UPDATE: Global Warming: A Research Guide to the U.S. Approach to the U.N. Framework Convention on Climate Change and the Kyoto Protocol

 

By Deborah Paulus- Jagrič

Update by Heidi Frostestad Kuehl

 

Update Author :   Heidi Frostestad Kuehl is the Law Library Director and Associate Professor of Law at the Northern Illinois University College of Law’s David C. Shapiro Memorial Law Library.   She holds a Law degree from Valparaiso University School of Law with a specialization in International Trade and Development and a Master’s Degree in Library and Information Science from the University of Iowa. 

 

Published October 2014

(Originally published in March 2007 ; Updated by Deborah Paulus- Jagrič in February 2009, May 2010, April 2011, and April 2012 )

See the Archive Version!

 

Above: NASA Visible Earth

 

1.          Introduction

There continue to be a number of significant climate-related events. Currently, the Nineteenth Conference of the Parties to the UNFCCC was held in Warsaw and was completed successfully as of November 2013.   News about the UNFCCC Conference of the Parties and the Kyoto Protocol is constantly expanding with current reports and recommendations.   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 everyone was confident that U.S. hostility towards the Protocol would change with the administration. However, in early 2011 and more recently into 2014, 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 we 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 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. We 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 we are actively following the legislative and administrative repercussions of Massachusetts v. EPA .   Overall comparisons to the E.U. and the rest of the world are also included throughout this guide.

 

My primary sources of electronic information are email alerts from the UNFCCC ; Grist ; the N.Y. Times (see below); the European Commission’s news and updates ; 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, search the BNA archives, or access articles through a subscription to Bloomberg Law’s BNA content.   We relied on a blog entitled Warming Law: Changing the Climate in the Courts for updates on global warming law suits following Mass. v. EPA and the Center for Climate Change


[1]   We have linked some law review articles to HeinOnline and other legal databases, 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 with a subscription 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. We assume that the existing links to the N.Y. Times will still work, and we will continue to add them as long as our own free access permits.

 

In 2010, we 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.   We have debated whether it should be broken out into another guide, say, on non-GHG-specific problems with conventional energy, but we have left it here as a cautionary tale, at least for now.

 

We are grateful to 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 and its appendix ) 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. There are also UNFCCC rules of procedure that correlate with the Convention to assist with its implementation.   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 196 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 most recent notifications to parties and observers are also available through the UNFCCC portal.   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.   The S ixth U.S. Climate Action Report 2014 to the UNFCCC is now available.

 

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.   There was a workshop on the implications of decisions 2/CMP.7 to 5/CMP.7 on the issues related to the Kyoto 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.   There is now a Good Practice Guidance and Uncertainty Management in National Greenhouse Gas Inventories (2001).   Finally, the 2006 IPCC Guidelines are now available from the IPCC website.

 

The nearly-500-page, 15 th annual Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2012 (April 2014, 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: 1990-2012 draft report. The final report (U.S. EPA #430-R-11-005) was issued 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)).   In 2012, the greenhouse gas emissions dropped by 3.3 percent because of low natural gas prices.

 

Reference: Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2012 , 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” by the U.S. Senate ( 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 192 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. Current meetings and associated documentation are available on the UNFCCC’s website . [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, 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.   More recent trends in the State of the Carbon Market are updated on the World Bank’s website . [24]

 

3.2.2. 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.   Updated sessions are regularly reported on the UNFCCC website .   Among other things, COP-11 established the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG). [29]

 

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.   Other subsequent meeting information is available on the UNFCCC website .   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. During negotiations, 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 . [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. [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.   Upcoming schedules for future sessions (2014-2015) are set.

 

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. [37]   Before it opened, leaders from 150 global companies endorsed a legally binding framework to address climate change in The Bali Communiqué . [38] Signatories included Shell, Coca-Cola, Dupont , British Airways, Rolls Royce, and many more. Finally, a rough and vague Road Map was agreed to.   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. [39] 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.” [40] Work proceeds to draft a successor agreement by 2009. [41]

 

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. [42]

 

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. [43] 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. [44]

                                                                       

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. [45] Two more meetings were held to prepare for the July 7-9 th Group of Eight summit. [46]

 

3.5. COP-14

COP-14 and the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol ( CMP-14 ) 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.   President-elect Barack Obama did not attend , and 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 it believes are required to forge an effective new global climate treaty, was issued at its conclusion.  

 

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. [47]

 

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. 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. [48]

 

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. [49] The following day, Oct. 21, 2009, India and China signed a 5-year agreement to cooperate on climate issues.   In 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) by Lavanya Rajamani , she 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. [50] 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. [51]

 

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.” [52] The Africa Group boycotted the discussions on Nov. 4 th . [53] 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. [54] The U.S. Chamber of Commerce issued a report on Nov. 12th entitled The Prospects for Copenhagen: More Realism Can Smooth the Way , which pointed out the obstacles to a successful outcome to COP-15. [55]

 

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.   Participants did not expect specific emissions limits to be set in Copenhagen. [56]

 

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.” [57] EU environment ministers will meet again Nov. 23 rd in Brussels to work on still-unresolved issues before Copenhagen. [58]   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. [59] 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 two-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. [60]

 

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. [61]

 

11-24-2009 2-50-24 PM COP-15 will be held at the Bella Center outside of Copenhagen . A climate-friendly car was 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 infra § 4.4.1. [62] 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.” [63] 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.” [64]

 

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 infra § 4.4.1.2. [65]

 

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. [66] 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. [67]   

 

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 Fahrenheit) over pre-industrial levels. [68]

 

Leaders from developing countries, including Brazil, South Africa, India, and China, 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.’” [69]

 

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.” [70]  

 

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. [71]

 

For more detailed commentary on COP-15, see:

 

 

 

 

 

 

 

  • 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. [72] )

 

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.   Now, the Congressional Research Service has published a more recent study on greenhouse gas emissions and a final environmental impact statement (March 7, 2014). [73]   The fate of climate change is also being discussed at the UN this month in New York City to determine nations’ involvement and commitments going forward.   A large march on Wall Street has been organized to support climate change initiatives in conjunction with the UN Climate Change Summit .  

 

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. [74]   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 . [75] 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.” [76] 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. [77]

 

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. [78]   For more current reports, see the UN Environment Programme’s initiatives and documentation.   In addition, scholars should consult the Harvard Project on International Climate Agreements for research on policy architecture and key design elements of the 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.)   The new UN session on Climate Change (2014) and updated documents are becoming available this month as the session closes.

 

3.7. COP-16

COP-16 will be held in Cancun, Mexico, Nov. 29 th to Dec. 10 th , 2010. [79] 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. [80] 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. ( See 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”). ( See 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. ( See 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. ( See 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. ( See 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.

 

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 . [81]

 

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. ( See 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. [82] 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. [83]   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. [84]

 

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.” [85]

 

The second part of AR4 , entitled Impacts, Adaptation, and Vulnerability was released on Friday, April 6, 2007. [86] 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. [87] The report recommended prompt adjustment in vulnerable regions of the world, which include the Arctic, sub-Saharan Africa, small islands, and Asian river deltas. [88]

 

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. [89]

 

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.” [90] However, in the 1994 mid-term elections, the Democrats lost control of both houses of Congress for the first time in forty years, and after that the president was unable to persuade the Republican Congress to cooperate with his good intentions. [91] Our subsequent lack of national consensus on climate change was a disappointment to environmentalists. [92]

 

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). [93]

 

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. [94] 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.

 

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. [95]

 

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. [96] 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. [97] 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.” [98]

 

On Oct. 22, 1997, President Clinton spoke at the National Geographic Society where he outlined three elements of a comprehensive climate change framework: 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. [99]

 

As noted supra, the Kyoto Protocol was adopted on Dec. 11, 1997, at COP-3 , after about 30 months of delicate negotiations. [100] 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. [101]

 

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. [102] Overall, the signature was largely symbolic, as it was extremely unlikely, after the Byrd-Hagel Resolution passed so decisively, that the Senate would ratify it. [103]

 

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. [104]   Mr. Clinton spoke anyway, and he called the Bush administration’s opposition to the Protocol on the basis that it would harm the U.S. economy “flat wrong.” [105]

 

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.”

 

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 worldwide, formed in 2005 to reduce urban carbon emissions) to help large cities combat global warming; the group is now called C40 Cities . [106]

 

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. [107]

 

Al Gore was also nominated for the Nobel Peace Prize in February 2007, [108] 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. [109]

 

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. [110] 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. [111]

 

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, [112] sought to reduce GHG "intensity" by 18% by 2012 and was advertised as “a better alternative to the Kyoto Protocol.” According to some critics, 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.” [113] It has not been enacted.

 

4.2.1. 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" [114] and an overly media-hyped issue.

 

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.”   [115]

 

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.” [116] 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. [117]

 

 

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. [118] 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. [119] 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 reducing emissions. [120]

 

4.2.2. 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 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. Climate Change Science Program 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. [121] The case was decided in favor of the plaintiffs in an order filed on Aug. 21, 2007 . 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.” [122] 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.” [123] Finally, 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. [124]   The National Assessment was a constant source of controversy for the Bush Administration. [125] 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.

 

4.2.3. 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.

 

4.2.4. 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 .

 

4.2.5. 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 . [126] 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 met to begin developing task force 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. [127]

 

4.2.6. 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. [128] 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. [129]

 

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 Capitol Hill newspapers, Politico and Roll Call. [130]

 

The Vatican held a conference on climate change in April 2007; a papal encyclical was debated . [131] 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. [132] 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. [133]   On Nov. 30, 2009, the Dalai Lama called for action on climate change for the first time, in Sydney, Australia. [134]

 

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. [135]   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 un-enacted legislation or pending bills to that effect include Texas, Kentucky, Oklahoma and South Dakota. [136]

 

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. [137] 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).

 

4.2.7. 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. [138] 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. [139] 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. [140] 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. [141]

 

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. [142] 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.” [143] 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. [144] 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 . [145] 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. [146]

 

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. [147]

 

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. [148] Senator Boxer has called the Bush administration’s record on global warming “dismal, worse than dismal,” [149] 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.’” [150]

 

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 . [151]

 

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. [152] 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. [153] 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, [154] called the House Select Committee on Energy Independence and Global Warming . [155] 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.” [156] 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.” [157]   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. [158]

 

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 [159] ) would roll back tax and other forms of relief for the oil and gas industry, [160] and steer the resulting funds toward energy efficiency and renewable energy sources. [161] 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.” [162] See Byrd-Hagel Resolution, S. Res. 98, supra. It was approved by the Foreign Relations Committee on March 29th, [163] 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, [164] but it was not passed.

 

The 110 th Congress began with several important bill introductions, including:

 

 

 

 

 

On Jan. 24, 2007, the day after his 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. [165]

 

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.   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. [166] 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.

 

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 , [167] 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. [168] 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. [169]

 

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 . [170] 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." [171] 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. [172]

 

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.” [173]

 

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 . [174] 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. [175] 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. [176] 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, [177] 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, [178] 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, [179] 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 [180] ; 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. [181] 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. [182]

 

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. [183]

 

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 .

 

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).

 

4.2.8. 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. [184]

 

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 gallon 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. [185]

 

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 . [186]

 

4.2.9. Political Interference with Climate Research & Other Sciences

Hearing transcripts are located on committee websites 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 the FDsys website , from the 104th Congress (1995-96) to current, or on ProQuest 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. [188]

 

 

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 FDsys or ProQuest Congressional .

 

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. [189]

 

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. [190]

 

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.

 

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.” [191]

 

  • 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. [192]

 

  • 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. [193]

 

  • 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.” [194] [ at page ii.] The GOP response accused Democrats of “deep animus toward the Bush administration.” [195]

 

  • 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. [196]

 

  • 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.” [197] 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.”

 

 

Commentary Includes:

 

 

 

 

 

4.2.10. Arctic Animals Endangered by Global Warming

 

4.2.10.1. 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. [199] 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. [200] 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. [201] 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.” [202]

 

 

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.” [203] 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. [204] 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. [205]

 

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 . [206] 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.” [207] 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. [208] 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. [209]

 

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. (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.))

 

4.2.10.2. 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. 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. [210]

 

4.2.11. 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 [211] and denying its legal authority to regulate GHG emissions. The EPA also denied a four-year old petition for rulemaking [212] 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. [213] 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, [214] 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. [215] 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. [216]

 

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. [217] 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. [218] 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. [219] 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. [220] 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. [221] See discussion infra of Cal. Code Regs . Tit. 13 § 1961.1, entitled Greenhouse Gas Exhaust Emission Standards and Test Procedures.

 

4.2.11.1. 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. [222] 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. [223] Testifying were the Honorable Edmund G. Brown Jr ., Attorney General of the State of California [224] ; 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.

 

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. [225] 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 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. [226] When the chairman of the committee, Representative Markey, encouraged him to act more expeditiously, Johnson defended his position. [227] 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. [228] 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.” [229] 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. [230]

 

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. [231]

 

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. [232] 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. [233]

                                                                                                                                                                        

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. [234]

 

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. [235] 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. [236]

 

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.’” [237] 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. [238] 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. [239] 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. [240] 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.” [241]

 

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 [242] ; it should appear by the end of February, 2008, and until it is published, the waiver is not technically denied. [243] 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. [244]

 

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.” [245] The case is California v. EPA , 9 th Cir., No. 08-70011. [246] 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. [247] 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. [248] 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. [249] 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 . [250] 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. [251]

 

On Feb. 27, 2008, EPA refused to provide a timetable for compliance with Mass. v. EPA , [252] 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. [253]

 

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.:

 

 

 

 

  • 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 . [254]

 

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." [255] See infra § 4.7.1. Alaska .

 

4.4. The Obama Administration

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 . [256]

 

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, [257] and included a GHG cap-and-trade system in his Feb. 26 proposed budget summary . [258] 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.” [259]

 

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.” [260]

 

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.” [261]

 

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 .,

 

 

 

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. [262] 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.  

 

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. [263] However, it passed by just one vote more than the simple majority of 218 needed to pass legislation in the House. [264] It was placed on the Senate Legislative Calendar on July 7, 2009, as General Order 97. [265]

 

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. [266]

 

4.4.1.2. Senate

The American Clean Energy Leadership Act of 2009 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. [267]

 

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.” [268] The Senate Environment and Public Works Committee marked up climate change legislation in November. [269]

 

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….” [270] 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. [271]

 

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. [272]

 

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. [273] 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. [274] 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. [275] 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. [276] 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. [277]

 

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. [278]

                                                   

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. [279] 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. [280]

 

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. [281]

 

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 waiver 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. [282]

 

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. [283] 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. [284]

 

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. [285] 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. [286]  

 

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.” [287]

 

A direct result of this policy was a notice of intent to conduct a joint rulemaking , [288] jointly announced by DOT Secretary Ray LaHood and EPA Administrator Lisa P. Jackson; the details were elaborated on in September, [289] 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. [290] This rule (expected to be finalized March 31, 2010 [291] (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.” [292] 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))

 

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. [293]

 

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 [294] : 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,” [295] and stressed, again, that there would be no regulation of stationary sources this year ; 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. [296]   The rule moves up the goals of a 2007 energy law requiring a 35 mpg standard after 2020. [297] (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.” [298]

 

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.

 

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. [299]

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, [300] but on April 7 th EPA announced that it was expected to be finalized by the end of April. [301] 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 . [302]

 

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). [303] 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. [304]   

 

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.” [305]  

 

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. [306] 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. [307] 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.” [308] 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 .” [309] 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 . [310]

 

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.” [311]

 

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. [312] 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. [313] 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 . [314] ).   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. [315] 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 newbie Scott Brown (R-Mass) has not signed on. [316]

 

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.   [317] 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. [318]

 

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. [319]

 

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).” [320]

 

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.” [321]

 

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 , [322] No. 10-1044. [323] 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. [324] (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 . [325] )

 

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. [326]

 

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 . [327]

 

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. [328] 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. [329]

 

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. [330]

 

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:

 

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 [331] ; 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. [332]

 

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, [333] 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. [334]  

 

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. [335]

 

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, [336]   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. [337]

 

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.)

 

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.

 

A Website was created to consolidate the government’s efforts, entitled the Deepwater Horizon Response: The Official Site of the Deepwater Horizon Unified Command . Agencies and businesses included are: BP, Transocean, the Coast Guard, MMS, EPA, NOAA, DOI, Department of Homeland Security, Defense Department, Fish & Wildlife Service, National Park Service, State Department, U.S. Geological Survey, CDC & OSHA.

 

RestoreTheGulf.gov replaced deepwaterhorizonresponse.com in July 2010. BP largely supported the first site since April, and will contribute to the costs of the new one.  

 

The White House’s site is here .

 

EPA created a Web page to track its efforts at containment and cleanup.

 

NOAA’s IncidentNews page is here .

 

The BBC has an interactive guide on Stopping the Oil .

 

The New York Times has a topic entitled Gulf of Mexico Oil Spill (2010).

 

See also:

 

 

·          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.

 

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.)

 

For a summary of the efforts to stop the oil, see Al Granberg , Mika Grondahl , Xaquin G.V., Haeyoun Park & Graham Roberts, Methods That Have Been Tried to Stop the Leaking Oil , N.Y. Times , June 4, 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. 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

·