Warming Law

Beyond Brandeis

Anyone interested in a riveting behind-the-scenes look at how ground-breaking policy comes about ought to look at yesterday's St. Petersburg Times, where staff writer David Adams delves into the background and implications surrounding Governor Charlie Crist's executive orders adopting California's emissions standards. In examining efforts by officials in California and Great Britain, the piece notes the importance of discussions between Governor Schwarzenegger and then-British Prime Minister Tony Blair, who came to the shared conclusion that California acting alone would not have a proper impact and immediately began encouraging Florida and other states.

More importantly, Adams brings to light the key motivational and strategic factor of how Florida's action might reverberate beyond its own climate-change-endangered shores:

"I see Florida as having an especially important role," [Climate Group U.S. Director Chris] Walker said. "Florida has the growth pattern of a developing country," he added, noting its population growth of 23.5 percent over the last decade. "Places like China and India can identify with that.

"The question is how do you decouple carbon emissions from economic growth," Walker said. "If Florida gets it right, it's the ultimate exemplar of where China, India and the United States could meet and agree."

[...]

"As they China and India look at the map and see more and more states moving, I think they will get the impression that there is a sense of inevitability to it," said John Ashton, special representative on climate change for the British foreign ministry.

While numerous other factors obviously will inform the actions of rising powers like China and India, Walker and Ashton make a critical point. American states' status as "laboratories of democracy" has long served to push the nation as a whole forward, and the growing movement to combat global warming is no exception. The idea that in dealing with truly global challenges such as this one, local leaders can serve the same purpose on a broader scale (and strengthen our international standing in the process), is all the more reason to maintain the kind of robust federalist system that these leaders have utilized.

The Chinatown Conundrum

This week's New York Times Magazine featured a fascinating cover story by Jon Gertner calling attention to the burgeoning problems that accompany fears of a growing water crisis in Western states. One running theme in the article is the impact that climate change has in exacerbating the situation:

This coming spring, the United Nations’ Intergovernmental Panel on Climate Change will issue a report identifying areas of the world most at risk of droughts and floods as the earth warms...[which] will note that many problem zones are located within the United States, including California (where the Sierra Nevada snowpack is threatened) and the Colorado River basin. These assessments follow on the heels of a number of recent studies that analyze mountain snowpack and future Colorado River flows. Almost without exception, recent climate models envision reductions that range from the modest to the catastrophic by the second half of this century. One study in particular, by Martin Hoerling and Jon Eischeid, suggests the region is already “past peak water,” a milestone that means the river’s water supply will now forever trend downward.

Much of the article deals with the efforts by water management officials in the Denver-area city of Aurora, Colorado. While that state is currently moving toward adopting California's clean emissions standards (an effort that is increasingly gaining local support) it is worth highlighting, in light of the growing urgency attached to the issue, that key state leaders have weighted in to help preserve that option:

Colorado House Speaker Andrew Romanoff, D-Denver, and state Senate President Joan Fitz-Gerald, D-Jefferson County, supported California’s application for a waiver from federal standards in written testimony they submitted to EPA administrator Stephen Johnson last May.

“While Colorado has yet to pass a similar Clean Cars program,” Romanoff wrote, “we want to protect our right to set strong air quality standards if we choose.”

Hearing Monday in California Cars Case

UPDATE, Monday 10/22, 11:45 AM: Well, perhaps it wasn't that busy of a weekend, as an order by Judge Ishii issued on October 16-- but not available until this weekend-- postponed today's hearing until November 19 so that he can fully consider additional materials submitted by the plaintiffs the previous week. Additional analysis will be forthcoming...

It will be a busy afternoon Monday in court in Fresno, as federal Judge Anthony Ishii of the Eastern District of California hears arguments on important pending motions in a challenge brought by the auto industry to California's greenhouse gas auto emissions law.   Judge Ishii will have to sort through hundreds of pages of briefing (some of which we've linked to here) and a rift that has developed between the industry plaintiffs. 

The position of the State of California and the environmental defendants is simple: after Mass. v. EPA, if not before, industry has no case.  In legalese, they argue there are "no triable issue for this Court " and that "judgment should be entered in Defendants' favor."  Defendant's argue that Judge Ishii should follow the comprehensive legal analysis of Vermont Judge William Sessions and dismiss.

The plaintiff's are having a harder time figuring out what they want.  The original plaintiffs, led by Central Valley Chrysler-Jeep, have simply opposed the Defendants' motion for judgment and seek a trial on their claims.  Plaintiff-Intervenor, The Association of International Automobile Manufacturers, has taken a more agressive posture, arguing that they are entitled to summary judgment without a trial.

Looming over these procedings of course, is the EPA's decision on California's waiver request and the lawsuit promised by California Governor Arnold Schwartznegger to force EPA's hand, which also could be filed on Monday.  It's looking like a busy weekend for lawyers in the California Attorney General's office.   

Say Hello To California's Little Friends...

As Monday's deadline for EPA to act on California's waiver request looms and the state prepares for a court battle, Washington State Governor Christine Gregoire has announced that the Golden State won't be alone (h/t to Lisa Stiffler at Dateline Earth for the initial scoop):

OLYMPIA – Governor Chris Gregoire today announced that Washington will join California in an expected lawsuit against the federal government to allow the state, along with 11 other states, to require that all new cars sold in Washington be “clean cars.”

“We can’t afford any more delay in taking action,” said Governor Gregoire.

That number of supporters just might increase, as Florida Governor Charlie Crist indicated this summer that he might join in California's lawsuit. Meanwhile, this morning's San Jose Mercury News has a great overview of the multiple pressures that the EPA has resisted thus far, as well as an intriguing tidbit on one possible strategy should the waiver ultimately become the first-ever California request to be denied:

Two staffers on Capitol Hill, who spoke on condition of anonymity, said Democratic members were looking at the possibility of getting Congress to override an unfavorable EPA decision, making it a global-warming and states'-rights test case.

Washington State Rumblings

Greenwire (subscription required) has a great analysis circulating on Seattle City Councilman Greg Steinbrueck's proposal regarding the greenhouse gas emissions of new developments. The ordinance, which the Council will debate on November 28, would indeed be a novel approach:

John Norquist-- president of the Congress for the New Urbanism, a Chicago-based group that supports compact, urban development-- said Seattle would become the first city to require road and building developers to go the additional step of mitigating their emissions.

The article also notes that King County Executive Ron Sims, who recently issued an executive order requiring large road and building projects to measure climate impacts in their review process, may soon also add on an express requirement for GHG mitigation. Regardless, it appears that Seattle and its surrounding county might well end up leading the entire state along this bold path:

Meanwhile, Governor Gregoire’s task force – called the Climate Advisory Team or “CAT” – is considering recommending the adoption of similar state-wide requirements under the State Environmental Policy Act (“SEPA”)...Two of [CAT's] working groups are considering a number of “high priority” options modeled after King County’s approach, as well as initiatives undertaken in California and elsewhere. The options currently under review by the CAT can be reviewed here.

One possibility being discussed is to require assessments and potential mitigation for all private and public projects subject to SEPA review – regardless of whether they require approval at the local, county, or state level. A final slate of recommendations will be adopted by the CAT and presented to Governor Gregoire in January 2008.

Congress Gets It

Today, Senators Joseph Lieberman (I-CT) and John Warner (R-VA) introduced the America's Climate Security Protection Act, a bipartisan bill establishing a cap-and-trade system for limiting carbon emissions. While reaction to the full bill (not yet available online) has been mixed, we've obtained legislative analysis produced by the Senators' staff that indicates at least one part of it will encourage states currently looking to fight global warming through their own, more stringent measures:

The fifth section makes clear that states are not preempted from enacting and enforcing greenhouse gas emissions reduction requirements that are at least as stringent as the federal ones.

HillHeat also notes, in comparison with principles for a worthy bill laid out yesterday by Senators Bernie Sanders (I-VT) and Frank Lautenberg (D-NJ), that Title III of the bill goes beyond merely waiving preemption and enshrining a federal-state partnership:

• ENCOURAGE STATE LEADERSHIP: The bill explicitly rewards states with stricter standards than the federal cap.

While it remains up for debate whether or not this bill truly fills the vacuum of federal inaction that has motivated state action thus far-- and continues to do so in traditionally less "green" states like Virginia and Utah-- its embrace of the same federalist spirit that has moved the debate to this point is a breath of fresh air, particularly in wake of recent efforts by other members of Congress to preempt state action. The auto companies and the current executive branch continue to insist on litigation and delay, but the Senators involved in crafting this debate have now further highlighted their anachronistic position as one that is rejected by bipartisan majorities.

Crunch Time for EPA

Roughly four months ago, California Governor Arnold Schwarzenegger told the EPA that if his state's waiver application to start enforcing stricter tailpipe emissions standards wasn't ruled on by October 22 of this year, he'd be back...to serve the federal agency with a lawsuit.

That deadline is Monday. While EPA has moved up its timetable to promise a ruling by the end of this year (as opposed to the end of next year, as it initially proposed), California elected officials continue to prod the agency to act sooner rather than later, and past comments from Schwarzenegger indicate that EPA's timetable remains unsatisfactory. The Washington Post also forcefully weighed in on the matter last weekend, giving voice to the state officials' growing pessimism about the waiver request in light of revelations about behind-the-scenes lobbying within the Bush administration, and raising a great closing point regarding the implications of this all:

[The administration's lobbying] is troubling on two counts. First, it sullies the objectivity of the EPA's review of the California waiver request. Second, and more importantly, the revelation undermines President Bush's message at a two-day summit last week on climate change, at which he said, "Our guiding principle is clear: We must lead the world to produce fewer greenhouse gas emissions." Granting California its waiver would help his statement ring true.

We'll be writing more about the waiver application over the next several days, and laying out some of the legal scenarios that might ensue over the next several months. But for now, we'll note that if some of the members of Congress (including Speaker Nancy Pelosi) weighing in here are to be read properly, a longer-term fight might well be in the works (emphasis added):

California Governor Arnold Schwarzenegger and State Attorney General Jerry Brown have made clear that if the EPA fails to follow the law and grant this waiver, the state will take this matter to federal court. It is our hope that a lengthy court battle can be avoided, especially given the importance of this rule in addressing our nation’s greenhouse gas emissions.

 

O (Global Warming) Pioneers!

Astute climate writer Robert McClure of the Seattle Post-Intelligencer is reporting that a Seattle city councilman has introduced a novel (and potentially ground-breaking) proposal to have the city take climate-change impacts into account whenever it reviews a development proposal:

Today Seattle City Council member Peter Steinbrueck proposed what he says is first-of-its-kind-in-the-nation legislation that would order city departments doing development reviews to take into account greenhouse gas production of the proposed project.

[...]

Steinbrueck's press release explains that while the city has agreed to the U.S. Conference of Mayors' plan to reduce greenhouse gas emissions in line with the Kyoto Protocol, meaning a 7 percent cut below 1990 levels by -- youch! -- 2012. But until now, he says, Seattle "has not had any clear policy directives to require new projects in Seattle to assess their emissions and take steps to mitigate those impacts."

My friend Tim Wheeler, who covers growth and development for the Baltimore Sun, says he's aware that Santa Barbara just agreed under pressure from California AG Jerry Brown to incorporate greenhouse gas emissions as part of its master plan, but Seattle may actually be the first to apply this priniciple to actual developments. Audrey Cooper at the San Francisco Chronicle says something similar to Steinbrueck's idea is under consideration there.

While we're similarly looking into things here, thus far, it does appear that the land use planning process is a thoroughly under-utilized tool for achieving reductions in greenhouse gases, although though similar policies have been undertaken by King County (as McClure notes) and by the state of Massachusetts. And regular readers of Warming Law will recall that state environmental policy law has been utilized by California AG Jerry Brown (problematic allegations of making up the law notwithstanding) to extract settlements on the master plan of San Bernardino County and the development of a new ConocoPhillips refinery. We also feel obliged to note that Steinbruck's news release asserts that the Supreme Court's ruling in Mass v. EPA helped pave the way for his proposal.

If readers are aware of any other similar policies (or proposals) throughout the nation, please feel free to let us know-- this is an issue that we've grown quite interested in lately, and will continue to track closely for some time.

Prayer for More Than A Prius

In honor of Blog Action Day, which is focusing energy and attention worldwide on environmental issues...well, we don't have a witty riposte like David Roberts, so we're just going to get right to it and focus on the "action" part of this motif.

In particular, we'd like to return the spotlight to the Toyota Motor Corporation and its frustrating embrance of efforts to stall the advent of more fuel-efficient cars in the U.S. market-- particularly in the realm of litigation. To be clear, our sense of this is similar to Prius owner Laurie David, who vents her hopes that Toyota will stop standing in the way of progress and hold true to its otherwise-deserved "green" image.

Thus we're even more pleased to learn today (through the comments accompanying David's piece) that the coalition asking the company to get with the program is now not just limited to governors, a prescient federal judge in Vermont, actors, pundits like Thomas Friedman, and environmental groups, but also includes religious groups. California Interfaith Power and Light has been encouraging people to write Toyota and ask it to put the kibosh on its involvement in the industry's preemption lawsuit against their state.

Today is supposed to be about making a difference. And Toyota (or any other AAM member, for that matter) would make a world of difference, in terms of clearning the way for a dynamic state-federal-private sector partnership on fighting climate change, if it were to heed the call to respect the wisdom of Judge Sessions' opinion and stop standing in the way of state emissions laws.

Riegel Arguments Set

Via SCOTUSBlog, we've learned that The Supreme Court will hear arguments in the key preemption case of Riegel v. Medtronic, Inc. on Tuesday, December 4th.

While the case will be overshadowed for many commentators by the Court's decision to schedule the consolidated cases involving Guantanamo Bay detainees-- Boumediene v. Bush and Al Odah v. U.S.-- for the following day, we're hopeful that the importance of the Riegel arguments to efforts to fight global warming will get its due dilligence as well.