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

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

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

C.C.,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RELATED POSTS:  Fairness In Allocating Greenhouse Gas Allowances

                             Will Nuclear Power Be Part Of The Solution?

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

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

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

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

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

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

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

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

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

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

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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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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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