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  

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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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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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