Becker's Iowa Environmental Law Update : Iowa Environmental Lawyer & Attorney : Charles Becker : Belin McCormick P.C. Law Firm : IA Regulatory Compliance, Site Cleanups

There is an under-reported fact that may very well save the world from those who fear global warming.  It will do it without government mandates and it will do it following tried and true capitalistic principles.  The fact?  Electric cars are faster than gas-powered vehicles.

 
A while back I posted about Lamborghini’s foray into hybrid cars.  It seemed odd to me that a gas-guzzling race car would want to “go green” by using an electric engine. Then Ferrari did the same thing.  What I didn’t focus on was that these manufacturers were just being true to their sport—they wanted to go faster. The green advantages were just a fortunate by-product.

Now we have Tesla Motors, which has already sold 700 all electric vehicles. A few facts about their cars:
 

• For $128,000 you get a car that goes 0 to 60 in 3.7 seconds;
• For $101,000 you get a car that goes 0 to 60 in 3.9 seconds;
• The federal government has provided Tesla with a loan for $465 million to produce an all  electric sedan to sell for $50,000.

These are all sorts of other facts about Tesla that are interesting . . . but none of them matter. Zero to 60 in 3.7 seconds. There are only two gas-powered production vehicles currently being built that can beat it and neither of them have a fixed gear box.

You see, we love speed.  That’s why NASCAR is the second most popular spectator sport .  Now that there’s a car that can go faster, particularly without putting gas in it,  people are going to want it.  And if the consumer, the capitalist and the environmentalist all want it, it will be built.  This time, no one is going to kill the electric car. 

There are a lot of details to work out. How do you store the energy? How far can they go on a charge? How do you get the price down? But the tipping point has been reached. Like the dinosaurs that wondered what that big explosion was, the internal combustion engine for cars is dead — it just doesn’t know it yet.

It’s conceivable that Tesla will go the way of DeLorean, but the concept has now been made feasible. When people start demanding the speed provided by the electric car in the body of a family sedan, Ford, Toyota and Honda will find a way to make it affordable. Most car manufacturers have already made major inroads into electric cars. Expect to see the first big wave of them sold to those “kooks” in California. Then Florida and Washington, D.C. (GM ought to call it the GoreMobile). Finally, Iowa. Once it hits Iowa, you can relegate the internal combustion engine to the Smithsonian.

So in the end, what does it mean for the environment? You already know the answer. Emissions from cars is the second largest source of greenhouse gas emissions.  In the United States alone, auto emissions account for 33% of carbon dioxide emissions as well as 70% of the carbon monoxide, 45% of the nitrogen oxide and 34% of the hydrocarbon emissions.  Driving a car is the largest source of pollution for most individuals. With the widespread use of the electric car, this source will be gone. It will be gone whether you are a Democrat or a Republican. It will be gone whether or not you believe in global warming.  It will be gone whether or not we have a “Copenhagen protocol."   It will be gone because electric cars are faster than regular cars and we love speed.
 

When the CD replaced the music album, I thought it was a fad.  It wasn’t, because CDs are more convenient, smaller and (arguably) produce better music. It took a worldwide change of mindset to change from albums to CDs, but the change was inevitable once the advantages became clear. And so it is with the electric car. It’s fast, so we want it. All that is left is to make it cheap. And there are whole countries that are willing to do that. 

RELATED POSTS:    Energy Use Is A Zero-Sum Game

                               Going Green: Lamborghini Revs It Up

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Traveling up a mountain is never an easy proposition -- thin air, cold temperatures and those dizzying roads that whipsaw back and forth for miles.  While I recognize the need for switchback roads to convey the traffic, I have trouble using them as a model for environmental regulation, but it seems that that is where we are today; that is, changing environmental policy 180 degrees with each change of administration.  A case in point is Coeur Alaska, Inc. v. SEACC and EPA's recently announced initiative relating to mountaintop mining.

                                                 THE COEUR ALASKA CASE

The last time we saw  Coeur Alaska, the company had just won their case before the United States Supreme Court and could fill a lake with sludge from their mining operations. They were allowed to do so because a Bush-era EPA policy, as set forth in a director's memorandum, said that it was acceptable for the Corp of Engineers to issue the permit without applying the performance standards of the Clean Water Act to the fill material.  The Court deferred to EPA's interpretation because it was "not plainly erroneous or inconsistent with the regulation[s].”

Here we are, eighty-one days since the decision and all you can say is what a difference a few days make.

                                                MOUNTAINTOP MINING REVIEW
 

On September 11th, EPA declared that all seventy-nine pending permits for mountaintop removal mining would be sent back for additional review under the term of the Clean Water Act. EPA’s concern is that these operations would “likely cause water quality impacts.”

Lisa Jackson, the EPA Administrator, attempted to emphasis that this was an "enhanced coordination process" between EPA and the Army Corps of Engineers and that it was not a change in policy. With all due respect to Ms. Jackson, I think she misspoke. It isn’t a change in law, but it is certainly a change in policy. She said as much when she told the Tampa Bay Press: “The whole permitting process had become a bit toothless.” In a year’s time, this EPA will have every molar, bicuspid, canine and incisor back in place (the jury is still out on the wisdom teeth).

                                                             THE IMPACT

The problematic holding of the Coeur Alaska case isn’t only what Coeur Alaska won, but how it won it. The Supreme Court reaffirmed that EPA has great discretion in all things environmental. In that case, the holding worked to the advantage of the business.  However,  that ruling (and others) also gives EPA the ability to quickly reverse the environmental policies of the past eight years.  I agree that to the victor goes the spoils and that changes in many areas are appropriate.  My concern is that when there is another change in EPA (one of those few guarantees in life), the road will almost certainly take a hard turn, this time to the right.  And when the inevitable happens, it will turn back yet again.

In the end, maybe switchback regulation is as necessary as switchback roads.  But while both will get you where you want to go, they certainly expend a lot of energy, and costs, to get there.  So what's the alternative?  Maybe something more permanent, like a tunnel or legislation, is preferable.  Sure they both have up front costs, but at least you minimize the whipsaw effect (that is so hard on brakes and business planning).

RELATED POSTS:  The Supreme Court and the Environment: Who Did They Really Help?

                              COEUR ALASKA, INC. VS. SEACC: When Is A Lake Really a Landfill?

                              ENTERGY CORPORATION VS. RIVERKEEPER, INC.

                              Clean Water and Mountaintop Mining No Longer Mix

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For years now, environmentalists (and most Democrats) have been lauding the virtues of wind power and solar power as the answer to America’s clean energy problem while refusing to even consider the nuclear (or nucular, depending on your party) option. Never mind that the wind appears to be slowing down and solar energy companies are failing like all other businesses.

Honest discussion of nuclear power on the political front has been nonexistent. Lamar Alexander initiated his 100-new-nuclear-facilities-in-20-years campaign and was quickly relegated to crackpot-of-the-month status. Sometime shortly after August 23, 2009, that seems to have changed. 

On that morning, John McCain appeared on This Week. McCain has long been a proponent of nuclear energy but, since the presidential campaign, he has been fairly quiet on the topic. George Stephanopoulos asked him if nuclear energy should be considered as part of the energy solution. Mr. McCain’s response was that "we can't get there from here" without nuclear power and he added:

We have got to build 100 nuclear power plants in the next 20 years. We can do that. Right now, the administration’s position is against storage and they’re against recycling of spent nuclear fuel. I can’t support a genuine reduction in greenhouse gas emissions, unless nuclear power is a key part of it.

There are a lot of Republicans that the Democrats can ignore, but John McCain isn't one of them.  As is true in most negotiations, it was not a good idea for Democrats (at the insistence of the most vocal environmentalists) to simple take nuclear power off the table.  So when McCain publicly advocated the need for a nuclear discussion, it would have been a mistake to continue to ignore the call.

And they didn’t.

Barbara Boxer, Chair of the Senate’s Committee on Environment and Public Works, has now said “there will be a nuclear title in the bill.” She has not elaborated on the comment yet, but one should expect at least a serious discussion of the nuclear option in the near future. 

Nuclear power has a lot of problems, but so do the alternatives. There is no question that solar and wind power will be part of the discussion for a long time to come.  But taking any option off of the table, particularly to appease an extreme constituency, is a mistake for either party. And give credit where credit is due -- to McCain for his advocacy and to Boxer for listening. It isn’t exactly bi-partisanship at work, but at least it’s a dialog. Now if we can all just agree on how to pronounce it . . . .

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It seems to me that “An Inconvenient Truth” gave President Obama a “free pass” when it came to justifying legislation for climate change. That is, since the movie, there has been an assumption that Congresss must address climate change and all that is left is the details. Apparently, the U.S. Chamber of Commerce didn’t see the movie. netrs5kvhi

In 2007, the U.S. Supreme Court ruled, in Massachusetts v. EPA, that EPA was required to consider whether greenhouse gas emissions (GHGs) from new motor vehicle engines contribute to climate change that may reasonably be anticipated to endanger public health or welfare. The Court gave EPA three options:

1)                  Find they do; or

2)                  Find they don’t; or

3)                  Give a reasonable explanation as to why it cannot or will not exercise its discretion to make the determination.

After reviewing 300,000 public comments and conducting two public hearings (not required by rule) to take additional testimony, EPA issued a proposed finding that six GHGs contribute to air pollution that may endanger public health or welfare and that  emissions of four GHGs from new motor vehicle engines are contributing to air pollution which is endangering public health and welfare.

The Chamber, recognizing that the finding will result in major (and costly) emission limits being imposed on new cars, has requested EPA to hold a public hearing to put "the science of climate change on trial.” In an extremely unfortunate turn of phrase (later retracted), William Kovacs, the Chamber’s Senior Vice President for Environment, Technology and Regulatory Affairs, said it would be the“Scopes monkey trial of the 21st Century.” (I say unfortunate because it allowed Carl Pope, President of Sierra Club, and others, the opportunity to attack Mr. Kovac’s credibility by pointing out that the Scopes monkey trial was an incredible abuse of the judicial process in that it suppressed science—exactly the opposite of what the Chamber contends it wants to do at an EPA hearing).

The Chamber has filed an 84-page Petition  and a 20-page supplemental filing in support of its request that there be a hearing on the EPA’s endangerment finding.  In the Petition, the Chamber admits that EPA is not legally required to conduct a hearing (footnote 119). Rather, the Chamber implores and cajoles (I’m understating) EPA to be “open and transparent” in the rulemaking process and, given the enormous gravity and expense of the finding, to conduct an adversarial hearing on the question.

The Chamber contends that EPA has failed to properly identify the scientific basis for findings that GHGs endanger the public health and welfare. In their words (p. 6 of 79):

[Our] comments focus on whether the scientific evidence developed and relied upon by EPA adequately “connects the dots” to the extent required by law to satisfy EPA’s purported test for endangerment -- that local action contributes to global pollution which then endangers local public health and welfare -- and kick off the regulatory cascade the Proposal almost surely will engender.

It is interesting to note that the Chamber acknowledges that EPA has shown that atmospheric concentrations of GHGs are increasing (p. 7 of 79) and that the EPA could find that GHGs are potentially causing climate change (p. 8 of 79). Their complaint is that EPA hasn’t shown the science to support a finding that the GHGs are hurting anyone.

The Chamber’s point is a classic (and valid) cost/benefit analysis argument: There should be an adequate (i.e. scientific) showing of harm before billions are spent to correct the perceived problem.

While the Chamber may have a point, it certainly has the wrong forum and even worse timing.

EPA has done everything required of it by Massachusetts v. EPA and the rulemaking procedures. It has received and reviewed over 300,000 comments and it has held two hearings that were not required by the rules. The Chamber, and everyone else in the country, has been able to submit comments as contemplated by rulemaking procedures. Apparently, the Chamber doesn’t like the comments that were relied upon by EPA or the conclusion being proposed. But that is the nature of rulemaking. If the Chamber believes that an adversarial process, with witnesses and an administrative law judge, should be required to make rules, it needs to go to Congress and get the process changed (remembering, of course, that next time it might be the Chamber’s ox that is Gored).

Filing a petition for an arguably unavailable proceeding, after the extensive comment review by EPA, was as ill-conceived as calling it the next Scopes monkey trial. The Chamber will have its opportunity to make a legal challenge in the future and it has already promised to do so. Filing an 84-page Petition, consumed mostly with comments designed to shame EPA into a hearing by saying that it hasn’t been transparent enough (though it has gone beyond the rulemaking requirements) does not help the cause of those who believe that the United States is about to embark on a very expensive experiment.

And as to a trial, should there be one in the future, I would suggest that the Chamber be careful what it asks for. If it is determined that:

1)                  GHGs are increasing; and

2)                  The increase in GHGs is causing climate change; and

3)                  There are methods available to reduce GHGs,

does the Chamber really think that it’s going to win over public opinion that nothing should be done?   Try as it might, the Chamber is not going to successfully relabel the movie "An Inconclusive Truth."  Too much time has passed with too many people being too afraid of the science they have heard.  In current jargon, the tipping point has come and gone.  Before it loses all credibility, the Chamber should address the extent to which Congress should act. That, I would suggest, is the real battlefield.

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