California Sues EPA Over Waiver Denial
As California Attorney General Jerry Brown announced upon the EPA denial of the California waiver request to regulate tailpipe greenhouse emissions, California has filed a petition for review of the decision in the Ninth Circuit Court of Appeals. Fifteen other states – Massachusetts, Arizona, Connecticut, Delaware, Illinois, Maine, Maryland, New Jersey, New Mexico, New York, Oregon, Pennsylvania Department of Environmental Protection, Rhode Island, Vermont, and Washington – joined the suit.
Warming Law notes:
One interesting legal wrinkle is that the case has been filed in the 9th Circuit—not in the DC Circuit, as many (including ourselves) had suggested. In the wake of EPA’s decision, LA Times writer David Savage presciently noted that the DC Circuit might not be naturally inclined to California’s arguments. While the state’s case for a waiver was undoubtedly strengthened by the Supreme Court’s decision on standing in Massachusetts v EPA, it was the DC Circuit that had previously sided with the EPA’s position (this rationale is strongly mirrored in the EPA’s current claim that global warming doesn’t pose a unique threat to California). The state’s arguments based on statutory text and the weight of Supreme Court precedent would probably have held up in any court, but its tactical filing move certainly seems, on the surface, to bolster its odds.
Uranium in Virginia 2
Underneath a plot of farmland used to raise cattle, hay and timber in south central Virginia lies what is thought to be the largest deposit of uranium in the United States.Now, three decades after the deposit was found, landowner Walter Coles has set his sights on mining the 200-acre site despite concerns of environmental groups and residents about unearthed radioactive material that could contaminate the area’s land, air and source of drinking water.
Coles is attempting to convince the Virginia General Assembly to approve a $1 million safety study in advance of reversing the 25-year ban on uranium mining in the state. Gov. Timothy Kaine (D) supports the study. Others lobbying for approval include Coles’s brother-in-law Whitt Clement, a former legislator, and investor Henry Hurt, whose son is a state senator.
Taking Responsibility
The National Environmental Trust released a report earlier this month in conjunction with the Bali Conference entitled Taking Responsibility: Why the United States Must Lead the World in Reducing Global Warming Pollution.
The report puts into graphic terms the U.S. share of global warming pollution: 42 states individually emit more C02 than 100 developing countries. Even Wyoming, the most sparsely populated state in the U.S., with only 510,000 people, emits more carbon dioxide than 69 developing countries that are home to 357 million. The report includes profiles for every state and the District of Columbia.
A Solar Scenario in Scientific American
A massive switch from coal, oil, natural gas and nuclear power plants to solar power plants could supply 69 percent of the U.S.’s electricity and 35 percent of its total energy by 2050.A vast area of photovoltaic cells would have to be erected in the Southwest. Excess daytime energy would be stored as compressed air in underground caverns to be tapped during nighttime hours.
Large solar concentrator power plants would be built as well.
A new direct-current power transmission backbone would deliver solar electricity across the country.
But $420 billion in subsidies from 2011 to 2050 would be required to fund the infrastructure and make it cost-competitive.
By way of contrast, the Friends of the Earth analysis finds that Lieberman-Warner (S. 2191) allocates approximately $800 billion in subsidies to the fossil fuel industry, with about $350 billion to subsidize carbon capture and sequestration specifically. About $350 billion is allocated to all sustainable technologies (wind, solar, biomass, geothermal).
Climate Change Investing 1
Ceres is the dominant organization in climate-related investment, with the mission of “integrating sustainability into capital markets for the health of the planet and its people.” Their Investor Network on Climate Risk represents corporations and institutions controlling $4 trillion in assets calling for corporate climate disclosure, emissions-reduction legislation, renewable energy investment, and related actions.
J. P. Morgan is one of the few investment majors with a dedicated climate change research division.
Calvert, one of the main players in the “socially responsible” investment space, has Calvert Global Alternative Energy Fund (CGAEX).
Guinness Atkinson has the Guinness Atkinson Alternative Energy Fund (GAAEX).
PowerShares offers various index funds, including Global Clean Energy Portfolio (PBD) (WilderHill New Energy Global Innovation Index (NEX)), Global Water Portfolio (PIO) (Palisades Global Water Index (PIIWI)), Cleantech Portfolio (Cleantech Index (CTIUS)), Water Resources Portfolio (Palisades Water Index (ZWI)), WilderHill Clean Energy Portfolio (WilderHill Clean Energy Index (ECO)), and the WilderHill Progressive Energy Portfolio (WilderHill Progressive Energy Index (WHPRO)).
Winslow Management specializes in “green” investment, offering Green Growth (WGGFX) and the new Green Solutions mid-cap (WGSLX).
Green Century Funds offers the Green Century Balanced Fund (GCBLX) and Equity Fund (GCEQX).
Forward Management has the Sierra Club Stock Fund (SCFSX).
Innovest recently released the report Carbon Beta and Equity Performance based on their work on the Carbon Disclosure Project.
CSRWire has a newsfeed of environment-related corporate press releases.
Green Chip Stocks is a green penny-stock tip sheet.
A Very Special Christmas
"EPA Likely to Lose Suit"
(Cross-posted from Warming Law, which focuses on covering and analyzing the fight against global warming from a legal perspective.)
by Tim Dowling
“EPA Likely To Lose Suit.”
So said EPA, or at least EPA’s legal staff, when it briefed Administrator Johnson on the legal ramifications of a waiver denial. The quoted language comes from a powerpoint slide used during that briefing. As the Washington Post reports, Johnson’s waiver denial flew in the face of “the unanimous recommendation of the agency’s legal and technical staff.”
California’s legal challenge to the waiver denial will be filed in the U.S. Court of Appeals for the D.C. Circuit, and one large reason for believing EPA will lose can be found in the D.C. Circuit’s opinions in previous waiver cases. Unlike Administrator Johnson, the D.C. Circuit clearly recognizes the special, leading role California plays under the Clean Air Act with respect to controls on tailpipe emissions.
For example, in Motor & Equipment Mfrs. Ass’n v. Nichols, 142 F.3d 449, 543 (D.C. Cir. 1998), the D.C. Circuit ruled that waiver process is designed “to afford California the broadest possible discretion in selecting the best means to protect the health of its citizens and the public welfare.” (quoting the House Report).
In a more comprehensive discussion in Engine Mfrs. Ass’n v. U.S. EPA, 88 F.3d 1075 (D.C. Cir. 1996), the court explained:Congress recognized that California was already the “lead[er] in the establishment of standards for regulation of automotive pollutant emissions” at a time when the federal government had yet to promulgate any regulations of its own. California’s Senator Murphy convinced his colleagues that the entire country would benefit from his state’s continuing its pioneering efforts, California serving as “a kind of laboratory for innovation.” This function was enhanced by the 1977 amendments, which permitted other states to “opt in” to the California standards by adopting identical standards as their own. Thus, motor vehicles must be either “federal cars” designed to meet the EPA’s standards or “California cars” designed to meet California’s standards. Rather than being faced with 51 different standards, as they had feared, or with only one, as they had sought, manufacturers must cope with two regulatory standards under the legislative compromise embodied in § 209(a). Id. at 1079-80 (citations and footnotes omitted).
The D.C. Circuit also examined the waiver process in Motor & Equipment Mfrs. Ass’n v. EPA, 627 F.2d 1095 (D.C. Cir. 1979), an unsuccessful industry challenge to EPA’s waiver grant for California rules concerning in-use maintenance of motor vehicles. Tracking the language of the statute, the court observed that EPA must grant a waiver request unless it makes one of the three findings set forth in Section 209(b)(1)(A)-(C). Id. at 1106. The issue is emphatically NOT whether the California rules are a good idea as a matter of policy, but whether EPA discharged its duties under the CAA. Id. at 1105.
Johnson’s bogus concern that a waiver grant here would create a “confusing patchwork” simply cannot be reconciled with the Clean Air Act and the applicable precedents that construe the waiver provisions in Section 209. Expect the D.C. Circuit to make short work of it.
Waxman Opens Investigation into EPA Decision
House Oversight Committee chairman Henry Waxman has just launched an investigation into EPA administrator Stephen Johnson’s decision to deny the California waiver to implement its Clean Cars Campaign.
In his letter to the EPA, Waxman writes:Yesterday, you announced a decision to reject California’s efforts to reduce greenhouse gas emissions from automobiles. Prior to making this decision you assured the House Oversight and Government Reform Committee, as well as the state of Califomia and many others, that you would make this decision on the merits.It does not appear that you fulfilled that commitment. Your decision appears to have ignored the evidence before the agency and the requirements of the Clean Air Act. In fact, reports indicate that you overuled the unanimous recommendations of EPA’s legal and technical staffs in rejecting California’s petition.
Your decision not only has important consequences to our nation, but it raises serious questions about the integrity of the decision-making process. Accordingly, the Committee has begun an investigation into this matter. To assist our Committee in this inquiry, I request that you provide us with all documents relating to the California waiver request, other than those that are available on the public record. This request includes all communications within the agency and all communications between the agency and persons outside the agency, including persons in the White House, related to the California waiver request. And all agency staff should be notified immediately to preserve all documents relating to the California waiver request.
You should produce to the Committee all responsive documents from your office by January 10, 2008. All responsive documents from the Office of Transportation and Air Quality and the Office of General Counsel should be produced by January 17,2008, and all other responsive documents should be produced by January 23,2008.
Further California Waiver Denial Responses
Further responses (see California responses) to the waiver denial, including praise from Detroit’s lobby group.
EPA is not following science or the law . . . This decision is like pulling over the fire trucks on their way to the blaze . . . The Administration’s first bold act on global warming – and it’s to stop the states who are trying to do something about the problem. It is just plain shocking. . . New CAFE standards, if they go into effect, do not fully phase in until 2020. The California greenhouse gas limits will occur earlier – beginning in 2009 and fully phased in by 2016. With the mounting evidence of climate change impacts occurring now, it is imperative that we are take action immediately.
NRDC:
This rejection represents bald-faced political interference with California’s decades-long authority to enforce its own clean air rules . . . The California standards are the single most effective step yet taken in the United States to curb global warming. By blocking the California standards, the administration has stuck a thumb in the eye of 18 governors from both red and blue states who have led the way on global warming by adopting these landmark rules.
There is absolutely no reason for the Bush administration to block California’s effort to fight global warming. Today’s EPA decision is a major setback in the global warming fight and a slap in the face to all of the states that have moved forward when the federal government would not. This decision cements the United States’ reputation as the nation that is holding the rest of the world back at a time when our leadership is desperately needed. One can only hope that the next administration will play a more constructive role.Sen. Sheldon Whitehouse (D-R.I.):
The EPA’s ruling is disgraceful. The Bush administration’s refusal to carry out the duties imposed on it by the Clean Air Act have polluted our air and water, further endangered the health of millions of Americans, and cost us precious time in our fight to address the looming threat of global warming. We can’t afford to delay strong steps to address global climate change. We will keep fighting to pressure this administration to do the right thing and allow states like Rhode Island to take action.
Alliance of Automobile Manufacturers:
We commend EPA for protecting a national, 50-state program. Enhancing energy security and improving fuel economy are priorities to all automakers, but a patchwork quilt of inconsistent and competing fuel economy programs at the state level would only have created confusion, inefficiency, and uncertainty for automakers and consumers. . . Under the new national fuel economy law, automakers will make dramatic, 30-percent reductions in carbon dioxide.
California Reponses to California Waiver Denial
Selected responses from the California congressional delegation and executive branch to EPA’s denial of the California waiver yesterday.
Rep. Henry Waxman (D-Calif.), chairman of the Committee on Oversight and Government Reform:EPA’s decision ignores the law, science, and commonsense. This is a policy dictated by politics and ideology, not facts. The Committee will be investigating how and why this decision was made.Sen. Dianne Feinstein (D-Calif.):
Candidly I find this disgraceful. The passage of the Energy Bill does not give the EPA a green light to shirk its responsibility to protect the health and safety of the American people from air pollution.Gov. Arnold Schwarzenegger (R-Calif.):
While the federal energy bill is a good step toward reducing dependence on foreign oil, the President’s approval of it does not constitute grounds for denying our waiver. The energy bill does not reflect a vision, beyond 2020, to address climate change, while California’s vehicle greenhouse gas standards are part of a carefully designed, comprehensive program to fight climate change through 2050 . . . California sued to compel the agency to act on our waiver, and now we will sue to overturn today’s decision and allow Californians to protect our environment.Sen. Barbara Boxer (D-Calif.), chair of the Committee on Environment and Public Works:
With Members of Congress leaving town, and with the news on global warming getting worse with each passing day, EPA Administrator Stephen Johnson has delivered the worst possible news to the good people of California and the 12 other states who have proven they are leaders in fighting for the survival of the planet.Calif. Attorney General Jerry Brown (D):It is ironic that this waiver denial comes during the season when we are supposed to work to make our country and the world a better place. And to hide behind the newly-passed Energy Bill as an excuse flies in the face of the Supreme Court’s findings and the Energy Bill itself.
This ill-advised denial turns its back on science, turns its back on fairness, turns its back on states’ rights, and turns its back on precedent.
I have informed the state of California that I am prepared to take all measures to overturn this harmful decision.
It is completely absurd to assert that California does not have a compelling need to fight global warming by curbing greenhouse gas emissions from cars. There is absolutely no legal justification for the Bush administration to deny this request – Governor Schwarzenegger and I are preparing to sue at the earliest possible moment.