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:

http://www.guardian.co.uk/environment/blog/2010/may/11/top-50-twitter-climate-accounts

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.