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

The game show that is Congress is nearly done with its first act of the new year.  The performer, Health Care Reform (H.C.R.), started out great.  In her first thirty seconds she hit all the high notes and put on a show that would make Madonna blush. But the last minute was a killer.  The stones started flying.  A couple of the 60 mice (an integral part of the show) refused to dance until they got some extra pay. And parts started falling off of her costume until, in the end, she was almost unrecognizable from her entrance.  Simon and company were brutal on the act.  We'll just have to wait for the public's official vote, but it doesn't look good.

If you look carefully in the wings, you'll see the next act. It's a big guy, probably a baritone, and he's . . . trembling like a wet kitten  C.C.L. (Climate Change Legislation) has been watching what happened to H.C.R. and appears to be looking for the exit.  A quick text message to bolster C.C.L.'s spirits might be in order:

C.C.,

You need to buck up, kid. It's not as bad as it looks. Let me give you three great reasons why they're gonna love you.

First, you're not even distantly related to H.C.R.  Sure, you've got the same promoter, but you've been practicing a lot more than her and the number you're going to do is a lot more popular.  Comparing your acts is  like comparing apples and cars -- you'd like to have them both, but one has nothing to do with the other.

Second, you may not know it, but your fan club grew last week.  You know that group that you thought hated your song?  A bunch of them actually love it!  Turns out that they think they can might be able to make some money off of it. Two separate corporate groups, having a total of more than 150 businesses want you to succeed.  I'm talking heavy weights here: Toyota, Alcoa, PepsiCo, Shell and Campbell's.  The Republican members of the audience, the one's with the really big rocks, are going to think twice about sending those rocks your way with supporters like these.  Don't believe me?  Listen for yourself.  One group put an ad in the Wall Street Journal and said:

How will America take back control of its energy future while enhancing our national Security? . . . How can we protect our natural resources and future generations from climate change? . . . We believe it's time for Democrats and Republicans to unite behind bi-partisan, national energy and climate legislation that increases our security and limits emissions, as it preserves and creates jobs.  It's a question of American leadership.

And another group sent a letter to the President and Congress saying:

American business leaders from companies of all sizes and sectors of our economy call on you to move swiftly and boldly to enact comprehensive energy and climate legislation. . . .  We need strong policies and clear market signals that support the transition to a low-carbon economy and reward companies that innovate. . . . We stand ready to to work with you to create and grow this important economic sector.  Now is the time to act.  Together we can lead.

Wow!  You can almost feel the love.  And this comes from the group that everybody said didn't like your song.  All H.C.R ever got was hate mail and death threats.  You've got some great buzz. 

And finally, news from the group that actually counts --your  voting public.  Two new polls show that there is strong bipartisan support to take action on climate change.  I know it sounds contrary to what you heard last week, but do polls lie?   That's your song that they're talking about!  (A small word of advise: Before you start singing, announce that your song is in support of making America safer from our enemies.  Don't ask why, just do it).

I see that Simon is just about done ripping apart . . . err . . . providing creative criticism to H.C.R.  In a few minutes it will be your turn.  Stand up straight, look the camera in the eye and belt out that song like our life depended on it (because it just might).

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When one car collides with the side of a second car, the results are usually bad.  That's what T. Boone Pickens recently did to wind power.  The funny thing is, they used to ride in the same car.

T. Boone is the promoter of what is referred to as the "Pickens Plan."  That Plan originally emphasized wind power as its solution to the energy and foreign oil problem.  He even planned a 4,000 megawatt wind farm in Texas and went so far as to order 667 turbines from GE to get the project started.

The wind plans are no more. While the Pickens Plan will go on, it is now focused on natural gas as the solution. The question is why the change of heart. 

Well, for T. Boone, it's not so much a change of heart as it is a change of wallet.  He has explained that the price of natural gas is so low that it doesn't make sense to pursue the relatively more expensive wind solution.  Recognizing that T. Boone has more money than most individuals, corporations or countries, does this mean that wind energy is dead?  It doesn't appear so.

Currently, the U.S. has 31,109 MW of wind power production, with another 5,567 being planned.  Wind projects in Iowa and Canada are moving forward.  130 turbines off of the coast of Massachusetts appear to be close to approval.  China is likely to become a world-wide leader in wind generation and is placing turbines both in China and the U.S.  Europe is scheduled to pick up 1,000 MW of wind energy this year.

Certainly the recession and T. Boone have delivered blows to the wind industry.  But these seem to be temporary problems.  While cost is an issue, subsidies for every sustainable energy source will be necessary to make them viable.  For wind, the real issue is creating the transmission lines necessary for delivery of the wind energy from the areas that have the wind to the areas that need the energy.   That's an issue that the Midwestern states will need to address soon.  But don't count out wind just because T. Boone is a bad driver.  The accident didn't total the car, it just left it a little dented.   All indications are that wind will continue to be a significant player going forward. 

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I will not make it a practice to review cases from other countries — there are enough interesting ones from our own courts. However, a case decided on November 3, 2009, in London is worth a look. 

The case is entitled Grainger, P.L.C. v. Mr. T. Nicholson. It was in the Employment Appeal Tribunal which hears cases of employment discrimination. The case was at a very early stage, similar to our summary judgment proceeding.

 Mr. T. claimed that he was terminated unfairly by Grainger, P.L.C. because he was discriminated against based on his asserted philosophical belief concerning climate change and the environment. In particular, Mr. T. contended that:

I have a strongly held philosophical belief about climate change and the environment. I believe we must urgently cut carbon emissions to avoid catastrophic climate change. 

 

It is not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and my fears.

The trial judge decided that Mr. T's claim of discrimination was not cognizable under English law. He ruled that Mr T’s philosophical belief could not be the basis for a wrongful termination claim because the regulation in question stated that discrimination against another person occurs if, “on the grounds of the religion or belief of B, A treats B less favorably than he treats or would treat other persons.” The regulation also provided that “belief” means “any religious or philosophical belief.” The trial judge held that belief in climate change did not rise to the level of a philosophical belief protected by the regulation. The appellate court disagreed.

On review, the Court examined the regulations and quickly determined that the problem was the definition of “philosophical belief.” The Court went on to define the standard of when a philosophical belief rises to the level of a protectable interest, at least under the English employment regulation. He held that there were five conditions which must be satisfied for a philosophical belief to be protected:

1.      The belief must be genuinely held;

2.      It must be a belief and not an opinion or viewpoint based on the present state of information available;

3.      It must be a belief as to a weighty and substantial aspect of human life and behaviors;

4.      It must obtain a certain level of cogency, seriousness, cohesion and importance; and

5.      It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

(Now here is a judge who understands how to create a standard that trial attorneys can embrace).

In applying the standard to the case of Mr. T, the Court held that his philosophical belief about climate change and the environment could, indeed, satisfy each of the five conditions. He was careful not to say that Mr. T.’s belief did, in fact, satisfy each of the conditions because the testimony had not yet been presented that would challenge, for example, whether the belief was genuinely held. Also, the Court didn’t address the question of whether the employer’s act of dismissal was in retaliation for Mr. T. acting on his belief or for some other reason. Those questions remain for trial. The Court simply held that a belief in climate change could be a protectable, philosophical belief.

So, what else might be deemed a philosophical belief worthy of protection? Interestingly, the opinion gives a number of examples: Humanism, veganism, pacifism, vegetarianism, socialism, Marxism, communism, capitalism and abstinence from alcohol made the cut. The Court saw all of these satisfying the five-part test.

What didn’t qualify? The opinion was a bit sparse on examples, but the Court explicitly found that racism and homophobia would not be philosophical beliefs that are worthy of respect in a democratic society.

In perhaps the unkindest cut of all, the Court found that a belief in the supreme nature of Jedi Knights would “fail on the basis of non-compliance with at least four of the limitations suggested above.” The Court did not identify which limitation might be satisfied.  (The next London Comic Con should be lively).

Some have said that the opinion could be used to show that climate change is, in the end, a matter of faith, not science. Others contend that it does not stand for that proposition.  

As luck would have it, we don’t need to address the issue because the case wasn’t decided in the United States.  However, before one jumps to the conclusion that it couldn’t happen here, I would point out an interesting statement recently made by Representative Nancy Pelosi at the Detroit motor show where she said that green technology is "a moral issue if you believe, as we do, that this planet is God’s creation.” 

If she's right, I wonder if there is an argument about separation of church and state somewhere in there.

 RELATED POST: Is Climate Change a Fact or a Philosophy?

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Let there be no question: EPA is very serious about adding significantly to the requirements imposed on developers, cities, homeowners and businesses relating to stormwater discharges from development and redevelopment sites.  Either that, or someone in the stormwater section forgot to take a break for the holidays.

EPA has decided that it will hold five "listening sessions" designed to elicit input as to whether it should "strengthen stormwater regulations and to establish a comprehensive program to reduce stormwater from new development and redevelopment."  Bear in mind that this is in addition to the proposal to send a 61-page questionnaires to 1000 developers seeking financial and project information. 

The press release for the listening sessions provided the following description:

EPA seeks input on the following preliminary regulatory considerations: expand the area subject to federal stormwater regulations; establish specific requirements to control stormwater discharges from new development and redevelopment; develop a single set of consistent stormwater requirements for all municipal separate storm sewer systems; require those sewer systems to address stormwater discharges in areas of existing development through retrofitting the sewer system or drainage area with improved stormwater control measures; and explore specific stormwater provisions to protect sensitive areas.

The sessions will be held:

·         January 19, 2010, 10 a.m. to 3 p.m. at EPA Region 5 Office, 77 W. Jackson Blvd., Chicago

·         January 20, 2010, 10 a.m. to 3 p.m. at EPA Region 9 Office, 75 Hawthorne Street, San Francisco, Calif.

·         January 25, 2010, 10 a.m. to 3 p.m. at EPA Region 8 Office, 1595 Wynkoop Street, Denver, Colo.

·         January 26, 2010, 10 a.m. to 3 p.m. at EPA Region 6 Office, 1445 Ross Avenue, Suite 1200 Dallas, Texas

·         January 28, 2010, 10 a.m. to 3 p.m. at EPA HQ Office, Ariel Rios Building, 1200 Pennsylvania Ave. NW, Washington, D.C.

The public can register by going to the Web site below.

EPA will accept written comments on the preliminary rulemaking considerations until February 26, 2010.

More information on listening sessions, the potential rule and instructions for submitting written comments: http://www.epa.gov/npdes/stormwater/rulemaking

Those who will be affected need to take this initiative very seriously.  According to the FederalRegister, EPA is relying heavily on a report of the National Resource Council entitled "Urban Stormwater Management in the United States."  This document is a light read of 529 pages and it advocates a fundamentally new system of stormwater regulation which would impose additional costs and substantially greater regulatory oversight, particularly for cities.  The new system discussed by NRC would apply not only to "building on previously undeveloped sites, but also to redeveloping and retrofitting existing development" (page 406).  Rather than apply to individual sites, the new permitting system would be "watershed based" (pages 346, 387 and 419).  That is, the entire watershed, wherever it is located, would be the permitted area, requiring heavy involvement by cities.  According to the report:

At the heart of the proposal for a new system of regulating discharges to the nation's waters is issuing permits to groups of municipalities in a watershed operating as co-permittees under a lead permittee.  Furthermore, the proposal envisions these municipal permittees assuming responsibility for and implementing the permits for all public and private dischargers in their jurisdiction. (Page 411).

This is your chance.  Written comments can be made or, if you're near one of the five cities, you can go and be heard (so long as you sign up by January 15th and you limit your comments to three minutes).  Speak now or forever hold your stormwater.

Related Posts: Stormwater Regulation of Developed Sites Coming?

                       New Stormwater Regulations Rain Down on Developers

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