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

As everyone expected, multiple challenges were made when EPA finalized its "endangerment finding" -- the determination that greenhouse gases presented a substantial risk to human health and welfare.   The U.S. Chamber of Commerce led the charge in asking EPA  to reconsider its finding.  Not surprisingly,  EPA denied the petitions. 

While the denial was not unexpected, the vigor of the response may have come as a bit of a surprise to some.  In issuing its denial, EPA:

• Put out a press release that not only said that "climate science is credible, compelling, and growing stronger," but that deniers should "join with the vast majority of American people who want to see more green jobs, more clean energy innovation and an end to the oil addiction that pollutes our planet and jeopardizes our national security;"
• Issued a 217 page decision that provided a thorough explanation of each point needed to support its finding;
• Set out, in 366 pages, an analysis of the points raised by the objectors with detailed responses to each point;
• Published a "Fact Sheet" and a recitation of purported  "Myths v. Facts" that lacked only a discussion of the deniers' questionable ancestry in their critique.

In short, EPA fired both barrels and the result is that it will be very difficult for any court to reverse the finding.

So where to the objectors go from here?  On to court, of course.  At least five of the petitioners have already said that they plan to appeal. The Chamber has said:

We are deeply disappointed with EPA's failure to reconsider its flawed decision to regulate greenhouse gases under the Clean Air Act.  We intend to appeal the ruling.

While the decision to appeal is not surprising, the question is whether it is prudent.

The 60-vote Senate has just given up on climate change legislation.  There are plenty of fingers being pointed, but that won't change the decision.  One could say that the deniers are in the best position they could possibly hope for:  No legislation, with EPA promising to issue weak rules to a limited number of industries that likely will be difficult to enforce.  And now, a trial on the science of climate change. 

Is this a smart idea?  Is it smart to hand EPA a very visible forum to lay out what appears to be a fairly persuasive case (if its denial reports are believed) that climate change is real and must be addressed?  Will the 50% - 60% who now believe in the science turn into 80% - 90% after seeing the evidence that the Chamber will force out into the public domain?  And if so, will it result in one or two Senators (maybe more) deciding that perhaps they need to change their vote if they want to save their job?

Maybe not.  Maybe the Chamber really can beat the EPA on the science.   But it really would be ironic if the Chamber caused legislation to be reconsidered after a Scopes Monkey trial where science actually prevailed.  

RELATED POSTS: Monkeys and Science, Part Deux 

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A lot of people are drawn to far-fetched technological ideas:  cold fusion, floating cars, that sort of thing.  The crazy people (a/k/a future geniuses) who devote their lives to develop these kinds of marvels almost never succeed, but  they often come up with other innovations that push us forward.  For example, John Pemerton, looking for a cure for headaches, invented Coke  (well, not always forward).  So it is with climate change innovations.

One fairly simple idea to address global warming is to reflect the sun's rays back into the atmoshere, otherwise known as solar radiation management, one aspect of geoengineering.  As your third grade science teacher would tell you, this will help prevent the mass (the land, or ocean, or building) from heating up.  But to affect global warming, it needs to be done on a large scale, and  that presents risks. 

The extreme of this theory is a relector in space that could reduce the amount of sunlight getting to the earth -- great idea, impossible (at the present time) to execute.  So how do you reduce that concept to a more workable proposal that presents less risk?  There have been two recent attempts that are worth noting.

PAINT OVER THE PROBLEM

A Peruvian inventor, attempting to save a rapidly melting glacier, came up with a simple solution -- paint the rocks around the glacier white.  The white rocks will reflect more of the sun's rays and will reduce the temperature of the surounding land which will, in turn, reduce melting of the glacier.  The painting has begun and only time will tell if it will succeed.

COVER IT UP

Another example, based in the I-should-have-thought-of-that school, is being used  to slow the rate of snow melt in the mountains of Northern Italy.  A giant, white blanket is put on top of the snow to reflect the sun's rays.  If the sun's rays can't reach the snow, the snow won't melt.  It's simple, efficient and can be done by a handfull of dedicated people.

I point these out because these are the type of climate change solutions that should appeal to almost everyone.  A majority of people currently believe that climate change is ocurring.  The fight comes over whether the change is man-made or natural and whether the huge expense of finding a solution is necessary or appropriate.  These recent examples avoid these arguments.  The solutions don't attempt to trap or eliminate man-made CO2 or reduce green-house gas emissions.  They don't point the finger at man or nature. They don't even ask anyone to alter their life style or to save electricity.  They do their job quietly, apolitically and efficiently and ask nothing in return.  If they work (which should be easy to verify in fairly short order), they can be expanded upon.  It's one of those small steps that can lead to great things.  That, to me, is innovation.

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I recently posted on the new, federal Renovation, Repair and Painting Rule that is designed to address lead paint when encountered in home renovation.  Some changes were made to the Rule, but a delay of implementation of the Rule was refused by EPA even though the changes resulted in doubling the number of regulated companies.  However, it looks like EPA has had a slight change of heart.

Cynthia Giles, EPA's assistant administrator for enforcement, issued  "Further Implementation Guidance" on June 18th stating that no EPA enforcement action will be taken against renovation and repair firms for failing to be certified until October 1st, thus allowing a delay of about four months for those firms who have not yrt received  their certification.  Also, for individual workers who have not yet obtained their training, they can avoid enforcement action if they apply to enroll in a class by September 30th and their training is completed by December 31, 2010.  All lead safe work practices required by the Rule will apparently continue to be enforced.  Further, there could still be state enforcement in states that have passed laws to implement the program, those being Wisconsin, Iowa, North Carolina, Mississippi, Kansas, Rhode Island, Utah and Oregon.

The delay was at the request of National Home Builders Association, which has argued for more than a year that the training timetable imposed by EPA was impossible to meet. 

This is the kind of action that can cause one (or more) to lose confidence in their regulatory agencies.  It isn't that the delay was a bad idea -- doubling the number of of the regulated entities would cause difficulties even to the best run program.  The problem is that it took a flood and a vote by the Senate to get them to move. And then when they did finally act, it was so late that different renovators (some who made the deadline and some who did not) in different parts of the country (some in states with their own laws and some without) will be affected differently.  Not a great start for the program.

RELATED POSTS: Time To Get The Lead Out  

                            Some Weighty Changes In Lead Paint Rule 

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EPA has now completed its revisions to the Lead Renovation, Repair, and Painting Program ("RRP") and has published the revised rule.  The rule has three changes that should be noted by all renovators that work on pre-1978 homes and child-occupied buildings.

First, there are minor changes to certification, accreditation and state authorization requirements.  I would note that since I last posted on the lead rules, Utah, Rhode Island, Kansas, Mississippi and North Carolina have joined Iowa and Wisconsin as accredited states to run the RRP Program.

Second, renovation firms are now required to provide a copy of the records demonstrating compliance with the training and work practice requirements of the RRP rule to the owner and if the owner of the building is not the occupant, then the occupant must also be provided with a copy of the records. This information must be supplied when the final invoice for the renovation is delivered or within 30 days of the completion of the renovation, whichever is earlier. 

Finally, and of most significance, an important provision was deleted as part of a settlement of an action brought against EPA.  Under prior versions of the rule, an owner-occupier could opt-out of the rule requirements if the renovator received a signed certification that there was no child under age 6 or pregnant women residing in the home and the home was not a child-occupied facility.  Under those circumstances, the owner could avoid the added costs imposed by the terms of the RRP.  In the final rule, this opt-out provision was eliminated.  EPA estimated that eliminating the opt-out provision will double the number of renovators that need to be certified -- from 110,000 to 220,000 firms.  For that reason, EPA considered delaying the effective date of the rule. After some interesting analysis by EPA relating to the number of firms that specialized their work based on the occupancy of the building, it concluded that no delay was necessary (EPA admitted that it did no analysis to make its determination) and the rule will become effective on July 6, 2010.  I think it is safe to say that it will be a busy time for the RRP training facilities. 

In two related notes, EPA has filed a notice of proposed rulemaking that would require renovators to do dust-wipe testing after most renovations and then provide the results to the owners and the occupants.  Comments will be taken for 60 days.  The rule will likely go final by July 2011.  EPA is also considering a rulemaking to require lead-safe work practices for renovations on the exterior, and possibly interior, of public and commercial buildings.

RELATED POST: Time To Get The Lead Out

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I recently posted on an article authored by Paul Krugman, a highly regarded economist, on his analysis of how to address climate change. I was a bit critical of his choice to spend a considerable amount of time discussing science rather than economics, but I have a much more fundamental problem with the piece: He gave up on economics.

In the last 2500 words of his article, Mr. Krugman decides he needs to make the case for immediate action on climate change so he sets up the classic straw man of “what if we don’t act?” He declares that disaster is certain but that the magnitude of the disaster is uncertain. Based on this uncertainty, Mr. Krugman says:

You might think that this uncertainty weakens the case of action, but it actually strengthens it. As Harvard’s Martin Weitzman has argued in several influential papers, if there is a significant chance of utter catastrophe, that chance -- rather than what is most likely to happen -- should dominate cost-benefit calculations. And utter catastrophe does look like a realistic possibility, even if it is not the most likely outcome policy.

Weitzman argues -- and I agree -- that this risk of catastrophe, rather than the details of cost-benefit calculations, makes the most powerful case for strong climate change.

Spoken like a true politician. That pesky, economics-based cost-benefit analysis needs to go.

Where have you heard this type of argument before?  This is the same argument made by Dick Cheney to justify pursuing Al Qaeda. It is known as the precautionary principle, or the one-percent doctrine based on Mr. Cheney’s statement:

If there’s a 1% chance that Pakistan’s scientists are helping Al Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response . . . .

In other words, if there’s a small likelihood, even a one percent chance, of a catastrophic event (such as global warming), then doing a cost-benefit analysis that might result in no immediate response would apparently be . . . well . . . “criminally irresponsible” according to Mr. Krugman.

There are any number of possible responses to that statement, but being a family-friendly blog I will simply say: You have got to be kidding me. We’re going to quit looking at other options based on the 1% possibility of catastrophe? We’re going to ignore the opportunity costs of that decision? We’re going to overlook the downside risk  inherent in such a strategy? And we’re going to do this as a matter of policy for the entire world?  Really?

Allow me to give a few reasons for why such a strategy might not be insanity, but is a very close relative.

First, the precautionary principle is the ideal argument for people who have run out of arguments.  It says: "Ok, ok you’re right almost all of the time, but I might be right a small percentage of the time, so we’re going with my idea."  While I admit that there will be a certain number of politicians that will like this argument (which group will, of course, change depending on who controls Congress), it isn’t a sound basis upon which to promulgate national policy.

Second, where do you draw the line?  What is sacrosanct about a 1 in 100 chance? What about 1 in 1,000,000 or 1 in 10? There has to be a line somewhere. Should we spend years arguing about where it is, or will it be determined, once again, by who has the biggest stick?

Finally, as every trial attorney can tell you, there is an expert for everything. In other words, there will always be someone who can dream up some example of a small chance of a catastrophe. It really isn’t hard to do. (There’s a great Dan Akroyd SNL skit where he justifies selling a “Bag-O-Razor-Blades” to children because they might have a small chance of getting hurt by chocking on their toy bear anyway, so it’s OK for him to sell razor blades. Well, maybe this would actually be the non-precautionary principle.  The precautionary principle would be to prohibit the selling of the bear).

Using the precautionary principle for environmental policy (as EPA seems to be proposing), or war policy or any other public policy, is wrong. It circumvents honest debate and ignores costs. Mr. Krugman, as brilliant an economist as you are, stick to your area of expertise. Don’t throw out cost-benefit analysis just because it doesn’t fit your political beliefs at the moment (though it, too, has problems). You can still get where you want to go (to encourage immediate action on climate change), but do it using the tools of the discipline you know. Keep economics above the fray, don’t drag it down to the political level.

RELATED POST:  Paul Krugman and the Non-Economics of Climate Change
 

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Paul Krugman is a very smart guy. I get that. He is a Nobel laureate in economics, advises presidents and routinely appears on talk shows. The only thing we have in common is that we both have B.A.’s in economics. So it’s good to know that even he can go too far, like the rest of us mere mortals.

In an enlightening piece in the New York Times Magazine, Mr. Krugman gives an 8000 word dissertation on the economics of climate change.  Everyone should read it.  He spends the first 2000 words discussing the types of economic solutions that can be used to address climate change and concludes that a workable, market-based approach to regulation, such as cap and trade, is the logical solution. It is a great explanation of a confusing subject.  He should have stopped there. But he didn’t:

This is an article on climate economics, not climate science. But  [insert Wilhelm Scream here]  before we get to the economics, it’s worth establishing three things about the state of the scientific debate.

Mr. Krugman then feels compelled to discuss the science of climate change -- something in which he is not an expert. He makes the same conclusory statements that are the hallmark of climate change advocates and quickly falls into the compulsory lexicon of massive destruction:

“the upward trend [in temperature] is unmistakable”

“precipitation pattern will change . . . sea levels will rise”

"a rise in global temperatures that will be little short of apocalyptic"

“we will eventually face drastic changes in the climate”

“we’re talking about massively disruptive events, like the transformation of the Southwestern United States into a permanent dust bowl over the next few decades”

“avoiding planetary catastrophe is a lot more important”

It’s not that I disagree with any of his doom and gloom conclusions -- it’s that he isn’t a believable messenger. He doesn’t have the scientific background to support his statements. He’s just undermining his own credibility.  And for what?  Let others with the proper credentials get into that fight (and they will).

Now if Paul Krugman wants to opine on matters outside of his areas of expertise and wants to do so using incendiary and calamitous language, far be it from me to tell him otherwise.  However, it will inevitably cause some people to view him as a politician rather than an economist.  Once that happens, about half of the people will stop listening, no matter how much sense he makes.  And that would be a catastrophe.

RELATED POST:  The Precautionary Principle and Climate Change

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Most of those keeping track are aware that on December 7, 2009, EPA announced its endangerment finding (that greenhouse gas emissions threaten public health and welfare) and followed that up with a final rule a week later. As expected, a number of entities immediately brought action to challenge that finding.

The first case was filed in the D.C. Circuit and is entitled Coalition for Responsible Regulation, Inc. v. EPA.  Since that filing, a total of sixteen other petitions have been filed and have been consolidated with the Coalition case. These include an action by the American Iron and Steel Institute, Gerdau Amsteel Corp., American Farm Bureau Federation, National Mining Association, Peabody Energy Company, Massey Energy Company, Rosebud Mining Company, the U.S. Chamber of Commerce and the Southeastern Legal Foundation, Inc. on behalf of fifteen House Republicans and business associations. Additionally, the states of Alabama, Virginia, Texas, Alaska, Michigan, Nebraska, Florida, Hawaii, Indiana, Kentucky, Louisiana, Mississippi, North Dakota, South Dakota Oklahoma, South Carolina and Utah are joining with the objectors.

On the other side, sixteen states are seeking to intervene in support of EPA. Those states are Arizona, California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont,  Washington, Pennsylvania and Minnesota.

Setting aside the business interests that are supporting the action (which motivation is fairly easy to identify), it is interesting to analyze the political interests involved. The attorneys general of each state would make the decision of whether the state should participate in the lawsuit.  Of the seventeen states that are seeking to overturn the EPA determination, all but three have Republican attorneys general (and those three have Republican legislatures). With regard to the sixteen states that are supporting EPA, fourteen of them have Democratic attorneys general (the remaining two have Democratic legislatures).  

In a totally unrelated note, I notice that the National Journal conducted a poll of political bloggers recently. Those bloggers that reported to be right-leaning were asked if it is was in the Republicans’ interest to work with the Democrats on Wall Street reform? 71% of the bloggers said no. The same question was put to the left-leaning bloggers about Democrats and 67% said no.  This is not an isolated finding or sentiment.

Based on these observations, and the recent fight over health care reform (with a second battle coming according to Congressman Steve King), it isn't hard to conclude that bipartisanship, as a political concept, is dead in the United States. It has been for a number of years and it will be for the foreseeable future. What’s more, while lip service is given to the need for some sort of give and take between the parties, it doesn't appear that either the politicians or the electorate really expect, or even want, bipartisanship.  The import of this, for those that are interested in legislative sausage-making, is that the future holds many more battles like we saw with health care reform, and I suspect that this will be particularly evident when it comes time to address environmental and energy issues.

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It appears that the Obama EPA believes that it's pretty hard to measure something if you don't put a number on it.  We're seeing this philosophy play out in the area of imposing discharge limits, where it has become clear that EPA prefers numeric standards over narrative or descriptive standards.

For example, for more than fifteen years, stormwater discharge permitting from construction sites has relied on the use of “best management practices” or the installation of barriers to slow down runoff (such as silt fences or detention basins). When this was properly done, the stormwater regulations were routinely viewed as being satisfied. That has now changed. EPA, for the first time, has imposed a discharge standard of 280 NTUs on stormwater leaving the construction site. The proposed numeric standard was going to be 13 NTUs, but, after participants at public hearings pointed out that this was virtually impossible to meet, EPA switched to 280 NTUs.

Similarly, EPA has, for the first time, implemented a numeric standard for suspended solids that may enter streams from mountaintop mining sites. The solids will be measured through stream conductivity, with a cap of 500 uS/cm. According to EPA Administrator Lisa Jackson, there are “no or very few valley fields that are going to meet this standard.” EPA is taking public comment on this proposed standard until December 1, 2010 but has made it effective immediately.

Moving to air regulation, EPA has finalized a greenhouse gas emission limit from cars and light trucks at an average of 250 grams per mile of carbon dioxide in 2016. This would be the first nation-wide greenhouse gas emission limit to be adopted by the United States.

For anyone who thinks that this trend is going unnoticed by those who watch this sort of thing, I would point out that Sierra Club has renewed its request to EPA to set, for the first time, numeric water quality standards for nitrogen and phosphorus. Nitrogen and phosphorus are the primary pollutants in the dead zone found in the Gulf of Mexico.  Should EPA be inclined to impose such a numeric standard, and if recent attempts to regulate non-point sources are successful, the change could have an immediate impact on farming, which, while being the primary source of income in many states, is also the primary source of nitrogen and phosphorus contamination in lakes, streams and rivers.

Businesses should take note of this direction. Numeric standards can be very difficult on regulated entities. These standards are much easier to enforce than descriptive or narrative standards and they eliminate all discussions of what is fair or reasonable or necessary based on differences in circumstances or locales. Except in the actual creation of the standard, there is no cost/benefit analysis employed. The only question is whether the discharge of the regulated substance is above or below the regulated level, and where that number is put can determine whether you are in, or out of, business.

RELATED POSTS: New Stormwater Regulatuions Rain Down on Developers 

                             Stormwater Regulation of Developed Sites Coming?

                             Agricultural Runoff Comes Under Scrutiny

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At a time when home sales continue to struggle and more people are trying to fix up their homes rather than move, the cost of renovation is about to get more expensive.

On April 22, new regulations concerning lead-safe renovation practices will kick in. As of that date, if you hire someone to strip the paint from windows or use a sander to smooth chipping paint from an old door, that person will likely need to be certified by EPA.

The new rule applies to contractors that perform renovation or repairs that disturb paint in homes, child-occupied facilities and schools built before 1978. Contractors that undertake such work must be trained and certified by April 22, 2010. Currently, only Wisconsin and Iowa are federally authorized to administer and enforce the Lead-Based Paint Renovation, Repair and Painting (RRP) Program.

A few of the high points of the Program are:

• The rule applies when more than six square feet of lead-based paint is disturbed in a room or more than twenty square feet of lead-based paint is disturbed on the exterior;

• For a pre-1978 structure, testing of the paint may be done or all paint will assumed to be lead-based;

• Work areas must be sealed off, dust minimized and cleanup done by wet mopping HEPA vacuuming. EPA warns “you may even want to move out of your home temporarily while all or parts of the work are being done" (p. 8);

• Workers that will be affected include, but are not limited to: painters, HVAC installers, carpenters, roofers, carpet installers, plumbers, repairmen, electricians, flooring installers and window/door installers;

• If you are a homeowner performing your own work, the RRP rule does not apply to your project.

EPA estimates that the work will add an average of $35 to the cost of projects in pre-1978 buildings; others believe the costs will be significantly more.  In the short term, it will be interesting to see what the regulations will do to federally and state funded weatherization projects.

While EPA has been asked to extend the deadline based on the fact that there are few contractors currently certified to do the work, there are no indications that there will be a delay.    So be prepared to spend some money to make the environment a little safer -- one house at a time.
 

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In an earlier post, I noted that EPA was in the process of setting its enforcement priorities for the years 2011 through 2013. At the time, the Agency had fifteen areas of possible consideration. EPA has finalized its list and out of the fifteen areas under consideration, they chose five and added a sixth area not previously considered.

The areas that have been chosen for the final cut are:

• Keeping Raw Sewage and Contaminated Storm Water Out of our Nations’ Water – This enforcement initiative will focus on reducing discharges from combined sewer overflows, sanitary overflows and municipal separate storm sewer system. EPA will be requiring various commitments from cities to implement solutions to the problems caused by aging urban infrastructure. For many municipalities, this means huge and expensive construction projects will need to be undertaken in the very near future;
• Preventing Animal Waste from Contaminating Service and Ground Waters – Concentrated animal feeding operations generate a large amount of manure which can end up being discharged into surface waters or seep into ground water. EPA intends to strengthen its enforcement focus on existing large and medium sized facilities that are not in compliance with permitting regulations;
• Cutting Toxic Air Pollution that Affects Communities’ Health – Hazardous air pollutants have been determined to present significant threats to human health. This enforcement initiative will focus on industrial and commercial facilities that are allowing excess emissions;
• Reducing Widespread Air Pollution from the Largest Sources, Especially the Coal-Fired Utility, Cement, Glass and Acid Sectors –Many industries have ignored the New Source Review and Prevention of Significant Deterioration requirements when building new facilities or making significant modifications to existing facilities. This national enforcement initiative will target these emissions, particularly at coal-fired utility, cement, glass and acid plants;
• Reducing Pollution from Mineral Processing Operations – Mountaintop mining has not gone unnoticed by EPA. Mining and mineral processing facilities pose high risk to human health and the environment with many of the sites already being on the Super Fund National Priorities List. This initiative will seek to bring these facilities into compliance;
• Assuring Energy at Extraction Sector Compliance with Environmental Laws – This is a new topic for EPA. The initiative indicates that EPA understands that a push for “clean energy” sources can result in a dirty environment. A particular area of scrutiny will be oil and gas extraction as well as coal mining.

Those that got knocked off of the list include environmental justice, Indian country drinking water, marine debris, RCRA enforcement, RCRA financial assurance, pesticides at day care facilities, industrial surface impoundments, wetlands and worker safety for agricultural pesticides.

Businesses should be aware of the final priority list because EPA has, in the past, followed it when deciding where to place its emphasis (and enforcement funds).  While I doubt that the mining, oil, gas, coal-fired utilities, CAFOs or industries producing hazardous air pollutants are going to be particularly shocked by the initiatives targeting them, some municipalities may be very unpleasantly surprised by their next visit from EPA.

RELATED POST:  EPA Has Its Priorities

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A key aspect of being effective is figuring out what needs your attention right now and what can wait until later. EPA seems to understand this.  Every three years, EPA creates a set of national enforcement priorities setting out the areas in which it will focus its inspections, compliance assistance and enforcement actions over the course of those three years. It provides for interesting reading.

For example, the priorities for the years 2008, 2009 and 2010 were:

• Air toxics

• New source review/prevention of significant deterioration

• Concentrated animal feeding operations

• Municipal combined sewer and sanitary sewer overflows

• Storm water
• 
Mineral processing
• 
Financial responsibility
• 
Indian country

The Agency is in the process of setting its priorities for 2011, 2012 and 2013. To identify the possible areas of consideration, EPA collected information from the various regions, states, tribes, associations and the public. Based on the information it received, EPA created the following list of candidates for the upcoming enforcement priorities:

• Air Toxics – EPA is proposing to continue to focus on leak detection and repair and the presence of hazardous air pollutants near schools;
• Concentrated Animal Feeding Operations (CAFOs) – this initiative would focus on the regulation of surface water runoff carrying animal waste into waterways. There is no discussion of air or odor issues;
• Environmental Justice – a review of burdens that pollution has disproportionately placed on vulnerable populations including children, communities of color, Native Americans and the poor;
• Indian Country Drinking Water – it has been determined that the level of noncompliance of public water systems in Indian country is significantly hirer than at comparable public water systems outside of Indian country. This initiative would attempt to identify the reasons why and find a method of correcting those deficiencies;
• Marine Debris – this would focus on debris that is improperly discharged into a water way. Enforcement of current regulations and cleanup activities would be key components of the initiative. It is viewed as a good fit to address along with municipal runoff issues;
• Mineral Processing – mineral processing and mining use strong chemicals and generate large volumes of waste for disposal. Over the past decade, significant damage has been done to the environment from these operations. This initiative would focus on inspections and sampling by EPA;
• Municipal Infrastructure – the storm water and sanitary sewer piping for many cities is outdated and frequently causes discharge events. This initiative would require significant modifications and repairs to many of the city systems;
• New Source Review/Prevention of Significant Deterioration – EPA has determined that many air pollutant sources have made operational changes that have resulted in increased air emissions, but failed to obtain proper permitting. The industrial sectors which will be reviewed are coal-fired electric utilities, cement manufacturing facilities, sulfuric and nitric acid manufacturing facilities, glass manufacturing facilities and lime manufacturing sites;
• RCRA Enforcement – increased emphasis on cleanups of contaminated facilities and creation of a nationally consistent approach to enforcement at all RCRA facilities;
• RCRA Financial Assurance – increased enforcement of determining that sufficient funds are set aside for response and closure of RCRA facilities;
• Resource Extraction – various forms of resource extraction, such as mountaintop mining and oil and gas development, have caused increased concerns about a rise in levels of air pollution and water quality degradation. This initiative would increase the focus on the regulation of these resource extraction activities under CAA, CWA and SDWA, with emphasis on federal lands and Indian Country;
• Pesticides at Day Care Facilities – a study done in 2001 of wipe samples from indoor services at day care centers identified at least one pesticide in every day care center studied. Some centers had up to ten different kinds of pesticides in use. This initiative would investigate the use and effect of pesticides at day care centers;
• Surface Impoundments – many industrial facilities use surface impoundments to treat or store non-hazardous liquid and solid waste which can contaminate surface water, groundwater and air. Additionally, hazardous waste storage in such impoundments without a RCRA permit is a violation of law. EPA estimates there are 18,000 surface impoundments operating and that inspection and oversight is a worthwhile initiative;
• Wetlands – recent studies show a pattern of wetland loss under the Clean Water Act which justifies an enforcement initiative;
• Worker Protection Standards for Agricultural Pesticides – studies show that farm worker families have a higher level of pesticide exposure than non-farm worker families. In light of the number of farm workers and pesticide applicators, an initiative of inspections for both product and use compliance is necessary.

Cynthia Giles, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, spoke at the National Environmental Justice Advisory Council on January 29, 2010. At that time, Ms. Giles indicated that the fifteen new enforcement areas for consideration were likely too many and that, when finally published, there will likely be fewer than nine initiatives for the 2011 through 2013 period. She also indicated that air toxics emissions, large animal feeding operations and new source review violations will likely make the cut for the national enforcement priorities.

It is important for businesses and legal practitioners to carefully note the final list of initiatives. At least over the past three years, a great deal of the EPA’s enforcement activities have been conducted on the topics that they identified as initiatives and there is every reason to believe that this will continue in the future. To be forewarned . . . .

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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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Question: “Where is the logical place to install solar panels?”
Answer by most: “The desert.”
Answer by Dianne Feinstein: “Uhh . . . not so fast.”

Between 1999 and 2004, 600,000 acres of land in the Mojave Desert were acquired by an environmental group and donated to the Federal Bureau of Land Management. There are now 14 solar energy and five wind energy projects that are seeking to construct renewable energy projects on the land.

California Senator Feinstein, a supporter of climate change legislation, is introducing legislation to prohibit the use of the land for solar or wind projects. In her words:

The Catellus lands were purchased with nearly $45 million in private funds and $18 million in federal funds and donated to the federal government for the purpose of conservation, and that commitment must be upheld. Period.

It seems to me that someone might argue that Ms. Feinstein’s definition of “conservation” is pretty narrow. Isn’t the opportunity to create renewable energy a conservation purpose? Won’t wind and solar energy help to conserve other resources, like coal and clean air? If less oil is used, aren't we conserving natural resources? 

Comments made by the Senator indicate that her objection may be to the aesthetics of the proposals. Solar panel facilities and wind farms are big and visable. For some they are beautiful, for others they are ugly. According to a group that discussed the matter with Ms. Feinstein, she seemed concerned about the visual effect of huge solar farms on Route 66, the highway that runs through the Mojave.

If aesthetics begin to control the debate on locating renewable energy facilities, the winners will be the climate change objectors. They’ll sit back and watch the environmental advocates shoot at each other. For example, Ms. Feinstein’s position, which has already resulted in two major solar projects being canceled, has prompted Robert F. Kennedy, Jr. to say: “This is arguably the best solar land in the world, and Senator Feinstein shouldn’t be allowed to take this land off the table without a proper and scientific environmental review.” Governor Schwarzenegger, trying to increase the use of renewable energy in California to 33% by 2020, said: “If we cannot put solar power plants in the Mojave desert, I don’t know where the hell we can put it.” Bear in mind, these voices are supposedly on the same side. 

This is one of those climate change issues that the environmental activists and climate change proponents need to get resolved quickly. Those promoting renewable energy need to understand that allowing aesthetic considerations is a sure fire way to severely limit solar and wind from the renewable energy mix because there will always be those (frequently powerful individuals) who will say that big and shiny is ugly. Without those options, what is left is primarily coal and nuclear. While that certainly is an approach that will be supported by Lamar Alexander and John McCain, I’m fairly certain it’s not what climate change advocates are contemplating.
 

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While the discussions in Copenhagen move forward in fits and starts, it appears that serious progress is being made on the home front.  On December 10th, Senators Kerry, Lieberman and Graham held a press conference to announce that they are going to propose climate change legislation designed to garner the necessary 60 (and perhaps more) votes.  Draft legislation was not produced by the trio, but a written statement setting out the framework of the upcoming legislation was provided.  There were three areas of discussion that I found particularly interesting.

First, nuclear power is a go.  John McCain and Lamar Alexander required this and Graham, while discussing it, said that we will need 117 nuclear plants and that "the nuclear power industry represents the best of American jobs that will never go overseas."  It will be interesting to see how much the industry will need to be subsidized to make it viable.

Second, the Midwestern politicians who want assurances that their constituents will not be penalized for having relied on coal for their energy source in the past, will be satisfied.  During the move to cleaner energy, there will be "transitional assistance to households and businesses to ease the shift to a low-carbon economy." In other words, energy costs in the Midwest are not going to be disproportionate to the rest of the country.   

Finally, and most surprising to me, was the declaration by the Senators that they will be "ensuring a future for coal."  In their words:

Our country has plentiful, accessible coal resources and infrastructure.  It is a key component of our current fuel mix. . . .  Coal's future as part of the energy mix is inseparable from the passage of comprehensive climate change and energy legislation.  We will commit significant resources to the rapid development and deployment of clean coal technology, and dedicated support for early deployment of carbon capture and sequestration. 

In no uncertain terms, the Senators are stating that significant support will be given to ensuring that coal will be part of the mix of energy production going forward. Those that like to argue that "clean coal" is an oxymoron have been heard and their position has been rejected.  From a political point of view, it was a bold, and necessary, declaration.

The statements made by Senators Kerry, Lieberman and Graham offer  renewed hope that something will actually get done in the near term.  Extremists have been angling for an opportunity to say that we should blow everything up and just start over because they didn't get what they wanted.  At least these three Senators recognize that that isn't progress, it's capitulation. Now we'll see if they can find another 57 like-minded votes.

RELATED POSTS:  Fairness In Allocating Greenhouse Gas Allowances

                             Will Nuclear Power Be Part Of The Solution?

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“Fairness” is a relative, not an absolute, concept.  If this was not the case, lawyers would be out of a job.  Apparently, this truism can also apply to senators.

With Copenhagen fast approaching, climate change legislation will again be the topic of the day.  Cap-and-trade language, as currently proposed in both the House and the Senate, allocates free CO2 allowances to electrical distributors based on a 50/50 formula; that is, 50% on total emissions and 50% on total energy sales. Under this formula, utilities that are more coal dependent will need to purchase more allowances than they would if the allowances were allocated based only on emissions, and those higher costs will be passed on to their customers.

Fourteen Democratic senators, from coal-dependent, Midwestern states, have written a letter to Senate Democratic leaders requesting that the 50/50 formula be changed to base the allowances solely on emissions.

The effect of using the 50/50 formula is that those states that have historically relied more heavily on coal-fired electrical generation, such as Iowa, North Dakota, Wisconsin, Minnesota, Illinois and Colorado, will pay significantly more for future power, during the transition period to cleaner energy, than under a 100% emissions formula.  The fourteen senators argue that  legislation must equitably distribute transition assistance across individuals, states and regions.  Put another way, they are saying that in this transition period, we should not penalize one group or geographic area, so the 100% emission formula is the "fair" thing to do.

There are, of course, those who disagree.  They argue that the purpose of the legislation is to create financial incentives to switch to lower-carbon fuel sources, so causing higher costs to higher polluting states, is, in fact, “fair” and appropriate.  It is, in their view, not proper to let one group be bailed out for relying so heavily on coal-fired energy in the past.

So who's right?  Like most arguments that address fairness, it all depends on where you stand.

If you believe that cleaner energy is something that had to happen last week and that we must mandate an immediate change, then it would be “fair” to force the higher expense of cleaner energy on one group. If you believe that it will take some time to wean ourselves away from using coal as the primary form of electrical generation (which we have used for more than 125 years), then it would be “fair” to attempt to make the transition less painful as proposed by the senators.

Which view should prevail?  That's for you to decide, but let me add two pragmatic considerations to the mix.

First, despite the best efforts of all concerned, coal will be with us for a long time. It will likely get cleaner but, due to cost and increases in demand for electricity, it will be a significant part of the mix, along with increasing use of solar, wind, geothermal and hydro. In fact, the U.S. Energy Administration expects coal to account for 47% of U.S. electricity in 2030, which is a 2% decrease from the present.

Second, in this age when a Senate majority requires 60 votes, can 14 votes be ignored?
 

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Many thanks to Michael Foti at Attorney.org for including this blog in the list of "Top Environmental and Land Use Law Blogs."  The primary focus of Attorney.org is to raise awareness and take stands on pressing issues in an effort to fight for change.  They have decided to focus some of their resources on the environment and land use and have spent what appears to be a considerable amount of time researching the available law blogs. 

If you like to see good writing on very current environmental issues, take a look at the list that Attorney.org has put together.  The posts by those authors will make you laugh and make you cry.  But most of all, they'll make you think.  And in this environmental age, there's a lot of thinking--and acting--that needs to be done.

I'm proud to be included in the list and I would encourage you to look at all of the others found there. They deserve your attention and support.

RELATED POST: Best Environmental Law Blogs

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When it comes to polling consumers about their environmental beliefs, I admit to being a skeptic. People just don't tell the truth. They want to, but they just can’t help themselves.

Ask a consumer if he/she supports prohibiting air pollution from an industrial facility and you will get roughly the same response as if you asked them if the United States is the greatest country on earth. Sierra Club, Greenpeace and hundreds of other environmental groups have done an excellent job of making it “un-American” to be anything other than an unqualified supporter of everything green. The problem is that a large majority of consumers don’t really seem to mean it. What they mean is that so long as it does not cost them any money, they will be supportive. A recent study done by Grail Research entitled “The Green Revolution” provides some illuminating poll results along these lines.

In September of 2009, Grail Research polled 600 consumers about their purchases, or possible purchases, of green products.  There are many significant points made in the Report, but let me focus on a few of the more interesting findings:

1.  85% of those polled stated that they have bought green products.  However, only 8% of consumers buy green for a majority of their purchases (these 8% are referred to as "Dark Green" consumers);

2.  93% said that a company being perceived as green was important to their purchasing decision, yet about 80% were unable to identify green companies;

3.  15% of those polled were non-green consumers and, for 70% of them, their top reason for not going green was that the products were too expensive. Of the remaining 85%, a sizable majority will consider a green product only if it is superior or at least on par with its conventional counterpart;

4.  Of the various reasons given by consumers for not buying green (too expensive, the recession, don't feel a need, not easily available, green is a fad, and the product reviews aren't good), price and the economic recession are the main factors preventing consumers from buying green products in new categories.

I know there are a lot of ways to interpret polling results, but to me, these answers suggest that lip service is being paid to being green, with the pocketbook voting otherwise.  Put another way, consumers apparently want to buy green, but they need to know the cost of doing so.

Is it a bad thing that people are green primarily when it doesn't cost them anything? Not necessarily.  Especially in this economy, it's consumer nature.  But do we have to ignore that nature?  These findings indicate  that advancing an environmental agenda is likely to be a lot more successful if there is an economic advantage (which is often the case) rather than lamenting that the end of the world is near or that your puppy is going to die.   It's just a thought.

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There is a global-warming parade going on and everyone seems to want to join in.  Well, not everyone.  The U.S. Chamber of Commerce has staked out its position that the assertion that global warming is harmful to human health is something that should not simply be assumed, but should be proven, before trillions of dollars are spent “fixing” it. Not an irrational position, but one which has caused five large companies to pull their support for the Chamber, the most visible being Nike and Apple. The question that should be asked is why -- why have the companies chosen to walk away from the Chamber?

Someone Else Is Better?

It certainly couldn’t be that they will be better represented by some other lobbying group. The U.S. Chamber of Commerce spent $26 million in lobbying in 2009, which is double any other single entity. Historically, the Chamber has had, and spent, a lot of money and has been effective in Washington, D.C.

Difference of Opinion?

Could it be that these companies philosophically disagree with the Chamber and are willing to cut off their nose to spite their face? Well, Catherine Novell (V.P. of Worldwide Government Affairs at Apple) did say:

We strongly object to the Chamber’s recent comments opposing the EPA’s effort to limit greenhouse gases. . . .  Apple supports regulating greenhouse gas emissions, and it is frustrating to find the Chamber at odds with us in this effort.

Nike, who relinquished its Chamber board seat but has not yet quit the group, said:

We believe that on this issue of climate change, the Chamber has not represented the diversity of perspective held by the board of directors.

General Electric and Johnson and Johnson have also issued statements that they disagree with the Chamber’s climate policy.

Certainly these companies, with their collective millions of shareholders, might choose to walk away from a $26 million lobbying force based on principle and righteous indignation. That’s possible. But perhaps something else is at work.

That's Where The Money Is?

Another possible explanation might be that they are doing what all companies strive to do — they are trying to sell their products to the greatest possible number of consumers. Perhaps these huge, market savvy companies believe that their customers believe that climate change is a fact that does not need debating and that these customers just might be offended by any one (or any company) that thinks otherwise. These companies have seen what happens when a company appears to be anti-environment, and it simply isn’t worth the risk. Of course, the Chamber doesn’t sell shoes or computers or contact lenses so they don’t need to worry about what the consumer might believe. But the Apples of this world do.

Ironically, environmentalists couldn't have a better friend than the Chamber right now.  With each vocal defection, the inevitability of climate change legislation grows a little closer.

I’ve said it before: "An Inconvenient Truth" gave global-warming advocates a free pass. The parade of environmental reform has started and the huge elephant that is public opinion has already lumbered past the question of whether there is global warming and whether it is bad for us and has moved on to the question of what could be the cure. Right or wrong, it is too late to turn the elephant (or the donkey) around. Apple, Nike and P&G recognize this fact. One has to wonder if the Chamber will accept it and realize that the only way to affect the parade is to get in front of the elephant.

RELATED POSTS:  Monkeys and Science , Part Deux: Putting Climate Change On Trial  

                             The Most Important Environmental Law Case                  

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When discussing global warming and attempting to calculate greenhouse gas (GHG) emissions, a fact that is frequently overlooked is that energy use is a zero-sum game. That is, most forms of machinery require an input of energy. It can be electricity for a toaster, a gas flame in a furnace or gasoline into a car. Frequently, you can change the form of the energy, say by switching from a gas furnace to an electric furnace, but you still need to produce the energy to run the furnace. If producing the electrical energy to run the furnace produces more GHGs than running the furnace on gas, then you haven’t gained anything for the GHG environment.
 

In a recent post, I said that the plug-in or all-electric car might save the world based on the fact that it has zero GHG emissions and that we have now reached the tipping point for electric cars because they are fast enough to be credible.  A concerned reader pointed out  that I had "forgotten the basic fact that all-electric cars require ELECTRICITY" and that we will "simply trade one evil for another."  My response?  In the words of  Pat Paulson, “Picky, picky, picky.”  Well, OK, maybe the point needs to be addressed.

So, do plug-in or all-electric cars have a net positive effect on reducing GHGs emissions?  Let me suggest five reasons for the answer being yes.

1. Tesla Says So

Elon Musk, the chairman of Tesla Motors, provides an analysis of how his all-electric car compares to other vehicles, assuming that the electricity is produced via natural gas fueled electrical generation. According to his analysis, the natural gas CO2 emissions in power plant production are one-quarter of the Honda Hy-brid CNG. In essence, a car engine is not nearly as efficient (at least with respect to GHG production) at creating energy as is a power station that produces electricity. I realize that he is biased, but his reasoning seems plausible.

2. Others Say So

Musk isn't alone.  The calculations are that even if the electricity is generated by coal-fired plants, the GHG reductions would be 50%.  In combination with the other advantages of the elimination of pollutants and elimination of oil dependence, that's pretty good.

 3. Wind And Solar Are Coming

Additions to coal-fired electrical generation are here and  growing. Cap-and-trade will force it. International politics will force it. Environmentalists will force it.  And for every kilowatt of electricity produced by wind or solar, the benefit of the all-electric car multiplies.

Advances are also being made in the storage of solar and wind energy through, for example, compressed air storage and improvements in batteries.

4. Action Is Already Being Taken

The ability to have a practical energy delivery system is more than just theoretical. Solar installer Solar City has built  four solar electric-car charging stations along U.S. Route 101 between San Francisco and Los Angeles. Fully charging the Tesla, which has a range of 250 miles, costs about $4.

5. What's The Down Side?

There appears to be no feasible argument that the stand-alone, gas powered engine of every car could possibly be better for the GHG environment than an engine that is electrically powered.  Even if it is a break-even scenario (which isn't supported by the facts), why would anyone be against the all-electric car?  It will always be easier to increase electrical generation at a power plant than it will be to make adjustments to every gas engine.

Now that the electric car has shown that it is more than a glorified golf cart, it is on its way.  And all indications are that it will be a significant net reduction for GHG emissions.  If so, it will be interesting to see what impact it has on the need for extensive and expensive environmental regulation.

RELATED POST: Global Warming and Fast Cars -- A Perfect Match
 

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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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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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Dear Mr. President,

With all due respect, I feel that I must warn you that you are on the brink of losing one of your biggest support groups – wine drinkers. Allow me to explain.

Wine has always been one of my guilty pleasures -- and I'm not alone.  Wine consumption in the United States has been, and continues to be, on an extraordinary growth path.  That means an ever-increasing base of fairly myopic (and, at certain times of the day, malleable) voters.  For example, in 2008, a close friend of mine told me that he was a single issue voter: You promised to do something about global warming, so you got his vote.  This is because climate change is having a huge impact on grape growing and, therefore, wine making. 

My point is that all of this economic stimulus and health care talk is fine and good, but I don’t want you to take your eye off of the really important issue -- wine, . . . uh, I mean climate change. So here are a few facts to consider:

When it comes to identifying global warming, grape production is the canary in the coal mine. Very small temperature increases result in immediate, and large, changes in the ability to grow great grapes. For example:

•     In Australia:

--    Up to 1000 growers will be faced with the decision of ceasing operations due to increasingly hot harvests;

--    By 2050, 44% of current grape-grown areas are likely to be negatively affected by rising temperatures.

•     In France:

--    In 20 to 30 years, Burgundy, France, will be too warm to plant its classic-prized varietal, pinot noir (now I realize that it’s just pinot, but still);

--    Winemakers warn that failure to cut greenhouse gases will devastate their area;

--    A group of 50 winemakers predicted that vineyards will move 600 miles past their traditional boundaries by the end of the century if nothing is done now.

•      England is now able to produce prize-winning vintages thanks to the warming conditions (Mr. President, ENGLAND! Sure they’re our friends but they really can’t be trusted with cars or grapes).
•         In California, the Napa Valley will become as warm as Modesto. Modesto will become as warm as Stockton. Stockton will become as warm as Bakersfield (can cats and dogs raining down from the heavens be far behind?).

I know what you’re saying. Your saying that this just means that grape growing in Oregon and Washington will improve, but are there really enough votes to care what happens there?

Let me put it another way. Isn’t it at least possible that Sarah Palin has dropped out of the political scene because she sees what’s coming and is buying up prime Alaskan grape growing land? Do you really want to see Palin Insignia? Do you really want to be responsible for Sarah Palin becoming the replacement for the late, great Robert Mondavi as the American winemaking icon? I didn’t think so.

For my sake, your sake and Alaska’s sake, you must redouble your efforts to address climate change.

To be sure that my message is getting through, let me approach the issue from a more scientific angle. I’ve just completed some research on global warming. Between 1970 and 2008, the five-year mean temperature has drastically increased. In fact, the increase during this period is greater than the same increase for more than the previous 100 years.

Now, let’s take a look at what that has done to wine. Robert Parker (he is to wine what you are to Democratic politics) rates the quality of wine each year for all of the world’s wine producing areas. A year that scores 90 or higher is considered “Outstanding.” Looking at 90-point years for France (Pomerol), Italy (Piedmont - Barolo), California Cabernets, Oregon (Willamette Valley) and Washington Cabernets as reported by The Wine Advocate, we find:

Uh . . .wait a minute. Let me think about this.  During the period of extreme warming, the number of great wine vintages have actually increased, thanks to climate change. That means that, at least in the short term, warmer is better for grapes.  Sure, this can only go on for another 15 or 20 years, but at this rate that means another 12 to 15 spectacular wine vintages. I’ll have plenty of wine to last me through my waning years. True, I probably won’t be able to drink them outdoors, but that’s a sacrifice a truly dedicated oenophile is willing to make.   Hmmm . . .well . . . .in that case.

Mr. President, kindly disregard this letter.

                                                                                                      Whining No More,

                                                                                                                        Chuck Becker

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Well, it has begun.

The posturing that one would expect before an important environmental conference like the United Nations Framework Convention on Climate Change in Copenhagen is in full swing.  To date, China and India have made it clear that they are not going to accept mandated targets to reduce greenhouse gas emissions.  Their arguments are:

• They are new to the industrial scene and they should have the same opportunity as the other industrialized nations (i.e. the United States) to pollute their way to prosperity;
• Their per capita emissions are, and will remain, well below those of the U.S.;
• Their "dirty" products are consumed primarily by industrialized nations so those nations should pay for the added costs of the emissions.

Politically speaking, these are pretty strong arguments.  The only real response is "Well, yes, but we're in a desperate situation and we need everybody to join in."  That response isn't very effective if you don't believe that global warming is in a "desperate situation" or, more importantly, you don't care. 

So what happens if China and India refuse to agree to any limits?  The practical impact is that if the industrialized nations agree to limits but China and India won't come along, then China and India will have the ability to sell their products cheaper than the U.S.  Jobs will shift  to those countries and imports of cheaper products will increase, while greenhouse gas emissions from China and India will presumably continue to increase. 

Since the U.S. has little power to push around the mountains that are China and India, we will need to look to what we can control -- tariffs on goods coming into the country (though the World Trade Organization could limit that control).  By adding tariffs to the products, we would discourage movement of jobs overseas and the importing of cheap products.  The tariffs could be adjusted as the country ramps up environmental compliance.  Once the country is in compliance with whatever environmental limits are agreed upon, we could eliminate the tariffs and all goods would be back on an even playing field.  Simple, right?  The only problem is that most countries get very upset when tariffs are imposed on their goods. 

China and India have been watching the Congressional climate change debates closely and saw the tariff issue coming.  They have been warning that tariffs are unacceptable.  Ten swing-vote Democrats are now posturing to require that the U.S. insist on full participation by all countries or the imposition of tariffs on the non-conforming countries.  If this is done, China and India may retaliate by imposing their own tariffs and we'll be off to the races.  Relatively smart people have come down on both sides of the issue.

So, like so many other things environmental, it comes down to money.  The new environmental question is likely to become, can we afford a trade war?  I don't have the answer but I remember the words of my father before our first camping trip (paraphrased slightly):  "If you are going to poke a bear with a stick, you'd better have a really good backup plan."  I told him, "I wouldn't poke the bear."  His reply, "That's a pretty good plan, got any others?"

RELATED POST: Environmental Legislation Won't Wait For China

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 Mediation of legal disputes (as opposed to time-consuming and expensive trials) has been a great benefit to the justice system. In mediation, the parties voluntarily meet with a neutral third party who listens to both sides and then splits the parties up. The mediator shuttles between the parties and tries to broker a deal to end the dispute. The success rate is remarkably high.

I’ve had the opportunity to participate in many mediations and I have found that sometime early in the process, after the parties have been split up, you’ll inevitably hear the following finger-pointing exchange between one party and the mediator:

Party 1 (with a slight pout): “They are really bad people. They’re doing bad things and they need to be the first one to make an offer.”

Mediator: “Ok, I’ll go talk to them.” 

The mediator goes to the other party and hears: 

Party 2 (with an air of indignation): “These people are the real villains. Their demands are outrageous. We can’t possibly make any offer. Tell them to make a reasonable proposal.”

Mediator: “Ok, let me talk to them.”

This goes back and forth until one party finally realizes that making the first move isn’t the end of the world, and an offer is made, and then countered, and on it goes until a resolution is reached. That first offer can take five minutes or five hours. It doesn’t matter too much to the mediator – he/she is being paid by the hour. And the mediator knows something the other two parties don’t; that is, sooner or later, someone will make the first offer.

When it comes to international climate change action, China (and India) and the United States are at the beginning of the mediation. Everyone is finger pointing:

U.S.: “China is beginning to be a huge contributor to CO2 emissions. They must commit to a huge reduction."

China: “The U.S. has historically generated much more CO2 than China and has done nothing over the last eight years. The U.S. needs to make the commitment to change, and then we’ll see what we’ll do.”

U.S.: “We’re not going to pass climate change legislation until China does."

China: “ We won’t move.”

Let me shorten this mediation by about four hours by making a suggestion – United States, pass your legislation. Be the first to make the offer. Keep the pressure on China (consider trade policy, for example), but take the lead.  You're just wasting a lot of effort if you insist that China take action at the same time. 

Further, though it certainly has significant environmental problems, it isn’t as though China is just sitting on its 2.6 billion hands. Pop quiz: As between the U.S. and China, which country:

• Committed to reduce the energy intensity of its economy – energy used per dollar of goods produced – by 20% in five years?
• Will increase its total installed capacity for solar power 75 times in just over ten years?
• Plans to install 100 million energy-efficient light bulbs in 2009?
• Has committed $462 billion to scaling up renewable energy by 2020?
• Has increased wind power by 100% in each of the last four years?
• Is the world’s top producer of solar photovoltaic panels?
• Has the more stringent automotive fuel economy standards?
• Invested $12 billion in renewable energy in 2009, placing it second in the world in absolute dollars spent, just behind Germany?
• In 2009 will be the largest installer of wind power.

The correct answer to each question is China. I’ve graded the quiz. The West Coast did well and the Midwest was great but you people on the East Coast, particularly the D.C. area, failed miserably.

My point is that if the U.S. goes first, it won’t be the end of the world. (I won’t pull an Al Gore and say that if we don’t go first, it will be the end of the world. I wouldn’t do that.) Whether its cap and trade, nuclear, or something more creative, legislation is going to happen.  I'm not saying that that is good or bad, just that the genie is out of that bottle.  Insisting that China must act benefits no one – unless you’re being paid by the hour.

RELATED POST:  Tariffs and the Environment: Are We Ready For a Trade War?

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I have read, with interest, several posts that describe the most recently concluded United States Supreme Court term as being a miserable year   for environmental interests. The authors point out that of the five cases addressing the environment, all of them resulted in reversals of decisions that had favored environmentalists. Based on this scorecard, the posts are quick to label the majority of members of this Supreme Court as being hostile to the environment and pro-business. Glenn Sugameli, an attorney with the environmental group Earth Justice, went so far as to say that he believes that the Court put on “pro-business blinders.”
 

While the outcome of the cases certainly did not advance environmental interests, I find it difficult to refer to the outcomes as pro-business. In fact, in three of the cases, the Court deprived the business community of what it needs most.
 

Businesses necessarily rely upon predictability. They need to know, to the greatest extent possible, that the rules of the game are not going to constantly shift. They need to know that government will not make major changes in the regulatory scheme and that they can plan future  purchases, hiring, markets, expansion and the like on rules that are not subject to daily variation. This is critical in the area of environmental regulation where a change in the rules can shift millions of dollars in costs. Business owners understand that there will always be some changes, but they expect it to occur through a cumbersome and combative process (a/k/a Congress). In short, they hope for some level of stability. By this measure, the Supreme Court did not do business a favor during this term.
 

In my previous post relating to Entergy Corp. v. Riverkeeper, Inc., I noted that the end result was that the Court has now accorded broad deference to EPA to determine when and where the agency will employ the use of a cost-benefit analysis. In a similar vein, I noted that in the Coeur Alaska, Inc. v. SEACC case, the Court deferred to EPA’s interpretation as found in an unpublished memorandum authored by the Director of EPA’s Office of Wetlands, Oceans and Watersheds.  In both of these cases, the Supreme Court was making it clear that EPA can change the rules as it sees fit and without public comment.  In several articles written about the Coeur Alaska case, the comment was made that, although the environmentalists lost that case, there would be an easy fix by asking the present administration to take action (presumably without the need for public comment) to repeal the interpretation of the rule that allowed the Supreme Court to rule in favor of Coeur Alaska.  

In Winter v. NRDC, Inc., the Court ruled that the needs and prior practices of the Department of the Navy should receive deference. As in Entergy and Coeur Alaska, this case resulted in substantially strengthening the hand of the governmental entity.
 

Though it is an admittedly small sample, I believe that the best way to label this Court is pro-government when it comes to environmental questions. Given the complexities of environmental regulation, I can’t say that I’m surprised at the rulings which, in effect, simply defer to the expertise of the agency.  What does surprise me is that the Roberts Supreme Court believes that making federal agencies more powerful and less accountable is a good result.
 

Moreover, the impact on many types of businesses is likely going to be significant in light of the political climate. It is an understatement to say that the Obama  administration’s view of environmental regulation is significantly different  from the view held by the Bush administration. With this Court’s seal of approval, changes in EPA regulations, guidance documents and unpublished memos are going to come fast and furious. If anyone really believes that it is “pro-business” for the Supreme Court to tell EPA that it has discretion to change the rules whenever it desires and without notice or public comment, I would question their definition.
 

I believe I can safely guarantee that a change in the presidency, like death and taxes, is a certainty at some time in the future. When that happens, the rules will change yet again. And for business, the lack of certainty, or at least relative stability, is anything but “pro-business.”
 

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Bipartisan environmental legislation has long been an oxymoron.  This isn't surprising considering how the parties approach the issues.  However, I think it is safe to say that competition knows no political party. That is, whether we admit it to ourselves or not, we all want to win. Since a competitive spirit is a bipartisan concept, why couldn’t Congress learn to use it to its advantage?

I put this question out there because of a recent post in the Wall Street Journal, “Vroom per Gallon: Toyota Prius vs. VW Clean Diesel.” It is an interesting piece about the relative merits of the Toyota Prius and the VW Jetta TDI Clean Diesel. When I finished the article, I was unimpressed with either car (no matter how you paint boring, it’s still boring), but one comment made by the author, Ana Campoy, did catch my attention. Ana said that the Prius has a monitor that tracks energy use and “makes a game out of getting the highest mileage.” She noted that she watches the diagram whenever she drives and that she and her husband have been “trying to beat our personal best for months: an average of 49 MPG.”  She called it the Prius Effect.

I got to thinking about those statements and I realized that she was right. Not too long ago I bought a car that has the ability to monitor the mileage, and now I do so on a constant basis.   Until I bought that car, the concept of miles per gallon was purely theoretical. Certainly I wanted to save gallons because it meant saving money. Did I really change my driving habits to do so? Not for a minute.  But put a gauge in front of me that can be manipulated to go to a higher number if I’m really “good” at driving, and suddenly I’m all about winning . . . uh, I mean, economy. I think you would be too. And more importantly, I think you would be whether you are a Democrat or a Republican.

I should note that, perhaps not surprisingly, my attention to the gauge has made a difference.  After six months, my average has gone up 2 mpg.  Obviously, if that had been a change from 46 to 48 mpg it would have been more impressive than, say, 17 to 19 mpg.  Still, as far as the environment is concerned, the relative change is significant. Multiply this by a few million cars and you've put a big dent in the air pollution problem. 

The age old maxim “out of sight, out of mind,” is one that our elected representatives should consider. If they want to increase car mileage, which depends to a significant degree on driving habits, then don’t hide the information where it is out of sight.  Maybe Congress could interfere a lot less, and still do a lot more, if it considered passing a law that required these kind of monitors.  Why not harness that competitive spirit that knows no party line?

I’ll let someone else crunch the numbers, but I would guess that a fairly modest expense could result in a substantial increase in actual miles per gallon without getting into the political mess of this trading caps thing.  I can just see the new slogan at General Motors -- GM: You Can Watch The Savings!

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I recently received a poll asking me what I thought was the most important environmental case that ever came out of the United States Supreme Court. About thirty cases were listed, but my pick wasn’t anywhere among them.  My write-in vote?   Bush v. Gore.

You remember the Bush case. It was about that pesky election in 2000 where we just couldn't make up our minds.  The country was learning that more than just the weather can get hot in Florida. Eventually, the Supreme Court came to the rescue and found, by a 5-4 vote, that enough of that silly counting had been done, and that Mr. Gore had missed it by just that much (actually it was by .0092%).

As is the winner's prerogative, the new president and empowered Congress began to apply Republican ideals to environmental regulation. Not surprisingly, the beneficiaries of this action were environmental interest groups, who did not find it difficult to argue that Republican politics were isolationist, dangerous and destructive. For eight years, George W. Bush, and a Republican Congress, would swell the ranks of environmental groups across the country. All because of one vote from Robstown, Texas.

But the importance of Bush v. Gore didn’t just rest with an increase in environmental group participation. After all, that phenomenon has displayed itself during every Republican administration since Ronald Reagan.

No, the real importance of Bush v. Gore was that it put Al Gore out of a job. 

Just think about it.  Eight years as vice-president -- prime of life -- more than half the country voted for him and then . . . poof . . . gone.

Outward appearances were that Mr. Gore sat around for a while and then began to work up an idea that would later be know as “An Inconvenient Truth.” Had Mr. Gore prevailed in the election, he would have spent eight years of fits and starts trying to get Republicans in Congress to consider that global warming might exist. Maybe he would have been able to advance an environmental agenda . . . but I doubt it. At least until the mid-term election of 2006, he would have been lucky to sign a bill that had the word “environment” in it. But it doesn’t really matter because, in the end, he lost.

So eight years sooner than would otherwise be the case, we get “An Inconvenient Truth.”

I make this observation because the history of environmental regulation in the United States has been substantially aided by events that raised public fear levels: Cuyahoga River Fire, Three Mile Island, Chernobyl, Bhopal and Exxon Valdez , for example. When these kinds of events happen, the public reacts and when the (voting) public reacts, politicians tend to listen. That’s what “An Inconvenient Truth” did -- it scared a lot of people. In one fell swoop, the debate over the scientific basis for global warming was essentially over. Right or wrong, it was over and all that was left was to pass a law to do something about it.
 

The timing couldn’t have been better. Barack Obama is elected, successfully bypasses any serious debate on global warming, and, in six months, goes straight to a cap-and-trade proposal. I would suggest that this would not have been possible without the heavy lifting having already been done by the movie.

Further, I think that "An Inconvenient Truth" will be a catalyst for change in multiple areas of environmental regulation. Obviously air regulation, CO2 emissions and global warming are directly affected, but concerns about water, hazardous waste releases and natural resource destruction will also be impacted. It was, after all, a very scary movie. Not in the Freddy Krueger sort of way but more in that Indiana-Jones, Arc-of-the-Covenant, flesh-melting-because-you’ve-loosed-the-demons-of-hell sort of way.

Certainly it can be said that many Supreme Court cases have resulted in important environmental decrees on one topic or another.  But Bush v. Gore, rather than deciding a particular point of environmental law, started the chain of events that led to a major change in environmental activism.  Now that is a significant environmental law case.

(And you thought it was just about hanging chads).

Related Post:  Monkeys and Science, Part Deux: Putting Climate Change On Trial
 

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