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. 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 March 2007

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                                                                                              NASA Visible Earth

 

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. The United States

4.1. The Clinton Administration, 1993-2001

4.1.1. The Former Clinton Administration: Subsequent Developments

4.2. The Bush Administration & Climate Change, 2001-200 8

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 A gainst GHG R egulation in the 112 th 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 Suits vs. 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. The European Union

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

6. The Rest of the World

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

Bibliography

 

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 own 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.

 

2. Background on the U.N. Framework Convention on Climate Change (UNFCCC )

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 4 th to 14 th , 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 50 th 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, 15 th 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 final report (U.S. EPA #430-R-11-005) was issued in April 2011 and showed a 6.1% decrease in emissions during 2009, although total emissions grew by more than 7.3% from 1990 to 2009, attributed to a decrease in fuel and electricity usage across all economic sectors; 2009 emissions represent the lowest total U.S. annual GHG emissions since 1995. (Leora Falk, Monitoring: U.S. Emissions Dropped 6.1 Percent in 2009 But Remain Above 1990 Levels, EPA Says , 42 BNA Environment Reporter 853 (April 22, 2011)).

 

Reference: Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2006 , USEPA #430-R-08-005

 

The UNFCCC also established two subsidiary bodies :

  • The Subsidiary Body for Scientific and Technological Advice (SBSTA), which gives the COP timely advice on scientific, technological and methodological matters relating to climate change and its effects; established by UNFCCC art. 9.
  • The Subsidiary Body for Implementation (SBI), which gives advice to the COP on implementation of the Convention; established by UNFCCC art. 10.

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.

 

3. Kyoto Protocol: adopted at COP-3

3.1. Overview

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: Both the UNFCCC and the Kyoto Protocol are served by the Climate Change Secretariat . The mandate of the Secretariat is laid out in Article 8 of the Convention. Its main functions are:

  • To make arrangements for sessions of the various Convention and Protocol bodies;
  • To monitor implementation of commitments made by the Parties under these agreements;
  • To assist the implementation of  those commitments;
  • To maintain registries of Parties’ emissions that are traded under emissions trading schemes; and
  • To coordinate with the secretariats of other relevant international bodies and conventions.

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]

3.2. The Marrakesh Accords

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.

 

3.2.1. Kyoto’s “Flexibility” Mechanisms

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]

 

3.2.2. Land-Use, Land-Use Change and Forestry

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.

3.3. COP-12

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 14 th . 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 31 st to April 4 th , 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 16 th , 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 7-9 th Group of Eight summit. [48]

3.5. COP-14

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. COP-15

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 6 th 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. 4 th . [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. 23 rd 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]

 

11-24-2009 2-50-24 PM 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. 9 th 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. 4 th , 2009, the White House announced that the president will attend COP-15 on Dec. 18 th , 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] )

 

3.6.3. Post-COP-15

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 1 st ; 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 15 th 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 9 th , and the Ad-hoc Working Groups on the Kyoto Protocol and on Long-term Cooperative Action from June 1 to the 11 th . 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. 29 th to Dec. 10 th , 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. 9 th . 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 was held in Nov. 2011, in Durban, South Africa. It concluded on December 11 th with a tentative agreement to work toward a new treaty that treats all countries equally, once Kyoto expires. China and India remain adamantly opposed, claiming a legally binding treaty that did so would stifle their economic growth. (John M. Broder, U.N. Climate Talks End With Deal for New Emissions Treaty , N.Y. Times , Dec. 11, 2011.) The participants agreed to adopt a “universal legal agreement” on climate change no later than 2015. A new group, the Ad Hoc Working Group on the Durban Platform for Enhanced Action, was created to work on the agreement. Also, a second commitment period under the Kyoto Protocol will begin January 1, 2013. ( PRESS RELEASE: Durban conference delivers breakthrough in international community ’s response to climate change , Dec. 11, 2011.)

 

3.9. Finding Relevant Documents

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.

 

4. The United States

4.1. The Clinton Administration (1993-2001)

 

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]

 

4.1.1. The Former Clinton Administration: Subsequent Developments

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. 20 th -23 rd , 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]

4.2. The Bush Administration & Climate Change (2001-2006)

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 109 th Congress, which ended in December 2006. Several died in Senator Inhofe’s committee, including the following:

 

  • S. 342 , the Climate Stewardship Act of 2005: A subsequent incarnation of S. 139, the Climate Stewardship Act of 2003 (introduced by McCain and cosponsored by Lieberman, it was the first major climate bill in the Senate), S. 342 provided for a program of scientific research on abrupt climate change, to accelerate the reduction of greenhouse gas emissions in the United States by establishing a market-driven system of greenhouse gas tradable allowances, to limit greenhouse gas emissions in the United States and reduce dependence upon foreign oil, and ensure benefits to consumers from the trading in such allowances.

 

  • S. 1151 , the Climate Stewardship and Innovation Act of 2005, also known as the ‘McCain-Lieberman’ bill: S. 1151 provided for a program to accelerate the reduction of greenhouse gas emissions in the United States by establishing a market-driven system of greenhouse gas tradable allowances, to limit greenhouse gas emissions in the United States and reduce dependence upon foreign oil, to support the deployment of new climate change-related technologies, and ensure benefits to consumers.

However, Senator McCain (R - Ariz.) said on Nov. 16, 2006, that he and Senator Lieberman (ID - Conn.) would reintroduce a bill in the 110 th 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]

 

  • S. 3698 , the Global Warming Pollution Reduction Act: A bill to amend the Clean Air Act to reduce emissions of carbon dioxide, and for other purposes.

 

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 109 th 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 .

 

4.2.1. Asia-Pacific Partnership on Clean Development & Climate

T he 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).

4.2.3. Post-Midterm Elections, 2006-2008

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 109 th 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 9 th , 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 4 th , 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 110 th 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 110 th 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 110 th 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 16 th , 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 18 th . [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 11 th , 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 4 th . [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 110 th 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 110 th Congress , it includes legislation introduced as of November 16 th .

 

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 110 th 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. 7 th , 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]

4.2.4. Political Interference with Climate Research & Other Sciences

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:

 

  • In late January 2007, just as the IPCC was preparing to release the Fourth Assessment Report, see infra, the Union of Concerned Scientists and the Government Accountability Project released a 92-page report based on a 2006 survey UCS made of over 1600 federal climate scientists (with 308 respondents), over 40 interviews GAP held with climate scientists and agency officials, and various FOIA documents. Entitled Atmosphere of Pressure: Political Interference in Federal Climate Science ,  the report asserts, e.g., that nearly half of all respondents (46%) were aware of or had personally experienced government pressure to eliminate the words “climate change,” “global warming” or similar terms from their communications; 25% were aware of or personally experienced scientists resigning from or removing themselves from a project because of pressure to change the results of their research; and 58% had personally experienced one or more of such incidents within the last 5 years, for a total of at least 435 incidents of political interference. [209]

 

 

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. 30 th 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. 30 th , 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]

 

  • Among the complaints against the Bush administration appointee to lead the World Bank, Paul Wolfowitz, is that he “watered down” or removed references to climate change in an important environmental strategy paper presented to the bank’s shareholder governments in September 2006, in an effort to promote the administration’s policy on climate, which contradicted bank policy. [214]

 

  • The Smithsonian Institution was accused of underemphasizing the effects of climate change on the Arctic in a 2006 exhibit entitled " Arctic: A Friend Acting Strangely " by rewriting the script in a way that made climate change science appear uncertain and by deleting scientific interpretations of some research.  A former administrator did not claim that the Bush administration influenced the Institute, but believed that it acted on its own, out of fear that the exhibit would upset Congress or the White House. [215]

 

  • On Oct. 23, 2007, the testimony of the director of the Centers for Disease Control, Julie Gerberding, before the Senate Environment and Public Works Committee on the projected health effects of climate change was altered by the White House OMB. The White House claimed her statements did not coincide with the position of the IPCC; CDC scientists were outraged. [216]

 

  • In December 2007 (during the Bali Conference), the House Oversight and Government Reform Committee issued a report entitled Political Interference with Climate Change Science Under the Bush Administration , the result of 16 months of investigations. The committee inspected over 27,000 pages of documents from the White House Council on Environmental Quality (CEQ) and the Commerce Department, held two investigative hearings, and deposed or interviewed key officials. They concluded: “The White House exerted unusual control over the public statements of federal scientists on climate change issues. It was standard practice for media requests to speak with federal scientists on climate change matters to be sent to CEQ for White House approval. By controlling which government scientists could respond to media inquiries, the White House and agency political appointees suppressed dissemination of scientific views that could conflict with Administration policies. The White House and political appointees also edited congressional testimony regarding the science of climate change.” [at page 4.] “There was a systematic White House effort to minimize the significance of climate change by editing climate change reports. CEQ Chief of Staff Phil Cooney and other CEQ officials made at least 294 edits to the Administration’s Strategic Plan of the Climate Change Science Program to exaggerate or emphasize scientific uncertainties or to deemphasize or diminish the importance of the human role in global warming.” [217] [at page ii.] The GOP response accused Democrats of “deep animus toward the Bush administration.” [218]

 

  • In early May, 2008, it was alleged that a NOAA regulation to require ships to reduce their speed at certain times of the year to protect endangered right whales (only 350-400 remain) along the East Coast has been delayed by the White House OMB and the Office of the Vice President since February 2007. [219]

 

  • On May 19, 2008, the House Committee on Oversight and Government Reform received documents and testimony that showed that “EPA career staff unanimously supported granting California’s request for a waiver to enforce its greenhouse gas emissions standards for cars and trucks. [See infra.] EPA Administrator Stephen Johnson also supported granting the petition, at least in part, until he communicated with the White House.” [220] The last page of a 20-page memorandum entitled EPA's Denial of the California Waiver and released on the 19th, stated: “It appears that the White House played a significant role in the reversal of the EPA position. This raises questions about the basis for the White House actions. The Clean Air Act contains specific standards for considering California's petition. It would appear to be inconsistent with the President's constitutional obligation to faithfully execute the laws of the United States if the President or his advisors pressured Administrator Johnson to ignore the record before the agency for political or other inappropriate reasons.”

 

  • On May 20, 2008, the Senate Environment and Public Works Committee approved (10 to 9) the Reducing Global Warming Pollution from Vehicles Act of 2008, S. 2555 , which would require the president to approve California’s CAA waiver request (which the president apparently pressured EPA Administrator Johnson to deny); it did not pass, however. [221] The related House bill was H.R. 5560 , the Right to Clean Vehicles Act, which never emerged from the Subcommittee on Energy and Air Quality.

 

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).

 

4.2.5. Arctic Animals Endangered by Global Warming

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 9 th , 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 9 th 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 110 th 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. 7 th . [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 15 th ; in documents filed on April 17 th the Department had said it needed until June 30 th 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 the bears’ status as a threatened species. It has no co-sponsors.

 

“Polarbeargate”: A 2006 article, entitled: Observations of mortality associated with extended open-water swimming by polar bears in the Alaskan Beaufort Sea , by Charles Monnett and Jeffrey S. Gleason, 29 (8) Polar Biology 681 (July 2006), and cited by Al Gore in his 2006 book An Inconvenient Truth: The Planetary Emergency of Global Warming and What We Can Do About It (Rodale Press), became the focus of a February, 2011, investigation by the Interior Department, possibly into the lead author’s scientific misconduct, although the allegations have not been disclosed. Dr. Monnet was placed on administrative leave by his employer, BOEMRE, which is responsible for approving oil development in Alaska. (Sara Reardon, Suspended Polar Bear Researcher Defended by Advocates , ScienceInsider , July 29, 2011; Virginia Morell, Senator Inhofe Has Questions About Polar Bear Researcher Charles Monnett , ScienceInsider , Aug. 10, 2011; Kassie Siegel, Putting an Arctic Scientist on Ice , HuffingtonPost , Aug. 11, 2011; Editorial, A Polarizing Polar Bear Investigation , N.Y. Times , Aug. 12, 2011.))

 

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 3 rd 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 30 th 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 15 th . [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 7 th 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 7 th , likewise objecting at his efforts to preempt their efforts. [262] Also on June 7 th , 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 8 th , 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 25 th 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. 15 th Waxman announced that he planned to depose seven key EPA officials. [277] Also on Dec. 20 th , Senator Barbara Boxer, chair of the Senate Committee on Environment and Public Works Committee, requested documents from the EPA on the waiver by Jan. 7 th , 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. 10 th , Johnson did not appear at a field hearing about the waiver denial, and neither did any other EPA official. [278] On Jan. 11 th , 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 , 9 th 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 29 th 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.)

 

4.3. The 2008 Presidential Campaign

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 .

4.4. The Obama Administration, 2009-2012

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 44 th 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 28 th : “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 ( previous hit S next hit . previous hit 1462 next hit ) 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. 27 th , 28 th and the 29 th .

 

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. 26-29 th , 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 1 st 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 1 st (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 20 th , the release date of the Graham, Kerry and Lieberman bill was estimated to be Monday, April 26 th . Then on Saturday, April 24 th , 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 27 th , 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 26 th , 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 28 th . [331] Senator Kerry stated that he viewed Graham’s defection as only a “temporary setback.” On April 28 th , 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 27 th , 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 28 th 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 21 st ) 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. 16 th 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. 19 th . 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]

 

 

 

 

 

From EPA homepage: DOT, EPA Set Aggressive National Standards for Fuel Economy and First Ever Greenhouse Gas Emission Levels For Passenger Cars and Light Trucks

 

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 7 th , 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 110 th 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 7 th . (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.)

In July, the administration and car makers were still heavily debating what the standard should be. EPA is proposing that new cars and trucks should get as much as 56.2 m.p.g. by 2025 but industry questions whether consumers will accept having to spend only about half as much money on petrol as they do today.  Currently the U.S. has “the world’s most lenient vehicle emissions and mileage standards, lagging as much as 10 m.p.g. behind the rest of the world.” (John M. Broder, Carmakers and White House Haggling Over Mileage Rules , N.Y. Times , July 3, 2011.)

 

Quite surprisingly, and to the delight of ENGOs, carmakers acquiesced to an increase nearly that high, 54.5 m.p.g. by 2025, or a 5% annual increase in fuel economy for cars from 2017-2025. However, the improvements are more modest for SUVs and light trucks: 3.5% a year through 2021, and then a 5% increase over the next four years. (Bill Vlasic, Carmakers Back Strict New Rules for Gas Mileage , N.Y. Times , July 28, 2011; News Release, President Obama Announces Historic 54.5 mpg Fuel Efficiency Standard: Consumers will save $1.7 trillion at the pump, $8K per vehicle by 2025 , EPA, July 29, 2011; see also, Driving Efficiency: Cutting Costs for Families at the Pump and Slashing Dependence on Oil , July 29, 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 7 th 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 4 th 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 14 th . 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 non-confidential emissions information to the public but would protect confidential business information. On Jan. 21, 2011, the agency sent the nearly final rule to the OMB for review. (Steven D. Cook, Reporting: EPA Sends OMB Final Rule to Designate Public, Confidential Greenhouse Gas Data , WCCR, Jan. 24, 2011.)

 

Eighty-seven new Republican members of the House were sworn in on Jan. 5 th as the 112 th Congress convened, a few days after EPA’s official start to regulation of GHG from stationary sources on Sunday, Jan. 2, 2011. According to the N.Y. Times , Republican Representative Fred Upton, who will apparently be chairman of the House Energy and Commerce Committee, said “he was not convinced that greenhouse gases needed to be controlled or that the E.P.A. had the authority to do so,” and proposed a moratorium on all GHG regulations until the courts have settled whether it is legal for the government to do so. (John M. Broder, E.P.A. Limit on Gases to Pose Risk to Obama and Congress , N.Y. Times , Dec. 30, 2010.) (See infra § 4.4.2.4.)

 

4.4.2.3. “ Climategate ”: However, while the endangerment finding was in process in fall 2009, on Nov. 17, 2009, more than 1000 hacked emails dating back 13 years between climate scientists at the University of East Anglia’s Climatic Research Unit and their colleagues at other universities appeared on internet blogs, indicating that climate scientists were actively manipulating scientific data to fit their models. [366] Climate skeptics called for an inquiry and labeled the controversy “Climategate”; it was labeled “Swifthack” by proponents, referring to the attack on Senator Kerry in 2004. ( Walsh, Has 'Climategate' Been Overblown? , Time , Dec. 7, 2009.) Dr. Rajendra Pachauri, IPCC head, said the matter could not be ignored and will be investigated. [367] Professor Phil Jones, head of the CRU, stepped down during the inquiry.

 

This controversy affected the discussion in the U.S., as Senator Inhofe and other Republicans called on EPA Administrator Lisa Jackson to delay the proposed endangerment finding at a Dec. 2 hearing of the Environment and Public Works Committee (ostensibly about TSCA), as the emails called into question the science behind the finding. Jackson refused, saying the evidence is overwhelming.

 

At a House hearing on the administration’s view of climate science before the Select Committee on Energy Independence and Global Warming in early December 2009, Rep. Sensenbrenner (R-Wis) stated the hacked emails show “systemic suppression of dissenting opinion among scientists in the climate change community… [and] possible criminal activity….” John Holdren, of the White House Office of Science and Technology Policy, said the evidence of climate change was “overwhelming.” [368] However, a Time Magazine article stated: “In the weeks since the e-mails first became public, many climate scientists and policy experts have looked through them, and they report that the correspondence does not contradict the overwhelming scientific consensus on global warming, which has been decades in the making. ‘The content of the stolen e-mails has no impact whatsoever on our overall understanding that human activity is driving dangerous levels of global warming,’ wrote 25 leading U.S. scientists in an open letter to Congress on Dec. 4 . ‘The body of evidence that underlies our understanding of human-caused global warming remains robust.’” ( Walsh, Has 'Climategate' Been Overblown? , Time , Dec. 7, 2009.)

 

 A letter to Nature in the Jan. 7, 2010, issue, entitled Climate e-mails: man's mark is clear in thermometer record , by Hans von Storch & Myles Allen, 463 Nature 25 (Jan. 7, 2010), explains that: “The thermometer record [since 1850] [as opposed to “proxy reconstructions of temperature over the past millennium, which are based on indirect evidence such as tree rings”] shows unequivocally that Earth is warming, and provides the main evidence that this is caused by human activity. This crucial record remains unchallenged.”

 

Senator Inhofe, not to be deterred, released an 84-page report on Feb. 23, 2010, entitled: ‘Consensus' Exposed: The CRU Controversy , and a press release: Senate EPW Minority Releases Report on CRU Controversy: Shows Scientists Violated Ethics, Reveals Major Disagreements on Climate Science . Inhofe appears to be trying to find a way to criminalize the 17 key researchers involved with the IPCC Assessment Reports. The allegations came up at a full committee hearing entitled, " Hearing on the President's Proposed EPA Budget for FY 2011 ."

 

As a result of the scandal, IPCC chair Rajendra K. Pachauri announced on Feb. 27, 2010, that the IPCC would “establish an independent committee to review the procedures associated with drafting and assembling the panel's assessment reports .” [369] On March 9 th , Science reported that the InterAcademy Council , representing 15 nations’ national science academies and co-chaired by Robbert Dijkgraaf, a Dutch mathematical physicist, would appoint a panel of scientists to investigate the IPCC and the mistakes in the FAR; the report is expected to be complete by August 2010 . [370]

 

On Mar. 11, 2010, congressional leaders received a letter entitled U.S. Scientists and Economists' Call for Swift and Deep Cuts in Greenhouse Gas Emissions , signed by 2,026 U.S. climate scientists and economists (including 8 Nobel Prize winners in science or economics, 32 members of the National Academy of Sciences, 10 members of the National Academy of Engineering, 11 recipients of the MacArthur Fellowship, 3 National Medal of Science Recipients, and more than 100 members of the Intergovernmental Panel on Climate Change, which shared the 2007 Nobel Peace Prize). It stated that the science of global warming is indisputable (in response to “climategate”), and urged Congress to require immediate and deep cuts in GHG emissions. It recommended emissions cuts “‘on the order of 80 percent below 2000 levels by 2050’ and [suggested] that the first step should be reductions on the order of 15 to 20 percent below 2000 levels by 2020.” [371] EPA regulation of GHG emissions was not mentioned. However, on the same date, a Gallup poll conducted March 4-7, 2010, revealed that political conservatives are now significantly less convinced than they were 2 years ago that the effects of global warming are already taking place (30% down from 50%). [372] Views of liberals were only slightly different. On Mar. 13, 2010, federal agencies received a letter signed by 252 climate scientists , mostly from leading U.S. institutions and universities and including some IPCC scientists, discussing the comparatively few errors in the IPCC’s Fourth Assessment Report and the efforts by Congress and the media to discredit the entire report based on those errors.       

 

Members of Parliament investigating climate scientists at the UEA’s CRU found no evidence in March 2010 that climate data had been manipulated or withheld, and the reputations of its scientists remain intact. It said that in future climate science must be “transparent and irreproachable.” [373]

 

Climategate is given as one of the reasons fewer Britons (26% down from 41%) now view anthropogenic climate change as an important social issue. In the U.S., 48% of those polled, up from 41% in 2009, think the issue has been exaggerated. (Elisabeth Rosenthal, Climate Fears Turn to Doubts Among Britons , N.Y. Times , May 25, 2010.)

 

On Wednesday, July 7, 2010, a British panel led by Muir Russell and commissioned by the University of  East Anglia, exonerated scientists involved in the controversy, although it stopped short of a complete vindication; it criticized a perceived lack of openness in responses to requests for backup data. Phil Jones, see supra, was reinstated to a job similar to the one he had resigned from during the investigation of the CRU. It was the 5 th review of the controversy to come to that conclusion, and the most comprehensive. The report stated that “we did not find any evidence of behavior that might undermine the conclusions of the I.P.C.C. assessments.” (Justin Gillis, British Panel Clears Climate Scientists , N.Y. Times , July 7, 2010; Leora Falk, International Issues: Board Says U.K. Scientists Acted Properly, But University Should Be More Open About Research , WCCI, July 7, 2010.) The previous week, Michael Mann was exonerated by two reviews by Pennsylvania State University. (Justin Gillis, Climate Scientist Cleared of Altering Data , N.Y. Times , July 1, 2010; Leora Falk, Research: Penn State Panel Clears U.S. Scientist of Allegations of Climate Research Misconduct , WCCR, July 2, 2010.)

 

For additional information, see the following:

Al Gore’s op-ed in the Feb. 27, 2010, N.Y. Times, We Can’t Wish Away Climate Change , discussing Climategate and “Himalayagate” (see infra); the heavy snowfalls in the Northeastern U.S. that global warming detractors have used to further discredit climate science and scientists; and the “political paralysis that is now so painfully evident in Washington [that] has thus far prevented action by the Senate — not only on climate and energy legislation, but also on health care reform, financial regulatory reform and a host of other pressing issues.”

 

Australian author Clive Hamilton wrote several articles on “climate cyber-bullying” in February 2010: Bullying, lies and the rise of right-wing climate denial (2/22); Who is orchestrating the cyber-bullying? (2/23); and Manufacturing a scientific scandal (2/25).

 

Douglas Fischer & The Daily Climate, Cyber Bullying Intensifies as Climate Data Questioned: Researchers must purge e-mail in-boxes daily of threatening correspondence, simply part of the job of being a climate scientist (Mar. 1, 2010).  

 

4.4.2.4. Legislation intended to prevent the “end run”: Months before EPA’s endangerment finding was issued, H.R. 391 was introduced by Rep. Marsha Blackburn and 152 cosponsors on Jan. 9, 2009, to provide that GHGs are not subject to the Clean Air Act. But EPA GHG regulations were considered inevitable after the release of its endangerment finding in Dec. 2009, which was a precondition to any such EPA regulation. [374] However, with the Democrats’ loss of their filibuster-proof majority in the Senate, climate change legislation seemed increasingly unlikely in 2010, and for that matter, so does EPA regulations.

 

On Dec. 15, 2009, H. Res. 974 was introduced by Rep. Rodney Alexander urging EPA Administrator Jackson to reevaluate the endangerment finding, issued “under the pretense of the Supreme Court decision in Massachusetts v. EPA ,” as it was “unacceptable” to the House of Representatives. A bill, H.R. 4396 , was introduced the next day, Dec. 16, 2009, by Earl Pomeroy (D-N.D.), to block EPA from regulating GHG emissions by amending GHGs out of the Clean Air Act. It has 5 cosponsors. [375] Also on Dec. 16 th , H.J. Res. 66 was introduced by Rep. Jerry Moran, also disapproving the EPA endangerment finding.

 

Senator Lisa Murkowski (R-AK) said on Jan. 20, 2010, that she plans to introduce a resolution of disapproval to prevent the EPA’s regulation of GHG emissions, rather than make a floor amendment to a bill (H.J. Res. 45) to raise the federal debt limit. (Apparently it was learned that the Murkowski amendment was written in collaboration with several dirty energy lobbyists. [376] ) Under the Congressional Review Act, a resolution of disapproval can get to the Senate floor very quickly, and only requires 51 votes to pass; it would, according to an EDF email, “permanently bar the Environmental Protection Agency from requiring polluters to cut their emissions of greenhouse gases.”

According to Warming Law, since the fall of 2009 Murkowski has been “seeking collaborators in Congress to amend the Clean Air Act so that it cannot be used to tackle greenhouse gases. ... If successful, Murkowski’s efforts would effectively negate the Obama Administration’s progress over the past year toward complying with the Supreme Court’s 2007 ruling in Massachusetts v. EPA. ...” [377] On Jan. 21, 2010, the senator introduced the disapproval resolution to the Senate, ostensibly to avoid the "economic train wreck" she believes would result if EPA regulated GHG under the CAA. [378] On Feb. 23d the resolution ( S. J. Res. 26 ) had 40 co-sponsors, of whom 37 are republicans and 3 (Landrieu from Louisiana, Lincoln from Arkansas, and Nelson from Nebraska) are democrats; it was referred to the Committee on Environment and Public Works on Jan. 21 st . The resolution reads:

“Resolved by the Senate and House of Representatives …, That Congress disapproves the rule submitted by the Environmental Protection Agency relating to the endangerment finding and the cause or contribute findings for greenhouse gases under section 202(a) of the Clean Air Act (published at 74 Fed. Reg. 66496 (Dec. 15, 2009)), and such rule shall have no force or effect.”

With 41 votes including herself, Murkowski is still shy of the 51 she would need in the Senate to invoke expedited procedures for overturning unpopular federal rules under the Congressional Review Act of 1996 (as opposed to 60 needed to avoid a filibuster); but even if she got 51 she still would need the House and the President to approve the resolution, as the latter especially is highly unlikely to do. According to Republican aides she plans to petition the EPW Committee by the end of February to force the release of the resolution, which she can do with the votes she has. She is looking to bring the resolution up for a vote in mid-March, 2010, but as of March 16 th that had not yet happened. Senate newby Scott Brown (R-Mass) has not signed on. [379]

On May 27, 2010, EDF reported that S. J. Res. 26 will move to a vote in the Senate on June 10 th after Senator Murkowski reached a unanimous consent agreement with Senator Reid. (Robin Bravender, Sen. Murkowski's EPA Resolution on Greenhouse Gases Slated for June 10 Vote , N.Y. Times , May 25, 2010.) On that date the Senate voted 47-53 (Record Vote Number: 184) against Senator Lisa Murkowski’s resolution. See the discussion at 156 Cong. Rec. S4788-4836 (June 10, 2010); a letter from 1800 scientists to the Senate urging senators to oppose efforts to overturn EPA’s endangerment finding is at p. S4793; Senator Kerry’s statement is at p. S4821-24; Senator Lieberman’s at p. S4824-25; letters from car manufacturers opposing the resolution because of its impact on the joint EPA/NHTSA regulation of  GHG emissions from light-duty cars and trucks and fuel economy standards [discussed supra] are at p. S4833-34.

 

On Feb. 19 th eight U.S. Senators wrote a letter to EPA Administrator Jackson asking about the agency’s plans for regulating GHG in 2010 (known as the “Rockefeller Letter” after Senate Commerce, Science, and Transportation Chairman Jay Rockefeller (D-W.Va.)).

 

Back in the House, Rep. Ike Skelton (D-Mo.) introduced a bill on Feb. 2, 2010, that would block EPA regulation of greenhouse gas emissions by removing them from 42 U.S.C. § 7602(g) of the Clean Air Act. Skelton's bill ( H.R. 4572 ) was co-sponsored by 13 representatives including Collin Peterson (D-Minn.), chairman of the House Agriculture Committee, and referred to the Energy and Commerce Committee.   [380] Later in the month, on Feb. 25 th , Mr. Skelton introduced H.J. Res. 76 with 31 co-sponsors, identical to Murkowski’s  S. J. Res. 26 , supra.

 

On Mar. 2, 2010, House Energy and Commerce ranking Republican Joe Barton (Texas) introduced another joint resolution, H.J. Res. 77 , also identical to Murkowski’s  S. J. Res. 26 and disapproving the EPA endangerment finding. It has 105 co-sponsors, including House Minority Leader John A. Boehner (Ohio); Darrell Issa (Calif.), ranking Republican on the House Oversight and Government Reform Committee; and Frank Lucas (Okla.), ranking Republican on the House Agriculture Committee. [381]

 

On Mar. 4, 2010, Sen. Jay Rockefeller introduced S. 3072 (the Stationary Source Regulations Delay Act ) which would suspend for 2 years “any Environmental Protection Agency action under the Clean Air Act with respect to carbon dioxide or methane pursuant to certain proceedings, other than with respect to motor vehicle emissions, and for other purposes”; that is, it would prevent EPA from regulating stationary sources of GHG emissions but leave rules on vehicle emissions alone. There were no cosponsors. On the same date, a companion bill, H. R. 4753 , aka the ‘‘Stationary Source Regulations Delay Act,’’ was introduced in the House by Rep. Nick Rahall (D-W.Va.) and 6 co-sponsors. [382]

On July 26, 2010, a White House official announced that President Obama would veto any such postponement of EPA’s authority to regulate GHG emissions from new and modified stationary sources, which is set to begin Jan. 2, 2011; Senator Reid has promised a floor vote on S. 3072 before the August recess. (Steven D. Cook & Dean Scott, Legislation: Obama Would Veto Bill to Delay EPA Limits on Greenhouse Gases, White House Aide Says , WCCR, July 26, 2010.) That didn’t happen, and in September 2010 Senator Reid agreed to a floor vote on S. 3072 in the lame duck session, but Senator Rockefeller acknowledged that the bill was unlikely to pass. (Darren Samuelsohn, Jay Rockefeller: Anti-EPA climate bill won't pass , GRIST, Sept. 29, 2010.) On Dec. 17, 2010, Senator Rockefeller announced he was temporarily abandoning his attempt to bring the bill to the floor, but intends to reintroduce it in the 112 th Congress, which opens in January 2011.

 

4.4.2.4.1. Legislation against GHG regulation in the 112 th Congress : Early in the 112 th Congress (Jan. 5-6, 2011), several bills were introduced with the clear intention of preventing EPA from regulating GHG. See, e.g., H.R. 97 , the Free Industry Act , by Rep. Blackburn (R-Tenn.) and 122 cosponsors; H.R. 153 , the Ensuring Affordable Energy Act by Rep. Poe with 53 cosponsors, and H.R. 199 , the Protect America’s Energy and Manufacturing Jobs Act of 2011 by Rep. Capito (R-WV) and 5 cosponsors, which would delay EPA regulation of GHG for 2 years. (John M. Broder, E.P.A. Faces First Volley From the House , N.Y. Times green , Jan. 6, 2011; Jean Chemnick, Congressional Review Act Might Not Be an Option to Fight EPA's Greenhouse Gas Regs , N.Y. Times, Jan. 6, 2011.)

Senator Rockefeller, true to his word, introduced S. 231, the EPA Stationary Source Regulations Suspension Act on Jan. 31, 2011, with 6 cosponsors, which is nearly identical to S. 3072, supra, his earlier bill, which died in the 111 th Congress. On the same day, Republican Senator Barrasso of Wyoming introduced S. 228, the Defending America’s Affordable Energy and Jobs Act , with 18 cosponsors, which would not only block EPA from regulating GHG under the CAA, but would prevent other federal agencies from considering climate change when they implement statutes such as the ESA or NEPA. (Ben Geman, Senate Republicans offer sweeping plan to block climate rules , E 2 Wire , Jan. 31, 2011.) Both bills were referred to the Committee on Environment and Public Works . (Dean Scott, Climate Change: Rockefeller Reintroduces EPA Suspension Bill; Some Democrats Fear Lost Energy Leverage , 22 BNA Daily Environment Report A-8, Feb. 2, 2011.) Another is S. 15 , introduced Jan. 15, 2011, by Senator Vitter with no cosponsors, to prohibit the regulation of CO2 emissions by EPA or any other agency until China, India, and Russia implement similar reductions. H.R. 750 is the companion bill to S. 228, introduced Feb. 16 th by Rep. Walberg with 6 cosponsors. According to the N.Y. Times , at least one of these bills would also weaken the EPA’s traditional ability  to regulate ground-level air pollutants like soot and mercury. (Editorial: Clean Air Under Siege , N.Y. Times, Feb. 5, 2011.)

 

On Feb. 2, 2011, House Energy and Commerce Committee Chairman Upton (R-Mich.) released a discussion draft of the Energy Tax Prevention Act of 2011 which would amend the CAA to bar EPA from regulating GHG emissions. Cosponsors are Sen. Inhofe (R-Okla.), of the Senate Environment and Public Works Committee, and Rep. Whitfield (R-Ky.), chair of the House Energy and Commerce Subcommittee on Energy and Power, which will hold a hearing on Feb. 9 th . (Press Release: Upton, Whitfield, Inhofe Unveil Energy Tax Prevention Act to Protect America's Jobs & Families , Feb. 2, 2011.) Among other things, the draft bill would repeal the endangerment finding (74 Fed. Reg. 66496 (Dec. 15, 2009) (see § 4.4.2.2. )); the GHG Tailoring Rule (75 Fed. Reg. 31514 (June 3, 2010) (see § 4.4.2.2.2.) ) ; or any federal action “under this Act [CAA] occurring before the date of enactment of this section that applies a stationary source permitting requirement or an emissions standard for a [GHG] due to concerns regarding possible climate change.” This draft is considered, in early Feb. 2011, to be the leader of the pack. Critics said Upton and Inhofe were siding with polluters over the environment and  public health. (Dean Scott, Climate Change: Upton Unveils Draft Bill to Strip EPA Of Authority Over Greenhouse Gas Emissions , 23 BNA Daily Environment Report A-13, Feb. 3, 2011; Darryl Fears, House GOP readies bill to prohibit EPA from regulating carbon emissions , Wash. Post, Feb. 3, 2011.)

On Feb. 9, 2011, Administrator Jackson testified before the House Energy and Commerce Committee’s Subcommittee on Energy and Power about the Upton bill. (Her opening statement was on EPA’s web page on that date; re. the endangerment finding, she said: “Chairman Upton’s bill would, in its own words, repeal that scientific finding. Politicians overruling scientists on a scientific question—that would become part of this Committee’s legacy.”)

 

On Feb. 18, 2011, the House approved 2 amendments to H.R. 1 , its proposed spending measure to fund the government through 2011. One would ban EPA from regulating GHG and was introduced by 3 Republican Representatives from Texas. It was approved 249–177 and fulfills a promise made by Republicans during the midterm elections (although 13 Democrats also voted for it); the other (§ 4014 on page 374 of H.R. 1) would restrict EPA’s Environmental Appeals Board permitting authority in Alaskan waters. (Amena H. Saiyid, Budget: House Approves Amendments to Block EPA On Greenhouse Gases, Offshore Permitting , 35 BNA Daily Environment Report A-6, Feb. 22, 2011; Steven D. Cook, Climate Change: Ohio Senator Asks President to Consider Economic Impact of Climate Regulations , 40 BNA Daily Environment Report A-6, Mar. 2, 2011.) If enacted, H.R. 1 would cut EPA financing by $3 billion, or 30%. ( Climate rules bill flags 'EPA bureaucrats' , UPI, Mar. 3, 2011.)

On Mar. 11 th , Secretary Jackson testified before the House Energy and Commerce Committee’s Energy & Power and Environment & Economy Subcommittees on the President’s Fiscal Year 2012 budget proposal for EPA. She defended EPA’s 40+ year record and discussed Rep. Upton’s efforts to eliminate portions of the CAA. Regarding the joint EPA/DOT regulation of GHG from cars and trucks, and given the increase in oil prices as a result of unrest in Africa and the Middle East, she could not understand why Congress would want to massively increase our dependence on foreign oil. ( EPA News Release , Mar. 11, 2011.)

 

On Mar. 3 rd , 2011, identical bills (final versions of Upton’s Feb. 2 nd draft, supra) were introduced— H.R. 910 , with Upton as sponsor and Whitfield as one of 34 cosponsors, including several Democrats, was referred to the Energy & Commerce Committee; S. 482 , with Inhofe as sponsor and 43 (so far only Republican) cosponsors, was referred to Environment & Public Works—to prevent EPA from regulating GHG under the CAA; it would nullify the endangerment finding and EPA’s mandatory GHG reporting regulations but leave the EPA/DOT vehicle standards in place. (Dean Scott, Climate Change: Bill Introduced to Bar EPA Emissions Rules; Upton Locks Down Some Democratic Support , 43 BNA Daily Environment Report A-10, Mar. 4, 2011.)

On Mar. 8, 2011, a hearing was held before the Energy and Power Subcommittee on the Energy Tax Prevention Act of 2011 . The committee chair, Mr. Whitfield, said in his opening statement : “H.R. 910 is not about global warming science, it is about stopping regulations certain to do more harm than good, regardless of how one interprets the science.”

 

The subcommittee is expected to approve the bill later in the week. (John M. Broder, At House E.P.A. Hearing, Both Sides Claim Science , N.Y. Times , Mar. 8, 2010.) It did so on Mar. 10 th ; the full Energy & Commerce Committee is expected to pass it early in the week of Mar. 14 th and the House before the end of the month. Then the Senate will have its say, and then, should it pass, the President.

 

4.4.2.5 . Lawsuits challenging the EPA endangerment finding: As noted above, EPA’s Dec. 2009 endangerment filing had a deadline of Feb. 16, 2010, for filing lawsuits challenging it, and critics wasted no time, partly due to “climategate,” discussed supra. On Dec. 23, 2009, “a coalition of coal-mining companies and beef producers ... challenged the endangerment finding in a petition filed with the D.C. Circuit Dec. 23. Sixteen states have moved to intervene in support of EPA in that case ( Coalition for Responsible Regulation Inc., et al. v. EPA , D.C. Cir., No. 09-1322, motion to intervene filed Jan. 21, 2010).” [383]

The new Republican attorney general of one of those states, Arizona, filed a motion to withdraw his support of EPA’s regulation of GHG on Jan. 27, 2011, and the D.C. Cir. granted it the following day. (William H. Carlile, Attorney General Reverses Arizona’s Course, Drops Support of EPA in Climate Case , 23 BNA State Environment Daily A-4, Feb. 3, 2011.)

 

On behalf of 13 House Republicans (John Linder, Phil Gingrey, Lynn Westmoreland, Tom Price, Paul Broun, Nathan Deal, and Jack Kingston (all of Ga.), Dana Rohrabacher (R-Calif.), John Shimkus (R-Ill.), Steve King (R-Iowa), Michele Bachmann (R-Minn.), Joe Barton (R-Texas) and Kevin Brady (R-Texas)) and 17 associations and companies, the Southeastern Legal Foundation filed a lawsuit on Feb. 10, 2010, in the Court of Appeals for the D.C. Circuit challenging the endangerment finding. The Foundation had filed a petition for reconsideration of the finding in December and is filing a supplemental filing the week of Feb. 8 th , 2010, showing scientific errors and fraud. The lawsuit, Linder v. EPA , No. 10-1035, claims that the scientific basis for the endangerment finding is “flawed, based on questionable and potentially fraudulent data, and certainly does not rise to the level of certainty necessary to upend the American economy, toss millions out of work, and which promises little or no climate change benefit over the next half-century.” [384]

 

U.S. Chamber of Commerce v. EPA , D.C. Cir., No. 10-1030, was filed on Feb.  12, 2010; and on Feb. 16, 2010, more lawsuits were filed in the D.C. Cir., just meeting the  deadline for challenging the endangerment finding: State of Texas, et al. v. EPA , No. 10-1041; American Iron and Steel Institute v. EPA , No. 10-1038; National Association of Manufacturers, et al. v. EPA , [385] No. 10-1044. [386] Other suits filed on the 16 th alone in the D.C. Circuit, from PACER, are: Commonwealth of Virginia v. EPA , No. 10-1036; Gerdau Ameristeel Corp. v. EPA , No. 10-1037; State of Alabama v. EPA , No. 10-1039; Ohio Coal Association v. EPA , No. 10-1040; Utility Air Regulatory Group v. EPA , No. 10-1042; Competitive Enterprise Institute, et al. v. EPA , No. 10-1045; and Portland Cement Association v. EPA , No. 10-1046.

In addition to Texas, Virginia and Alabama, about 13 other states have also sued EPA in the D.C. Circuit challenging the endangerment finding; however, as the finding imposes no requirements in and of itself, petitioners may have a problem establishing standing to sue at all. [387] (The Virginia Attorney General announced April 1, 2010, that it will also challenge the GHG emissions limits for cars and light trucks finalized on that date (see supra § 4.4.2.2.1 .) in the same lawsuit, Virginia v. EPA , No. 10-1036, filed on Feb. 16 th . [388] )

 

According to Warming Law, four additional petitions for review were filed in the D.C. Circuit challenging the finding: National Mining Assoc. v. EPA , No. 10-1024; Peabody Energy Co. v. EPA , No. 10-1025; American Farm Bureau Fed. v. EPA , No 10-1026; and Alliance for Natural Climate, et al. v. EPA , No 10-1049, for a total of 17, not including the state suits mentioned supra. On June 16 th , a 3-judge panel of the D.C. Circuit put the cases on hold until 14 days after EPA’s decision on the (at least) 10 separate administrative petitions for reconsideration of the finding that have been filed directly with EPA, to allow the agency to complete its administrative review. (Hannah McCrea & Matthew Cagle, Update on the Bazillion Legal Challenges Facing the EPA over Greenhouse Gases , Warming Law , July 16, 2010.)

 

On April 15, 2010, attorneys general from Alabama and Virginia filed a motion in the D.C. Circuit to force EPA to reopen its endangerment finding and hold public hearings on the science it used; as the agency had relied on information from the University of East Anglia’s Climate Research Unit, which was involved in “Climategate,” see supra, the premise was that the endangerment finding was flawed and needed to be reexamined. [389]

 

On July 30, 2010, EPA announced that it had rejected 10 petitions, including the one filed by the state of Texas, and on Sept. 7, 2010, the state of Texas challenged the EPA rejection. ( Texas v. EPA , C.C. Cir., No. 10-1281.) It joined four other challenges to the rejection which were filed in August, including one by the U.S. Chamber of Commerce. The deadline for filing challenges is Oct. 12 th . (Steven D. Cook, Climate Change: Texas Files Second Lawsuit Against EPA Over Greenhouse Gas Endangerment Finding , BNA State Environment Daily, Sept. 14, 2010.)

 

See infra, § 4.4.2.7. , EPA’s Defense of the Endangerment Finding & GHG Regulation

 

4.4.2.6. Business, ENGO & State Reactions to EPA’s GHG Regulation: On Mar. 10, 2010, nearly 100 manufacturing, coal and agricultural organizations sent a letter to all senators urging them to pass the Murkowski resolution . [390]

 

Mississippi Gov. Haley Barbour (R) drafted and circulated a letter rejecting Jackson's offer to delay regulating GHGs as insufficient, and “ strongly urg[ing] Congress to stop harmful EPA regulation of greenhouse gas emissions that could damage...” the U.S. economy. [391] The letter was signed by Barbour and 19 of his fellow governors (17 Republicans and 2 Democrats) and sent to Nancy Pelosi, Harry Reid, John Boehner and Mitch McConnell on Mar. 10, 2010. [392]

 

On Mar. 30, 2010, the Affordable Power Alliance released a study entitled Potential Impact of the EPA Endangerment Finding on Low Income Groups and Minorities hypothesizing that EPA regulation of GHGs would impact minorities disproportionately and have a negative effect on the U.S. economy as a whole. [393]

 

4.4.2.7. EPA’s Defense of the Endangerment Finding & GHG Regulation

On April 28, 2010, Administrator Jackson spoke at a hearing before the House Energy and Environment Subcommittee of the Committee on Energy and Commerce entitled “Clean Energy Policies That Reduce Our Dependence on Oil.” In her remarks in defense of the Dec., 2009, endangerment finding and the April 1 st joint rulemaking with the NHTSA, supra, she stated:

“My endangerment finding in December satisfied the prerequisite in the Clean Air Act for establishing a greenhouse gas emissions standard for cars and light trucks of Model Years 2012 through 2016.  So I was able to issue that final standard earlier this month, on the same day that Secretary of Transportation Ray LaHood signed a final fuel efficiency standard for the same vehicles. 

 

“Using existing technologies, manufacturers can configure new cars and light trucks to satisfy both standards at the same time. And vehicles complying with the federal standards will automatically comply with the greenhouse gas emissions standard established by California and adopted by 13 other states.  This harmonized and nationally uniform program achieves the goal the President announced last May. 

 

“Moreover, the EPA and DOT standards will reduce the lifetime oil use of the covered vehicles by more than 1.8 billion barrels. That will do away with more than a billion barrels of imported oil, assuming the current ratio of domestic production to imports does not improve. The standards also will eliminate more than 960 million metric tons of greenhouse gas pollution.

 

“But if Congress now nullified EPA’s finding that greenhouse gas pollution endangers the American public, that action would remove the legal basis for a federal greenhouse gas emissions standard for motor vehicles. Eliminating the EPA standard would forfeit one quarter of the combined EPA-DOT program’s fuel savings and one third of its greenhouse gas emissions cuts. California and the other states that have adopted California’s greenhouse gas emissions standard would almost certainly respond by enforcing that standard within their jurisdictions, leaving the automobile industry without the nationwide uniformity that it has described as vital to its business.

...

“EPA’s recent work on vehicles and fuels shows that enhancing America’s energy security and reducing America’s greenhouse gas pollution are two sides of the same coin.”

 

In response to motions to stay EPA’s GHG regulation filed by the state of Texas, the Coalition for Responsible Regulation, the National Association of Manufacturers, and other petitioners (in Coalition for Responsible Regulation v. EPA and Southeastern Legal Foundation v. EPA , nos. 09-1322, 10-1073, 10-1092, & 10-1131), a brief was filed on Oct. 28, 2010, by the EPA & the DOJ , in defense of climate change science, the endangerment finding, and EPA’s GHG regulation decisions.  (Steven D. Cook, Climate Change: Government Brief Defends Climate Science, Greenhouse Gas Rules in U.S. Appeals Court , 209 BNA Daily Environment Report A-4, Nov. 1, 2010.)

On Dec. 10, 2010, the D.C. Circuit ruled that EPA’s endangerment finding and its climate rules promulgated after it (see supra § 4.4.2.2.) can be enforced despite the ongoing legal challenges to them. The ruling was in response to a request by plaintiffs in Coalition for Responsible Regulation Inc., et al. v. EPA , supra, that the rules be stayed pending court review. (Margaret Cronin Fisk & Tom Schoenberg, EPA Allowed to Enforce Climate Change Rules With Suit Pending , Bloomberg , Dec. 11, 2010; Appeals Court gives green light to EPA carbon pollution standards, rejects claims of polluters and climate-science deniers , Climate Progress , Dec. 12, 2010; Leslie Kaufman, A Surge in Lawsuits Challenging E.P.A. on Climate , N.Y. Times green blog , Nov. 3, 2010, and report cited, Growth of U.S. Climate Change Litigation: Trends & Consequences , Deutsche Bank Climate Change Advisors, Nov. 3, 2010; Steven D. Cook, Climate Change: Court Denies Stay of EPA Climate Rules, Lets EPA Move on Mobile, Stationary Sources , 237 BNA Daily Environment Report A-13, Dec. 13, 2010; Carolyn Whetzel, Regulatory Policy: EPA Not Overstepping Authority With Rules Limiting Greenhouse Gases, McCarthy Says , 42 BNA Environment Report 853 (April 22, 2011))

 

4.4.3. Obama Administration and Energy

In his Feb. 1, 2010, budget request for 2011, President Obama upped the DOE’s budget to $28.4 billion; tried, again, to eliminate over $2.7 billion in tax subsidies for oil, coal and natural gas companies; increased the federal loan guarantee program to construct new nuclear reactors; cut fossil energy programs and increased renewable energy and energy efficiency programs [394] ; and cut funding for EPA (as part of a broader freeze in nondefense discretionary spending), but increased funding for climate change programs, including $21 million to implement the mandatory GHG reporting rule for the largest GHG emitters. [395]

 

On Feb. 18, 2010, two years after the initial request was made by the Sierra Club, NRDC and the International Center for Technology Assessment, the White House Council on Environmental Quality made an announcement to the effect that it saw “...no basis for excluding greenhouse gas emissions from...” agencies’ consideration of the environmental effects of their actions under NEPA. CEQ released on that date three draft guidance documents in conjunction with the 40 th anniversary of NEPA in an attempt to “ modernize and reinvigorate ” the act. The first was entitled: DRAFT NEPA GUIDANCE ON CONSIDERATION OF THE EFFECTS OF CLIMATE CHANGE AND GREENHOUSE GAS EMISSIONS , “for public consideration and comment on the ways in which Federal agencies can improve their consideration of the effects of greenhouse gas (GHG) emissions and climate change in their evaluation of proposals for Federal actions under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq.” This notice was published on Feb. 23 rd at 75 Fed. Reg. 8046; comments are requested until May 24, 2010. The second was: ESTABLISHING AND APPLYING CATEGORICAL EXCLUSIONS UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT , published on Feb. 23 rd at 75 Fed. Reg. 8045, with comments accepted until April 9 th . The third was: DRAFT GUIDANCE FOR NEPA MITIGATION AND MONITORING , published Feb. 23 rd at 75 Fed. Reg. 8046; comments accepted until May 24, 2010. Each of the draft documents stated: “The NEPA Draft Guidance documents are available   here ,” but, in line with the anniversary, the CEQ updated its NEPA web page to provide more information, [396] and the documents are in fact on the New CEQ NEPA Guidance page . EPA also launched its Rulemaking Gateway on the same day, in order to provide greater transparency in its regulatory process. [397]  

In April 2010, Senator Inhofe introduced the NEPA Certainty Act (S. 3230), with 6 Republican sponsors, to insure that federal agencies should not consider GHG emissions when assessing the environmental impacts of their actions, as such considerations would be too expensive and environmentally ineffective. [398]

 

Green Stimulus Spending: Passage of the Emergency Economic Stabilization Act of 2008 , Division A of  Pub. L. No. 110–343,  aka the “Troubled Assets Relief Program” or TARP, and the American Recovery and Reinvestment Act of 2009 , Pub. L. No. 111-5, which dedicated $112 billion to climate-related initiatives, or three times the budget these programs would have had without the stimulus. (See Breakdown of U.S. Green Stimulus (TARP and American Recovery Plan) , World Resources Institute, EarthTrends Delivered, from HSBC, Building a green recovery: Governments allocate USD470bn – and counting …., May 2009.)

 

The ‘Green House’? Solar News: On Oct. 6, 2010, the administration announced that solar panels (and a solar hot water heater) will once again grace the White House roof, for the first time since the Reagan Administration removed the ones installed by Jimmy Carter. (Glenn Hurowitz, White House approves solar for roof and California desert , GRIST, Oct. 5, 2010; Ari Natter, Solar Power: White House to Install Solar Panels as Government Seeks Sustainable Energy Use , WCCR, Oct. 5, 2010.)

 

4.4.3.1. Offshore Drilling: On Mar. 31, 2010, the Obama Administration announced that it will open the Atlantic, Gulf, and Alaskan coasts to offshore oil and natural gas drilling in what GRIST called “a stunning concession to fossil-fuel companies.” (Jonathan Hiskes, Obama will open large sections of Southeast and Alaskan coasts to offshore drilling , GRIST, Mar. 31, 2010.) The map below, brazenly, though respectfully and gratefully, copied from the N.Y. Times , compares the new areas of exploration and protection to existing areas of exploration (note the approximate location (at the red star) of the Deepwater Horizon disaster, infra). The actual amounts of fuel that might be found are not known, [399]   and several states may object given the ecologically sensitive nature of their coastlines. The reason given for the move was the national security interest in reducing oil and gas imports. Inevitably, it drew criticism not only from environmentalists, but also from Republicans, who claim he did not go far enough, and some Democrats as well. [400]

 

   

© N.Y. Times Co., 2009. Image from John M. Broder, Obama to Open Offshore Areas to Oil Drilling for First Time , N.Y. Times , Mar. 31, 2010; star added by author.

 

4.4.3.2. The Deepwater Horizon Disaster

4.4.3.2.1. Overview : Less than a month after the announcement lifting the moratorium on offshore drilling, see supra § 4.4.3.1., the oil rig Deepwater Horizon exploded on April 20, 2010, about 50 miles off the coast of Louisiana in the Gulf of Mexico, killing 11 of its 126-member crew instantly, and sank two days later. The accident threatened to become the largest environmental disaster in American history and was referred to on May 12 th as a “perfect ecological storm” by a research scientist at the Living Marine Resources Cooperative Science Center at NOAA. (Steven D. Cook, Oil Spills: Impact of Gulf Spill Could Last Decades, Witnesses Tell Senate Environment Panel , 90 BNA Daily Environment Report A-7 (May 12, 2010); Tom Philpott, So long and thanks for all the fish: Gulf of Mexico: from magnificent resource to industrial sacrifice zone , GRIST, April 29, 2010.) The rig was owned by Transocean Limited , the world’s largest offshore drilling contractor; leased by British Petroleum (BP); Halliburton performed “cementing” operations; Cameron International manufactured the blowout protector (the “BOP”, a critical backup device that failed to shut off the flow of oil on the Deepwater Horizon). ( Who will be held responsible for Deepwater Horizon? , Oil & Gas Financial Journal , May 4, 2010.) On May 19 th it was revealed that another company, Schlumberger Ltd. , the world’s largest oilfield services company, had had a crew on the Deepwater Horizon that departed only hours before the rig exploded and sank; the crew had been performing “wireline services” for BP. (Braden Reddall, Schlumberger says its crew left Horizon day of fire , Reuters India , May 20, 2010.)

  • Transocean Ltd. owns about half of the about 50 deepwater drilling platforms in the world; it is currently the target of tax inquires in Norway, Brazil, and the U.S. (Barry Meier, Owner of Exploded Rig Is Known for Testing Rules , N.Y. Times , July 7, 2010.)

 

The Wall Street Journal reported on April 28, 2010, that the Deepwater Horizon lacked a $500,000 remote control shut-off switch, called an “acoustic trigger,” which is required by two other major oil-producing nations (Norway and Brazil, but not the UK where BP is based) as a last-resort protection against underwater spills; it did have a switch that should have cut off the flow automatically, but it failed to function. The U.S. has considered requiring “acoustic triggers,” but the industry questioned their cost and effectiveness. (Russell Gold, Ben Casselman, Guy Chazan & Jeff Fick, Leaking Oil Well Lacked Safeguard Device , WSJ , April 28, 2010.)

 

“The Deepwater Horizon’s rig goes boom, killing 11 people and starting a massive and ongoing oil leak. If the Minerals Management Service [see infra] had been a functional, independent oversight agency, this disaster would likely have never happened.”  (Photo: U.S. Navy. See Tom Laskawy, The federal MMS: a wholly owned subsidiary of the oil industry , GRIST, May 14, 2010.)

 

BP is responsible for the cleanup, or at least all “legitimate” compensation claims; there is a $75 million cap on compensation to claimants in the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701 et seq., which BP has said it will not consider a limit. BP and the Coast Guard have tried dumping chemical dispersants into the water in hopes that they will break up the oil into small droplets (Tom Philpott, What are we dumping into the Gulf to ‘fix’ the oil spill? , GRIST, May 3, 2010, at: Tom Philpott, Bad medicine: Chemical dispersants being used in Gulf clean-up are potentially toxic , GRIST, May 6, 2010), and igniting the oil on the surface. (See Controlled Burn Approved for May 5 ) They have also tried to contain the oil with booms, and skimming it from the surface.

 

LEAD Technologies Inc. V1.01   Thanks to BBC Gulf of Mexico oil well disaster .

 

 

 

 

 

 

 

 

·        Erin Aigner, Joe Burgess, Shan Carter, Joanne Nurse, Haeyoun Park, Amy Schoenfeld & Archie Tse, Tracking the Oil Spill in the Gulf (updated) , N.Y. Times , Aug. 2, 2010.

 

Amount of oil: [NB: A barrel of oil contains 42 gallons; this report uses both gallons and barrels to follow cited sources.]

Shortly after the explosion it was estimated that 5,ooo barrels (or about 210,000 gallons) of oil a day were pouring into the Gulf of Mexico from three leaks over 5000 feet under water; efforts to cap the leaks continued unsuccessful. High winds and seas made containment difficult if not impossible, potentially forcing oil into sensitive fishing grounds and nesting areas.

 

Initial estimates of the amount of oil were underestimated. The N.Y. Times reported on May 13 th that 10 times as much oil may be escaping, although BP maintained that the leak is impossible to measure and declined the help of two Woods Hole Oceanographic Institution scientists with experience in volume measuring. However, the 5000-barrel estimate was calculated using a technique not recommended for large oil spills. (John M. Broder, Campbell Robertson & Clifford Krauss, Amount of Spill Could Escalate, Company Admits , N.Y. Times , May 4, 2010; Justin Gillis, Size of Oil Spill Underestimated, Scientists Say , N.Y. Times , May 13, 2010; Tom Philpott, Spill-rate lowballing reflects badly on government cleanup oversight , GRIST (referring to an NPR story), May 14, 2010.)

On May 19 th , Thad Allen, the National Incident Commander for the Deepwater Horizon Response team, established the Flow Rate Technical Team, a multi-agency group including the MMS, NOAA, DOE, Coast Guard, & the U.S. Geological Survey, in response to speculation that BP’s 5000-barrel-per-day estimate was too low. The group’s purpose is to determine the rates at which the oil flowed at different times since the explosion, and to compute the total outflow. (Brendan Demelle, Breaking: Federal Flow Rate Technical Team Established To Determine Extent of BP Oil Spill , EnergyBoom, May 20, 2010.) BP agreed to cooperate, and the group announced that it should have a preliminary report by the week of May 24 th . ( Oil spill flow rate estimates to be completed next week , NewsWatch: Energy, May 22, 2010.)

 

On Thursday, May 20 th , Steve Wereley, an associate professor of mechanical engineering at Purdue University, spoke on CNN’s American Morning and analyzed video footage recently released by BP (see infra, May 19 th hearing before the House Subcommittee on Energy and the Environment); he estimated that as much as 20,000 to 100,000 barrels (840,000 – 4,200,000 gallons) could be escaping. (Video: How much oil is gushing into the Gulf? , May 20, 2010.)

On Friday, May 21 st , BP denied estimates that the well was gushing up to 50,000 barrels a day, 10 times as much as their estimate, based on the size of the broken pipe. (Steve Gelsi, New estimates on Gulf spill rate due Saturday, BP says , MarketWatch , May 21, 2010.)

 

The Flow Rate Technical Team’s report, Estimated Leak Rates and Lost Oil from the Deepwater Horizon Spill, May 27, 2010: Interim Report to the Flow Rate Technical Group , was released on Thursday. It found that the well was gushing between 12,000 and 25,000 barrels per day, far above BP’s highest estimate. The company’s motivations appear to have been financial, as the amount of liability is directly linked to the size of the spill, under the Clean Water Act and the Oil Pollution Act of 1990. Thus, according to the report’s estimates, BP could owe between $444 million and $2.1 billion in fines for the oil spilled thus far, far over the $75 million cap in the 1990 Act. (Press Release: Markey: Flow Rate Report Shines Light on BP’s Financial Liability, True Size of Spill: Chairman Markey Releases Documents Showing BP Low-balled Flow Rate; Lower Spill Estimate Means Lower Financial Liability for Company , House Special Committee on Energy Independence and Global Warming, May 27, 2010; see infra, Liability .) It is possible that up to 30 million gallons of oil have escaped so far, contrasted to the Exxon Valdez spill in Alaska in 1989, our worst oil spill thus far (though not the worst on record), which released 11 million gallons. (Greg Bluestein & Seth Borenstein, Gulf oil spill now bigger than Exxon Valdez , Yahoo News , May 27, 2010; Press Release: Flow Rate Group Provides Preliminary Best Estimate Of Oil Flowing from BP Oil Well , Dept. of Interior, May 27, 2010; Media Advisory: USGS Director McNutt to Hold News Media Teleconference to Discuss Updates on the Oil Flow Rate , DOI, May 27, 2010; Tom Zeller, Jr., Estimates Suggest Spill Is Biggest in U.S. History , N.Y. Times , May 27, 2010. These articles show a wide range of estimates, and illustrate the high degree of uncertainty that remained even after the disaster had continued for 37 days.)

 

On Tuesday, June 15 th , the government updated its estimate of the amount of escaping oil to 60,000 barrels or about 2.5 million gallons of oil a day, meaning that “an amount equal to the Exxon Valdez spill could be gushing from the well about every four days.” As BP is capturing about 15,000 barrels a day, the amount of escaping oil is about 45,000 barrels [1,890,000 gallons] a day. (Justin Gillis, Estimates of Oil Flow Jump Higher , N.Y. Times , June 15, 2010.

 

On August 2 nd , the most precise estimates so far concluded that the Gulf disaster is the largest of its kind so far, having released 5 million barrels of oil, or 210,000,000 gallons, of which about 800,000 barrels, or  33,600,000 gallons, were captured. Previously the Mexican rig Ixtoc I had claimed that dubious title in 1979, at 3.3 million barrels, or 13,869,000 gallons. Experts said that the flow in the Gulf had decreased over time and was down to about 53,000 barrels a day before the well was capped on July 15 th but had started at about 62,000 barrels a day. (Campbell Robertson & Clifford Krauss, Gulf Spill Is the Largest of Its Kind, Scientists Say , N.Y. Times , Aug. 2, 2010.)

 

On Aug. 4 th , NOAA claimed that 74% of the 4.9 million barrels of oil believed to have escaped from the ruptured well had disappeared, either due to cleanup efforts, evaporation or natural degradation. But on Aug. 18 th , scientists from the University of Georgia believed that most of the oil—70 to 79%—was still there and would be for years to come. (Agence France-Presse, Scientists say figures on spilled oil in Gulf too low , GRIST, Aug. 18, 2010.) Then on Aug. 24, 2010, an article published in Science xpress concluded that “the dispersed hydrocarbon plume stimulated deep-sea indigenous γ-proteobacteria that are closely related to known petroleum-degraders.” Thus, possibly because of the relatively light and volatile nature of the oil, the small oil particle size, the low overall concentrations in the plume, the fact that oil has leaked naturally for millennia in the Gulf and that new species of cold-water microorganisms have adapted to such leaks, it was possible that the oil was degrading rapidly. (Terry C. Hazen, et al., Deep-Sea Oil Plume Enriches Indigenous Oil-Degrading Bacteria , Science , Aug. 24, 2010; Priyanka, New species of microbe in Gulf degrading oil faster—study , Money Times , Aug. 25, 2010.)

 

  • See Timothy J. Crone & Maya Tolstoy, Magnitude of the 2010 Gulf of Mexico Oil Leak , 330 (6004) Science 634 (Oct. 29, 2010) (using “optical plume velocimetry to estimate the velocity of fluids issuing from the damaged well both before and after the collapsed riser pipe was removed.”)

 

Path of the oil: On May 2 nd , the oil was about 9 miles off the southeastern coast of Louisiana, and by May 3 rd it had reached the Chandeleur Islands , which are a part of the Breton National Wildlife Refuge and an important migrating point for many birds on their way south. (Ed Pilkington, Deepwater Horizon oil spill: turtle deaths soar amid fight to save wildlife: Tests take place to determine cause of deaths, as locals hope booms along coastline will protect commercial fisheries , The Guardian , May 3, 2010.)

 

Oil gushed into the Gulf during nesting season for sea turtles and birds. Tar balls were sighted on Alabama’s beaches on May 10 th , and on May 11 th , oil reached the Louisiana coast. (Video: Oil has reached Louisiana coast, says marine biologist: Oil washes ashore on the Louisiana mainland, according to marine biologist Rick Steiner, while US military planes spray chemical dispersant in an attempt to break up the BP slick , guardian.co.uk , May 11, 2010.)

 

A little over a month after the rig collapsed, oil had affected about 50 miles of the Louisiana coast. (Campbell Robertson & Elisabeth Rosenthal, Agency Orders Use of a Less Toxic Chemical in Gulf , N.Y. Times , May 20, 2010 (“Local and state officials here voiced desperation…with oil from the BP spill showing up on shore as tar balls, sheens and gooey slicks.”))

 

In mid-May it appeared that the oil already in the water might be headed for (or may already be in) an ocean current that could carry it around the Florida peninsula and up the east coast. (Jeffrey Collins & Jason Dearen, BP hopes to siphon up to half of oil in Gulf , AP, May 17, 2010). This possibility was under discussion at a hearing on Monday May 17 th before the Senate Homeland Security and Governmental Affairs Committee entitled “The Gulf Coast Catastrophe: Assessing the Nation's Response to the Deepwater Horizon Oil Spill .” (Tom Doggett & Ayesha Rascoe, UPDATE 1-US Coast Guard prepares for oil in south Florida: Oil getting closer to "Loop Current," Reuters , May 17, 2010; John M. Broder, Scientists Warn Oil Spill Could Threaten Florida , N.Y. Times , May 17, 2010 (independent scientists warn that oil from a huge underwater plume could reach the Florida Keys in about 2 weeks [see supra] but NOAA’s administrator says that the oil will be very dilute by the time it gets there and will not make much of an environmental impact); Gulf oil now in powerful Loop Current, scientists say: The first oil from the Gulf of Mexico spill has entered an ocean current that could take it to Florida and up the east coast of the US, scientists say , BBC News , May 19, 2010 (the European Space Agency’s satellite images suggest the oil could reach the coral reefs of the Florida Keys in 6 days; the spill is visible to astronauts and cosmonauts aboard the International Space Station.)) On Thursday, June 3d, 15 days later, the BBC reported that an oil slick “containing thousands of tar balls - heavy globs of decayed oil – [wa]s only seven miles (11km) from Pensacola on the Florida ‘panhandle’....” It was projected that oil could reach the Florida shore by June 4 th ( BP to fund oil barriers off Louisiana coast , BBC News , June 3, 2010.), and it did. (Melissa Nelson & Jay Reeves, Cap collects some Gulf oil; crude washes into Fla . , AP, June 4, 2010; Drew Douglas, Florida: Tar ‘Patties,' Balls Reach Northwest Florida; Oil Slick Expected to Hit State Shortly , BNA State Environment Daily (June 7, 2010))

However, a hopeful note was struck in early June, when scientists found that the Loop Current was forming a large circular eddy called the “Loop Current Ring,” a deviation from its normal path, where the oil could be sequestered for months, possibly lessening its impact on coastal ecosystems. (Drew Douglas, Florida: Tar ‘Patties,' Balls Reach Northwest Florida; Oil Slick Expected to Hit State Shortly , BNA State Environment Daily (June 7, 2010); Mark Schrope & Janet Fang, Researchers track path of oil from rig spill , 465 Nature 532 (June 3, 2010.)

 

On May 12 th , scientists from the National Institute for Undersea Science and Technology aboard the research ship Pelican discovered an underwater plume about 10 kilometers wide, presumably originating from the well, hovering about 100 meters above the sea floor. Tests are being conducted the week of the 17 th to confirm that the plume is in fact oil from the Deepwater Horizon. The plume could pose a threat to deep corals and other species, which may be exacerbated by the use of underwater dispersants, see below. (Mark Schrope, Oil cruise finds deep-sea plume: Nature reports from the research ship Pelican as scientists map the hidden extent of the Deepwater disaster , 465 Nature 274 (May 18, 2010))

 

Map from Mark Schrope, Oil cruise finds deep-sea plume: Nature reports from the research ship Pelican as scientists map the hidden extent of the Deepwater disaster , Nature , May 18, 2010.

 

Over the July 4 th weekend, a small number of tar balls washed up on Texas beaches near Galveston, meaning that oil from the broken well has touched every Gulf state. However, Hurricane Alex from the week of June 28 th may have been responsible and the oil may not indicate that more is to come. (Juan A. Lozano, Officials say BP spill now hitting all Gulf states , July 6, 2010.) The oil in Texas seems to have been an anomaly (it may have escaped from a cleanup vessel), but over the holiday weekend tar balls appeared in Lake Pontchartrain, driven by strong east winds that are expected to continue. (Campbell Robertson, Effects of Spill Spread as Tar Balls Are Found , N.Y. Times, July 6, 2010.)

 

Stopping the oil: On May 5 th , BP used remotely controlled vehicles to cut an underwater pipe from which oil was gushing and install a valve, which stopped one of the three leaks but did not appreciably reduce the flow of oil. (NPR Staff and Wires, One Oil Leak Capped As Dome Heads To Spill Site , May 5, 2010.) Then BP constructed a 4-story, 100-ton containment dome it planned to lower over the leaks to funnel about 85% of the escaping oil to a tanker on the surface, although it was unsure whether it would work at these depths. (Ian Urbina, Justin Gillis & Clifford Krauss, On Defensive, BP Readies Dome to Contain Spill , N.Y. Times , May 3, 2010;  Harry R. Weber, Giant box being loaded on boat bound for Gulf , Yahoo News , May 5, 2010; Harry Weber & Tamara Lush, BP brings in the big box to deal with oil disaster , AP, May 6, 2010; Clifford Krauss, For BP, a Battle to Contain Leaks and an Image Fight, Too , N.Y. Times , May 6, 2010.) Indeed, over the weekend of May 8-9 th , the dome failed to function because ice crystals built up inside it; work on a relief well to divert the oil had begun on May 2d, but will take several months to complete. ( Gulf Oil Spill Containment Attempt Fails , Environment News Service , May 10, 2010.)

 

On Wednesday, May 12 th , BP officials and scientists met with Energy Secretary Steven Chu  and Interior Secretary Ken Salazar in Houston and informed them that underwater equipment was being installed by 10 robotic submersibles that could possibly shut off the gushing oil within weeks rather than the months it would take for relief wells to alleviate the situation. Options include a “junk shot” to clog the BOP with shredded tires and golf balls; another is installing a second BOP; another is called a “top kill” or a “dynamic kill” and involves pumping heavy mud through the failed BOP and then covering it with cement to stop the flow; another is installing a valve to stop the flow (Henry Fountain & Matthew L. Wald, BP Says Leak May Be Closer to a Solution , N.Y. Times , May 12, 2010); another option is installing a smaller containment dome than the one that previously failed, hopefully by the end of the week of the 10 th . (Steve Gorman, BP to try new fix as oil spill threatens Gulf , Yahoo News , May 13, 2010.)

 

On Saturday May 15 th , EPA and the Coast Guard approved the use of underwater dispersants to prevent the oil from reaching the surface. (Press Release, Coast Guard and EPA approve use of dispersant subsea in further effort to prevent oil from reaching U.S. shoreline. )

 

On Sunday, May 16 th , BP finally reported a modicum of success. They inserted a tube into the pipe from which most of the oil is escaping, and began to divert the oil to a tanker on the surface. This is only a temporary measure, however, as they still need to stop the flow altogether. (Shaila Dewan, BP Reports Some Success in Capturing Leaking Oil , N.Y. Times , May 16, 2010; US says BP move to curb oil leak 'no solution' , BBC News , May 17, 2010.) BP’s claims as to how much oil is actually being siphoned off vary widely, from 3000 to 5000 barrels a day, from what was originally (and probably inaccurately, see supra) estimated as a 5000-barrel-per-day leak. (Matthew Bigg, U.S. to check BP spill size, heavy oil comes ashore , Reuters, May 20, 2010; CNN Wire Staff, EPA tells BP to find new dispersant , CNN, May 20, 2010.)

 

BP decided to try to “kill” the well by May 22 nd   or 23 rd . (Matthew L. Wald & Tom Zeller, Jr., Fishing Ban Is Expanded as Spill’s Impact Becomes More Evident , N.Y. Times , May 18, 2010.) On the 21 th that attempt was postponed until at least the 25 th (Greg Bluestein, BP delays attempt to plug leak with mud: White House taps Graham, Reilly to lead investigative panel , MSNBC, May 21, 2010; Nancy J. Moore & Linda Roeder, Oil Spills: BP Prepares for ‘Top Kill’ Procedure In Hopes of Shutting Down Gulf Oil Flow , 98 Daily Environment Report A-14 (May 24, 2010)), and postponed again until Wednesday the 26 th . BP estimates “probability of success between 60 percent and 70 percent.” (Campbell Robertson, Clifford Krauss & John M. Broder, Oil Hits Home, Spreading Arc of Frustration , N.Y. Times , May 24, 2010; Clifford Krauss & Matthew L. Wald, BP Prepares for ‘Top Kill’ Procedure to Contain Spill , N.Y. Times , May 25, 2010.)

 

 

 

 

Next they will try another containment dome approach. Submarine robots will try to cut off the 21” riser pipe and then a cap will be positioned over it to try to capture most of the oil and funnel it to boats on the surface; this technique will increase the flow of oil from the broken pipe, at least initially. (Leslie Kaufman & Clifford Krauss, BP Prepares to Take New Tack on Leak After ‘Top Kill’ Fails , N.Y. Times , May 29, 2010.) It is called a “lower marine riser package ( LMRP ) cap containment system.” (Susanne Pagano, Oil Spills: BP Moves to New Plan to Capture Oil From Leaking Well in Gulf of Mexico , 104 BNA Daily Environment Report A-10 (June 2, 2010.)) The new approach hit a snag on Wednesday June 2d, when the saw that was being used by an underwater robot to cut the riser pipe got caught. (Campbell Robertson & Joseph Berger, Latest Effort to Stop Oil Flow Hits a Snag , N.Y. Times , June 2, 1010; BP shares recoup early losses despite US probe news, BBC News , June 2, 2010.) The next morning the riser pipe had been cut off, although unevenly, by shears, and BP was preparing to lower the cap over it in the afternoon. (Henry Fountain & Joseph Berger, Admiral Says Oil Pipe Is Cut, a Key Step in Halting Leak , N.Y. Times , June 3, 1010.) The cap was in place by late Thursday but it was unclear on Friday whether the technique was working. (Michael Cooper, Peter Baker & Henry Fountain, Obama Arrives in Gulf Region as Well Cap Effort Proceeds , N.Y. Times , June 4, 1010.)

 

 

BP began drilling a relief well on May 2 nd and a second on May 16 th , but the wells are, on the first of June, still months away from completion. The goal is to connect with the original well and pump in mud, then cement, to staunch the flow of oil. Unfortunately, hurricane season officially began June 1 st and is expected to be active, and the wells, though ahead of schedule, will probably not be operational until mid-August. (Helene Cooper, Obama Pledges Tough Inquiry Into Oil Spill , N.Y. Times , June 1, 2010; Henry Fountain, Plan for Relief Wells Spurs Hope Amid Caution , N.Y. Times , June 3, 2010; Henry Fountain, Hitting a Tiny Bull’s-Eye Miles Under the Gulf , N.Y. Times , July 5, 2010; John M. Broder, Obama Presses BP to Recover More Oil , N.Y. Times , July 8, 2010.)

 

Before the relief wells are complete, BP wants to replace the LMRP cap with one that would fit more tightly and potentially capture more oil. The new cap could possibly shut down all oil being released from the well, as well as offering more flexibility during hurricane season. The company also plans to disconnect the current recovery vessel, the Discoverer Enterprise , thus increasing the flow of oil temporarily before a second vessel, the Helix Producer , with a larger capacity (50,000 barrels, or possibly up to 80,000 barrels), and the Q4000 rig , could be attached. The government is pressing BP to proceed as soon as possible with both endeavors. (John M. Broder, Obama Presses BP to Recover More Oil , N.Y. Times , July 8, 2010.) On Friday July 9 th it was reported that work would begin over the weekend and that the spill could be contained in 3 or 4 days. (AP, New cap, ships could contain Gulf leak by Monday , July 9, 2010; Henry Fountain, BP Is Ready to Put Tighter Cap on Runaway Well , N.Y. Times , July 9, 2010.)

 

On Sunday, July 11 th , BP was pleased at its progress, and predicted that the work could be completed on Wednesday. The new cap should be able to contain all the escaping oil, estimated at 60,000 barrels [2,520,000 gallons] of oil a day, but until it is functional the oil is escaping unchecked, although the Q4000 containment system captured some oil on  the surface. Skimmer boats on the surface are capturing what they can, and 15 controlled burns were conducted on Saturday. (Henry Fountain, Cap Connector Is Installed on BP Well , N.Y. Times , July 11, 2010.)

  • But on Wednesday July 14 th , BP stopped work on the relief wells and delayed testing the new cap for at least 24 hours, at the request of Thad Allen. A senior vice president said that putting the cap under pressure to test it could have an adverse effect on the relief wells. (Tom Breen & Harry R. Weber, BP delays work on stopgap and permanent well fix , AP, July 14, 2010; Henry Fountain, U.S. Delays Test of Device That Could Seal Gulf Well , N.Y. Times , July 14, 2010.) It began testing the next day, Thursday the 15 th , after fixing a leak on the new cap. (Henry Fountain, BP Says Cap Is Repaired and Oil Cutoff Test Can Proceed , N.Y. Times , July 15, 2010.)
  • On Tuesday, Aug. 3, 2010, BP began the “static kill” of the well, pumping mud and then cement down a pipe; the filling with mud and cement from below via the relief well, aka the “bottom kill,” could begin Aug. 11 th when the relief well is completed. (Greg Bluestein, Crews begin effort to plug leaking Gulf oil well , Yahoo News , Aug. 3, 2010; Clifford Krauss, BP Begins ‘Static Kill,’ to Seal Well Permanently , N.Y. Times , Aug. 3, 2010.) The next day the company announced that the static kill had successfully plugged the leaking well; its stock surged on the news. (Surojit Chatterjee, BP bids farewell to Gulf oil spill with "static kill" , International Business Times , Aug. 4, 2010.) The government was expected to announce on Aug. 4 th that three-quarters of the oil had been evaporated, dispersed, captured or otherwise eliminated and that what remained did not pose much of a threat. (Justin Gillis, U.S. Finds Most Oil From Spill Poses Little Additional Risk , N.Y. Times , Aug. 4, 2010.)
    • The threat of storms in the Gulf briefly postponed the completion of the relief wells, now only about 30 feet away from intercepting the well; work resumed on Thursday Aug. 12 th . (Agence France-Presse, BP relaunches Gulf well-sealing effort after storm , GRIST , Aug. 12, 2010.)  
    • Tests of the Macondo well seem to show conclusively that the well is sealed, but Thad Allen says the relief well will be finished, but there is concern that if it is used to pump more mud into the well, it might crack the existing seals. No one seems quite sure how best to proceed. (Henry Fountain, Relief Well to Be Completed to Ensure That Spill Is Stopped , N.Y. Times , Aug. 13, 2010.)
  • On Aug. 19 th , BP began pressure testing the cap that has sealed the oil in since July 15 th , supra; the test will confirm whether the well is sealed, and will last about 48 hours. The relief well was about 3.5 feet from the side of the Macondo well and about 50 feet from its intercept target on that date. When the test is complete, BP wants to retrieve a 3500 foot drillpipe it believes is inside the blowout preventer, then remove the original BOP and replace it with another. Once the relief well has plugged the well, other plugs will insure the relief well is sealed as well. (Kristen Hays, Factbox: BP's last steps to kill Gulf well , Reuters , Aug. 19, 2010.)

 

On Thursday, Sept. 2, 2010, BP removed the temporary cap and the BOP, which is an important piece of evidence in the investigation into the disaster as it failed to shut down the flow of oil after the explosion, was removed from the ocean floor. It was delivered to a NASA facility in New Orleans on Saturday, Sept. 4 th , to be inspected by federal investigators. (Clifford Krauss & John M. Broder, BP Says Limits on Drilling Imperil Oil Spill Payouts , N.Y. Times , Sept. 2, 2010; Ian Urbina, Report by BP Finds Several Companies at Fault in Spill , N.Y. Times , Sept. 8, 2010.)

 

On Sept. 17, 2010, BP’s relief well finally intersected the Macondo well and was poised for the “bottom kill.” Next, mud and cement will be pumped through the relief well to seal the leaking well from underneath, about 2 ½ miles under the sea floor, once and for all. The final step will be to conduct pressure tests after the concrete is set. ( BP oil spill: relief well ready for 'final kill' , Telegraph.co.uk , Sept. 17, 2010; Kristen Hays, BP relief well intercepts ruptured Gulf well , Reuters , Sept. 17, 2010.)

 

The Macondo well was finally sealed on Sunday, Sept. 19, 2010, after 87 days; a pressure test showed that the concrete plug that killed the well was holding. (BBC News, BP finally seals leaking Gulf of Mexico oil well: The ruptured well that has spewed millions of barrels of oil into the Gulf of Mexico has finally been sealed, US officials say , Sept. 19, 2010.) A report released on Oct. 6, 2010 (see infra for others), stated: “As of July 15, 2010—the day the well stopped flowing— the response involved approximately 44,000 responders; more than 6,870 vessels (including skimmers, tugs, barges, and recovery vessels); approximately 4.12 million feet of boom; 17,500 National Guard troops from Gulf Coast states; five states; multiple corporations; and untold hours of work by federal, state, and local officials; employees or contractors of BP; and private citizens.” (National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, Decision-Making Within the Unified Command , at 1, citing Press Release, Deepwater Horizon Incident Joint Information Center, Ongoing Administration-wide response to the Deepwater BP Oil Spill (July 15, 2010))

 

 

4.4.3.2.2. Congress ional Response: On Tuesday, May 11 th , leaders from BP America (chairman & president Lamar McKay), Swiss-based Transocean, Ltd. (Steven Newman, CEO), and Halliburton, Inc. (Tim Probert), testified before the Senate Energy and Natural Resources Committee at a hearing entitled “ Offshore Oil Development and the Deepwater Horizon Accident ”; another hearing before the Senate Environment and Public Works Committee was scheduled for later in the day, entitled " Economic and Environmental Impacts of the Recent Oil Spill in the Gulf of Mexico .” Unsurprisingly, each company blamed the others. (H. Josef Hebert, Oil spill testimony to Congress: Not our fault , AP , May 11, 2010; Lynn Garner, Oil Spills: Company Executives Unable to Explain Cause Of Drilling Rig Accident That Led to Gulf Spill , 90 BNA Daily Environment Report A-1 (May 12, 2010))

 

The following day, May 12 th , the House of Representatives continued the interrogation before the Committee on Energy and Commerce’s Subcommittee on Oversight and Investigations in a hearing entitled " Inquiry into the Deepwater Horizon Gulf Coast Oil Spill ." In addition to the officers who testified on the 11 th , Jack Moore, President and CEO of Houston-based Cameron International Corp. , which manufactured the BOP, defended its equipment’s “solid track record” and “very long history of reliable performance”; however, questions have arisen about modifications to the BOP on the Deepwater Horizon ( Cameron CEO defends blowout preventer , Houston Chronicle’s NewsWatch: Energy , May 12, 2010; Tom Fowler, BP asks if blowout devices have been modified , Houston Chronicle, May 8, 2010; Lynn Garner, Oil Spills: Company Executives Unable to Explain Cause Of Drilling Rig Accident That Led to Gulf Spill , 90 BNA Daily Environment Report A-1 (May 12, 2010)), which Mr. Moore testified had been made to BP’s specifications. (Tresa Baldas, Oil Spill Defendants Continue to Play Blame Game , National Law Journal, May 13, 2010.) (The Wall Street Journal reported in 2005 (Jim Carlton, Alaska Probe Focuses on BP, Nabors; Workers Allege Companies Failed to Report Blowouts, Falsified Drilling Records , Feb. 3, 2005, at B-6), and the Huffington Post in May 2010 , that at least as early as 2003 BP was aware that tests of its BOPs were being falsified in Alaska.)

On May 14 th President Obama referred to the oil executives’ testimony at the hearings as a “ridiculous spectacle.” (Agence France-Presse, Obama takes aim at oil companies over oil spill , GRIST, May 14, 2010.)

 

On Tuesday May 18 th , the Senate Environment and Public Works Committee had a second hearing entitled: "The Federal Response to the Recent Oil Spill in the Gulf of Mexico” ; the Senate Energy and Natural Resources committee met “ to receive testimony from the Administration on issues related to offshore oil and gas exploration including the accident involving the Deepwater Horizon in the Gulf of Mexico ” and heard testimony from Ken Salazar, Secretary of the DOI, who acknowledged the corruption in the MMS. The House Committee on Natural Resources, which has primary jurisdiction over offshore oil and gas drilling, announced on May 18 th a seven-part oversight hearing series to investigate the Deepwater Horizon oil rig explosion and examine the future of America's offshore oil and gas policy, beginning on May 26 th and continuing until June 29 th . ( House Panel to Hold Seven-Part Oversight Hearing Series on Deepwater Horizon Oil Rig Explosion , May 18, 2010.)

 

On May 18 th Senate Republicans blocked for the second time efforts to raise the statutory limit on oil companies’ liability from $75 million to $10 billion. Some lawmakers (e.g., Harry Reid) are in favor of having no cap, but others (e.g., Inhofe, Murkowski) believe $10 billion would drive small companies who couldn’t afford the insurance premiums out of business. (Alexander Bolton & Ben Geman, Obama breaks with his party on issue of oil spill liability caps , The Hill , May 18, 2010; Lisa Murkowski Blocks Bill To Raise Oil Spill Liability Cap , Huffington Post, May 14, 2010.) Still others believe raising the cap and driving out small companies would be a victory for some of the larger players, such as BP. (Elizabeth Williamson, BP Aims to Avoid Fresh Restrictions on Drilling , WSJ, May 27, 2010.)

 

The House Subcommittee on Energy and the Environment held a hearing on Wednesday, May 19 th , entitled: “Sizing up the BP Oil Spill: Science and Engineering Measuring Methods.” Rep. Edward J. Markey, D-Mass., chair of the subcommittee, sent a letter on May 19 th to BP America’s CEO McKay requesting that BP make publicly available a live video stream from the leak site, in order to assist scientists and engineers to stop it; BP agreed. (Press release: Markey to Get Live Feed of BP Oil Spill on Website: BP Acquiesces to Markey’s Request, Will Release Video Stream Tonight to Chairman , May 19, 2010.) The live video was posted on the subcommittee’s web site on Thursday the 20 th and also on BP’s site .

 

Also on May 19 th the House Transportation and Infrastructure Committee questioned BP America chairman Lamar McKay, among others, about the decision to use the dispersant Corexit 9500 , which contains petroleum distillates, propylene glycol and a proprietary organic sulfonic salt and is considered “less effective and more toxic” than alternatives; on Thursday May 20 th , EPA gave BP until midnight on the 20 th to find another from a list of 18 EPA-approved dispersants, and 72 hours to stop using Corexit in the Gulf. (CNN Wire Staff, EPA tells BP to find new dispersant , May 20, 2010; Siobhan Hughes, Angel Gonzalez & Jeffrey Ball, EPA Orders BP to Use Less-Toxic Dispersant in Gulf , WSJ, May 20, 2010; Campbell Robertson & Elisabeth Rosenthal, Agency Orders Use of a Less Toxic Chemical in Gulf , N.Y. Times , May 20, 2010.) However, BP continued to use Corexit, disputing EPA’s method of estimating toxicity. (Nancy J. Moore & Linda Roeder, Oil Spills: BP Prepares for ‘Top Kill’ Procedure In Hopes of Shutting Down Gulf Oil Flow , 98 Daily Environment Report A-14 (May 24, 2010); Elisabeth Rosenthal & Anahad O’Connor, BP Kept Using Toxic Chemical in Gulf After E.P.A. Deadline , N.Y. Times , May 24, 2010; Elisabeth Rosenthal, In Standoff With Environmental Officials, BP Stays With an Oil Spill Dispersant , N.Y. Times , May 24, 2010.)

Wright v. BP was filed on July 26, 2010, in the U.S. District Court for the Southern District of Alabama and is the first personal injury lawsuit involving Corexit 9500. Plaintiffs (Gulf coast residents and property owners) claim that BP’s dumping of the dispersant by spraying it from airplanes has caused over 100 residents to seek medical care in emergency rooms for nausea, dizziness, shortness of breath and extreme headaches; many more have visited their personal doctors for similar conditions. An earlier federal class action lawsuit, Parker v. Nalco Co ., filed by Louisiana oystermen against BP and Nalco, which manufactures Corexit 9500, in U.S. District Court for the Eastern District of Louisiana, did not claim personal injury but alleged that the dispersant is four times as toxic as the oil itself. (Tresa Baldas, Gulf Coast Residents File Personal Injury Suit Over Oil Dispersant , National Law Journal , July 29, 2010). See infra, Lawsuits.

 

On May 25 th the Senate Energy and Natural Resources committee had its third hearing on the BP disaster, entitled Liability and Financial Responsibility Issues Related to Offshore Oil Production . Topics included the $75 million damage cap, which has not been revised in 20 years to account for inflation; civil and criminal penalties are likewise obsolete. See infra. (David Ingram, Senators Pressure DOJ to Take Action Against Oil Spill Companies , National Law Journal , May 25, 2010; Clifford Krauss & Matthew L. Wald, BP Prepares for ‘Top Kill’ Procedure to Contain Spill , N.Y. Times , May 25, 2010.)

 

Liability legislation in the 111 th Congress (some, in March 2011, have been reintroduced into the 112 th ) includes:

·        S. 3305, The Big Oil Bailout Prevention Liability Act of 2010 , int. 5/4/2010

·        S. 214, the Big Oil Bailout Prevention Unlimited Liability Act of 2011 was introduced into the 112 th Congress on 1/27/2011

·        S. 3306, The Big Oil Bailout Prevention Trust Fund Act of 2010 , int. 5/4/2010

·        S. 215 with the same title was introduced into the 112 th Congress on 1/27/2011

·        S. 3345, The Big Polluter Pays Act , int. 5/11/2010, to amend 46 U.S.C. to remove the cap on punitive damages established by the Supreme Court in Exxon Shipping Company et al. v. Baker et al. , No. 07–219, 554 U.S. __, 128 S. Ct. 2605 (2008), which imposed a 1:1 ratio of punitive damages to compensatory damages in maritime cases. (Marcia Coyle, Senators Target Supreme Court's 'Exxon' Ruling in Effort to Make Oil Companies Pay for Spills , National Law Journal , June 1, 2010.)

·        S. 3346, Outer Continental Shelf Lands Act Amendments Act of 2010 , int. 5/11/2010

·        H.R. 5214, The Big Oil Bailout Prevention Act of 2010 , int. 5/5/2010

·        H.R. 492, The Big Oil Bailout Prevention Act of 2011, was introduced into the 112 th Congress on 1/26/2011

·        H.R. 5355, To amend the Oil Pollution Act of 1990 to repeal the limitation of liability of a responsible party for a discharge or substantial threat of a discharge of oil from an offshore oil facility, int. 5/20/2010

·        H.R. 5481, To give subpoena power to the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, int. 6/8/2010

·        S. 3515, Department of Interior Research and Technologies for Oil Spill Prevention and Response Act, int. 6/21/2010

·        S. 3516, Outer Continental Shelf Reform Act of 2010, int. 6/21/2010

·        H.R. 5626, the Blowout Prevention Act of 2010, int. 6/29/2010

·        H.R. 5629, the Oil Spill Accountability and Environmental Protection Act of 2010, int. 6/29/2010

 

On Thursday May 27 th the House Judiciary Committee had a hearing entitled Liability Issues Surrounding the Gulf Coast Oil Disaster ; officials from BP, Transocean, Cameron and Halliburton testified, as well as relatives of the deceased oil workers and survivors of the Deepwater Horizon, and others.  

 

Also on May 27 th members of the Senate Committee on Small Business and Entrepreneurship at a hearing entitled Impact of the Deepwater Horizon Oil Spill on Small Businesses , agreed that BP should be held responsible for small business losses as a result of the disaster, as well as communities’ losses and those of individuals. (Andy Medici, Oil Spills: Senate Small Business Committee Members Want BP Held Accountable to Gulf Companies , BNA State Environment Daily , May 28, 2010.)

 

In July, the House Committee on Natural Resources voted for a draft bill [H.R. 3534, see infra this section] to preclude oil companies with poor safety records from receiving offshore oil exploration permits. It defines such companies as those that experienced 10 or more deaths in the last 7 years; the Gulf disaster killed 11 workers. ( BP faces 7-year offshore drilling ban: A US Congressional committee has agreed measures that would ban BP from new offshore drilling for seven years , BBC News , July 15, 2010.)

 

On Aug. 19, 2010, the House Committee on Energy and Commerce, Subcommittee on Energy and Environment, had a hearing entitled “ The BP Oil Spill: Accounting for the Spilled Oil and Ensuring the Safety of Seafood from the Gulf ."

 

On Aug. 24 th , the second day of the 4 th session (running from Aug. 23-27) of  a joint investigation by the U.S. Coast Guard and the new Bureau of Energy Management, co-chaired by David Dykes and Captain Hung Nguyen, Halliburton’s Jesse M. Gagliano testified that he had expressed concerns about BP’s planned closing of the well connected to the Deepwater Horizon and highlighted some of the risky decisions that were made. (Robbie Brown, Adviser Says He Raised Concerns to BP on Well , N.Y. Times , Aug. 24, 2010; Deepwater Horizon Joint Investigation: The Official Site of the Joint Investigation Team .) On Aug. 25 th , the third day of the session, BP’s Harry Thierens spoke as well as several Transocean executives. (See Deepwater Horizon Joint Investigation: The Official Site of the Joint Investigation Team .)

 

On Sept. 2, 2010, the N.Y. Times reported that legislation passed by the House on July 30, 2010, H.R. 3534, the Consolidated Land, Energy, and Aquatic Resources Act of 2009 (aka the CLEAR Act) contains an amendment (written by California Representative George Miller) that, while not explicitly naming BP, bars any company with “more than 10 fatalities at its exploration, development, and production facilities and refineries as a result of violations of Federal or State health, safety, or environmental laws,” or that was penalized over $10 million under the CAA or the Clean Water Act, within seven years prior to the request date, from acquiring a lease to drill on the Outer Continental Shelf (see § 206 (Leases, easements, and rights-of-way), § (b) Environmental Diligence, which amends subsection 8 (d) of the Outer Continental Shelf Lands Act (43 U.S.C. 1337), entitled: Requirement for Certification of Responsible Stewardship, at pages 57-59 of the engrossed bill). BP warned Congress that if the CLEAR Act is enacted, and BP is thus denied new offshore drilling permits, it just might not have enough money to meet its obligations to repair damages in the Gulf from the Deepwater Horizon disaster. (Clifford Krauss & John M. Broder, BP Says Limits on Drilling Imperil Oil Spill Payouts , N.Y. Times , Sept. 2, 2010.) H.R. 3534 was placed on the Senate calendar Aug. 4, 2010, but it was not enacted and I can find no evidence in February 2011 that it has been reintroduced into the 112 th Congress.

 

The pace of future approvals of new deepwater drilling permits may be at issue when Mr. Salazar testifies in hearings before the Senate Energy Committee on Mar. 2 nd and the House Natural Resources Committee on Mar. 3 rd . (Geof Koss & Margaret Kriz Hobson, Oil price spike reignites debate , CQ, Feb. 28, 2011.)

 

4.4.3.2.3. Liability : Transocean has cited the Limitation of Liability Act of 1851, 46 U.S.C. § 30501 et seq., for the proposition that a vessel owner is liable only for the post-accident value of the vessel and cargo except in cases of negligence, to limit its liability to $26.7 million. (Carrie Levine & David Ingram, Companies in Gulf Spill Tap Washington Help: Lawyers, lobbyists enter fray as Washington backlash grows , National Law Journal , June 1, 2010.) (Interesting definition of a typically stationary offshore drilling rig as a “vessel.” See David W. Robertson, How the Supreme Court's New Definition of "Vessel" is Affecting Seaman Status, Admiralty Jurisdiction, and Other Areas of Maritime Law , 39 Journal of Maritime Law & Commerce 115 (2008)) This attempt caused such an outcry that one of Transocean’s attorneys told the House Judiciary Committee at the end of May that “the company filed under the [Limitation of Liability] act only at the insistence of its insurers, and that a ‘failure to do so could have resulted in the loss of insurance coverage to help pay claims.’” (Jad Mouawad & John Schwartz, Cleanup Costs and Lawsuits Rattle BP’s Investors , N.Y. Times , June 2, 1010.)

 

On June 1 st , Attorney General Eric Holder announced in New Orleans that civil and criminal investigations had begun into the oil spill, although it was not clear whether subpoenas had been issued to any of the companies involved. The DOJ is looking into violations of the Clean Water Act, the Oil Pollution Act of 1990, the Migratory Bird Treaty Act and the Endangered Species Act. (Helene Cooper & Peter Baker, U.S. Opens Criminal Inquiry Into Oil Spill , N.Y. Times , June 1, 2010.)

BP’s Compensation fund: In June, 2010, the administration announced that BP, a primarily responsible party, was required under the  Oil Pollution Act of 1990 to set up a $20 billion oil spill escrow fund to compensate victims. (Press release: BP Establishes $20 Billion Claims Fund for Deepwater Horizon Spill and Outlines Dividend Decisions , June 16, 2010.) Kenneth R. Feinberg , who administered the federal 9/11 fund, was appointed independent administrator. The Gulf Coast Claims Facility became operational on Aug. 23, 2010 and is the official way for individuals and businesses to file claims with BP for damages as a result of the escaped oil from the Deepwater Horizon. Victims have the option of suing the company and possibly enduring years of litigation, or taking a lump sum settlement and forfeiting the right to sue later, when the effects of the oil are better known or understood. (Jeffrey Brown, Gulf Oil Spill Fund Chief Feinberg Defends Record on Claims Payments , PBS Newshour, Nov. 24, 2010.) The deadline for Emergency Advance Payments ($5000 for individuals and $25,ooo for businesses) was Nov. 23, 2010, but victims can still apply for a Full Review Final Payment or an Interim Payment; victims dissatisfied with the amount of the settlement offer can appeal to the Coast Guard under the Oil Pollution Act. ( GCCF FAQs )

Reports commissioned by Mr. Feinberg estimated that the Gulf will recover faster than previously anticipated, by the end of 2012. The prediction seemed a bit self-serving, as it will influence the amount of payments to people whose livelihoods were devastated by the disaster. Many area residents are not pleased with the conclusions or the payment process. (John Schwartz & Mark Schrope, Report Foresees Quick Gulf of Mexico Recovery , N.Y. Times, Feb. 1, 2011.) Indeed, on Feb. 24, 2011, it was announced that so far only $3.5 billion had been paid to 168,000 claimants (although 490,000 people have filed claims, 80% of which Feinberg says do not have correct documentation); many complain about the slow pace and small amounts of the payouts. Furthermore, Feinberg’s law firm gets paid an astonishing $850,000 every month by BP to administer the fund, and anything left over reverts to BP, which quite understandably considers him too generous with payouts. (Debbie Elliott, On Gulf Coast, Frustration At BP Claims Process , NPR, Feb. 24, 2011.) U.S. District Judge Carl Barbier recently ruled that Mr. Feinberg is not truly independent and is working in BP’s interest. (Laurel Brubaker Calkins & Allen Johnson, Jr., BP Says Feinberg Fund ‘Exceeds’ Law Requiring Spill Payments , Bloomberg, Feb. 19, 2011; BP tries to wriggle off the hook: While collecting windfall profits, oil giant backs away from its commitments to restore the Gulf Coast , Climate Progress , Mar. 7, 2011; Campbell Robertson, No Vacancies, but Some Reservations: BP says the formula used to determine compensation for businesses hurt in last year's spill is too generous , N.Y. Times , July 15, 2011.)

 

BP’s Gulf of Mexico Research Initiative : On May 24, 2010, BP announced a commitment of up to $500 million to a research program to study the impact of the oil disaster on the environment and on public health. An alliance of 5 Gulf Coast states (Texas, Louisiana, Mississippi, Alabama, and Florida) will be in charge of dispensing funds from the Initiative over the next 10 years, BP announced on Sept. 29 th ; a board of scientists was selected to disperse the funds. (Press Release, BP and the Gulf of Mexico Alliance Announce Implementation of BP’s $500 Million Independent Research Initiative , Sept. 29, 2010.) Shortly after the spill BP gave several universities and research groups $50 million; however, the balance of the promised funds has not materialized as of Feb. 24, 2011. Scientists are frustrated by the lack of money, and the lack of focus and leadership in the research, especially as spring approaches. (Christopher Joyce, 'Fog Of Research' Clouds Study Of Oil's Effects In Gulf , NPR, Feb. 24, 2011.)

 

On Tuesday, July 26, 2010, BP announced that it was replacing the widely criticized Tony Hayward with Robert Dudley, an American and first non-Brit CEO, in October.  It also announced a record $17 billion 2Q loss after setting aside $32.2 billion, and planning to sell $30 billion in assets over the next 18 months to help pay for the cleanup. (Julia Werdigier, BP Envisions a Leaner Future Under Its New Chief Executive , N.Y. Times , July 27, 2010.)

 

As of August, 2010, 77 actions and over 200 other wrongful death and economic and environmental damage cases had been filed against BP, Transocean Ltd., Halliburton Co. and Cameron International Corp.

On Tuesday Aug. 10 th , the U.S. Judicial Panel on Multidistrict Litigation consolidated the cases before U.S. District Judge Carl Barbier in the Eastern District of Louisiana; he has divested his financial holdings in 2 of the defendant companies, unlike his colleagues on the court. (Leigh Jones, BP oil spill cases consolidated before Judge Barbier in New Orleans , National Law Journal , Aug. 10, 2010.)

 

See Andrea J. Chambers & Jerry D. Brown, The 2010 Gulf Oil Spill and Questions of Liability (2010 Emerging Issues 5281, Aug. 25, 2010) (“lays out the most common types of legal actions that will arise … and analyzes the potential long-term impacts in terms of new legislation, new regulations, and new legal liability.”), available from LexisNexis (password required).

 

On Wednesday Sept. 8, 2010, BP publicly released an internal 193-page report ( including an interesting animated chronology ) claiming that “a complex and interlinked series of mechanical failures, human judgments, engineering design, operational implementation and team interfaces” was responsible for the disaster in April. According to the N.Y. Times , the report attempts to deflect responsibility from BP onto Halliburton, which was responsible for the cementing process, and the owner of the rig, Transocean. Reports into the disaster are pending from the Coast Guard, the Justice Department, and the Bureau of Ocean Energy Management, Regulation and Enforcement. (Ian Urbina, Report by BP Finds Several Companies at Fault in Spill , N.Y. Times , Sept. 8, 2010.)

 

On Dec. 15, 2010, the Justice Department filed a lawsuit ( United States v. BP Exploration and Production Inc. et al. ) in the U.S. District Court for the E.D. of Louisiana for violations of the Oil Pollution Act of 1990 and the Clean Water Act. Transocean Holdings LLC, Transocean Offshore Deepwater Drilling Inc., and Transocean Deepwater Inc. were among the named defendants. The lawsuit seeks “unlimited removal costs and damages under the Oil Pollution Act of 1990.” Attorney General Holder says the Department is considering whether to file criminal charges separately. (Alan Kovski, Government Sues BP, Transocean, Others Over Gulf Spill, Seeks ‘Unlimited’ Damages , BNA Daily Environment Report , Dec. 15, 2010; Agence France-Presse, U.S. sues BP, eight others over Gulf oil spill , GRIST, Dec. 15,2010.)

 

On Wednesday, April 20, 2011, the first anniversary of the explosion on the Deepwater Horizon and the deadline for all parties to file claims against each other, BP filed papers in federal court in New Orleans suing Cameron International which made the faulty BOP, Halliburton, the cement contractor, and the rig owner, Transocean Ltd., the latter for at least $40 billion (with a b) in damages. On the same day, Transocean filed papers against BP for $12.9 million and against Halliburton, and other companies for $20 million. Cameron, not to be left out, filed cross claims, counterclaims, and indemnity claims. (Harry R. Weber, BP Sues Rig Owner for $40 Billion, Alleging Negligence in Oil Spill , AP , April 21, 2011; John Schwartz, BP Sues 3 Companies Over Oil Spill , N.Y. Times , April 20, 2011; Campbell Robertson, Beyond the Oil Spill, the Tragedy of an Ailing Gulf , N.Y. Times , April 20, 2011.)

 

On Friday, March 2, 2012, BP reached a $7.8 billion dollar settlement agreement with businesses and individuals. BP has already paid out about $6.1 billion to compensate about 220,000 plaintiffs from the Gulf Coast Claims Facility, or GCCF, see supra. The 2012 agreement will be in addition to it. Kathy Finn, Andrew Longstreth & Tom Bergin, BP's $7.8 billion deal may speed payments for U.S. spill , Chicago Tribune , March 3, 2012.

 

4.4.3.2.4. Executive Branch Response: President Obama, who visited the site on May 2 nd , called it “a massive and potentially unprecedented environmental disaster. The oil that is still leaking from the well could seriously damage the economy and the environment of our Gulf states and it could extend for a long time. It could jeopardize the livelihoods of thousands of Americans who call this place home.” ( Remarks in Venice, Louisiana , May 2, 2010, Daily Comp. Pres. Docs.; Steven D. Cook, Oil Spills: Impact of Gulf Spill Could Last Decades, Witnesses Tell Senate Environment Panel , 90 BNA Daily Environment Report A-7, May 12, 2010. On June 1 st , President Obama referred to the Gulf oil spill as "the greatest environmental disaster of its kind in our history." (Agence France-Presse, Obama admin opens criminal investigation into oil spill , GRIST, June 2, 2010; Gulf oil spill: US begins criminal investigations , BBC News , June 2, 2010.)

 

National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling : Prior to the official announcement of the appointment of an independent commission to examine the BP disaster, Representatives Lois Capps (D-CA) and Edward Markey (D-MA), with 22 co-sponsors, introduced the “BP Deepwater Horizon Disaster Inquiry Commission Act of 2010,” H.R. 5241 . Senator Sheldon Whitehouse (D-RI) introduced a companion proposal, S. 3344 , with 3 cosponsors. (Ben Geman, Obama to create independent commission to review Gulf oil spill , The Hill , May 17, 2010; Daniel J. Weiss, Obama to establish presidential commission to investigate Gulf oil spill , GRIST, May 17, 2010.)

 

The announcement came on May 22 nd in the president’s weekly address, and an executive order signed on the 24 th (Exec. Order 13543 of May 21, 2010, National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling , 75 Fed. Reg. 29397 (May 26, 2010)) officially created the commission. Former senator and governor Bob Graham and former EPA chief William Reilly, who was in office during the Exxon Valdez spill, will co-chair the bipartisan commission with five other members: Frances G. Beinecke, Donald Boesch, Terry D. Garcia, Cherry A. Murray and Frances Ulmer. (Richard Simon, Gulf oil spill: Obama names investigation panel , Greenspace , June 14, 2010.) Richard Lazarus is the Executive Director. (Nancy J. Moore & Linda Roeder, Oil Spills: BP Prepares for ‘Top Kill’ Procedure In Hopes of Shutting Down Gulf Oil Flow , 98 Daily Environment Report A-14 (May 24, 2010))

 

On Monday July 12 th , Bob Graham said the panel would try to determine if BP was operating in a more risky way than the rest of the industry. The commission has 6 months to fulfill its mandate. (John M. Broder, U.S. Issues Revised Offshore Drilling Ban , N.Y. Times , July 12, 2010; Sarah Lyall, In BP’s Record, a History of Boldness and Costly Blunders , N.Y. Times , July 12, 2010.) The commission met for the 3 rd time Sept. 27-28 th in Washington, D.C.; its agenda includes “the government decision making process, the impact of oil remaining in the water, the use of chemical dispersants, the future of offshore drilling, concerns over drilling in the Arctic, the impact on local economies and the environment, and coastal restoration programs. A diverse group of local, state, and federal officials are scheduled to testify.” (Lynn Garner, Drilling: Salazar Says Interior Close to Decision On Moratorium, New Offshore Drilling Rules , 183 BNA Daily Environment Report A-3 (Sept. 23, 2010)). See infra for the Commission’s conclusions.

 

The commission released Staff Working Paper No. 3, entitled The Amount and Fate of the Oil on Wednesday, Oct. 6, 2010. The report blames the Obama administration for initially underestimating the amount of the oil, as well as for its conclusion in August and September that much of the oil had simply disappeared. The initial official estimate of the amount of oil escaping, given by a government scientist with little experience in the field, of 1000 barrels-a-day, was subsequently revised up to 5,000-barrels-a-day (see supra, Amount of Oil ). Those estimates were discredited by Professor Wereley of Purdue University in May, to the chagrin of BP which will owe more money as a result. The statements by Carol Browner on the fate of the oil were also later revised when independent scientists refuted her theory. The Commission is expected to complete its work and submit a report to the president by Jan. 12, 2011. (Ari Shapiro, Panel Blasts Government On Gulf Oil Spill Response , NPR.org, Oct. 7, 2010; Alan Kovski, Oil Spills: Spill Commission Staff Raises Policy Options, Suggests Clearer Roles in Spill Responses , 193 BNA Daily Environment Report A-8 (Oct. 7, 2010)) Other papers were released by the Commission on the same day, including Staff Working Paper 4, The Use of Surface and Subsea Dispersants During the BP Deepwater Horizon Oil Spill . (Editorial, Hard Truths on the Spill , N.Y. Times , Oct. 7, 2010 (regarding the Commission’s release of the 4 preliminary staff reports.))

o    On Oct. 28, 2010, in a “watershed finding,” investigators led by Fred H. Bartlit, Jr., announced in a letter to the Commission that several weeks before the explosion in April, 3 out of 4 laboratory tests on samples similar in composition to the material used at the Macondo well had shown that the concrete foam Halliburton had sealed it with was unstable and that Halliburton and BP had been well aware that it did not meet industry standards. (David Hammer, Oil Spill Commission finds Halliburton's cement was unstable, failed multiple tests before Deepwater Horizon disaster , The Times-Picayune , Oct. 28, 2010; John M. Broder, Firms Knew of Cement Flaws Before Spill, Panel Says , N.Y. Times , Oct. 28, 2010.) A public hearing will be held Nov. 8-9 in Washington to disclose additional findings. The investigators emphasized that the faulty cement was not the sole cause of the accident, but certainly a primary cause. (D.M. Levine, Bartlit BP Spill Bombshell: Halliburton Knew Well Cement Was Flawed , AmLaw Daily , Oct. 28, 2010.)

§   Halliburton’s stock price declined by 16% by the end of the day the report was released though it recovered somewhat the following day. It released a statement Thursday night in which it defended its actions and blamed BP. (Anna Driver, Halliburton shares gyrate after spill report , Yahoo! News , Oct. 29, 2010; Lynn Garner, Oil Spills: Halliburton's Cement Slurry Was Unstable In Latest Tests, Oil Spill Commission Told , 208 BNA Daily Environment Report A-7 (Oct. 29, 2010); John M. Broder, Replying to Report, Halliburton Says BP Is to Blame in Gulf , N.Y. Times , Oct. 29, 2010.)

o    However, on Nov. 8 th , Mr. Bartlit disagreed with the findings of other investigators and said he had found no evidence that any of the three PRPs had cut corners to speed the completion of the Macondo well. He also said the investigation had been hampered by the lack of subpoena power, which he plans to request from Congress. (John M. Broder, Investigator Finds No Evidence That BP Took Shortcuts to Save Money , N.Y. Times , Nov. 8, 2010; Editorial, A Culture of Carelessness , N.Y. Times , Nov. 14, 2010.)

 

On Jan. 5, 2011, the Commission released its final findings , in advance of its final report due the week of Jan. 10 th . It concluded that the oil spill was “an avoidable accident caused by a series of failures and blunders by the companies [that is, BP, Halliburton, Transocean, and several sub-contractors] involved in drilling the well and the government regulators assigned to police them….” The Commission also warned that if changes were not made, another such accident was likely to occur. Unsurprisingly, Halliburton and Transocean responded, to the effect that they had acted under BP’s explicit direction. The report also referred to the companies’ “lack of a culture of safety,” a “breakdown of communication,” and a failure of management. (John M. Broder, Blunders Abounded Before Gulf Spill, Panel Says , N.Y. Times , Jan. 5, 2011; Lynn Garner, Suzanne Pagano & Ari Natter, Oil Spills: BP Spill Commission Cites Mismanagement By Companies as Primary Cause of Gulf Oil Spill , 5 BNA Daily Environment Report A-13 (Jan. 7, 2011))

o    Several weeks after the final findings were released, a group of oil spill victims filed a consolidated class action lawsuit in U.S. District Court for the Eastern District of Louisiana alleging both federal and Florida RICO Act violations. (In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010, E.D. La., No. 2:10-md-2179, Jan. 24, 2011.) (Susanne Pagano, Oil Spills: Oil Spill Victims File Class Action Against BP, Allege RICO Violations , 17 BNA Daily Environment Report A-10 (Jan. 26, 2011))

o    On Jan. 28, 2011, an editorial in the N.Y. Times entitled “ What Oil Spill? ” discussed the hostile reactions Mr. Graham and Mr. Reilly received from Republicans on the House Natural Resources Committee when they presented the Commission’s findings, especially its quite reasonable suggestion that the industry needed more government oversight to become safer.

o    On Feb. 17, 2011, the commission issued a report concluding that the accident was, in the words of the N.Y. Times , “a result of a breakdown of company management and government oversight.” (John M. Broder & Clifford Krauss, Judge Tells Government to Resume Permits for Drilling , N.Y. Times , Feb. 17, 2011.)

 

Other studies of the disaster: The National Academy of Engineering announced in July, 2010, that it would be forming an investigative committee at the request of Interior Secretary Ken Salazar and headed by former Secretary of the Navy Donald Winter, now an engineering professor at the University of Michigan. The committee is entitled Analysis of Causes of the Deepwater Horizon Explosion, Fire, and Oil Spill to Identify Measures to Prevent Similar Accidents in the Future . ( National Academy of Engineering oil spill inquiry takes shape , NewsWatch: Energy , July 13, 2010.) The committee will meet for the 6 th time on Sept. 26, 2010; its agenda is posted on the web.

 

A joint investigation is underway by the Coast Guard and the Bureau of Ocean Energy Management, Regulation and Enforcement. (Lynn Garner, Drilling: Salazar Says Interior Close to Decision On Moratorium, New Offshore Drilling Rules , 183 BNA Daily Environment Report A-3 (Sept. 23, 2010)).

 

The National Institute of Environmental Health Sciences (NIEHS) announced Feb. 28, 2011, it was launching the Gulf Long-Term Follow-Up Study (GuLF STUDY) of the health of 55,000 Gulf of Mexico residents who helped with the BP cleanup, and would follow the participants for at least 5 years. (Sara Reardon, NIH Begins Study of Oil Spill's Impact on Residents , ScienceInsider , Feb. 28, 2011.)

 

For additional commentary, see:

·        Arne Jernelöv, How to defend against future oil spills , 466 Nature 182 (July 8, 2010).

·        Timothy J. Crone & Maya Tolstoy, Magnitude of the 2010 Gulf of Mexico Oil Leak , 330 (6004) Science 634 (Oct. 29, 2010) (“Assuming a constant flow rate and subtracting the 804,877 barrels of oil (127,965 m 3 ) collected at the seafloor [], we estimated that the total oil released from the Deepwater Horizon leak was 4.4 × 10 6 ± 20% barrels (7.0 × 10 5 m 3 ). ... Despite the uncertainties, it is clear that this oil release exceeds the Exxon Valdez spill by about an order of magnitude, with flow rates at least one order of magnitude higher than initially reported.”)

 

Moratorium on offshore drilling: President Obama held a news conference on May 27 th , as the “top kill” of the gushing well was in progress, to answer criticisms that his administration had not acted decisively enough and comparing it with Hurricane Katrina under the previous administration. He announced that a temporary moratorium on new offshore drilling permits (implemented after the BP well began gushing oil in late April, in order to give DOI time to produce its safety review, infra, and effective on May 28 th ) would continue for another 6 months, and that exploratory drilling off the coasts of Alaska and Virginia as well as drilling at 33 wells currently in progress in the Gulf of Mexico would be suspended. (Alan Kovski, Oil Spills: Administration Details Drilling Moratorium, Cites Possibility of Criminal Prosecutions , 104 BNA Daily Environment Report A-8 (June 2, 2010) (with links to DOI notices and memoranda on the moratorium)) President Obama also announced stricter safety standards for and rigorous inspections of oil drilling rigs, as a result of a 30-day review by DOI Secretary Salazar released May 26 th . He used the press conference to press for clean energy legislation, as many environmentalists have hoped. He said that to focus on renewable energy “will create a new, homegrown, American industry that can lead to countless new businesses and new jobs.”

·        On June 22 nd , a federal judge (Martin L.C. Feldman) in Louisiana issued a preliminary injunction ordering Kenneth Salazar and the MMS acting director to lift the moratorium until a full trial on the merits, giving economic harm to businesses and workers as his rational. See Hornbeck Offshore Services v. Salazar , E.D. La., No. 2:10-cv-01663. The White House said it would immediately appeal to the U.S. Court of Appeals for the Fifth Circuit. Unsurprisingly, the oil industry was delighted and environmentalists, disappointed. (Susanne Pagano, Oil Spills: Federal Judge Lifts Six-Month Moratorium On Deepwater Drilling in Gulf of Mexico , 119 BNA Daily Environment Report A-14 (June 23, 2010.))

·        On July 6, 2010, federal authorities challenged the ruling, and asked the Fifth Circuit Court of Appeals to reinstate the moratorium while the government appeals the lower court decision, saying that the company and others that had joined the suit had not shown that they would suffer permanent damage from the moratorium. (John M. Broder, Obama Asks Court to Reinstate Ban on Deepwater Drilling , N.Y. Times , July 7, 2010.) (NB: Sometime over the summer the N.Y. Times began requiring free registration for access to its online articles.) The appeal came before a 3-judge panel of the 5 th Circuit on July 8, 2010. 

o    On July 7 th , the Alliance for Justice reported that the 3 judges on the panel, and others on the 5 th Circuit, have ties to the oil and gas industries; they either represented clients in the industry while in private practice, or have financial investments in the industry. (Tresa Baldas, 5th Circuit Judges in Drilling Moratorium Case Have Oil Ties, Report Says , National Law Journal , July 08, 2010; Press Release: Alliance for Justice Releases Report on Oil-Industry Ties to Fifth Circuit Judges Hearing Drilling Moratorium Case , July 7, 2010. The report is entitled Judicial Gusher: the Fifth Circuit's Ties to Oil .)

·        On Monday July 12 th , Interior Secretary Salazar issued revised rules for a second deepwater drilling moratorium and additional safety rules. The new rules, unlike the ones that were struck down, would allow some rigs to continue operating if they meet certain conditions. The moratorium could last until November. (John M. Broder, U.S. Issues Revised Offshore Drilling Ban , N.Y. Times , July 12, 2010; Editorial, A New, and Necessary, Moratorium , N.Y. Times , July 13, 2010.)

o    On July 20, 2010, Ensco Offshore sued the Interior Department ( Ensco Offshore v. Salazar , Case No. 2:10-cv-01941-MLCF-JCW, in the E.D. La.) claiming the Department had violated the APA and the Outer Continental Shelf Lands Act by imposing the second moratorium and the safety rules. (Susanne Pagano, Drilling: Oil Rig Contractor Files Amended Complaint Over Latest Drilling Moratorium, Other Rules , 138 BNA Daily Environment Report A-11 (July 21, 2010))

o    On Oct. 19 th , Judge Martin Feldman struck down the safety rules imposed July 12 th . The moratorium had already been lifted on Oct. 12 th (see infra). (Susanne Pagano, Drilling: Federal Judge Strikes Down Offshore Drilling Rules Issued After Gulf Oil Spill , 202 BNA Daily Environment Report A-11 (Oct. 21, 2010))

·        In a speech to the European Parliament on July 7, 2010, Gunther Oettinger , the European Union’s Commissioner for Energy, called for a de facto moratorium on deepwater drilling until the causes of the Gulf disaster are understood. Norway imposed its own temporary deepwater moratorium in June. (John Collins Rudolf, Europeans Mull a Deepwater Drilling Freeze , N.Y. Times Green Blog, July 13, 2010.)

·        On August 24, 2010, the N.Y. Times reported that the economic harm the industry claimed would result from the moratorium (thousands of jobs lost & billions in lost revenue) never, in fact, materialized.  (John M. Broder & Clifford Krauss, Job Losses Over Drilling Ban Fail to Materialize , N.Y. Times , Aug. 24, 2010.)

·        On Sept. 2, 2010, a fire on another oil rig, owned by Mariner Energy, in the shallow waters of the Gulf of Mexico forced 13 crew members to jump overboard but caused no injuries or significant oil leakage. The accident demonstrated to members of Congress and others in the industry that the dangers of offshore drilling are not confined to deep waters, and in an atmosphere cautious about drilling if not outright hostile, it came at a bad time. An investigation has been called for and the media speculates whether the Mariner accident will be used to undercut efforts to end the deep-water drilling moratorium. However, the Bureau of Ocean Energy Management, Regulation and Enforcement says the moratorium will be lifted on November 30 th as planned. (John Collins Rudolf, Mariner Rig Accident Undercuts Efforts to End Drilling Moratorium , N.Y. Times , Sept. 3, 2010; Clifford Krauss & John M. Broder, Spotlight Shifts to Shallow-Water Wells , N.Y. Times , Sept. 3, 2010.) In fact, it may be lifted sooner than expected, as new offshore drilling regulations and standards were expected to be released before the end of November; the moratorium was only expected to last until they were promulgated. (Lynn Garner, Drilling: Salazar Says Interior Close to Decision On Moratorium, New Offshore Drilling Rules , 183 BNA Daily Environment Report A-3 (Sept. 23, 2010)).

·        And, indeed, the announcement was made on Tuesday, October 12 th that the controversial freeze on deep-water drilling was lifted, six weeks early; the new safety and oversight rules were imposed about 2 weeks ago. Political pressure to lift the moratorium has been intense and intensifying. However, drilling will not be resumed immediately as it could take weeks or months for the industry to comply with the new regulations. (Peter Baker, White House is Lifting Ban on Deep-Water Drilling , N.Y. Times The Caucus , Oct. 12, 2010; Peter Baker & John M. Broder, U.S. Lifts the Ban on Deep Drilling, with New Rules , N.Y. Times, at A-1, Oct. 13, 2010. ) Apparently no affected group was pleased, environmentalists because they feel that the Gulf is in jeopardy, and industry because the costs of compliance, administrative and financial, mean the moratorium is essentially still in place.

o    The 2 new rules, the Drilling Safety Rule and the Workplace Safety Rule , were imposed Sept. 30, 2010; the first took effect immediately as it was issued as an “interim final rule” under an “emergency rulemaking process.” (DOI, Secretary Salazar’s Speech on a Safe, Secure, Clean Energy Future , Sept. 30, 2010; Press Release, DOI, Salazar Announces Regulations to Strengthen Drilling Safety, Reduce Risk of Human Error on Offshore Oil and Gas Operations , Sept. 30, 2010 (including links to fact sheets on the regulations);  John M. Broder, U.S. Issues New Rules on Offshore Drilling , N.Y. Times, Sept. 30, 2010; Paul W. Herring, Department of Interior Issues New Rules for Offshore Oil and Gas Operations , National Law Review , Oct. 2, 2010.)

o    The Drilling Safety Rule, aka, the Oil and Gas and Sulphur Operations in the Outer Continental Shelf—Increased Safety Measures for Energy Development on the Outer Continental Shelf; Final Rule , was published on Oct. 14, 2010, at 75 Fed. Reg. 63346.  It amends 30 C.F.R. Part 250 and was effective immediately.

o    The Workplace Safety Rule, aka, the Oil and Gas and Sulphur Operations in the Outer Continental Shelf—Safety and Environmental Management Systems; Final Rule, can be found at 75 Fed. Reg. 63610 (Oct. 15, 2010). It amends 30 C.F.R. Part 250 and is effective Nov. 15, 2010.

·        On Dec. 1, 2010, the administration announced that, because of the BP disaster, the U.S. won’t end the drilling ban in the eastern Gulf and up the Atlantic coast for at least another 7 years, until stronger safety and environmental standards were in place.  (John M. Broder & Clifford Krauss, U.S. Halts Plan to Drill in Eastern Gulf , N.Y. Times, Dec. 1, 2010.)

·        On Feb. 17, 2011, Judge Feldman of the 5 th Circuit (who declared the moratorium illegal in June 2010, supra), ordered the DOI to make a decision within 30 days on 5 new applications for deepwater drilling operations in the Gulf requested by the British company Ensco. On the same day a consortium of oil companies, the Marine Well Containment Company , which includes BP, Chevron, ConocoPhillips, Exxon Mobil and Shell, announced that it has developed a new system for capping underwater oil spills; another emergency response plan is due to be released in March from the Helix Energy Solutions Group . (John M. Broder & Clifford Krauss, Judge Tells Government to Resume Permits for Drilling , N.Y. Times , Feb. 17, 2011.) On Feb. 28 th DOI announced that it had approved the first new deepwater drilling permit (to drill in 6500 feet of water off Louisiana) since the BP disaster, just as oil prices, conflict in Libya, and political pressure to ease regulatory restraints on domestic energy production are increasing. Mr. Bromwich, director of BOEMRE, said the approval was not in response to Judge Feldman’s Feb. 17 th ruling, with which the agency disagrees. (John M. Broder & Clifford Krauss, Oil Drilling to Resume in the Gulf’s Deep Waters , N.Y. Times , Feb. 28, 2011; Clifford Krauss & John M. Broder, Deepwater Oil Drilling Picks Up Again as BP Disaster Fades , N.Y. Times , March 4, 2012.)

 

Obama visited Louisiana’s coast on May 28 th  for the first time since May 2 nd , and again on June 4 th . (Jennifer A. Dlouhy, Obama suspends offshore exploratory drilling , Houston Chronicle, May 27, 2010; The White House Blog, Katelyn Sabochik, "Whatever is Necessary to Protect and Restore the Gulf Coast," May 27, 2010.)

 

In a speech on the economy at Carnegie Mellon University in Pittsburg on June 2 nd the president spoke about the Gulf disaster and the country’s transition to a “clean energy economy”; he voiced a commitment to the American Power Act [see supra] and said that although “the votes may not be there right now, [] I intend to find them in the coming months.” Despite the ongoing catastrophe in the Gulf, he said that “safe” and “careful” offshore drilling could be part of the transition to the new energy economy, but was not a long-term solution. (Leora Falk, Legislation: Obama Says He Will Get 60 Votes Needed to Pass Senate Climate Bill, Cut Emissions , WCCR, June 2, 2010.)

 

The MMS: The Minerals Management Service in the Department of the Interior, which both oversees energy companies to be sure they are in compliance with federal safety and environmental laws, and collects about $13 billion annually in royalties for drilling leases (thus making it the largest federal government fundraiser after the IRS), will have these conflicting functions bifurcated, Interior Secretary Ken Salazar announced on May 12 th , less than a month after the Macondo well blew up. (Juliet Eilperin & Ed O'Keefe, Offshore drilling agency to undergo radical overhaul, Salazar announces , Wash. Post , May 12, 2010.)

The existing agency has been criticized in the past for excessive coziness with the energy industry and various ethical lapses (Derek Kravitz & Mary Pat Flaherty, Report Says Oil Agency Ran Amok: Interior Dept. Inquiry Finds Sex, Corruption , Wash. Post , Sept. 11, 2008; Charlie Savage, Sex, Drug Use and Graft Cited in Interior Department , N.Y. Times , Sept. 10, 2008 (referring to “[a] culture of ethical failure” and “a culture of substance abuse and promiscuity” at the agency)), which have apparently continued unabated for years and which the current Secretary of DOI, Mr. Salazar, hopes to avoid in future. (Ari Natter, Drilling: Minerals Management Service to Establish Separate Environmental Enforcement Office , 90 BNA Daily Environment Report A-4, May 12, 2010.)

It was revealed on May 14 th that the MMS had granted permission to drill without getting the required permits from NOAA for several Gulf projects, including the Deepwater Horizon, that had the potential to harm endangered species or marine mammals. Furthermore, in a scenario reminiscent of the Bush administration’s interference with scientific findings, see supra § 4.2.4., the MMS “routinely overruled” its biologists who raised questions about the safety of drilling proposals in the Gulf and Alaska (the scientists would not give their names for fear of reprisals). Kierán Suckling, director of the Center for Biological Diversity (which has filed an intent to sue over noncompliance with endangered species laws), said the MMS had “given up any pretense of regulating the offshore oil industry,” and that it appeared to think its mission was “to help the oil industry evade environmental laws.” (Ian Urbina, U.S. Said to Allow Drilling Without Needed Permits , N.Y. Times , May 13, 2010.)

 

On Monday May 17 th , Chris Oynes, the associate Minerals Management Service administrator for offshore drilling programs, announced his retirement. (Eileen Sullivan & Matthew Daly, MMS drilling official retires in oil spill fallout , AP.)

 

On May 19 th , Secretary Salazar announced that the MMS would be divided into three independent entities: the Bureau of Ocean Energy Management, Regulation and Enforcement will be responsible for the sustainable development of the Outer Continental Shelf’s energy resources; the Bureau of Safety and Environmental Enforcement will be responsible for ensuring oversight, safety, and environmental protection in all offshore energy endeavors; the Office of Natural Resources Revenue will be responsible for royalty and revenue management functions. The MMS, created in 1982 during the Reagan administration, will cease to exist. ( Salazar Splits Minerals Management Service in Three , Environment News Service , May 19, 2010; Fact Sheet: The BSEE and BOEM Separation: An Independent Safety, Enforcement and Oversight Mission , DOI, Jan. 19, 2011.)

 

The Interior Department issued a report entitled: Investigative Report: Island Operating Company et al (Mar. 31, 2010, posted to web May 25, 2010), which covered 2000-2008. It documented MMS staffers accepting gifts such as tickets to sports events and hunting and fishing trips from the oil industry, using illicit drugs, viewing pornography on office computers, and falsifying inspection reports; however, after Donald C. Howard, an inspector for the Gulf of Mexico Region, was fired in January 2007, the number of such incidents apparently declined somewhat. Secretary Salazar wants the investigation expanded; BP filed its exploration plan for the Deepwater Horizon in February 2009, a month after he took office. (Jake Tapper, Political Punch : Interior Department Inspector General Issues Report Detailing Sleaze at Minerals Management Service , ABC News , May 25, 2010; Greg Bluestein & Matthew Daly, BP internal probe focuses on other companies' work , Yahoo News , May 25, 2010; Ian Urbina, Inspector General’s Inquiry Faults Regulators , N.Y. Times , May 24, 2010.)

 

On May 27 th it was announced that MMS Director S. Elizabeth Birnbaum, who had headed MMS since July 2009, had resigned. (Greg Bluestein & Seth Borenstein, Gulf oil spill now bigger than Exxon Valdez , Yahoo News , May 27, 2010; Press Release: Statements of Secretary of the Interior Ken Salazar and S. Elizabeth Birnbaum , Dept. of the Interior, May 27, 2010.)

 

4.4.3.2.5. Environmental effects : At 6:00 p.m. on May 18 th NOAA closed nearly 46,000 square miles, or about 19% of federal waters, to fishing. (Melissa Nelson, Oil spill to shut down 19 percent of Gulf fishing , AP; Matthew L. Wald & Tom Zeller, Jr., Fishing Ban Is Expanded as Spill’s Impact Becomes More Evident , N.Y. Times , May 18, 2010; Agence France-Presse, U.S. bans more Gulf fishing as oil fears grow for Florida , GRIST, May 18, 2010.) On May 31 st the fishing ban was expanded to 61,854 acres. (Agence France-Presse, Frustration grows as BP warns of long effort to cap spill , GRIST, May 31, 2010.)

By June 2, the restricted area had been increased to 88,502 square miles, or approximately 37% of Gulf of Mexico federal waters ( Ongoing Response Timeline at 70), but areas were opened a few days later; as of June 6 th , 78,264 square miles or 32% of Gulf federal waters remained closed. ( Ongoing Response Timeline at 58.) On June 28 th the closed area was up to 80,228 square miles, or about 33.2% of Gulf federal waters. (Id. at 2.)

 

By Monday, May 24 th , shortly after the oil reached the Louisiana shore, brown pelicans, the state bird which had only been removed from the endangered species list six months earlier, were seen coated in oil as it reached two natural rookeries. (AP, Officials Scrutinize BP's Ability To Close Oil Leak , NPR, May 24, 2010; Joseph Goodman, Jindal sounding alarm as oil bypasses booms in Louisiana , McClatchy Newspapers , May 24, 2010.)

 

A coral reef discovered only in September 2009, 1300 feet deep in the northern Gulf of Mexico, lies only 20 miles northeast of the BP spill and is one of 3 deepwater reefs lying beneath the oil. If the oil coats the corals, it could suffocate them, although the effects of oil on deepwater corals are not known. (John Collins Rudolf, Deep Underwater, Oil Threatens Reefs , N.Y. Times, June 1, 2010; Haeyoun Park, Xaquin G.V., Graham Roberts, Erin Aigner & Shan Carter, The Oil Spill’s Effects on Life Underwater , N.Y. Times , May 28, 2010.)

·        On Tuesday, Nov. 2, 2010, scientists on a NOAA research vessel using a submersible robot discovered large areas of dead and dying coral reefs at depths of 4500 feet about 7 miles southwest of BP’s Macondo well. They believe they were damaged by exposure to toxic substances in the dispersed oil. The chief scientist called the find a “smoking gun,” as it showed that the spill may have harmed marine life. The team took samples to try to link the die-off to the oil spill. (John Collins Rudolf, Dead Coral Found Near Site of Oil Spill , N.Y. Times , Nov. 5, 2010.)