Wednesday, December 7, 2011

A little news about Durban

Every year, as part of the UNFCCC, signatory states meet someplace in the world to spend two weeks trying to come up with an agreement dealing with climate change. It was out of these proceeding that the Kyoto Protocol was developed and the much maligned Copenhagen Accords were "agreed" upon. Well, the time is upon the world again to think about how to fix climate change for a couple weeks before everyone goes back to their daily lives. As usual, prospects are limited.

Here is a note about the COP17 climate talks going on in Durban right now from a law professor there with a small island delegation.

Things have been rather slow here with the usual posturing about to end -- we hope. Delegations are currently working with a 138-page "amalgamation" text that includes pretty much everything different negotiating blocs have proposed. Quite obviously, this is not a useful negotiating text. As you might expect, little headway is being made on mitigation, but we are hopeful that work on the Green Climate Fund will take significant steps forward.

In the meantime, you may want to know about the following 3 documents, which should have brought a sense of urgency to the negotiations, but which have not:

UNEP's 2011 Bridging the Gap reports that current pledges are at best 6 GT CO2 eq short of keeping global average temperatures below 2 degrees Celsius. Its report from last year said pledges were 5 GT short so the gap is growing.

The International Energy Agency reported in World Energy Outlook 2011 Factsheet that 80% of the cumulative CO2 to be emitted worldwide between 2009 and 2035 to keep CO2 concentrations below 450ppm is already “locked-in” with current infrastructure. Unless internationally coordinated action is taken by 2017, "all new infrastructure from then until 2035 would need to be zero-carbon, unless emitting infrastructure is retired before the end of its economic lifetime."

The Stockholm Environment Institute reported that developing country pledges to mitigate greenhouse gas emissions anchored in the Cancun Agreements are actually greater than developed country pledges.
For those who are out-of-the-loop, the Green Climate Fund was one of the few good things that came out of COP15 in Copenhagen. The Copenhagen Accords developed the idea of a Green Climate fund that would be supplied with $100 billion US dollars every year by 2020. No mention was made about who would be responsible for putting in the money or how it would be spent, but some vague language related to the REDD+ program was included. Hopefully this will be hashed out in Durban and the money can start following to the nations that will desperately need the money to adapt to climate change.

We can only hope that substantial progress is made at COP17. The chances are slim if previous COPs are considered, but there is always a chance.

Monday, October 31, 2011

Happy Halloween

Now here is a reason to be scared; today is the Day of Seven Billion. That is, today is approximately the day when the world's human population will reach 7 billion people. In my lifetime, the world population has grown more than 2 billion people. That's pretty scary. Fortunately, some work is being done on this. The United Nations Population Fund is working to build awareness about the challenges associated with this level of human population. Hopefully awareness-building will produce results.

(The pressure such a large human population puts on the environment is the issue discussed on Andrew Revkin's Dot Earth blog. If this interests/concerns you, I highly recommend adding Dot Earth to your news routine.)

Tuesday, October 4, 2011

Apple's China Problem

With Apple's release of the iPhone4S today, it's important to remember that the much-loved company has some serious questions to answer about its operations in China. Alex Wang over at Legal Planet has a great write-up with several links that are worth checking out. According to the update, it looks like pressure might be starting to get somewhere. Let's hope so.

Solyndra: Bankrupting Clean Energy

Currently there is a Congressional hearing looking into the Solyndra loan debacle, [Solyndra is a California based solar energy company who filed bankruptcy this summer after having received $528 million in guaranteed loans from the Dept. of Energy in 2009], but truly it is clean energy investing that is on trial by the Committees’ Republicans. Seemingly as a result of this beating, Senate Energy and Natural Resources Committee Chairman Jeff Bingaman (D-N.M.) announced today that he is scheduling a hearing on U.S. clean energy investments as compared to other countries for the coming weeks. An interesting note on this subject too is that Sen. Bingaman was integral in the existence of the law allowing the DOE to authorize guaranteed loans as he helped develop it. When asked specifically, Sen. Bingaman said he didn’t think that his hearing would touch on the Solyndra bankruptcy (as it is currently being investigated), but he did go on to say that “the Solyndra bankruptcy shouldn’t be used to cut clean-energy investment.”

Well Senator, you should have words with Rep. Cliff Stearns (R-FL), who chairs the energy and commerce subcommittee on oversight and investigations heading the Solyndra investigation. According to NPR, Rep. Stearns was just quoted today as saying "We can't compete with China to make solar panels and wind turbines," and he “doesn't believe in any type of subsidy for industry.” Rep. Stearns words are clearly at odds with Sen. Bingaman's own which is perhaps why Sen Bingaman decided to have his own hearing to determine the future of clean energy investing. Ironically, Rep. Stearns signed the original bill allowing for the DOE to authorize loan guarantees. And for perspective, Rep. Stearns also voted to continue oil subsidies totaling $21 billion just a few months ago which, if you are keeping score at home, is in fact a “subsidy for industry.”

If Rep. Stearns has his way, he will use the Solyndra fiasco to undue all clean energy investments in the future. Attacking the investments by saying, "I think the administration is putting taxpayers' money at risk in areas that are not creating jobs." One rebuttal is from NPR’s Yoki Noguchi: “Solyndra was just one of the clean energy projects and businesses that got loan guarantees from a Department of Energy program that ended Friday. In all, it financed 28 projects. The Energy Department says the projects will create about 17,000 construction and permanent jobs.”

Sunday, October 2, 2011

Dam Republicans

Though not national news, an interesting argument arose from the public comments and hearing for the removal of the Paint Creek Dam in Oakland Township, Michigan. I'll get to the argument in a moment, but first, a little background.

The decision to remove the dam had come after the Clinton River Watershed Council had received a $700,000 federal grant to study the dam’s impact and possibly remove the dam. According to the Patch,

"Because it[, the Clinton River Watershed Council,] had a federal grant, it decided it would be in the best interest to the township to move ahead with the operation at no cost for the purpose of improving the riparian and aquatic habitat[, which includes the only designated trout stream in the county]."
The Patch further explains that supporters claimed removal of the dam and filling of the adjacent 100-year floodplain would improve aquatic and riparian habitat, while those opposing the project were concerned about the project changing historical character of the area.

Now, back to the interesting argument. The Oakland Township Patch reported,

"The dam removal project would be paid for by a grant from the Environmental Protection Agency. Some iexpressed uneasiness about spending money the U.S. government "doesn’t have” and argued that all grants should be refused to help keep the nation’s deficit down. (sic)"
This is an interesting outgrowth of the Congressional Republicans push to cut federal spending on pretty much everything while refusing to consider revenue increases. Interesting why? Because 1) the Council already had access to the funds and 2) it is likely to save the Township money in the long-run.

On 1), the Council had obtained the funding with dam removal in mind as an option. The federal government had already agreed to provide the funding. If the money had not been used, it would have likely been used to fund another project, or perhaps gone to the general fund then been designated to another project. My point here is that the money was going to be used on a project someplace, so it is better that the money be used in a way that was already determined to be a good use of federal funding. It isn't as if the federal government would have used it to pay off the debt and it doesn't have a savings account to put the money in. It has to be spent.

On 2), it seems that some believe that short-term spending should be avoided when it yields long-term benefits. At the very least, it seems pretty typical of spending cut arguments I have seen. I imagine the thought process goes something like this: Should we spend money now to mitigate the damage of future natural disasters? No, we may not have to spend as much money in the future. Should we spend money now to help those who have had their communities devastated by a floods, storms, tornadoes, earthquakes, and wildfires? No, that would prevent the local economies from quickly recovering and it may put some people to work while the economy is stagnant. Should we adamantly fight to keep taxes low for people who have more than enough money? Of course, we need those people to make and keep more money so that they can ... have lots of money.

Larger political issues aside, the emergence of this argument at the local level is a bit disconcerting considering there are a great deal of climate adaptation projects that are needed to help the country deal with the problems associated with ever-escalating climate change.

Tuesday, September 27, 2011

Anti-EPA Fervor Hits Hilarious Boiling Point

Dan Berman over at Politico does a completely un-Politico thing and steps up off the sideline to belt a Daily Caller gaffe out of the Beltway ballpark.  The Daily Caller is Tucker Carlson's joke of a news website that, in its less than two years on the scene, has developed a solid reputation for what can only be described as anti-environmental alarmism.  Never missing a chance to toe the industry line, the website often runs attacks on environmental policy and, in particular, the Environmental Protection Agency.  Well, it looks like this time the Caller may have gone a little too far:
It’s a story too good to be true for the anti-Obama and anti-regulation crowd: The hated Environmental Protection Agency is looking to spend $21 billion per year to hire an additional 230,000 people to enforce greenhouse gas regulations. 

One problem: It’s not true. 

Patient zero for this story is The Daily Caller, which on Monday wrote that the EPA is “asking for taxpayers to shoulder the burden of up to 230,000 new bureaucrats — at a cost of $21 billion — to attempt to implement the rules.” 

To put that to scale: EPA currently has 17,000 employees at an annual budget of $8.7 billion.
 Kudos to the EPA for this brilliant response:
"Much of what is said or written about EPA these days is entirely inaccurate — but The Daily Caller's report is comically wrong,” EPA spokesman Brendan Gilfillan told POLITICO. “At least one job clearly needs to be created: They're clearly in the market for a fact-checker."
Of course, the "comically wrong" story was too much to pass up for several agenda-driven outlets.  Perhaps the most amusing part about the whole story is the Daily Caller's response.  Rather than admit any error, the Caller said it stood by its story and took the opportunity to take more swipes at the EPA.  Did Lisa Jackson run over Tucker Carlson's dog or something?

Go check out the whole Politico story for a complete breakdown of how the Caller got its numbers and why it's completely wrong.  Politico is really not known for this type of "calling out" so when it happens you know the offense was fairly egregious.

Saturday, September 17, 2011

What Obama Can Do Right Now

The next issue of Rolling Stone, which is very underrated in its political coverage, will feature this article on ten things President Obama can do right now to help the environment. The article is a quick but great read. Go check it out. Some highlights:
ONE: Stop the Pipeline
Is it in our national interest to overheat the planet? That's the question Obama faces in deciding whether to approve Keystone XL, a 2,000-mile-long pipeline that will bring 500,000 barrels of tar-sand oil from Canada to oil refineries on the Gulf of Mexico. Greenlighting the $7 billion pipeline would help feed America's addiction to oil – but it would also send a clear signal that Obama ranks cheap gas as a higher priority than a stable climate. Activist and writer Bill McKibben, who organized protests at the White House to stop the pipeline, calls the decision "a defining moment of the Obama years."
THREE: Crack Down on Carbon
NASA climate scientist James Hansen has called coal, the most carbon-intensive of all fossil fuels, "the single greatest threat to civilization and all life on our planet." But Obama has failed to curb carbon pollution from coal plants. He didn't manage to push a program to cap and trade carbon emissions through Congress when he had the chance, and there's no way he can win approval for a straight-up carbon tax. But now he has a chance to do it the old-fashioned way: by wielding the power of the executive branch.

Following a 2007 ruling by the Supreme Court, the EPA has the responsibility to regulate greenhouse gases as a pollutant. The agency is working on new rules that would cut carbon pollution from power plants – the country's single biggest source of planet-warming emissions. The question is: How tough will they be? To make Big Coal really clean up its act, the standards need to be set at roughly the same pollution levels produced by natural gas – about 1,100 pounds of pollution per megawatt hour of electricity. "That would essentially end the construction of conventional coal plants in America," says Vickie Patton, general counsel for the Environmental Defense Fund. "But if the standards are significantly looser, they could have the perverse effect of actually encouraging the construction of a new generation of plants." The ultimate outcome – no more coal plants, or far too many – is entirely in Obama's hands.
TEN: Use the Bully Pulpit
Ever notice how often the phrase "climate change" pops up in Obama's speeches? Not much – only 20 times in the past year, and fewer than half as many as the year before. The president has failed to make a big issue-defining speech on global warming, failed to defend the climate scientists being attacked by Big Oil, and failed to blast congressional climate deniers like Sen. James Inhofe, who shamelessly and stupidly dismiss global warming as a "hoax."

In fact, Obama's refusal to speak out on the risks and moral obligations of climate change may well be his biggest failure as president. "He has been silent on the defining issue of our time, letting Big Oil and the deniers define the debate," says Joe Romm, a leading climate advocate who served as assistant energy secretary under Bill Clinton. "In some sense, he has been a bigger failure than Bush – because Obama knows better. He knows exactly what is at stake."

Insiders insist the president is running a "stealth campaign" on climate change, quietly going after coal and oil by tightening air-pollution and fuel-efficiency standards. But Obama alone has the power to elevate global warming to the forefront of the international agenda, where it belongs. He must use his remarkable rhetorical skill to explain to the world that the fossil-fuel era is coming to an end – and inspire us all to take action, no matter what the cost. "Obama needs to make a decision," Romm says. "Does he want to be remembered as the president who had the best chance of taking action on climate – but who failed to stop the catastrophe?"
Some of the suggestions, such as using the bully pulpit or making conservation patriotic (something I've urged for a long time), are just about good ol' fashioned leadership. But some of the others, such as regulating greenhouse gases under EPA's current Clean Air Act authority, require a little more boldness. Many have said that greenhouse gas regulation under the current rules would be impracticable. But that's entirely the point. If the President were to make such a move, it would put the ball in Congress's court to come up with a better solution. Until he does that, Congress has no reason to disrupt the statuts quo, and no progress will be made. And that's exactly how Obama can defend the move from critics. The President has utilized heated rhetoric in attacking Congress, including Democrats, on several occasions. With its low approval rating, it's not hard to see why. Taking the offensive on the environment would be yet another front in this fight.

Friday, September 16, 2011


Jonathan Zasloff over at Legal Planet points us to an interesting immigration case just decided by the Ninth Circuit:
This one is too good not to blog.  Strictly speaking, it’s an immigration case, but it has interesting implications for all statutes and especially environmental ones. 

Jawid Habibi is a lawful resident alien, but not someone you’d want to hang around with.  He was convicted of domestic misdemeanor battery in California, and then received a 365-day sentence pursuant to state law.  Then ICE wanted to deport him under 8 U.S.C. § 1101(a)(43)(F), which allows deportation for someone who commits an aggravated felony, and defines an aggravated felony as a “crime of violence . . . for which the term of imprisonment [is] at least one year.” 

So what’s the problem?  Habibi was sentenced to serve in 2000, and 2000 was a leap year.  So if he served 365 days, he didn’t serve a year!  He argued that thus, he was ineligible for deportation under the federal statute. 

The Ninth Circuit quite properly rejected that argument in Habibi v. Holder handed down just yesterday.
Zasloff goes on to examine the implications on Chevron and, more generally, textualism. Go check it out. Though not strictly environmental in nature, I find the case interesting for two personal reasons. First, my first legal job was at an immigration firm. And second, I just happened to be born on leap year!

Tuesday, September 6, 2011

NYC Continues Urban Agriculture Push

The Big Apple has made moves to broaden it's menu. The City Council has passed bills to encourage rooftop greenhouses and to increase the land available for urban farming. Here are some particulars:

Int. No. 338-A amends § 27-306 of the Administrative Code of the City of New York and BC 504.3 of the New York City Building Code. The amendments add greenhouses to a list of structures which do not count against height restrictions, so long as the aggregate area of structures does not exceed one-third of the roof area in size. This same section's exclusion for solar thermal and solar electric collectors offers a tantalizing synergy of sustainability: rooftop greenhouses heated and powered by solar collectors.

Int. No. 452-A adds a new section, 6-130, to chapter one of title six of the Administrative Code of the City of New York. The new section encourages agencies to make best efforts to purchase New York state food by mandating the development and incorporation of procurement guidelines into food-purchase and food-related service contracts.

Additionally, in Resolution No. 507 the City Council called upon the state legislature to extend the Green Roof Tax Abatement, section 499-aaa of the New York State Real Property Tax Law, to owners who produce live food-producing plants. Were the New York legislature to heed the City's call, rooftop farmers could see tax abatements of up to $100,000.

These may seem to be small changes, but actions like this by a city as large as New York City can have a large effect. The new procurement policy brings the substantial buying power of the New York City institutions into the local food movement, bringing a degree of certainty to the market and making the investment risks a bit more palatable. The rooftop greenhouse makes productive use of New York City's vast quantity of rooftop space. Combined with a solar collector system and greywater or stormwater recovery system, the rooftop gardens could be even more of a boon to the urban environment. Were the Green Roof Tax Abatement to be expanded to live food-producing plants, more landlords may be enticed to feature rooftop garden space for their tenants, providing urban dwellers a connection to the environment as well as fresh nutritious produce. Landlords and tenants would be able to realize the insulation benefits of green roofs while the City realizes the benefits of reduced energy demand and less stormwater. As New York City reaps the benefits of urban agriculture, we may see other East Coast municipalities take a more active role in promoting urban agriculture.

By permitting urban beekeeping and now urban agriculture more broadly, Bloomberg and the City Council are allowing urban agriculture in the Big Apple to blossom.

via NYTimes

(NYTimes mentioned that the City is taking an inventory of properties it owned or leased for the purpose of identifying space useable for urban agriculture, however I was unable to find the source of this and unsuccessful at getting in contact with the author. I will update this post if I verify this.)

Friday, September 2, 2011

Obama Announces Halt to New Ozone Standards

Manu Raju of Politico tweets:
In move that will infuriate enviros, Obama calls on EPA to withdraw draft ozone standards to reduce "regulatory uncertainty"
The move comes just a month and a half after EPA Administrator Lisa Jackson called the current Bush-era smog rules legally indefensible:
The standards chosen by the George W. Bush administration to protect people from smog probably wouldn't hold up in court, EPA Administrator Lisa Jackson says in a new letter to a key congressional ally, giving the best indication yet that the agency is planning to set stricter pollution limits this summer. 

Jackson is close to deciding whether to change the national ambient air quality standard for ground-level ozone, the main component of smog. After a series of delays, the agency sent a final rule to the White House Office of Management and Budget on Monday.
EPA was originally scheduled to finalize the rules last summer, but it asked a federal court for three extensions, fueling speculation that the agency might be harboring doubts about rules that critics say will hurt the economy.
And the kicker:
Frank O'Donnell, president of Clean Air Watch, said the new letter sends a strong message about where the agency is heading.

"Unless there is some eleventh-hour political meddling by the White House, it seems clear that ... Jackson intends to follow the advice of the agency's science advisers," he said in an email.
As Raju predicted, the move is already enraging environmental groups. The League of Conservation Voters has issued a brief statement:
The Obama administration is caving to big polluters at the expense of protecting the air we breathe. This is a huge win for corporate polluters and huge loss for public health.
It seems clear that this move is driven by administration concerns over the struggling economy, but the President is likely to face more backlash, particularly considering Jackson's heated rhetoric from earlier this summer. Environmental groups are sure to claim that "the law is the law" and that the new rules cannot be set aside for economic or, perhaps more appropriately, political concerns. Jackson's comments certainly set the stage for lawsuits challenging the current rules.

More from Politico here.

Update: CPRBlog has added its disapproval.

Update II: The New York Times' Paul Krugman weighs in with a Keynesian explanation of why the new regs may have helped the economy:
And now you can see why tighter ozone regulation would actually have created jobs: it would have forced firms to spend on upgrading or replacing equipment, helping to boost demand. Yes, it would have cost money — but that’s the point! And with corporations sitting on lots of idle cash, the money spent would not, to any significant extent, come at the expense of other investment. 
More broadly, if you’re going to do environmental investments — things that are worth doing even in flush times — it’s hard to think of a better time to do them than when the resources needed to make those investments would otherwise have been idle.
This is an argument that seems to get lost in the discussion on environmental regulations. Too often, regulations are characterized as artificial increases in costs that will merely be passed directly on to consumers. But regulations such as the new ozone standards often result in new hires and spending on the development of new technology, which itself can often result in long-term savings. Add to that the savings to "public health," and it's easy to see why many studies have suggested that Clean Air Act regulations were a net benefit to the U.S. economy over the long-term. Krugman's argument is that, even in the short-term, given our current economic situation, the costs of such regulations are probably overstated.

Update III: The always great Kate Sheppard over at Mother Jones provides the numbers:
According to the American Lung Association, the weaker standard means that as many as 186 million Americans are currently breathing in unhealthy levels of smog. The EPA's own figures are even more shocking. If the Obama administration set the lower standard of 60 parts per billion, it would prevent 4,000 to 12,000 premature deaths a year by 2020. Even the higher standard of 70 parts per billion would save between 1,500 and 4,300 lives per year. Improved air quality would bring down the number of deaths and hospitalizations every year due to asthma, bronchitis, and other heart and lung conditions. 

The EPA also noted that while compliance with the new rule would cost polluters between $19 billion and $90 billion a year by 2020, the benefits to human health will be worth between $13 billion and $100 billion every year.
She also confirms that the Obama administration will face at least one suit over the move:
The American Lung Association filed suit against the EPA following the weak Bush standards, but dropped it after the Obama administration said it was going to reconsider it. The group issued a statement on Friday signaling that it will revive the suit now that the Obama administration has signaled that it is not going to improve the standard, which is a violation of the Clean Air Act, the group says. 

Thursday, August 11, 2011

Obama Announces New Fuel Efficiency Standards for Trucks & Buses

Jeff Goodell writes about the new standards in Rolling Stone, elaborating on their importance:
For one thing, it's the first time there have ever been fuel efficiency standards for trucks.  The new rules, which apply to model years 2014 to 2018, will force big rigs to slash fuel consumption by up to 23 percent. Gasoline-powered heavy-duty pickups and vans will have to cut consumption by 10 percent, or by 15 percent if the vehicles run on diesel fuel.  The White House projects savings of 530 million barrels of oil and $50 billion in fuel costs over the expected lives of the vehicles covered by the new standards. 

And the new rules are not just about saving fuel.  The air will be cleaner, and the planet a little cooler.  Vickie Patton, general counsel for the advocacy group Environmental Defense Fund, says the regulation would cut climate pollution by 270 million metric tons between 2014 and 2018.
Goodell also provides broader context on just how much progress the Obama administration has made in getting the trucking and auto industries on board with regulation:
But what's really important about this latest announcement is that it shows how far the truck and auto industry have come in moving into the 21st century.  Just last month, Obama announced a deal with automakers to double vehicle-efficiency standards to 54.5 MPG by 2025.  If the agreement gets finalized, it will be, as David Friedman, deputy director of the Clean Vehicles program at the Union of Concerned Scientists put it to me, "a historic deal."
In the world of energy politics, the fact that automakers have agreed to these ambitious new standards is mind-boggling.  After all, for decades Detroit fought hard for decades against tougher fuel efficiency standards, arguing that the engineering challenges were huge and expensive to implement and would likely kill the U.S. auto industry.

Saturday, August 6, 2011

Western Grey Wolves Recieve No Court Protection

In a shocking turn of events District Court Judge Molloy has ruled that Congress acted within its power when the grey wolf was removed from the Endangered Specie List. Dennis Bragg of Kpax news writes:
Molloy agreed somewhat with the conservation groups, saying the rider was a "debatable policy change", writing that "inserting environmental policy changes into appropriations bills may be politically expedient" but that it "transgressed" constitutional process.

However, he [Molloy] goes on to write in the 18-page brief, "If I were not constrained by what I believe is binding precedence from the Ninth Circuit," that he would say the rider is "unconstitutional because it violates the Separation of Powers Doctrine."
As a result of the court's decision on Wednesday the wolves will remain unprotected. In the meantime the Alliance for the Wild Rockies will continue their fight, taking the battle to the 9th Circuit Court of Appeals. Executive Director Mike Garrity says:

"This is about protecting wildlife but also standing up for citizens' rights to make Congress follow the Constitution. So, we think if Congress can do it to the environment, they can do it to any issue. If Congress doesn't like a particular issue they can just step on the Constitution and tell the courts that what they did was wrong."

Unfortunately the court of appeals decision will only affect next season's hunt, and thus this season's hunt will go forward as planned. Here is an overview, by state, of this season's hunting rules and regulations:

The Montana Fish Wildlife and Parks Department is allowing the killing of 220 wolves, the season begins with archery licenses going on sale August 8th. The plan requires hunters to call in a kill within 12 hours, and they claim they will monitor the numbers very closely. Closing the season as soon as the numbers get close to 220 to ensure no over killing. Here is a more detailed look at the 2011 wolf program, the 2011 wolf management fact list, and the Environmental Impact Statement (which was written in 2003.)

The Idaho Fish and Game Department has established numbers per zone for the 2011-2012 hunting season, previously the total number was 220, the same as Montana. However, Idaho hunters must purchase tags, max of 2 per person (3 tags if using traps), one tag per wolf. They must call in a kill with 72 hours, and present the skull and hide within 10 days of the kill.

If either state allows the wolf population to fall under 150 wolves or 15 breeding pairs per state then the wolf will be automatically relisted according to the U.S. Fish and Wildlife Service.

Wednesday, July 27, 2011

Anticipation Builds Over Upcoming Gray Wolf Court Ruling

On Tuesday a group of environmentalists had their day in court in an attempt to restore protective status to some 1,200 gray wolves in the Montana and Idaho Rocky Mountains, Lori Grannis of Reuters reports:
Conservation groups say Congress exceeded its authority by intervening in an ongoing court case to remove the wolves from the endangered species list without bothering to amend the underlying law and by presuming to exclude its action from judicial review.
Jay Tutchton, a lawyer for several groups challenging the delisting, said lawmakers sought to take a "politically expedient shortcut" that violates the constitutional separation of powers between the courts and Congress.
But government lawyers said the delisting effectively amended the Endangered Species Act by making a special exemption for wolf populations in the Rockies.
In August of last year, U.S. District Judge Donald Molloy, struck down the U.S. Fish and Wildlife Service’s attempt at delisting the Montana and Idaho gray wolf because the agency had violated the Endangered Species Act by treating Montana and Idaho wolves differently from those in Wyoming. Molloy held that the wolves had to be managed together as a single population due to their proximity to one another. Wyoming gray wolves number in the hundreds, and remain heavily protected.

Phil Taylor, of the New York Times' Greenwire, has more:
Molloy, who last August ruled in favor of the groups in restoring ESA protections, said Saturday that the settlement would have required him to sanction a breaking of the law.
In a 24-page ruling, Molloy said plaintiffs had agreed FWS's delisting rule was based on "an erroneous interpretation" of the statute and that the agency's mistake was "not a technical violation, but amounted to wrongfully removing ESA protections."
"They now ask the court if the wolf in Montana and Idaho -- an endangered species -- can by court action be excused from the ESA's protective provisions," he wrote. "This proposition presents a legal conundrum that goes directly to the ideas behind the rule of law."
Then in April, as a potential settlement between the states and conservationists was underway, Congress stuck a proposal to delist the Montana and Idaho gray wolves into a budget agreement ultimately signed by President Obama. The amendment essentially nullified attempts to reach a settlement agreement in Molloy’s courtroom. The reason given for the proposal was to protect ranchers in the surrounding area, but this marks the first time an animal has been delisted without any scientific research to accompany the delisting. Currently, the respective States are working on plans to allow ranchers to actively hunt gray wolves.

Molloy is now faced with the very same rule of law question he faced almost a year ago, Reuters:
Government lawyer Andrea Gelatt said on Tuesday that Congress was entitled to effectively amend federal laws, such as the Endangered Species Act, by carving out exemptions to them, saying lawmakers may "speak by language of exceptions."
But Molloy, who promised a prompt decision in the case, pressed her on the question of restricting court oversight.
"Then why is it not subject to judiciary review?" he asked. "This indirectly says, 'We don't like the result of this, so we're reversing the court's decision and telling the agency to go ahead and do something illegal.'"
If the previous rulings passed down by Molloy are any indication, the Montana and Idaho gray wolf appear to be destined for the protected list again, but they shouldn’t unpack their bags just yet.

Tuesday, July 26, 2011

Offshore Wind Tax Credit Bill Introduced in Senate

Senators Olympia Snowe (R-ME) & Tom Carper (D-DE) have introduced a bill that would extend tax credits for the first 3 gigawatts of offshore wind capacity in the U.S.
These tax credits are vital for offshore wind projects because there is a much longer lead time for the permitting and construction of the turbines compared to onshore wind energy, the sponsors said. Once awarded a tax credit, companies have five years to install the offshore wind farm.
“This legislation is essential to encourage the continued growth of this fledgling industry," Carper said. "Guaranteeing these tax incentives for the first 3,000MW will spur the industry to get these projects up and running and encourage further development even in these challenging economic times.”
US offshore wind projects have run into numerous financing and permitting challenges.
Dianne Saenz, over at Oceana, has more:
Under current law, the investment tax credit for offshore wind expires at the end of 2012.  This unrealistic deadline currently makes the financing of offshore wind projects nearly impossible.  The “Incentivizing Offshore Wind Power Act” would do away with this deadline and instead provide a 30 percent investment tax credit for the first 3,000 megawatts of offshore wind placed in service. 
The bipartisan bill, introduced by Senators Tom Carper (D-DE) and Olympia Snowe (R-ME), with leading co-sponsors Senators Robert Menendez (D-NJ), Susan Collins (R-ME), Chris Coons (D-DE), Sheldon Whitehouse (D-RI), Sherrod Brown (D-OH) and Jack Reed (D-RI), incentivizes investment in offshore wind projects, while prioritizing those projects that are furthest along in the development process.  By doing so, this bill creates tax certainty for the first movers in the budding domestic offshore wind industry.
“We believe the Carper-Snowe bill is exactly the kind of bold and visionary legislation that is required to get the offshore wind industry moving again,” said NRG Bluewater Wind President Peter Mandelstam.  “This proposed legislation gives a clear signal to developers and their supply chain partners that these projects have long-term policy support, rather than short-term incentives. For early movers like NRG Bluewater Wind, it provides some measure of cost-certainty needed in order to move forward in the process. We fully support the bill as written and the leadership needed for passage,” added Mandelstam.
Last month, the Center for American Progress released a brief and accompanying article detailing the current state of offshore wind in the U.S. Of particular interest to me on this issue is the potential use of categorical exclusions to streamline the permitting process for offshore wind sites under NEPA. While attending the ABA's Section on Environment, Energy, & Resources 40th Annual Conference on Environmental Law in Salt Lake City this past March, I was able to speak briefly on this subject with Laura Morton, Senior Advisor on Renewable Energy Deployment at the Department of Energy's Office of Energy Efficiency & Renewable Energy. She told me that to not expect any movement on this front anytime soon, as many policymakers had a bad taste in their mouths when it came to categorical exclusions thanks to their role in the Gulf oil spill. The conversation essentially confirmed fears that Herman Trabish had expressed the prior summer:
One of the most important suggested solutions for an improved offshore wind approval process is the granting to developers of a "categorical exclusion" from certain environmental study obligations on the grounds that such studies have been conducted time and again and new ones would only yield the same results.
Unfortunately, before the MMS got around to granting wind such categorical exclusions, there was that oily matter in the Gulf of Mexico. In the catastrophe's wake, it was discovered that one of the corners cut on behalf of BP was the granting of a categorical exclusion.
It has long been the common practice to grant offshore oil and gas drillers such exclusions, and it probably had little to do with the disaster that BP's alleged shoddy drilling practices has precipitated. But never mind anybody else asking for such an exclusion right now.
It is unclear when the timing may be right for such an option.  In the meantime, extending the tax credits should help keep early projects moving along.

Monday, July 25, 2011

Guardian Lists Top 50 Climate Change Twitter Accounts

The Guardian has a really great post up listing 50 Twitter accounts dealing substantially with climate change:

A notable exception that I would highly recommend is David Roberts at Grist. Roberts combines a great sense of humor with a wealth of information on environmental issues and politics. He also regularly engages with economists in fascinating discussions on regulatory costs.

If you're already on Twitter, consider using the Guardian's list as a starting point for creating your own "Climate Change" list.

EPA's Ballast Permit Program Upheld

Via Josh Mogerman at NRDC, a federal court has upheld the EPA's recently enacted ballast permit program:
A federal court has rejected a shipping industry challenge to a government permitting system designed to prevent the spread of invasive species that have disrupted ecosystems and cost billions in the Great Lakes and elsewhere.
Last March, the EPA created the permit system as part of a settlement with conservation organizations:
A settlement announced today between the U.S. Environmental Protection Agency (EPA) and conservation organizations will curtail Invasive species that have been wreaking havoc on American waters for decades. The agreement requires EPA to issue a new permit regulating ballast water discharges from commercial vessels in settlement of lawsuits brought by a dozen conservation groups challenging the legality of EPA’s existing permit. 
Ballast water is the number one source for a rogue’s gallery of aquatic nuisances such as the so-called “fish Ebola,” the spiny water flea, and zebra and quagga mussels. These and other invasive species now sap the American economy of billions of dollars annually. After a long battle over how living pollution should be dealt with under the Clean Water Act, the settlement requires EPA to complete scientific reviews of the steps that ships should take to protect human health and the economy of communities on American coasts and in the Great Lakes. 
Under the settlement, EPA has agreed to publish a draft of a new Vessel General Permit by November 2011 and to issue a new permit by November 2012 that would not go into effect until the current permit expires in December 2013. By allowing over two years from the time the permit is proposed to the time the new standards would go into effect, ship owners will have more time to comply with treatment requirements than they would otherwise receive. The settlement also requires EPA to encourage states to develop regionally consistent approaches to setting ballast water standards.