Warming Law

Global Warming and Sprawl in California

"In litigation and legislation, environmentalists, lawmakers and Attorney General Jerry Brown are using a landmark law enacted last year by Gov. Arnold Schwarzenegger to argue that the state must rethink the kind of immense and far-flung housing developments that have defined California land-use patterns for decades."

The SF Chronicle explores the relationship between climate change and sprawl.

Update on waiver hearings

The Sacramento Bee has this story about the second EPA hearing on California's waiver request, held yesterday in Sacramento.

Two Years?!

Today's Christian Science Monitor has this overview story on California's long battle to win a waiver for its greenhouse gas tailpipe emission standards. Most of the facts in the story are familiar to people who have been following California's efforts, but one sentence leaps off the page: "The EPA could take from two months to two years to make its decision, he [EPA spokesman John Millett] says. "

Two years? Two years after Mass v. EPA? And four years after California filed its petition in the first place? California has notified EPA that it will sue EPA if the agency hasn't taken action by October. Senators have chastised the EPA administrator for his foot-dragging on national greenhouse gas auto emissions standards. The EPA's chutzpah is staggering.

The Senate Hearing: The Skeptics Press On

As we noted here, on May 22 the Senate held a hearing regarding California's request that EPA grant a waiver under section 209 of the Clean Air Act to allow the state to impose controls on greenhouse pollution from new cars and trucks. If a waiver is granted, more than a dozen other states also will adopt California's limits. EPA had placed the waiver request on hold, pending a decision from the Supreme Court in Mass. v. EPA. With the ruling in hand, EPA is now actively considering the request.

To qualify for a waiver, California must show that it needs regulatory controls tighter than the (as of today non-existent) federal controls "to meet compelling and extraordinary conditions." Given the extraordinary threats posed by global warming, one would think the waiver decision would be a no-brainer for EPA.

At the hearing, however, regulatory skeptic Jonathan Adler testified to the U.S. Senate, among other things, that "climate change is not an environmental problem that presents a threat that is any more 'compelling and extraordinary in California than anywhere else." Now, there's a lot in Prof. Adler's testimony that is wide of the mark, but this assertion is both utterly false and utterly beside the point.

New State Climate Registry

On Sunday May 27, Neal Peirce will report that 31 states have joined a new Climate Registry to track greenhouse pollution from major industries.
May 27, 2007
© 2007 Washington Post Writers Group
GLOBAL WARMING:
A STATE AND LOCAL RESCUE?
By Neal Peirce

Thirty-one states. representing 70 percent of the country’s population, announced on May 8 they’d signed onto a new Climate Registry to measure, track, verify and publicly report the greenhouse gas emissions by major industries.
Based on a pioneering California program, the registry is considered big news because it requires third-party verification of carbon dioxide released into the atmosphere – a feature missing from the Bush administration’s reporting program.
The registry is also a precursor, say its backers, to market-based regulations necessary to effectively control the United States’ heavy contribution to planet-threatening climate change.

Senate hearing on CA clean cars waiver today

This afternoon, the Senate Committee on Environment and Public works will hold a hearing on "Examining the Case for the California Waiver." The Senate hearing comes just hours after EPA's own hearing (see previous post) that examines the case for California's waiver, required before the state can enforce its law limiting greenhouse gas emissions from new cars and trucks.

Witnesses include California Attorney General Jerry Brown, Case Western Reserve Law Professor and regulatory skeptic Jonathan Adler, and New York State Commissioner of the Department of Environmental Conservation Alexander B. Grannis. We'll have a new post with links to the testimony as soon as it's available.

UPDATE: The prepared statements of Senator Boxer, Attorney General Brown, Commissioner Grannis, and Prof. Adler, as well as an archived webcast, are available on the Committee's website.

GOP govs to feds: Be our partner or get out of the way

In an op-ed in today's Washington Post, Republican governors Arnold Schwarzenegger and Jodi Rell don't mince words about their frustration with federal inaction on global warming:

It's bad enough that the federal government has yet to take the threat of global warming seriously, but it borders on malfeasance for it to block the efforts of states such as California and Connecticut that are trying to protect the public's health and welfare.

These strong words come on the eve of EPA's first hearing on California's request for a waiver from EPA concerning the state's greenhouse gas tailpipe emissions law, to take place tomorrow morning. Another hearing will be held May 30 in Sacramento. (See the California Air Resources Board webpage for details about the hearings). This hearing comes almost two months after Mass v. EPA declared that it was appropriate to regulate greenhouse gases under the clean air act, and 16 months after California applied for its waiver to do just that. Connecticut is one of more than a dozen states that have adopted California's tailpipe emissions standards.

The governors take no comfort in President Bush's recent executive order on global warming, saying that "To us, that again sounds like more of the same inaction and denial, and it is unconscionable." In fact, as Warminglaw noted last month, Gov. Schwarzenegger has notified EPA that he intends to sue the agency if it hasn't acted on the waiver request--by doing more than just having hearings--by the end of October.

Litigation Round-up

Here is a round-up of the major global warming cases pending in federal court, most of which have been the subject of prior Warminglaw posts, and summaries of how the parties are using Mass v. EPA to bolster their arguments.

Clean Air Act Case:
New York v. EPA, No. 06-1322, D.C. Cir. As noted here , the states, municipalities, and environmental organizations that have challenged EPA’s refusal to regulate global warming pollution from stationary sources like power plants asked the D.C. Circuit on May 2nd to remand the matter to EPA in light of the decision in Mass v. EPA. EPA’s response to the plaintiff’s Motion Governing Further Proceedings was due May 17th, and we hope to have it and post it next week.

Nuisance Cases:
Connecticut v. American Elec. Power Co., No. 05-5104-cv, 2d Circuit—still awaiting the ruling
California v. General Motors Corp., No. 3:06-CV-05755, N.D. Cal.—no trial date set
In these cases, the defendants say that Mass v. EPA supports their claim that global warming pollution is a political question for the federal government, not states, to address, and that federal common law is displaced by the Clean Air Act when it comes to greenhouse gases. The plaintiffs counter that Mass v. EPA shows that states can go to federal court to pursue legal action in global warming cases. They also note that the displacement claim turns on whether or not states can get relief under federal law, and EPA is far from taking any action that would constitute relief. The relevant filings in both cases are available here.

Preemption Cases:
Central Valley Chrysler-Jeep v. Witherspoon, No. CV-04-6663 E.D. Cal.
California filed a notice of decision on April 4, claiming that Mass v. EPA “resolves the case in Defendants’ favor,” and asking for leave to file supplemental briefing. A status conference on the case has been set for June 18th.
Green Mountain Chrysler v. Dalmasse, No. 2:05-CV-302 D. Vt. Vermont and its allies filed a brief saying that the three major findings of Mass v. EPA—that the Clean Air Act covers carbon dioxide emissions, that the federal fuel economy law and the Clean Air Act’s regulatory regimes can co-exist, and that foreign policy concerns do not block greenhouse gas regulation—support their arguments. The automakers’ briefs insist that Mass v. EPA said nothing about the relationship of federal law to state greenhouse gas emissions laws, which they claim are preempted. Post trial briefs in the case are due in early June.
Lincoln Dodge, Inc. v. Sullivan, No. 1:06-CV-0070 D.R.I. The docket hasn’t budged since March in this case.

Other:
Center for Biological Diversity v. NHTSA, No. 06-71891 9th Cir. See the previous posting for the latest in this case.

"The Little Guy Needs Protection"

As noted here, the Ninth Circuit held oral argument yesterday in an important case challenging corporate average fuel economy standards (CAFE) for light trucks issued in April 2006 by the National Highway Transportation Safety Administration (NHTSA). Stories in today's San Francisco Chronicle and the San Francisco-based Fog City Journal, suggest that the argument went relatively well from the perspective of the states and environmental organizations that are challenging the NHTSA rules. Judge Betty Fletcher asked lawyers for the federal government why it estimated the safety impacts of heavier vehicles without also taking into account that such vehicles cause more damage to other vehicles in accidents. "It's the little guy that needs protection" she asserted. Judge Michael Hawkings challenged NHTSA's decision to value carbon dioxide at zero. When the government responded with an answer that went in two different directions, Judge Hawkins commented, "That's like saying, 'Yes, we have no bananas.'"

Hopefully, the Ninth Circuit won't slip up in its ruling, which could come at any time.

New book on global warming & the law

The American Bar Association has just published Global Climate Change and U.S. Law, a thorough overview of climate change policies from the international to the local level. Various chapters detail current climate change litigation, the most aggressive local policies to counter climate change, the impact of the un-ratified Kyoto protocol on U.S. businesses, and how climate change plays out in corporate decisions on disclosure, and fiduciary duties. (A detailed table of contents is available here.) Because the legal landscape is changing so quickly, the book already has an update (as a website, not a pocket part) on Mass v. EPA, which you can read here.

Contributing authors include former EPA General Counsel Gary Guzy, and John Dernbach, who co-authored an amicus brief on behalf of prominent climate scientists in Mass v. EPA. Michael B. Gerrard of Arnold & Porter edited the book, and you can find out more about it here.