Warming Law

Federal Judge: Interior Must Grin and (Polar) Bear It

Reuters is reporting that the Bush administration has been ordered to rule whether polar bears are a threatened species under the Endangered Species Act, with global warming impacts as the major factor, by May 15:

U.S. District Judge Claudia Wilken in Oakland, California, ruled in favor of the plaintiffs -- the Natural Resources Defense Council, the Center for Biological Diversity and Greenpeace -- finding the U.S. government broke the law by missing the deadline for a polar bear decision by four months.

The Interior Department, which has responsibility for the decision, was supposed to issue a decision in January but postponed that for a month. Most recently, it asked for a delay until June 30 so its lawyers could finish reviewing and revising the decision.

Wilken denied this request.

"Defendants offer no specific facts that would justify the existing delay, much less further delay," she said.

We've previously covered the polar bear situation, as well as the Bush administration's more recent hyperbolic claims about the Endangered Species Act-- perhaps they saw this ruling coming down the pike? At any rate, the general thrust of the Interior Department's overarching position here should, sadly, be familiar to readers by now:

Interior Department officials have acknowledged that the science on the polar bear's future is not in doubt but have said that any plan to remove the threat to the animals' existence would be complicated, since climate change is a global phenomenon rather than a particular limited area with a specific problem.

Kansas Court to Coal Industry: Check Back Later

This week, Kansas' state legislature has returned to finish its 2008 session, and the main topic-- surprise, surprise-- is coal. Supporters of Sunflower Electric's proposed plants-- having previuosly failed to override Governor Kathleen Sebelius' veto of a bill that would allow the plants and drastically curtail state officials' authority under state law to consider global warming impacts-- are floating another "compromise proposal" to build smaller plants and couple them with renewable energy provisions. The Kansas City Star also reports that while Governor Sebelius has noted that the proposal essentially differs little from those she has vetoed, at least one key swing vote might be amenable to industry's arguments.

This legislative wheeling and dealing is only more important in wake of the Kansas Supreme Court's decision last week to put Sunflower's lawsuit against the state on the backburner, pending the outcome of the company's appeals to state regulators and to a lower state court. As neither process has moved along significantly, the legislature's actions continue to be Sunflower's last chance to go forward.

And overturning state Environment and Health Secretary Roderick Bremby's ruling, which relied on the Supreme Court's Mass. v. EPA ruling and drew a parallel with the federal Clean Air Act, would certainly be a significant shift in law. Karl Brooks, a legal scholar and historian specializing in administrative law, made that cogent argument clear in a recent Wichita Eagle op-ed reposted by the Climate and Energy Project. Brooks delineates how legislative intervention would, in a strong sense, overturn the existing balance of power:

Kansas politicians of both parties have worked with Kansas attorneys to build a model administrative-law system that balances public opinion, expert enforcement and impartial justice. Sunflower’s special-interest bills erode this well-settled bipartisan balance by giving one branch of government — the Legislature — more authority.

Sunflower’s coal plant bills would interfere with the orderly enforcement of the Air Quality Act by the Kansas Department of Health and Environment and the attorney general.

Sunflower’s bills would interfere with the impartial administration of justice by short-circuiting numerous court cases testing KDHE’s interpretation of the federal Clean Air Act.

Arnold to Bush: Another Lawsuit Looms

Reaction to the Department of Transportation's Earth Day proposal of fuel economy rules, claiming to preempt state auto emissions standards, has continued to be swift and categorical. Governor Arnold Schwarzenegger, joining with 11 other governors, has petitioned the White House to reconsider before the rules become final-- adding a clear legal threat at the end:

NHTSA has no authority to preempt states from regulating greenhouse gases.  Congress and two federal district courts have rejected NHTSA's claim to such authority.  Furthermore, this attack completely undermines the cooperative federalism principles embodied in the Clean Air Act, and is an end run around 40 years of precedent under that law.

Our states intend to comment on the proposed rulemaking and, if necessary, will sue NHTSA, just as California and other states have sued the U.S. Environmental Protection Agency, to ensure that states retain the right to reduce global climate change emissions...

The group also wrote to congressional leaders in both parties, asking them to lobby against rules that clearly "would directly usurp congressional authority and patently subvert the clear intent of Congress." The administration's tacit response to that implication, expressed by DOT spokesman Brian Turmail in the Sacramento Bee, would likely have seconded that argument. Mere months after the White House threatened to veto the energy bill unless its granted DOT supremacy and preempted the states-- only to back down and sign legislation that clearly maintained California's authority under existing law-- Turmail argues that the burden to act was really on Congress:

"It's our feeling that when Congress declined to include language allowing state-specific fuel economy standards in its current bill, that it indeed wanted to have national fuel economy standards," Turmail said. "From our point of view, these efforts by states would undermine and render moot a national fuel economy standard."

The references to "our feeling" and "our point of view" don't exactly display confidence in the legal certitude of this revisionist history argument. Perhaps DOT will change its mind after all, and put off yet another easily-avoidable lawsuit.

Another Governor Under Fire, and More (Better) News from the States

Busy news day today, so we're bringing you our weekly roundup of important state news a day early this week! We start in Arizona, where yet another governor is defending her executive leadership on climate change against industry allies in the legislature.

--Arizona Governor Janet Napolitano last year ordered state regulators to draft and implement auto emissions rules approximating California's landmark law; they have obliged and are still moving forward amidst the fallout from EPA's waiver denial, which state AG Terry Goddard is helping challenge in court. Now, the State Senate has belatedly stepped in to demand a role in the process, passing a bill that would stop environmental officials from implementing the rules. Napolitano will likely veto that proposal, though she has taken pains to stress her desire to work with legislators on comprehensive global warming legislation.

--On the other hand, Florida Governor Charlie Crist is experiencing smoother sailing than expected with his efforts to pass a comprehensive climate change bill. Crist, like Napolitano, had previously ordered state officials to work toward adopting California's clean-cars program.

--In our most recent post on the Kansas coal plant battle, we took note of coal companies' historic bad luck in trying to build a flurry of new plants before costs become too high and/or long-overdue federal regulation of CO2 kicks in. Nevertheless, as Sierra Club head honcho Carl Pope reports from negotiations over the Western Climate Initiative, at least one CEO hadn't gotten the memo as lobbied for weakening that regional compact.

--And last, yet certainly not least (though most of you have probably read about it by now), yesterday brought news that atomospheric levels of CO2 and methane rose sharply in 2007. Joe Romm has more over at Climate Progress, arguing passionately that "the time to act was yesterday."   

DC Circuit Tells EPA It Means Business

While EPA Administrator Stephen Johnson contemplates an imminent congressional deadline for avoiding potential contempt proceedings, he also may want to give thought to another new deadline stemming from his intransigent response to Mass. v. EPA, this one imposed by the DC Circuit Court of Appeals.

Earlier this month, on the one-year anniversary of the Supreme Court's ruling, Massachusetts and the other plaintiffs asked the DC Circuit for a writ of mandamus that would force the EPA to issue its unreasonably-delayed endangerment finding within 60 days. Last Friday, the court issued its first direct response to that filing, ordering EPA to formally respond to the petition within 20 days.

This order should not be read as a tea leaf about the court's ultimate ruling on this matter. But the fact that the DC Circuit is expediting the case before Massachusetts could formally request it-- instead doing so "on the court's own motion"-- indicates that it's at least giving serious consideration to the petitioners' request.

An Offer He Can't Refuse

As the Wonk Room points out, yesterday's UCS survey of EPA scientists has reignited passionate calls for embattled administrator Stephen Johnson to resign. Today, Rep. Ed Markey (D-MA), formally reacting to EPA's failure to cooperate with a congressional subpoena, is giving Johnson a chance to avoid a legal clash between Congress and the Executive Branch. Not taking the deal ASAP, however, is sure to escalate Johnson's troubles.

EPA is refusing to hand over documents such as the endangerment finding for CO2 emissions that it prepared last year in response to the Supreme Court's Massachusetts v. EPA mandate-- only to improperly shelve it and begin a new regulatory process. In the press release accompanying his letter to EPA, Markey reasserts congressional prerogatives, and outright rejects the EPA's excuses and its proposed compromise for making the documents availaable. His counter-proposal:

Chairman Markey has proposed that EPA will provide the committee with the requested global warming documents immediately, but that the committee will not reveal any information included in the documents until either the EPA releases its upcoming Advanced Notice of Proposed Rulemaking (ANPR) on global warming emissions from motor vehicles and other sources of these emissions that are regulated under the Clean Air Act, or June 21, 2008, whichever is earlier.

In a response last week, the EPA said it would not be willing to allow the committee to review the documents until after the earlier of the date on which the agency releases its ANPR , or June 21, 2008. The EPA did not even commit to allowing the committee to claim possession of the documents, but nevertheless requested that the committee withdraw its subpoena before the documents were even made available for review. The EPA has not claimed executive privilege on these documents, but instead, according to the letter from Chairman Markey, has invented “a new claim of ‘chilling effects’ on the administrative process—a basis that I am not aware has ever been recognized by any Committee of Congress as lawful grounds to withhold documents within the purview of a Committee’s inquiry.”

“At this point, Administrator Johnson and the lawyers at EPA are throwing any argument they can think of against the wall, hoping one will stick,” said Chairman Markey. “None of their arguments have yet had any traction -- or legal basis, for that matter -- and therefore they must hand over these important documents immediately.”

Markey also makes crystal clear the consequences of not taking his deal, saying that he shares Johnson's "interest in resolving this matter without a vote of contempt." He has given EPA until 6 PM on April 25-- that's tomorrow night-- to respond, adding that "otherwise, the committee is prepared to proceed with all its legal rights."

On Earth Day, Sebelius Draws an Even Clearer Line In the Atmosphere

We've got two important items about the ongoing Kansas coal throwdown to pass along to readers, courtesy of the Land Institute's climate and energy blog. The first article nicely summarizes how Mass. v. EPA not only galvanized state officials to apply the Court's logic to state anti-pollution laws, but also helped mobilize the public opinion and grassroots activism that have encouraged and sustained Governor Kathleen Sebelius' efforts to stand up to intense political pressure.

The second item reveals that Sebelius is doing more than simply not backing down in the face of legislation that would overturn her decision and tether state action to currently-MIA federal regulations. Speaking at an Earth Day event, Lt. Governor Mark Parkinson revealed that even if the coal industry's legislative allies somehow find the votes to override her, that won't be the end of their legal battle:

"We're certainly going to evaluate all of our options," Parkinson said. "I assure you, there are multiple options, and if Sunflower's out there telling people that all they need to do is get this veto overridden and the plants will be built, and if they believe that, they're sadly mistaken."

[...]

Later, Sebelius spokeswoman Nicole Corcoran was more conciliatory than Parkinson. She said the governor hopes her vetoes will be sustained and is still working toward a compromise.

"But we recognize that there are numerous other barriers to the plant projects," she said. "Litigation is likely, and there is real financing uncertainty with the increased costs of the new coal plants."

Essentially, Parkinson and Sebelius are arguing that further legislative efforts to overturn her next veto would simply be a waste of time and energy. Additional legal arguments over the plants (industry has already challenged the permit denial before the Kansas Supreme Court) might drag out until the Bush administration leaves office and EPA finally is able to follow the U.S. Supreme Court's mandate.

Meanwhile, as Grist pointed out again in its annual Earth Day superlatives list (coal is declared "Year's Biggest Loser"), CO2-emitting coal plants have had a bad year ever since Mass. v. EPA, on account of both rising financial barriers and the growing inevitability of regulation.

EPA Scientists: Don't Tread On Us

Today, the Union of Concerned Scientists (UCS) has released a detailed survey of nearly 1,600 EPA scientists, the end product of an investigation-- similar to what it has conducted for seven other agencies-- of scientific manipulation by political appointees. UCS found that approximately 60 percent of the scientists "said they had personally experienced at least one instance of political interference in their work over the last five years." More troubling, from our perspective, were reports such as the following:

"[The Office of Management and Budget (OMB)] and the White House have, in some cases, compromised the integrity of EPA rules and policies; their influence, largely hidden from the public and driven by industry lobbying, has decreased the stringency of proposed regulations for non-scientific, political reasons," said a scientist from one of the agency's regional offices. "Because the real reasons can't be stated, the regulations contain a scientific rationale with little or no merit."

Now, on a purely legal level, politicized decision-making is potentially disturbing but not intrinsically improper, and pressure from OMB has long been a source of internal EPA consternation; UCS notes this much in pegging this report to a pre-existing call for stronger legislative action against the politicization of science. Rep. Henry Waxman (D-CA) will surely continue that push when he takes on embattled EPA head Stephen Johnson at an oversight hearing next month.

But aside from the disturbing frequency and scope documented by this and other investigations of the Bush administration, our main concern remains that in many key instances, EPA political staff and other administration officials have intervened not only in contravention of scientists, but in contravention of existing law.

The intrinsic problem with the EPA's most controversial global warming decisions isn't just that they were politicized, overruled staff and the normal decision-making process, and destroyed agency morale. It's that in these cases, the statute (not to mention the U.S. Supreme Court) is clear that they had no choice but to follow, or otherwise rebut, the clear scientific and legal evidence calling for strong action.

EPA spokesman Jonathan Shradar condescendingly told the Associated Press that the report simply reflected the "passion" that agency scientists brought to their work. We agree-- agency scientists do evidently have great passion for doing their legal and professional duty to follow the science in these cases. Their boss-- and those pulling his strings influencing his decisions from elsewhere in the Executive Branch--could stand to learn a thing or two from their example.    

For Earth Day, Bush Buys California a Trojan Horse

Yesterday, the National Highway Transportation Safety Administration (NHTSA) released its 417-page "Notice of Proposed Rulemaking" for implementing the new CAFE standards that Congress enacted late last year. The document was initially greeted with cautious praise, as it proposes a sharper increase than expected in the short term, between 2011 and 2015 (keep in mind that this is a not a final regulation). But California Attorney General Jerry Brown notes-- as we predicted would happen last week-- that the document errantly tries to bolster the administration's stance against California's still-more-aggressive tailpipe emissions law, and ignores language in Mass. v. EPA that rejected NHTSA's purported supremacy over the states:

Today’s vehicle standard, an increase to 31.6 miles per gallon by 2015, falls short of state efforts which curb greenhouse gas emissions directly and are estimated to be equivalent to 36 miles per gallon by 2016.

The Energy Independence and Security Act (EISA) required the Bush Administration to increase gas mileage standards. But today’s regulations, buried on page 378, there is an attempt--in violation of law--to ignore the Supreme Court’s ruling in Massachusetts v. EPA and two district court opinions which affirm that gas mileage standards are separate from state greenhouse gas regulations.

Today’s regulations purport to preempt "any state regulation regulating tailpipe carbon dioxide emissions from automobiles...” This violates legal precedent which clearly established that pollution emissions from cars, including greenhouse gases, are regulated by the U.S. Environmental Protection Agency and the State of California, not NHTSA.

NRDC's Roland Hwang similarly tells the San Francisco Chronicle that this language is an attempt to bolster the industry's case, while industry spinsters deny any coordination with the Bush administration. The Chronicle also sheds some more light on NHTSA's rationale, and its potential plans to go further in specifying its agreement with the industry's legal position:

In its new document, the Transportation Department said, "We respectfully disagree with the two district court rulings" and noted that an appeal has been filed by automakers.

Agency officials wrote that the new fuel economy standards had increased the conflict between state regulations and federal law. They added: "A conflict between state and federal law arises when compliance with both federal and state regulations is a physical impossibility or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."

The agency said it is considering adding language to its final rule stating that "any state regulation regulating tailpipe carbon dioxide emissions from automobiles is expressly preempted" under federal law.

Emphasis especially added to NHTSA's deliberately broad language about the "full purposes and objectives of Congress," as California lawmakers ensured that December's law would remain neutral on the state's efforts. House Speaker Nancy Pelosi indicates that much in a statement that explicitly mentions "Congress' decision to reject the Administration's position" on preemption.

New CRS Report Analyzes Climate Litigation

Robert Meltz, legislative attorney for the Congressional Research Service, has released his latest report for Congress summarizing the state of climate litigation at (mostly) the federal level. Regular readers will appreciate its depth and thorough objectivity on such issues as standing doctrine in wake of Mass. v. EPA; the common-law nuisance suits that several states (and local governments) have filed against major emitters of CO2; the federal judiciary's trend toward recognizing warming-related claims under the National Environmental Policy Act (NEPA); and the possible implications of covering polar bears and other animals under the Endangered Species Act due to climate-change impacts.

Highly recommended reading, particularly in wake of some of the hyperbole being cast about with regards to some of these exact issues...