Climate Change Attorney Blog

Today the EPA reversed its prior determination on the request by California for a waiver permitting more stringent emission standards for model 2009 and later year motor vehicles. In reversing the prior determination and issuing the waiver the EPA Administrator, Lisa P. Jackson found tha the waiver was appropriate under the Clean Air Act criteria "I am withdrawing EPA’s March 6, 2008 Denial and have determined that the most appropriate action in response to California’s greenhouse gas waiver request is to grant that request. I have determined that the waiver opponents have not met their burden of proof in order for me to deny the waiver under any of the three criteria in section 209(b)(1)."

The findings go on to state in part: "The text of section 209(b) and the legislative history, when viewed together, lead me to reject the interpretation adopted in the March 6, 2008 Denial, and to apply the traditional interpretation to the evaluation of California's greenhouse gas standards for motor vehicles. If California needs a separate motor vehicle program to address the kinds of compelling and extraordinary conditions discussed in the traditional interpretation, then Congress intended that California could have such a program. Congress also intentionally provided California the broadest possible discretion in adopting the kind of standards in its motor vehicle program that California determines are appropriate to address air pollution problems and protect the health and welfare of its citizens. The better interpretation of the text and legislative history of this provision is that Congress did not use this criterion to limit California’s discretion to a certain category of air pollution problems, to the exclusion of others....Section 209(a) creates the explicit preemption of state emission standards, and at the same time leaves EPA to set federal emission standards, under the authority of section 202(a). Within the context of section 209, and the preemption of 209(a), section 209(b)’s waiver provision allows California the ability to set its own emission standards....The difference between emission standards and fuel economy standards is highlighted by comparing the two sets of standards at issue here. California’s greenhouse gas emission standards establish allowable grams per mile (“gpm”) levels for greenhouse gas emissions, including tailpipe emissions of carbon dioxide (CO2), nitrous oxide (N2O), and methane (CH4) as well as emissions of CO2 and hydrofluorocarbons (HFCs) related to operation of the air conditioning system. By regulating emissions of four different greenhouse gas pollutants, the standards do more than reduce tailpipe CO2 emissions resulting from fuel combustion. They do not directly equate to miles per gallon fuel economy reductions. Fuel economy standards, on the other hand, directly control miles per gallon (“mpg”) fuel economy levels. CO2 reductions will occur, but they are an expected indirect effect of improved fuel economy standards because the same technology that improves fuel economy effectively reduces CO2 emissions."

The waiver goes on to state that in "evaluating its greenhouse gas standards, California’s protectiveness determination went beyond a simple numerical comparison of its greenhouse gas standards to non-existent federal greenhouse gas standards. Its protectiveness determination was also based upon its own analysis of the impact of its greenhouse gas standards on its larger program. California found that its new greenhouse gas standards would yield not only reductions in greenhouse gas emissions but also a net reduction in criteria pollutant emissions."

In a press release which accompanied the issuance of the waiver the EPA Administrator summarized the decision reached today:

"This decision puts the law and science first. After review of the scientific findings, and another comprehensive round of public engagement, I have decided this is the appropriate course under the law. This waiver is consistent with the Clean Air Act as it’s been used for the last 40 years and supports the prerogatives of the 13 states and the District of Columbia who have opted to follow California’s lead. More importantly, this decision reinforces the historic agreement on nationwide emissions standards developed by a broad coalition of industry, government and environmental stakeholders earlier this year.”

By a slim margin, the House of Representatives passed H.R. 2454 on June 26, 2009. As previously reported on this site the Bill is a comprehensive attempt to address the effects of greenhouse gases and resulting climate change. With only a seven vote margin of passage in the House, the Bill is expected to face a difficult time getting through the Senate.

On June 16, 2009 the United States Government issued a new report on Climate Change Impacts. The report entitled "Global Climate Change Impacts in the United States," is described as a summary of "the science of climate change and the impacts of climate change on the United States, now and in the future. It is largely based on results of the U.S. Global Change Research Program (USGCRP),a and integrates those results with related research from around the world. This report discusses climate-related impacts for various societal and environmental sec tors and regions across the nation. It is an authoritative scientific report written in plain language, with the goal of better informing public and private decision making at all levels."

The report lists a series of Key Findings which are summarized as:
"1. Global warming is unequivocal and primarily human-induced.
2. Climate changes are underway in the United States and are projected to grow.
3. Widespread climate-related impacts are occurring now and are expected to increase.
4. Climate change will stress water resources.
5. Crop and livestock production will be increasingly challenged.
6. Coastal areas are at increasing risk from sea-level rise and storm surge.
7. Threats to human health will increase.
8. Climate change will interact with many social and environmental stresses.
9. Thresholds will be crossed, leading to large changes in climate and ecosystems.
10. Future climate change and its impacts depend on choices made today."

Included in the report are a series of recommendation for addressing climate change.

The House Committee on Energy and Commerce approved a markup of the proposed American Clean Energy and Security Act of 2009 H.R. 2454 today. In a statement released by the committee, committee chair Waxman stated: ""Today the Committee took decisive and historic action to promote America's energy security and to create millions of clean energy jobs that will drive our economic recovery and long-term growth."

The Bill, which still faces several more legislative hurdles, has four main components:

* A clean energy title that promotes renewable sources of energy, carbon capture and sequestration technologies, clean electric vehicles, and the smart grid and electricity transmission.

* An energy efficiency title that increases energy efficiency across all sectors of the economy, including buildings, appliances, transportation, and industry.

* A global warming title that places limits on emissions of heat-trapping pollutants. This legislation would cut global warming pollution by 17% compared to 2005 levels in 2020, by 42% in 2030, and by 83% in 2050. These are science-based targets and within the range agreed to by USCAP.

* A title that protects U.S. consumers and industry and promotes green jobs during the transition to a clean energy economy.

In a statement today, the President proposed new CAFE standards to bring about fuel efficiency and reduce emission of Greenhouse Gases. The President stated that through these new rules "we're seeking to raise fuel-economy standards to an industry average of 35.5 miles per gallon in 2016, an increase of more than eight miles per gallon per vehicle. That's an unprecedented change, exceeding the demands of Congress and meeting the most stringent requirements sought by many of the environmental advocates represented here today."

As further noted in an announcement by the White House, these standards represent a broad consensus of government, industry, the UAW and environmentalists. "Whereas these issues seemed destined to be the subject of eternal political clashing just last year, today the President was joined on stage by the Presidents, CEOs, or other top executives from Ford, Toyota, General Motors, Honda, Chrysler, BMW AG, Nissan, Mercedez-Benz, Mazda, Volkswagon, and the United Auto Workers to announce a new consensus."

The House Committee on Energy and Commerce, subcommittee on Health, introduced a bill yesterday entitled the Climate Change Health Protection and Promotion Act, H.R.2323, aimed at addressing the health effects of climate change. The general purpose of the proposed law is to require that the: "Secretary of Health and Human Services, within 2 years after the date of the enactment of this Act, on the basis of the best available science, and in consultation pursuant to paragraph (2), shall publish a strategic action plan to assist health professionals in preparing for and responding to the impacts of climate change on public health in the United States and other nations, particularly developing nations."

The proposed law appears to be, at least in part, a response to a recent report from the Environmental Defense Fund raising concern over the increasing adverse impacts of climate change upon human health and in a press release issued today the Environmental Defense Fund praised the proposed legislation.

The U.S. Geological Survey issued a report on April 3, 2009 finding that glacial ice in Antarctic is melting more rapidly than originally predicted. Noting that Antarctica contains the largest reservoir of glacial ice on the planet, the report points to climate change as the culprit.

In a statement released with the report, the USGS pointed to the importance of climate change in accelerating the loss of glacial ice. "The rapid retreat of glaciers there demonstrates once again the profound effects our planet is already experiencing-more rapidly than previously known-- as a consequence of climate change. The scientific work of USGS, which is investigating the impacts of climate change around the world, including an ongoing examination of glaciers, is a critical foundation of the Administration's commitment to combat climate change."

Giving more emphasis to the significance of this loss of ice, Jane G. Ferrigno, the lead glaciologist on the study noted: "This continued and often significant glacier retreat is a wakeup call that change is happening in our Earth System and we need to be prepared, Antarctica is of special interest because it holds an estimated 91 percent of the Earth's glacier volume, and change anywhere in the ice sheet poses significant hazards to society."

In a press release issued today by Chairman Henry A. Waxman of the Energy and Commerce Committee and Chairman Edward J. Markey of the Energy and Environment Subcommittee they announced the proposed American Clean Energy and Security Act of 2009. The draft legislation running 648 pages, outlines an ambitious program.

According to the summary of the proposed bill, the legislation: "has four titles: (1) a “clean energy” title that promotes renewable sources of energy and carbon capture and sequestration technologies, low-carbon transportation fuels, clean electric vehicles, and the smart grid and electricity transmission; (2) an “energy efficiency” title that increases energy efficiency across all sectors of the economy, including buildings, appliances, transportation, and industry; (3) a “global warming” title that places limits on the emissions of heat-trapping pollutants; and (4) a “transitioning” title that protects U.S. consumers and industry and promotes green jobs during the transition to a clean energy economy."

Apparently, the sponsors are looking to fast track action on the bill, with a plan for the Energy and Commerce Committee to "complete consideration of the legislation by Memorial Day".

The Blue Green Alliance, an organization representing labor unions and environmental groups, has issued a policy statement urging adoption of comprehensive cap and trade legislation during 2009.

In a press release announcing its position the Alliance, representing such diverse interests as the United Steel Workers and the Sierra Club, stated: "this legislation is an effective way to rapidly put millions of Americans back to work building a clean energy economy and to reduce global warming emissions to avoid the worst effects of climate change." According to the press release the group believes "[r]ising energy costs to low- and moderate-income Americans and adversely-impacted regions can be offset with rebates or tax credits. The Alliance also supports complementary regulation, including standards for renewable energy, energy efficiency resources and fuel and appliance efficiency. In addition, climate change legislation should include investments in a wide range of technologies..."

The Governor of New Hampshire has issued a Climate Action Plan. The 82 page plan seeks to implement a program that will result in a reduction of greenhouse gas emissions to 90 percent below 1990 levels by 2050.

The recommendations contained in the plan include:

"1. Maximize energy efficiency in buildings
2. Increase renewable and low-CO2-emitting sources of energy
in a long-term sustainable manner.
3. Support regional and national actions to reduce greenhouse
gas emissions.
4. Reduce vehicle emissions through state actions.
5. Encourage appropriate land use patterns that enable fewer
vehicle-miles traveled.
6. Reduce vehicle-miles traveled through an integrated multimodal
transportation system.
7. Protect natural resources (land, water, wildlife) to maintain
the amount of carbon fixed or sequestered.
8. Lead by example in government operations.
9. Plan for how to address existing and potential climate
change impacts.
10. Develop an integrated education, outreach and workforce
training program."

A Utah state senator has introduced a bill which would require undertaking an economic impact review before adoption of any legislation or executive order related to climate change. The economic analysis would include: " (a) economic impacts, if any, on existing Utah industry, business, and consumers; and (b) impact on Utah's ability to attract industry to rural Utah and urban Utah."

The proposed legislation also directs that Utah ensure that any federal regulation related to climate change "is not premature to the investigation, development, testing, redesign, and implementation of climate change technologies on a commercially successful and widespread basis." It will be interesting to see how far this proposal gets in the legislature and, if successful, whether it will start a trend among state legislatures.

The mayors of San Francisco, Oakland and San Jose California signed on to the Bay Area Climate Change Collaborative last week. The Collaborative sets specific goals for the member communities.

Included among the goals are reducing reliance on fossil fuels and creating "green" jobs. In addition, the intent is to bring other communities in the area within the Compact in order to move toward more sustainable energy and work collaboratively in combating the impacts of fossil fuels.