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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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