Warming Law

Does Jerry Brown Read Warming Law?

This very blog last Friday, reacting to President Bush's visit to California in wake of the wildfires:

He's made it clear this week that he wants to be seen as responsive to California's short-term needs. But when it comes to the state's long-term goal of mitigating potentially-disastrous climate-change impacts-- one that is quite relevant in wake of the fires-- his administration still has some ground to make up for.

California's Attorney General, commenting on the state's pending lawsuit against the EPA in USA Today:

Brown, the attorney general and former two-term governor, says EPA is using "delaying tactics."

"The fact that the most prominent Republican governor is suing President Bush the same week he came out to California for the fires indicates how strongly the people of California feel about this, and I'm hoping this (lawsuit) sends a powerful message."

Guess he didn't get the message while he was out West...

Congress Examines the Wildfire-Warming Connection

Over at Daily Kos, Rep. Ed Markey (D-MA), who chairs the House Select Committee on Energy Independence and Global Warming, is seeking ideas, thoughts and questions as he prepares to hold a hearing on the scientific link between climate change and the frequency and intensity of wildfires. The committee will convene tomorrow at 10 AM, with the proceedings set to be webcast online.

Markey's post has already generated some great comments, but we'd like to highlight one in particular, left by Hill Heat's The Cunctator:

Global warming / growth

I'd love to see people discussing how smart growth policies can have a double-strength effect on California wildfires -- long term because they are necessary for reducing global warming by reducing emissions, and short term because they reduce water use, respect the natural resources, etc.

Where the government / citizenry / corporations ignore their landscape and engage in undirected sprawl, we get the droughts in Georgia, the wildfires in California, amplified by global warming -- to which undirected sprawl contributes.

Questions and Answers: CA Waiver Edition

UPDATE #2, Wednesday 10/31, 3:30 PM: We've learned that the good folks at the Natural Resources Defense Council are collecting questions that have been submitted, so that they can compare to those ultimately posed to Johnson and post the findings on their blog. Readers who have sent in questions should also send them to Deborah Faulkner, dfaulkner@nrdc.org.

UPDATE, Wednesday 10/31, 1:25 PM: Kevin Grandia at Desmogblog has piled on with a great call to action, and some more possible questions.

Back in July, EPA Administrator Stephen Johnson justified his agency's slow response to California's request to enforce its own auto emissions standards by citing the need to review over 60,000 public comments. With California and other states literally on the verge of suing the government for failing to rule on the waiver application, we've  learned that the public will have one more chance to possibly weigh in this week.

That's because on Thursday afternoon at 3 PM, Johnson will be the inaugural participant in a new online interactive forum called "Ask EPA," discussing the agency's efforts to "promote clean and dependable energy solutions." Some questions we'd love to see asked (in other words, feel encouraged to submit!):

• When can we expect a ruling on California's application? What does Johnson think of the state's lawsuit?
• While California and other states are suing the EPA, the State Department has cited their efforts to significantly lower heat-trapping gases (18% by 2020) as positive examples of U.S. action on climate change. Doesn't EPA's failure to give these states a final go-ahead undercut the State Department's diplomacy?
• What did Johnson think of the non-partisan Congressional Research Service report concluding that the state has a strong case, and that its position was only enhanced by the Supreme Court's decision in Mass. v. EPA?
• What has Johnson uncovered in his promised thorough review of public comments? How many citizens agreed with the auto industry and the White House that, for the first time in over 90 requests since the EPA's inception, state innovation ought to be curtailed? 

Feel free to chime in with any questions we missed...

Jerry Brown's "Big Stick" Policy

While most of our coverage of the California Attorney General's office has focused on ongoing and forthcoming climate change litigation at the federal level, it's important to note that's not all currently brewing in the Golden State. The transcript of a late September panel hosted by the Silicon Valley Leadership Group, obtained by the San Jose Mercury News, reveals that the office continues to quietly work on integrating climate-change concerns into the planning process for major development efforts:

[Stephen E.] Wright: A quick follow-up: The state is getting ready to embark on a major infrastructure process, with all the bonds voters have approved for roadways, waterways, parks, etc. What role will the attorney general's office play in making sure that some of these new bond-funded infrastructure improvements are meeting the CEQA requirements, etc.?

Brown: Under CEQA, impacts have to be identified in connection with any major project, and then mitigation measures must be adopted if they're feasible. I am meeting with counsel of governments, counties, cities, transportation agencies, urging them to do whatever they can.

[...]

Brown: We're going to be very tempered in the use of the coercive power of the state, but very active in the persuasive power. So I'm actually meeting with different jurisdictions, where there's no threat of lawsuits, but bringing to their attention what they should do. Now even what they can do is limited, because, as I say, these are the product of plans, some of these going back 25 years. So this is embedded in legal frameworks that will only be changed slightly.

One of the concerns regarding Brown's recent sprawl lawsuits was the idea that while acting in good faith, he was inserting himself into processes long underway. Now, however, he is engaging in the planning process at the outset. This, too, could set the tone for other states and localities embarking on their own infrastructure plans.

Upcoming Warming Law Events

Readers in the Washington, DC area in the coming week might be interested in two great events.

On Thursday, November 1 starting at noon, CRC Executive Director Doug Kendall will be speaking at an event at the George Washington University Law School titled "Climate Change and the Constitution: Global Warming Litigation Heats Up." Sponsored by the Environmental Law Institute, as well as the National Association of Environmental Law Societies and its DC-area chapters, the event will focus on many of topics that we've been covering here at Warming Law:

In the wake of the Supreme Court’s blockbuster decision this year in Massachusetts v. EPA, new judicial rulings grappling with climate change have emerged from federal district courts around the country....Some courts have now dismissed nuisance lawsuits under the political question doctrine (NY, CA, MS) and on standing grounds (MS), while another court has rejected claims by industry that Vermont’s new greenhouse gas regulation is preempted by the foreign policy prerogatives of the federal government and by the Energy Policy and Conservation Act. More climate change rulings are expected, with all of this litigation only just beginning to work its way through the federal judiciary. What does it all mean? Where is climate change case law headed?

Doug will be on the afternoon's second panel, which focuses on questions of statutory and foreign-policy preemption affecting state efforts to innovate. He will be joined on stage by Kevin Leske, a Vermont Assistant Attorney General involved in that state's recent court victory, and attorney Raymond Ludwizewski of Gibson, Dunn & Crutcher, who is on the legal team representing the Association of International Automobile Manufacturers (AIAM) in the clean cars lawsuits (we recently noted AIAM's aggressive legal posture in the California lawsuit). Expect a lively and informative discussion!

They Took The Words Right Out Of Our Mouth

The editors of the New York Times, writing about global warming this weekend under the headline, "Listen to the States:"

For years, most of the important initiatives to deal with global warming have been undertaken at the state and local level, while Washington has largely dithered. This is still true. The hope, as always, is that pressure from below will jolt Washington from its slumber.

Last week, Gov. Eliot Spitzer issued strong regulations aimed at cutting emissions of carbon dioxide, the main global warming gas, from New York power plants. Next week Gov. Arnold Schwarzenegger of California will file a lawsuit against the Environmental Protection Agency for holding up efforts by his state and others to restrict carbon dioxide emissions from cars and trucks.

[...]

The automobile industry does not want California to get that authority, and Mr. Bush’s E.P.A. has been in no hurry to grant it. But one by one, the federal courts have been demolishing the agency’s excuses for not acting. In April, the Supreme Court ruled that the agency had clear authority to regulate automobile emissions of carbon dioxide. And last month, a federal court in Vermont ruled that automakers were fully capable of meeting the California standards.

The states can take some satisfaction from the fact that Mr. Bush now concedes, at least rhetorically, that global warming is a problem and that he cares about it. One practical way for him to show his concern would be to grant California its waiver and to get behind efforts in Congress to control emissions.

Words are nice, but actions obviously count much more. Spitzer and Schwarzenegger get that, and so, to some extent, do congressional leaders. After all, the bipartisan Lieberman-Warner cap-and-trade bill the editors praise, whatever its other flaws, actively encourages bolder state plans such as Spitzer's.

And should the administration fail to follow suit, Congress would do well to consider actively working to change things. A broader federal framework is necessary and should be acted upon as soon as possible, but at the very least, states' ability and active desire to innovate should be a point of consensus rather than a source of contention and litigation. 

The Thaw Next Time

In today's NY Times, correspondent Sheryl Gay Stolberg takes a look at the apparent thaw between President Bush and California Governor Arnold Schwarzenegger in wake of California's devastating wildfires.

The President might be smiling in public, but privately he's doubtlessly aware that Schwarzenegger is set to sue his EPA next week (and would have done so already were it not for the fires). In this vein, his reaction there might be particularly worth watching and noting.

He's made it clear this week that he wants to be seen as responsive to California's short-term needs. But when it comes to the state's long-term goal of mitigating potentially-disastrous climate-change impacts-- one that is quite relevant in wake of the fires-- his administration still has some ground to make up for. It would be much more noteworthy if this spirit of goodwill and rapproachment somehow carried over into this most heated of the "policy differences" that Stolberg's piece alludes to.   

The Fiery Urgency of Now

by Sean Siperstein

UPDATE: More on the climate-fires connection from the Center for American Progress.

Usually I don't write in the first-person here, but the recent convergence of events we've been covering in California with the wildfires devastating that state leave a sense of urgency-- one that leads me to echo Tim's question this morning.

Like Bill McKibben, I have relatives in the area, though mine (fortunately) are just outside of the affected region near Malibu. And like Bill, my thoughts do turn at this time to the undeniable reality that climate change does impact disasters like this one. It's not the decisive issue here to be sure (though it rarely is), as many with more expertise have told me over the last couple of days, and getting the science right is essential. At the same time, though-- as explored (alongside other factors) by Daniel James Brown in an excellent op-ed in today's LA Times--it is certainly a part of the problem, and thus seems germane to address on a general level.   

One impact of this tragedy, ironically, has been the delay until next week of California's anticipated lawsuit against the EPA (which it's likely will now be joined by New York). Nevertheless, the glare of the fires very much illuminates the question at hand in that suit, and in any potential Congressional action to remove its necessity-- whether California and other states have the ability, under legislation that Congress itself passed (the Clean Air Act), to alleviate a problem that does impact them at least in some part and will continue to do so.   

Is Congress MIA?

Posted by Tim Dowling

Here's a question for our readers:  Why doesn't Congress, TODAY, pass a one-sentence law directing EPA to grant California a waiver under section 209 of the Clean Air Act for California's regulatory program to reduce greenhouse gas emissions from new motor vehicles?  It even could add a second sentence providing that no other provision of law should be construed, either standing alone or in combination with any other law, as preempting the program. 

If At First You Don't Succeed...

When Judge Anthony W. Ishii postponed yesterday's anticipated hearing in the California clean cars case, he cited the need for more time to consider an ex parte application filed by the plaintiffs only several days earlier. The auto industry sought permission to file a supplemental response to the state's counter-motion for summary judgment, despite the deadline for revising their brief having been December 20, 2006, when Judge Ishii initially heard arguments related to motions and counter-motions for dismissal.

Plaintiffs are attempting to have the judge consider additional depositions by California Air Resources Board official Michael Scheible and Michael D. Jackson, an expert on alternative fuels. Both filed declarations of support for the state's case for summary judgment back in December 2006, and the latter has been retained by the defense as an expert witness, but the industry claims that additional depositions from them might support its claim that California's emissions regulations are pre-empted by federal fuel economy standards.

The state and its environmental allies, for their part, have responded that the industry deposed Scheible and Jackson prior to the December 20th hearing and referred "liberally to this deposition testimony during the December 20th hearing before Judge Ishii. The defendants also note that the plaintiffs' proposed supplemental refers "only sparingly to testimony obtained after the hearing," and that regardless, plaintiffs had ample opportunity to ask for leave to file supplemental papers over the course of the last nine months.

In an amusing email exchange included in the plaintiffs' submission, David Bookbinder of the Sierra Club adds te rejoinder to Plaintiffs that "one lesson they should have learned from the Vermont trial is that chances of litigation success are not improved merely by submitting more paper."

Bookbinder is right that in the long run, plaintiffs' supplemental submission is unlikely to have any impact on the outcome of the case. But if the goal was to simply put off a hearing before Judge Ishii, then it has already achieved the desired effect.