Warming Law

Massachusetts (v. EPA) Blues

Reviewing a new book that seeks to comprehensively portray Massachusetts as out of the mainstream, David Kravitz of the Blue Mass. Group catches author Jon Keller engaging in quite a bit of exaggeration in order to brand the state's landmark lawsuit against the EPA as an unduly "activist" move:

Consider the following from p. 205...

Massachusetts's most recent pushing of the envelope is a state lawsuit against the federal Environmental Protection Agency trying to mandate by court order the vehicle emission standards that the legislative and executive branches have rejected.

...The question in [Massachusetts v. EPA]  was whether the EPA had the authority under the Clean Air Act to regulate greenhouse gases emitted by motor vehicles...So what Massachusetts and the other plaintiffs did in this case is force the EPA to exercise the authority that Congress has given it.  This is not a case in which courts are asked to leapfrog the legislative process (or, in Keller's words, to "mandate by court order the vehicle emission standards that the legislative and executive branches have rejected").  To the contrary, in this case the courts simply required the executive branch to do exactly what Congress -- the legislative branch -- has already told it to do, instead of making up bogus excuses.

In terms of summarizing and analyzing the case, Kravitz' analysis is spot on. However, we would also like to note, in response to any remaining implication that lonely Massachusetts was "pushing the envelope" here, that in doing so it wasn't exactly alone.

Our own amicus brief before the Supreme Court was filed on behalf of four cities and associations representing thousands of mayors, county officials, municipal attorneys and planners; other states, a bipartisan group of past EPA Administrators, and self-described "strange bedfellows" such as Entergy Corporation also were among those supporting the state's straightforward argument. Federal regulators ought to comply with federal law in tackling a very real national problem, and states and others aggrieved by their inaction have a long-standing right to hold them accountable in court when they fail to do so. 

   

Paint the Desert Green

Via Faye Bowers of the Christian Science Monitor, the city of Phoenix-- home of record heat at the moment and throughout much of the summer-- is experiencing a rapid "urban heat-island effect" with direct bearing on efforts to combat broader climate change through better planning:

"Every time you use that mechanical air conditioner, you're throwing hot air back into the environment," says Jay Golden, an expert on urban climate and energy at Arizona State University in Tempe. "It's not only the sun and the pavement, but we're generating more heat because of human adaptation." And that's where global warming comes in: The hotter it is, the more we need to cool off; and the more we try to cool off – with air conditioning, for instance – the more heat-trapping greenhouse gases and "waste energy" we create, feeding both phenomena.

...

The good news about these rises in temperatures, if there is any, Golden says, is that local governments are beginning to pay attention to how they design cities, how closely they space houses, and how much forestry and agriculture they plan.

In other words, as dynamic cities like Phoenix start schvitzing more and realizing the connection between climate and planning, demand for smart and sustainable solutions is rising. And state and local officials are starting to respond in creative ways.

Arizona isn't the only place this is going on. Bowers' colleague Brad Knickerbocker, in an insightful round-up of the week's major climate news, notes the ties that bind scorching temperatures and rapid growth to the recent announcement of the Western Regional Climate Initiative (though to be fair to our own reporting and analytical skills, we made that connection earlier this week!). Meanwhile California, home to the anti-sprawl efforts out of Jerry Brown's office that Knickerbocker recognizes as part of the mix, also just so happens to have its current power system nearly overloaded by heat-related demand.

Sustaining New Orleans

As the nation marks today's second anniversary of Hurricane Katrina's landfall and the tragic events that followed (and continue to unfold), it may seem odd to wax optimistic about a planning and rebuilding process that has been slow and rife with conflict.

Yet in the latest issue of The Nation, writer Rebecca Solnit manages to do just that with her moving account of how community activists in New Orleans' Lower Ninth Ward have made significant strides in ensuring that their neighborhood is not merely restored, but improved in a way that seeks to lessen environmental impacts and fight global warming. Ed Blakely of the New Orleans Times-Picayune penned an editorial making a similar argument last month, noting that international attention from urban planners and climate experts has in fact been eagerly focusing on the city's redevelopment efforts:

Carbon emissions are already at alarming rates. One clear message from all of the research presented at [a recent international] conference was that as cities grow, the automobile as we know it cannot be the urban backbone. New fuels, along with new ways for people to access their jobs and communities, will have to be a major part of city building.

In New Orleans, we have gone through an almost two-year planning process that aims to make cleaner, greener and more sustainable neighborhoods. These plans are superb and conferees were uniformly impressed by the New Orleans planning effort as a model for the new urban world.

It is clear that our Citywide Strategic Recovery and Redevelopment plan has to match our intentions. The world is expecting New Orleans to take the lead in developing a better, safer and more sustainable city form.

Given the natural spotlight its actions draw, the very real force of climate impacts on low-lying areas such as New Orleans, and the growing national attention being paid to the importance of climate-sensitive growth planning, the city has a real opportunity to serve as a national model.

To be clear, none of this outweighs the painfully real despair that continues to impact New Orleans' rebuilding process. Yet in efforts like this we are able to see the spirit of hope emerging from that vibrant city, and successfully demonstrating the ways local efforts and policies can contribute to the fight against global warming would certainly provide a welcome, additional dash of optimism for its populace.

A Fleeting Defeat for Local Government? Perhaps Not...

Reacting to the 9th Circuit's ruling on regulations directing public fleets to purchase low-emission or alternative fuel cars, the Engine Manufacturers Association has been spinning its legal loss as a defeat for local governments:

Local governments are true market participants and know the needs and resources of their communities. The fleet rules severely restrict their flexibility to make local purchasing decisions.

Yet gauging some of the coverage reacting to the decision, there's a lot of validation of the argument (voiced in our brief!) that state regulators' action has served as a widespread and effective market tool for reducing emissions. Take, for instance, this snippet from the LA Times' write-up:

An estimated 6,000 new vehicles, mostly powered by compressed natural gas, have been purchased by agencies in the region since the rules were put in place. Old school buses and other diesel vehicles are among the dirtiest on area roads, contributing to both diesel soot and smog. Purchasing new, alternative-technology vehicles might initially be more costly than buying diesel equipment, but it saves lives and costs over the long run, regulators said.

Angelo Bellomo, director of environmental health and safety for the Los Angeles Unified School District, said the district has replaced about 10 percent of its school bus fleet with compressed natural gas units, largely by aggressively applying for and winning grant money.

"It's a stretch to do this, yes, but it's worth it," he said.

Further coverage in the state and local media emphasizes (via solid analysis from the National Resources Defense Counsel 's David Petit) that the South Coast AQMD, far from going outside of its scope of permitted action, actually spurred significant changes that are beneficial both environmentally and economically. The court's recognition of this valid role will, in turn, likely spur further innovative solutions by state and local policymakers (if it hasn't been doing so already).

The Great Salt Lake Effect?

In another step forward for state and local efforts to act against global warming, a blue-ribbon task force commissioned by the Republican governor of Utah has forcefully determined climate change to be generated largely by human activity, and laid out a series of steps for how that state can begin to respond.

Of particular note to us here at Warming Law, in the wake of last week's 9th Circuit ruling on regulation of public vehicle fleets, is the Commission's high-priority reccommendation to "Have the state vehicle fleet take the lead in changes." In the 9th Circuit case, the Engine Manufacturers Association specifically told the LA Times that the possibility of California regulators sparking action elsewhere was a key motivation behind this legal battle (in the process framing the situation with language we've previously seen, and debunked, coming from automobile manufacturers):

"They do get to continue to enforce rules on local governments," said Joe Suchecki, spokesman for the Engine Manufacturers Assn., who said the organization has vigorously fought Southern California's regulations because they could spread to other states and cities, creating a "patchwork of different regulations" that would make it difficult and costly to manufacture different equipment for different localities.

Thus, it's all the more noteworthy that the Utah commission included representation from a range of state and local officials, environmentalists, and industry-oriented energy groups. As a growing range of state and local actors move forward in regulating fleet rules, the EMA may indeed be watching itself become something of an outlier on this issue.   

Industry Concessions at S. Ct. Oral Argument Help Support Gov't Victory on Remand in Fleet Rules Case

Posted by: Tim Dowling

In our August 21 post on the Ninth Circuit's recent ruling in Engine Manufacturers v. South Coast Air Quality Mgmt. Dist., we emphasized the practical, real-world benefits the ruling will bring to the many state and local governments that use fleet programs to improve air quality, reduce greenhouse gases, and otherwise promote human health and environmental protection. This follow-up post focuses on the interplay between the U.S. Supreme Court's 2004 ruling in the case and the Ninth Circuit's ruling on remand.

New Supreme Court Preemption Case

Posted by: Tim Dowling

As Warming Law readers know, preemption law plays a key role in several pending lawsuits involving global warming. Various corporate interests argue that the federal Clean Air Act and federal energy laws prevent states and municipalities from enacting laws designed to reduce greenhouse gases. It is therefore vital for those interested in the law as it pertains to global warming to keep abreast of preemption developments.

During its upcoming Term, the U.S. Supreme Court will once again address preemption in Riegel v. Medtronic, Inc. (No. 06-179). Community Rights Counsel filed an amicus brief to help ensure that the ruling respects the critical role that state and local laws play in promoting public health, safeguarding the environment, and protecting our communities.

Will Phoenix Also Rise? Or Maybe Santa Fe? Salt Lake City?

In addition to the clear message that Western states sent yesterday to the federal government, another potentially exciting wrinkle of this welcome development stands out to us-- albeit one that originates from the context of healthy skepticism:

Theo Spencer, senior project manager at the Natural Resources Defense Council's Climate Center...said he believes some states within the partnership could have a tougher time meeting the new regional goal than others.

"In states like Arizona, this is going to be tough, because as I understand it, this is slightly more aggressive than that state's own reduction goals," Spencer said. "In fact, they may have the toughest row to hoe than any of the states because their (population) growth is tremendous and that will impact their emissions."

Spencer, of course, is dead right about the impact of population growth and potential sprawl. And that's why, even though we've managed to go more than 24 hours without talking about the California sprawl lawsuits, we're breaking our silence now to make a novel suggestion.

Jerry Brown is, by all accounts, a busy guy even after settling with San Bernardino-- preparing to defend the state's landmark emissions standards in court, looking for other development projects to put pressure on, and evidently weighing a run for Governor rooted largely in this issue. And we're well aware that a unique convergence of California's long-standing and recent environmental laws makes Brown's particular actions possible.

Nevertheless, it might do some good if he could find time to sit down with colleagues fromthe other Western states and talk a little smart growth planning...

350 Million Metric Tons

That's the amount of greenhouse gas emissions that will be cut over the next 13 years by the members of the Western Climate Initiative.  The WCI is a regional cap and trade program, similar to the Northeast's Regional Greenhouse Gas Initiative (RGGI), but more ambitious.  While RGGI is developing a cap and trade program for power plant emissions, WCI has an "any-which way you can" approach, looking to reduce emissions from a range of sources according to this story in the L.A. Times.  More coverage is available from the San Francisco Chronicle, Arizona Daily Star, Deseret Morning News, and the Tacoma News Tribune.

The cuts will bring emissions to 15 percent below 2005 levels by 2020.  Green Car Congress has more technical details.

This is yet another instance of the powerful politics of global warming.  States recognize that the federal government should take the lead, but they aren't waiting.  As Margot Roosevelt reports in the L.A. Times: 

California officials took pointed aim at the Bush administration's refusal to enact a national program to cut greenhouse gas emissions. "The federal government needs to step up to the plate, but the states aren't waiting," said Linda Adams, California's secretary for Environmental Protection. "Ideally, we would have a cap at the federal level."

...White House spokeswoman Dana Perino said that the charges of federal inaction are "false" and that Bush is "supportive of actions by the states and respects the role governors play."

If the President is so supportive of state action, why is he content with EPA foot-dragging on California's clean car law waiver?  More broadly, if he really wants to support the states, he'll listen to what state officials and governors are saying, and get behind a serious federal greenhouse gas reduction program.   

California v. San Bernardino Co. Lawsuit Settled

Yesterday, the state of California and San Bernardino County settled the lawsuit alleging that the County didn't take global warming pollution into account when it drafted its new growth plan.  The L.A. Times has the story. 

[California Attorney General Jerry] Brown said that the settlement with San Bernardino County, which is expected to grow by 500,000 people by 2030, "sets the pace for how local government can adopt powerful measures to combat oil dependency and climate disruption."

County officials expressed relief that their long-term growth plan, adopted in March, would remain in effect under the settlement, although it would be amended to include global warming provisions by early 2010.

A copy of the settlement is available here.  Various environmental groups will continue their suit against the County.

Republican state senators had cited the lawsuit as one of the reasons they were holding up the state's budget.  But the L.A. Times reports that, "In a compromise Tuesday, lawmakers agreed that by 2010, new rules would be adopted spelling out how to mitigate the greenhouse gas emissions of projects covered by the law."  The law in question is the the California Environmental Quality Act, which Brown had argued required local governments to take steps to reduce greenhouse gas emissions in their planning process.  These rules could be the most powerful and lasting outcome of the Attorney General's efforts to link land use and global warming.

According to the Sacramento Bee, Brown now has his eye on a 14,000 home development in Placer. The story quotes Brown as telling his staff of attorneys, "I want them really thinking about how to shape the land use to reduce oil dependency and greenhouse gases."