Hill Heat

At last week’s House Appropriations hearing on the FY 2009 Fish and Wildlife Service budget, FWS chief Dale Hall was grilled on the service’s implementation of the Endangered Species Act. The Bush administration has listed dramatically fewer species than previous administrations after dramatically reinterpreting the Act under Secretary Gale Norton’s “New Environmentalism” initiative to limit its protections for critical habitats. Further, Deputy Secretary Julie MacDonald was found to have interfered with a series of listing decisions (such as the prairie dog and sage grouse) until her dismissal in 2006.

Hall stated that he finally submitted his decision on the endangerment of polar bears due to climate change to Dirk Kempthorne, the Secretary of the Interior, saying that he expected a final decision to come in a few weeks. Hall justified the further delay to reporters: “It needs to be reviewed and explained to Interior, it can take a while to understand.”

The legal deadline at issue in today’s suit was triggered by a scientific petition the Center filed in November 2006 seeking Endangered Species Act protection for many of the world’s most threatened penguin species, including the emperor penguin in Antarctica. In July 2007, the U.S. Fish and Wildlife Service took the first of the three steps in the listing process when it found that 10 penguin species may deserve protection and began status reviews for those species. The Fish and Wildlife Service’s finding for the 10 penguin species triggered the duty to decide by November 29, 2007, whether the penguins qualify for listing under the Endangered Species Act, and if so, to propose them for listing. That decision is now more than two months overdue.

As previewed by Warming Law yesterday, the EPA today released the formal justification for publication in the Federal Register to back up administrator Stephen L. Johnson’s December decision to deny California’s waiver request after months of delay. California requested the Clean Air Act waiver in 2005 to permit implementation of the state’s Global Warming Solutions Act (AB 32), which would regulate tailpipe greenhouse gas emissions.

Johnson withstood withering criticism in Wednesday’s EPW budget hearing the same day Sen. Boxer, chair of the Senate committee, released documents showing top EPA officials supported the waiver.

I find that it is appropriate to review whether California needs its GHG standards to meet compelling and extraordinary conditions separately from the need for the remainder of California’s new motor vehicle program. I base this decision on the fact that California’s GHG standards are designed to address global climate change problems that are different from the local pollution problems that California has addressed previously in its new motor vehicle program. . . Given the different, and global, nature of the pollution at issue, it is reasonable to find that the conceptual basis underlying the practice of considering California’s motor vehicle program as a whole does not apply with respect to elevated atmospheric concentrations of GHGs. . . . While I find that the conditions related to global climate change in California are substantial, they are not sufficiently different from conditions in the nation as a whole to justify separate state standards.

Staff and outside assessments of this argument have consistently concluded it is not legally tenable. It was received with full condemnation by Sen. Boxer and Rep. Ed Markey (D-Mass.), Global Warming chair; Frank O’Donnell of Clean Air Watch writes that the decision “reads like something written up in the boardroom of General Motors or a law firm working for car companies.”

The Environmental and Energy Study Institute (EESI) invites you to a briefing addressing the efficiency of a cap-and-trade approach to controlling carbon emissions. The cap-and-trade approach is often set against concerns about its possible impact on industrial competitiveness. These and related concerns led to significant excess allocation of free allowances in the first phase of the European Union’s Emissions Trading Scheme (EU ETS), which caps carbon from five major trading industrial sectors, in addition to power generation.

• With the first phase of the EU ETS now complete and the system in its second (Kyoto) phase, what has been learned to date?
• What is now proposed for the future of the EU ETS beyond 2012 – with the recent structure proposed for a third term, right out to 2020?
• And what may the EU ETS experience and future plans imply for the international effort to control climate change?

The EU ETS covers 45 percent of European CO2 emissions. Concerns about the loss of industrial competitiveness and leakage of CO2 emissions remain one of the major barriers to placing more robust CO2 mitigation obligations on industrial sectors in the EU. A January 15 report by Climate Strategies, “Differentiation and Dynamics of EU ETS Industrial Competitiveness Impacts,” analyzes what would happen if Europe presses ahead with strong CO2 prices without waiting for similar policies elsewhere. The study finds that competitiveness and leakage concerns are no threat to the viability of the EU ETS overall, but can be analyzed and addressed for the individual sectors affected. Various policy instruments are available, and the best option can be selected individually for each of the affected sectors.

• Dr. Michael Grubb, Chief Economist, Carbon Trust; Professor, Cambridge Faculty of Economics; and Contributing Author, Differentiation and Dynamics of EU ETS Industrial Competitiveness Impacts

Professor Michael Grubb is Chief Economist at the UK’s Carbon Trust, the $200 million/year public-private partnership established by the UK government and business to kick-start the UK’s transition to a low carbon economy. He combines this with academic positions at Cambridge University and Imperial College London. Prof. Grubb was also recently appointed to the UK government’s Committee on Climate Change, being established under the UK Climate Change Bill, with statutory powers to advise the UK government on future carbon reduction targets and to monitor government progress towards those targets.

This briefing is free and open to the public. No RSVP required. For more information, contact Fred Beck at fbeck@eesi.org or 202-662-1892.

Reporting yesterday on this week’s developments in the California clean cars saga, the Wall Street Journal’s Stephen Power revealed that "the EPA is expected to fire back this week by publishing data and research to support Mr. Johnson’s decision." Today’s Philadelphia Inquirer confirmed that such a document should "be released by tomorrow" via Johnson’s response to grilling on the waiver decision during a Senate hearing on EPA’s budget. (Regular readers may recall that his December announcement of the waiver denial was notably brief, resulting in much speculation since as to whether Johnson had fully determined his legal rationale before he made his mind up.)

We’ve been anticipating EPA’s belated justification, which is expected to be placed in the Federal Register, for some time now—both in terms of Johnson’s public promises and as a legal strategy in fighting California’s lawsuit. In a move that is probably not coincidental, EPA filed a motion last week asking the 9th Circuit to dismiss the existing case. Warming Law is still working to obtain EPA’s motion, but we’ve written previously on both its likely rationale, and on the unprecedented legal argument that Johnson will likely make to claim his actions can be justified under the Clean Air Act.

If Johnson goes this route, the legal effect would be one of giving the Administrator’s judgment extremely strong deference under Section 209 of the Clean Air Act. He would be interpreting the law in a way that his staff told him is legally impossible even if they accepted the auto industry’s criteria for judging waiver requests, and doing so based on the arguments that he:

1) Is legally empowered to break with agency precedent regarding what constitutes "compelling and extraordinary" conditions—instead adopting the "exclusive and unique" argument that Tuesday’s document release shows was first advanced in March 2006 by Bill Wehrum, a political appointee with prior ties to the auto industry (Wehrum has since left the EPA, and was recently spotted testifying in favor of a pair of coal-fired plants that Kansas regulators shot down last year based on global warming concerns).

Former EPA Administrator William Riley, who served under President Bush’s father, highlighted the historic scope of Johnson’s actions when he revealed yesterday that he was the receipient of impassioned talking points that agency staff prepared for him to press with Johnson. In his conversations with Johnson, Reilly focused on the argument that legal text, congressional intent and longstanding precedent all point to extreme deference for California’s wishes, and noted that the administrator need not agree with the state in order to let it move forward (emphasis added):

• The Honorable Stuart Eizenstat, Partner, Covington & Burling, Sustainable Forestry Management, Ltd.
• Heather McGray, Senior Associate, World Resources Institute

The House Natural Resources Committee, Subcommittee on Fisheries, Wildlife and Oceans, led by Del. Madeleine Z. Bordallo (D-GU), will hold a legislative hearing on the following bills:

• H.R. 3223 (Allen): To amend the Coastal Zone Management Act of 1972 to establish a grant program to ensure coastal access for commercial and recreational fishermen and other water-dependent coastal-related businesses, and for other purposes. (Keep Our Waterfronts Working Act of 2007)
• H.R. 5451 (Bordallo): To reauthorize the Coastal Zone Management Act of 1972, and for other purposes. (Coastal Zone Reauthorization Act of 2008)
• H.R. 5452 (Capps): To amend the Coastal Zone Management Act of 1972 to authorize grants to coastal States to support State efforts to initiate and complete surveys of coastal State waters and Federal waters adjacent to a State’s coastal zone to identify potential areas suitable or unsuitable for the exploration, development, and production of renewable energy, and for other purposes. (Coastal State Renewable Energy Promotion Act of 2008)
• H.R. 5453 (Capps): To amend the Coastal Zone Management Act of 1972 to authorize assistance to coastal states to develop coastal climate change adaptation plans pursuant to approved management programs approved under section 306, to minimize contributions to climate change, and for other purposes. (Coastal State Climate Change Planning Act of 2008)

• Dale Hall, Director, U.S. Fish and Wildlife Service
• Mark D. Myers, Director, U.S. Geological Survey

Ben Chandler (D-Ky.) I know that you all have talked some about the alarming loss of common birds in our country. Alarming it is. I almost can’t believe it. The numbers that I’ve seen are absolutely atrocious. And one thing that I’d like to explore with you real quick, the Audubon Society has stated that the cause of the dramatic decline of birds is the outright loss of habitat due to poor land use, the clear-cutting of forests, the draining of wetlands and sprawl. Now, in light of such a stinging indictment as that, how does the administration justify a 70 percent cut in land acquisition?

Hall I don’t know.

Norm Dicks (D-Wash.) That’s a good answer.

Chandler That’s one of the best answers I’ve heard in a while, because I think that’s accurate. I appreciate that.

Former Massey Energy executive Stanley Suboleski, who was nominated by the president to be the Department of Energy assistant secretary for fossil energy, was scheduled for his nomination hearing before the Senate today. The Office of Fossil Energy funds advanced coal technology efforts and recently received fire for discontinuing the FutureGen coal-tech initiative.

E&E News reports that the White House withdrew his nomination last night, saying that Suboleski asked to be withdrawn “for personal reasons” Monday afternoon.

In 2000 in Martin County Kentucky, despite repeated warnings about the serious violations where the impoudment broke, Massey Energy was responsible for a slurry spill that was 30 times larger than the Exxon Valdez disaster. The EPA called it the “worst environmental disaster in the history of the Southeast.” Massey called it “an Act of God.”

Now, President Bush wants to promote a Massey Executive to “Assistant Secretary of Energy (fossil energy).” While we are extremely disappointed, we can’t act as though we are surprised. The promotion of Stanley Suboeski is consistent with the Bush Administration’s vigorous efforts to remove every shred of responsibility and decency from the process of extracting coal, ignoring the human cost at every turn.

By promoting mountaintop removal mining, the Bush Administration and Massey Energy have transferred the dangers inherent in coal-mining from the professional miners doing the work onto the surrounding civilian communnities who now have to deal daily with fly rock, poisoned water, and toxic coal waste. Putting Stan Suboleski at the top of the fossil energy food chain is yet another reckless example of the President rewarding his friends and contributors in the fossil fuel industry, and ignoring the true cost of coal to the people in the Appalachian region.

In a press conference yesterday, Senate Environment and Public Works chair Barbara Boxer (D-Calif.) revealed internal EPA documents from the agency’s deliberations whether to grant California’s Clean Air Act waiver request to regulate tailpipe greenhouse gas emissions. Administrator Stephen Johnson denied the waiver in December, the day the president signed the energy bill into law.

The documents include a presentation prepared by Chris Grundler, deputy director at the National Vehicle and Fuel Emissions Laboratory, for Margo Oge, the director of EPA’s Transportation and Air Quality, intended to be given to Johnson. The presentation states “it is obvious to me that there is no legal or technical justification for denying” the waiver, and that in the case of a waiver denial “I fear the credibility of the agency that we both love will be irreparably damaged.”

The documents also include an itinerary for the administrator showing that on May 1, 2007, he received an internal briefing on the California waiver before attending a White House meeting.