Warming Law

Congress vs. Everyone Else on Clean Energy

As per lots of media and online buzz over the last few days, and the latest dispatch from CNN, Congress is nearing a deal on what would essentially be a mini-energy bill that focuses on renewable fuels and on raising CAFE standards for the first time in decades. Hill Heat has been providing comprehensive coverage as details have emerged. Depending on what gets worked out regarding auto emissions, the result could theoretically range from a flawed and incomplete-- but significant-- step forward to an unworkable poison pill.

Judging from the latest reports, it seems that almost all vehicles coming out of Detroit would become subject to a fleetwide average of 35 miles-per-gallon by 2020, but there would an exemption for large "work trucks" and the maintenance of separate standards for cars and trucks. Basically, the infamous "SUV loophole," which the 9th Circuit Court of Appeals recently ruled is the result of an arbitrary and capricious evaluation, would remain in some reduced form, though its actual details and impact remains unclear. Sources close to the negotiations believe that the 9th Circuit's opinion will help pin down regulators from undermining the overall gains in efficiency in any significant way; we'll reserve judgment on this point until we've seen a draft of the proposed legislation.

More fundamentally troubling, and damning of the whole process even though it thankfully stands little chance of being agreed to, is the continued effort by the auto industry and Rep. John Dingell (D-MI) to preempt bolder standards by California and other states, and undermine the Supreme Court's intent in Mass. v. EPA in the process. From Greenwire (subscription only):

Show Us The Way, Santa Fe

Late Wednesday, New Mexico became the thirteenth state to formally implement California's Clean Cars program after two days of hearings by a joint panel of statewide and Albuquerque-area regulators. Green Car Congress has the details on how this came about:

Directed by Governor Richardson and Albuquerque Mayor Chavez, the New Mexico Environment Department and the Albuquerque Environmental Health Department drafted the Clean Cars regulations.

Twenty-three environmental, health, faith, consumer and science groups presented technical testimony in support of the regulations and more than 2,000 members of the public provided written and oral comment at the hearings in support of the program.

The Alliance of Automobile Manufacturers, a trade association representing ten car and truck manufacturers, opposed the regulations.

Kudos to the Sierra Club's David Bookbinder, the Environment New Mexico coalition, and the leading scientific experts who saw this through by literally giving up sleep over the course of 48 grueling hours. As Congress nears agreement on a compromise energy bill, and the EPA weighs both its own clean cars program and California's critical waiver application, New Mexico has sent a loud message for bold and immediate action on a broader scale.   

Good news from Down Under

The Sydney Morning Herald is reporting that Australia's Land and Environment Court, per Justice Peter Biscoe, overturned a decision by the Planning Minister to allow the construction of 285 homes because he failed to consider how the proposed development might be affected by rising sea levels and increased flood risks caused by global warming.

Hat tip to Lora Lucero for sending the article our way.

Exxon's Legal Skeptics

Global warming law is clearly a hot topic, and we here at Warming Law are happy to see other legal organizations, such as LexisNexis, follow us in spotlighting developments in this emerging area.  But a featured post on the new LexisNexis Climate Change website raised our collective eyebrows.

The post chronicles a recent global warmng seminar held in Washington DC, by the law firm Gardere Wynne and Sewell, a Texas-based firm that has represented Exxon, Chevron, and other oil and gas industry clients.  What's surprising is that the seminar apparently focused not on legal developments (which, as readers of this site know, have been pretty bad for Gardere's clients recently), but rather on "the chilling effects of global warming."

You see, according to the good folks at Gardere, the real problem here is not global warming, but rather "a progressive movement [which is] afoot to effect monumental change in the way Americans think." This movement, we're told, has taken on "a religious ferver" and now threatens to "stifle all forms of debate and dissent." And it is being led, in part, by "an organized trial bar" trying "to create massive controversies that involve no proven injuries to any one in particular and result in massive windfalls to contingent fee counsel."  The seminar was designed as a rallying call to "the proponents of individual rights and a free-market system" to "get to the table and make their positions known."

It's remarkable to us that a law firm of Gardere's size and reputation would spout such malarky. First, there is no evidence that "non-green" views are being stifled, it's simply that with each passing day it becomes ever-more-clear that the world's scientic community is right about the need to respond to global warming and the handful of Exxon-funded global warming skeptics are wrong. Second, most proponents of "individual rights and the free-market system" recognize that no individual has the right to impose costs on his neighbors and the broader community and that the free-market does a poor job of regulating interstate and international externalities -- pollution that crosses state and national lines.

Finally, as to the claim that developments in global warming law are the product of an "organized trial bar," we note that every global warming case we know of has been either brought by industry (preemption cases) or by a coalition of states, local governments and environmental organizations (cases like Mass v. EPA, which seek to force a federal response). We're not aware of any global warming litigation brought by contingent fee trial lawyers. 

If there are indeed "massive windfalls" to be had in bringing suits to reduce global warming pollution, the folks at Gardere should let us know (we could certainly find some friends in the legal profession to pursue them). Until then, we'd urge the Gardere to focus a bit more on the law and less on political screeds. We can only hope (in the spirit that even Exxon deserves good counsel) that they are better at the former than they are at the latter. 

Yes. We. Can.

As numerous articles on this very blog attest, we're growing increasingly frustrated with the longevity industry-based distortions claiming that bold measures to deal with global warming will result in financial disaster. To be sure, some of the dizzying spin being launched is so blatantly false as to be quickly discredited, and lawmakers and judges alike are increasingly knocking down broader claims. Still, while a lot of great positive statistics and effective debunkings are out there, the challenge of making a broader case that truly sticks has nevertheless loomed.

Enter Silicon Valley venture capitalist Noel Perry, who founded a non-partisan, non-profit group called Next 10 to regularly assess California's progress toward the twin goals of emissions reductions and growing a clean-energy economy. Stacy Feldman of SolveClimate.com runs down the highlights of the resulting California Green Innovation Index, while Mindy Lubber of the sustainable-investment coalition Ceres summarizes the impact (emphasis added):

With all the green talk today, the report gives something scientists and policy makers clamor for: Long term data. The Golden State began its energy efficient and green innovation efforts in the 1970s, far earlier than anywhere else in the country. That has allowed a rare glimpse into a reduced carbon future, and is sealing California's reputation as a leader in innovation...

As economists and policy makers debate climate change, the resistance is often accompanied by soundbites that the economy will suffer or the fixes are too expensive. But the California story turns this logic on its head....

Even the largest obstacle that the report discusses strikes us not only as a challenge worth meeting, but one that officials and planners in California and elsewhere are already working on: 

Of course, the state still has some challenges. Californians may drive less per capita than any other state, but they still drive a heck of a lot. Given the population growth of the state, the report notes that the next wave of innovation must be larger, faster and more powerful than the last to drive greenhouse emissions below 1990 levels.

Sustainable growth planning will be critical for continuing California's long-term commitment to clean energy, and modeling the path that the nation as a whole will need to take. Public officials who latch onto this issue aren't merely finding a new way of promoting themselves as climate campaigners; rather, they're on the cutting edge of the kind of "green innovation" that we're seeing more and more is both necessary and profitable. 

Prius Owners Revolt?

An Internet-based group of Prius owners has gotten wind of some of the public pressure surrounding Toyota's role in trying to thwart state-level clean emissions programs and weaken federal energy legislation.

They're not too pleased about it:

It’s time for Toyota to pull out of the AAM, drop the lawsuit in California and support increases in MPG. Enough of the hypocrisy.

California Nuisance Suit: Round Two

After a bit of wrangling with the 9th Circuit's docket, Warming Law is able to report that the state of California has formally appealed its nuisance lawsuit against the auto industry, which was dismissed in October at the district court level by Judge Martin J. Jenkins. The case, California v. General Motors Corp, et. al. (07-16908), is being considered for inclusion in the 9th Circuit's Mediation Program, pursuant to federal and circuit-specific rules; both sides will participate in a settlement assessment conference call on December 11.

Should nothing come of the mediation process-- and seeing as the industry's flat-out refusal to  discuss settlement earlier this year led California Attorney General Jerry Brown to continue pursuing the lawsuit, which was brought by his predecessor, we're highly doubtful of any agreement-- the state's opening brief is due in early February. We'll continue to keep readers posted on any further developments in a case that environmental law expert Pat Parenteau recently referred to as "next on the horizon" in the realm of global warming law.

More States, More Action, More Inevitability

Montana Governor Brian Schweitzer has unveiled his state's formal response to global warming, and its a fairly strong one. Key measures include cutting the state's energy consumption 20 percent in three years; setting an average miles-per-gallon target for the state's vehicle fleet that would make it most efficient in the nation; and joining the Western Climate Initiative, which would align Montana with seven other Western states and two Canadian provinces.

Montana is also pushing forward despite some harrumphs from industry. The Florida Energy Commission has similarly forged ahead with Governor Charlie Crist's recommendations while shrugging off an "independent" analysis (sponsored by the state's Chamber of Commerce) that shows dire economic consequences, tackling head-on precisely what's wrong with that pessimistic picture:

Mike Sole, Secretary of the Florida Department of Environmental Protection, blasted the report. Sole said it drastically inflated carbon costs, undervalued Florida's solar power and biomass capacity and failed to account for future price increases for fossil fuel.

"There seems to be somewhat a bias in the analysis," Sole said. 

Bias in the analysis...hmm, sounds familiar...because it's precisely what the 9th Circuit just declared the Bush administration guilty of by conducting a cost-benefits analysis for CAFE standards that rests solely on industry-friendly factors and numbers.

Ending the Distortions

Climatespin has an excellent overview of a "minor journalism scandal" brewing over the revelation, by a reporter for the Chicago Tribune, that Chicago Sun-Times business editor Dan Miller has been actively promoting a press package sent around by the Exxon-funded, warming-denialist Heartland Institute (his former employer) encouraging journalists to "keep an open mind" on the subject. NRDC's Jon Coifman argues that this is something especially significant, and puts it in the context of the current political and legal climate:

All this is particularly significant given where we are now in the global warming conversation. The Supreme Court ruled this spring that EPA can no longer ignore the problem. Last week, the 9th Circuit Court threw out the administration’s proposed fuel economy rules for light trucks because they did not take into account global warming impacts. At least a dozen states are beginning to regulate CO2 emissions. There are several bipartisan bills now moving through Congress to do the same thing at the federal level, and a growing list of major companies are now calling on Washington to get moving on the question. 

In other words, this is no backwater that Miller waded into. In doing so, he not only crossed the line…he seems to have ignored it entirely.

We'd take Coifman's point a bit further-- this is not only a big deal, but it ought to serve as an object lesson for all journalists writing about global warming to get their facts straight and truly call it down the middle. Warming Law has made something of a sport of noting the many ways in which industry-based actors and their allies engage in media spin that ranges from distorting the law to just plain making it up-- in fact, we've just archived a bevvy of posts dealing with that topic.

All too often, this spin is reported on verbatim, with reporters failing to correct the record or even offer a contrasting view. Even as the legal and regulatory landscape changes and rejects this kind of hyperbole, the press continues to fall victim to pressure to "report both sides" in a way more befitting a court reporter than hard journalism.   

And thus, those who would distort the challenges we face and the solutions to them continue to offer up arguments that are appealing on the surface but factually weak-- not because they don't realize that the ground is shifting away from them, but because they see that they can get away with it and slow things down a bit.   

The Auto Industry's No-Good, Horrible, Very Bad Arguments

Another important aspect of the auto industry's potential setback in U.S. District Court that stands out to us is growing evidence that the industry's case is running out of gas beyond the impact of Massachusetts v. EPA. In presenting their case yesterday, it seems that industry attorneys mostly offered hyperbolic sweeping and defensive-sounding legal arguments (to be sure, an improvement on simply making things up when spining to the public) about the need for preemption and the purported economic disaster that might result from California's regulations:

Although federal law allows California to take a lead role in reducing air pollution, Congress never "intended a single state to have such sweeping authority to unilaterally set national fuel economy policy ... and profoundly affect a vital national industry," said Raymond Ludwiszewski, lawyer for a trade group of international automakers.

[...]

The regulation would mandate more than a 50 percent improvement in fuel economy over the next eight years," said Andrew Clubok, lawyer for the Association of Automobile Manufacturers and other plaintiffs. "It is undisputed that this regulation would lead to job losses."

Deputy Attorney General Marc Melnick replied that Congress has authorized California to adopt more stringent air-pollution standards - with EPA approval - even if one effect is higher gas mileage. 

It's not surprising to see this kind of overreach coming from the automakers even inside the courtroom. During a recent seminar on global warming  litigation (which included CRC's own Doug Kendall) AIAM attorney Charles Haake essentially conceded the weakness of his clients' foreign-policy preemption arugment (which claims that state standards undercut the Bush administration's foreign policy on climate change).