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

On August 3, 2010, several environmental groups, led by the Center for Biological Diversity, filed a petition with EPA seeking a ruling from the Agency to ban the use of lead in hunting ammunition and fishing tackle.  As noted by the petition, EPA has authority under the Toxic Substances Control Act (“TSCA”) to regulate chemical substances that “present an unreasonable risk of injury to health or the environment.” (15 U.S.C. § 2601). 

EPA has declared that lead is a toxic substance and has regulated it in other instances, most recently with regard to lead-based paint.  According to the CBD petition (page 3), requiring the use of non-toxic shot gun shot, bullets and fishing gear can be accomplished by having EPA prohibit the manufacture, processing or distribution in commerce of the chemical substance for a particular use as allowed under 15 U.S.C. § 2605(a)(2)(A)(i).

In setting out its case, the petitioners contend that there are hundreds of scientific studies showing the danger of lead in the environment for both wildlife and human health.  Interestingly, the petitioners acknowledge that EPA is specifically prohibited from regulating ammunition or firearms under TSCA (petition at page 3), but they contend that lead can be banned from ammunition and lures if there are alternatives that are commercially available that are non-toxic:

The petitioners have waited until non-toxic alternatives have become available to submit this petition in an effort to clearly indicate that this petition is not an attempt to regulate ammunition or fire arms.

I have trouble seeing how the fact that there are alternatives means it is not an "attempt to regulate ammunition."  It seems to me that it's an "attempt to regulate ammunition via alternatives," but maybe that's just the nit-picker in me.  In any event, a quick response was made by sporting groups. The National Shooting Sports Foundation, Inc., through President Steve Sanetti, stated:

There is simply no scientific evidence that the use of traditional ammunition is having an adverse impact on wildlife populations that would require restricting or banning the use of traditional ammunition beyond current limitations, such as the scientifically based restriction on water fowl hunting.

In support he cites the fact that the number of breeding pairs of bald eagles in the United States increased 724% between 1981 and 2006.

Further, fishing proponents have objected on the basis that the cost of reasonable alternatives are three to ten times as expensive as their lead counterparts.  Objection has also been made on the grounds that there is very little evidence that lead shot or lead lures have caused human health issues.

EPA has 90 days to issue its ruling either accepting or rejecting the petition.  If it is accepted, there will be an opportunity for public comment. While EPA received little opposition to its lead paint rules and virtually no opposition to phasing out the use of lead wheel weights for balancing car tires, this new proposal is different – these are hunters and fishers. For these groups, when you mess with ammunition and lures, you're messing with religion (or, at the very least, a commandment). 

I think that this might be an interesting debate to watch.

UPDATE:  It appears that EPA has decided not to consider a lead ban for bullets, but lead fishing sinkers are still at risk.  The fisher-people of the country have until September 15th to voice their opposition, or switch to a more innovative form of fishing.   
 

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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 saw a speech given by Richard Sears, a visiting scientist at MIT who was formerly a geophysicist and executive at Shell Oil Company. He said something that is important to understand regarding the environment, environmental laws and sustainability. To paraphrase Mr. Sears:

We didn’t come out of the Stone Age because we ran out of stones: we didn’t come out of the Iron Age because we ran out of iron; and we’re not going to come out of the Oil Age because we’ll run out of oil. Rather, we’ve come out of each of the Ages because of ideas, innovation and technology.

Mr. Sears pointed out that we have plenty of oil and we will have plenty of oil for a long time to come but, as has occurred in the past, we will find a new way to create energy because the history of mankind is to come up with new ideas and innovations and to create new technology to solve our problems. 

I think he’s right and I think it’s worth watching. The trick will be to support the innovators and we can't do that unless we know about them.  For that reason, I am going to periodically post about new ideas and new technologies that affect the environment.  Some of the ideas will be simple and others a bit far out, but hopefully they will make you think about where we might be going.

Let me start with one that plays off of one of the great methods of motivating behavorial change: competition.  More particularly, if you make a game out of anything, people tend to want to play.  That is a large part of the reason for the success of the Prius effect.  Along that same line, welcome the Flower Lamp.

Many people have heard of smart meters, which monitor how much electricity the appliances in your home are using.  For example, you can keep track of how much you’re using (and therefore paying) for air conditioning, the refrigerator and the real energy hog, the digital picture frame. 

The Flower Lamp takes the smart meter one step further.  It visually represents the use of electricity in your home.  When you are being very good, it unfolds and the bulb shines bright. When your children have left every light on in the house and the air condition is running with most of the windows open, the Flower Lamp shuts as tight as a clam.

We all know that we should be shutting off lights and appliances that we aren't using.  We know that, but does it change us?  It doesn't appear to.  But when you add a visual element -- something you can actually look at and alter based on your actions -- it changes everything.  People start wanting to beat the game.  It's almost incidental that it saves money and energy.  It is behavior modification at its finest.

Is this a big innovation?  I don't know, but I think it (and other similar devices) could be.  Like so many great inventions, it's the multiplier effect that makes it worthwhile.  One or two Flower Lamps won't save the world, but put one in even 10% of the 115,000,000 U.S. homes, and it will make a dent.  And that is innovation.

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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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A while back, I posted about a case in London that addressed the issue of whether climate change was a philosophical belief.  If so, a person who acted on those beliefs could not be discriminated against in the workplace (which is how the court ruled).   The case raised the question of whether climate change could be viewed as a matter of faith, rather than science, though I noted that the issue had not yet come up in a U.S. court.  Well, it looks like they skipped the courts and went straight to the state legislatures.

There are now fifteen states that have considered or passed resolutions or statutes that support the position that climate change does not exist, has been manipulated or is only a matter of opinion.

For example, Kentucky's resolution states that there is "serious doubt upon the scientific data that have purportedly supported the finding that manmade carbon dioxide has been a material cause of global warming or global climate change."  Based on this serious doubt, the Kentucky legislature seeks to prohibit any state institution from enacting OR ENFORCING, "any federal, state or local law  . . . that limits, regulates, or controls the emission of carbon dioxide."

South Dakota, noting that "there are a variety of climatological and meteorlogical dynamics that can affect world weather phenomena, and the significance and interralitivity of these factors remain unresolved," resolved that teaching of climate change in public schools, "be presented in a balanced and objective manner and be appropriate to the age and acedemic developmenty of the student and to the prevailing classroom circuimstances." 

Virginia, never one to mince words, simply  proposes to declare that "carbon dioxide shall not be considered air pollution."

It makes you wonder where the debate is going.  Certainly if a state legislature declares that federal law must be ignored, litigation could follow.  We might then see a replay of the Scopes Monkey Trial, just as the U.S. Chamber of Commerce predicted.  The problem is that the Scopes trial wasn't exactly the high point of American jurisprudence.  I wonder if it would fare better this time. 

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

                             Climate Change, Jedi Knights and Philosophical Beliefs

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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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The best bureaucrat is the one who wants to put himself/herself out of a job; that is, they realize that if they can get people to comply with the law, they won't be needed.  Lisa Jackson, the EPA Administrator, may be just such a bureaucrat.

Ms. Jackson spoke at the National Press Club on March 8th and had a number of very interesting comments. Among them were:

• “Well-conceived, effectively implemented environmental protection is good for economic growth.”

• “[Environmental protection] creates a need—in other words, a market for clean technology—and drives innovation and invention—in other words, new products for the market. This is our convenient truth: smart environmental protection creates jobs….”

• “We need to reclaim leadership in the development of new products to protect our health and our environment. And we need to catalyze on the growing green market place here and around the world….”

Ms. Jackson’s point is that protecting the environment and being green can  be profitable.  Surprisingly, this is not a self-evident truth and, in fact, it is one that most businesses seem to refuse to acknowledge.  It is almost universally the case that  businesses bristle at that mention of EPA or environmental regulation and glow at the mention of capitalism or profit.  It doesn’t have to be that way.

For example, disposal of hazardous waste streams can be a very expensive process.  However, there are times when the waste of one business can be a raw material for another business.  Though EPA does not make it easy, there are ways to get these businesses together so that an expensive liability becomes a modest asset.  And that’s just on the disposal side.

On the regulatory side, I have said in the past that the electric car is going to save the world. It will, in short order, drastically reduce air pollution and be a big part of the solution to the green house gas problem. Will this happen because it is good for the environment? No, it will happen because that’s where the money is. The future of transportation both in the United States and around the world, will be in cars that are easy to park, can be fueled for pennies at home, are easy to maintain and can go from 0 to 60 miles per hour in 3.4 seconds. 

It is still early, but Ms. Jackson seems to understand that what is best for the environment can also be best for profits and that if she finds herself out of a job because people are doing the right environmental thing for a capitalistic reason, that’s all right.  Of course, we all know that EPA will continue to be around to act as the environmental sheriff because there will always be some people who view legitimate business as being too slow for their needs.  Still, if more was made of the fact that there is money in those %#@& environmental regulations and less that we are killing our children and destroying the earth, a lot of people -- maybe even whole political parties -- might change their view.  I'm pretty sure Ms. Jackson wouldn't mind.

RELATED POSTS: Global Warming and Fast Cars: A Perfect Match
 

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In his State of the Union speech, President Obama promised / threatened (which eye you use affects the view) to increase nuclear power generation. His proposed budget for fiscal year 2011 gives support to that promise.

The proposed budget increases loan guarantees for nuclear power generation from $18.5 billion  to $54.5 billion. While the proposal certainly has its detractors, any program that gets its funding tripled in the present economic times should be very happy. Is this a setback for renewable energy sources like solar and wind power? The answer appears to be, no.

While the proposed budget certainly increases the support for nuclear power production, it also cut $36 billion in tax benefits over the next decade for oil and gas and $2.3 billion for the coal industry (though, to be fair, these cuts are like giving a manicure to a polar bear) and provides for credit subsidy funding of $500 million to support $3 to $5 billion of loan guarantees for energy efficiency and renewable energy projects. Taken together, these proposals would appear to be a pretty strong indication that Obama wants: 1) less oil and coal; 2) more renewable energy; and 3) more nuclear power generation. 

In the end, Congress will make its own decision as to what projects to fund, but it is notable that this President seems to be indicating that the extreme left voices that rail against allowing any nuclear power need to be ignored. If climate change legislation has a chance in 2010, a nuclear component will certainly be necessary and the President’s proposed budget simply reflects this political reality.

With his statement at the State of the Union and now with his support in the proposed budget, it will be difficult for Republicans to argue that this President is not trying to find a middle ground for climate change legislation. (Who says he hasn’t learned anything from the health care debacle). Now we’ll see if Congress (i.e. the Senate), sees it the same way.

RELATED POST: Will Nuclear Power Be Part Of The Solution?
 

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

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

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

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

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

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

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

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

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

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

 

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

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

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

1.      The belief must be genuinely held;

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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“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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On October 16, 2009, EPA drew a line in the sand regarding mountaintop mining. With regard to the Spruce No. 1 Service Mine Permit located in Logan County, West Virginia, EPA informed Arch Coal, Inc. that it was beginning the process that could result in the rescission of its Clean Water Act permit.  Although the mine had a validly-issued permit from the Corps of Engineers, EPA believes that it has broad authority to veto the Corps' issued permit if it finds that serious water quality damage may occur and that there are methods to avoid such damage.   In the words of William Early, the acting regional administrator for EPA in Region III:

We recognize the issued permit contains several provisions that may be intended to address water quality and mitigation based upon information and data available at the time [of the issuance of the Clean Water Act Section 404 permit]. However, in light of new data and information since permit issuance, EPA remains concerned with much of the analysis set forth in your letter, particularly as it relates to the potential for adverse water quality impacts, further avoidance and minimization measures, the potential for accumulative impacts, and identification and enforceability of success criteria for mitigation.

Mr. Early’s concern, as stated in the letter, is that the operation of the mine “may result in unacceptable adverse impacts to fish and wildlife resources.” He noted that the project allows for the construction of six valley fills for placement of excess spoil material generated through the surface coal mining activities and that there were only minimally acceptable methods to minimize impacts to aquatic resources. In EPA’s view, “there is the potential for [the mine’s] associated discharges to cause further stream degradation.” Early also noted that the existing permit fails to contain adequate measures to mitigate environmental damage and does not set out what procedure would be appropriate if water-quality impacts would happen to occur.

The action of EPA is notable in several respects:

• It is the first time that EPA has threatened to rescind a permit for a project that had been previously authorized.
• Since 1989, only one other project has received a Section 404(c) veto from EPA.
• Prior to 1989, a total of eleven projects have received a veto, none of which involved mining.

Additionally, it is interesting to note that EPA's review is purportedly based on "new data and information since permit issuance,"  a process that took almost ten years.  Some might wonder wherther it is new evidence or a new administration that is driving the review and, if it is the latter, what impact will it have on business to know that the fundamental rules of the game (such as revoking already issued permits) can be changed every four or eight years? 

Though environmentalists may look on the EPA action as an indicator that the EPA under Obama is going to be much more aggressive against mountaintop mining, perhaps this is not really the best test case for that proposition. This site was, after all, one of the very few sites that even the Bush-era EPA was reluctant to give a glowing review. In June of 2006, during the comment period for the permit for the Spruce Mine, the site received a ranking of “EC-2,” which equates to “Environmental Concerns and Insufficient Information.”  Further, in its statement, EPA "emphasizes that the Spruce No. 1 represents an unusual set of circumstances we do not expect to be repeated again."

While it is a significant first step, what action is taken by this EPA for the remaining seventy-eight mountaintop mining permits will be much more telling.

RELATED POST:  Switchback Regulation and Mountaintop Mining: The Wrong Path?
 

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

                                                 THE COEUR ALASKA CASE

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

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

                                                MOUNTAINTOP MINING REVIEW
 

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

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

                                                             THE IMPACT

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

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

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

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

                              ENTERGY CORPORATION VS. RIVERKEEPER, INC.

                              Clean Water and Mountaintop Mining No Longer Mix

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

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

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

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

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

And they didn’t.

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

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

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

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

1)                  Find they do; or

2)                  Find they don’t; or

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

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

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

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

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

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

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

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

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

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

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

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

1)                  GHGs are increasing; and

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

3)                  There are methods available to reduce GHGs,

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

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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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With a new sheriff in town, environmental change is a foregone conclusion. The only questions are how and when will change be made. Rules that are created to give effect to environmental statutes are where we can find the real heart and soul of environmental protection. Every modern-day president that has taken office has realized that he has a lot more power to quickly cause policy changes via rulemaking than through the ponderous process of legislation. As I have said before, President Obama is no exception and is already in the process of making significant changes to the environmental rules.

The only problem with the use of this power is that it does have some minimal safeguards in place – and apparently they were exceeded.

In April, Secretary of the Interior Ken Salazar asked the U.S. District Court for the District of Columbia to remand and vacate the Stream Buffer Zone rule. This was an 11th-hour rule change made by President Bush which made it easier to discharge water taken from mountaintop removal into streams. Salazar decided that this was a bad public policy and, according to him, it did not pass the “smell test.”

In ruling on the question, the D.C. Circuit Court said that, as discerning as Mr. Salazar’s nose might be, there is a right way and a wrong way to remove the odor. And Mr. Salazar’s attempt was the wrong way. In the words of the Court:

Here, the federal defendants seek a remand and vacation of the SBZ Rule without a determination on the merits that the SBZ Rule is legally deficient.

The Court finds no precedent to support the proposition that it should reward and vacate the SBZ Rule under the circumstances presented here. Moreover, the National Mining Association has the better argument that granting the federal defendants’ motion would wrongfully permit the federal defendants to bypass established statutory procedures for repealing an agency rule. The Administrative Procedures Act requires government agencies to follow certain procedures, including providing for public notice and comment, before enacting or amending a rule. An agency must follow the same procedure in order to repeal the rule.                        

In other words: Sheriff, the law says you have to have a town meeting before you close the saloon, so have the town meeting before you close the saloon.

It seems unlikely that the requirement that there be notice and an opportunity to comment will change the outcome in any manner, other than to slow things down a bit. But telling the sheriff that the law also applies to him is probably a good reminder that there’s a difference between a sheriff and, say, a king.

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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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Three months ago I said that cost-benefit analysis was at the heart of the environmental debate between Republicans and Democrats. Two months ago I said that the United States Supreme Court granting unfettered discretion to EPA to define the applicability and scope of cost-benefit analysis was an extraordinary gift to our new EPA administrator. Three days ago I said that we could expect this administration to make wholesale revisions to the administrative rules and guidelines governing regulation of the environment.

So what happens?  EPA begins to modify the guidelines it uses to undertake cost-benefit analysis when analyzing environmental regulations. The best description I’ve seen is by Michael Livermore. He writes:

The Guidelines [for Preparing Economic Analysis] is little known outside of EPA, but used regularly by the agency to design every major environmental regulation. Before any rule is adopted, it must go through an economic analysis according to the Guidelines . . . .

The draft changes to the Guidelines are under discussion now and will hopefully be adopted this fall. These revisions would create a major shift in the status quo at EPA.

I have to agree with Michael when he says it will create a major shift in the status quo. He argues that that shift will be a good thing for environmental regulation. While I don’t agree with this conclusion, I do think it is very interesting, and telling, that this EPA is acting so quickly to change even the most fundamental rules governing environmental regulation.

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As a result of a previous post regarding the misguided attempts by several cities to ban plastic bags at grocery stores, I got called to task by a concerned reader.  If you think you're so smart, how do you get rid of the plastic and paper bags? 

I'm supposed to complain AND come up with a solution?  That seems pretty demanding.  On the other hand, it's a fair question that deserves at least an attempt at a response.  So, how might we do that?

Since, as a practical matter, groceries will need to be sacked, there is only one way to eliminate the bag as a waste -- be sure the bag is reusable.  That's not a shocker, but getting there is the trick.  To do that, we need to somehow convince the shopper that using the bag over and over is to their advantage in some way.  The history of environmental regulation has shown that there are essentially two methods of "encouraging" reuse: 1) hit the public’s conscience or 2) hit their pocket book

APPEALING TO CONSCIENCE

Under the guilt approach, you explain how much damage is being done to the environment by paper and plastic bags and hope that the public starts to bring their own bags for sacking. When you look at the statistics on the costs of creating paper and plastic bags, it's an easy case to make. The only problem with this is that it doesn’t work.   Most people have heard some version of the statistics, yet today only a small number of individuals at mainstream grocery stores bring reusable bags. If you can’t get those shoppers to do it, it isn't going to have any real impact.

You could help this philosophy along, however, by simply banning all bags at grocery stores. That would then force the buyer to bring a sack or, as in the case of Sam’s Club, hope that there is a spare box (that you then throw out at home).  Maybe the stores could hire young high school men and women to become grocery “carriers” instead of grocery “sackers” to take the groceries to the cars. That way the store owners wouldn’t hear the customers swearing as they carried the groceries, load by load, to the kitchen.  

You will have to judge for yourself, but I doubt that a total ban would work. If an individual store implemented it, the loss of business would likely force them back to bags. To avoid this, a city would need to be sure that every store followed the rule, but if there was a city-wide ban imposed, I would guess that, whenever possible, a lot of people would shop at the next closest city.  Although it would be a bold move, I haven't found any city that has considered a total bag ban.

APPEALING TO THE POCKETBOOK

The more likely solution is the pay-as-you-throw option.  That is, if you use a throw-away bag, you pay for the cost of the toss, not just the cost of production.

The simplest method is to just charge everyone a nickel for each bag. This should encourage re-use.  New York  has considered this.  The difficulty with this solution is that it sounds like a tax, which is a political lightning rod.  Also, unless the cost is high, I don't think it would be effective.  If your grocery bill is $50 or $100, most people would be willing to pay the extra 40¢ or 50¢ rather than change their behavior and, if that is the case, there’s no reduction in the waste stream.  If you want to change behavior, you need to get smarter than that.

For example, you could do what a some states do with beverage cans. You could charge, say, 5¢ per bag and return the nickel if they return the bag. While consumers may be willing to pay the 5¢ with no chance of getting it back, they don't seem to be as willing to throw it away. I'm sure that there is a psychological name for this, but I like to think of it as the PAF (people are frugal) effect.  You can almost always count on it. 

Once the bags were returned, they could be recycled. If they weren’t returned, the nickel would go to the landfill.  It's hard for the consumer to argue with it because they are getting their money back (with a little effort).  The biggest objectors would be the grocery stores, so they would likely need to get something for their effort, as is currently done with the can deposit.  This solution has the added incentive that, just like with beverage cans, enterprising youths and adults would search out discarded bags and return them for the nickel. You wouldn’t see many bags blowing around the neighborhood.  It isn’t a perfect solution, but it might work.

An interesting variation would be to simply charge $1 per bag and all bags would be those recyclable, hemp ones that we are now seeing at most stores. You know, the ones that drive you crazy because you remember that you have ten of them stored in your trunk just as the cashier says: “Paper or plastic?” The difference here would be that if you forget to bring your recycled bags, you would get to buy another three or four for your collection at $1 each. At $1 a bag, the PAF effect is really going to kick in. My guess is that after someone accumulates 15 or 20 of those bags, forgetting the bags will be a thing of the past.  (While I'm on it, would it be so hard for grocery stores to post "Don't Forget Your Bags" signs throughout the parking lot?)

Maybe none of these suggestions will work, but they're a start.  I leave the rest to the city council members -- that's why they're paid the big bucks.

RELATED POST: Sure Plastic Bags Are Better For The Environment, But Is That The Real Question?

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I’ve noticed that a number of cities around the country are considering passing ordinances that would ban plastic bags at grocery stores.

I thought we were done with this discussion. Okay, I’ll end it now. As between paper grocery bags and plastic ones, plastic is the better choice for the environment. There, that one’s done.

Next topic: What does the term “better” mean?

That’s the real question, isn’t it? Like so many things environmental, what is "better" depends a lot on what you count.

Rather than rehash all the literature, I’ll just give you the highlights and you can decide:

• In 1999, 14 million trees were cut down to produce the 10 billion paper grocery bags used by Americans in that year;
• Paper sacks generate 70% more air and 50 times more water pollutants than plastic bags;
• It takes 594 BTUs of energy to produce a plastic bag and 2,511 BTUs for a paper bag;
• It takes 91% less energy to recycle a pound of plastic than it takes to recycle of pound of paper;
• In today’s landfills, neither plastic nor paper will degrade;
• It takes 12 million barrels of oil to produce the 100 billion plastic bags used in the U.S. annually;
• The average American family accumulates 60 plastic bags in only four trips to the grocery store.

With regard to one of the primary reasons to ban plastic bags -- the killing of animals -- David Santillo, a Greenpeace marine biologist, told the Times of London:

It's very unlikely that many animals are killed by plastic bags.  The evidence shows just the opposite.  We are not going to solve the problem of waste by focusing on plastic bags. It doesn’t do the Government’s case any favours if you’ve got statements being made that aren’t supported by the scientific literature that’s out there. With larger mammals, it's fishing gear that's the big problem.  On a global basis, plastic bags aren't an issue.  It would be great if statements like these weren't made.

Given the energy costs (and the CO2 implications), I would say that the plastic bag wins. At a minimum, it’s a wash and wouldn’t justify a change in the law. 

But in the end, that’s not really the point. Some would say that everything we throw away causes some level of harm to the environment.  (My belief that all landfills are just future archaeological treasure troves hasn't really caught on).  That’s why there is so much discussion about the bag debate being a false choice. If you deem it desirable to reduce the amount of environmental damage, you don’t do it by choosing one bad thing over another. In this case, that would just increase the use of paper bags, which is "worse" for the environment.  You do it by eliminating the waste stream all together. You do it by finding a way to get rid of the disposable bag.

The cities that are talking about passing laws to ban plastic bags are missing the point by ignoring the science.  Moreover, they are missing a golden opportunity.  If there is the political will to outlaw plastic bags, certainly there is the will to devise a solution that actually gets rid of the waste stream.     Maybe the bag debate isn't the most pressing environmental issue of the day.  But (and this is important for politicians) it is a visible one.  It's time to get creative.  Just don't make the problem worse by banning plastic bags. 

 RELATED POSTS: The Grocery Bag Dilemma: Some Suggested Solutions

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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 find myself at a loss for words -- not a good condition for a blogger.

E-Justice, a very informative blog on a broad range of topics, has just put out their list of 50 Best Blogs About Environmental Law and included this site. Thanks for putting me in with such an outstanding group.

And for those of you who are interested in environmental issues (and you must be or you wouldn't have gotten this far), check out all of the other sites listed by e-Justice. They are by people who know what they are talking about and know how to say it. You won't always agree with the posts, but you'll learn a lot. I know I have.

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This one is too good to pass up.  Lamborghini is working on a hybrid car and is taking a number of other steps to reduce its CO2 footprint. 

When a sports car like Lamborghini decides to go green, you know that things have changed.  Just think, in the near future it might be mandatory for the head of any self-respecting environmental interest group, or even Al Gore, to drive one of these eco-friendly sedans.

My only real problem with it is what it will do to the racing industry.  It's just not going to be the same to sit in the stands as the Lamborghini comes whispering around the corner.  Maybe they'll design it so the electric engine doesn't kick in until 170 mph or so. 

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