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This week the Federal District Court for  the District of Columbia found that the United States Bureau of Land Management (BLM) failed to adequately consider the potential impacts of oil and gas leases on climate change. In Wildearth Guardians v. Zinke, the Court noted:

“Climate change, and humanity’s ability to combat it, are increasingly prominent topics of public discourse. This case concerns the attention the government must give climate change when taking action that may increase its effects.”

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Last week the Department of Defense (“DOD”) released a report concerning the impacts of climate change on 79 of its installations, as well as DOD operations. The report found increasing effects from sea level rise, wild fires and other aspects of climate change.

”The Mlitary Departments noted the presence or not of current and potential vulnerabilities to each installation over the next 20 years, selecting from the events listed below. Note that the congressional request established the 20-year timeframe.
Climate-Related Events
 Recurrent Flooding
 Drought
 Desertification
 Wildfires
 Thawing Permafrost”

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The second volume of the National Climate Assessment was issued on November 23. The Report clearly states that Climate Change is getting worse, temperatures are increasing at rates unprecedented in modern times and humans are contributing.

”However, the assumption that current and future climate conditions will resemble the recent past is no longer valid (Ch. 28: Adaptation, KM 2). Observations collected around the world provide significant, clear, and compelling evidence that global average temperature is much higher, and is rising more rapidly, than anything modern civilization has experienced, with widespread and growing impacts (Figure 1.2) (CSSR, Ch. 1.9). The warming trend observed over the past century can only be explained by the effects that human activities, especially emissions of greenhouse gases, have had on the climate (Ch. 2: Climate, KM 1 and Figure 2.1).”

The Report “…concludes that the evidence of human-caused climate change is overwhelming and continues to strengthen, that the impacts of climate change are intensifying across the country, and that climate-related threats to Americans’ physical, social, and economic well-being are rising. These impacts are projected to intensify—but how much they intensify will depend on actions taken to reduce global greenhouse gas emissions and to adapt to the risks from climate change now and in the coming decades (Ch. 28: Adaptation, Introduction; Ch. 29: Mitigation, KM 3 and 4).”

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The report issued this week, by the Intergovernmental Panel on Climate Change (IPCC), laid out both a scenario for dire impacts from Climate Change and an opportunity to avoid many of those impacts.  The report notes there is still an opportunity to avoid some of the worst effects of Climate Change but the window of opportunity is rapidly shrinking.

The report concludes it is essential to limit the increase in global temperatures to 1.5 C degrees by 2030 in order to avoid some of the most catastrophic impacts of Climate Change. The report notes:

“D1 …Avoiding overshoot and reliance on future large-scale deployment of carbon dioxide removal (CDR) can only be achieved if global CO2 emissions start to decline well before 2030 (high confidence).”

 

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A recent peer reviewed article raises the the strong possibility of reaching an irreversible threshold in climate change. The article raises the serious potential for what is called “Hothouse Earth” where an irreversible tipping point of climate change is reached.

Published in the Proceedings of the National Academy of Sciences of the United States of America the article notes:

“We explore the risk that self-reinforcing feedbacks could push the Earth System toward a planetary threshold that, if crossed, could prevent stabilization of the climate at intermediate temperature rises and cause continued warming on a ‘Hothouse Earth’ pathway even as human emissions are reduced.”

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Earlier this month the government issued its fourth climate science report (NCA4) which, among other things, reinforces the scientific evidence of the contribution by humans to climate change. It is important to note the Report is mandated by the Global Climate Assessment Act of 1990 and was prepared by a group of agencies and individuals with significant credentials:

“The National Oceanic and Atmospheric Administration (NOAA) serves as the administrative lead agency for the preparation of NCA4. The CSSR Federal Science Steering Committee (SSC)1 has representatives from three agencies (NOAA, the National Aeronautics and Space Administration [NASA], and the Department of Energy [DOE]); USGCRP; and three Coordinating Lead Authors, all of whom were Federal employees during the development of this report. Following a public notice for author nominations in March 2016, the SSC selected the writing team, consisting of scientists representing Federal agencies, national laboratories, universities, and the private sector. Contributing Authors were requested to provide special input to the Lead Authors to help with specific issues of the assessment.”

A sampling of the sobering conclusions of the Report regarding the increasing human influence on climate change, the already extreme impacts and the potential for even more severe effects are quoted below: Continue reading →

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San Francisco has filed a lawsuit in California State Court, for public nuisance, against a number of oil companies based upon their alleged contribution to sea level rise, due to fossil fuel emissions . The complaint, which names BP, Exxon, Chevron and other oil companies, seeks a direction that the companies set up an abatement fund to assist in combating the impacts of sea level rise,  an effect of climate change.

The complaint cites reports that, going back to the late 1970s or early 1980s, the companies were aware that fossil fuel use had adverse impacts on the climate,  yet they promoted fossil fuels as safe and beneficial.

“Defendants, notably, did not simply produce fossil fuels. They engaged in large-scale sophisticated advertising and relentless public relations campaigns to promote pervasive fossil fuel usage and to portray fossil fuel as environmentally responsible and essential to human-well being even as they knew that their fossil fuels would contribute, and subsequently were contributing to dangerous global warming and associated accelerated sea level rise. These promotional efforts continue through today…”

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Nine states from the Northeast and Mid-Atlantic that form the Regional Greenhouse Gas Initiative (RGGI) have set out new goals for Greenhouse Gas (GGH) emissions reductions post 2020. In a press release issued last week, the RGGI states set out their consensus for a proposed ambitious program to further reduce Greenhouse Gases.

As noted in the press release:

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The  Court of Appeals for the D.C. Circuit determined that, under the Clean Air Act, the EPA lacked authority to stay implementation of a new rule on Greenhouse Gas (GHG) Emissions. In Clean Air Council v. Pruitt, the Court  found that the stay was arbitrary, capricious and in excess of the authority of the EPA Administrator.

In June 2016, the then EPA administrator issued a rule regarding leaks of methane and other oil and gas pollutants. The rule required,  among other things, an “initial monitoring survey” be conducted by June 3, 2017. In April, 2017 the new EPA administrator, Scott Pruit, issued a letter indicating the EPA would reconsider the rule and intended to issue a 90 day stay of the rule, as permitted under the Clean Air Act (CAA).  The required notice of reconsideration was published on June 5, 2017, two days after the initial monitoring was to have been completed. The notice provided for the following reconsideration and 90 day stay:

“…reconsideration on four aspects of the methane rule: (1) the decision to regulate low-production wells, (2) the process for proving compliance by “’alternative means,’” (3) the requirement that a professional engineer certify proper design of vent systems, and (4) the decision to exempt pneumatic pumps from regulation only if a professional engineer certified that it was “’technically infeasible’” to route such pumps “’to a control device or a process.’” 82 Fed. Reg. at 25,731–32. In addition, the notice “’stay[ed] the effectiveness of the fugitive emissions requirements, the standards for pneumatic pumps at well sites, and the certification by a professional engineer requirements’” for 90 days “’pending reconsideration.’” 82 Fed. Reg. at 25,732. The notice explained that the stay had gone into effect on June 2, 2017—that is, three days before the notice was published in the Federal Register. 82 Fed. Reg. at 25,731.”

However, on June 16, 2017 another notice was issued advising of the intent to reconsider the entire 2016 rule and to extend the stay for two years. After the suspension, several environmental groups brought the action seeking alternatively a stay or  vacating the actions of the EPA Administrator, on the grounds that the: “…EPA’s stay violates CAA section 307(d)(7)(B) because “’all of the issues Administrator Pruitt identified could have been, and actually were, raised (and extensively deliberated) during the comment period.’”

The EPA and industry parties argued that the stay and reconsideration was not a final agency action and therefore the Court lacked jurisdiction to review it. The Court concluded it does have jurisdiction due  to the nature of the action.

“…EPA has not only concluded that section 307(d)(7)(B) requires reconsideration, but it has also suspended the rule’s compliance deadlines. EPA’s stay, in other words, is essentially an order delaying the rule’s effective date, and this court has held that such orders are tantamount to amending or revoking a rule.”

The Court noted that, as the initial monitoring was to be completed by June 3 and repairs of leaks performed within thirty days of June 3, with potential penalties of non-compliance, “[t] he stay—which EPA made retroactive to one day before the June 3 compliance deadline—eliminates that threat, see 82 Fed. Reg. at 25,731, and thus relieves regulated parties of liability they would otherwise face.”

The Court went on to say that the EPA’s argument that the Court could impose a stay upon a regulation being imposed but could not prevent the EPA’s stay of a regulation, would have a “perverse result”. It further noted that the CAA provides specific criteria be met in order to permit the stay of a final rule. The test is ” that it was “’impracticable to raise’” an objection during the public comment period and the objection is “’of central relevance to the outcome of the rule.’” Only when these two conditions are met does the statute authorize the Administrator to stay a lawfully promulgated final rule.”

In addressing the EPA’s lack of authority to issue the stay in this instance the Court held:

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Despite the President’s decision to do nothing about Climate Change and to outright reject the Paris Climate Accord, a group of states, cities, businesses and universities have decided to do what they can to fulfill the pledge the federal government has now decided to reject.  As noted in an article in the New York Times, the as yet unnamed group has reached out to the United Nations seeking to carry out the pledges made by the United States as part of the Paris Accord, during the Obama administration.

As noted in a another article, published by NPR, summarizing the Paris Agreement and its goals:

“Representatives from 196 nations made a historic pact on Dec. 12, 2015, in Paris to adopt green energy sources, cut down on climate change emissions and limit the rise of global temperatures — while also cooperating to cope with the impact of unavoidable climate change.

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