onto Snodgrass Mountain, in the middle of National Forest land.

The Watch out of Telluride is reporting how pleased local environmentalists are, in an article you can read here. Notably, it reports that Rocky (natch) Smith, Forest Watch Program Director for Colorado Wild "said that only once during his 25-year career reviewing Forest Service projects (including the Telluride Ski and Golf Company’s expansion into Prospect Basin that he opposed) has he ever seen the agency turn down a request to expand a ski area or open a new one." So a shift from not only the Bush Administration, but the Clinton, Bush I, and Reagan administrations as well.

Meanwhile, the Gunnison Times reports here that the owners of the ski area found the Forest Service's decision to be "on the verge of appalling" and are planning on fighting the decision in court, if necessary. If it gets that far, it will be interesting to hear what the district court and perhaps ultimately the Tenth Circuit say it takes for a special use permit decision--which has a lot of discretion written into it by law--to withstand review. The ski area owners really seem to feel that they are entitled to NEPA review. The question is whether this is based on tradition, rather than anything legal.

Groups Sue to Save West Virginia Flying Squirrel

2009-11-12T15:14:00.001-08:00

Today, the Friends of Blackwater, Wilderness Society, Center for Biological Diversity, Southern Appalachian Forest Coalition, and Wild South filed suit in the U.S. District Court for the District of Columbia against the Department of Interior for taking the West Virginia Northern Flying Squirrel off the Endangered Species List. (You can check out the flying squirrel's Wikipedia entry here--it looks like an adorable Super Squirrel!!) The delisting took place in August 2008 under the Bush Administration, and was decried by environmentalists as part of the Administration's attempt to "gut" the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq. (The CBD's contemporaneous press release on the action can be viewed here, a more balanced discussion on the decision from ESAblawg here, and the delisting decision itself here. The decision was justified by the fact that the population had stayed stable for twenty years, and "persisted" in certain areas of its habitat, despite its scarcity--not that it had recovered.)

Today's complaint, which can be downloaded here, alleges that the Fish and Wildlife Service (FWS) ignored the criteria of its own 1990 recovery plan for the squirrel, see 16 U.S.C. § 1533 (requiring FWS to implement Recovery Plans), in its decision to delist. The complaint further charges that FWS failed to look at all the available science on the condition of the squirrel and its habitat in making its decision, something it was also required to do in any delisting decision by 16 U.S.C. § 1533. In fact, the complaint points out, FWS asserted in its decision that it was fine to delist a species "without all criteria [of its Recovery Plan] being met." See 73 Fed. Reg. 50226 (Aug. 28, 2008). The action, the complaint alleges, is therefore a violation of both the terms of the ESA and the APA, insofar as FWS acted in an arbitrary and capricious manner in violation of APA § 706.

The group's full press release can be viewed here.

[Update: The Courthouse News has a good article on the case, here.]

No New Environmental Appellate Decisions Today

2009-11-12T14:54:00.001-08:00

More Feedback on Chesapeake Bay Cleanup Plan

2009-11-12T14:46:00.001-08:00

Since the federal government issued a draft of its comprehensive plan to clean up the Chesapeake Bay last week, local environmentalists have begun to react. According to this article in the Maryland Daily Record, the Chesapeake Bay Foundation is concerned that the plan lacks details. In blog post on its web site, CBF calls the plan "disappointing because it lacks specific goals, deadlines, programs and strategies."

Meanwhile, Environment Maryland is distressed that it leaves too much up to the states, as you can read in their press release, here. The Capital, out of Annapolis, reports on the "wiggle room" left in the plan for the states to try it their way first, here.

On the other side of the issue, the Maryland government is concerned that the plan will unfairly crack down on Maryland poultry farmers for runoff from chicken waste, as the Baltimore Sun reported here. (They may be justified in their concerns that poultry farmers in their state will face tougher regulations. But ultimately, compliance shouldn't impose a huge financial burden, as I mentioned here. And if one Illinois farmer and attorney is to be believed, the EPA is out to get concentrated animal feedlot operations (CAFOs, aka factory farms) anyway, as you can read in his article about how "EPA is targeting CAFOs!" across the country, complete with exclamation points, here!).

The Baltimore Sun, meanwhile, thinks that the concern from both sides is a sign that the plan just may work, as you can read here.

Just in Case You Were Still Hoping

2009-11-12T11:57:00.000-08:00

The Senate Climate bill won't go anywhere in the next six weeks, WSJ confirms.

The Wall Street Journal reported yesterday, with plenty of quotes to back up the story, that the Senate Climate Bill won't be going anywhere before next year. Senator Baucus (D, MT), who chairs the Senate Finance Committee (and was a no vote against Kerry-Boxer on the Environment and Public Works Committee (EPW)) doesn't seem to be in a hurry to do anything. The article also reports that "Sen. Debbie Stabenow (D., Mich.), who is leading an effort by moderate, heartland Democrats to protect manufacturing and agriculture industries, said committees were no longer under any timetables to produce legislation."

Of course, Harry Reid (D, NV) promised five weeks of analysis of any proposed bill, as was discussed in this earlier post. And Senators Kerry, Graham and Lieberman are negotiating their own bill behind closed doors. And though it passed out of EPW, Kerry-Boxer is not winning any popularity contests in the Senate right now. This we knew before the EPA sent its endangerment finding on GHGs to the White House last Friday. But I guess this confirms that the move was not a sufficient shock to the system to jolt the Senate into action.

Analysis of Impact of New Fourth Circuit Appointee

2009-11-12T05:58:00.000-08:00

Greenwire ran an excellent short piece yesterday on the potential impact on environmental law of the confirmation of Judge Andre Davis to the U.S. Court of Appeals for the Fourth Circuit. The article makes four essential points:

Judge Davis's appointment means that Democratic appointees now comprise a majority of the court.
The Fourth Circuit has been making important rulings on hot-button environmental issues, such as the permissibility of valley-fills during mountaintop removal mining (MTR).
The Fourth Circuit recently ruled in a case, U.S. v. Gould, that could have a major impact on the interpretation of the scope of Congress's Commerce Clause powers; how that scope is interpreted can be critical in many environmental law cases.
Cases that have already been considered by a three-judge panel of the court may be subject to en banc review--a process that will now have Democratic appointees as the majority of decision makers.

It does caution, however, that "[a]s a district judge, Davis once sat on the board of the Foundation for Research on Economics and the Environment, an organization funded by companies such as Texaco, Exxon Mobil Corp. and General Motors Co. that opposes environmental regulation." The full article can be read here.

I would add that the Fourth Circuit has made important rulings on the Commerce Clause prior to this year, in cases that went up to the Supremes and were used to impose curbs on the limits of Congress's power: United States v. Lopez, 514 U.S. 549 (1995), and U.S. v. Morrison, 487 U.S. 654 (1998). Whether the Roberts Court will be eager to take on the bounds of the Commerce Clause in quite the same way that the Rehnquist Court was remains to be seen, however.

Brown Pelican Off Endangered Species List

2009-11-11T17:36:00.001-08:00

The U.S. Fish and Wildlife Service announced today that the brown pelican, pelicanus occidentalus, and the state bird of Louisiana, is no longer considered endangered for the purposes of the Endangered Species Act. It has been listed under the Endangered Species Act (ESA) and its precursor since 1970, one of the first bird species recognized as being imperiled by the pesticide DDT.

DDT, an insecticide used to kill mosquitos, is especially dangerous to animals high up the food chain. It is very persistent, and so it sticks around and accumulates in larger and larger quantities as flies are eaten by fish, are eaten by larger fish etc.. This meant that birds such as pelicans, which rely on large amounts of fish, and lived in aquatic areas targeted for mosquito spraying, were exposed to a large amount of the insecticide. Populations of birds such as the brown pelican, bald eagle, and peregrine falcon plummeted, as DDT caused the shells of their eggs to become very thin, limiting their ability to successfully reproduce.

Use of the pesticide was banned in the U.S. in 1972, and worldwide in 2004 under the Stockholm Convention on Persistent Organic Pollutants. FWS credits the U.S. ban, along with extensive efforts by Louisiana and Florida to restore coastal habitat, for the recovery of the brown pelican. (The brown pelican, and a nefarious plot to sacrifice its habitat to drill oil, was the inspiration for John Grisham's The Pelican Brief.)

The FWS press release can be viewed here, and their fact sheet on the brown pelican here. A story on the announcement in the New Orleans Times Picayune (which includes some lovely pictures) can be read here. In a joint press release, Environmental Defense, National Wildlife Federation, and Audubon are all cheering the announcement, but call for continued commitment to coastal habitat and wetlands restoration. (No word yet from ESAblawg.)

No New Environmental Appellate Decisions Today

2009-11-11T17:35:00.001-08:00

Speaking of Appropriations Riders. . .

2009-11-11T07:32:00.000-08:00

Grist mulls over the possibility that Congress might use an appropriations rider to kill EPA authority to regulate GHGs under the mobile source and BACT provisions of the Clean Air Act, in response to Monday's revelation that EPA's endangerment finding had been sent to the White House. You can read the piece here.

[Proviso: I disagree with many of the Grist piece's characterizations of the Mass v. EPA decision; it is not quite as slam-dunk in "requiring" GHG regulation under the CAA as the piece makes it out to be.]

It is certainly true that even Democrats have been making a lot of noise about taking away EPA's Clean Air Act Authority over GHGs as a condition of creating a new climate bill. (You can see this in questioning of Lisa Jackson by the Senate Environment and Public Works committee a few weeks ago, detailed in this post.) But unilaterally getting rid of EPA CAA authority over GHGs without passing a climate bill would be pretty shocking. And I for one believe (hope?) that the White House knows what its doing, and that Congress won't be able to kill EPA authority through an appropriations rider. This can be seen in the way that the White House and EPA have broken the endangerment finding process into digestible bits--making the finding, for instance, but not creating the concomitant regulations of vehicle GHG emissions--and has been feeding those bits slowly to Congress at strategic moments--just before Kerry-Boxer was introduced, just before Ban Ki-moon's visit--to keep it moving along. (For a good overview of how this has been trucking along since last spring, see the "Climate Change" section of Ohio Environmental Law Blog, here.)

A Little History Lesson

2009-11-11T06:56:00.001-08:00

Elizabeth Garrett at USC Law Revisits TVA v. Hill.

When discussing yesterday's Ninth Circuit decision in National Parks Conservation Association v. BMA, I noted that, although the project at issue (a landfill adjacent to Joshua Tree National Park) could technically go forward after BLM goes back and complies with the panel's rulings on its NEPA evaluation, approval delayed is often approval denied.

The real nuclear bomb in environmentalists' arsenal is, of course, the Endangered Species Act, which absolutely forbids action that would constitute a "take" of listed species. (A substantive road block, rather than the procedural road block NEPA throws up.) The mother of all ESA cases, paving the way for decades of ESA-based attempts to litigate controversial projects to a halt is TVA v. Hill, 437 U.S. 153 (1978), in which the Tellico Dam was almost stopped by the Endangered Species Act for the sake of the infamous endangered snail darter.

Now Elizabeth Garrett, a scholar of legislative process at USC Law (and a former University of Chicago Law professor) is putting out a book on the subsequent legislative history of the controversy, in which Congress used appropriations legislation to overrule the Court. A preview of Professor Garrett's book, The Story of TVA v. Hill, Congress has the Last Word, can be read here, and a post on the book at Legal History Blog, here.

The book should be instructive, in light of the fact that Congress's tactic of using lines inserted into appropriations bills is alive and well. Far more recently, for example, Senator Domenici of New Mexico used an appropriations bill to override a ruling by the U.S. District Court for the District of New Mexico ordering the Army Corps of Engineers to release water set aside for farmers in the Rio Grande watershed back into the river to protect the endangered silvery minnow. You can read an article on the controversy, circa 2003, here.

A Modicum of Activity on Senate Climate Bill

2009-11-11T06:15:00.000-08:00

Yesterday, Senators from various sides of the climate debate had a few opportunities to voice their positions on an eventual bill. As the Washington Independent reported, Senator Baucus (seen as a key indicator of moderate, coal-state Democratic sentiment on a climate bill) opened a Senate Finance Committee Hearing yesterday on the jobs impact of potential climate legislation with the following statement:

Today, we will consider whether climate legislation will create jobs in the energy sector. We’ll examine
further this Committee’s role in climate legislation. And we’ll discuss what we can do both to create
jobs and to ease the transition to an economy that accounts for the cost of carbon dioxide. I am committed to passing meaningful, balanced climate-change legislation.

I am committed to legislation that will protect our land and those whose livelihood depends on it. I want our children and grandchildren to be able to enjoy the outdoors the way that we can today. So I’m going to work to pass climate-change legislation that is both meaningful and that can muster enough votes to become law.

Today we’ll hear predictions — some optimistic, some otherwise — about the effects that climate legislation will have on American jobs and the American economy. We need to consider these predictions. But we also need to consider the consequences of failing to act. We can already see some of these consequences in my home state of Montana. We can see the consequences in forests near my hometown of Helena, destroyed by pine beetles that thrive in warmer temperatures. We can see the consequences in sustained drought and more frequent wildfires. And we can see the consequences in decreased snowpack and lower stream flows, reducing water for irrigated agriculture and starving our blue‐ribbon trout streams of cold water.

These are serious consequences. And I believe that we can mitigate their effects in a way that does not
harm the economy. . . . [W]e should recognize that in the case of acid rain [provisions included in the 1990 Clean Air Act Amendments, which Baucus helped author], the negative consequences were far less than projected. We should keep this in mind when similar claims are made about the effects of legislation to address climate change.

So although Senator Baucus voted against the Kerry-Boxer bill in committee, and was seen as a doubting voice, he--at least at first blush--seems to be somewhat to the left of, say, Senator Graham, who is working with Kerry and Lieberman to come up with a version of the climate bill that endorses nuclear, "clean coal," and more offshore drilling. Senator Baucus's full statement can be viewed here. Archived footage of the hearing can be viewed here.

Meanwhile, as several outlets are reporting, U.N. Secretary General Ban Ki-moon met with members of the Senate Foreign Relations Committee to urge them to push forward with climate change legislation in advance of next month's negotiations in Copenhagen. McClatchy reports the story here, and the Wall Street Journal here. Senator Lieberman (I, CT) told Secretary Ban that he was confident that he and Senator Kerry ahd come up with the framework that would eventually become the Senate climate bill, as Bloomberg reports here. Senator Richard Lugar (R, IN) begged to differ, telling Secretary Ban that "I don't see any climate bill on the table right now that I can support," and that "[w]e really have to start from scratch again." The Washington Post article detailing this exchange can be read here.

Ninth Circuit Affirms Reversal of BLM Decision Allowing Landfill Next to Joshua Tree

2009-11-10T22:19:00.000-08:00

In National Parks Conservation Association v. BLM, the Ninth Circuit yesterday affirmed a district court ruling overturning a Bureau of Land Management (BLM) decision allowing a massive landfill serving Los Angeles to be built on abandoned mining sites adjacent to Joshua Tree National Park. The NPCA press release can be read here, and the full opinion here.

The National Parks Conservation Association (NPCA) and local citizens fought the project at the administrative level and in federal court, out of concern for the impact it would have on the local ecosystem. They urge in this fact sheet on the case that the landfill "would severely disrupt the surrounding desert ecosystem by subsidizing and inflating the population of predators, such as ravens and coyotes, which in turn would reduce numbers of desert tortoise, reptiles, songbirds, and other wildlife. In addition, light, air, and noise pollution, other impacts to wildlife, and the eventual contamination of groundwater would permanently alter Joshua Tree and the adjacent Chuckwalla Valley."

The group challenged BLM's original decision to allow the landfill (and a land exchange that would have enabled it to happen) under the Federal Land and Policy Management Act (FLPMA) and NEPA. Two NEPA claims survived and won the day before the Ninth Circuit: First, that BLM had, in its NEPA alternatives analysis, delineated the purpose of the project too narrowly--so narrowly that the only alternative method of achieving that purpose was to build a landfill. Slip. Op. at 15124. The panel held that one of the main objectives of the NEPA process--fully evaluating all feasible alternatives to the proposed project--was thwarted by a conception of the purpose so narrow that all alternatives that failed to meet "specific private objectives" were excluded. This, they affirmed, invalidated the resulting environmental impact statement (EIS).

Second, the panel held that BLM had failed to analyze the impact of "eutrophication" (introduction of extra nutrients to the landscape) in a manner sufficient to allow the conclusion that decision makers and the public were fully informed on the issue. BLM apparently tried the "its in there somewhere" defense. The Ninth Circuit held, in essence, that that was insufficient, since even an informed reader would have a hard time finding the discussion, and would have to hunt through the whole EIS, clip several sections, and paste them all together to get a decent picture of the issue. This, they said, is not a "reasonably thorough" discussion of the issue sufficient to meet NEPA's process requirements. Slip. Op. at 15127.

The project now goes back to BLM for further review. It is technically possible that it could still be approved and ultimately survive judicial scrutiny. After all, NEPA mandates process, not outcome, and the court's rulings on the substantively significant FLPMA claims were more favorable to the Bureau (meaning it would be hard to win a legal argument that BLM failed to comply with FLPMA's requirements). But in a NEPA case, approval delayed is approval denied, and NPCA is claiming victory. Presumably, the plaintiffs are hoping that the prospect of further extensive reviews will cause the investors and the Los Angeles to pack up and ship their garbage elsewhere.

GHG Endangerment Finding Sent to White House

2009-11-09T23:14:00.000-08:00

Apparently, EPA Administrator Lisa Jackson told Reuters today that she had sent the final version of EPA's endangerment finding for greenhouse gases to the White House on Friday. The Reuters article can be read here. (The proposed version of the finding, released last April, can be read here.)

Other news outlets, including the Wall Street Journal, are reporting the story. But the current version of the finding and the accompanying letter are not yet available on the EPA or White House web sites.

The endangerment finding was made under Section 202 of the Clean Air Act, part of its mobile source (vehicle) provisions, and is the ultimate result of the Supreme Court's 2007 decision in Massachusetts v. EPA. This pertains only to mobile sources, and, by its terms (as proposed in April) will not immediately be followed by regulations governing vehicle emissions of GHGs.

That said, a final endangerment finding will give environmentalists a strong legal case that the EPA must now issue regulations governing vehicle emissions of GHGs. EPA has also signaled that it would have to make a similar endangerment finding and issue regulations for emissions of GHGs from stationary sources, including power plants. Some (though not all) in the environmental community are eager to see EPA action via the PSD provisions of the Act, though industry supporters have warned that such a finding for stationary sources would virtually shut down the economy.

If EPA issues regulations governing vehicle emissions of GHGs, environmental litigators will be able to make a slam-dunk argument that GHG's are regulated by the Clean Air Act, and thus subject to the Act's "best available control technology" (BACT) provisions. (This is an argument they have been advancing for some time in their battle against coal-fired power plants, but is weakened by the fact that no actual regulations of GHGs have been issued under the Act. Three weeks ago, the EPA's Environmental Appeals Board (EAB) issued an order, In the Matter of BP Products North America (EAB, October 16, 2009) in which it explained that "at this time EPA continues to construe" BACT to cover only those pollutants "subject to either a provision in the Clean Air Act or a regulation adopted by EPA under the Clean Air Act that requires actual control of emissions of that pollutant.")

The White House has 90 days to act, but Administrator Jackson told Reuters that she expects an expedited review. This move will put additional pressure on the Senate to continue to move forward with climate change legislation, and may also help show the world, in advance of next month's climate change negotiations in Copenhagen, that the U.S. is moving forward to regulate greenhouse gases.

More information will be posted as it becomes available.

Update: The Washington Post is reporting the story now, and confirms that the finding has not been released publicly. They obtained a statement from the National Association of Manufacturers that they are concerned that EPA is moving forward before Congress has a chance to pass its own bill (confirming that this may well be designed to place pressure on Congress, since you can be assured that NAM is calling on its connections in the Senate right now.) And they obtained a statement from environmentalists that they think that the Administration is doing this to avoid going to Copenhagen "empty handed." The full article, which reflects some great last-minute reporting by Juliet Eilperin, can be read here.

The Denver Science News Examiner is reporting the story here (and its being reprinted in the Washington D.C. Examiner, so being read for free by D.C. Metro commuters on their way to work this morning.) And BNET is reporting the story, describing the move as "Climate Bill Stimulus."

Forest Service Blocks Ski Area Expansion onto Public Lands

2009-11-09T20:28:00.000-08:00

Forest supervisor says expansion would be "against public interest."

In a letter dated November 5, 2009, the Forest Supervisor for the Grand Mesa, Uncompaghre and Gunnison National Forests rejected an application by the Crested Butte Ski Resort for a special use permit to expand onto national forest land on nearby Snodgrass Mountain. The resort owners had sought the expansion in part to develop more beginner and intermediate ski runs to broaden their appeal. In a decision that shows which way the winds are blowing in the Forest Service, the Forest Supervisor determined that although the plan met the minimum initial screening requirements, the expansion failed second-level review as against the public interest, citing 36 CFR 251.54(e)(5).

The Forest Supervisor made his adverse public-interest finding on the basis that, among other things, the expansion (a) lacked community support, (b) posed too many economic and social costs, (c) would place too much development pressure on the surrounding area, changing its character, (d) was problematic in light of the fact that Snodgrass Mountain is in an Inventoried Roadless Area (IRA), (e) would impinge on lynx habitat, and (f) would require an extensive and costly NEPA process for which there was insufficient justification in light of all the other concerns.

The Forest Supervisor's citation of the fact that the proposed expansion is in a roadless area is particularly interesting in light of the fact that the Roadless Rule's fate is not yet decided (as I explained in this post, last week)--and in light of the fact that the Obama Administration has recently filed briefs on behalf of the Roadless Rule, reversing eight years of Bush Administration litigation strategy. Obviously, this Forest Supervisor has gotten the memo. He wrote:

Several Federal Circuit Courts are currently considering the future management of IRAs. A final decision on how ski areas can develop ski facilities in IRAs may be several years away. It is very reasonable to expect; however, that any decision to develop Snodgrass Mountain will be challenged based upon consistency with both the intent and ecological values of roadless areas.

His analysis of community support for the project was also interesting. The project has engendered significant opposition. (Friends of Snodgrass Mountain, which was formed to fight the project, has an only-in-Colorado slogan: "It's Not Light. It's Not Intermediate. And It Won't Work!"). But opposition is not unanimous. Here, the Forest Supervisor cited the lack of unanimous support as a reason that the project is not in the public interest, whereas one might expect the Forest Service in prior administrations to cite the lack of unanimous opposition as a basis for moving ahead. See Nov. 5, 2009 Letter at p. 2 ("Based on what I have heard and read, I am convinced that the community is deeply divided over the proposed development of Snodgrass Mountain."). Almost any project that would require NEPA review could be said to "deeply divide" local communities--there are a lot of environmental litigators who would love to see this cited as a reason not to perform NEPA review, or to choose a no-build alternative to a proposed project. (Especially since project proponents so often form pro-development citizens groups that would not have arisen spontaneously.)

The owners of the ski resort released a press statement today expressing their disappointment in the decision. They said they were "blindsided" by the decision, and had thought, based on earlier interactions with the Forest Service, that everything was going well for them. They also complain that many other ski areas in Colorado have gotten special use permits for similar expansions in the past, and expected that they would be able to get one as well. The release ends with positive statements about what the expansion "will" provide to the resort and the community, perhaps indicating the owners' intent to appeal the Forest Service's decision.

If they do appeal, they will have to go to federal court, as the letter specifies that the decision is not subject to administrative review.

Press coverage of the development can be read in the Denver Post, here.

Coalition Sues Park Service and Forest Service to Stop Bison Kills

2009-11-09T14:32:00.000-08:00

A group of Native American and environmental groups filed suit in the U.S. District Court for the District of Montana today to prevent the National Park Service and the Forest Service from participating in state roundups of wild bison in Yellowstone that state officials suspect of being infected with brucellosis. The groups' press release can be viewed here.

Yellowstone is home to a herd of 3000 bison. (Although bison are no longer endangered, there are still only about 150,000 in North America). According to an AP story on the suit, "[d]uring severe winters and when bison numbers are high, thousands of the animals try to migrate to lower elevations outside Yellowstone in search of grass for grazing." Under a 2000 agreement between Montana and the federal government, bison who are in danger of coming in contact with cattle are rounded up and tested for brucellosis, and those who test positive (about 50%) are slaughtered. According to this article from Yellowstone Insider, this was done for the sake of Montana's beef industry, so the cattle could be certified as brucellosis free. A total of 3,000 have been slaughtered over the course of the decade, including over 1,400 in spring 2008.

Yellowstone is also home to a much larger elk population, but officials have been focusing all their energies on the bison based on arguments that the incidence of disease is higher in bison and elk, and because elk are more disperse. The Government Accountability Office, in a highly critical report released last year, criticizes the practice:

This difference in management remains even though there have been multiple suspected elk-to-cattle transmissions in recent years in Idaho and Wyoming, some of which have been detected through DNA testing; the National Research Council reported in 1998 that the risk of transmission from bison to cattle was low; and there have been no known cases of brucellosis transmitted from bison to cattle in a wild, uncontrolled setting.

The whole report can be viewed here.

According to the GAO report, the roundups were supposed to be only temporary, and officials expected to move on to delivering brucellosis vaccine to the bison by the winter of 2002-2003. But, the report says, mismanagement and miscommunication among the agencies and state officials involved has kept them stuck in first gear. The report accuses the federal agencies involved of wasting time and money in an opaque process that depends on trial and error rather than sensible planning.

The group that filed suit today to stop the roundups includes Western Watersheds Project, the Buffalo Field Campaign, Tatanka Oyate (Buffalo Nation), the Gallatin Wildlife Association, the Native Ecosystems Council, and the Yellowstone Buffalo Foundation.

The complaint argues that the Park Service and the Forest Service have arbitrarily and capriciously failed to provide for providing for adequate and appropriate diversity of plant and animal species in their implementation of and actions under the Interagency Bison Management Plan and the Gallatin National Forest Plan. Should DoJ choose to vigorously defend this suit, they would most probably defend much of the complaint on ripeness or other jurisdictional grounds. However, one would hope in light of the GAO report, the poor track record of efforts so far, and the change in administrations that some sort of settlement will be reached relatively quickly.

First Circuit Rules in Favor of Trust for Public Land in Failed Conservation Attempt

2009-11-09T12:40:00.000-08:00

In Kunelius v. Town of Stow, handed down today, the First Circuit sided with conservationists who tried and failed to save a large tract of certified "forest land" (as defined by Massachusetts law) in Stow, Massachusetts from development as a "co-housing" facility.

The tale is long and sordid, but essentially comes down to this. Although she knew that the Town had a right of first refusal (ROFR) for any negotiated sale of her property (that she had gotten certified as "forest land" in return for tax concessions), the property owner negotiated a contract with a cohousing developer from Washington state with a liquidated damages provision of $19,000. The Town, spurred by local activists who organized to oppose the sale and development, exercised its ROFR. The Town, in turn, acted in light of a promise by the Trust for Public Land to take assignment of the purchase and payment responsibilities. And the Trust for Public Land relied on possible town funding, fundraising, and some state preservation funds. But once the Trust took assignment, all the monies dried up, due to politics, bad luck, and some self-destructive fundraising techniques. The Trust wanted out, and expected only to pay $19,000. Meanwhile, the property owner no longer had the option of selling to the original developer, who had since found a site elsewhere. So she tried to hold the Trust to the entire purchase price.

The facts of the case made the Trust and its local representative look pretty darn bad. And the panel didn't have much sympathy for it, based on the opinion's tone. The property owner, in essence, made the public policy argument (in the panel's words) that "granting municipalities and nonprofits added leverage to disrupt transactions involving certified land" by allowing them to neatly take the position of the original developer in the assignment, and with it any favorable terms "would tilt the statutory structure too far toward the municipality and would therefore reduce the number of landowners willing to participate in the [forest certification] scheme." Nonetheless, the panel concluded that the liquidated damages provision was binding on the property owner--that she had to settle for the lower amount. This was only fair, they noted, because she knew all along that she was negotiating with the developer in the shadow of the Town's ROFR. Therefore, "[s]he may well have been able to negotiate terms that would have better protected her in the event that less reliable counterparties, such as the Town and the Trust, would become parties to this transaction."

So the Trust for Public Land escapes with little liability but a fair amount of egg on its face. The instant property owner will probably only be able to sell the land to someone willing to commit to keep it just the way it is now. And in the future, property owners participating in Massachusetts state conservation programs would do well to omit any liquidated damages provisions they don't really want to live with.

Press and NGO Roundup on Bay Cleanup Plans

2009-11-09T11:03:00.000-08:00

Initial newspaper articles are coming out now on today's announcement of a draft federal plan for cleaning up the Chesapeake Bay (which I described in this post immediately below.)

The Washington Post reports that "EPA plans to get tough on states in bay cleanup effort," highlighting the mandatory nature of the WIPs, and the measures EPA intends to use against states that fail to meet goals. The Baltimore Sun reports that "Bay cleanup calls for expanded federal regulation," noting that EPA will be drawing up new rules about runoff from CAFOs and urban and suburban stormwater management, but has promised to "shelve bay-specific regulations if the states strengthen their own pollution controls enough to restore water quality." The AP has a very brief story here.

NRDC, meanwhile, lauds the plan, calling it "sensible and overdue - finally providing the federal leadership we need, with funding to back it up, to clean up this national treasure."

Federal Plan for Cleaning up Chesapeake Announced

2009-11-09T09:03:00.000-08:00

Pursuant to Executive Order 13508 (May, 12 2009), (the Chesapeake Bay Protection and Restoration Executive Order), a committee of federal officials has released a draft plan for cleaning up the Chesapeake Bay. The EPA, Department of Agriculture (USDA), Department of the Interior (DOI), Department of Commerce (DOC, including NOAA) and Department of Defense (DOD) share responsibility for various parts of the effort. The Executive Order directs them to:

define tools and actions to restore water quality and describe changes to be made to regulations, programs, and policies to implement these actions (EPA);
target resources to better protect the Bay and its tributaries, including resources under the Food Security Act of 1985 as amended, the Clean Water Act, and other laws (USDA);
strengthen storm water management practices at Federal facilities and on Federal lands within the Chesapeake Bay watershed and develop storm water best practices guidance (DOD, EPA);
assess climate change impacts on the water quality and living resources of the Bay and develop strategy for adapting natural resource programs and public infrastructure to those impacts (DOI, DOC);
expand public access to waters and open spaces of the Chesapeake Bay and its tributaries from Federal lands and conserve the landscapes and ecosystems of the Chesapeake Bay watershed (DOI);
strengthen scientific support for decisionmaking to restore the Bay and its watershed, including expanded environmental research and monitoring and observing systems (DOI, DOC); and
develop coordinated habitat and research activities to protect and restore the Bay's living resources and water quality. (DOI, DOC).

Chesapeake Bay Protection and Restoration Executive Order at Section 202 (lead agencies in parentheticals).

Notable components of the plan include: new EPA efforts to control runoff from Concentrated Animal Feeding Operations (CAFO) (a major source of nitrogen from chicken and other animal waste), as well as urban and suburban runoff; a revitalization of efforts to recover native oyster reefs and establish self-sustaining native oyster reef sanctuaries by 2020; and the establishment of a Chesapeake Conservation Corps made up of ordinary citizens. The EPA efforts will be helped along by $19 million in increased funding from Congress to "support additional regulatory and accountability programs to control urban, suburban and agricultural runoff in the watershed." (You can read a Chesapeake Bay Foundation press release about the funding here.)

Already, Maryland officials have voiced concerns about the potential impact of tightened regulations on the state's poultry industry, as you can read in this Baltimore Sun article. Indeed, any EPA effort to control runoff from major chicken operations will involve new costs, since operators of huge chicken operations, in which chickens are confined by the hundreds or thousands in large barns, simply let the waste drain into ground and surface water, and ultimately into the Bay. (This Frontline segment shows some fairly stark footage of the phenomenon.) In the event, this probably won't be a terribly difficult transition for these farmers to manage, monetarily--though it will take a little work. Chickens raised in more traditional circumstances don't pose the same problem, as their (more disperse) waste is absorbed back into the soil easily and is, indeed, beneficial. And if the chicken CAFO operators sold their guano to fertilizer manufacturers, most of the runoff problem would dissipate.

The Draft Strategy--which will be open to comment for 90 days--can be read here. The USDA press release can be read here. And an earlier post on EPA efforts to work with surrounding states to develop mandatory Watershed Implementation Plans (WIPs) to control runoff into the Bay can be read here.

EPA Moves Quickly on Pesticide Drift

2009-11-09T05:30:00.000-08:00

The Environmental Protection Agency (EPA) announced last Wednesday that it had issued new proposed guidance on pesticide labeling to reduce off-target spray and dust drift. The guidance, issued under the Federal Insecticide, Fungicide and Rodenticide Act, (FIFRA), 7 USC §136 et seq, will direct manufacturers how to provide clear guidance to users to cut down on over-spray and drift on labels included on their pesticides. (You can read a brief overview of EPA's authority over the content of pesticide labels here.) The guidance is, however, non-binding. See, e.g., General Electric v. EPA, 290 F.3d 377 (D.C. Cir. 2002) (explaining when guidance is merely hortatory, and when it has the force of law).

At the same time, it announced that it would be seeking comments on a petition to protect children in areas adjacent to farms and other pesticide application sites from pesticide drift.

Earthjustice, which filed a petition on the issue in October (2009!) was quite excited to see EPA move so quickly. In this press release last week, they stated: "This new administration has . . . committed itself to quickly bring this issue before the public -- a welcome move in the right direction. We hope this momentum continues and that on-the-ground safety standards for children advance before another growing season begins." (The original petition can be viewed here.)

FWS Makes Annual Announcement of Candidate Species for ESA

2009-11-09T05:00:00.000-08:00

Apparently, though, it hasn't succeeded in actually protecting many of those in the past ten months.

On Friday, the U.S. Fish and Wildlife Service released its Candidate Notice of Review (CNR), an annual list of plants and animals that are considered candidates by the agency for Endangered Species Act (ESA) protection. The press release can be read here, and the list here.

According to FWS, "[c]andidate species [included on the list] are plants and animals for which the Service has enough information on their status and threats to propose them as threatened or endangered, but [for which] developing a proposed listing rule is precluded by higher priority listing actions." Apparently, four species have been removed from the list, five have been added, and eight have had their priority changed since last year.

The author of ESABlawg, a DoJ alumnus, explains the significance of inclusion on the list as follows:

The candidate list is the one significant place where the U.S. Fish and Wildlife Service takes into account priorities when implementing the Endangered Species Act. Under this three-part priority ranking system,

(1) threats to species are considered in magnitude as either “high” or “moderate to low”;
(2) immediacy of threats are categorized as either “imminent” or “nonimminent”; and
(3) three categories are created for taxonomic status: with
(a) species that are the sole members of a genus;
(b) full species (in a genus that has more than one species); and
(c) subspecies, distinct population segments of vertebrate species, and species for which listing is appropriate in a significant portion of their range rather than their entire range.

The result of the ranking system is that FWS assigns each candidate a listing priority number of 1 to 12.

This system has two important limitations. First, as FWS notes, it still results in lumping all the species together on the candidate list. . . . Second, it does not attempt to assign any value to one species over another based on biological characteristics or other traits. In other words, it does not matter whether a species is a plant that is in trial testing as a potential cure for cancer, nor a keystone species representative of an entire ecosystem that also creates habitat for dozens of other species. Either way, the ranking system assigns a 1 to 12 based on the individual status of the species, and all species struggle equally on the candidate list until FWS finds the money (or a court orders FWS) to list the species.

The Center for Biological Diversity--possibly the primary organization pressing for these court orders--notes that "The majority of candidates [on the CNR] are rated as either priority 2 or 3, meaning they are in immediate danger of extinction."

In a press release about the CNR, which also detailed full ESA listing activity, the Center for Biological Diversity noted that the Interior Department has only moved one species, a rare Hawaiian plant, under the umbrella of ESA protection since President Obama took office. CBD is extremely critical of this record, saying:

This review shows that the Obama administration has not substantially improved the dismal record of the Bush administration in providing protection to the nation’s critically endangered wildlife. . . . Protection of only one species in 10 months reflects a failure to enact substantial reforms in the U.S. Fish and Wildlife Service.

(FWS is moving toward listing the flat-tailed horned lizard in 2010, but this was just mandated by the federal district court in Arizona implementing a Ninth Circuit decision won by CBD in July.)

Maybe I'm naive, but I'm inclined to cut the Obama Administration a little slack, since turning around a bureaucratic ship can be quite a slow process. But it would be interesting to know what the process story is: According to the full CBD press release, the Bush Administration averaged 7-8 listings a year, and the Clinton Administration 65.

Sixth Circuit Affirms Dismissal of NEPA Suit Against TVA for Lack of Standing

2009-11-06T09:00:00.000-08:00

In Friends of Tims Ford v. the Tennessee Valley Authority, (6th Cir., No. 08-5706, November 6, 2009), the Sixth Circuit today affirmed the dismissal of a suit brought by a group of concerned citizens living near the Tim's Ford reservoir in central Tennessee. The Friends of Tim's Ford (FTF) group objected to a plan by the TVA to transfer land surrounding the reservoir to private developers for permanent residential development, and allow the construction of additional piers, docks, and a marina on the reservoir. The group alleged a variety of procedural failures under the National Environmental Protection Act (NEPA), as well as the TVA Act (the organic act that gave rise to the quasi-governmental authority).

In today's opinion, the Sixth Circuit affirmed the district court's dismissal below on the basis that FTF lacked standing to bring the suit. As the panel explained, slip op. at 12, "In the instant case, FTF alleges its members have suffered two types of injuries: (1) procedural injuries arising from the failure of TVA and TDEC to follow NEPA procedures; and (2) ongoing injuries to their aesthetic and recreational interests arising from environmental harm to the Reservoir caused by agency action in violation of NEPA and the TVA Act." The panel ruled that "FTF has failed to adequately plead a procedural injury, because it has failed to connect the procedural harm alleged in its complaint – the creation of a new land use classification in the [final environmental impact statement] without an environmental assessment, resulting in 'uninformed–rather than unwise–agency action' in violation of NEPA – to specific harm threatening particular FTF members." Id. at 14-15 (citing Robertson v. Methow Valley Citizens), 490 U.S. 332, 351 (1989). It seems that the group had affidavits as to harm suffered by members in one area near the projects, but that the procedural failure they alleged affected a different area. And the panel ruled that the plaintiffs failed to correctly plead their case that they suffered from ongoing harm from what TVA was doing, because they complained about the effects they suffered from docks that had already been built, and yet asked for future, injunctive relief in the form of preventing TVA from building more docks.

Without reading the record, it appears that this is might be a case of bad lawyering by FTF's legal team: They could probably have found folks to discuss harms they suffered from TVA decisions made without adequate process about their particular part of the area, or drawn stronger lines between TVA's decisions about a particular area and the harms their clients suffered--even in a different, adjoining area. They also should have drawn stronger lines between their demonstration of past harm, and the idea that the future harm they sought to enjoin would mean more of the same injury to their clients. OR, it could be that this panel (and the district court below) read the affidavits and pleadings in a less-than-generous manner.

EPA Orders Surrounding States to Draw Up Watershed Implementation Plans for Chesapeake

2009-11-06T08:41:00.001-08:00

In a series of letters sent out on Tuesday and Wednesday of this week, the Acting Administrator of EPA Region III informed states in the Chesapeake Bay watershed that they will be expected to draft state initial "watershed implementation plans" (WIPs) by next June on how they will meet targets for how much nutrient (i.e. nitrogen and phosphorus) and sediment run-off will be allowed to drain into the Bay from each state. EPA will use these WIPs to establish a final rule on the total maximum daily load (TMDL) of run-off that will be allowed into the Bay, under section 303(d) of the Clean Water Act (CWA), and various consent decrees between EPA and the states involved . EPA expects to complete this final rule by December 2010--it is asking states for these initial WIPs so it can issue a draft next August. Further, more specific state WIPs will be required in two stages by 2017.

This marks a significant departure in tactics. Whereas efforts to curb pollution in the Chesapeake have largely been governed by a voluntary framework for the past twenty or more years (as this excellent Frontline segment explains), the new regime will be mandatory. The Acting Administrator will send out "consequence letters" later this fall detailing the enforcement tools EPA will use to make sure that the WIPs are satisfactory, and that they are carried out faithfully. EPA also promises in the letter to limit air pollution that precipitates into the Bay, and enforce the rules against federal facilities.

The Capitol, an Annapolis, Maryland newspaper, reported this story, but emphasized that the TMDL values will be higher than they have been in the past. However, since those were only ever voluntary, if EPA follows through, the new TMDL values should have a greater impact.

For further background, EPA's September Federal Register notice of the new Chesapeake TMDL program can be read here. A more user-friendly fact sheet can be seen here.

Friends of the Earth Breaks with Mainstream Environmentalists in Decrying Kerry-Boxer

2009-11-06T06:50:00.000-08:00

At least one group stands up and says the Emperor has no clothes.

As described in yesterday's post on NGO reaction to the passage of the Kerry-Boxer climate change bill out of the Senate Environment and Public Works Committee, reaction from NRDC, Sierra Club, and Earthjustice to the action was uniformly positive. NRDC and Sierra Club even seemed excited about the version of the bill that Senator Kerry is negotiating on the side with Senator Lindsay Graham (R, SC)--even though the latter publicly stated that his solutions for climate change depend on "clean coal," nuclear power and offshore drilling.

Friends of the Earth is not so excited. They issued a statement yesterday decrying Kerry-Boxer as too weak, and sounding the alarm about whatever Kerry, Graham and Lieberman are cooking up. In other words, they are saying publicly what staffers in most of the major environmental groups are probably saying privately.
FOE's full statement:

It is extremely disconcerting to hear scientists speak about the level of action needed to prevent radical and dangerous climate destabilization, and then to see how far short even one of the most environmentally friendly committees in Congress has fallen.

While the bill reported out of the Senate Environment and Public Works Committee today is in some ways better than the bill that passed the House in June-for example, it protects some important Clean Air Act provisions (others are still eliminated)-it remains a woefully disproportionate response to the tremendous economic, security and public health threats posed by global warming.

The bill's backbone is a poorly regulated carbon trading scheme that entrusts the Wall Street bankers who brought us the current economic crisis with the responsibility to solve global warming. The bill showers polluting corporations with billions of dollars, but doesn't require them to reduce pollution fast enough to avoid devastating climate change impacts. And it contains massive carbon offset loopholes that would allow U.S. polluters to keep polluting by paying for often-non-existent pollution reductions overseas. Other loopholes, such as excluding pollution from bioenergy, also undermine the bill's intent.

These flaws are unacceptable, and they are the result of a defective political system in which polluting corporations, Wall Street traders, and their lobbyists continue to exert far too much influence. Too many senators are siding with special interests instead of advocating solutions that are in the public interest. Max Baucus (D-Mont.), who today voted ‘no' while making the absurdly contradictory claims that he wants to fight climate change but that this bill is too strong, is one such senator.

Senators John Kerry (D-Mass.), Lindsey Graham (R-S.C.) and Joe Lieberman (I-Conn.) now appear to be moving forward with an attempt to produce an even weaker bill-one friendlier to the oil, coal and nuclear industries. Senators who wish to be responsible shepherds of their constituents' tax dollars, as well as stewards of our planet, should reject such giveaways.

Most Republicans are more closely aligned with Senator James Inhofe (R-Ok.) than Senator Graham. Inhofe is still in denial about basic aspects of climate science. Instead of participating in the legislative process, he threw temper tantrums and boycotted this week's hearings. Senator Barbara Boxer (D-Calif.) deserves credit for not yielding to his and other Republicans' stall tactics.

The lack of aggressive action by Congress falls far short of the global community's expectations. People around the world are hoping for U.S. leadership in addressing the climate crisis, but the approach represented by this bill is so weak it could cause international climate negotiations to disintegrate.

Congress has a tremendous opportunity to strengthen our economy, create millions of green jobs, and stabilize our climate, but that opportunity is being squandered. This must change. In the meantime, the Obama administration must be aggressive and immediately use its legal mandate under the Clean Air Act to crack down on polluters, and forward-thinking state and local officials must also continue advancing their own solutions.

Update: Even as Friends of the Earth got down to business in calling out the Kerry-Graham solution for what it is, Politico is reporting that most of the Senate has moved on from Kerry-Boxer and is looking to Kerry-Graham as the most likely vehicle to pass the full chamber. And ClimateWire reports on the strange passivity of the mainstream environmentalists over the prospect that a final Senate bill will embrace clean coal and offshore drilling here.

EPA Agrees to Finally Regulate Emissions from PVC Plants under Settlement with Sierra Club

2009-11-05T19:24:00.000-08:00

Environmentalists get timeframe for second set of MACT regulations in two weeks

Earthjustice, Sierra Club, and a coalition of gulf coast community groups announced a settlement today with the EPA in which the agency promised that it will issue regulations governing emissions from PVC manufacturing facilities by 2011. The groups' press release can be read here, and Houston Chronicle coverage of the settlement here. This is the second commitment by EPA in two weeks to issue long-delayed regulations for a source category under the hazardous air pollutants (HAPs) provisions of the Clean Air Act (CAA).

PVC plants emit several toxins classified as HAPs, and which are therefore subject to the maximum available control technology (MACT) requirements added to the Clean Air Act in 1992. See CAA § 112(d)(2), codified at 42 USC § 7412(d)(2). See also 65 Fed. Reg. 76,958, 76,960 (Dec. 8, 2000) (official finding on HAPs emitted by PVC plants). Under the MACT provisions, once the decision was made that PVC plants were a source category covered by the HAPs provisions, see 57 Fed. Reg. 31576, 31591 (July 16, 1992), EPA should have issued MACT standards for each HAP they emit. See National Lime Association v. EPA, 233 F.3d 625, 634 (D.C. Cir. 2000) (CAA § 112(d)(1) establishes a “clear statutory obligation to set emission standards for each listed HAP” the source category emits). But by the end of the Clinton administration, EPA had only gotten around to issuing a proposed standard on vinyl chloride, based on a standard that ante-dated the 1992 introduction of the MACT scheme. See 65 Fed. Reg. 76,958. And when the Bush Administration finally finalized MACT regulations for PVC plants in 2002, they still maintained that those old vinyl chloride standards were the "maximum achievable control technology" for the plants, using the argument that vinyl chloride served as a surrogate for all the other HAPs. See 67 Fed. Reg. 45886 (July 10, 2002). (The surrogacy argument, in the MACT context, is that controlling for pollutant X also incidentally controls for the remainder of covered pollutants.)

The same group of environmental plaintiffs that participated in today's settlement sued in the DC Circuit to prompt the EPA to issue a full suite of HAPs regulations for the plants. In Mossville Environmental Action Now v. Whitman, 370 F.3d 1232 (D.C. Cir. 2004), the DC Circuit ruled that EPA had not sufficiently supported its argument that vinyl chloride could serve as a surrogate for the other HAPs emitted by PVC plants, and "vacated and remanded [the vinyl chloride regulation] to the agency for it to reconsider or properly explain its methodology for regulating HAPs emitted in PVC production other than vinyl chloride by use of a surrogate." Id. But EPA took no further regulatory action.

[Disclosure: Mossville was considered by the D.C. Circuit the year I clerked on that court, but I was not involved in the case.]

Plaintiffs sued again in late October 2008, this time bringing a suit challenging impermissible agency inaction under the APA in the U.S. District Court for the District of Columbia. (The complaint can be read here.) In today's settlement, EPA agreed that it would finally issue the MACT regulations required for PVC plants. Specifically, it agreed that it would issue a proposed rule by October 29, 2010, and a final rule by July 29, 2011.

One might be tempted to say all's well that ends well, except for the fact that environmental groups have had to drag MACT regulations out of EPA by means of litigation for most of the major source categories covered by that section of the CAA. (See, for instance, this earlier post, for the story on how groups have dragged EPA into issuing MACT regulations for power plants--something it just committed to doing two weeks ago.) And those MACT provisions were put in place by Congress in the 1992 Clean Air Act Amendments in an unusually dictatorial scheme meant to give EPA no choice but to stringently regulate 189 specifically listed toxins, because EPA had been dragging its feet on regulating emissions of those pollutants under a prior version of the Act. To give the Obama Administration its due, however, it does seem intent on making up for a whole lot of past inaction, and has committed to drafting quite an ambitious slate of regulations in the next few years.

Earthjustice Petitions EPA to Revoke BACT Permit for Failure to Cover GHGs

2009-11-05T18:05:00.000-08:00

Earthjustice announced on Tuesday that it filed a petition with EPA on behalf of National Parks Conservation Association (NPCA), Sierra Club, and Northwest Environmental Defense Center, challenging PSD and MACT permits granted to the TransAlta Coal-Fired Power Plant in Centralia, Washington, for failure to adequately control for NOx, mercury, and CO2.

In a joint press release, the groups announced that they had filed the petition for EPA review of the permit, granted by the Southwest Washington Clean Air Agency. The permit apparently failed to require best available control technology (BACT) for NOx control under the prevention of significant deterioration (PSD) provisions of the Clean Air Act (CAA), see CAA §§160-169, codified at 42 USC §§7470-7479, and maximum available control technology (MACT) for mercury under the Act's hazardous air pollutants provisions. See CAA § 112, 42 U.S.C. § 7412.

This is all standard stuff (although it is surprising how reluctant state agencies are to faithfully apply these provisions on behalf of the federal government, as they are supposed to under the CAA's cooperative federalist scheme.) More interesting, as part of an ongoing environmental community effort to force the EPA to use the CAA to regulate greenhouse gas emissions, is the contention in the petition that the permit has to be revised because it fails to require BACT for CO2. As explained in this earlier post, the argument being advanced is that the BACT requirements apply to CO2 in light of Massachusetts v. EPA, in which the Supreme Court held that CO2 was a "pollutant" within the meaning of the term in the CAA. Environmental litigators are pushing the argument that CO2 is therefore a pollutant that is "subject to regulation" under the CAA and so subject to BACT. See CAA § 165(a) (requiring BACT be installed preconstruction for all pollutants "subject to regulation under this chapter.").

In its October 19th Order In the Matter of BP Products North America Whiting Business Unit, EPA's Environmental Appeals Board (EAB) declined to go as far as to say that BACT covers CO2. Instead, it stated that "at this time EPA continues to construe" BACT to cover only those pollutants "subject to either a provision in the Clean Air Act or a regulation adopted by EPA under the Clean Air Act that requires actual control of emissions of that pollutant." As I said at the time, the EAB's phrasing opens the door to the possibility that EPA may change its interpretation in the future. And with petitions like that filed by Earthjustice, NPCA et al this week, the environmental community keeps giving it the opportunity to do so.

Roadless Rule Being Litigated . . . Again

2009-11-05T14:31:00.000-08:00

Briefs were filed in the U.S. Court of Appeals for the Tenth Circuit yesterday in favor of the Roadless Area Conservation Rule (Roadless Rule), which bans new roads in national forests. Again.

The rule, which was issued in 2001 at the end of the Clinton Administration, has been the subject of nearly endless litigation ever since. In separate proceedings in the Ninth Circuit, environmentalists sued to overturn a Bush Administration reversal of the rule, via the so-called State Petitions Rule, which sought to give states authority over whether National Forests in their own states should remain roadless. Last August, in California v. USDA, the Ninth Circuit ruled that (1) it was unreasonable for the Forest Service to use a categorical exemption to exclude the State Petitions Rule from NEPA review, (2) it was arbitrary and capricious for it to find no significant impact under the ESA, and (3) the district court had been correct to reinstate the Roadless Rule. (As that case was argued prior to the end of the Bush Administration, DOJ supported the State Petitions Rule and opposed the reinstatement of the Roadless Rule.)

Meanwhile, the state of Wyoming challenged the Roadless Rule in federal district court in Wyoming--and won. In a 2008 decision, the U.S. District Court for the District of Wyoming ruled (for the second time) that the Roadless Rule violated NEPA as well as the Wilderness Act. This time, the Obama DOJ joined environmentalists and is arguing that the district court's decision should be overturned.

A brief AP article on the filing can be read here. And a colorful High Country News article on the judge in Wyoming who keeps overturning the Roadless Rule, as well as the endless litigation it has been subjected to, can be read here.

No New Environmental Appellate Decisions Today

2009-11-05T14:30:00.001-08:00

Environmentalists React to EPW Action

2009-11-05T11:44:00.001-08:00

Although the fate of the Kerry-Boxer climate bill has been made more uncertain by the apparent defection of one of its main sponsors, environmentalists reacted with approval to its passage this morning by the Senate Environment and Public Works Committee. NRDC crafted this message for its President, Frances Beinecke:

Chairman Boxer and her colleagues took an important step forward with today's action. They have worked under difficult circumstances to craft S. 1733 and sought to have full consideration of this important legislation in the Environment and Public Works Committee.

We welcome the announcement yesterday by Senators Kerry, Graham and Lieberman that they are committed to working together to combine the best of S. 1733 with additional provisions to produce a bi-partisan bill that the Senate will pass.

The Sierra Club put this similar message together for its executive director, Carl Pope:

The Sierra Club is pleased that Chairwoman Boxer and the Senate Environment and Public Works Committee reported out the Clean Energy Jobs and American Power Act today. . . . We are distressed that the Republican Senators on the committee were unwilling to even sit down and discuss this important plan for less pollution, more jobs and greater security. Polluters like Oil and Coal are spending tens of millions of dollars to stand in the way of progress. It appears that the Senators who boycotted these meetings have sided with those special interests. Fortunately a bipartisan group of Senators led by John Kerry and Lindsey Graham are working together to find constructive ways to keep this effort moving forward. We look forward to working with that group to finish a bill that will build our clean energy economy. . .

So a little less politic re the GOP boycott in Boxer's committee, but perhaps purposefully obtuse about the emphasis on "clean coal" and provisions for offshore drilling that Graham seeks to include in any bill.

EarthJustice did not join the others in applauding the Kerry-Graham-Lieberman effort. Instead, in this careful message crafted for its president Trip Van Oppen, it (1) concentrates on the symbolism of having a climate bill move forward in the Senate, (2) applauds the fact that Kerry-Boxer does not preempt Clean Air Act applicability to GHG emissions, and (3) signals disapproval (perhaps?) of further incursions by special interests:

Momentum is building toward a transformational shift to a clean energy economy that doesn't rely on burning fossil fuels that are primarily responsible for global warming. . . . We applaud the Environment and Public Works Committee and chairman Boxer for approving legislation that builds upon the Clean Air Act, which has a proven track record of reducing pollution from the dirtiest sources. The Clean Air Act has successfully protected the public and the environment from mercury poisoning and acid rain, and is currently poised to reduce climate pollution from mobile sources that account for up to four percent of U.S. emissions. Coal companies and other special interests are attempting to derail or delay this legislation -- and keep us hooked on fossil fuels as our main source of energy. We are encouraged to see those who are interested in making the U.S. a clean energy leader prevail.

Let's hope that the off-the-record negotiations Kerry, Lieberman, and Graham are undertaking don't result in something drastically different than this vision. Because the last thing we can afford is a climate bill in name only.

No More Mrs. Nice Guy

2009-11-05T06:40:00.000-08:00

Boxer passed bill out of committee without Republicans

Despite the Republican boycott of Senate Environment and Public Works Committee meetings this week designed to prevent the Kerry-Boxer bill from passing out of committee, Senator Boxer (D, CA) and other committee democrats passed the bill today. The Houston Chronicle reports on the move here, the Wall Street Journal here, and Bloomberg here. Politico explains the parliamentary maneuver Boxer used, here.

GAO Reports on What Happens to All the Coal We Burn

2009-11-04T20:59:00.000-08:00

And its not a pretty picture

In the flurry of Senate news, I overlooked the fact that the Government Accountability Office (GAO) issued a report last Friday on coal ash storage and disposal in the U.S. as requested by the Senate Environment and Public Works Committee and Committee on Oversight and Government Reform in the wake of last Christmas's devastating spill at a TVA facility in Kingston, Tennessee.

This earlier post on some testing EPA has ordered at an AEP coal ash storage facility on the West Virginia-Ohio border lays out part of the story. But the GAO's own summary does an admirable job of succinctly stating the bare facts:

(1) The exact number of surface impoundments at utility coal fired power plants is not known. However, the Environmental Protection Agency (EPA) is currently undertaking an effort to identify the number and location of all surface impoundments in the United States and, as of September 14, 2009, had identified over 580 surface impoundments nationwide.

(2) Problems that have been identified with the storage of coal ash include potential structural defects and other risks of collapse of the surface impoundment, such as at TVA Kingston Facility; health and environmental risks from [coal combustion residue] CCR storage due to potential leaching of contaminants into surface or groundwater from unlined or failed liners at surface impoundments, landfills, or sand and gravel pits; and potential risks from the discharge of wastewater containing CCR into surface waters from surface impoundments. EPA is currently analyzing the structural hazards and environmental risks associated with surface impoundments.

(3) EPA does not directly regulate CCR disposal in surface impoundments or landfills to prevent releases or a catastrophic spill, and states have a variety of regulatory controls on surface impoundments. EPA is developing proposed regulations but, as part of this effort, needs to address issues of federal and state roles for control and enforcement.

The full report, issued last Friday October 30th, can be read here. And an excellent overview of the findings from Facing South, here.

Now a Kerry-Lieberman-Graham Climate Bill is in the Works

2009-11-04T20:32:00.000-08:00

And it won't have much to offer if you don't support offshore drilling or believe in "clean coal".

Tossing another layer on top of the anarchy that has erupted in the Senate Environment and Public Works Committee over the proposed Kerry-Boxer climate bill, Senator Kerry himself announced today that he would also be pushing a second climate bill on a "dual track" outside of the committee process, even as his first bill struggles forward. He will be working on this bill behind closed doors with Senators Graham (R, SC), and Lieberman (I, CT).

As this Washington Post article notes, other Senate committees have been working on their own climate bills as well, and all will have to be reconciled in the end. This just adds another to the heap. But the action by Kerry, who made his announcement alongside Senators Lieberman (I, CT) and Graham (R, SC) today, shows that Senate leaders don't have much faith that the Kerry-Boxer bill will win the necessary 60 votes in the end. (Or, you could look at all this with rose-colored glasses, like the Boston Globe, which is reporting that "Sens Kerry, Graham, Lieberman join forces to rescue climate bill.")

This country has a lot to do to curb GHG emissions, and strong federal mandates for renewable generation and energy efficiency should form the core of any good bill. Waxman-Markey emerged from the committee process in the House so badly weakened that environmentalists were privately dismayed, and publicly almost ready to withdraw support. So its a major (major) disappointment that the Senate may end up pitching more of the Waxman-Markey framework overboard. (Kerry-Boxer was 90% based on Waxman-Markey.) Even more worrisome, according to the Post "Graham said that the bill should protect the climate, but also allow for more offshore drilling, an expansion of nuclear energy and an emphasis on 'clean coal' technology." And Lieberman confirmed that the three were committed to a "cap and trade" scheme, "but noted that the scheme had 'a lot of moving parts you could negotiate on.'"

The Huffington Post does not mince words, reporting the story as "Kerry, Graham, Lieberman Working on Weaker Climate Compromise," here.

No New Environmental Appellate Decisions Today

2009-11-04T15:09:00.001-08:00

USFW Proposes Listing Red-Crested Cockatoo

2009-11-04T09:54:00.000-08:00

Yesterday, according to this press release, the US Fish and Wildlife Service issued a proposed rule listing the Indonesian Red-Crested Cockatoo as threatened under the Endangered Species Act after protracted foot dragging. According to the release, this is significant, even though the US cannot, of course, enforce the ESA abroad, because "[a]ddition of a foreign species to the federal list of threatened and endangered species places restrictions on the importation of either the animal or its parts."

As this Federal Register notice explains, groups first petitioned Fish and Wildlife to make this listing eighteen years ago. (This is the ossification that Cass Sunstein, my old environmental law professor, talks about.) In July 2008, Fish and Wildlife was still talking about its intent to "promptly publish" a proposal to list the Red-Crested Cockatoo. See 73 FR 44062 (July 29, 2008). After years of litigation, the Center for Biological Diversity sued again when the proposal was not published. A settlement in that suit, Center for Biological Diversity v. Salazar (N.D. Cal case no. 09-cv-02578-CRB, June 29, 2009) required Fish and Wildlife to publish their listing plan by October 30.

More on the listing can be read on ESA blawg, here.

Another One Bites the Dust!

2009-11-04T09:36:00.000-08:00

Environmentalists chalked up another victory on Monday when investors scrapped plans for the Big Stone II coal plant in South Dakota. MDU Resources group announced that they were not going ahead with their plan for a 500-600 MW coal-fired power plant because they were unable to find an investor to replace the lead developer, which pulled out in September, citing the economy and uncertainty about the cost of climate legislation. The AP reports on the story here, Reuters here, and Minnesota Public Radio here.

The seeds of doubt may have been planted in January, when the Obama EPA intervened to reject the proposed renewal of the (Clean Air Act) Title V operating permit for the power plant already on site, Big Stone I. EPA said that the proposed permit, approved by the South Dakota Department of Environment and Natural Resources, failed to adequately control criteria pollutants as required by the prevention of serious deterioration (PSD) and new source performance standards (NSPS) of the Act. They also said that compliance assurances in the proposed permit were inadequate. (You can read the January 22 EPA letter here.) An acceptable Title V permit ultimately issued in June, and Big Stone II was unaffected. But the intervention sent a strong signal that the Obama Administration intended to scrutinize how state environmental authorities implemented the Clean Air Act. That, along with the passage of Waxman-Markey, was apparently enough to give the lead investor pause. And this week, environmentalists who have been fighting the "coal rush" that started under Bush, something to celebrate. (You can read the reaction of the Sierra Club, which has been fighting the plant before local agencies and in court, here.)

Still Trying to Work

2009-11-04T09:07:00.000-08:00

Senator Boxer and the Dems showed up again this morning, but the Republicans played hooky.

This morning, Senator Boxer reconvened a full business meeting of the Senate Environment and Public Works Committee, so that the Republicans who boycotted yesterday's meeting would have an opportunity to participate in the committee mark up. But the Republicans still didn't show.

According to this Politico article, yesterday "Republican committee aides said they had no plans to yield on their boycott of the hearings unless [a full EPA] study [of the economic impact of Kerry-Boxer] is issued." (The Houston Chronicle reported the same thing, here--apparently, Harry Reid's offer of a post-committee five-week study was deemed inadequate.) Since the study couldn't happen overnight, Republicans boycotted again today. Only Senator Inhofe (R, OK) attended, to say something disingenuous about how much he really, really wanted to cooperate. Really. He did. (His exact words, according to the Wall Street Journal, were ""We want to mark up this bill, Madame Chairwoman, we really do. . . We want to do it together.")

Meanwhile, Senate Republicans and industry (except the coal industry, which was overjoyed by yesterday's events) are trying to make inroads even as EPW stalls, to make sure that their interests are represented in any bill that comes out of the Senate. According to this Washington Post article, today, Senator Kerry (D, MA) "and Sen. Lindsey O. Graham (R-S.C.) are scheduled to meet with a host of administration officials, including White House climate-change adviser Carol M. Browner and Energy Secretary Steven Chu, to 'ascertain the administration's parameters' for the climate bill, particularly on the subject of nuclear energy."

Further, "R. Bruce Josten, the chief lobbyist for the U.S. Chamber of Commerce, sent a letter to Boxer and the committee's ranking Republican, James M. Inhofe (Okla.), suggesting that a bipartisan approach along the lines of the compromise Kerry is trying to forge with Graham might work." The full letter from the shrinking business lobby can be read here.

All that aside, unless Boxer corrals the Republican members of EPW, hopes are fading that she will get the bill out of committee before Copenhagen, as she has hoped to do.

No New Environmental Appellate Decisions Today

2009-11-03T11:57:00.001-08:00

Senate Climate Bill Now at Least Seven Weeks Away

2009-11-03T08:23:00.000-08:00

Harry Reid committed to five-week analysis period after bill gets through all committees to mollify Republicans

According to this Houston Chronicle article, Harry Reid (D, NV), told Barbara Boxer (D, CA), head of the Senate Environment and Public Works Committee that he will hold any climate bill to emerge out of her and other Senate committees for a five-week period so its economic costs can be fully analyzed. This should help Boxer possibly get the bill through committee today. (Though there was a near-total Republican boycott this morning, with only Senator Voinovich (R, OH) attending from the GOP to deliver this message, yesterday she promised that there would be opportunity to work on the bill through COB today.) It also answers the letter written by ranking Senate Republicans yesterday demanding further cost analysis. And it should temper concerns that Boxer's partisanism might sink the climate bill, as some say it did last year. (Politico ran a piece early this morning, warning what might happen if she rammed it through committee without GOP support, and minority members of EPW pointed that and six other pieces of analysis to that effect out here.)

Letters Flying at Senate EPW over Kerry-Boxer

2009-11-02T18:35:00.000-08:00

Tomorrow, Dirksen 406, Squirt Guns

Ranking Republican Senators "of the committees with jurisdiction over portions of the [Kerry-Boxer climate change] bill" issued a letter today to Chairman Boxer (D, CA), urging further analysis of the economic impact of the proposed Kerry-Boxer climate change bill. These include Senator Inhofe (R, OK) of EPW, Lisa Murkowski (R, AK), from Senate Environment and Natural Resources, Saxby Chambliss (R, GA) (agriculture), Chuck Grassley (R, IA) (finance), and Kay Bailey Hutchison (R, TX) (commerce and transportation).

The full letter can be read here, and the press release here. An AP analysis of the letter can be read here.

Meanwhile, Chairman Boxer has responded to Senator Inhofe's threatened Republican boycott of the EPW committee meeting (mentioned in earlier posts here and here), with a letter of her own, on behalf of majority members of the committee, which says: "We urge Ranking Member Inhofe, with the utmost respect, to bring the Committee Republicans back to work on this issue. . . . We look forward to working with them if they decide to participate, but if they do not, we will move forward in accordance with the rules of the Senate and of this Committee."

According to Talking Points Memo, Senator Boxer "Boxer will begin the markup as planned Tuesday, but will extend the deadline for amendments until [COB], allowing Republicans who have boycotted the process to participate past the original deadline." TPM and Politico are also reporting that Boxer has offered to pause the markup process tomorrow afternoon so that another EPA official can answer any additional questions from the Republicans.

Senator Lautenberg (D, NJ), who made a lot of statements at last week's hearings on the Kerry-Boxer bill to the effect of "Come on, people, wake up!", told reporters that "[i]t's almost like school children over there" among EPW Republicans.

We should all look forward to what happens tomorrow. The committee meeting is scheduled for 9am in Dirksen 406.

No New Environmental Appellate Decisions Today

2009-11-02T14:54:00.000-08:00

No new opinions issued from the U.S. Courts of Appeals in environmental law today.

Interior Continues Slow Process of Revoking Midnight Regulation on MTR

2009-11-02T13:18:00.000-08:00

Advanced notice of proposed rulemaking won't result in rule until early 2011

In more regulatory activity, the Department of Interior, Office of Surface Mining Reclamation and Enforcement (OSM) announced its intention to issue an advanced notice of proposed rulemaking by the middle of this month for the rule meant to overturn the Bush Administration's December 2008 change in the Stream Buffer Zone Rule under the Surface Mine Reclamation and Enforcement Act (SMREA), 30 U.S.C. § 1292. That rule, they promise, will be out as soon as early 2011.

According to this excellent summary of the history of the rule by the Kentucky Waterways Alliance, SMREA was supposed to work side-by-side with the Clean Water Act. In keeping with that, the stream buffer zone rule that was in place under SMREA since 1983 provided that “[n]o land within 100 feet of a perennial stream or an intermittent stream shall be disturbed by surface mining activities, unless the regulatory authority specifically authorizes surface mining activities closer to, or through, such a stream.” 48 Fed. Reg. 30,312 (citing 30 C.F.R. § 816.57). And "[t]he rule further provided that the regulatory authority may authorize such activities only upon finding that surface mining activities will not cause or contribute to violation of applicable State or Federal water quality standards, and will not adversely affect water quantity and quality or other environmental resources of the stream."

This would have been a big problem for mountaintop removal (MTR) mining operations--had it ever been enforced against them. MTR, which became widespread in the 1990s, involves blasting off the entire top of a mountain to get to coal without the bother and expense of digging underground mines. Rather than pay to cart all this rubble away, MTR operators engage in so-called "valley fills"--literally dumping the mountaintop in an adjacent valley, and smothering the streams that inevitably run through those valleys with hundreds of tons of rubble. OSM always exempted valley fills from the Stream Buffer Zone Rule, until a 1999 decision by the U.S. District Court for the Southern District of West Virginia said that that was an impermissible interpretation. Although the Fourth Circuit overturned the decision on jurisdictional grounds, see Bragg v. West Virginia Coal Association 248 F.3d 275 (4th Cir. 2001), the coal industry was shaken by the possibility that it might not be able to continue decapitating mountains, and looked to the federal government for help.

The Bush Administration, as part of its broad efforts to push as much domestic energy exploitation as possible, continued to exempt valley fill operations from the Stream Buffer Zone Rule. (It also won a decision in the Fourth Circuit overturning the Southern District of West Virginia's attempt to enjoin the Army Corps of Engineers from granting permits under Section 404 of the Clean Water Act (CWA) for dumping rubble in adjacent streams. See Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003).) Meanwhile, the Bush Administration sought to change the Stream Buffer Zone Rule, lest the District of West Virginia's interpretation win wider acceptance in the courts. The Bush Administration finally undid the existing Stream Buffer Zone Rule on December 12 2008, clarifying that it did not apply to "permanent excess spoil fills and coal waste disposal facilities." See 73 F.R. 75,814 (Dec. 12, 2008). As the Missouri Attorney General explains, here, "[i]n other words, the [Bush] Rule would exempt giant valley fills and sludge-filled lagoons, which are illegal under the current rule if the valleys and lagoons are within 100 feet of an intermittent or perennial stream."

This was a huge setback to groups in Appalachia battling to save their mountains and valleys from the incredible destruction of MTR mining. Getting rid of the rule was on the list of priorities given to the Obama transition team by the environmental community. Unfortunately, the Bush Administration managed to get the rule issued more than 30 days before Obama took office on January 20, 2009, so it was already final. The National Parks Conservation Association sued to vacate the rule in the D.C. District court. In April 2009, the (Obama) Department of Interior filed a motion for voluntary remand and vacatur, on the basis that OSM erred in failing to do an ESA consult with the Fish and Widlife Service (FWS). They also asked for dismissal for lack of jurisdiction, on the basis that NPCA's cause would thereby be moot. The NPCA supported the government. But the motion was denied on August 12, 2009. "[G]ranting the Federal defendants’ motion," the court ruled "would wrongfully permit the Federal defendants to bypass established statutory procedures for repealing an agency rule" under the APA.

Friday's announcement of the ANPR, which was filed in D.D.C., here, is Interior's response: They are basically informing the district court that 'they're working on it.' The Sierra Club and other groups have decried the move, saying that Interior is on far too slow a timeline, and that a great deal of damage could occur before they finalize their replacement rule at this pace. [Update: You can read an NRDC staff piece, detailing what environmentalists would have liked to see, here.]

Though NPCA has issued no press release itself, it would appear that Friday's filing does nothing to change the fact that the original suit remains a continuing case or controversy. It could be that the most rapid route to vacatur would be for the case to proceed and for NPCA to succeed on the merits. The response of the environmental community would indicate, however, that they were hoping for Interior to commit to issuing a replacement rule, in compliance with the APA, before this could occur, and certainly before early 2011.

The New York Times reports on the case here. As that article notes, "[e]nvironmental groups' hope for quickly curbing mountaintop-removal mining now shift to U.S. EPA, which regulates the practice through Clean Water Act permits." Additional coverage can be found in the Charleston Gazette, here, and Dow Jones here.

EPA Pushes Carbofuran off the Market

2009-11-02T10:41:00.000-08:00

Pesticide that kills wild song birds one step closer to ban in U.S.

EPA announced Friday that it will not be granting an administrative hearing to FMC Corporation, the manufacturer of the pesticide carbofuran, over EPA's May 2009 final rule revoking food "tolerances" for carbofuran. See 74 FR 23046 (May 15, 2009). In an order signed on Friday, the Agency concluded that the regulatory standard for holding an evidentiary hearing was not met, and denied all objections to the revocation. (Objections had been submitted last June by the National Corn Growers Association, National Sunflower Association, National Potato Council, and FMC Corporation.) The decision means a ban on carbofuran on food crops will go into effect on December 31, 2009.

This decision has been years in the making. Under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA" to close friends), folks in the Office of Pesticide Programs of the EPA cyclically review pesticides that are already "registered," or on the market for certain approved uses. It is almost impossible, given the political realities in the Pesticide Division and the elasticity of standards, to de-register a pesticide. But it is easier for to revoke a pesticide's food tolerance, i.e. an accepted residue level in which that pesticide may linger on our food, set under the Federal Food Drug & Cosmetic Act ("FDCA"). According to Friday's order, EPA--which administers the part of the FDCA relevant to pesticides--reached the conclusion that "[e]xposure to the pesticide carbofuran resulting from existing legal uses is unsafe . . . in 2006 after an exhaustive multi-year review of the data on carbofuran as part of [the FIFRA re-registration process.]"

I'm not that up-to-date on the science surrounding how much carbofuran remains on food. But what is clear is that carbofuran is super dangerous for wild birds in agricultural regions. Because its a neurotoxin, and would therefore attack farmworkers' nervous systems if administered in liquid form (i.e. sprayed on), carbofuran is made into little pellets that are planted alongside corn and other seeds. When birds come along to scratch around for the tasty corn seeds, they often eat the carbofuran pellets, too, resulting in major die offs. (This is why Defenders of Wildlife is applauding the decision in its press release, "EPA Sticks to its Guns on Plan to Bar Use of Deadly Pesticide.")

After its 2006 decision, EPA allowed FMC to submit more data. But it finally issued a proposal to revoke the carbofuran tolerances in July 2008. See 73 FR 44864 (July 31, 2008). Seeing the writing on the wall, FMC then said, well what if we agree to let our registration of carbofuran be partially cancelled, so that there won't be that much of it in the average American's diet anymore? (Or, technically, according to Friday's order, FMC "requested the cancellation of the registration of carbofuran on several crops and the restriction of where, and the manner in which, carbofuran could be used in the United States on its remaining registered crop sites."). EPA was unswayed by this last-minute generosity, calling the new parameters "irrelevant," and finalized its rule on May 15, 2009.

Friday's decision takes us one step further to getting carbofuran off the market. FMC immediately announced its intention to appeal the decision in federal court, complaining that "EPA's unprecedented attempt to deny any review of its science deprives the registrant and the growers who use carbofuran the right to prove that the product is safe, and represents a bold abuse of power in contradiction of the agency's earlier commitments to transparency and good science."

Update: The National Corn Grower's Association has opposed the move, as detailed in an article that can be read here.

Another Federalism Battle Brewing

2009-11-02T05:18:00.000-08:00

On Friday, Delaware filed suit in the U.S. District Court for the District of Delaware to stop Army Corps (re)dredging the Delaware River for a shipping channel, as the Philadelphia Inquirer reports here, and the Delaware News Journal, here. The Army Corps says this is routine maintenance of an interstate shipping channel over which it has jurisdiction under the Commerce Clause, whereas Delaware is seeking to to protect its environment--including listed species under the federal ESA.

Delaware rejected the Army Corps' application under the state Subaqueous Lands and Wetlands Acts for the project in July, but the Army Corps decided to go ahead anyway on October 25, finding that the federal government's right to maintain navigability on interstate waterways trumps Delaware's rights in this case. Delaware is seeking an injunction to stop the Corps, saying that the "decision by the Army Corps of Engineers to begin deepening Delaware waters is a direct challenge to the territorial authority of the State of Delaware and violates federal and state law.”

The Delaware Attorney General's press release--in which he notes that New Jersey is also on board in the fight--can be read here.

[Update: New Jersey, at the behest of Governor Corzine, has joined Delaware in its actions, filing a suit in U.S. District Court in New Jersey. The Philadelphia Inquirer reports on this development, here.]

Predictions on Boxer and the Kerry-Boxer Bill

2009-11-02T05:04:00.001-08:00

The Washington Post is reporting this morning that, to hedge her bets against Blue Dog Democrats who might sink the climate bill when it emerges from committee, Boxer made concessions on nuclear power in the Kerry-Boxer bill, here. The move, the article says, is meant to attract possible votes from moderate Republicans. Meanwhile, the Wall Street Journal confirms, here, that indeed, the Republicans are planning on boycotting tomorrow's Senate Environment and Public Works Committee Meeting, to try and keep Kerry-Boxer from emerging from committee at all. And, as Politico reports here, Boxer has a plan up her sleeve to push the bill out of committee, anyway.

No New Environmental Cases Today

2009-10-30T15:40:00.000-07:00

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

2009-10-30T12:09:00.000-07:00

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.”

Suit Filed to Stop Nuclear Expansion in Georgia

2009-10-30T11:11:00.000-07:00

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.

Republicans Spoiling for a Boycott on Kerry-Boxer

2009-10-30T06:51:00.000-07:00

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."

Evening News Roundup: Day Three of Senate EPW Climate Bill Hearings

2009-10-29T20:17:00.000-07:00

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.

No New Environmental Cases Today

2009-10-29T17:08:00.001-07:00

No new opinions from the circuit courts on environmental law today. Alas.

Going Off-line for the Afternoon

2009-10-29T08:53:00.000-07:00

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

2009-10-29T08:23:00.000-07:00

Earthjustice attorneys again trying to use (California) ESA to regulate global warming

Earthjustice 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

2009-10-29T07:52:00.000-07:00

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.

Morning News Roundup on Kerry-Boxer Bill: Day Three

2009-10-29T07:24:00.000-07:00

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.

Day Three of Hearings before Senate EPW on Kerry-Boxer

2009-10-29T05:55:00.000-07:00

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.

Inhofe Still Fuming

2009-10-28T21:08:00.000-07:00

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.

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.

Reactions to Today's Hearings

2009-10-28T16:18:00.000-07:00

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.

California Beats Back DOE Refusal of Right to Set Efficiency Standards

2009-10-28T11:13:00.000-07:00

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:

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

2009-10-28T09:03:00.000-07:00

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.

EPW Hearings on Kerry-Boxer Day Two Underway

2009-10-28T07:46:00.000-07:00

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.

Morning News Roundup on Kerry-Boxer Bill: Day Two

2009-10-27T21:00:00.000-07:00

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:

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

2009-10-27T13:34:00.000-07:00

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:

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?

2009-10-27T11:54:00.001-07:00

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:

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.

Reactions are beginning to come in from the NGO community. Francis Beinecke, president of Natural Resources Defense Council (NRDC), posted her reaction on the NRDC website today, saying she was encouraged by the draft, but that she would still like to see the bioenergy loophole (which treats all use of biomass for fuel as carbon neutral, whether mature trees or crop waste) closed, and would like to see strengthened energy efficiency provisions. (Recall, the original version of Waxman-Markey contained a separate energy efficiency resource standard (EERS) alongside the renewable energy portfolio standard (REPS). Once Dingell (D, MI) and Boucher (D, VA) were done with it, the EERS was folded into the REPS, and made no separate requirements.) Her comments can be viewed here.

[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.

Slow Day in Circuit Courts

2009-10-27T11:49:00.001-07:00

No new appellate decisions today touching on environmental law.

Senate EPW Committee Questions Chu, Salazar, LaHood, Jackson, and Wellinghoff on Climate Bill

2009-10-27T08:55:00.001-07:00

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.

Preliminary Fireworks Over

2009-10-27T08:02:00.001-07:00

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.]

Morning News Roundup on Kerry-Boxer Bill

2009-10-27T06:42:00.000-07:00

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 on Kerry-Boxer Bill Today

2009-10-27T05:47:00.001-07:00

They will start at 9:30 am eastern time on CSPAN. The schedule, which includes Secretary of Energy Chu, Secretary of Energy Salazar, and EPA Administrator Jackson, can be seen here.

First Circuit Rules FERC Preempts State Power over Altering Coastlines for LNG Terminals

2009-10-26T11:46:00.000-07:00

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.]

Morning News Roundup on Kerry-Boxer Bill

2009-10-26T07:18:00.000-07:00

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

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.

EPA Analysis of Kerry-Boxer Climate Bill

2009-10-25T09:05:00.000-07:00

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.

It Only Took 21 Years

2009-10-23T14:29:00.000-07:00

EPA finally promises MACT regulations for emissions of hazardous pollutants from power plants

EPA has finally agreed to draft a regulation asked for by Congress 19 years ago, delineating "maximum available control technology" (MACT) that must be used on power plants (technically, electrical generating units or EGUs) to control emissions of mercury and 66 other hazardous air pollutants (HAPs). The list of HAPs includes such delightful substances as asbestos, benzene, and formaldehyde, see CAA § 112(b), codified at 42 USC § 7412(b). These have been emitted from power plants unchecked for years, despite Congress' specific request in the Clean Air Act Amendments of 1990 that EPA study the HAPs emitted by EGUs and regulate them "if the Administrator finds such regulation is appropriate and necessary." CAA § 112(n)(1)(A).

It took eight years for the EPA to complete the asked-for study, and until the waning moments of the Clinton administration for it to designate EGUs as a source category subject to CAA § 112's MACT requirements. Fed. Reg. 79,825 (Dec. 20, 2000). The Bush administration did their best to undo this, delisting EGUs as a source category covered by § 112, and replacing the regulation that should have followed from the listing with the artfully named "Clean Air Mercury Rule" (CAMR). The DC Circuit consigned CAMR to the scrap heap on February 8th, 2008, see New Jersey v. EPA, 937 F.2d 649 (2008), and undid the illegal delisting, reinstating the status quo ante.

This meant that, as of that date, EPA was over five years late in issuing regulations detailing what MACT is for EGUs. (Section 112 required implementing regs to be issued by December 2002, two years after the source category was listed). The Bush Administration continued to drag its heels, and a large consortium of clean air litigators, including the Clean Air Task Force, NRDC, EarthJustice, and the Southern Environmental Law Center, filed suit to prompt it to issue regulations in December 2008. (Meanwhile, these same litigators, fighting coal plants being planned across the country under the permissive Bush-Cheney regulatory regime, filed suit to force their regulation using the provisional case-by-case MACT requirement of § 112(j) (the so-called "MACT hammer.")).

Today's announcement is the final denouement of that fight. (At least one hopes it is final.) EPA has now promised that it will issue those regulations by November 2011, in a settlement filed with the US District Court for the District of Columbia.

Reading this history, you should get a feel for the uphill battle it will be to impose strict, effective GHG emissions limitations on power plants under any pending climate change bill.

Reactions to the settlement can be found from NRDC here, Sierra Club here, and EarthJustice (including quotes from the CATF and others) here.

No Analysis from EPA of Kerry Climate Change Bill Yet

2009-10-23T14:11:00.000-07:00

As of 5:10 eastern time, the EPA has not yet released its expected analysis of Senator Kerry's Clean Energy, Jobs & American Power Act. Either it has been delayed until next week, or someone at EPA is staying past five on a Friday. Stay tuned.

Embedded Federal Question Jurisdiction Found in Lobster Case

2009-10-23T13:02:00.001-07:00

And Judge Selya's signature flair shows up on an opinion he didn't even author

Today, a panel of the US Court of Appeals for the First Circuit held, in Rhode Island Fisherman's Alliance v. Rhode Island Department of Environmental Management (DEM), that DEM regulations implementing the Atlantic Coastal Fisheries Cooperative Management Act, codified at 16 U.S.C. §§ 5101-5108, were proper despite their retroactive nature. The challenged regulations allocated lobster traps lobsterman in a certain area off the Rhode Island coast based on whether they had had a license to sink traps in that area in 2001-2003.

A preliminary question was whether the case had properly been removed to federal district court under federal question jurisdiction. Plaintiffs, a group of Rhode Island lobstermen, brought suit in state court. Defendants removed the case to federal court, and won summary judgment on the issue of federal question jurisdiction.

Plaintiffs' pleading mentioned only state law on its face. But their argument that DEM lacked the authority to issue retroactive regulations depended, the First Circuit panel explained, on the notion that the regulations were not "expressly required by federal law, regulation or court decision," which would have made their retroactivity kosher under the relevant Rhode Island law.

The panel ruled that a hypothetical "well pleaded" version of their complaint would therefore have included a federal question, because "it is not logically possible for the plaintiffs to prevail on this cause of action without affirmatively answering the embedded question of whether federal law, in the form of a fishery management plan promulgated under the [Atlantic States Marine Fisheries] Compact, 'expressly required' the use of retroactive control dates." The panel further held that the question involved--whether the regulation was required by federal law--was "actually disputed and substantial," and that ruling on this question would not "disturb[] any congressionally approved balance of federal and state judicial responsibilities." Thus, it met all three requirements of Grable & Sons Metal Products v. Darue Engineering and Manufacturing, 545 U.S. 308, 314 (2005).

The panel dispatched with the merits of the case quickly, affirming that various state law challenges to the regulations failed largely for the reasons set forth by the district court below.

In the end, the lobsters off the Rhode Island coast have a little more protection, and anyone who made it through the case (or this precis) has had a small Wright & Miller refresher. (And this writer, compliments of a panel that included Judge Selya, has learned the words "encincture," "exigible," "superrogatory," and "asseverational.")

The full text of the opinion can be found here. There is, as of yet, no news coverage of the opinion.

Obama asks MIT and Nation to Join in "Difficult Fight" in Months Ahead

2009-10-23T10:04:00.000-07:00

President Obama's speech, which ended at 1:05 eastern time, was a rallying cry on clean energy innovation, and sounded the opening bell for the fight in the Senate to get the counterpart to the Waxman-Markey climate bill passed.

After talking about the marvelous innovations he had seen on the energy front at MIT--the finest institution in "this part of Cambridge," the Harvard alumni allowed--President Obama declared that "The nation that leads in clean energy innovation will be the nation that leads the world’s economy. And I want the U.S. to be that nation."

Trying to be as inclusive as possible, the President noted that the Pentagon, veterans, and leaders in the business community are looking to protect the environment, our security and the economy by combatting climate change and transforming the energy sector.

Giving a hand to Senators from fossil-fuel dependent states, who will be critical to the passage of any bill, the President envisioned a transition to a "clean energy future" that included "[f]iguring out how we are going to use the fossil fuels that we inevitably are going to be using for the next several decades" as cleanly as possible, and making use of nuclear power, sustainably grown biofuels, as well as "energy harvested from the wind, waves and sun." And the President praised Senator Graham, Kerry, and Bingaman for their work so far on a Senate climate change bill.

Noting the uphill battle ahead, the President warned that "it is important to understand that the closer we get, the harder the opposition will fight," including "people who want to defeat or delay the change that is necessary," and asked the audience to "join us in what is sure to be a difficult fight in the months and years ahead."

Update: A transcript of the speech is now available here, and reactions from the New York Times here, the Washington Post here, the LA Times here, and the Chicago Tribune here.

Obama's Speech on Now

2009-10-23T09:31:00.001-07:00

Available here.

Obama to Kick off Senate Climate Efforts Today

2009-10-23T05:26:00.000-07:00

Presidential remarks will coincide with release of EPA analysis of Kerry-Boxer climate bill

President Obama will be delivering a speech on clean energy at MIT today, noon eastern time. The speech will be webcast here. The speech is expected to boost Senate efforts on a climate bill, just before scheduled hearings before Senator Boxer's Environment and Public Works Committee next week. (The full schedule for the hearings, set for Tuesday through Thursday, can be viewed here, here and here.)

Also expected today: The EPA will be releasing an economic of the Senators Kerry and Boxer's bill, the "Clean Energy Jobs and American Power Act," which can be viewed here.

Faster than Melting Ice ...

2009-10-22T20:16:00.000-07:00

Apparently catching wind that the Department of Interior was about to announce a proposed habitat designation for polar bears in the Alaskan Arctic, (see prior blog post here), Alaska rushed into federal court earlier this week and supplemented its earlier suit to overturn the original listing that prompted the designation. Alaska filed papers (to supplement a suit originally brought by former Governor Palin in August 2008) in federal district court in Washington state on Tuesday, and announced that it had done so during a gubernatorial press conference yesterday. At the press conference Governor Parnell warned that habitat designation would in essence shut down resource extraction along Alaska's northern coast, and vowed not to let that happen.

Fish and Wildlife Finally Proposes Critical Polar Bear Habitat

2009-10-22T19:43:00.001-07:00

But warns that this will not be a backdoor for global warming regulation

In advance of an expected flurry of Senate, EPA and White House activity on a climate change bill tomorrow, the US Fish and Wildlife Service announced today a proposed designation of over 200,000 acres of "critical habitat" in the Arctic for polar bears, which were listed as threatened under the Endangered Species Act (ESA) almost a year and a half ago. The proposed habitat includes part of the Arctic National Wildlife Refuge (ANWR).

Environmentalists had campaigned since 2005 to bring the polar bear under the protection of the ESA. They did this not just for the sake of the species, but also to spur government action to regulate emissions of GHGs contributing to climate change while the Bush Administration and a Republican Congress sat on their hands. The Bush Interior Department finally relented on the listing on May 14, 2008, see 73 Fed Reg 28,212, but did not designate critical habitat at the same time, as required by the Act. Environmentalists promptly sued, and today's proposed designation settles that suit. In a teleconference this afternoon, according to this article in the New York Times, Thomas Strickland, Assistant Interior Secretary for Fish Wildlife and Parks cautioned that “[t]he Endangered Species Act is not the appropriate tool to directly address the carbon emissions that are root cause of climate change.” In other words, we should not expect further Interior regulations curbing GHG emissions to avoid a "take" of the new critical habitat any time soon.

The proposed rule is available here, and maps of the habitat here. Environmentalists reactions to today's proposed designation, which urge that the government must now act to prevent further degradation of that habitat by curbing drilling and restricting emissions of GHGs, are available here, here, and here.

EPA Holds the Line on BACT and CO2

2009-10-21T12:57:00.000-07:00

Agency makes clear that it does not view CAA BACT provisions as applicable to GHGs

On Monday, the EPA's Environmental Appeals Board (EAB) issued an order to the Indiana Department of Environmental Management to reconsider a permit it granted for BP to expand its Whiting (Indiana) refining facility to refine oil shale. NRDC, Sierra Club, the Environmental Law & Policy Institute and others filed a petition in August 2008 for the federal EPA to reconsider IDEM's decision to grant the permit. In the petition, environmentalists alleged that IDEM had let BP get away with incomplete calculations of its emissions, and that it had failed to regulate carbon dioxide (CO2). CO2, petitioners urged, should be subject to the CAA's best-available-control-technology (BACT) requirements, CAA § 165(a), following the Supreme Court's 2007 Massachusetts v. EPA decision.

In its ruling, EAB threw petitioners a bone by conceding that the emissions calculations were incomplete, and remanding the permit for reevaluation of the aspects that incompleteness affected. (This allowed environmentalists to claim victory.) But it stonewalled on the critical CO2 point.

Petitioners urged that the BACT requirements applied to CO2 under Mass v. EPA, in which the Court held that CO2 was a "pollutant" under the CAA. This, they said, means that CO2 is a pollutant that is "subject to regulation" under the CAA and therefore subject to the BACT requirements. (See CAA § 165(a) (requiring BACT be installed preconstruction for all pollutants "subject to regulation under this chapter.")

Rather than concede that CO2 was "subject to regulation," something that Lisa Jackson's EPA has been flirting with but avoiding, the EAB held that "at this time EPA continues to construe" BACT to cover only those pollutants "subject to either a provision in the Clean Air Act or a regulation adopted by EPA under the Clean Air Act that requires actual control of emissions of that pollutant." The phrasing opens the door to the possibility that EPA may change its interpretation in the future--important to keeping the pressure on Congress to pass GHG-specific legislation--but maintains the status quo for now.

Interior Department Launches Investigation

2009-10-21T07:25:00.000-07:00

On Monday, the Secretary of the Interior formally requested that the Department's Inspector General investigate addenda to existing oil-shale leases made on January 15, 2009--five days before former President Bush left office--lowering the royalty rate the U.S. receives to just 5%. (This compares to, e.g., 16% royalty rates for oil production in the Gulf of Mexico.) Secretary Salazar's letter is here, and NRDC's take on the investigation here.

This is just one among many examples of the Bush Administration giving away the store while in office, but also an example of the sort of thing lurking in the regulatory record that DOJ lawyers will be defending, and EPA and Interior officials amending, for some time.