: 
Update: Global Warming. A Comparative Guide to the E.U. and the U.S. and Their Approaches to the U.N. Framework Convention on Climate Change and the Kyoto Protocol
By Deborah Paulus-Jagrič
Deborah Paulus-Jagrič holds a J.D. and an M.S.L.I.S., and is the Reference/Educational Services Librarian at N.Y.U. Law School Library. She was Project Librarian for Breaking the Logjam: Environmental Reform for the New Congress and Administration from 2007-09, and worked on Breaking the Logjam: Environmental Protection That Will Work, by David Schoenbrod, Richard B. Stewart & Katrina M. Wyman (Cambridge: Yale Univ. Press, 2010), in a variety of capacities. Her latest article, A New Land Initiative in Nevada, 17 (1) N.Y.U. Environmental Law Journal 398 (2008), co-authored with Kai S. Anderson, appeared in ELJ’s symposium issue for the Breaking the Logjam Conference.
Published April 2011
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Table of Contents
1. Introduction
2. Background on the UN Framework Convention on Climate Change (UNFCCC)
3. Kyoto Protocol: Adopted at COP-3
3.1. Overview
3.2. Marrakesh Accords
3.2.1. Kyoto’s “Flexibility” Mechanisms
3.2.2. LULUCF
3.3. COP-12
3.4. COP-13
3.5. COP-14
3.6. COP-15
3.6.1. Pre-COP-15
3.6.2. COP-15 Outcome
3.6.3. Post-COP-15
3.7. COP-16
3.7.1. Post-COP-16
3.8. COP-17
3.9. Finding Relevant Documents
3.9.1. IPCC’s Assessment Reports
4.1. The Clinton Administration, 1993-2001
4.1.1. The Former Clinton Administration: Subsequent Developments
4.2. The Bush Administration & Climate Change, 2001-2008
4.2.1. Asia-Pacific Partnership on Clean Development & Climate
4.2.2. Religion & Climate Change
4.2.3. Post-Midterm Elections, 2006-2008
4.2.4. Political Interference with Climate Research & Other Sciences
4.2.5. Arctic Animals Endangered by Global Warming
4.2.5.1. Polar Bears
4.2.5.2. Penguins
4.2.6. Massachusetts v. EPA
4.2.6.1. Federal Response to Mass. v. EPA, 2007-2008
4.3. The 2008 Presidential Campaign
4.4. The Obama Administration, 2009-2012
4.4.1. GHG Legislation
4.4.1.1. House of Representatives
4.4.1.2. Senate
4.4.1.3. Congress as a Whole
4.4.2. GHG Regulations: EPA & Mass. v. EPA
4.4.2.1. California Waiver
4.4.2.2. Regulatory “End Run” Around Congress: EPA’s Endangerment Finding
4.4.2.2.1. Mobile Sources
4.4.2.2.2. Stationary Sources
4.4.2.3. “Climategate”
4.4.2.4. Legislation To Prevent the “End Run”
4.4.2.4.1. Legislation Against GHG Regulation in the 112th Congress
4.4.2.5. Lawsuits Challenging the EPA Endangerment Finding
4.4.2.6. Business, ENGO & State Reactions to EPA Regulation of GHG
4.4.2.7. EPA’s Defense of the Endangerment Finding & GHG Regulation
4.4.3. Obama Administration and Energy
4.4.3.1. Offshore Drilling
4.4.3.2. The Deepwater Horizon Disaster
4.4.3.2.1. Overview: Amount, Path, & Stopping the Oil
4.4.3.2.2. Congressional Response
4.4.3.2.3. Liability
4.4.3.2.4. Executive Branch Response
4.4.3.2.5. Environmental Effects
4.4.3.3. Midterm Elections, 2010
4.5. California: State, County & City Actions to Reduce GHG Emissions
4.6. Other States’ Actions To Reduce GHG Emissions
4.6.1. Auto Industry v. States That Adopted California’s GHG Standard
4.7. State Actions That Will or Would Have Increased GHG Emissions
4.7.1. Alaska
4.7.2. Arizona
4.7.3. Minnesota and South Dakota
4.7.4. New Mexico
4.7.5. South Dakota
4.7.6. Texas
4.8. Domestic/International Businesses & Climate Change
4.9. Extra-Political Progress (or lack thereof) Reducing GHG Emissions
5.1. Finding EU Documents on Climate Change
5.2. Europe’s Emissions Trading Scheme (ETS)
5.2.1. EU Carbon Tax Initiative
5.3. New EU Energy Plan
5.4. EU Reports on GHG
5.5. Individual Member States & Climate Change
7. Online Scientific Resources Relating to Global Climate Change
7.1. General Web Sites & Blogs for Climate Change Resources and Programs
7.2. Scientific Materials
8. Online Legal & Policy Resources about Global Climate Change
9. Innovative or Alternative Technologies
1. Introduction: I began this guide in the fall of 2006, just prior to a number of significant climate-related events. The Twelfth Conference of the Parties to the UNFCCC and the Second Meeting of the Parties to the Kyoto Protocol (COP-12/MOP-2) were held in Nairobi in November 2006; in February 2007, the IPCC’s Fourth Assessment Report was released, which found it all but certain that human activities are responsible for climate change. Discussions of climate change were everywhere, and I was confident that U.S. hostility towards the Protocol would change with the administration. However, in early 2011, over two years into the Obama Administration, there is no progress either on national climate change regulation or on a successor protocol that we might consider ratifying; if anything, the 2010 midterm elections seem to have brought environmental backsliding on a variety of fronts. Nevertheless, a story does emerge from all this, if a different one than I hoped it would be.
Approach & sources: This is not a traditional research guide. It is a continuously updated narrative of the efforts of the U.S. government’s 4 branches and 50 states to follow much of the rest of the world and enact greenhouse gas (GHG) emissions controls. However, the U.S. Congress can’t decide whether global warming is happening at all; if it is, whether it is a natural or an anthropogenic phenomenon; and if the latter, whether the consequences of maintaining the status quo will be sufficiently devastating to justify the effort and expense of change.
I use the terms “global warming” and “climate change” interchangeably, although in scientific literature the former often refers to surface temperature changes and the latter to the effects of excessive CO2 and other GHGs in the atmosphere. I briefly summarize the UNFCCC and the Kyoto Protocol; discuss the important work that U.S. states, cities and businesses have initiated to address climate change (and, hopefully, to compel federal action); and am actively following the legislative and administrative repercussions of Massachusetts v. EPA. Comparisons to the E.U. and the rest of the world are also included.
My primary sources of electronic information are email alerts from Grist; the N.Y. Times (see below); and BBC News updates for climate change news from the E.U. and the E.C., all of which are freely available; the BNA International Environment Daily; the BNA Daily Environment Report; the BNA World Climate Change Report; the BNA Environment Reporter; and BNA’s U.S. Law Week. Online subscribers to BNA publications can use the embedded links when included, or search the BNA archives. I have relied on a blog entitled Warming Law: Changing the Climate in the Courts for updates on global warming law suits following Mass. v. EPA. [1] I have linked some law review articles to HeinOnline, but if the user is not a subscriber the links will not work. Remember that articles from online publications may over time become unavailable, and titles of online and print articles often differ, making the switch from internet to database or paper access less than seamless. Congressional committee hearings are sometimes archived on committee web pages, but not always, and database access may be necessary.
On Mar. 28, 2011, the N.Y. Times began charging for access to NYTimes.com. The first 20 items (articles, blogs, videos, whatever) viewed in a month are free; after that the fee is $15-35 per month, depending on mode of access. The digital subscriptions page says that although viewing links from search engines will count toward the limit, after you’ve used up your free items, you will have a new limit of 5 items from any given search engine. I assume that the existing links to the N.Y. Times will still work, and I will continue to add them as long as my free access permits.
In 2010, I added a long discussion (§ 4.4.3.2.) of the BP offshore oil rig disaster in the Gulf of Mexico, but its relationship to the topic of this guide is a bit procrustean. I am debating whether it should be broken out into another guide, say, on non-GHG-specific problems with conventional energy, but have left it here as a cautionary tale, at least for now.
I am grateful to my colleague Mirela Roznovschi, who created and maintains Globalex, for the opportunity to write on this subject.
Greenhouse gases (“GHG”), such as water vapor, carbon dioxide, ozone, and methane, trap heat and thereby warm the atmosphere. Emissions of greenhouse gases are increasing, and it is anticipated that the subsequent increases in global temperature will have severe effects on precipitation, ocean levels, extinction of species, and more. In 1988, the World Meteorological Organization and the United Nations Environment Programme (UNEP) created the Intergovernmental Panel on Climate Change (IPCC) “as an effort by the United Nations to provide the governments of the world with a clear scientific view of what is happening to the world's climate” (see IPCC History); its role is “to assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic information relevant to understanding the scientific basis of risk of human-induced climate change, its potential impacts and options for adaptation and mitigation.” (See Principles Governing IPCC Work) The panel’s First Assessment Report, released in 1990, [2] stated the belief of 400 scientists that global warming was real, and urged that steps be taken to avoid any further damage to the environment. See § 3.8.1. IPCC’s Assessment Reports.
After that, Europe in particular and other countries as well, began to call for action on climate change; in response, the UN, on Dec. 21, 1990, created the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change (INC). During the negotiation sessions, the U.S. often took strong positions, particularly against enforceable reduction targets and timetables, claiming scientific uncertainty and the adverse effect on the U.S. economy.
The United Nations Framework Convention on Climate Change (hereafter UNFCCC), U.N. Doc. A: AC237/18 (1992), 1771 U.N.T.S. 164, reprinted in 31 I.L.M. 851 (1992), was adopted by the INC on May 9, 1992, and was opened for signature in Rio de Janeiro, at the United Nations Conference on Environment and Development (UNCED), otherwise known as the "Earth Summit," June 4th to 14th, 1992; it remained open for signature in New York until June 19, 1993, by which date it had been signed by 166 countries. Portugal was the 50th nation to ratify the treaty, enabling it to enter into force on March 21, 1994.[3] The UNFCCC has been ratified, accepted, or approved by a total of 194 countries.[4]
The UNFCCC was signed by the George H.W. Bush administration in Rio on June 12, 1992, and the U.S. Senate ratified it unanimously on Oct. 15, 1992.[5] The original, authentic Convention was deposited with the Secretary-General of the United Nations. (See UNFCCC art. 19 & art. 26.) Parties to the Convention agreed to consider climate change in such matters as agriculture, industry, energy, natural resources, and activities involving sea coasts, in an attempt to slow the process of global warming.
The Conference of the Parties (COP) is the ‘supreme body’ of the Convention; it is the highest decision-making authority, an association of all the countries that are Parties to the Convention. The COP meets every year, unless the Parties decide otherwise, to review progress on the Convention. (See UNFCCC art. 7, 1771 U.N.T.S. at 176, reprinted in 31 I.L.M. at 860.)
Developed nations are referred to in the UNFCCC as “Annex I” nations, as they are listed in the first annex to the Convention, along with 12 “economies in transition,” the EIT parties. The developed countries in Annex I were also members of the OECD in 1992. “Annex II” parties are only those OECD members of Annex I; EIT parties are not so considered. “Non-Annex I Parties to the Convention” are primarily developing countries. Several (48) of these Parties are classified as least developed countries (LDCs) and are recognized as being especially vulnerable, either to the economic effects of reducing emissions, or to climate change itself. The UNFCCC placed the greatest responsibility for reducing emissions on parties included in Annex I, who agreed to contain emission levels at 1990 rates by the year 2000. (See UNFCCC art. 4 (2) (a) & (b), 1771 U.N.T.S. at 171-72, reprinted in 31 I.L.M. at 856-57.) However, the Convention did not impose binding limits on emissions.
Under the UNFCCC articles 4 and 12, all parties are required to “[d]evelop, periodically update, publish and make available to the Conference of the Parties, in accordance with Article 12, a national inventory of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol.” [Art. 4 (1) (a)] [6] The initial “progress reports” were to be communicated by Annex I Parties within six months of the entry into force of the Convention for that Party; within three years for non-Annex I parties; and at the discretion of the least developed countries. UNFCCC Art. 12(a) states that the inventories shall use “comparable methodologies to be promoted and agreed upon by the Conference of the Parties.” These national communications shall also include detailed descriptions of the policies and measures that each party has adopted to implement its commitment under the Convention.
The U.S.’s Climate Action Reports are our national communications required by the UNFCCC. The United States submitted the first U.S. Climate Action Report (USCAR) to the UNFCCC Secretariat in 1994, the second in 1997, and the third in 2002; they are available from depository libraries. The Fourth U.S. Climate Action Report-2006 is available electronically from the State Department; the Fifth U.S. Climate Action Report 2010 was available in early 2010.
Under Articles 4 and 12 of the Convention and various decisions of the COP, Annex 1 Parties are also required to submit to the secretariat annual inventories of anthropogenic GHG emissions not already controlled by the Montreal Protocol. The IPCC Guidelines for National Greenhouse Gas Inventories were first accepted in 1994, published in 1995, and revised in 1996. The Revised 1996 IPCC Guidelines were reaffirmed by COP-3 in Kyoto which stated that they “should be used as ‘methodologies for estimating anthropogenic emissions by sources and removals by sinks [7] of greenhouse gases in calculation of legally-binding targets during the first commitment period.” They were published in three volumes which are available on the Web: Volume 1 gives Reporting Instructions on how to prepare and transmit national inventory data consistently; volume 2 is the Workbook, with instructions to assist experts to start developing inventories if they do not have them already; and volume 3 is the Reference Manual, with methods to estimate emissions for a wider range of GHG and lists of source types for each.
The nearly-500-page, 15th annual Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2008 (April 2010, U.S. EPA #430-R-10-006) is available from the EPA, which also has a web archive of earlier editions. It shows a drop in overall emissions of 2.9% from 2007 to 2008; however, emissions are still 13.5% higher than they were in 1990.
EPA began seeking public comment on the annual Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2009 draft report in Feb. 2011. The draft report “shows that in 2009, overall greenhouse gas (GHGs) emissions decreased by 6 percent since 2008…. Overall, emissions have grown by 7.4 percent from 1990 to 2009. Emissions in 2009 represent the lowest total U.S. annual GHG emissions since 1995.”
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The UNFCCC also established two subsidiary bodies:
Both subsidiary bodies meet twice a year.
As the Convention did not contain binding emissions limits, the member countries almost immediately decided that the Convention’s commitments were not enough. In March/April of 1995, the Convention’s first Conference of the Parties in Berlin [8] adopted the “Berlin Mandate,” [9] which called for adoption of a protocol to the UNFCCC that would contain more stringent ways for Annex I Parties to limit greenhouse gas emissions. [10] The Parties also set up a new subsidiary body, the Ad Hoc Group on the Berlin Mandate (AGBM) at COP-1 to negotiate a protocol to the Convention; its first meeting was in the summer of 1995. A fourth subsidiary body, the Ad Hoc Group on Article 13 (AG13), was also established to explore options for conflict resolution. [11]
In July, 1996, at COP-2 in Geneva, the parties instructed the representatives “to accelerate negotiations on the text of a legally-binding protocol or another legal instrument to be completed in due time for adoption at the third session of the Conference of the Parties… [that] should fully encompass the remit of the Berlin Mandate,” especially the commitments for Annex I Parties. In the “Geneva Ministerial Declaration,” published in an Annex to the Report of the Conference of the Parties on page 71, members endorsed the Second Assessment Report of the Intergovernmental Panel on Climate Change as “currently the most comprehensive and authoritative assessment of the science of climate change, its impacts and response options now available.” Further, the members encouraged accelerated negotiations on the text of a protocol to be adopted at COP-3, in accordance with the Berlin Mandate.
After negotiations described as “tough, grueling and long” (144 Cong. Rec. S196 (Jan. 29, 1998)), the Kyoto Protocol was adopted in Dec., 1997, at COP-3. [12] It was open for signature from the middle of March, 1998, to the middle of March, 1999. So far 193 parties (of the FCCC’s 194) have ratified, acceded to, approved of, or accepted it; see Status of Ratification. However, only Annex I Parties to the UNFCCC, 22 countries and the EU-15, are required to reduce their GHG emissions under it; their individual targets are found in the Protocol’s Annex B.
The COP to the Convention also serves as the Meeting of the Parties (MOP) to the Kyoto Protocol. (Kyoto Protocol art. 3, reprinted in 37 I.L.M. at 38.) Both bodies issue decisions and resolutions.
The Protocol set mandatory targets for GHG emissions for Annex I Parties, and specifically excluded developing country parties from any obligations. Annex A lists the greenhouse gases it covers: carbon dioxide, methane, nitrous oxide, hydro fluorocarbons, perfluorocarbons, and sulfur hexafluoride, as well as the sectors/source categories that emit them. According to article 3.1, Annex I Parties would ensure that their overall emissions of those gases would be reduced “by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.” [13] However, article 3.8 allows any Annex I Party to use 1995 as a base year for the last 3 gases. [14] Also, a “degree of flexibility” was built into articles 3.5 & 3.6 for Annex I Parties in transition to a market economy regarding the base year they use, if 1990 is considered too strict.
Although under the protocol, Annex I countries were required to reduce their greenhouse gas emissions from 1990 levels by an average of 5.4% during the first compliance period, 2008–2012, by the end of 2008, Annex I nations had reduced their overall emissions by only 1.2%, with most of the reductions coming from former Soviet bloc countries whose economies had collapsed after the 1990 benchmark year. [15]
The Secretariat has been located in Bonn, Germany, since August of 1996.
Entering into force: Article 25 of the Protocol provides two conditions that must be satisfied before the Protocol could enter into force: First, at least 55 Parties to the Convention must ratify, accept, approve, or accede to the Protocol; there must be enough Annex I Parties to account for at least 55% of carbon dioxide emissions in 1990. The Protocol would enter into force 90 days after both conditions were satisfied. As the U.S. was responsible for 36% of 1990’s GHG emissions, its ratification was considered essential to the Protocol’s implementation, and there was dismay in the international community when the U.S. failed to do so. [16] However, Russia, responsible for 17% of 1990 GHG emissions, ratified on Nov. 18, 2004, [17] and the Protocol came into effect on Feb. 16, 2005; the total percentage of Annex I Parties GHG emissions is 63.7%. The original, authentic Protocol was deposited with the Secretary-General of the United Nations. [18]
Compliance with the Protocol: The Compliance Committee began operation in March 2006; it has two branches, enforcement and facilitative. If the enforcement branch determines that a Party is not in compliance with its obligations under the Protocol, it will “require the Party to make up the difference between its emissions and its assigned amount during the second commitment period, plus an additional deduction of 30%. In addition, it shall require the Party to submit a compliance action plan and suspend the eligibility of the Party to make transfers under emissions trading until the Party is reinstated.” The facilitative branch assists Parties in meeting their obligations under the Protocol.
COP-4 (held in Buenos Aires, Argentina), in 1998; COP-5 (held in Bonn, Germany), in 1999; COP-6 (held in The Hague, The Netherlands), in 2000; and COP-6b, the resumed session (held in Bonn, Germany), [19] in July, 2001, all continued work on the details of the Protocol. Negotiations at the second Bonn conference resulted in a compromise that permitted the Protocol to go forward. The U.S. did not take part in the negotiations. [20]
The "Marrakesh Accords," adopted in October/November, 2001, at COP-7, [21] in Marrakesh, Morocco, addressed the actual operation of the Protocol, including its three “flexibility,” or free-market mechanisms, [22] which were proposed by the U.S. delegation:
· the clean development mechanism
· joint implementation
· emissions trading.
Flexibility mechanisms enable countries that cannot meet their emissions reductions to purchase or acquire the right to emit from other countries. It was necessary to establish these mechanisms before the Kyoto Protocol could enter into force. Decisions of the COP/MOP on the Mechanisms are available online.
The Marrakesh Accords also established several expert groups:
· The Consultative Group of Experts (CGE) assists developing countries prepare reports on climate change.
· The Least Developed Country Expert Group (LEG) gives advice to undeveloped countries.
· The Expert Group on Technology Transfer (EGTT) works to share technology with less developed countries.
The Clean Development Mechanism (CDM) under the Protocol’s article 12 allows developed nations to pay for projects that cut emissions in developing nations, for which efforts they receive credits that they can apply to meeting their own emissions targets.
A project to clean up a Chinese factory that emits the GHG HFC-23, trifluoromethane, illustrates problems with the program. HFC-23 is a Freon-type refrigerant that will soon be banned in industrial nations because it depletes the ozone layer. Cleaning up that factory under the CDM enables chemical companies to expand existing factories that produce HFC-23 for use in cheap, inefficient appliances to be sold in India and China, which have no responsibilities under the Kyoto Protocol; the factory will still function, although in violation of the Montreal Protocol to the Vienna Convention for the Protection of the Ozone Layer, which requires it and other factories like it to be phased out. (Keith Bradsher, Outsize Profits, and Questions, in Effort to Cut Warming Gases, N.Y. Times, Dec. 21, 2006.)
The Joint Implementation Mechanism (JI) under the Protocol’s article 6 is similar to the CDM; it allows developed countries to receive “emissions reduction units” for financing projects to mitigate climate change in other developed countries that are “economies in transition,” that is, formerly Communist countries.
Emissions trading under the Protocol’s article 17 allows Annex I Parties to purchase the right to emit from other countries that have not used up their emission limits.
The European Emissions Trading Scheme, the largest of its kind in the world, discussed infra § 5.2., and carbon trading in general, is not uncontroversial. Analysts estimate that the UK’s most polluting industries earned millions of pounds in windfall profits in 2005 from over-allocation of emissions permits. Groups such as the Durban Group for Climate Justice, a group of international organizations that met in South Africa in 2004, reject the free market approach to climate change. The Durban Declaration of Climate Change rejects carbon trading and its attempt to “commodify” natural resources. [23]
In May 2007, the World Bank issued a report entitled State and Trends of the Carbon Market 2007, by Karen Capoor and Philippe Ambrosi. The report showed that the global market for CO2 emissions credits doubled in 2006 to $30.1 billion: $24.4 billion was generated by the EU’s Emissions Trading Scheme (see infra), $5.3 billion through the CDM, and $141 million through JI. [24]
COP-7 in Marrakesh also adopted Decision 11/CP.7, regarding the principles to govern Land-Use, Land-Use Change and Forestry (LULUCF). Decision 11/CP.7, among other things, recommended that draft decision -/CMP.1 on Land use, Land-use change and Forestry be adopted by the first session of the COP serving as the Meeting of the Parties of the Kyoto Protocol. (This was COP-11 in 2005, see infra; it did adopt the LULUCF decision.) The Decision also made various requests to the SBSTA in its section 2, and several “invitations” to the IPCC in its section 3. This work was based on a 2000 Special Report on Land Use, Land-Use Change & Forestry by the Intergovernmental Panel on Climate Change, [25] which in turn was based on the Protocol itself. Article 3.3 of the Protocol says that “net changes in greenhouse gas emissions from sources and removals by sinks resulting from direct human-induced land use change and forestry activities, limited to afforestation, reforestation, and deforestation [26] since 1990…shall be used to meet the commitments in this Article of each Party included in Annex I.” Article 3.4 of the Protocol states that at the first COP/MOP session (in 2005) Parties should “decide upon modalities, rules and guidelines as to how and which additional human-induced activities related to changes in greenhouse gas emissions and removals in the agricultural soil and land use change and forestry categories, shall be added to, or subtracted from, the assigned amount for Parties included in Annex I, …” LULUCF activities provide a relatively low cost way for Parties to offset their GHG emissions. [27]
The World Summit on Sustainable Development was held in Johannesburg in 2002; the U.S. Secretary of State Colin Powell, one of the U.S. representatives, was roundly criticized by environmental groups that disagreed with the U.S.’s failure to ratify the Kyoto Protocol. [28]
COP-8 was held in New Delhi, India, in 2002; COP-9 was held in Milan, Italy, in 2003; and COP-10 was held in Buenos Aires, Argentina, in 2004. COP-11 was held in Montreal, Canada, from Nov. 28 to Dec. 9, 2005; it also marked the entry into force of the Kyoto Protocol and was the first COP that served as the Meeting of the Parties to the Protocol.
Among other things, COP-11 established the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG). [29] The AWG’s first session was held in Bonn from May 17 to May 25, 2006; its second session was held in Nov. 6-14, 2006, in Nairobi.
In preparation for COP-12, the UN issued its annual report on Oct. 30, 2006, which was compiled from data that all 41 Annex I Parties to the UNFCCC submitted to the secretariat. The report, entitled Greenhouse Gas Emissions Data for 1990-2004 for Annex I Parties, showed that since 2000, emissions had increased slightly, in both EIT and non-EIT Parties; also, the number of Parties with emissions decreases had declined to seven nations (the UK, Monaco, Lithuania, Ireland, Iceland, Germany, and Czech Republic) from 23 of the 41 since 2000. [30] One of the report’s conclusions was that “industrialized countries will need to intensify their efforts to reduce greenhouse gas emissions.” [31]
COP-12 was held from Nov. 6-17, 2006, in Nairobi, Kenya, in conjunction with the second meeting of the Parties to the Kyoto Protocol (COP-12/MOP-2). A press release issued the first day of the Conference was entitled: Nairobi United Nations Climate Change Conference opens with warning that climate change may be most serious threat ever to face humankind. One of the major goals of the Conference was to work on a global agreement for the time period after the Kyoto Protocol runs out in 2012. Another was to help poorer African countries adapt to climate change. [32] The UN released its Report on the African Regional Workshop on Adaptation just before the meeting opened; the report anticipates that the effects of climate change on Africa will be particularly severe. [33]
COP-12/MOP-2 participants pledged to review the effectiveness of the Kyoto Protocol in 2008 as required under its Article 9 to determine whether it adequately deals with increases in GHG emissions. Negotiators “assur[ed] developing nations that the effort will not include consideration of new mandatory requirements on their greenhouse gas emissions.” It was also agreed to conduct another review, required by the protocol’s Article 3.9, to determine whether more severe emissions cuts will be required after the first compliance period ends in 2012. [34]
Meetings of the subsidiary bodies and the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol were held in Bonn from May 7-18, 2007, in preparation for COP-13/ MOP-3 to be held in Bali in December 2007. Delegates continued to discuss extending the Kyoto Protocol, which expires in 2012. [35] A high-level meeting of heads of state was proposed on May 8 by U.N. Secretary General Ban Ki-moon to discuss the post-Kyoto era; it would be held in New York in September, in preparation for the Bali meeting. [36]
The fourth session of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol and the fourth workshop under the dialogue on long-term cooperative action to address climate change by enhancing implementation of the Convention was held in Vienna, Austria, Aug. 27-31, 2007. About 1000 delegates agreed to set GHG emissions cuts between 25 and 40 percent below 1990 levels in the successor pact to the Kyoto Protocol. [37]
3.4. COP-13
COP 13 & the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol (CMP) 3, opened Dec. 3, 2007, in Nusa Dua, Bali, Indonesia. Observers hoped for a political breakthrough in international climate change negotiations and a timetable for a successor agreement to the Kyoto Protocol, which expires in 2012. [38] The conference continued until December 14th. Before it opened, leaders from 150 global companies endorsed a legally binding framework to address climate change in The Bali Communiqué, in the belief “that tackling climate change is the pro-growth strategy. Ignoring it will ultimately undermine economic growth.” [39] Signatories included Shell, Coca-Cola, Dupont, British Airways, Rolls Royce, and many more. In a letter to Yvo de Boer, the head of the U.N. Climate Change Secretariat, Rep. Edward Markey, Chairman of the House Select Committee on Energy Independence and Global Warming, stated that “...President Bush's avoidance of action is not the status quo here in America," and that “...Congress, the states, cities, and Americans from coast to coast [were] looking to act immediately on global warming.” [40] Finally, a rough and vague Road Map was agreed to, “which consists of a number of forward-looking decisions that represent the various tracks that are essential to reaching a secure climate future. The Bali Road Map includes the Bali Action Plan, which charts the course for a new negotiating process designed to tackle climate change, with the aim of completing this by 2009.” The U.S. reluctantly agreed to the proposal. [41] A Papua New Guinea representative said to the U.S. in apparent desperation and in unusually strong language that was applauded by the delegates: “We seek your leadership. But if for some reason you are not willing to lead, leave it to the rest of us. Please, get out of the way.”[42] Work proceeds to draft a successor agreement by 2009. [43]
A hearing was held before the Senate Foreign Relations Committee entitled: International Climate Change Negotiation: Bali and the Path Toward a Post-2012 Climate Treaty on Jan. 24, 2008. James Connaughton, chairman of the White House CEQ and a top environmental adviser to the Bush administration, said that he continued to oppose mandatory limits on U.S. GHG emissions, and reiterated the administration’s well-known position that it would not commit to international goals unless major developing countries did also. [44]
Three months after the Bali conference, talks opened in Bangkok, Thailand, from March 31st to April 4th, 2008, in an attempt to advance the Bali Road Map. Sessions of the Ad hoc Working Group on Long-term Cooperative Action under the Convention (first session) and the Ad hoc Working Group on further Commitments for Annex I Parties under the Kyoto Protocol (first part of the fifth session) also took place. [45] Yvo de Boer, executive secretary of the UNFCCC, noted that only about a year and a half was left to forge a complex and controversial agreement. [46]
Another meeting of 17 nations that account for 80% of global GHG emissions was held in Paris later in April, 2008, led by the U.S. Many delegates (as well as environmentalists, scientists and lawmakers) criticized President Bush’s speech on April 16th, where he called for US emissions to slow down over the next decade, stop by 2025, and begin to reverse after that; he reiterated his endorsement of coal and nuclear power and his antipathy to raising taxes. Other nations took consolation from the fact that Bush would soon be leaving office. [47] Two more meetings were held to prepare for the July 7-9th Group of Eight summit. [48]
COP-14 and the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol (CMP-4) took place in Poznań, Poland, on Dec. 1-12, 2008. It concluded with a “clear commitment from governments to shift into full negotiating mode next year in order to shape an ambitious and effective international response to climate change, to be agreed in Copenhagen at the end of 2009. Parties agreed that the first draft of a concrete negotiating text would be available at a UNFCCC gathering in Bonn in June of 2009.” (It was not.) President-elect Barack Obama did not attend, as he did not assume office until Jan. 20, 2009.
3.6.1. Pre-COP-15
A prelude to COP-15, the World Business Summit on Climate Change was one of a series of meetings during 2009 designed to press governments to take the radical measures that will be needed in Copenhagen; it was held there from May 24th-26th. "The Copenhagen Call," a powerful if concise statement (4 pages), sets out the six elements business believes are required to forge an effective new global climate treaty, was issued at its conclusion.
In July, 2009, Hans Joachim Schellnhuber, chair of an advisory council known by its German acronym, WBGU, spoke at a conference at New Mexico’s Santa Fe Institute and released a study entitled: Solving the climate dilemma: The budget approach, which, as reported by Mark Hertsgaard of Grist, “has monumental implications for the pivotal meeting in December in Copenhagen, where world leaders will try to agree on reversing global warming.” The WBGU study (unlike the IPCC, which says rich industrial countries must cut emissions 25 to 40 percent compared with 1990 by 2020) says: “the United States must cut emissions 100 percent by 2020—in other words, quit carbon entirely within 10 years. Germany and other industrial nations must do the same by 2025 to 2030. China only has until 2035, and the world as a whole must be carbon free by 2050. The study adds that big polluters can delay their day of reckoning by “buying” emissions rights from developing countries, a step the study estimates would extend some countries’ deadlines by a decade or so. Needless to say, this timetable is light-years more demanding than what the world’s major governments are talking about in the run-up to Copenhagen.”
Intersessional Informal Consultations were held in Bonn from August 10-14, as a prologue to the ad-hoc working group meetings to be held in Bangkok later this fall. They resulted in little progress and a warning from the director general of the UNFCCC, Yvo de Boer, that if the speed of progress does not increase, an agreement on a successor to the Kyoto Protocol in Copenhagen in December will not be possible. [49]
Climate meetings sponsored by the U.N., the Ninth Ad-hoc Working Group on the Kyoto Protocol (AWG-KP) and the Seventh Ad-hoc Working Group on Long-term Cooperative Action (AWG-LCA) under the UNFCCC, were held in Bangkok from Sept. 28th to Oct. 9th, 2009. The U.S. envoy, Jonathan Pershing, warned that it would be difficult for the U.S. to make international commitments in Copenhagen prior to the enactment of domestic climate legislation. (See infra.) There was conflict between rich and poor nations over proposals to require developing nations to control emissions after 2012. Delegates from Mexico said that the U.S. delegation had become an “obstacle” to a final agreement, and the EU was also criticized. [50]
On Sept. 22, 2009, “nearly 100 world leaders accepted UN Secretary-General Ban Ki-moon’s invitation to participate in an historic Summit on Climate Change in New York ... to mobilize political will and strengthen momentum for a fair, effective, and ambitious climate deal in Copenhagen this December.”
However, on Oct. 20, 2009, less than two months before COP-15 in Copenhagen, the N.Y. Times reported that hopes are not high that the major differences among the major GHG emitters will be resolved before the meeting or that it will produce a comprehensive new treaty. [51] The following day, Oct. 21, 2009, India and China signed a 5-year agreement to cooperate on climate issues and to “ensure a fair and equitable outcome at Copenhagen.” See infra, under India.
On the Copenhagen climate negotiations, see Lavanya Rajamani, Addressing the ‘Post-Kyoto’ Stress Disorder: Reflections on the Emerging Legal Architecture of the Climate Regime, 58 International and Comparative Law Quarterly 803 (Oct. 2009), which argues “that one of the most significant factors hindering substantive progress on a post-2012 climate agreement is what is characterized here as the ‘post-Kyoto stress disorder’, a lack of trust amongst some developing countries that industrialized countries will, given current and past form, honour their commitments, and/or take the lead in the new climate agreement.”
A final round of U.N.-sponsored climate change talks prior to Copenhagen was scheduled in Barcelona, Nov. 2-6, 2009. The chairman of the Ad-hoc Working Group on Long-term Cooperative Action did not believe that Copenhagen’s COP-15 meeting (Dec. 7-18) will produce a successor protocol to Kyoto even if Barcelona has a positive outcome, because of a lack of willingness to compromise on emissions reduction targets and the financial issues. [52] On Nov. 4, 2009, it was announced that key government and U.N. officials admitted that arriving at a successor protocol is probably unlikely but might happen next year if a legally binding framework, rather than a treaty, is agreed to in Copenhagen. [53]
On the 6th of November, the Barcelona talks ended with the U.S. and Europe repeating demands that the existing Kyoto treaty be scrapped in favor of a single new international treaty; poorer nations disagreed. “The 130 developing countries represented by the G77 group said today they would walk out of Copenhagen if rich countries did not offer far deeper emission cuts and more money.” [54] The Africa Group boycotted the discussions on Nov. 4th. [55] Ambassador Lumumba Di-Aping of Sudan, chair of the Group of 77, the largest intergovernmental organization of developing states in the United Nations (with 130 members, despite its name), repeatedly criticized industrialized nations for condemning poorer nations to environmental disaster. [56] The U.S. Chamber of Commerce issued a report on Nov. 12th entitled The Prospects for Copenhagen: More Realism Can Smooth the Way, that pointed out the obstacles to a successful outcome to COP-15. [57]
The Council on Foreign Relations held a symposium on Nov. 10, 2009, in Washington, entitled: Countdown to Copenhagen: What's Next for Climate Change?, but the panelists were not optimistic about Copenhagen’s outcome. The first secretary at the Chinese embassy in Washington stated that industrialized nations were responsible for getting the world in the condition it is in and should bear the majority of the costs that developing nations will have to spend to remedy it. None of the participants expected specific emissions limits to be set in Copenhagen. [58]
However, the news that the Kerry-Boxer bill had been reported out of the Senate Environment and Public Works Committee the day before, Nov. 5, 2009 (see infra, § 4.4.1.2.), was moderately encouraging and representatives “from the United Nations, European Union, G-77, and even the laggard United States all confirmed that a fair, ambitious, and legally binding global agreement is still absolutely possible to achieve next month.” [59] EU environment ministers will meet again Nov. 23rd in Brussels to work on still-unresolved issues before Copenhagen. [60]
The Center for Public Integrity launched the International Consortium of Investigative Journalists in 1997 and began a project in July 2009 entitled The Global Climate Change Lobby to uncover the special interests attempting to influence negotiations leading to the pivotal December talks on a climate change treaty in Copenhagen and involved reporters in eight of the major economies deemed essential to a successful treaty: Australia, Brazil, Canada, China, the European Union, India, Japan, and the United States, and which account for 65% of global GHG emissions. In Nov. 2009 they report that global attempts to craft a pivotal new climate treaty in Copenhagen this December are being stymied by a far-reaching, multinational backlash led by fossil fuel industries and other heavy carbon emitters, according to an eight-country report by the International Consortium of Investigative Journalists. [61] The web site has an interactive map with emissions data from 2005 [in 2009] with GHG emissions per capita, cumulative emissions from the mid-19th century, current emissions, and emissions’ intensity, that is, per unit of GDP.
On Monday, Nov. 16, 2009, environment ministers from 44 countries (including Brazil, China, India, and the U.S.) met in Copenhagen for a 2-day meeting to discuss the upcoming COP-15 and the difficult issues that have had the 192 UNFCCC members deadlocked for two years. Danish Climate Minister Connie Hedegaard will present a concise (5-8 page) draft proposal for a binding political agreement. [62]
On Nov. 20, 2009, Rajendra Pachauri, chairman of the IPCC, said the gap between developed and developing nations appeared to be widening as Copenhagen approaches, partly because of U.S. reluctance to bring a specific emissions reduction target to the negotiations, which would have carried a great deal of credibility. Other UN officials, including Secretary-General Ban Ki-moon and Yvo de Boer, were less pessimistic. [63]
COP-15
will be held at the Bella Center outside of Copenhagen.
A climate-friendly car is parked outside.
At the Asia-Pacific Economic Cooperation summit meeting in Singapore in mid-Nov. 2009, President Obama and other world leaders acknowledged that it was unrealistic to expect a legally binding new climate treaty to emerge at Copenhagen in December as originally intended, given the conflicts between the 192 nations involved. They decided that it made more sense to make the COP-15 goal a less specific “politically binding” agreement and to postpone the difficult issues until 2010. One of the major reasons was the lack of progress on U.S. climate legislation; see supra § 4.4.1. [64] An EU official said that “it had been clear for months that Copenhagen was not going to yield a breakthrough and that there was plenty of blame to go around.” [65] It was announced in Singapore that “the United States has embraced the Danish proposal for finalizing an interim international climate agreement in Copenhagen in December.” (Emphasis supplied.) President Obama traveled to China after that meeting, and at the summit that followed with Hu Jintao the “United States and China announced ... a package of cooperative agreements on clean energy and climate change that are remarkable in both breadth and ambition. The cluster of seven initiatives, partnerships, action plans, and research centers covers a range of low-carbon energy strategies from electric cars to energy efficiency technologies.” [66]
President Obama announced in November that he may attend the Copenhagen conference in Dec. 2009 if his being there would be helpful. He believed a satisfactory framework convention could be worked out, despite the fact that the Senate will probably not pass climate legislation before the meeting; see supra § 4.4.1.2., and § 3.6. [67]
On Nov. 25, 2009, the president announced that he will attend COP-15 on his way to Oslo to receive his Nobel Prize. He will deliver a speech in Copenhagen on Dec. 9th at the beginning of the conference, offering a tentative U.S. reduction of GHG emissions “in the range of 17 percent below 2005 levels by 2020,” according to the White House, and 80% by mid-century, the same reduction in the House bill passed in June. [68] But then, on Dec. 4th, 2009, the White House announced that the president will attend COP-15 on Dec. 18th, the final day of the conference and the “high-level segment of the negotiations,” to signal his commitment to pushing the negotiations forward. [69]
For academic commentary, see, e.g., David B. Hunter, International Climate Negotiations: Opportunities and Challenges for the Obama Administration, 19 Duke Envtl. L. & Pol'y F. 247 (Spring, 2009).
3.6.2. COP-15 Outcome
COP-15 nearly collapsed on the last day and might have done so but for the intervention of President Obama; even so, it was not viewed as an unqualified success. The interim agreement, the Copenhagen Accord, FCCC/CP/2009/L.7 (Dec. 18, 2009), vaguely reiterated well-known “commitments”; among other things, funds for mitigation, adaptation and forest conservation were promised; a High Level Panel was established to study potential sources of revenue; the Copenhagen Green Climate Fund was established to support projects, policies and other activities in developing countries related to mitigation; a Technology Mechanism was established to accelerate technology development and transfer. Committed parties are required under the Accord to submit national action plans for emission reductions by the end of January, 2010; the plans must be consistent with the agreement’s stated goal of limiting global temperature increases from carbon pollution from increasing to more than 2 degrees Celsius (3.6 degrees Farenheit) over pre-industrial levels. [70]
Leaders from developing countries, including Brazil, South Africa, India, and China (the so-called “BASIC” nations, a really terrible acronym), with the personal encouragement of President Obama, participated in finalizing this agreement; it is the first time developing nations have agreed to binding emissions reductions in an international agreement. Furthermore, the Accord “includes a compromise between the United States and China to verify pollution reductions according to rigorous and transparent guidelines depending on the source of financing for the reductions. All reductions are subject to ‘international consultation and analysis.’” [71]
Hopefully the Accord will morph into a binding legal agreement by the end of 2010. It was accepted by 188 of the 192 attending countries by the end of the meeting, and only five—Bolivia, Cuba, Nicaragua, Venezuela, and Sudan—refused it. However, “[a]s of Jan. 11, only four countries—Australia, Canada, the Maldives, and Papua New Guinea—had officially stated they support the document and one, Cuba, had declared it does not support it. Countries have until Jan. 31 to state a preference one way or the other, although the UNFCCC Secretariat indicated that this was not a hard deadline.” [72]
According to U.S. Climate Action Network, a total of 73 countries - 40 Annex I and 33 non-Annex I countries – have submitted targets to the Secretariat; of these, 64 were “associated” with the Accord. Thirty-five more, are “associated” with the Accord without having, so far at least, submitted targets. (That means a total of 99 countries are “associated.”) Thirteen more countries (including Brazil, China and India, despite their importance in finalizing the agreement, supra) have expressed support for the Accord but are not “associated” with it, for a tentative total of 112 “associated” or “supportive” countries. [73]
For commentary on COP-15, see James Hansen et al., Target Atmospheric CO2: Where Should Humanity Aim?, 2 Open Atmos. Sci. J. 217 (2008) & James Hansen, Never-give-up fighting spirit: lessons from a grandchild, GRIST, Dec. 1, 2009.
Stockholm Environment Institute & Potsdam Institute for Climate Impact Research, A Copenhagen Prognosis: Towards a Safe Climate Future: A Synthesis of the Science of Climate Change, Environment and Development (2009). (“This report presents a concise diagnosis of the state of the biosphere and observed trends and offers a treatment plan that is consistent with a 2°C warming threshold, equity and economic development.”)
GRIST’s Copenhagen Hub Page has many useful links to understanding the conference.
Joseph E. Aldy & Robert N. Stavins, Post-Kyoto International Climate Policy: Implementing Architectures for Agreement (Cambridge University Press, 2010).
Joseph E. Aldy & Robert N. Stavins, Post-Kyoto International Climate Policy: Summary for Policymakers (Cambridge University Press, 2009).
Opinion: Copenhagen Accord pledges are paltry: Current national emissions targets can’t limit global warming to 2 °C, calculate Joeri Rogelj, Malte Meinshausen and colleagues — they might even lock the world into exceeding 3 °C warming, 464 Nature 1126 (April 22, 2010) (“In the worst case the Copenhagen Accord pledges could permit emission allowances to exceed business-as-usual projections.” The report also suggested that many countries, including the EU and China, pledged lower reductions than they have already been achieving. [74])
On Jan. 7, 2010, the Congressional Research Service issued a report entitled Greenhouse Gas Emissions: Perspectives on the Top 20 Emitters and Developed Versus Developing Nations. It suggests a new, more flexible approach, after the inability to come up with a binding successor agreement in Copenhagen, that would focus on major emitters, which the 2005 data from the World Resources Institute says are China (19.1%), and the U.S. (18.3%): “no other country emits more than 6 percent of total emissions, the report said, although the European Union's 27 collective nations accounted for 13.4 percent of world emissions.” The 1992 UNFCCC placed responsibilities on industrialized nations to reduce emissions, but the developing world now, almost 20 years later, emits more than industrialized nations. [75]
By Jan. 20, 2010, Yvo de Boer had spoken to 15 or 20 countries after the conference about their intentions, and concluded that there was no guarantee that a treaty would be concluded this year. He stated in a webcast press conference that these countries anticipated that they would “forge an agreement this December on how to tackle climate change and then discuss further how to ‘package that outcome’ as a treaty” in 2011. [76]
On Feb. 18, 2010, two months after COP-15, Yvo de Boer, executive secretary of the U.N. Framework Convention on Climate Change, announced he would resign on July 1st; he had held office since September 2006. GRIST said “De Boer had come under fire for the outcome of the Dec. 7-19 UNFCCC negotiations in Copenhagen, which ended in near-chaos as world leaders scrabbled to find a face-saving deal.” [77]
Christiana Figueres, a Costa Rican diplomat, will replace him; she was selected on May 15th and approved on May 17, 2010. She will be the first UNFCCC director from the developing world. (Eric J. Lyman & Leora Falk, International Issues: Costa Rican Diplomat Chosen to Head U.N. Climate Secretariat, Succeeding de Boer, WCCR, May 17, 2010))
On Feb. 23, 2010, Mr. de Boer said that the Copenhagen Accord “could evolve into a broader agreement on goals and content by the end of the Mexico negotiations...[b]ut the development of a full treaty will have to come after that.” [78] He remains hopeful that a binding treaty will be in force before the Kyoto Protocol expires at the end of 2012. See infra § 3.7. COP-16 on other early attempts to lower expectations for the Cancun meeting.
The U.S. is under pressure to pass climate change legislation in 2010 in preparation for a successor agreement to Kyoto. However, the news that several Democratic Senators (Sen. Chris Dodd (D-Conn.) & Sen. Byron Dorgan (D-N.D.)) will not seek re-election in November 2010 makes it uncertain whether Democrats will be able to maintain their necessary 60-vote filibuster-proof majority. [79]
Then, on Jan. 19, 2010, a special election was held in Massachusetts to fill Edward Kennedy’s Senate seat, which he had held from 1962 until his death in 2009. Surprisingly to many, Republican Scott Brown neatly defeated Martha Coakley, thus ending the Democrats’ 60-seat Senate majority and putting climate change legislation (and health care reform) in jeopardy. See infra.
A report released by the U.N. Environment Program on Feb. 23, 2010, entitled Information Note: How Close Are We to the Two Degree Limit?, concluded that current GHG reduction plans are insufficient to keep global temperatures from rising above 2 degrees Celsius (3.6 degrees Fahrenheit), as agreed at COP-15. [80]
See Harvard Project on International Climate Agreements (“Drawing upon leading thinkers in Australia, China, Europe, India, Japan, and the United States, the Project conducts research on policy architecture and key design elements of a post-2012 international climate policy regime.”)
The midyear sessions of the Subsidiary Bodies to the United Nations Framework Convention on Climate Change are being held in Bonn from May 31 to June 9th, and the Ad-hoc Working Groups on the Kyoto Protocol and on Long-term Cooperative Action from June 1 to the 11th. They are the most important negotiations since COP-15, and the last under Yvo de Boer, see supra. (Eric J. Lyman, International Issues: Midyear Climate Change Talks to Continue Work on Draft Proposals for Kyoto Successor, WCCR, May 27, 2010.)
3.7. COP-16
COP-16 will be held in Cancun, Mexico, Nov. 29th to Dec. 10th, 2010. [81] However, in Feb. 2010, with the meeting over nine months away, officials were already trying to lower expectations that it would result in a binding climate treaty, especially after high hopes for Copenhagen were so nearly dashed. Todd Stern, the U.S. special envoy on climate change, said passage of U.S. climate legislation was crucial if the U.S. hoped to exert influence over other countries to reduce their emissions. [82] Then in March, BusinessWeek reported that since the Copenhagen talks, shares in renewable-energy stocks have sunk, and that a binding, global treaty on climate change was not a reasonable expectation for Cancun, especially as the U.S. Congress appears to be bogged down with other issues; the current state of the world economy doesn’t help. (Alex Morales & Jeremy van Loon, Cancun Climate Talks Get Dim Prognosis for Success, BUSINESSWEEK, Mar. 18, 2010.)
At the Eighth Leaders’ Representative Meeting of the Major Economies Forum on Energy and Climate in New York in September, 2010, Todd Stern reiterated those warnings; he thinks it is unlikely that a climate treaty will be concluded in November. The meeting included representatives from Australia, Brazil, Britain, Canada, China, the European Union, France, Germany, India, Indonesia, Italy, Japan, Mexico, Russia, South Africa, South Korea, and the United States, which are responsible for 80% of the world’s carbon emissions. (Agence France-Presse, Don’t expect much from Cancun climate summit, U.S. negotiator says, GRIST, Sept. 21, 2010.)
The U.N. Climate Change Conference began Oct. 4, 2010, in Tianjin, China, and ended Oct. 9th. Attended by 3,100 delegates and observers from 177 countries, it was the last opportunity to make progress on a successor to the Kyoto Protocol before Cancun. To quote from Science:
“With any progress toward a new accord elusive, the two biggest greenhouse gas emitters—China and the United States—fired broadsides at each other. The lead U.S. negotiator in Tianjin, Jonathan Pershing, criticized China and other major developing nations for refusing to implement a stringent program of monitoring, reporting, and verifying their carbon emissions. ‘These elements are at the heart of the deal, and the lack of progress on them gives us concern,’ Pershing told reporters. China, meanwhile, scolded the United States for using the Asian nation as a scapegoat for its own foot-dragging on addressing climate change. The United States ‘has no measures or actions to show for itself,’ said Su Wei, director of the powerful National Development and Reform Commission's climate change department, who reiterated China's view that the United States must take ‘historical responsibility’ for rising atmospheric CO2 levels. In the toxic atmosphere, delegates made only modest progress on issues such as a plan to pay nations to preserve forests.” (Richard Stone, Climate Talks Still at Impasse, China Buffs Its Green Reputation, 330(6002) Science 305 (Oct. 15, 2010); see also, Chris Buckley, Climate talks marred by bickering, progress on finance, Reuters, Oct. 9, 2010; Tini Tran, Climate Talks In Tianjin, China Make Little Progress, Huffington Post, Oct. 6, 2010; Eric J. Lyman, Climate Change: U.N. Climate Talks Focus on Target To Limit Global Temperature Rise by 2050, 192 BNA Daily Environment Report A-3 (Oct. 6, 2010))
President Obama will travel to India in early November 2010, to meet with Prime Minister Manmohan Singh. The head of the IPCC, Rajendra K. Pachauri, speculates that if the U.S. and India were to enter into agreements regarding the transfer of clean energy technologies, it might encourage progress later on in Cancun. (Dean Scott, International Issues:
Head of U.N. Climate Science Panel Says U.S., India Could Help Global Talks With Accord on Clean Energy, WCCR, Oct. 26, 2010.)
At an early COP-16 session, Japan announced that it would not sign on for a second commitment period for the Kyoto Protocol after the first expires in 2012 unless China and the U.S. join the agreement; without the latters’ cooperation the protocol can never hope to achieve meaningful carbon reductions. Several countries condemned Japan’s move, others applauded it, including Russia which made a similar declaration. Some developed nations hope to move to a system of voluntary, non-binding, reductions pledges in the future. (Andrew Light, Has Japan killed the Kyoto Protocol? Does it matter?, Climate Progress, Dec. 7, 2010.)
The Cancun Agreements give participating countries another year to decide whether to extend the Kyoto Protocol. They set up a new fund to assist poor countries adapt to climate change, create new mechanisms for sharing clean energy technology, provide compensation for the preservation of tropical forests, make Copenhagen’s emissions reduction pledges stronger, include ways for developing nations to report and verify their emissions reductions, which the U.S. has favored, and make progress on Reducing Emissions from Deforestation and Degradation (aka REDD). (John M. Broder, Climate Talks End With Modest Deal on Emissions, N.Y. Times, Dec. 11, 2010; Dean Scott and Eric J. Lyman, Climate Change: Cancun Talks End With Agreement to Push For Greater Emissions Cuts, Verify Actions, BNA Int’l Environment Reporter, Dec. 11, 2010, including links to the full texts of the Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action, and the Outcome of the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol; Robert Stavins, What Happened (and Why): An Assessment of the Cancun Agreements, Belfer Center, J.F.K. School of Government, Harvard University, Dec, 13, 2010.)
On Mar. 21, 2011, the U.N. climate secretariat released GHG reductions pledges by industrialized and developing nations; 25% to 40% reductions by 2020, compared to 1990 levels, were established by the Cancun Agreements. The U.S. pledged a 17% cut by 2020 from 2005 levels, but after the midterm elections of 2010, that pledge is unlikely to be fulfilled. (Dean Scott, International Issues: U.N. Climate Secretariat Releases Action Plans From Industrialized, Developing Countries, WCCR, Mar. 21, 2011.)
3.7.1. Post-COP-16
The Ninth Informal Meeting on Further Actions Against Climate Change took place in Tokyo in March, 2011. Japan does not want to extend the Kyoto Protocol, as it said at Cancun, supra, as the Protocol covers only 27 % of global emissions, but favors setting reduction targets for all major emitters, including the U.S. and China. (Toshio Aritake, Climate Change: Informal Climate Change Meeting Shows Divisions Over Post-2012 Framework, Aid, BNA Int’l Environment Reporter, Mar. 7, 2011.)
3.8 COP-17
COP-17 will be held in Nov. 2011, in Durban, South Africa.
The web page of the United Nations Framework Convention on Climate Change serves both the Convention and the Kyoto Protocol by transmitting official documents and reports and other related information. It provides the latest data and is an invaluable resource for anyone researching in this area. The guide entitled Feeling the Heat included in the Essential Background section provides a useful introduction to global climate change, information on how the international community is responding, and background on the UNFCCC and the Kyoto Protocol.
Reports from COP/MOP sessions back to 1997 can be found under Meetings/Meetings Archive or you can do an Advance Search in Documentation/Documents on the UNFCCC Web page.
3.9.1. IPCC’s Assessment Reports: The Intergovernmental Panel on Climate Change (IPCC) was “established by the WMO and the UNEP to assess scientific, technical and socio-economic information relevant for the understanding of climate change, its potential impacts and options for adaptation and mitigation.” In February 2011, the first 4 assessment reports, and other IPCC publications, were available online in pdf.
IPCC Fourth Assessment Report: Climate Change 2007 (“AR4”): Working Group I’s contribution to the Fourth Assessment Report deals with the “Physical Science Basis” of climate change. The other three sections are from Working Group II, “Impacts, Adaptation and Vulnerability,” Working Group III, “Mitigation of Climate Change,” and the Synthesis Report. [83]
The report, in which 1200 scientists from over 100 countries participated, concluded that “global warming is ‘unequivocal’ and that human activity is the main driver….” The article pointed out that this is the first report “in which the group asserts with near certainty — more than 90 percent confidence — that carbon dioxide and other greenhouse gases from human activities” are responsible for the warming. (Elisabeth Rosenthal & Andrew C. Revkin, Science Panel Says Global Warming Is ‘Unequivocal’, N.Y. Times, Feb. 3, 2007, A1; Richard Black, Humans Blamed for Climate Change: Global climate change is "very likely" to have a human cause, an influential group of scientists has concluded, BBC News, Feb. 2, 2007.)
At the conference in Paris where the report was released, the U.S. government favored developing technology to block sunlight or refract it away from the earth with giant orbiting mirrors, and is on record as having wanted such a proposal included in the summary for policymakers. [84] See Geoengineering, infra § 9, Innovative Technologies to Reduce GHG.
The secretary of the DOE, the chief of NOAA, and the administrator of the EPA said that despite the findings in AR4, the Bush administration continued to reject mandatory measures to reduce U.S. GHG emissions, despite the fact that Congress was forging ahead with proposals to enact them. [85]
Indeed, President Bush’s fiscal 2008 budget, released Feb. 5, 2007, shortly after AR4 came out, cut funding for the U.S. Climate Change Science Program by 7% from fiscal 2007 levels. Climate change research at NOAA, NASA and the EPA would be cut as well. The DOE had a slight increase in climate change research funding. [86]
AR4 states at page 8 that “[p]aleoclimate information supports the interpretation that the warmth of the last half-century is unusual in at least the previous 1300 years. The last time the polar regions were significantly warmer than present for an extended period (about 125,000 years ago), reductions in polar ice volume led to 4 to 6 metres of sea level rise.” Achim Steiner, the executive director of the U.N. Environment Program, stated: “Anyone who would continue to risk inaction on the basis of the evidence presented here will one day in the history books be considered irresponsible.” [87]
However, a report by Stefan Rahmstorf, et. al, Recent Climate Observations Compared to Projections, 316 (5825) SCIENCE 709 (Feb. 1, 2007), suggested that “[t]he data available for the period since 1990 raise concerns that the climate system, in particular sea level, may be responding more quickly to climate change than our current generation of models indicates.”
The second part of AR4, entitled Impacts, Adaptation, and Vulnerability was released on Friday, April 6, 2007. [88] Although some areas in the northern hemispheres will temporarily benefit from global warming, poorer nations that are already at risk from climate changes are likely to suffer the most. [89] The report recommended prompt adjustment in vulnerable regions of the world, which include the Arctic, sub-Saharan Africa, small islands, and Asian river deltas. [90]
The third section of AR4, entitled Mitigation of Climate Change was released on May 4, 2007, in Bangkok. The report showed that GHG emissions have increased 70% between 1970 and 2004. They will continue to grow unless consumption is seriously curtailed. However, the report concludes that emissions stabilization can be achieved at costs, projected at 3% global GDP, that do not disrupt the global economy. [91]
Fifth Assessment Report (AR5) is underway in Feb. 2011 and will be finalized in 2014.
As noted supra, the U.S. signed and ratified the UNFCCC in 1992 during the George H.W. Bush administration.
Shortly after taking office, President Bill Clinton announced on Earth Day, April 21, 1993, “the Nation’s commitment to reducing our emissions of greenhouse gases to their 1990 levels by the year 2000.” [92] However, in the 1994 mid-term elections, the Democrats lost control of both houses of Congress for the first time in 40 years, and after that the president was unable to persuade the Republican Congress to cooperate with his good intentions. [93] Our subsequent lack of national consensus on climate change was a disappointment to environmentalists. [94]
In 1995, COP-1 met in Berlin, adopted the Berlin Mandate as discussed supra § 2., and began negotiating a Protocol that would set enforceable reductions in emissions, for Annex I parties only. The U.S. agreed to the Berlin Mandate, despite misgivings about the exclusion of developing country parties (the “non-Annex I” parties). [95]
At COP-2 in Geneva, in July 1996, the U.S. representative, Timothy Wirth, Under Secretary for Global Affairs at the Department of State, reversed the U.S.’s earlier position and announced support for binding national emissions limits. [96] At the December session of the AGBM, parties agreed to submit draft protocol proposals by the middle of January, 1997, as under the UNFCCC’s Article 17, proposals had to be communicated to the Parties at least 6 months before the Conference of the Parties at which they would be discussed.
Clinton and Gore were reelected in the November 1996 election.
In January, 1997, the U.S. State Department produced a draft protocol that contained specific caps on the greenhouse gases countries could emit during specific periods of time, based on 1990 emissions; it was a kind of international emissions trading scheme. Its attempt to encompass developing countries was deleted from the final draft protocol. [97] In March, 1997, the AGBM met to discuss the proposals.
In June, 1997, the U.S. Senate held hearings to discuss the protocol to the UNFCCC, and whether the Senate should pass its Resolution 98, also known as the “Byrd-Hagel Resolution,” which advised the president not to sign the Protocol. [98] The appendix to the report, S. Rpt. 105-54, that accompanied Senate Resolution 98 contained the testimony given at those hearings. The primary reasons the Senate gave for the U.S. not to sign included the protocol’s exemption of all 129 developing country parties from any obligations under the protocol. The Senate considered that omission “inconsistent with the need for global action on climate change and … environmentally flawed.” Also, the Senate “strongly” believed that “serious harm to the United States economy…” could result if the U.S. did join. [99] Resolution 98 was passed by the Senate 95-0 on July 25, 1997. Senator Byrd, one of its co-authors, elaborated on those two reasons in the Congressional Record about six months later, referring to the Protocol several times as a “work in progress” and a “partly painted” canvas. [100]
On Oct. 22, 1997, President Clinton spoke at the National Geographic Society where he outlined three elements of a “comprehensive framework…which…will enable us to build a strong and robust global agreement”: 1) the U.S. would commit to the “binding and realistic target” of lowering emissions to 1990 levels between 2008 and 2012; 2) the U.S. would “embrace flexible mechanisms” for meeting those limits, including a joint implementation system; and 3) the first two elements were conditioned on the participation of industrialized and developing nations in addressing global climate change. The president also outlined six elements of a plan to “provide incentives and lift roadblocks” to increase companies’ and individuals’ involvement. [101]
As noted supra, the Kyoto Protocol was adopted on Dec. 11, 1997, at COP-3, after about 30 months of delicate negotiations. [102] In February of 1998, the Senate Committee on Foreign Relations held a hearing entitled Implications of the Kyoto Protocol on Climate Change. The testimony noted that the Protocol as adopted the previous December “fails—fails—to meet either of the requirements of Senate Resolution 98. It fails to meet the minimum criteria set unanimously by the U.S. Senate,” referring to the Senate’s complaints in Resolution 98 that the Protocol exempted non-Annex I parties and would cause serious damage to the U.S. economy. [103]
In fact, U.S. Vice-President Gore did sign the Protocol on Nov. 12, 1998, and agreed to make greenhouse gas emission cuts of 7% below 1990 levels. [104] The signature was largely symbolic, as it was extremely unlikely, after the Byrd-Hagel Resolution passed so decisively, that the Senate would ratify it. [105]
At the last moment, in December 2005, former U.S. president Bill Clinton was added to the schedule as a speaker at COP-11 in Montreal, much to the consternation of the Bush administration, which told organizers of the conference that allowing Clinton to speak would “scuttle” any hopes of the U.S. signing onto the Kyoto Protocol. [106] Mr. Clinton spoke anyway, at the request of conference officials, and called the Bush administration’s opposition to the Protocol on the basis that it would harm the U.S. economy “flat wrong.” [107]
In 2005, former President Clinton launched the Clinton Global Initiative (CGI), which “reflects his belief that governments need collaboration from the private sector, non-governmental organizations, and other global leaders to effectively confront the world’s most pressing problems.”
At CGI’s 2010 Annual Meeting in New York, Sept. 20th-23rd, Secretary of State Hillary Clinton announced the formation of a public-private partnership, The Global Alliance for Clean Cookstoves, which includes pledges of $50.82 million in donations from the U.S. Department of State, the U.S. Agency for International Development, the Department of Energy, the Department of Health and Human Services, the Centers for Disease Control, and the Environmental Protection Agency, with cooperation from international nonprofits, foundations, U.N. agencies, governments, local NGOs, women’s groups, and corporate leaders. The group’s purpose is to create market-based solutions that will simultaneously reduce health problems, provide security for women, and lessen the impact of traditional stoves on the environment. The initial goal is to provide stoves to 100 million homes, as “traditional cookstoves in developing nations rely on biomass, including wood, dung, and coal. They produce unfiltered toxic smoke that harms the nearly 3 billion people who have no alternatives for cooking fuel. ... Biomass cooking also accounts for 20 percent of the world’s emissions of black carbon, which some scientists believe is the second largest contributor to climate change after carbon dioxide.” But its “broader aim is to establish a sustainable market for clean cookstoves and cleaner fuel that would provide new economic opportunities for sustainable communities.”
On Aug. 2, 2006, former President Clinton launched the Clinton Climate Initiative, as part of the William J. Clinton Foundation, in order to “make a difference in the fight against climate change in practical and measurable ways.” The Initiative joined with the Large Cities Climate Leadership Group (a group of 23 cities world wide, formed in 2005 to reduce urban carbon emissions) to help large cities combat global warming; the group is now called C40 Cities. [108]
Since his defeat in the 2000 presidential election, former Vice-President Al Gore has made a name for himself as an environmentalist. His 2006 film, “An Inconvenient Truth,” devoted to the risks of global warming, debuted at the Sundance festival and was a critical success, even earning Academy Awards for best documentary feature and best original song, I Need to Wake Up, by Melissa Etheridge, in January 2007. [109]
Al Gore was also nominated for the Nobel Peace Prize in February 2007, [110] and on Oct. 12, 2007, it was announced that he and the IPCC would share the prize, for their efforts to raise awareness of man-made global warming. However, a White House spokesperson said that the award would not impact administration policy regarding climate change. [111]
The Bush administration was known to have many connections with the oil industry, and Mr. Bush was not expected to favor environmental efforts. Indeed, President Bush made it clear on June 11, 2001, in his Remarks on Global Climate Change, I Public Papers of the President 634 (June 11, 2001), that he would not support the Kyoto Protocol, as it was “fatally flawed in fundamental ways,” that it unfairly exempted most of the world, and that it was not in the economic interests of the United States. [112] Former Vice-President Gore’s signature had little effect without ratification, but the signature did mean that the U.S. must not work against the Protocol, or prevent other nations from ratifying.
The president directed a Cabinet-level review of climate change science in March of 2001; the preliminary findings were released on June 11, 2001, in a report entitled Climate Change Review (2001), which in 2011 is no longer available on the web and is not owned by any U.S. library. The report included an overview of U.S. actions to address climate change, an extremely critical analysis of the Kyoto Protocol, a discussion on advancing the science and technology of climate change and “building partnerships within the Western Hemisphere and with other like-minded countries.”
In the course of writing the report, President Bush’s working group requested that the National Academy of Sciences write a review of the state of climate change science, in hopes that it would counterbalance the conclusions of the IPCC’s research. It was released in June of 2001, in time for the president to refer to it in his June 11, 2001 speech. However, the report largely agreed with the IPCC’s conclusions. (Naomi Oreskes, Beyond the Ivory Tower: The Scientific Consensus on Climate Change, 306 (5702) Science 1686, Dec. 3, 2004.) The NAS report was written by the Committee on the Science of Climate Change of the National Research Council, and was entitled: Climate Change Science: An Analysis of Some Key Questions (Washington, D.C.: NAP, 2001).
The National Climate Change Technology Initiative (NCCTI) was also launched on June 11, 2001. The Climate Change Technology Program (CCTP), a multi-agency effort to develop climate change technology, was established in the Department of Energy to implement the NCCTI. CCTP was reviewed at workshops in 2005, and in May 2006 a report was issued, entitled Results of a Technical Review of the U.S. Climate Change Technology Program’s R&D Portfolio. The report concluded that the program is “doing very little in terms of novel, pushing-the-envelope technology development,” such as carbon sequestration, zero emission agricultural practices, more efficient power transmission and conducting, and “bio-inspired” fuels. [113]
The president’s Clear Skies Initiative, a proposed revision of the Clean Air Act announced on February 2002, submitted to Congress in July 2002, and to each of the Congresses that followed, [114] sought to reduce GHG "intensity" by 18% by 2012 and was advertised as “a better alternative to the Kyoto Protocol.” According to some, however, it actually “would weaken existing emission reduction targets for sulfur dioxide, mercury, and nitrogen oxides under the Clean Air Act by allowing three times more toxic mercury emissions, 50 percent more sulfur emissions, and hundreds of thousands more tons of nitrogen oxides.” [115] It has not been enacted.
The Senate Environment Committee
Sen. James Inhofe (R/OK), chairman (in December 2006) of the Senate Committee on Environment and Public Works, is on record as believing that global warming is "the greatest hoax ever perpetrated on the American people" [116] and an overly media-hyped issue. (He also wanted to abolish the EPA, established by President Richard Nixon.)
Monday, Sept. 25, 2006, Senator Inhofe gave a speech debunking media coverage of global warming, entitled “Hot & Cold Media Spin Cycle: A Challenge To Journalists Who Cover Global Warming.” On Sept. 28, 2006, he gave a follow-up speech called “America Reacts to Speech Debunking Media Global Warming Alarmism” in which he discussed CNN’s criticism of his earlier speech.
On Dec. 6, 2006, the Environment Committee held a hearing on Climate Change and the Media. In his opening remarks, Senator Inhofe said that the media are “advocates for hyping scientifically unfounded climate alarmism.” [117]
Several pieces of climate-change legislation were introduced in the 109th Congress, which ended in December 2006. Several died in Senator Inhofe’s committee, including the following:
However, Senator McCain (R - Ariz.) said on Nov. 16, 2006, that he and Senator Lieberman (ID - Conn.) would reintroduce a bill in the 110th Congress that would mandate cutting GHG and ensure a vote in the Senate “despite pledges made by Sen. James Inhofe (R - Okla.) to block a vote on any legislation that mandates carbon caps.” [118] That was the Climate Stewardship and Innovation Act of 2007; it would cap global-warming emissions from utilities, industry, and transport at 2004 levels by 2012 and then gradually decrease emissions to about 30 percent of 2004 levels by 2050. [119]
On Feb. 14, 2002, President Bush launched his Clear Skies and Global Climate Change Initiatives; its goal was to reduce U.S. GHG “intensity” by 18% over the next 10 years. [120] Two voluntary programs were begun to implement it as an alternative to the mandatory efforts of the Kyoto Protocol that the administration believes would harm the economy. [121] One program, the Climate Leaders Program, is run by the U.S. Environmental Protection Agency; the other, Climate VISION (Voluntary Innovative Sector Initiatives: Opportunities Now), is run by the Department of Energy.
However, a report published by the General Accounting Office in April of 2006, entitled Climate Change: EPA and DOE Should Do More to Encourage Progress Under Two Voluntary Programs, concluded that many of the U.S. companies participating in the programs have failed to set goals for cutting emissions. Neither agency has a means to punish firms that have not set goals. [122]
Climate Change Science Program
Also in 2002, President G.W. Bush launched the U.S. Climate Change Science Program (USCCSP) to coordinate climate change research at 13 departments and agencies, including EPA, NOAA, and the DOE; it incorporates the U.S. Global Change Research Program (USGCRP), established under the Global Change Research Act of 1990, Pub. L. No. 101-606, 104 Stat. 3096, during the presidency of George H.W. Bush, and the Climate Change Research Initiative, established by President George W. Bush in 2001.
An over-200-page report was issued in July 2003 by the Climate Change Science Program and the Subcommittee on Global Change Research, entitled The Strategic Plan for the U.S. Climate Change Science Program.
Under the Global Change Research Act of 1990 (§ 107 of the original act), the USCCSP is required to submit an annual report to Congress. These reports, entitled Our Changing Planet, have been posted on the U.S. Global Change Research Information Office Web page since 2004. The report for fiscal 2010 and the latest, as of November 2009, were posted on Oct. 28, 2009.
The Climate Change Science Program also produces the National Assessment required by the Global Change Research Act of 1990; its § 106 states that at least every 4 years the U.S. Global Change Research Program (known as the U.S. Climate Change Science Program since 2002) shall prepare and submit to the President and Congress an assessment to analyze the effects of climate change on the environment, the economy, human health and safety, and project major trends for the future.
The first National Assessment, entitled: Climate Change Impacts on the United States: U.S. National Assessment of the Potential Consequences of Climate Variability and Change, was issued in October, 2000; the update to it was due in November, 2004. See Letter of April 14, 2005, from Senators John McCain and John F. Kerry, entitled Climate Change Assessment: Administration Did Not Meet Reporting Deadline.
On Nov. 14, 2006, the Center for Biological Diversity, Greenpeace, and the Friends of the Earth sued the Bush administration, claiming it had violated the Global Change Research Act by refusing to produce the overdue 2004 National Assessment. The case, Center for Biological Diversity, et al. v. Dr. William Brennan, et al., No. 06-CV-7062 (SBA), was filed in U.S. District Court for the Northern District of California. [123] The case was decided in favor of the plaintiffs in an order filed on Aug. 21, 2007. It was reported that: “District Judge Saundra Armstrong in Oakland, California, said the U.S. government ‘unlawfully withheld action’ required under the Global Change Research Act of 1990 to update a research plan and scientific assessment of climate change. The law mandates the research plan should be revised every three years and the assessment every four years. The last research plan was in 2003 and the last assessment was published in 2000. Greenpeace International and two other environmental groups who say the U.S. government suppresses science on climate change sued in November seeking a court order to produce the reports. ‘As the research plan is now more than a year overdue, the court orders that a summary of the revised proposed research plan be published in the Federal Register no later than March 1 [2008],’ Armstrong said in the order today. The scientific assessment must be produced by May 31 [2008], she said.” [124] Brendan Cummings, one of the attorneys who argued the case for the CBD, stated: “Today’s ruling is a stern rebuke of the administration’s head-in-the-sand approach to global warming.” [125]
Scientific Assessment of the Effects of Global Change on the United States was in fact released in May 2008, and Global Climate Change Impacts in the United States was released in June 2009. Compiled by NOAA, NASA, the Pentagon, the National Science Foundation, the Department of State and eight other federal agencies, the report concluded that: “Global temperature has increased over the past 50 years. This observed increase is due primarily to human-induced emissions of heat-trapping gases.” [126]
The National Assessment was a constant source of controversy for the Bush Administration. [127] See infra § 4.2.4., Political Interference with Climate Research and other Sciences, Hearings in the House of Representatives.
On May 10, 2007, EPA announced, at 72 (90) Fed. Reg. 26628-26629 (May 10, 2007), the formation of two committees to provide advice on two USCCSP programs. The committees are the Adaptation for Climate-Sensitive Ecosystems and Resources Advisory Committee, to work on a study entitled: “Preliminary Review of Adaptation Options for Climate-Sensitive Ecosystems and Resources,” and the Human Impacts of Climate Change Advisory Committee, to work on a study entitled: “Analyses of the Effects of Global Change on Human Health and Welfare and Human Systems” study.
On Nov. 5, 2007, Senators John Kerry (D-Mass.) and Olympia Snowe (R-Maine) introduced the Kerry-Snowe Global Change Research Improvement Act of 2007, S. 2307, to revise the USCCRP, which has not been significantly amended since 1990, to include consideration of state and local climate change issues. (Dean Scott, Kerry, Snowe Introduce Senate Proposal To Revamp U.S. Climate Change Research, 214 BNA DAILY ENVIRONMENT REPORT A-5, Nov. 6, 2007.) It was referred to the Senate Committee on Commerce, Science, and Transportation and reported out of committee on May 22, 2008, by Senator Inouye with amendments and written report S. Rep. No. 110-341. It was placed on the Senate Calendar but failed to pass.
The Feinstein-Snowe Resolution
On Feb. 16, 2005, the day the Kyoto Protocol took effect, Senator Dianne Feinstein (D/CA) and thirteen co-sponsors introduced S. J. Res. 5, Expressing the sense of Congress that the United States should act to reduce greenhouse gas emissions. The resolution was referred to the Senate Committee on Foreign Relations on the same day. The resolution states, inter alia, that 141 nations have ratified the Kyoto Protocol, and that the U.S. is the only member of the “Group of 8” that has not. (The G8 includes Canada, France, Germany, Italy, Japan, the U.K. the U.S., and Russia, since 1997.) It cited major scientific organizations that have “issued statements acknowledging the compelling scientific evidence of human modification of climate,” including the IPCC, and concluded that it was in the best interest of the U.S. to “play an active role in any international discussion on climate policy,” but it stopped short of recommending that the U.S. sign the Kyoto Protocol. Ms. Snowe made a statement in support at 151 CONG. REC. S1708 (Feb. 18, 2005), but no action was taken, and the resolution expired at the end of the 109th Congress.
The lead co-sponsor of the Resolution, Olympia J. Snowe (R/ME), was co-chairman of the International Climate Change Taskforce, which released a report entitled Meeting the Climate Challenge in January, 2005.
The Sense of the Senate on Climate Change
On June 22, 2005, Senator Jeff Bingaman introduced with 12 co-sponsors Senate Amendment 866 to H.R. 6, a bill to ensure jobs for our future with secure, affordable, and reliable energy. The Bingaman Sense of the Senate on Climate Change amendment, 151 CONG. REC. S7089 (June 22, 2005), stated:
Congress finds that--(1) greenhouse gases accumulating in the atmosphere are causing average temperatures to rise at a rate outside the range of natural variability and are posing a substantial risk of rising sea-levels, altered patterns of atmospheric and oceanic circulation, and increased frequency and severity of floods and droughts; (2) there is a growing scientific consensus that human activity is a substantial cause of greenhouse gas accumulation in the atmosphere; and (3) mandatory steps will be required to slow or stop the growth of greenhouse gas emissions into the atmosphere.
It is the sense of the Senate that, before the end of the first session of the 109th Congress, Congress should enact a comprehensive and effective national program of mandatory, market-based limits on emissions of greenhouse gases that slow, stop, and reverse the growth of such emissions at a rate and in a manner that--(1) will not significantly harm the United States economy; and (2) will encourage comparable action by other nations that are major trading partners and key contributors to global emissions.
The measure was defeated by roll call vote of 44 to 53 on June 22, 2005. Senator James Inhofe, among others, spoke extensively against the measure, at 151 CONG. REC. S7034-35, S7037, emphasizing the uncertainty of climate science and the potential damage to the economy. H.R. 6 became the Energy Policy Act of 2005, Pub. L. No. 109-58.
The Bush administration established the Asia-Pacific Partnership on Clean Development and Climate in July 2005. Member nations include Australia, Canada, China, India, Japan, the Republic of Korea, and the United States. [128] The APP was formed to “accelerate the development and deployment of clean energy technologies”; it “will be consistent with and contribute to Partners’ efforts under the UNFCCC and will complement, but not replace, the Kyoto Protocol.” The first meeting was held in Sydney, Australia, in January 2006. In April 2006, in Berkeley, California, Task Forces in the following major energy-intensive sectors in Partner economies –
Aluminum,
Buildings and Appliances,
Cement,
Cleaner Fossil Energy,
Coal Mining,
Power Generation and Transmission,
Renewable Energy and Distributed Generation, and
Steel
- met to begin developing Task Force Action Plans. In a later meeting in October 2006, in Korea, nearly 100 individual projects aimed at reducing greenhouse gas emissions over the last few years were endorsed. [129]
4.2.2. Religion & Climate Change: In January 2006, evangelical Christian members of the Evangelical Climate Initiative signed a statement entitled: Climate Change: An Evangelical Call to Action, suggesting that the Bush administration was losing some of its core supporters on the issue of climate change. The movement, according to the group’s Web site, has been in existence since about 2002. [130] Since then, the National Association of Evangelicals has agreed to collaborate, but the Interfaith Stewardship Alliance, launched by the Traditional Values Coalition as “an alternative to radical left-leaning environmentalism,” and other conservative Christian groups have criticized the alliance. [131]
In April 2007, the Church of England published a pamphlet entitled How Many Lightbulbs Does it Take to Change a Christian, encouraging Christians to help stop climate change.
On May 22, 2007, over 20 Christian, Jewish and Muslim groups, including the National Association of Evangelicals, sent a letter to President Bush and Congress urging action on climate change. The letter was published in two Capital Hill newspapers, Politico and Roll Call. [132]
The Vatican held a conference on climate change in April 2007; a papal encyclical was debated.[133]
On Oct. 15, 2007, officials in the Vatican called environmental damage “an ‘abuse’ of ‘God’s creation,’” and announced that it would install solar panels on the roof of the Paul VI auditorium. [134] It will also plant a 37-acre forest in Hungary to offset the GHG emissions produced by the Vatican. These actions will hopefully influence governments of the world’s Catholic countries. [135]
On Nov. 30, 2009, the Dalai Lama called for action on climate change for the first time, in Sydney, Australia. [136]
In an address to foreign ambassadors on Jan. 11, 2010, Pope Benedict said that he regretted that “economic and political resistance to combating the degradation of the environment” prevented a successful outcome at COP-15 in Copenhagen, and expressed his hope that this year would bring a comprehensive agreement on climate change. [137]
Court decisions have found that to criticize evolution in the public schools is a violation of the separation of church and state. Opponents of evolution among evangelical Christians are getting around that by insisting that global warming be debated along with evolution, the origin of the universe and other allegedly controversial issues, thus encouraging academic freedom in general. States with either enacted or unenacted legislation or pending bills to that effect include Texas, Kentucky, Oklahoma and South Dakota. [138]
Republican Sen. Lindsey Graham of South Carolina, who in late 2009 and early 2010 was working with Senators Kerry and Lieberman (both Democrats) on a climate change and energy bill (see infra § 4.4.1.2. GHG legislation: Senate), has been roundly criticized by conservatives for doing so. However, in March 2010, the Christian Coalition (with 2.5 million conservative Republican supporters) came out in support of Graham and climate change legislation. [139]
For academic commentary, see, e.g., Stephen M. Johnson, Is Religion the Environment's Last Best Hope? Targeting Change in Individual Behavior Through Personal Norm Activation, 24 Journal of Environmental Law and Litigation 119 (2009).
These issues continued over into the Obama administration. A symposium entitled "Evangelicals, Science, and Policy: Toward a Constructive Engagement” took place at the February 2011 annual meeting of the American Association for the Advancement of Science. (Sara Reardon, Can Science and Religion Get Along?, ScienceNOW, Feb. 19, 2011).
In November 2006, Democrats won a narrow majority in the House and the Senate, which meant that the chairmanships of important environmental and energy committees would change. [140] Articles in the popular press warned against excessive optimism and cautioned that it would still be difficult, for example, to enact tougher automobile fuel-economy standards. [141] Nevertheless, on Nov. 29, 2006, the day of oral arguments on Mass. v. EPA, union representatives of over 10,000 EPA scientists, engineers, specialists and support staff members, filed a mass petition calling for Congress to take immediate action against global warming, and for an end to political interference with climate change scientists. See infra § 4.2.4. Political Interference with Climate Science.
At the 2007 World Economic Forum in Davos, Switzerland, British Prime Minister Tony Blair was optimistic that a major shift in the U.S. attitude toward climate change was pending. Senator John McCain spoke also, claiming that Congress would act soon on climate change legislation. [142] However, Rep. John Dingell (D-Mich.), the new chair of the House Energy and Commerce Committee, has expressed resistance to burdensome GHG legislation; Rep. Joe Barton (R-TX), the outgoing chair and the new minority leader on that committee, is unabashedly skeptical of the science on climate change. Rep. Henry Waxman (D-CA) is the new chairman of the House Government Reform Committee; Senator Jeff Bingaman (D-NM) is the new chair of Energy and Natural Resources; and Senator Barbara Boxer (D-CA) will chair Environment and Public Works. The latter three have all supported legislation to reduce GHG emissions. [143]
Surprisingly enough to Democrats, on Jan. 4, 2007, at the start of the 110th Congress, Senator Ted Stevens (a Republican from Alaska, and an ardent supporter of drilling in the Arctic National Wildlife Refuge) introduced S. 183, the Improved Passenger Automobile Fuel Economy Act of 2007, that would require passenger cars sold in the U.S. to get an average of 40 MPG by model year 2017. [144] It was referred to the Senate Committee on Commerce, Science, and Transportation. The bill would “remove the legal ambiguity that for years has inhibited the Secretary of Transportation” … from raising the CAFE (Corporate Average Fuel Economy) standards, and would thus lower prices at the gas pump, limit our dependence on foreign oil, and “significantly reduce greenhouse gas emissions.” [145] It would also establish market-based initiatives for GHG reduction. However, the bill finally reported back to the Senate by the Commerce Committee on May 8, 2007, was S. 357, the “Ten-in-Ten Fuel Economy Act,” which would if enacted only boost fuel economy to at least 35 MPG by model year 2019, and which also would give the Department of Transportation the option to permit a lower standard if it determined that the costs of the new rules outweighed the benefits. [146] It did, however, eliminate the “SUV loophole” by not distinguishing between passenger cars and light trucks, and would be the first major revision of fuel economy standards since the 1970s. Environmentalists were not enthusiastic, though they admitted that it was at least a start, and auto manufacturers were even less so, calling the new standards “unattainable” and lamenting the loss of the SUV .[147] In June 2007 auto manufacturers continued to object to an increase in fuel economy standards and to attempt to convince lawmakers to grant them an “escape hatch” in case the rules were too expensive to meet. [148]
Fuel economy is taken much more seriously in Europe, where 113 vehicle models get at least 40 mpg (combined city and country), an increase of 27 models from 2005. The U.S., on the other hand, which had 5 such models in 2005, has only 2 in 2007: the Honda Civic and the Toyota Prius. Astonishingly, “nearly two-thirds of the 113 highly fuel-efficient models that are unavailable to American consumers are either made by U.S.-based automobile manufacturers or by foreign manufacturers with substantial U.S. sales operations, such as Nissan and Toyota. These cars sold in Europe meet or exceed U.S. safety standards, so there is no reason why they shouldn’t be made available to U.S. consumers,” said the president of the Civil Society Institute, which (with others) conducted a study entitled American Voters and 40 MPG Fuel Standards: What They Want Congress to Do Now, in June 2007. [149]
Sen. James Inhofe (R-OK), former chairman of the Senate Committee on Environment and Public Works, handed over the chairmanship to Barbara Boxer (D-CA) in January 2007. [150] Senator Boxer has called the Bush administration’s record on global warming “dismal, worse than dismal,” [151] and said that “her priority will be to begin ‘a very long process of extensive hearings’ on global warming, which started in January 2007. She cited California's legislation requiring automakers to reduce emissions [see infra] as ‘an excellent role model.’” [152]
Senator Boxer has added two global warming subcommittees to Environment and Public Works. She will chair the Subcommittee on Public Sector Solutions to Global Warming, Oversight, and Children's Health Protection [originally Public Sector Solutions to Global Warming, Oversight, Children's Health Protection, and Nuclear Safety], and Sen. Joseph Lieberman (I-Conn.) will head the Subcommittee on Private Sector and Consumer Solutions to Global Warming and Wildlife Protection. [153]
House Speaker Nancy Pelosi co-sponsored (with 112 other representatives) H.R. 5642, the Safe Climate Act of 2006, in June of 2006, that would cap GHG emissions in 2010 and then reduce them. [154] It was referred to the House Subcommittee on Energy and Air Quality on July 17, 2006 where it died at the end of the 109th Congress. In March 2007, Representative Henry Waxman reintroduced the Safe Climate Act, now H.R. 1590, with 128 cosponsors, but House Speaker Pelosi was not among them; she decided not to cosponsor any climate change bill introduced in the House after her election as Speaker of the House on Jan. 4, 2007, to preserve her impartiality. [155] H.R. 1590 would reduce total U.S. greenhouse gas emissions to 80% below 1990 levels by 2050 by freezing total U.S. greenhouse gas emissions at 2009 levels in 2010; in 2011, the legislation would mandate a 2% annual reduction in emissions to 1990 levels by 2020, and 5% annual reductions beginning in 2021.
Speaker Pelosi established a select House committee to gather scientific information to improve public awareness of climate change, [156] called the House Select Committee on Energy Independence and Global Warming. [157] On March 9th, 2007, Pelosi named Rep. Ed Markey (D-Mass.) as chairman. On the same day, Rep. Markey issued a statement that the select committee “will conduct hearings and investigations, gather information, and develop recommendations to cut dependence on foreign oil and reduce greenhouse gas emissions linked to global warming.” [158] However, as a Select Committee, it lacks real power. The Editor in Chief of Science magazine wrote in July 2007: “[The committee’s] impotence was a concession to John Dingell (D-MI), the congressman from Ford and Chevy, who heads the powerful Energy and Commerce Committee and wanted no threat to its authority.” [159] In the January 2007 press release announcing the new committee, supra, Speaker Pelosi said she hoped to have global warming legislation through committees with jurisdiction over energy, environment and technology policy by July 4th, 2007.
In January 2007, the National Oceanographic and Atmospheric Administration (NOAA) acknowledged that human activities were contributing to warmer temperatures. [160]
On Jan. 12, 2007, Representative Nick J. Rahall, II, and 198 co-sponsors, introduced H.R. 6, the “Creating Long-Term Energy Alternatives for the Nation Act of 2007” or the “CLEAN Energy Act of 2007.” The bill (one of several major climate-related bills introduced in the new 110th Congress [161]) would roll back tax and other forms of relief for the oil and gas industry, [162] and steer the resulting funds toward energy efficiency and renewable energy sources. [163] The related House Resolution 66, reported from the Rules Committee, providing for consideration of H.R. 6 with 3 hours of general debate, was passed on Jan. 18, and H.R. 6 was enacted as Pub. L. No. 110-140 on Dec. 19, 2007. (See infra for discussion of H.R. 2420, and Energy & CAFE standards in the 110th Congress.)
On Jan. 16, 2007, Senators Biden and Lugar reintroduced S. Res. 30, “[e]xpressing the sense of the Senate regarding the need for the United States to address global climate change through the negotiation of fair and effective international commitments.” It was referred to the Committee on Foreign Relations, like its predecessor, which was not voted on. If passed, it would “essentially reverse a 1997 sense-of-the-Senate resolution that warned the Clinton administration against signing the Kyoto Protocol, which would have required mandatory greenhouse gas emissions reductions by the United States.” [164] See Byrd-Hagel Resolution, S. Res. 98, supra. It was approved by the Foreign Relations Committee on March 29th, [165] reported back to the Senate without an amendment or a written report, and placed on the Senate Legislative Calendar under General Orders, Calendar No. 101; as of mid-April 2007, it was thought that S. Res. 30 might be considered by the Senate by Memorial Day, [166] but it was not passed.
The 110th Congress began with several relevant bill introductions, including:
o To search for other legislation, go to Thomas, for legislative information from the Library of Congress, or to GPO Access, from the Government Printing Office.
In his State of the Union Address, Jan. 23, 2007, President Bush offered several modest energy proposals: an increase in renewable fuels, [167] primarily ethanol, and increasing mileage standards for cars and trucks (the Corporate Average Fuel Economy or “CAFE” standards) by about 4% a year. Democrats and environmental groups were disappointed that emissions from stationary sources that burn fossil fuels were not mentioned. [168]
On Jan. 24, 2007, the day after the State of the Union address, President Bush issued Executive Order 13423, Strengthening Federal Environmental, Energy, and Transportation Management, ordering that all agencies improve their energy efficiency and reduce their GHG emissions by 3% or 30% annually through the end of fiscal 2015, relative to that agency’s energy use in fiscal year 2003; that they use renewable sources of energy and generate it themselves where feasible; that agencies with 20-vehicle or more motor fleets reduce their petroleum consumption by 2% annually through the end of fiscal year 2015 and increase the non-petroleum-base fuel consumption by 10% annually; and more. [169]
On Feb. 8, 2007, the House Committee on Science and Technology held hearings entitled The State of Climate Change Science 2007, coordinated with the release of the IPPC’s Fourth Assessment Report. Testifying were Dr. Susan Solomon of NOAA, Dr. Kevin Trenberth of the National Center for Atmospheric Research, Dr. Richard Alley of the Department of Geosciences, Pennsylvania State University, and Dr. Gerald Meehl of the National Center for Atmospheric Research.
On March 20, 2007, the House Committee on Energy and Commerce held a hearing entitled Climate Change: Perspectives of Utility CEOs. The executives were not opposed to mandatory carbon emissions limits, but were predictably concerned about increased utility charges. [170] Also on that date, Rep. Henry Waxman, with 127 cosponsors, introduced H.R. 1590, the “Safe Climate Act,” which calls for 80 percent cuts from 1990 GHG emissions levels by 2050. It was referred for consideration to the Subcommittee on Energy and Air Quality on March 21st, and never re-emerged. Twenty-one pages long, it referred to the findings of the IPCC; said that the U.S. Congress should participate in UNFCCC negotiations; that the CAA should be amended and that the EPA should promulgate GHG emissions targets beginning in 2010, GHG emissions not to exceed those of 2009; in 2011, emissions should be reduced by 2% per year so that by 2020 emissions don’t exceed those of 1990; starting in 2021 emissions should be reduced by 5% per year so that by 2050 emissions are 20% lower than they were in 1990. It also sketched out an emissions trading scheme.
On March 21, 2007, a joint hearing entitled Perspectives on Climate Change was held before the House Energy and Commerce Subcommittee on Energy and Air Quality, and the House Science and Technology Subcommittee on Energy and the Environment. Testifying were former vice president Al Gore, [171] and Bjørn Lomborg, adjunct professor, Copenhagen Consensus Center, Copenhagen Business School. Later that day, Mr. Gore also testified in front of the Senate Committee on Environment and Public Works. Mr. Gore had many recommendations for Congress, including an immediate freeze on CO2 emissions, a moratorium on new coal-fired power plants that cannot capture and sequester CO2, a carbon tax on industries, banning incandescent light bulbs, and tightening fuel economy standards for cars and trucks. [172] Predictably, Democrats received his proposals favorably, but only a few Republicans joined them, albeit cautiously. Other Republicans, especially Senator Inhofe (R-OK) and Representative Barton (R-TX), were critical. [173]
On March 28, 2007, Senator Durbin (D-IL) and Senator Hagel (R-Neb) introduced the Global Climate Change Security Oversight Act, S. 1018, that would, if enacted, require federal intelligence agencies to collaborate on a National Intelligence Estimate to evaluate the effect of predicted climate-related disasters on U.S. national security. Shortly thereafter, on April 16th, a report entitled National Security and the Threat of Climate Change was released by the CNA Corporation’s Military Advisory Board, which consisted of 11 retired 3- and 4-star admirals and generals, a former NASA administrator, and other experts. General Gordon R. Sullivan, chairman of the MAB, stated that: “We found that climate instability will lead to instability in geopolitics and impact American military operations around the world.” He appeared before the House Select Committee on Energy Independence and Global Warming on April 18th. [174] Three members of CNA’s Military Advisory Board testified again on May 9, 2007, before the Senate Foreign Relations Committee. One of them, retired Air Force Gen. Charles Wald, ranked climate change among the top three security threats to the U.S., and stated that: "This is one of the most dangerous times in our history." [175] On May 11th, 2007, the House of Representatives passed a provision in the 2008 Intelligence Authorization Act, H.R. 2082, that would require intelligence agencies to prepare a National Intelligence Estimate on the geopolitical effects of global climate change and the potential impacts on national security. The White House was not enthusiastic. [176]
As of April 23, 2007, the House Energy and Commerce Committee had held 11 hearings and heard testimony from over 50 witnesses, in an effort to develop climate change legislation that would be even-handed in the burdens it distributed on industries. The committee anticipated submitting the legislation in the fall of 2007. [177]
On May 14, 2007, President Bush, apparently in response to the Supreme Court decision in Mass. v. EPA, issued Executive Order 13432, entitled: Cooperation Among Agencies in Protecting the Environment with Respect to Greenhouse Gas Emissions From Motor Vehicles, Nonroad Vehicles, and Nonroad Engines to ensure that the Departments of Transportation, Energy, Agriculture, and the Environmental Protection Agency work together to protect the environment against vehicular GHG emissions “in a manner consistent with sound science, analysis of benefits and costs, public safety, and economic growth.” [178]
On June 12, 2007, the U.S. Senate began debates on a new energy bill, which Speaker Pelosi wanted to have enacted by July 4th. [179] In October of 2007, no legislation had been enacted, but Congress was still trying. See below. On Oct. 3d, the House of Representatives issued the first in a series of Climate Change Legislation Design White Papers, to “focus the discussion” in Congress as it attempts to enact a climate change bill; the first was entitled “Scope of a Cap-and-Trade Program.”
On Oct. 18, 2007, Senators Lieberman (chair of the Environment and Public Works Subcommittee on Private Sector and Consumer Solutions to Global Warming and Wildlife Protection) introduced the America’s Climate Security Act of 2007, S. 2191, aka the “Lieberman-Warner bill,” which would, in its section 9004, Retention of State Authority, refrain from preempting states from enacting GHG standards more stringent than the federal ones. [180] It would also cap the nation's GHG emissions and would make a gradual transition from free distribution of allowances to an auction-based system. [181] A hearing on the bill was held on Wednesday, Oct. 24, 2007, before the Senate Committee on Environment and Public Works to which the bill was referred. Testimony was presented by Kevin Anton, President of Alcoa Materials Management; Frances Beinecke, President of Natural Resources Defense Council; Dr. William R. Moomaw, Director of Tufts University Institute for the Environment; Will Roehm, Vice President of the Montana Grain Growers Association; and Paul Cicio, Executive Director of Industrial Energy Consumers of America. On Nov. 1, 2007, after modifications that procured more support, [182] the bill was cleared by the Senate Subcommittee on Private Sector and Consumer Solutions to Global Warming and Wildlife Protection and reported back to the full committee, [183] the first of the many global warming bills introduced in the 110th Congress to be endorsed by any congressional body. [184] Senator Boxer, chair of the Environment and Public Works Committee, said that she hopes to schedule a full committee vote before the December U.N. climate change meeting in Bali, [185] and indeed, S. 2191 was reported by the Senate Environment and Public Works Committee with an amendment in the nature of a substitute in an 11-8 vote on Dec. 5, 2007 [186]; a tough time, including a possible filibuster, was anticipated in the Senate, but Sen. Lieberman (I/D-Conn.) predicted that enough Republicans would support the legislation to provide the 60 votes needed to break it. [187] James E. Rogers, president and CEO of Duke Energy Corp., one of the world’s largest emitters of CO2, criticized the bill in January, 2008, for directing where the proceeds from an emissions allowance auction should be spent. [188]
In March 2008, the EPA completed an economic analysis of S. 2191 and found it relatively favorable to U.S. businesses. [189] But shortly thereafter, energy companies and other business interests launched an attack against it, claiming it would cost millions of jobs, send energy prices into the stratosphere and drain paychecks; others have said that the opposition has failed to take the increase in green energy into consideration. [190] But at the end of April, the Energy Information Administration (EIA is the statistical arm of the Energy Department) determined that the bill would have a relatively minor impact on the economy, only reducing GDP by about 0.3% in 2030, despite calling for a reduction in U.S. GHG emissions of almost 70% by 2050. [191] Unsurprisingly, on May 5, 2008, the American Petroleum Institute issued a report entitled Addendum to Impact Assessment of Mandatory GHG Control Legislation on the Refining and Upstream Segments of the U.S. Petroleum Industry that concluded the bill would “increase the cost of refining petroleum, sending many of those operations and their jobs overseas and raising already-escalating fuel costs for consumers.” [192]
S. 2191 was placed on the Senate Calendar in May 2008. [193] On May 6, 2008, two EPA specialists, Laurie Williams and Allan Zabel, sent an open letter to each member of Congress, expressing the opinion that a cap-and-trade program, such as the one in S. 2191, is inferior to a carbon tax. [194] In any case, S. 2191 did not pass the Senate.
On May 20th, Senator Boxer introduced a tougher climate bill, S. 3036, but later supported the earlier bill because it had more general support and a greater likelihood of passing. On June 6, 2008, the Lieberman-Warner Climate Security Act of 2008 (S. 3036) died in the Senate after failing to get the 60 votes needed to limit a filibuster, as Sen. Lieberman had hoped. [195]
The Pew Center on Global Climate Change has a 2-page document on their Web site which neatly and clearly summarizes the major GHG proposals. Published on Nov. 26, 2007 and entitled Economy-wide Cap-and-Trade Proposals in the 110th Congress, it includes legislation introduced as of November 16th.
The Bush Administration held its own climate-change conference for the world’s largest economies in Hawaii, Jan. 30-31, 2008. Australia, Brazil, Britain, Canada, China, the European Union, France, Germany, India, Indonesia, Italy, Japan, Mexico, Russia, South Africa, South Korea, and the United Nations have been invited to send delegates. [196] (The January meeting is a follow-up to one held in Washington, D.C., in September 2007. [197]) The administration’s approach, focusing on voluntary reductions, has met with skepticism from ENGOs and others. [198] On July 9, 2008, Bush and other leaders of the G8 signed a “commitment” to cutting GHG emissions 50% by 2050, with no interim targets and no mechanism for achieving the goal. And on July 11, 2008, the administration said it would not use the Clean Air Act to regulate GHG emissions, the Supreme Court decision in Mass. v. EPA notwithstanding. See David Malakoff, Climate Change: Bush Takes a Final Swipe, and Salute, at CO2 Emission Curbs, 321 (5887) Science 324 (July 18, 2008).
Energy & CAFE standards in the 110th Congress (2007-2009): On May 23, 2007, the House Foreign Affairs Committee approved H.R. 2420, the International Climate Cooperation Re-engagement Act of 2007, which would have required U.S. negotiators to launch talks aimed at securing U.S. participation in binding GHG reduction agreements that would also include Brazil, China and India, to prevent a gap in Kyoto Protocol requirements after 2012; the bill would have created within the Department of State an Office on Global Climate Change, headed by an Ambassador-at-Large for Global Climate Change to advise the president on these matters and advance the country’s goals; it would have provided clean energy assistance to foreign countries; and created an international clean energy foundation. [199]
According to thomas.loc.gov, the text of H.R. 2420 was “generally incorporated” in H.R. 3221, the New Direction for Energy Independence, National Security, and Consumer Protection Act; as enacted (Pub. L. No. 110-289), H.R. 3221 was a bill to provide needed housing reform.
Anything that survived of H.R. 2420 was incorporated into H.R. 6, the Energy Independence & Security Act of 2007, which was agreed to by the House of Representatives by a 235-181 vote (Roll no. 1140) on Thursday, Dec. 6, 2007. [200] (The White House had sent a letter to Nancy Pelosi threatening to veto it on Dec. 3, 2007. [201]) The bill would eliminate $13.5 billion in tax breaks given to the 5 largest U.S. oil companies; the proceeds would be used to encourage development of renewable energy sources. Auto manufacturers would be required to boost fuel economy by 40% to an average of 35 mpg by 2020, the first increase in fuel economy standards for automobiles since they were enacted in 1975 (and a relatively minor improvement, compared to foreign car manufacturers, see supra). On Friday, Dec. 7th, Senate Republicans prevented Democrats from bringing up the bill for a vote. That is, the Senate ended debate on a motion to agree to the House amendments to the Senate amendments to H.R. 6 by a 53 to 42 vote, and requiring the negotiations to begin all over again. [202] The major sticking points were the requirement that utilities generate 15% of their electricity from renewable sources, and some of the tax provisions. H.R. 6 was eventually signed into law on Dec. 19, 2007; as enacted (Pub. L. No. 110-140) the bill retained the 40% increase in the national fuel economy standard in its § 102 (b)(2)(A), which prescribed “a combined fuel economy average for model year 2020 of at least 35 miles per gallon for the total fleet of passenger and non-passenger automobiles manufactured for sale in the United States for that model year.” [203] Unfortunately, it retained the tax breaks to oil companies, the elimination of which would have funded renewable energy sources, and did not impose new taxes on them .[204] It will also gradually phase out incandescent light bulbs in favor of CFLs by 2014. However, environmental advocates on Jan. 17, 2008, said: “Growth in vehicle travel may wipe out any greenhouse gas emissions reductions that will be realized from newly enacted requirements to increase automobile fuel efficiency.” [205]
On Mar. 13, 2008, the American Energy Independence and Security Act of 2008, S. 2758, was introduced to open the Arctic National Wildlife Refuge to oil drilling if oil reaches $125 per galleon for 5 consecutive days; its sponsors were Alaska Senators Lisa Murkowski and Ted Stevens. However, few believed the bill to have significant support, and it did not emerge after referral to the Committee on Energy and Natural Resources. [206]
Shortly before leaving office, in November 2008, the Bush EPA was working to finalize air-quality rules that would weaken CAA protections for “Class 1 areas” near national parks and wilderness areas and “ease the way for the construction of at least two dozen coal-fired utilities within 186 miles of 10 national parks.” This despite the fact that 5 of the EPA’s 10 regional administrators formally dissented from the decision, and 4 others criticized it in writing; all but 2 of the regional administrators objecting to the proposed rule are political appointees .[207]
Hearing transcripts are located on committee Web sites for a while but they are not archived there. I give the links to hearings when updating, but eventually they will not work. Later, some hearings will be on this website, from the 104th Congress (1995-96) to current, or on LexisNexis Congressional (by subscription only). (Committee reports are here from the 104th Congress (1995-1996) to current. Bills are also; the Bill Text feature covers the 101st Congress (1989) to current; Bill Summary and Status covers the 93rd Congress (1973) to current.)
UCS & GAP Reports:
Hearings in the House of Representatives: Atmosphere of Pressure, supra, was presented on Tuesday, Jan. 30, 2007, at a hearing held by the House Committee on Oversight and Government Reform, chaired by Rep. Henry Waxman (D-CA), entitled Allegations of Political Interference with the Work of Government Climate Change Scientists, 110th Cong. (2007). Testifying were Francesca T. Grifo, Ph.D., from the Union of Concerned Scientists; Rick Piltz, from the Government Accountability Project; Dr. Drew T. Shindell, a climate researcher at NASA’s Goddard Center; and Roger A. Pielke, Jr., University of Colorado, Boulder. A transcript is no longer (on Dec. 3, 2009) on the committee Web site, as noted above; it is, however, available from GPO Access or LexisNexis Congressional.
Rick Piltz had resigned in protest as senior associate with the Climate Change Science Program in 2005 over “efforts by industry groups and White House officials to weaken or delete language in official reports on global warming.” [210] At that time he sent a memo entitled On Issues of Concern About the Governance and Direction of the Climate Change Science Program to the CCSP explaining his motives. In his 2007 testimony, Mr. Piltz expressed concern over the politicization of the National Assessment of the Potential Consequences of Climate Variability and Change (the “National Assessment”), discussed supra § 4.2., The Bush Administration & Climate Change, Climate Change Science Program.
In his opening statement and in his Memo to Committee Members Regarding CEQ Documents, Mr. Waxman discussed the difficulties the committee, under his leadership and that of his predecessor, had when it requested what he characterized as routine documents from the White House’s Council on Environmental Quality. The CEQ repeatedly refused to produce more than a few documents although the committee scaled back the request several times and extended its deadlines. The documents had been viewed in camera by staff members so there was no doubt that they were relevant to attempts by administration officials to “mislead the public by injecting doubt into the science of global warming and minimizing the potential dangers.” Mr. Waxman noted that the CEQ chief of staff is Phillip Cooney, a former lobbyist for the American Petroleum Institute, and not a scientist.
House Hearings continued in the House Committee on Oversight and Government Reform entitled Allegations of Political Interference with Government Climate Change Science on Mar. 19, 2007. In his opening statement, Chairman Waxman stated that the documents produced since the earlier hearing on Jan. 30th suggested that “there may have been a concerted effort directed by the White House to mislead the public about the dangers of global climate change.” Testifying were Mr. Philip Cooney, former Chief of Staff, White House Council on Environmental Quality; Dr. James Hansen, Director, Goddard Institute for Space Studies, National Aeronautics and Space Administration; Mr. George Deutsch, former public affairs officer, National Aeronautics and Space Administration; Mr. James Connaughton, Chairman, White House Council on Environmental Quality; and Dr. Roy Spencer, University of Alabama in Huntsville. Mr. Cooney, who worked for the American Petroleum Institute before joining the CEQ in 2001, defended the 181 alterations he made to climate reports while working at CEQ. [211] A transcript is available through LexisNexis Congressional but on Dec. 3, 2009, it was not on GPO Access.
The House Committee on Natural Resources held a hearing entitled Endangered Species Act Implementation: Science or Politics? on May 9, 2007. One witness, Jamie Rappaport Clark, testified that the current administration has “undermined the scientific integrity of its [ESA] programs with political interference and slowly starved the program of needed resources.” The hearing was held the week after Julie MacDonald, former deputy assistant secretary for fish, wildlife and parks, resigned over allegations that she “bullied federal scientists,” among other things. [212] A transcript is available through LexisNexis Congressional but is not available on GPO Access as of Dec. 3, 2009.
Senate Hearing: The Senate Committee on Commerce, Science, and Transportation, chaired by Senator Daniel K. Inouye (D-Hawaii), held similar hearings, entitled Climate Change Research and Scientific Integrity, on Wednesday, Feb. 7, 2007. Opening statements were made by majority Senators Inouye, the committee Chairman, and Kerry; no one spoke from the minority. Testifying were Mr. William Brennan, Acting Director, USCCSP, who praised the Bush administration and claimed that the FAR could not have been possible without it; Dr. Richard Anthes, President of the University Corporation for Atmospheric Research, whose remarks centered on the decrease in budgets of NASA and NOAA; Mr. Thomas R. Knutson, a research meteorologist at NOAA who stated that NOAA’s Public Affairs staff had occasionally and unreasonably interfered with interviews he and others had given; Dr. James R. Mahoney, an Environmental Consultant for several organizations, who described the 6 levels of NOAA peer review of released documents or media communications aimed at reducing or eliminating errors or misrepresentations; Rick Piltz, Director of Climate Science Watch, Government Accountability Project, who also testified at the House hearing on Jan. 30th, supra, and who was the most outspoken on the subject; and Dr. F. Sherwood Rowland, a Professor of Chemistry and Earth System Science. A transcript is available through LexisNexis Congressional, but not from GPO Access.
Additional examples:
In early 2006, the director of the NASA Institute for Space Studies located at Columbia University in New York City, Dr. James Hansen, a leader in climate-change research, “complained that he had been harassed by White House appointees as he tried to sound the global-warming alarm.”[213]
Commentary includes: Robert F. Rich & Kelly R. Merrick, Use and Misuse of Science: Global Climate Change and the Bush Administration, 14 Virginia Journal of Social Policy & the Law 223 (2007).
Seth Shulman, Undermining Science: Suppression and Distortion in the Bush Administration (Berkeley: University of California Press, 2006).
Sidney A. Shapiro, "Political" Science: Regulatory Science After the Bush Administration, 4 Duke J. Const. Law & Pub. Pol'y 31 (2009).
Michele Estrin Gilman, The President as Scientist-in Chief, in Symposium, Presidential Power in the 21st Century, 45 Willamette L. Rev. 565 (spring, 2009).
Image courtesy of the U.S. Fish and Wildlife Service, National Digital Library
4.2.5.1. Polar Bears: In 2004, the Center for Biological Diversity’s Climate, Air, and Energy Program started a petition that was eventually filed on Feb. 16, 2005, to give polar bears Endangered Species Act protection as a result of climate change. [222] When the Department of the Interior’s Fish and Wildlife Service failed to respond, the Center filed a law suit, Center for Biological Diversity et al. v. Norton, in December, 2005, in the U.S. District Court for the Northern District of California. On Dec. 21, 2005, the Interior Department released a 262-page report entitled Range-Wide Status Review of the Polar Bear (Ursus maritimus) on the effect of human activities on Arctic warming and the bears’ survival, despite the department’s having denied for months that it had analyzed human activities on polar bears. [223] On Dec. 27, 2006, in order to settle the suit, the Service proposed to list the polar bear as “threatened” under the ESA; the polar bear report was not cited in the listing. [224] Comments were accepted until April 9th, 2007, with a final decision on the listing required by Jan. 9, 2008. Kassie Siegel, climate director at the Center for Biological Diversity, stated: “As far as we can determine, it is the first admission by the administration in a legally meaningful context of the reality of global warming.” [225]
“Once listed, federal agencies will be obligated to ensure that any action they authorize, fund, or carry out will not jeopardize the Polar Bears’ continued existence or adversely modify its critical habitat, and the USF&WS will be required to prepare a recovery plan for the Polar Bear, specifying measures necessary for its protection.” [226]
On Feb. 13, 2007, the Center for Biological Diversity and Pacific Environment sued the federal government in U.S. District Court for the Northern District of California in San Francisco, claiming that the Fish and Wildlife Service did not fully consider the effects of global warming and oil and gas exploration on polar bears and other marine mammals when it wrote the regulations in Title 50, part 18, subpart J, entitled Nonlethal Taking of Marine Mammals Incidental to Oil and Gas Exploration, Development, and Production Activities in the Beaufort Sea and Adjacent Northern Coast of Alaska (aka “the incidental take rules,” 71 Fed. Reg. 43926 (Aug. 2, 2006)); the plaintiffs claimed that the regulations violated the Marine Mammal Protection Act and NEPA. (Center for Biological Diversity v. Kempthorne, No. 08-35402 (Dec. 2, 2009)). The suit focused on the regulatory term “incidental taking.” [227]
Subpart J was added in August of 2006, in response to a 2002 request by the Alaska Oil and Gas Association and a 2004 request from BP Exploration (Alaska), Inc., that the Fish and Wildlife Service “promulgate regulations for non-lethal incidental take of small numbers of Pacific walrus and polar bears for a period of 5 years….” [228] That means that the companies wanted a regulatory procedure (they would request a “Letter of Authorization” or LOA) that would permit them to disturb marine mammals’ activities, such as “migration, breathing, nursing, breeding, feeding, or sheltering.” [229]
Venue was transferred to Alaska at some point in the proceedings, and the Alaska Oil and Gas Association intervened on the side of defendant/appellees. The District Court gave summary judgment to defendants, upholding the regulations, and plaintiffs appealed. On Dec. 2, 2009, Judge Jerome Ferris of the 9th Circuit Court of Appeals affirmed the district court. (Robert C. Cook, Endangered Species: Ninth Circuit Affirms Beaufort Sea Take Rule For Alaskan Polar Bears, Pacific Walruses, WCCR, Dec. 4, 2009.)
Two companion bills were introduced in the first session of the 110th Congress: H.R. 2327, the Polar Bear Protection Act of 2007, on May 15, 2007, and S. 1406, by the same name, on May 16, 2007. Neither was reported back to Congress by the committees to which they had been referred.
On Sept. 7, 2007, the U.S. Geological Survey released New Polar Bear Finding, the results of 9 studies on the effects of climate change on polar bears. The studies were to determine whether the bears should be regulated under the Endangered Species Act. [230] The reports concluded that two-thirds of the current population of 22,000 polar bears would disappear by 2050, regardless of any mitigating steps that may be taken to reduce global warming. [231]
Although a final decision on the listing was due on Jan. 9, 2008, the FWS postponed the decision for a few weeks on Jan. 7th. [232] Representative Edward Markey (D-MA) introduced H.R. 5058 on Jan. 17, 2008, “To prohibit the Secretary of the Interior from selling any oil and gas lease for any tract in the Lease Sale 193 Area of the Alaska Outer Continental Shelf Region until the Secretary determines whether to list the polar bear as a threatened species or an endangered species under the Endangered Species Act of 1973, and for other purposes.” [233] It was referred to the House Committee on Natural Resources, where it died.
On Jan. 17, 2008, the International Fund for Animal Welfare released a report entitled: On Thin Ice: The Precarious State of Arctic Marine Mammals in the United States Due to Global Warming, a comprehensive report commissioned to gauge the effects of unprecedented climate change on polar bears and other ice-dependent marine mammals within the United States.
On Mar. 10, 2008, NRDC, the Center for Biological Diversity, and Greenpeace sued the Bush administration for missing the January 2008 deadline for a final decision on whether to list the polar bear under the ESA. [234] On April 28, 2008, Judge Claudia Wilkin issued an injunction in Center for Biological Diversity v. Kempthorne, N.D. Cal., No. 08-1339, ordering the Department of the Interior to publish the listing decision in the Federal Register by May 15th; in documents filed on April 17th the Department had said it needed until June 30th to decide. [235] Kassie Siegel (see supra) hypothesized that the delay was connected to the Bush administration’s plan to issue offshore petroleum leases in one of the two areas the bears live. [236]
Interior Secretary Dirk Kempthorne announced that polar bears would be listed as “threatened” under the ESA, a lower level of protection than “endangered.” The Center for Biological Diversity, Greenpeace and the Natural Resources Defense Council filed papers on May 16, 2008, to reject the decision. [237]
On May 15, 2008, the final rule, entitled Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range [emphasis supplied], was published at 73 Fed. Reg. 28212, to be codified at 50 C.F.R. Part 17. FWS also finalized a rule in December 2008 under the ESA’s § 4 (d) that said it would not regulate either GHG emissions or oil development to protect polar bears. CBD challenged the rule in court, in an attempt to raise its status from “threatened” to “endangered.”
In early 2009 Interior Secretary Salazar announced that the Obama Administration would retain the Bush Administration’s decision, claiming that the ESA was not the right statute to regulate climate change and that a comprehensive climate policy (which has yet to materialize in fall, 2010) was imminent. (Alan Kovski, Endangered Species: Interior Department Plans to Stick With Regulation on Limited Protections for Polar Bears, WCCR, May 8, 2009.)
A report published online on April 29, 2010, by Péter K. Molnár, Andrew E. Derocher, Gregory W. Thiemann & Mark A. Lewis, entitled: Predicting survival, reproduction and abundance of polar bears under climate change, in Biological Conservation, predicts that polar bear populations will plummet suddenly after reaching a “tipping point.” (Matt Walker, Polar bears face 'tipping point' due to climate change, BBC News, May 25, 2010.)
A draft economic report released by FWS on May 26, 2010, concluded that dedicating 187,166 square miles of marine territory and Alaska coastline as critical habitat for threatened polar bears would impose only minimal costs of about $53,900 per year over 29 years. The Service proposed the designation in October, 2009. (Yereth Rosen, Endangered Species: Draft Analysis Concludes Habitat Designation for Polar Bears to Impose Only Minor Costs, WCCR, May 26, 2010.)
On Nov. 24, 2010, the FWS designated 187,157 square miles of "critical habitat" for polar bears living on Alaska's disappearing sea ice, which could affect new oil and gas projects although it does not overtly bar them. (Agence France-Presse, Feds designate ‘critical’ polar bear habitat in Arctic, GRIST, Nov. 24, 2010; Final Rule, Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Polar Bear (Ursus maritimus) in the United States, 75 Fed. Reg. 76086 (Dec. 7, 2010).)
On Jan. 5, 2011, Mr. Young of Alaska introduced H.R. 39, the Polar Bear Delisting Act, to rescind their status as a threatened species. It has no co-sponsors.
4.2.5.2. Penguins: In Sept. 2008 the FWS settled a lawsuit by the Center for Biological Diversity after it failed to list twelve species of penguins under the ESA as requested in 2006; the agency proposed to list seven of the twelve as threatened or endangered by Dec. 19, 2009, which it did not do. (Listing was denied to emperor and northern rockhopper penguins despite scientific evidence that they are threatened by climate change.) On Mar. 9, 2010, the CBD and the Turtle Island Restoration Network filed in the District Court for the Northern District of California a lawsuit, Center for Biological Diversity et al v. Salazar et al., 3:10-cv-00992-SC, accusing the FWS of delaying the listing of the seven species. If the listing happens it would complicate the approval of fishing permits, and compel federal agencies to assess the impact of GHG emissions on penguins and attempt to mitigate the potential harm to them. [238] The groups also intend to challenge the denial of ESA listing to the emperor and northern rockhopper penguins. [239]
4.2.6. Massachusetts v. EPA, 549 U.S. 497 (2007): The long history of this case began in October, 1999, when 19 organizations filed a rulemaking petition asking EPA to regulate GHG emissions from new vehicles; that background and the agency’s rational for not doing so are discussed at 549 U.S. 510-14. In July 2002, a coalition of 11 states led by Massachusetts’ Attorney General Reilly wrote a letter to President Bush requesting that the federal government regulate GHGs. When that failed, in June 2003, AG Reilly filed a lawsuit on behalf of Massachusetts, Connecticut and Maine, arguing that EPA had failed to regulate CO2 as the agency was required to do under the Clean Air Act. In August, 2003, the EPA reversed its earlier position, denying that CO2 was an air pollutant subject to regulation under the CAA [240] and denying its legal authority to regulate GHG emissions. The EPA also denied a four-year old petition for rulemaking [241] that requested that it regulate GHG emissions from new motor vehicles, as it was required to do under the CAA, Pub. L. No. 101-540, 104 Stat. 2399, 2473, § 202, codified at 42 U.S.C. § 7521. In October 2003, 12 states, 3 cities, and 10 environmental groups filed suit in the Court of Appeals for the D.C. Circuit challenging the EPA’s position.[242] The case was consolidated as Massachusetts, et al. v. EPA, et al., the EPA being joined by 10 states and several auto industry associations. A three-judge panel of the D.C. Circuit issued three opinions, only one of which favored the petitioner states. On Aug. 29, 2005, AG Reilly unsuccessfully requested that the full court rehear the case. On Mar. 2, 2006, AG Reilly filed a petition of certiorari to the United States Supreme Court which was granted on June 26, 2006. Oral argument in Massachusetts, et al. v. EPA, No. 05-1120, was held on Nov. 29, 2006, [243] at which the threshold issue was whether petitioner states had standing to sue at all. The Bush administration argued that the alleged damage suffered was too generalized to be addressed by a court. [244] But even if the case failed, after Democratic successes in the mid-term elections, it seemed reasonable to assume that legislative controls on carbon emissions were inevitable. [245]
The case came down on April 2, 2007, in a 5-4 decision in favor of petitioners. The opinion was written by Justice Stevens; two dissents, by Chief Justice Roberts and Justice Scalia, were joined by the other conservative justices. The majority held that petitioners had standing to sue; that greenhouse gases were air pollutants within the Clean Air Act’s broad definition, and that therefore the EPA has the statutory authority to regulate their emission from new motor vehicles; and that as the agency’s rationale for not regulating was not reasonably related to the statute, it was arbitrary, capricious or otherwise not in accordance with law. The court recommended that if the agency cannot show that CO2 is not implicated in global warming, the agency should regulate it. The Chief Justice’s dissent focused on standing, which he would have denied; Justice Scalia thought the court should not interfere with an executive agency’s discretion. [246] The decision may push Democrats in Congress to pass new legislation to curb or cap GHG emissions in the U.S., but it was considered inevitable that U.S. emissions will be regulated one way or the other. [247] Although Mr. Bush stated on April 3rd that he considered the measures he has taken to address global warming to be sufficient, the opinion was welcomed by Congress and the states, 40 of which have filed at least 300 bills addressing GHGs and climate change. [248] However, one academic commentator, speaking from his long experience dealing with the Clean Air Act, had no faith that EPA would do anything significant in the near term, at least not until legislation is enacted; he also distrusted Congress’s ability to make the tough choices necessary to deal with the problem. [249] Governor Schwarzenegger was confident that the EPA would now grant California’s request for a Clean Air Act §209(a) waiver of federal preemption, entitling California to set its own emissions standards for motor vehicles. [250] See discussion infra of Cal. Code Regs. Tit. 13 § 1961.1, entitled Greenhouse Gas Exhaust Emission Standards and Test Procedures.
4.2.6.1. Federal Response to Mass. v. EPA, 2007-2008: EPA Administrator Stephen Johnson was questioned on April 24, 2007, at a hearing before the Senate Environment and Public Works Committee about EPA regulation of CO2 emissions now that it has the authority, but he resisted providing a timetable. Senator Boxer (D-CA), the chairperson of the committee, sees “no excuse for delay.” Senator Inhofe (R-OK) and other Republican senators encouraged Johnson to resist the pressure. [251] The hearing was entitled “The Implications of the Supreme Court’s Decision Regarding EPA’s Authorities with Respect to Greenhouse Gases under the Clean Air Act.” Also testifying were Carol M. Browner and William K. Reilly, former EPA administrators; David Doniger, former director of climate change policy at the EPA and policy director of NRDC’s climate center; Peter Glaser; and Ann R. Klee, former General Counsel of the EPA. Administrator Johnson did say that he had signed a notice of public hearing and request for comments that day about California’s proposed GHG standards. The notice appeared on April 30, 2007, at 72 (82) Fed. Reg. 21260 and announced a public hearing, "Examining the Case for the California Waiver," which was held on May 22, 2007, before the Senate EPW Committee. [252] Testifying were the Honorable Edmund G. Brown Jr., Attorney General of the State of California [253]; Professor Jonathan H. Adler, Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law; and the Honorable Alexander B. Grannis, Commissioner of the NYS Department of Environmental Conservation. The EPA had its own public hearing on the waiver on the same day, [254] and another hearing was held on May 30th in Sacramento, at which more than 50 waiver proponents spoke and auto makers reiterated that California’s emissions limits would have no impact on global warming. [255]
On April 25, 2007, Governor Schwarzenegger spoke to EPA Administrator Johnson by telephone and wrote a letter to the agency notifying it of the state’s intent to sue if the agency failed to act within 6 months of the decision in Mass. v. EPA, on California’s Dec. 21, 2005, request for a waiver of federal preemption. If the EPA actually took 6 months, the waiver would have been pending for nearly 2 years. [256] In response, EPA spokeswoman Jennifer Wood said that she anticipated a decision would come at the end of the public comment period that ended June 15th. [257] In an op-ed piece in the Washington Post on May 21, 2007, entitled Lead or Step Aside, EPA: States Can't Wait on Global Warming, Governor Schwarzenegger and Jodi Rell, Republican governor of Connecticut, expressed their frustration with the administration and said that federal inaction on global warming “borders on malfeasance.”
On June 1, 2007, Representative Rick Boucher, Democrat of Virginia (representing a coal-producing part of the state) and chairman of the House Energy and Commerce Sub-Committee on Energy and Air Quality, and Michigan Representative John Dingell, a Democratic ally of automobile manufacturers, drafted a provision to a new energy bill that would prohibit the EPA from issuing California’s waiver of federal preemption at all, and would limit the EPA’s power to set federal climate change rules, effectively overruling at least part of Mass. v. EPA, and giving the NHTSA the exclusive authority to regulate vehicle emissions. [258] Speaker Nancy Pelosi (D-CA) stated in response: “Any proposal that affects California’s landmark efforts to reduce greenhouse gas emissions or eliminate the EPA’s authority to regulate greenhouse gas emissions will not have my support.” [259] A hearing was held on June 7th before the Subcommittee on Energy and Air Quality on the Discussion Draft Concerning Alternative Fuels, Infrastructure, and Vehicles. [260] Included in the record was a letter from the Attorneys General of 14 states and the Corporation Counsel of New York City, dated June 6, 2007, strongly objecting to the elimination of California’s forty-year-old Clean Air Act right to enact more stringent emissions limits than the federal government, and pointing out that most of the existing technological innovations to reduce automobile emissions have come about because of California’s standards. [261] Governors from eight of the interested states, including California and New York, wrote a letter to Mr. Boucher on June 7th, likewise objecting at his efforts to preempt their efforts. [262] Also on June 7th, Representative Dingell responded to the Attorneys General and NYC’s Corporation Counsel with his own letter, referring to “a number of factual inaccuracies” in theirs. [263] Dingell says that the discussion draft would not change California’s power to regulate any vehicle emissions except GHGs, which he confuses with fuel efficiency. (“As a result of the Supreme Court’s interpretation of the Clean Air Act [in Mass. v. EPA], we now have two Federal regulatory schemes assigning two different Federal agencies authority using two different standards to regulate essentially the same thing–fuel efficiency and greenhouse gas emissions.”) He states that: “For more than 32 years, CAFE has the distinction of being the only effective constraint on greenhouse gas emissions throughout the entire economy.” Those old enough to remember know that the CAFE standards had nothing to do with GHG emissions in 1975, or since; they were enacted to increase fuel efficiency after the Arab oil embargo of the early 1970s and (supposedly) to reduce America’s dependence on foreign oil. Scientists were concerned about climate change then, but legislators were not. To this reader, there is a great deal of difference between regulating what comes out of a vehicle’s tail pipe and the amount of fuel it uses to travel a given number of miles. Obviously, a vehicle that emits few pollutants or GHGs and that uses less gas to get from point A to point B is better for the environment than a low-emitting vehicle that uses a lot of fuel, or the other way around. But the issue of which agency is regulating what is perfectly clear.
On June 8th, 2007, EPA Administrator Stephen Johnson announced at a hearing before the Select Committee on Energy Independence and Global Warming entitled Massachusetts v. U.S. EPA: Implications of the Supreme Court Verdict that he would neither decide whether to regulate GHG emissions from vehicles, nor make a decision on California’s waiver of federal preemption until late in 2008. [264] When the chairman of the committee, Representative Markey, encouraged him to act more expeditiously, Johnson defended his position. [265] Washington Representative Inslee called Johnson’s response “grossly unsatisfactory,” but California Attorney General Jerry Brown claimed not to be surprised by Johnson’s “obfuscation and dissembling,” and was apparently resigned to a law suit, as promised by Governor Schwarzenegger on April 25, 2007, in his letter providing 180-day notice of intent to sue under the CAA and APA. [266] See supra. Governor Schwarzenegger responded to Johnson’s testimony by letter dated June 13, 2007. He referred to his April 25th letter and said that a law suit “now appears to be inevitable.” [267] As a result of political pressure from state officials, Johnson reversed his earlier position and promised to make a decision by the end of 2007. [268]
Representative Waxman (D-CA), head of the House Oversight and Government Reform Committee, claimed that a DOT official made phone calls urging members of Congress to submit negative comments to the EPA to help block California’s GHG emission rules. (The comment period ended June 15, 2007, see supra.) Acting DOT General Counsel Rosalind Knapp denied that such lobbying violates anti-lobbying rules regarding federal employees as they did not apply to contacts between executive branch officials and members of Congress. [269]
By the time the comment period ended, the EPA had received 60,000 comments on California’s global-warming rules. Legislation has been introduced into Congress to force the EPA to act on the state’s waiver request. [270] On July 12, 2007, Senators Boxer (D-CA) and Nelson (D-FL) introduced S. 1785, which would require the EPA to make a decision on California’s GHG emission rules within 30 days of its enactment, but would not force the agency to grant the state’s request for a waiver. [271]
In August 2007, the Congressional Research Service released a report entitled: California’s Waiver Request to Control Greenhouse Gases Under the Clean Air Act; it concluded that California has a strong case that it has met the conditions for approval of its waiver request. [272]
The EPA, according to Paul Argyropoulos, senior policy adviser in the EPA's Office of Transportation and Air Quality, is formulating new regulations on GHG emissions from mobile sources that will parallel the California rules, as yet (as of mid-October, 2007) unapproved. The EPA rules will allegedly be proposed before the end of 2007, but the amount of reduction is still undecided. [273] However, on Nov. 5, 2007, California filed the afore-promised lawsuit (California v. U.S. Environmental Protection Agency) in U.S. District Court for the District of Columbia, accusing the EPA of unreasonably delaying its decision on its waiver, originally requested on Dec. 23, 2005. The 14 states that adopted California’s GHG emissions regulations from mobile sources filed motions to intervene. [274]
In December 2007, the EPA declined, for the first time, to grant California’s request for a waiver of federal preemption under the CAA. “California Attorney General Jerry Brown Jr. blasted the EPA’s actions, saying ‘It is completely absurd to assert that California does not have a compelling need to fight global warming by curbing greenhouse gas emissions from cars. There is absolutely no legal justification for the Bush administration to deny this request—Governor Schwarzenegger and I are preparing to sue at the earliest possible moment.’”[275] In his Dec. 19, 2007 denial, Johnson rescinded his promise to issue proposed GHG regulations before the end of 2007 as they were not necessary after new energy legislation was enacted raising CAFE standards to 35 mpg by 2020. On Dec. 20, 2007, NRDC filed a FOIA request for documents relating to the waiver denial, and Rep. Waxman (D-CA), chair of the House Oversight and Government Reform Committee, opened an investigation and asked Johnson to provide the committee with relevant documents. [276] The EPA missed a January 2008 deadline for submission of those documents to the Committee, and on Jan. 15th Waxman announced that he planned to depose seven key EPA officials. [277] Also on Dec. 20th, Senator Barbara Boxer, chair of the Senate Committee on Environment and Public Works Committee, requested documents from the EPA on the waiver by Jan. 7th, and in letters sent to her Jan. 4 & Jan. 11, 2008, EPA claimed to be striving to collect the documents and to comply with the request but had not yet produced them. On Jan. 10th, Johnson did not appear at a field hearing about the waiver denial, and neither did any other EPA official. [278] On Jan. 11th, Senator Boxer stated: “The Administrator’s continuing refusal to cooperate with the Committee’s oversight of the EPA is absolutely unacceptable. What started off as foot-dragging is looking suspiciously like a cover-up. What is Stephen Johnson trying to hide? The Administrator will be appearing before the Committee on Jan. 24th. If all of the documents are not forthcoming before that hearing, it will further demonstrate his contempt for Congress and the American people.” [279]
In a Jan. 18, 2008, letter to Senator Boxer’s committee, the EPA “invoked attorney-client privilege and a desire to protect agency staff confidentiality as reasons for redacting the documents requested by the committee.” For example, “a committee aide said that … 16 pages of a 43-page EPA PowerPoint presentation on the decision were left blank.” The EPA letter suggested that the agency will publish a formal decision document on California’s waiver request in the Federal Register that will include its rational for the denial [280]; it should appear by the end of February, 2008, and until it is published, the waiver is not technically denied. [281] The pages of the PowerPoint that were revealed showed that EPA staffers believed that the waiver application should have been approved, and that if it was not, that the agency would probably lose in a lawsuit to overturn the decision, which had already been filed. [282]
On Jan. 2, 2008, California and 15 other states sued to overturn the denial in U.S. Court of Appeals for the Ninth Circuit, claiming that the EPA’s decision was “flawed and reverses decades of agency practice, according to state Attorney General Jerry Brown.” [283] The case is California v. EPA, 9th Cir., No. 08-70011. [284] The case was dismissed on July 25, 2008, as the agency’s action was not held to be a reviewable final action of the Administrator under the Clean Air Act, and again in the D.C. Circuit on Oct. 8, 2008; however, the case was mooted by the agency’s granting of the state’s waiver on July 8, 2009. See supra, under the Obama Administration.
A full committee hearing of the Senate Environment and Public Works Committee, entitled "Oversight of EPA’s Decision to Deny the California Waiver," was held on Jan. 24, 2008; EPA Administrator Johnson testified. Chairman Boxer’s opening remarks included the following: “The purpose of today's hearing is to continue the Environment and Public Works Committee's investigation into the unconscionable decision by the EPA Administrator to deny California and the other states the opportunity to cut global warming pollution from motor vehicles. … It's not just California that suffers. Fourteen other states have adopted California's standards, or are in the process of adopting them. Another four are moving toward adopting the California standards. Altogether, those 19 states represent more than 152,000,000 Americans - a majority of the U.S. population.” Johnson said at the hearing that the EPA will comply with Mass v. EPA and issue a rulemaking on GHG emissions from mobile sources, but did not say when, and defended his decision. [285] He had stated at the end of December that a rulemaking might not be necessary after the energy bill (Pub. L. No. 110-140) was enacted on the 19th. [286] The attorneys general from 18 states threatened further legal action on Jan. 23d if the EPA did not issue the rulemaking by Feb. 27, 2008 as required by Mass. v. EPA, and as the agency promised to do by the end of 2007. [287] Senator Boxer, on Jan. 24, 2008, introduced S. 2555, the “Reducing Global Warming Pollution from Vehicles Act of 2008,” to reverse Johnson’s decision by amending § 209 of the Clean Air Act. [288] The bill has 17 original bipartisan cosponsors, all from states that either have already adopted the California standard or are considering doing so, and has been referred to the Environment and Public Works Committee. [289]
On Feb. 27, 2008, EPA refused to provide a timetable for compliance with Mass. v. EPA, [290] but on the 29th it issued California State Motor Vehicle Pollution Control Standards; Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles, published at 73 (45) Fed. Reg. 12156 on Mar. 6, 2008, explaining its rationale for denying the waiver request.
On March 6, 2008, another bill was introduced in the House to overturn the EPA’s waiver decision. H.R. 5560, entitled the ‘Right to Clean Vehicles Act,’ which would “permit California and other States to effectively control greenhouse gas emissions from motor vehicles,” had 60 supporters.
At a March 13, 2008, hearing before the House Select Committee on Energy Independence and Global Warming, Administrator Johnson would not commit to issuing a CAA finding of endangerment from CO2 emissions, because it would trigger burdensome requirements on emitting facilities. On the same day, Representative Henry Waxman issued a subpoena to compel the EPA to issue unredacted documents related to its denial of California’s waiver request. [291]
For continuing developments re. EPA & GHG regulation in the Obama Administration, see infra § 4.4.2.
For academic commentary on Mass. v. EPA, see, e.g.:
Jonathan H. Adler, Massachusetts v. EPA Heats Up Climate Policy No Less Than Administrative Law: A Comment on Professors Watts and Wildermuth, 102 Northwestern University Law Review Colloquy 32 (2007).
Anne E. Carlson, Federalism, Preemption, and Greenhouse Gas Emissions, 37 U.C. Davis L. Rev. 281 (2003).
Committee Report: Report of the Climate Change and Emissions Committee, 30 Energy L. J. 563 (2009), sec. II.A., California's Waiver to Implement State-Level Vehicle GHG Standards.
Lisa Heinzerling, Climate, Preemption, and the Executive Branches, in Symposium, Federalism and Climate Change: The Role of the States in a Future Federal Regime, 50 Ariz. L. Rev. 925 (2008).
Lisa Heinzerling, Climate Change in the Supreme Court, 38 Environmental Law 1 (Winter, 2008). (Written by the lead author of the winning briefs in Mass. v. EPA, this article provides an insider's perspective on the choices that went into bringing and briefing the case.)
Climate change was an issue for candidates of both parties in 2008. Al Gore’s winning the Nobel Peace Prize with the IPCC (see supra) in fall of 2007 gave Democrats a chance to highlight their attempts to raise CAFE standards and pass legislation to curtail GHG emissions. Rudolph Giuliani and Mitt Romney came out in favor of “clean coal” technology; John McCain has proposed legislation to establish a cap-and-trade program and raising CAFE standards; Mike Huckabee and Sam Brownback have tried to appeal to religious conservatives with a spiritual approach. All the Republican candidates were in favor of nuclear power. Fred Thompson suggested that we need more research in the area. [292]
John McCain choose first-term Alaska governor Sarah Palin as his running mate, described by Greenpeace’s Alaska Global Warming Campaigner, Melanie Duchin, as having "one of the most anti-environment records of any governor in the United States."[293] See infra § 4.7.1. Alaska.
On Nov. 13, 2007, the Environmental Appeals Board ruled (In Re Deseret Power Electric Cooperative EPA EAB, PSD Appeal No. 07-03, 11/13/08) that the EPA must reconsider its refusal to impose limits on CO2 emissions when it granted a permit for a new coal-fired power plant in Utah. The Sierra Club applauded the decision, saying that it “gives the Obama Administration a clean slate” to regulate GHG emissions from such sources under the CAA after Mass. v. EPA. [294]
President Obama referred to the importance of dealing with global climate change in his inaugural address on Jan. 20, 2009, as he was sworn in as 44th president of the United States, [295] and included a GHG cap-and-trade system in his Feb. 26 proposed budget summary. [296] This cap-and-trade proposal “shifts the baseline for cutting annual U.S. greenhouse gas emissions from 1990—the measuring stick he used in his presidential campaign—to 2005 levels, which if implemented would mean more modest reductions by mid-century.” However, it “sent a clear signal to the environmental community that he intended to follow through on his pledge for mandatory controls on U.S. emissions.”[297]
On Earth Day, April 22, 2009, President Obama and Interior Department Secretary Ken Salazar announced new guidelines clearing the way for major offshore wind projects. It represented “the biggest federal step forward to date for clean energy in the United States.” [298]
After Chancellor Merkel spoke to a joint session of Congress (see infra § 4.4.1.3.) on Nov. 3, 2009, President Obama hosted an E.U.-U.S. summit and told European Commission President Jose Manuel Barroso, E.U. foreign policy chief Xavier Solana, and Fredrik Reinfeldt, Prime Minister of Sweden and the current E.U. president, that it was “imperative for us to redouble our efforts in the weeks between now and the Copenhagen meeting to assure that we create a framework for progress in dealing with [a] potential ecological disaster.” [299]
4.4.1. GHG legislation:
The Center for Public Integrity’s web site, The Climate Change Lobby, reports that the number of climate change lobbyists in Washington has mushroomed from 2003 to 2008. They estimate an increase of more than 300 percent in the number of lobbyists on climate change in just five years, or about four climate lobbyists for every member of Congress.
For academic commentary on U.S. climate change legislation, see, e.g., Victor B. Flatt, Taking the Legislative Temperature: Which Federal Climate Change Legislative Proposal Is "Best"?, 102 Nw. U. L. Rev. Colloquy 123 (Dec. 2007).
Jonathan Hiskes, UN chief will pressure senators on climate bill, Grist (Oct. 26, 2009).
4.4.1.1. House of Representatives: On May 21, 2009, the House Energy and Commerce Committee approved H.R. 2454, Waxman-Markey’s American Clean Energy and Security Act (aka “ACES”) by a vote of 33 to 25. [300] The committee’s web page said on May 28th: “The American Clean Energy and Security Act will create millions of new clean energy jobs, save consumers hundreds of billions of dollars in energy costs, enhance America's energy independence, and cut global warming pollution. To meet these goals, the legislation has four titles:
* A clean energy title that promotes renewable sources of energy, carbon capture and sequestration technologies, clean electric vehicles, and the smart grid and electricity transmission.
* An energy efficiency title that increases energy efficiency across all sectors of the economy, including buildings, appliances, transportation, and industry.
* A global warming title that places limits on emissions of heat-trapping pollutants. This legislation would cut global warming pollution by 17% compared to 2005 levels in 2020, by 42% in 2030, and by 83% in 2050. These are science-based targets and within the range agreed to by USCAP.
* A title that protects U.S. consumers and industry and promotes green jobs during the transition to a clean energy economy.”
On June 26, 2009, the House of Representatives passed H.R. 2454 by a vote of 219-212. EDF stated that the bill: Establishes a cap-and-trade program to spur investment in clean energy technologies and new manufacturing jobs, sets a declining cap on greenhouse gas emissions at 17% below 2005 levels by 2020 and 83% by 2050, and costs only about a postage stamp a day for the average household, according to an analysis by the nonpartisan Congressional Budget Office. [301] However, it passed by just one vote more than the simple majority of 218 needed to pass legislation in the House. [302] It was placed on the Senate Legislative Calendar on July 7, 2009, as General Order 97. [303]
On Oct. 27, 2009, a consultant with Wood Mackenzie, Alan Gelder, stated that H.R. 2454 as drafted “poses a disruptive threat to the U.S. refining industry,” because it would force refiners to purchase most of their emissions credits, thus giving an advantage to imported oil. [304]
4.4.1.2.
Senate: The American Clean Energy Leadership Act of 2009
(
S
.
1462
)
was approved by the Senate Energy and Natural Resource Committee and reported
out of committee on July 16, 2009; see S. Rep. No. 111-48. In April 2010,
Senator Harry Reid is considering amending this bill with broader climate
change provisions. [305]
On Sept. 30, 2009, S. 1733, The Clean Energy Jobs and American Power Act, aka the “Kerry-Boxer bill,” was introduced in the Senate. It would “require U.S. power plants and other operations to cut their greenhouse gas emissions 20 percent by 2020 from 2005 levels.” [306] The Senate Environment and Public Works Committee marked up climate change legislation in November. [307]
On Oct. 23, 2009, EPA’s Office of Atmospheric Programs released a comparative analysis of the two leading House & Senate bills, entitled Economic Impacts of S. 1733: The Clean Energy Jobs and American Power Act of 2009. EPA estimated that the impacts of S. 1733 would be similar to those for the House-passed climate bill, H.R. 2454. The average loss in consumption per household “will be relatively low, on the order of hundreds of dollars per year….” [308] The same day, Senator Boxer, Chairman of the Senate Committee on Environment and Public Works, released a new version of S. 1733; hearings were held Oct. 27th , 28th and the 29th.
Analysts from the Pew Center on Global Climate Change warned at the end of October, that the lack of progress on S. 1733 will hamper the negotiations in Copenhagen in Dec. 2009, as the meeting’s success hinges on what the U.S. will offer by way of a commitment. They suggested lowering expectations, rather than raising them, say, by looking for a strong interim agreement instead of a new binding GHG reduction agreement. [309]
Senator Boxer stated at the end of October 2009 that the target of a 20% emissions reduction by 2020 in the Senate’s bill (the House bill only stipulates 17% reduction) is feasible given that emissions have fallen by 8% over the last 2 years due to the economic downturn; however, the bill needs the support of Democrats from coal states who have expressed concern about the steepness of the target. [310]
Three days of hearings began on Oct. 27, 2009, before the Senate Environment and Public Works Committee, entitled Legislative Hearing on S. 1733, Clean Energy Jobs and American Power Act. Senator James M. Inhofe of Oklahoma, ranking Republican on the committee and a global warming skeptic, and Senator Max Baucus, Democrat of Montana, expressed serious doubts about the costs of and potential benefits from the bill. [311] Climate legislation is running into serious opposition not only from Inhofe, but also Bob Stallman, President of the American Farm Bureau Federation, which is, according to Grist, probably the nation’s most potent agribusiness interest group. [312] On Oct. 30th, Senator Boxer revealed the version of the bill reported by the committee, the revised chairman’s mark. On Nov. 3, the committee began debate on S. 1733, although all seven Republican members boycotted the proceedings, claiming that they wanted EPA to finish a more detailed cost analysis, although the economics are nearly the same as for the House bill, Waxman-Markey, supra. [313] Senate Democrats reported the bill out of committee on an 11 to 1 vote on Nov. 5, 2009, a “modest step forward,” but progress nonetheless. [314] The vote against was cast by Sen. Max Baucus (D-Mont.), who wants China to make similar cuts and believes the bill’s 20% target is unreasonable. [315]
Senator Baucus chairs the Senate Finance Committee, one of four other committees (the other 3 are Agriculture, Nutrition, and Forestry; Commerce, Science, and Transportation; and Foreign Relations) with jurisdiction over portions of the bill. The Finance Committee will begin hearings on S. 1733 on Nov. 10, 2009. However, Baucus has already stated that the emissions cuts are too deep for him to support; he says no date has been set for a Finance markup of the bill, and doubts that Senate floor debate or a floor vote will happen this year. [316]
On Nov. 17, 2009, Senate Majority Leader Harry Reid (D-Nev.) announced that the Senate will act in early 2010 on legislation to battle climate change; thus the U.S., as expected, will not have adopted climate legislation by the Copenhagen meeting in December 2009.[317]
The Republican side of the Senate Environment and Public Works Committee was
empty Tuesday, Nov. 4, 2009, during climate talks.[318] Committee chair Senator
Barbara Boxer sits in the left front corner. GRIST maintains that part of the bill’s
problem is a lack of senatorial willingness to cooperate with her.[319]
Meanwhile, on Wednesday, Nov. 4, 2009, Senators John Kerry (D-Mass), Lindsey Graham (R-S.C.) and Joe Lieberman (I-CT) announced that they were working with the Senate to produce a compromise bill that could conceivably get 60 votes in the Senate. [320] On Mar. 17, 2010, the senators discussed an 8-page outline of their proposal with industry leaders and some of the details were leaked; it was projected that a full outline would be released Tuesday, Mar. 23d. Although it was not, the three announced that they will soon begin discussions with a larger group of Senate colleagues. Points rumored to be in the bill: preemption of EPA regulation of GHGs from stationary sources under the CAA; it would match H.R. 2454's 17% cut in emissions by 2020 from 2005 levels [321]; it would exempt plants that emit 25,000 tons of GHG per year or less from participation in the program. Senator Kerry insisted that their bill will have both climate and energy provisions; it will not be limited to energy. They hope it will pass the Senate in 2010, although that seems unlikely given the recent battle over health care legislation and the upcoming midterm elections. [322]
On Friday, Mar. 19, 2010, after the health care legislation was passed, Sen. Tom Udall and 21 other Senate Democrats sent a letter to Harry Reid expressing support for passing climate and energy legislation this year. [323]
After attending a briefing on the new bill Mar. 26-29th, energy efficiency experts were concerned that it would not contain provisions providing emissions allowances to states to fund energy efficiency or renewable energy programs. On April 1st it was announced that Kerry, Graham, and Lieberman were aiming to unveil the bill during the week celebrating the 40th anniversary of Earth Day on April 22. [324]
Seven state attorneys general wrote a letter April 5, 2010, to Senators Graham, Kerry and Lieberman, urging them to avoid preempting state, local or regional programs to control GHG emissions, such as RGGI (see infra § 4.6.), in their new climate and energy bill. The senators have hinted that their bill might preempt EPA from regulating new or modified stationary sources; it might also preempt independent state and regional efforts, which have been permitted under federal environmental laws as long as they are at least as stringent as federal standards. [325] On April 21, 2010, Senator Voinovich (R-Ohio) said he would only support their bill if it included his amendment preempting EPA or any other federal agency, as well as any state or local government, from regulating GHG emissions through programs or laws independent of a federal climate change program; it would give the DOT exclusive authority for regulating GHG from mobile sources, despite the joint EPA/NHTSA rule finalized April 1st (see infra § 4.4.2.2.1.). States were opposed to preemption, and at least one Senator believed that coal states supported it. [326]
On April 20th, the release date of the Graham, Kerry and Lieberman bill was estimated to be Monday, April 26th. Then on Saturday, April 24th, Senator Graham announced in an angry letter [327] to the other two senators that he was withdrawing his support for the bill, as democrats had decided to take up immigration reform before the energy/climate bill and he didn’t feel that Congress could deal with both issues at once. [328] This was in reaction to Arizona’s enactment of a stringent anti-immigration bill the previous week, which spurred the apparent action by Senate Majority Leader Harry Reid. (“Apparent” because, as of April 26, 2010, he had not stated that immigration would take precedence, and indeed has expressed his commitment to addressing climate, energy, and immigration in this session; in fact, on April 27th, Reid stated that as the climate bill is further along in the legislative process, it would take precedence over immigration reform. [329]) Graham’s decision means the bill is indefinitely postponed; furthermore, his withdrawal of support may mean endorsement by other Republican senators and Senate passages once it is introduced are both in doubt. [330] On the 26th, Senator Graham said he will not reconsider his decision; aides to Lieberman and Kerry stated that they will proceed with or without him. One possibility would be to submit the draft bill to EPA for cost analysis (a process that could take 5-6 weeks) before introducing it sometime in June; a description of the draft bill (not the actual text) was given to EPA on the 28th. [331] Senator Kerry stated that he viewed Graham’s defection as only a “temporary setback.” On April 28th, over a hundred businesses, including wind and solar energy companies, encouraged the Senate to forge ahead with a climate bill. [332] One commentator felt that the lack of U.S. climate legislation could doom the chances of an international deal this year on a successor to the Kyoto Protocol. [333]
Earlier, on Friday, April 23, 2010, House Speaker Nancy Pelosi said that she believed there was enough time this year for Congressional action on immigration, climate and energy, as well as financial reform, and Sen. Barbara Boxer agreed. [334]
On April 27th, 31 environmental groups including Defenders of Wildlife, Environment America, and the National Wildlife Federation sent a letter to senators encouraging bipartisan support of the legislation, and on April 28th a group of 175 clean energy companies (joining the businesses mentioned above) wrote a letter to Harry Reid, encouraging him to move forward with the bill. [335]
Finally, on May 12, 2010, a “discussion draft” of the Kerry/Lieberman “American Power Act” was unveiled, promising generous free GHG emissions allowances to industry until 2016 and to manufacturers until 2026, as well as preemption of state and EPA GHG regulation.[336] It also, in reaction to the Deepwater Horizon disaster at the end of April, see infra § 4.4.4.2., offered states the option to veto offshore drilling projects within 75 miles of their shorelines, if they could cause environmental damage.[337]
In July 2010 it appeared possible that a bill would be brought to the Senate by Democrats before the end of the month, thus before the August recess and the November elections, despite their not having enough votes to pass it and (as of the 21st) apparently not even having a viable draft bill. However, Senator Reid believes the bill will have an oil spill response title; a clean-energy and job-creation title; a tax package from the Senate Finance Committee; and a section that deals with GHG emissions from the electric utility industry, which primarily burns coal and generates the majority of U.S. carbon emissions. (David Roberts, Is a ‘utility-only’ cap-and-trade bill worth passing?, GRIST, June 21, 2010; Jonathan Hiskes, Against odds, Democrats will bring climate bill to Senate floor, GRIST, July 14, 2010.)
(Graph from the U.S. Energy Information Administration, via GRIST, supra)
On Thursday, July 22, 2010, Senator Reid announced that there would in fact not be a climate bill this session. Instead there would be a measure focused on the Gulf oil disaster (see infra § 4.4.4.1.1.) to ensure, among other things, that BP pays for cleanup, and tightening energy standards. Carol Browner, director of the White House Office of Energy and Climate Change Policy, said “everyone was disappointed.” (Carl Hulse & David M. Herszenhorn, Democrats Call Off Climate Bill Effort, N.Y. Times, July 22, 2010; Jonathan Hiskes, The climate bill’s dead. Really dead, GRIST, July 22, 2010.)
The World Resources Institute released a new report the next day (Nicholas Bianco & Franz Litz, with Madeline Gottlieb & Thomas Damassa, Reducing Greenhouse Gas Emissions in the United States Using Existing Federal Authorities and State Action (July 2010)), on what states and localities can do in lieu of congressional action. (Jonathan Hiskes, State and EPA climate action become key as Senate gives up, GRIST, July 23, 2010.)
See Ryan Lizza, The Political Scene: As the World Burns: How the Senate and the White House missed their best chance to deal with climate change, The New Yorker, Oct. 11, 2010, for the inside scoop on the Kerry, Graham, and Lieberman climate change bill and its intersection with the Deepwater Horizon oil spill in April 2010, infra.
However, Assistant EPA Administrator Gina McCarthy said on Oct. 11, 2010, at a panel discussion at Columbia University, that she believes Congress will eventually pass a climate bill; she noted the difficulties in a democracy of reaching a consensus, especially during difficult economic times. In the meantime, another participant noted that climate action plans have been adopted by 38 states so far, and 41 states, 10 Canadian provinces, six Mexican provinces, and four native sovereign nations participate in a voluntary Climate Registry for emissions measurement and reporting. Additionally, 3 regional GHG emissions trading programs—in the Northeast, Midwest, and West—have 33 state participants or observers. (John Herzfeld, Legislation: Eventual Passage of Climate Change Bill Still Seen as Possible, EPA Official Says, WCCR, Oct. 12, 2010.)
4.4.1.3. Congress as a whole: Chancellor Angela Merkel spoke to a joint session of Congress on Nov. 3, 2009, the first German chancellor to do so since Konrad Adenauer in 1957, to mark the 20th anniversary of the fall of the Berlin wall. She received many standing ovations, except when she spoke in favor of a climate change agreement in Copenhagen, and then many Republicans remained seated. [338]
4.4.2. GHG regulations: EPA & Mass. v. EPA
4.4.2.1. California waiver of federal preemption: On Wednesday, July 8, 2009, the EPA issued a decision “withdraw[ing] and replac[ing] the EPA’s prior denial of the CARB’s Dec. 21, 2005 waver request, which was published in the Federal Register on Mar. 6, 2008.” The denial was published at 73 Fed. Reg. 12156-12169 (2008) and discussed infra, under Mass. v. EPA. The 91-page notice granting CARB’s waiver request, was entitled California State Motor Vehicle Pollution Control Standards; Notice of Decision Granting a Waiver of Clean Air Act Preemption for California’s 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles, and published at 74 Fed. Reg. 32744 on July 8, 2009.
4.4.2.2. Regulatory “end run” around Congress:
EPA’s Endangerment Finding: Under Mass. v. EPA, see infra § 4.6., EPA is required to determine whether emissions from cars and trucks endanger public health and welfare; an endangerment finding would require the agency to regulate those emissions.
On April 24, 2009, EPA proposed a finding that GHG emissions endanger public health and welfare, and that emissions from cars and light trucks cause or contribute to the endangerment, entitled Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act; the Agency reported receiving over 300,000 comments on the proposal.[339]
On Nov. 9, 2009, EPA sent a draft endangerment finding to the White House OMB, which had 90 days to review it; it must be finalized before the agency can issue the final emissions standards that were proposed in September 2009, see infra. [340] An endangerment finding would be the legal basis for proposed regulation of car and light truck GHG emissions as well as emissions from new and modified stationary sources, see infra. [341]
Despite the “Climategate” controversy, see infra § 4.4.2.3., the endangerment finding was released on Dec. 7, 2009, at a news conference, the day COP-15 opened in Copenhagen, which enabled the president to show UN delegates there that the U.S. is finally moving aggressively to curb emissions. [342] The finding was published on Dec. 15, 2009, at 74 Fed. Reg. 66,496, with a Feb. 16th deadline for filing lawsuits challenging it (see infra § 4.4.2.5.). EPA took final action on GHG emissions from cars and light trucks on April 1, 2010, see infra. [343]
4.4.2.2.1. Mobile Sources: On May 19, 2009, President Obama announced a new National Fuel Efficiency Policy intended to increase fuel economy and reduce GHG emissions for all new cars and trucks sold in the U.S. The policy “represents an unprecedented collaboration between the Department of Transportation (DOT), the Environmental Protection Agency (EPA), the world’s largest auto manufacturers, the United Auto Workers, leaders in the environmental community, the State of California, and other state governments.” EPA Administrator Jackson said: “A supposedly ‘unsolvable’ problem was solved by unprecedented partnerships.” [344]
California “has agreed to defer to the proposed national standard through model year 2016. The 2016 endpoint of the two standards,” California’s and the new federal standard, “are essentially the same, although the national standard is using an attribute-based approach (consistent with the new CAFE), while California’s standard used the older approach of vehicle type. The national program ramps up slightly more slowly than the California program envisioned, but does get to the same fleet average endpoint. The national program also results in a greater total amount of greenhouse gas reductions than what a California program would have delivered, even with the 14 states who they said they would join the California program, according to the official.” [345] President Obama also said in his remarks: “I want to applaud California and Governor Schwarzenegger and the entire California delegation for their extraordinary leadership. They have led the way on this, as they have in so many other efforts to protect the environment.”
A direct result of this policy was a notice of intent to conduct a joint rulemaking,[346] jointly announced by DOT Secretary Ray LaHood and EPA Administrator Lisa P. Jackson; the details were elaborated on in September,[347] and the Proposed Rulemaking To Establish Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards was published on Sept. 28, 2009.[348] This rule (expected to be finalized March 31, 2010[349] (see infra)) would be the first federal limitation on global warming pollution. It would cover model years 2012 through 2016 and would, in the words of Secretary LaHood, “[b]ring about a new era in automotive history.” Administrator Jackson stated, “[t]hrough that partnership [with American automakers], we’ve taken the historic step of proposing the nation’s first ever greenhouse gas emissions standards for vehicles, and moved substantially closer to an efficient, clean energy future.”[350] Senate Foreign Relations Chairman John Kerry approved the message the administration was sending to the international community slightly over 2 months before COP-15 in Copenhagen, where U.S. leadership will be critical in drafting a successor protocol to Kyoto.
On Oct. 30, 2009, EPA promulgated the Mandatory Reporting of Greenhouse Gases rule (74 Fed. Reg. 56,260; 40 C.F.R. Subpart 98), which required 31 industry sectors, covering 85% of total U.S. GHG emissions, to track and report their emissions to inform future policy decisions. Under the rule, suppliers of fossil fuels or industrial GHGs, manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of GHG emissions are required to submit annual reports to EPA. It is first such rule in the U.S. and had an effective date of Dec. 29, 2009.
· The rule was promulgated under the fiscal year 2008 omnibus appropriations bill, Pub. L. No. 110-161, approved by Congress in Dec. 2007, which amended the CAA to establish a GHG reporting program at EPA.
· The rule was challenged before the end of 2009 by the American Chemistry Council (American Chemistry Council v. EPA, D.C. Cir., No. 09-1325) and other groups (the Energy Recovery Council (No. 09-1326), the American Petroleum Institute and National Petroleum Refiners Association (No. 09-1328), the Fertilizer Institute (No. 09-1329), the American Public Gas Association (No. 09-1331), and Utility Air Regulatory Group (No. 09-1333)). The cases were consolidated, and EPA reached an agreement in July 2010 that was published in the Federal Register: Notice of Proposed Settlement Agreements; Request for Public Comment, 75 Fed. Reg. 42085 (July 20, 2010). Comments will be accepted until Aug. 19th. Two lawsuits filed Dec. 29, 2010, were not included in the settlement: Environmental Defense Fund v. EPA, D.C. Cir., No. 09-1334, and Kinder Morgan CO2 Co. LP, v. EPA, D.C. Cir., No. 09-1332. (Steven D. Cook, Climate Change: Settlement Announced in Industry Litigation Against Greenhouse Gas Reporting Rule, 137 BNA Daily Environment Report A-10 (July 20, 2010))
· On Mar. 22, 2010, amendments were proposed to the rule to collect data from the oil and natural gas sector, industries that emit fluorinated gases, and from facilities that inject and store carbon dioxide (CO2) underground for the purposes of geologic sequestration or enhanced oil and gas recovery. EPA also proposes that all facilities in the reporting program provide details of their corporate ownership. Public hearings took place in April 2010.
Despite the flurry of proposed regulations, the administration would prefer that Congress pass legislation to limit GHG emissions in lieu of a regulatory approach, but the president has encouraged EPA to move forward with regulations to hopefully goad Congress into acting and to offer as an indication of the U.S.’s sincerity at the Copenhagen COP-15 conference in December. [351]
On Wednesday, Dec. 9, 2009, EPA Administrator Lisa Jackson spoke in Copenhagen, describing the endangerment finding as offering a dual path, complimentary to legislation, to cutting GHG emissions as: "… not an either/or moment. This is a “both/and” moment." [352]
In her response to the Feb. 19, 2010, Rockefeller Letter, see infra, on Feb. 22, 2010, Administrator Jackson wrote:
“You asked in your letter what the result would be if Senator Lisa Murkowski’s resolution of disapproval [see infra] ... were enacted. One result would be to prevent EPA from issuing its greenhouse gas standard for light-duty vehicles, because the endangerment finding is a legal prerequisite of that standard. The impacts of that result would be significant. In particular, it would undo an historic agreement among states, automakers, the federal government, and other stakeholders. California and at least thirteen other states that have adopted California’s emissions standards likely would enforce those standards within their jurisdictions, leaving the automobile industry without the explicit nationwide uniformity that it has described as important to its business.” [footnotes omitted]
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The historic joint final rule establishing light-duty vehicle GHG emission standards and corporate average fuel economy standards was announced on April 1, 2010, by EPA, acting under the Clean Air Act, and the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA), regulating Corporate Average Fuel Economy (CAFE) standards under the Energy Policy and Conservation Act. (See EPA’s Regulatory Impact Analysis.) The official version was not published until May 7th, at 75 Fed. Reg. 25324–25728. Starting with 2012 model year vehicles, the rule requires automakers to improve fleet-wide fuel economy and reduce fleet-wide GHG emissions by approximately five percent every year. By 2016, new cars will have to get an average of 35.5 miles per gallon, from 26 mpg today, and will emit no more than 250 grams per mile of CO2. The rule will add about $1000-$1300 to the cost of a new car, but petrol savings are expected to more than cancel out those projected costs [353]: the rules could potentially save the average buyer of a 2016 model year car $3,000 over the life of the vehicle. Nationally, it will conserve about 1.8 billion barrels of oil, and reduce nearly a billion tons of GHG emissions over the lives of the vehicles covered. EPA Administrator Lisa Jackson described the final rule as “a win-win program for our economy and our environment,” [354] and stressed, again, that there would be no regulation of stationary sources this year [355]; as the new auto emission standards will not formally “take effect” until the 2012 model year begins (that is, no earlier than Jan. 2, 2011), the introduction of power plant regulations will be delayed until early 2011. [356] The rule moves up the goals of a 2007 energy law requiring a 35 mpg standard after 2020. [357] (Discussed supra, under Energy & CAFE standards in the 110th Congress; & infra, § 4.6 Other States’ Actions to Reduce GHG Emissions, Mass. v. EPA.)
In a speech at Andrews Air Force Base on Mar. 31, 2010, President Obama said: “[J]ust a few months after taking office, I also gathered the leaders of the world’s largest automakers, the heads of labor unions, environmental advocates, and public officials from California and across the country to reach a historic agreement to raise fuel economy standards in cars and trucks. And tomorrow [April 1, 2010], after decades in which we have done little to increase auto efficiency, those new standards will be finalized, which will reduce our dependence on oil while helping folks spend a little less at the pump.” [358]
U.S. EPA Administrator Lisa P. Jackson and Transportation Secretary Ray LaHood held a press conference call Thursday April 1, 2010, at 12:00 p.m. to discuss the administration’s historic “clean cars” rule. Unfortunately, the conference call was available to credentialed media only.
This author is of the opinion that the truly historic and unprecedented coalition formed among federal agencies, California and the 14 other states that had already signed onto California’s emissions standard, auto manufacturers, ENGOs, unions and others, was not acknowledged or appreciated by the media to the extent it deserves. This was a huge achievement of the Obama Administration, at the very least on par with health care reform.
A coalition of industry groups (which has already challenged EPA’s endangerment finding and GHG rules, see infra § 4.4.2.2.2.) challenged the light-duty vehicle GHG & CAFE standards in Coalition for Responsible Regulation v. EPA, D.C. Cir., No. 10-1092, filed on May 7th. (Steven D. Cook, Climate Change: Industry Coalition Challenges EPA Rule Limiting Vehicle Greenhouse Gas Emissions, 90 BNA Daily Environment Report A-1, May 12, 2010.) Southeastern Legal Foundation v. EPA, D.C. Cir., No. 10-1094, filed May 11, 2010, joined this case, and on May 17, 2010, 14 House Republicans also joined the suit. The executive director of the SLF told BNA that the rules they challenged in their interrelated lawsuits are based upon science about which “strong doubts have been raised.” (Steven D. Cook, Litigation: House Republicans Join Lawsuit to Overturn Greenhouse Gas, Fuel Economy Standards, WCCR (May 17, 2010); see infra § 4.4.2.3. “Climategate”).
These appear to be huge litigations; see infra, 4.4.2.2.2. Stationary Sources. Petitions, motions and filings are on Lexis, Westlaw and Pacer in Feb. 2011.
On May 21, 2010, President Obama instructed the NHTSA and EPA to begin developing first-ever standards for fuel economy and greenhouse gas emissions from medium- and heavy-duty trucks for model years 2014-2018, as well as new standards for cars and light trucks for model years 2017-2025, as the current standards recently promulgated, see supra, expire in 2016. (Memorandum of May 21, 2010, Improving Energy Security, American Competitiveness and Job Creation, and Environmental Protection Through a Transformation of Our Nation’s Fleet of Cars And Trucks, 75 Fed. Reg. 29399 (May 26, 2010); Steven D. Cook, Climate Change: Obama Orders EPA, Transportation Agency To Set Fuel, Emissions Rules for Trucks, Cars, 98 Daily Environment Report A-4 (May 24, 2010); Notice of intent to conduct a joint rulemaking, 2017 and Later Model Year Light Duty Vehicle GHG Emissions and CAFE Standards, 49 CFR Parts 531 and 533, RIN 2127–AK79, 75 Fed. Reg. 62739-62750 (Oct. 13, 2010)). See infra, Canada.
As instructed, EPA and the NHTSA signed a notice of intent (see Notice of Upcoming Joint Rulemaking to Establish 2017 and Later Model Year Light Duty Vehicle GHG Emissions and CAFE Standards) on Sept. 30, 2010, “to propose stringent federal greenhouse gas and fuel economy standards” for model years 2017-2025. (Standards are currently set through 2016, with cars and light trucks scheduled to achieve 35.5 mpg and an emissions limit of 250 grams per mile of carbon emissions. See supra.) A 3% emissions cut would give a 47 mpg fuel standard; a 6% annual cut in emissions would result in a standard of 62 mpg. The increased cost of automobile production would be more than offset by fuel savings. The agencies plan to issue a proposed rule setting new fuel economy standards and emissions limits by Sept. 30, 2011, and a final rule by July 31, 2012. (Steven D. Cook, Breaking News: Administration Opens Door for Standards As High as 62 Miles Per Gallon in 2025, BNA Daily Environment Report (Oct. 1, 2010))
Also as instructed in May 2010, on Oct. 25, 2010, EPA and NHTSA proposed rules that would require medium- & heavy-duty trucks and buses to reduce GHG emissions and get up to 20% better gas mileage for the 2014-2018 model years. This will be the first time that trucks and buses, which are responsible for 20% of transportation fuel usage, have had any fuel or emissions standards at all; typically they get a truly abysmal 6-7 mpg. According to the EPA: “This comprehensive national program is projected to reduce GHG emissions by about 250 million metric tons and save 500 million barrels of oil over the lives of the vehicles produced within the program’s first five years.” Secretary LaHood pointed out that shrinking fuel costs benefit not only the environment but also small business owners and consumers. Manufacturers are not upset, but environmentalists were hoping for tougher standards. (Ted Robbins, Government Proposes Better Gas Mileage For Trucks, NPR’s Morning Edition, Oct. 25, 2010; Press Release, DOT, EPA Propose the Nation’s First Greenhouse Gas and Fuel Efficiency Standards for Trucks and Buses: A win for the environment, economy and energy efficiency, Oct. 25, 2010; Darren Goode, Trucking industry gives initial praise to proposed carbon, efficiency controls, The Hill, Oct. 25, 2010.) The proposed rule, Greenhouse Gas Emissions Standards and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles, was published at 75 Fed. Reg. 74152 on Nov. 30, 2010; comments were accepted for 60 days, until Jan. 31, 2011. As part of the regulatory process, NHTSA has proposed a draft Environmental Impact Statement (EIS) for its proposed fuel efficiency standards, comparing them with other regulatory alternatives. Comments can be submitted on the draft EIS until Jan. 3, 2011.
Transportation industry, state, and environmental groups (including Ford Motor Co.) submitted mostly positive comments on the medium- & heavy-duty truck GHG & mileage rules; energy industry groups opposed the mobile source rules primarily because they will trigger GHG emissions standards for new and modified stationary sources under the CAA’s PSD program. (Steven D. Cook, Climate Change: Comments Mostly Positive on Truck Proposal Except Those by EPA Regulation Opponents, 24 BNA Daily Environment Report A-9, Feb. 4, 2011; Dean Scott, Climate Change: Industries Target EPA Regulatory Authority Over Power Plant Emissions, Other Sources, WCCR, April 5, 2010.)
In Jan. 2011, EPA announced that EPA, DOT, and CARB would work together to promulgate standards for cars and light-duty trucks for model years 2017-2025 by Sept. 1, 2011, signifying continuing collaboration and a dedication to providing car manufacturers with the regulatory certainty they need. (News Release, EPA, DOT and California Align Timeframe for Proposing Standards for Next Generation of Clean Cars, EPA, Jan. 24, 2011.)
4.4.2.2.2. Stationary Sources: On Oct. 27, 2009, EPA proposed a “tailoring rule” to limit prevention-of-significant-deterioration provisions to sources that emit more than 25,000 tons per year of carbon dioxide or other GHGs for 5 years, which would limit the number of sources potentially subject to the regulation, entitled: Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 74 Fed. Reg. 55292. However, states complained that many more sources would be covered by PSD under the 25,000 ton rule than previously thought, and in March 2010, Administrator Jackson offered to raise the threshold to 75,000 tons for the first 2 years. Also, for the first 6 months of 2011 it will only apply to sources that are already subject to criteria air pollutant standards for other pollutants. In the second half of 2011, however, PSD would apply to all sources (about 1700) that emit over 75,000 tons.[359]
On Mar. 25, 2010, EPA announced that the tailoring rule will not be finalized by the Mar. 31, 2010, deadline originally set by the agency,[360] but on April 7th EPA announced that it was expected to be finalized by the end of April.[361] On April 22, 2010, a final version of the tailoring rule was sent to the OMB, typically the last step before a significant agency action.[362]
The final PSD & Title V Greenhouse Gas Tailoring Rule was announced on May 13, 2010, limiting (for the first 6 months of 2011), as promised, PSD requirements to sources that are already subject to them for other pollutants. The final rule was published on June 3, 2010, at 75 Fed. Reg. 31514, triggering a 60-day period for opponents to file legal challenges in the D.C. Circuit Court of Appeals. (Steven D. Cook, Emissions Reduction: Publication of Greenhouse Gas Tailoring Rule Launches 60-Day Period for Legal Challenges, WCCR, June 2, 2010.) Starting in July 2011, the rule will apply to new sources that emit over 100,000 tons of C02/year, and to modified sources emitting over 75,000 tons/year. The PSD provisions in the CAA require new and modified sources of air pollution to use the best available control technology (BACT).[363] A summary of the permitting burdens with and without the tailoring rule is available on EPA’s web site. A timeline of permitting steps, see infra, is also available on the EPA web page.
Vis-à-vis the 60-day opportunity to file challenges, on June 3d, the Southeastern Legal foundation (in its 4th challenge thus far in 2010 to EPA regulation of GHG under the CAA), 14 House Republicans, and 15 Georgia businesses and organizations challenged the tailoring rule and EPA’s ability under the CAA to exempt smaller sources from PSD emissions requirements. (Southeastern Legal Foundation v. EPA, D.C. Cir., No. 10-1131 (June 3, 2010); Steven D. Cook, EPA: EPA Sued Over Greenhouse Tailoring Rule Limiting Scope of Emissions Controls, WCCR, June 3, 2010.)
On Monday, Mar. 29, 2010, EPA issued a final rule entitled Reconsideration of Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs, published at 75 Fed. Reg. 17004 (April 2, 2010) in which Administrator Jackson announced formally what she had suggested in her Feb. 22d letter, supra, that large new or modified stationary GHG sources would not be required to obtain federal pollution permits before Jan. 2, 2011.[364]
On April 2, 2010, the regulation (which postponed regulation of stationary sources to give industry more time to comply and which may apply only to sources emitting over 25,000 or more tons per year, when the tailoring rule is finalized, see supra) was challenged in the D.C. Circuit by mining and agricultural groups in Coalition for Responsible Regulation v. EPA, D.C. Cir., No. 10-1073. The petition for review questions EPA’s right to regulate GHG emissions from stationary sources under Mass. v. EPA and the CAA. (Dean Scott, Climate Change: Industries Target EPA Regulatory Authority Over Power Plant Emissions, Other Sources, 64 BNA Daily Environment Report A-6, April 6, 2010.) The lawsuit was subsequently joined by another group, in Southeastern Legal Foundation v. EPA, D.C. Cir., No. 10-1083, filed April 15, 2010. (Steven D. Cook, Climate Change: Industry Coalition Challenges EPA Rule Limiting Vehicle Greenhouse Gas Emissions, 90 BNA DAILY ENVIRONMENT REPORT A-1, May 12, 2010; Steven D. Cook, Litigation: House Republicans Join Lawsuit to Overturn Greenhouse Gas, Fuel Economy Standards, WCCR (May 17, 2010)).
In contrast to the 13 lawsuits filed by industry groups challenging the April rule and EPA’s right to regulate GHG emissions under the CAA, see infra § 4.4.2.5., the Center for Biological Diversity filed a lawsuit, Center for Biological Diversity v. EPA, D.C. Cir., No. 10-1115, on May 28, 2010, to prevent EPA from delaying the regulation of stationary sources past Jan. 2, 2011. (Steven D. Cook, Climate Change: Environmental Group Sues EPA to Prevent Delays in Greenhouse Gas Emissions Limits, 104 BNA Daily Environment Report A-5 (June 2, 2010.))
After the worst mine disaster in 40 years at the Upper Big Branch mine in West Virginia killed 29 miners in early April 2010 (Ian Urbina, No Survivors Found After West Virginia Mine Disaster, N.Y. Times, April 9, 2010), coal mining executives testified at a hearing entitled The Role of Coal in a New Energy Age before the House Select Committee on Energy Independence and Global Warming on April 14th. Chairman Edward Markey (D-Mass.) urged industry representatives to end both their resistance to EPA regulation of GHG emissions from stationary sources and their challenges to climate science, but the leaders still maintained that EPA’s efforts constituted a “war on coal.”[365]
EPA proposed a confidential business information rule on July 7, 2010, at 75 Fed. Reg. 39,094, that said it would release all nonconfidential emissions information to the public but would protect confidential business information. On Jan. 21, 2011, the agency sent the nearl
