Warming Law

Weekly Round-Up: Game Over in Kansas

--The Kansas coal battle is over for now, legislatively speaking, as the industry's legislative allies have decided against trying to override Governor Kathleen Sebelius' latest veto. The battle now shifts to state courtrooms, where the industry has filed suit.

--Members of Arkansas Gov. Mike Beebe's climate change commission are asking the public for support and input, and making a case we very much like to do so:

With the federal government at a standstill on the issue, it's up to the states to become legislative laboratories for their parent legislature to learn from, and the commission is one of Arkansas'first experiments, said state Rep. Kathy Webb, D-Little Rock, who is a member of the commission. She said the presidential candidates have made commitments to take action on global warm- ing, and she thinks that at its next session Congress will address the issue.

Webb and Petty agreed that if Arkansas wants to be one of the states handing out advice to the federal government when it's making policies on environmentalism, the state Legislature and citizens must work together to help the commission succeed.

--Californians, of course, have been advising the federal government for years (and, where necessary, suing it) on climate policy. Local initiative continues to march on despite the lack of federal support, with nine Bay Area counties agreeing to impose fees on businesses for every ton of carbon they emit.

One Small Step: CA Waiver Bill Passes Out of Committee

This morning, the Senate Environment and Public Works Committee voted to advance S.2555, which would reverse EPA's waiver denial and allow California (along with 13 other states) to set its own tailpipe emissions standards for greenhouse gases. The bill moves to the Senate floor by a bipartisan vote of 10-9, with Senator Tom Carper (D-DE) breaking with fellow Democrats to oppose the bill, only to be cancelled out by the support of Senator John Warner (R-VA).

This is a fairly modest bill that aims to quickly fix a blatantly wrong-headed decision that likely won't hold up in court, and theoretically should garner broad support across partisan lines based on that reality and shared federalist principles. But as even Senator Barbara Boxer (D-CA) admitted while moving her bill forward, the likelihood of overcoming a potential filibuster by opponents, let alone a threatened presidential veto, is not good so long as powerful voices like automakers and the United Auto Workers remain full-throttle in their opposition.

Still, today's vote does help the measure's proponents frame the debate for the next president, whom they are optimistic will reverse course and allow California to move forward. 

Waxman v. Johnson: More of This Please

We've been tied up the last couple of days with some exciting developments that will lead to Warming Law's definite benefit and improvement, so apologies for the light posting. But we definitely wanted to acknowledge that yesterday, Rep. Henry Waxman (D-CA) released a 20-page memorandum on the White House's role in the EPA's California waiver denial, and has proceeded to angrily confront embattled EPA Administrator Stephen Johnson over this and other extra-legal actions today.

We'll have more on Waxman's findings tomorrow, but for now we wanted to note that the framing of this debate has been crystal clear, something that has been a pet peeve of Warming Law's in the recent past. Take for instance, the following from the memo's introduction/thesis:

The President has an obligation under the Constitution to take care that the laws of theUnited States are faithfully executed. In this case, the applicable law is the Clean Air Act, whichrequires that California's petition to regulate greenhouse gas emissions from motor vehicles bedecided on the merits based on specific statutory criteria. It would be a serious breach if thePresident or other White House officials directed Administrator Johnson to ignore the recordbefore the agency and deny California's petition for political or other inappropriate reasons.

That sounds about right, more or less.

Napolitano Stands Tall, Minnesota Falters, and Other State Climate News

--As predicted, Arizona Governor Janet Napolitano has vetoed legislation that would have prevented state agencies from participating in regional climate agreements and overturned the enactment of California's clean cars program. But don't expect a Kansas-style battle here: while industry groups have depserately lobbied for this and some supporters would like to attempt an override, the bill's main sponsor has stated that trying would be "an exercise in futility."

--Less good is the news from Minnesota, where a state Senate committee yesterday halted a push to enact the California auto emissions standards, at least for this year. A combination of auto industry lobbying, and the (astroturfing-driven) opposition of ethanol and agricultural interests, was responsible. Sponsors vow to try again next year, at which point California's waiver denial by EPA-- cited by some in Minnesota as a reason to stall action-- might well have been overturned by the courts, Congress, or a new administration.

--Wisconsin officials are citing climate change impacts as one of the factors they plan on scrutinizing in depth (others include cost effectiveness) before allowing an expensive coal-burning plant to be built. The consideration of similar factors in Iowa, reported on in last week's roundup, is cited as an example being followed here.

--And finally, California Attorney General Jerry Brown continues to make strides with his efforts to limit the climate-change impacts of large-scale development projects. Late last week, Brown reached an agreement with a rapidly-expanding San Diego airport.

Insulted EPA Files "Pathetic" Response to Mandamus Petition

Late yesterday (very late, we are told), the EPA filed its formal opposition to the Massachusetts v. EPA plaintiffs' mandamus petition, which asked the court to order an endangerment finding for greenhouse gas emissions within 60 days, in response to the agency's unreasonable delay of over a year after the Supreme Court's opinion was handed down. The court initially set a deadline a week earlier, but EPA (shockingly, we know) asked for an extension.

EPA argues that it is reasonable for the agency to delay an endangerment finding-- described as a "preliminary step" and "clearly beyond the exceptional remedy of mandamus relief"-- until it can also complete the vehicle-emissions standards that would be automatically triggerred by the Clean Air Act, and which were the subject of the original petition way back in 1999. The agency also argues that it acted reasonably in suddenly ditching the endangerment finding and auto-emissions rules it had finished drafting late last year, writing that "EPA has reasonably decided to adjust those plans in response to external events (such as the enactment of fuel economy legislation by Congress in December 2007 and the receipt of several petitions under other CAA provisions) and further administrative consideration." The allegation that these excuses adjustments were made in bad faith and with manifest impropriety are dismissed as "reckless and baseless."

David Bookbinder, the Sierra Club's Chief Climate Counsel, tells us via email that this response amounts to a "total nothingburger." He also seconds our sense that EPA's rationale is sadly familiar, noting (emphasis added) that:

EPA/DOJ have now repeated, in 29 pages, the same lame excuses for inaction that Steve johnson offered in his 3-page March 27 letters to Congress: this climate stuff is all terribly complicated...so everyone is going to have to wait while EPA thinks about this some more. Remarkably, these are nothing more than updated versions of the same excuses EPA relied on denying the original petition in the Mass. case back in 2003, and were categorically rejected by the Supreme Court. These excuses do not become any less pathetic by dint of either repetition or additional filter."

DOI's Polar Bear Listing: Turning a Pit Bull into a Poodle

Posted by Tim Dowling

Over at the Georgetown Law Faculty Blog, environmental law scholar extraordinaire Lisa Heinzerling has this post discussing the Department of the Interior's listing of the polar bear as a threatened species.  She explains that while the Endangered Species Act  is "sometimes called the 'pit bull' of our environmental laws" due to the robust protections it requires for endangered and threatened species, the Interior Department's decision yesterday to list the polar bear attempts to defang the Act through "interpretive somersaults" by purporting to limit the impact of the listing on greenhouse gas emitters.  By ignoring its own rules, the Interior Department basically ensures that "the listing will not require anybody but trophy hunters to change their behavior to protect the bear."  Professor Heinzerling concludes that through these accompanying limitations on the reach of the Act as applied to polar bears, DOI "turns the pit bull into a poodle."

Her analysis is well worth reading.  Check out the full post.

Senator Boxer Moving Bill to Overturn California Waiver Decision

The Detroit News is reporting that as early as next Tuesday, the Senate Environment and Public Works Committee will consider Senator Barbara Boxer's bill, S.2555, that would reverse the EPA's thwarting of California's GHG emissions standards.

The looming spectre of congressional action has been a key motivator behind the auto industry's desperate lobbying of late, seeking to stop additional states from adopting the California rules. Nonetheless, Boxer's bill has been fairly dormat since it was introduced in January. So why act now?

The answer might lie in the realm of legislative support. Boxer's bill now has 27 cosponsors, and last week it earned itsfirst endorsement by a Republican member of the EPW Committee, Senator John Warner of Virginia. With his support secured, Boxer would be able to pass the bill out of committee even if she loses one member of her own party-- commitee members Max Baucus (D-MT) and Thomas Carper (D-DE) have yet to take a position on the bill.

More importantly, Warner's support could be a big help on the Senate floor, and provides strong symbolism as a major ally of Senator McCain's who has decided to actively side with California (McCain has expressed support for California, but has yet to endorse the Boxer bill).

EPA Waiver Challenge: More Delay

On May 12, EPA filed a motion to transfer California's challenge to EPA's waiver denial from the Ninth Circuit to the D.C. Circuit.  This is EPA's second attempt to nix the Ninth Circuit appeal.  (It previously moved to dismiss the appeal, arguing that the Dec. 19, 2007 letter from EPA informing California of the waiver denial was not final agency action subject to appeal.) 

California's opening merits brief had been due today, May 14.  This latest motion, which automatically stays the briefing schedule, is expected to push things back 2-6 weeks, depending how long it takes the court to decide the motion.

Janet Napolitano and the Chamber of Inconvenient Truths

Yesterday, Arizona lawmakers set up a likely showdown with Governor Janet Napolitano over global warming, though they conveniently don't see it that way. In passing legislation to overturn the state's enactment of California's clean cars standards--  the result of an executive order that Napolitano issued back in 2006, and a lengthy evaluation process by state officials-- legislators claim that they're only standing up to excessive executive power. They fault Napolitano for not consulting them both on this matter and before she signed the state up for the Western Climate Initiative's regional cap-and-trade effort last summer. 

Napolitano, who is likely to veto the bill, asserts that her action is perfectly normal under state environmental law, and her allies have highlighted the suspect timing and rationale provided by their fellow legislators. The bill's proponents have been quite defensive in response:

"Maybe we are a day late and a dollar short in doing it," [Sen. Jake Flake, the bill's author] conceded. "But it's important that we do do it and don't wait forever."

[...]

"This isn't about greenhouse effect, this isn't about the environment," [House Speaker Jim Weiers] said. It's about legislative authority to review these kinds of policies, not "an agency head or a governor behind closed doors." he said.

While legislators argue that a heavy lobbying push by the auto industry and other aligned groups was irrelevant to their acting now, the Arizona Chamber of Commerce finds itself simultaneously on the defensive, though its problem simply seems to be with the truth. The organization conveniently chose yesterday to release a poll literally designed to portray public concerns over the governor's actions, and was quickly called out on it by the state media:

[T]he questions in the survey, paid for by the business community, may have influenced the answers.

For example, one question asks whether people would be willing to pay an extra $3,000 for cars and trucks to meet the new emission standards. More than 60 percent said "no."

Figures from the California Air Resources Board, which first adopted the rules Arizona is mimicking, put the cost at less than $1,100, not $3,000.

And Hamer acknowledged there is a financial benefit to buying the cars manufactured to the new standards because their higher fuel efficiency will reduce the need to buy gasoline — a point never mentioned to those questioned in the survey.

"I don't believe it really matters in terms of all the details," he said.

Cities Deliver an Energy Smackdown! and More State Climate News

--We wish we'd had more time to blog about Juliet Eilperin's excellent feature story from last Sunday's Washington Post, which documented state and local efforts to tie growth efforts to mitigating global warming impacts. David Roberts wonders why presidential candidates don't mention these ambitious efforts more on the stump; meanwhile, the Drum Major Institute calls attention to other local government initiatives, such as a reality TV show called Energy Smackdown! being produced by several Massachusetts cities.

Also, Smart Growth America's Steve Davis, responding to a quote in Eilperin's piece from California AG Jerry Brown, waxes optimistic that the real estate market is beginning to shift in favor of more walkable, lower-emitting "places where gas prices can't hold [consumers] hostage."

--The Sierra Club has threatened to sue unless the permits for eight new coal-fired power plants are not reviewed, in the aftermath of a federal court ruling that invalidated EPA's weak mercury rules. While the threat might revolve around more traditional air pollution, coal plants are the source of 40 percent of U.S. carbon dioxide emissions and one of the plants targeted, Duke Energy's proposed Cliffside expansion in North Carolina, is also targeted in Appalachian Voices' NEPA suit against the DEpartment of Energy. On a related note, Joe Romm makes the case for a moratorium on new coal plants over at Gristmill.

--Connecticut legislators have approved a new law, mirrored on measures that have passed in California, New Jersey and other states, to cap greenhouse gas emissions.

--New Hampshire also appears set to join other northeastern states in the Regional Greenhouse Gas Initiative (RGGI), a path-breaking emissions-trading program for large power plants that will go into effect in early 2009.