Great Lakes Law

SEC issues interpretive guidance regarding disclosure of climate change risk

This guest post on the SEC’s new interpretive guidance on disclosure of climate change risk is by Eric Jamison.  This topic has not been on the radar for many people involved in water policy, but it is an important new legal development for many water-related businesses, including those involved in water infrastructure and delivery, energy production, and wastewater treatment. 

Eric is a second year law student at Wayne State and has a background in business management.  He has worked extensively on all aspects of energy law and emerging climate change law, with a focus on opportunities for business and economic development at the state and local levels.  Eric played a key role in developing the proposed Property Assessed Clean Energy (PACE) Program for Michigan, which would give homeowners the funds to invest in renewable energy and energy efficiency projects.  Eric recently wrote a national article on the new SEC guidance on disclosure of climate change risk, and was kind enough to write a short summary here. 

On February 8, 2010 the U.S. Securities and Exchange Commission (“SEC”) published interpretative guidance in the Federal Registrar regarding the disclosure of corporate climate change risk.  As interpretative guidance on existing disclosure rules, the guidance becomes immediately effective upon publication in the Federal Register which may impose disclosure obligations for companies filing their 10-K forms for the year ending 2009.

The guidance is not intended to create new legal requirements, but to clarify the disclosure requirements under the existing reporting infrastructure.  There has been political backlash by some Republican Senators claiming that the SEC should focus on the core mission of protecting investors and maintaining fair markets instead of getting involved with climate change.  In addition, 21 Republican Senators are claiming that the guidance is essentially a new rule and thus should be subject to the formal rule making process under the Administrative Procedures Act. 

The interpretative guidance identified some areas that may trigger disclosure obligations:

• The impact of legislation and regulation - When assessing potential disclosure obligations, a company should consider whether the impact of certain existing laws and regulations regarding climate change is material. In certain circumstances, a company should also evaluate the potential impact of pending legislation and regulation related to this topic.
• Impact of international accords - A company should consider, and disclose when material, the risks or effects on its business of international accords and treaties relating to climate change.
• Indirect consequences of regulation or business trends - Legal, technological, political and scientific developments regarding climate change may create new opportunities or risks for companies. For instance, a company may face decreased demand for goods that produce significant greenhouse gas emissions or increased demand for goods that result in lower emissions than competing products. As such, a company should consider, for disclosure purposes, the actual or potential indirect consequences it may face due to climate change related regulatory or business trends.
• Physical impacts of climate change - Companies should also evaluate for disclosure purposes the actual and potential material impacts of environmental matters on their business.

The potential triggers outlined by the SEC include very broad and ambiguous requirements.  The amount of pending federal, regional, state and even international regulatory and legislative action is enormous.  The political debates continue over how to best address the challenges of climate change.  Adding to the complexity of the problem is the lack of clear federal action; many regional, state and even local programs have emerged to address emissions regulation, green building codes and disclosure of energy use in real estate transactional matters.  The impact of legislation on business is a complex issue encompassing many layers of analysis based on operations under different regulatory schemes, the reach of the supply chain and a myriad of pending legislation from Congress, agency actions and executive branch efforts. 

Businesses may be better equipped to handle the indirect consequences. Sustainability initiatives have been at the forefront for many businesses for a number or years and during tight economic times businesses naturally look for ways to trim costs and operate more efficiently.  Innovative businesses are accustomed to dealing with market uncertainty related to other market drivers, thus assimilating the risks from the climate should be within the ambit of corporations abilities.

The physical effects of climate change present special challenges to businesses.  The best scientists in the world have struggled with forecasting the effects of climate change.  It leaves corporations in a precarious position to try to evaluate and disclose potential impacts of climate change on their business.  For many it is clear that the climate is changing, but the impacts of the change are multifaceted and result in non-linear changes.

In addition to the above mentioned challenges, many corporations participate in voluntary carbon reporting programs, which may be broader or narrower than the scope of the SEC disclosure obligations.  Thus corporations must be cognizant of the voluntary climate related disclosures they make to ensure that they are uniform so as to not subject the company to potential liability for disclosure omissions or misstatements. 

Despite the challenges posed by the new guidance, it moves the market towards transparency.  One of the purposes of the disclosure rules is to facilitate investor understanding of the risks faced by corporations.  Securities regulations require the disclosure of material information or information that a reasonable investor would find important.  In light of the numerous initiatives related to climate change, it is implausible to think that investors of companies with significant impacts on the environment would find the disclosure of climate change related information immaterial.  Major energy companies are facing fierce opposition from public interest groups for coal plant permitting, plaintiffs groups have successfully brought litigation regarding climate change liability, and emissions regulation is emerging from numerous sources.  A reasonable investor may find much of this information to be material as they consider their investment strategy. 

Putting aside the controversies regarding climate change, there has been significant activity from the public and private sector suggesting that corporations need to examine their operations and business model to reduce their environmental risks and liabilities.  From a pragmatic standpoint emissions and resources cost corporations money, and by measuring and reporting such activities corporations will become acutely aware of their relative costs.  Knowledge of costs will spur market innovation to reduce the use of resources and find ways to cut emissions because of the cost and uncertainty related to them.

Climate change, water, and adaptive law symposium in Houston

The Environmental & Energy Law & Policy Journal and the University of Houston Law Center are hosting a symposium later this week -Climate Change, Water, and Adaptive Law.  The topic is timely and critically important, as climate change is certain to put new stresses on water resources and demands innovative adaptive management policy reforms.

The symposium has a great line up, including Dan Tarlock (Chicago-Kent), Robin Kundis Craig  (Florida State), Elizabeth Burleson (South Dakota), Amy Hardberger (Environmental Defense Fund), and Tony Arnold (Louisville), who helped organize the symposium as a visiting professor at Houston.  For more details, see the symposium brochure.

I’ll be speaking in the morning session on interstate water compacts and climate change adaptation, presenting a draft paper that analyzes every major interstate water compact for its adaptability to new climate change stresses.  Here’s the abstract:

Over ninety-five percent of the available surface freshwater resources in the United States are interstate in nature and governed by interstate water compacts.  These interstate compacts vary tremendously in how they allocate and manage interstate waters.  Until recently, the water resources governed by interstate compacts have been relatively stable and unaffected by drastic changes in long-term weather patterns.  However, within the next few decades North America is expected to experience increased regional variability in precipitation and susceptibility to drought.  This article first looks at these expected changes on a macro and regional level to evaluate the increased stress on water resources that is expected to arise in some watershed.  Interstate compacts may be the most important legal consideration in assessing water supply risks from climate change, and this article provides a critical evaluation of every interstate water compact: how it works, the resources it governs, and the rights and responsibilities it assigns to the party states.  The article then assesses the relative risk and legal uncertainty resulting from climate change for interstate water resources subject to interstate compacts.

A preliminary draft of the paper is available here.  The paper will be finalized over the summer and published in the Environmental & Energy Law & Policy Journal.  Comments are always welcome.

The Evolution of the Law and Politics of Water

 

Apologies for the shameless shilling of a product, but if you are looking for a last-minute holiday gift for the water wonk in your life, consider the new book, The Evolution of the Law and Politics of Water.  (I contributed a chapter on the Great Lakes but don’t get any royalties, although I did get one free copy of the book to put on my shelf.)  Here’s the description from the publisher (Springer):

The Evolution of the Law and Politics of Water presents an overview of global trends in water law and policy and assesses current global water governance. It provides an historic understanding of how and why after 5,000 years of water governance, that governance still has not reached stability. It identifies the key research questions for water law and policy while providing an overview of the current global water governance regime, its evolving characteristics, and the legal theories involved in these changes. It focuses on water law and discusses the characteristics of national, supranational, and international water law through a combination of case studies and thematic chapters.

The Evolution of the Law and Politics of Water is the first volume to take a global perspective on the evolution of water law and policy. It describes global patterns and sets forth the particulars of eight national legal systems drawn from every continent and five regional or supranational systems, as well as the body of customary international law as a whole. In particular, it is the first book to explore the interrelation between culture, religion, government and law in water governance and management. The volume is, therefore, a must-read for anyone interested in how water governance has changed through time and in different places as well as anyone interested in how water law has sought to channel water governance through time and in different places and what variables account for the relative success (or lack of success) of water law in performing this channelling function. It is suggestive of possible lines of water law reform and whether a particular reform is likely to be successful.

The book is edited by Joe Dellapenna and Joyeeta Gupta and features some of the leading water law scholars covering water policy across history, religion, culture, and geography.  Check out the table of contents:

Part I - Introduction
1. The Evolution of Global Water Law (Joseph W. Dellapenna and Joyeeta Gupta)
2. Mesopotamia: A History of Water and Law (Itzchak E. Kornfeld)
3. Islamic Law and the Politics of Water (Thomas Naff)
4. Water in the Jewish Legal Tradition (Richard Laster, Rabbi David Aronovsky, and Dan Livney)

Part II - Evolving National Law and Politics
5. Brazil: The Evolution of the Law and Politics of Water (Paulo José Leite Farias)
6. South Africa: The Development of Water Law (Michael Kidd)
7. East African Water Regimes: The Case of Kenya (David Nilsson and Ezekiel Nyangeri Nyanchaga)
8. Israel: The Evolution of Water Law and Policy (Richard Laster and Dan Livney)
9. Russia: Historical Dimensions of Water Management (Vladimir Kotov)
10. India: Evolution of Water Law and Policy (Philippe Cullet and Joyeeta Gupta)
11. Australia: The Problem of Sustainability in Water (Jennifer McKay and Simon Marsden)
12. United States: The Allocation of Surface Waters (Joseph W. Dellapenna)
13. United States: The Emergence of Environmental Considerations (Sandra Zellmer)

Part III - Evolving Supranational and Regional Water Law and Politics
14. European Community Water Policy (Paulo Canelas de Castro)
15. Southern Africa: Evolving Regional Water Law and Politics (Pieter van der Zaag)
16. The Jordan Basin: Evolution of the Rules (Robbie Sabel)
17. The North American Great Lakes (Noah D. Hall)
18. The Río de la Plata Basin (Griselda D. Capaldo)

Part IV - Current Trends in International Water Law
19. Case Law on International Watercourses (Lilian del Castillo-Laborde)
20. International Cooperation on Water Resources (Maria Manuela Farrajota)
21. Public Participation in Water Governance (Jona Razzaque)
22. The Market Alternative (Joseph W. Dellapenna)

Part V - Conclusions
23. The Challenges for the Twenty-First Century: A Critical Approach (Joyeeta Gupta and Joseph W. Dellapenna)

Your local bookstore (if you are lucky enough to still have a local bookstore) can order it from Springer.  Alternatively, Amazon is currently selling it almost 40% off list price.

Climate change torts - a perspective from an energy industry attorney

Tort law, which is traditionally used to protect property or collect monetary damages, is now being used with some initial success against electric utilities and coal, oil, and chemical companies for climate change harms from greenhouse gas emissions.  Two recent federal appeals decisions have opened the door to climate change torts, and more litigation is on the horizon.  The following guest post gives an inside perspective on climate change torts from an energy industry attorney (the attorney asked to remain anonymous for client confidentiality).

Last week, defendants in one of a handful of closely watched global-warming lawsuits sought rehearing en banc [a rehearing before a full panel of the circuit court] of a decision from the United States Court of Appeals for the Fifth Circuit, Comer v. Murphy Oil, No. 07-6-756 (5th Cir. Oct. 16, 2009).  [The petitions for rehearing en banc filed by the numerous defendant oil, energy, and coal companies are available here, here, here, and here.] 

Comer involves claims brought by residents of Mississippi against dozens of companies in the energy, fossil fuel production, and chemical industries, seeking money damages for injuries apparently sustained during Hurricane Katrina in 2005.  Comer is the latest federal court decision allowing purported tort claims alleging wide-ranging damages from climate change to proceed past key threshold stages.  The panel’s ruling follows on the heels of a Second Circuit decision, Conn. v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009) (“AEP”), permitting similar alleged tort claims to go forward.  The primary differences between the cases are that AEP involves claims under the federal common law and seeks injunctive relief in the nature of a declining cap on defendants’ carbon dioxide emissions, whereas Comer purports to be based in Mississippi common law and seeks monetary relief for alleged property damage resulting from Hurricane Katrina.  Although only a few data points exist, the panel’s decision also suggests a pattern to these so-called climate-change cases. 

Four district courts have now dismissed analogous global-warming tort claims on the grounds that they either raise nonjusticiable political questions or that the plaintiffs lack standing to maintain a lawsuit for alleged global-warming damages.  See Native Vill. Of Kivalina v. ExxonMobil Corp., No. C08-1138SBA (N.D. Cal. Sept. 30, 2009); Cal. v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. 2007), appeal dismissed, No. 07-16908 (9th Cir. June 24, 2008); Comer v. Murphy Oil, No. 1:05-cv-00436-LG-RHW (S.D. Miss. Aug. 30, 2007); Conn. v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005). 

In contrast, two appellate courts, the Second Circuit in AEP and the Fifth Circuit in Comer, have refused to allow the principle of separation of powers or the standing doctrine to defeat resolution of the plaintiffs’ global-warming grievances in an Article III court.  The courts of appeal have ardently insisted that the judiciary has the tools and competence to resolve such claims, and they are unwilling to let the claims be defeated at an early stage where plaintiffs have purportedly asserted at least some relationship between their alleged injuries and the defendants’ alleged contribution to global warming. 

The disparity between the opinions issued by the district courts and the courts of appeal is probably not surprising.  It is the district courts, after all, that would need to determine precisely how to try these cases, were they to go forward.  They are not approaching the cases abstractly or academically, but rather are faced directly with the formidable questions that such cases pose.  Just how would principles of tort law apply to a case involving global warming?  By what method would the court decide whether a particular company’s emissions (or supposed contribution to emissions, for example, by producing a fossil fuel that is later combusted by a third party) are “reasonable” – a bedrock principle in tort law – especially given the lack of statutes or regulations that might guide the answer to such a question?  How would the court determine whether a particular company’s activities or emissions were the “proximate” cause of asserted global-warming damages, including property damage from a Hurricane that is alleged to have been fueled in strength by global warming-heated ocean waters?  And how would the court apportion damages given that every entity on the planet emits one or more greenhouse gases – and has done so for centuries.

As the defendants’ petitions for rehearing en banc argue, the panel’s decision in Comer hardly grapples with the foregoing questions.  Indeed, the panel construed applicable case law largely so it would not have to.  In reviewing the district court’s decision dismissing the plaintiffs’ claims pursuant to the political question doctrine, for example, the panel found the traditional six-part test, articulated by the Supreme Court in Baker v. Carr, 369 U.S. 186, 210 (1962), “not necessary or properly useful” in the case.  It determined that the district court had erred in dismissing the case pursuant to Baker because a political question may only exist in cases that involve a question that is committed to the political branches by the Constitution or a federal statute, which Comer does not.  By doing so, petitioners argue, the panel effectively circumvented the need to fully analyze, for example, Baker factors two and three, which four district courts have previously recognized render global-warming tort actions nonjusticiable.  Those factors counsel dismissal when there is a lack of judicially discoverable and manageable standards for resolving a case and when it would be impossible to decide a case without an initial policy determination of a kind clearly for nonjudicial discretion. 

Furthermore, the defendants’ petitions for rehearing en banc argue that the panel engaged in a cursory and flawed analysis of Article III standing.  The panel apparently accepted, at face value, an implausible causal chain, in derogation of the pleading requirements recently articulated by the Supreme Court in Bell Atl. Corp v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).  Furthermore, it misconstrued the Supreme Court’s decision in Massachusetts v. EPA as applicable to the case, even though Massachusetts involved a procedural challenge under a federal statute asserted by a State party – neither of which is true in Comer.  The panel’s decision on standing thus arguably relaxes relevant requirements beyond what even the Supreme Court’s slim majority is willing to recognize as sufficient under Article III.  Finally, the petitioners argue that the panel relied inappropriately on Clean Water Act case law, predominantly from the Third and Fourth Circuits, and ignored the Fifth Circuit’s binding precedent demanding a geographic or other causative nexus between the plaintiffs’ injuries and the defendants’ activities.  The plaintiffs’ so-called tort claims – rooted in the assumption that the defendants are liable simply for engaging in activities that contribute to the emissions of gases that mix in an undifferentiated fashion in the atmosphere – seemingly involve no nexus at all and, thus, fail to meet the Fifth Circuit’s strict test for standing. 

Although rehearing en banc is not common, Comer arguably represents just the kind of case that warrants full panel review – both for the unique and exceptional issues it raises – which implicate interests well beyond those of the named defendants – and for the departure it represents from settled law.  In a promising sign for petitioners, on December 2, the Fifth Circuit exercised its discretionary authority to direct the plaintiffs to file a response to the defendants’ petitions by December 14.  If rehearing en banc is not granted, the next stop might be the Supreme Court.

US EPA issues finding that greenhouse gas emissions threaten public health and welfare, triggering new regulations under the Clean Air Act

As expected, the US EPA this week took two formal actions finding that: (1) greenhouse gases threaten public health and welfare; and (2) greenhouse gas emissions from motor vehicles contribute to the greenhouse gas pollution which threatens public health and welfare.  The details of the EPA’s “endangerment findings” are available on the EPA’s climate change regulatory initiatives webpage.

These findings have been nearly inevitable ever since the U.S. Supreme Court’s Massachusetts v. EPA decision in 2007, which held that greenhouse gases are pollutants under the Clean Air Act and that the EPA must either issue an endangerment finding or justify a decision not to do so.  With the overwhelming scientific data and studies demonstrating the harm from greenhouse gas pollution and climate change (heat waves, reduced freshwater supplies, coastal flooding, harmful air quality, infectious diseases, etc.) the endangerment finding was the only lawful outcome. 

While the endangerment finding does not on its own impose new restrictions on greenhouse gas emissions, it does trigger several regulatory requirements under the federal Clean Air Act.  Most immediately, the endangerment finding allows the EPA to finalize its proposed greenhouse gas emission standards for light-duty vehicles, which will require far more efficient cars and trucks (up to 35 mpg) in coming years.  The endangerment finding will also likely lead to new restrictions on greenhouse gas emissions from large stationary sources, such as coal-fired power plants and garbage incinerators.

I don’t want to dismiss the importance of the United Nations Climate Change Conference in Copenhagen taking place over the next two weeks, but this action by the EPA will have more immediate and tangible implications for reducing greenhouse gas emissions in the United States.  President Obama’s expected appearance in Copenhagen is a statement to the world that the US is committed to addressing climate change.  But this action by the Obama EPA does more than make a statement – it sets in motion the full power of the US EPA to regulate climate change pollution from cars, power plants, and other major sources.

EPA proposes rule to regulate greenhouse gas emissions from large sources under the Clean Air Act

The EPA has just announced a proposed rule to regulate greenhouse gas emissions under the New Source Review program of the federal Clean Air Act.  This regulatory action is hardly a surprise, as it’s been coming ever since the U.S. Supreme Court’s Massachusetts v. EPA decision in 2007, which held that greenhouse gases are pollutants under the Clean Air Act.  Still, it’s a welcomed development from the Obama administration and EPA, and comes with a notable twist and at a notable time.

First, while the Clean Air Act’s permitting requirements typically apply to emissions greater than 250 tons per year, EPA has proposed “tailoring” the threshold for greenhouse gas regulation at 25,000 tons per year of carbon dioxide (or equivalent greenhouse gases).  This makes some sense, as it will still regulate about 70% of stationary greenhouse gas emissions (basically big sources like power plants, incinerators, and refineries), without creating a regulatory burden for smaller sources.  But while the rule makes sense, the potential conflict with the Clean Air Act’s statutory language will almost certainly be the basis for large industrial interests to bring a legal challenge.

Second, the announcement of the proposed rule came right after the Clean Energy Jobs and American Power Act was introduced in the U.S. Senate.  The legislation, commonly called the Boxer-Kerry bill after its lead sponsors, creates a comprehensive regulatory and energy policy to address climate change and greenhouse gas emissions.  Unlike the legislation passed by the House earlier this year, the Senate legislation also preserves the EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act, meaning that the EPA’s proposed rule would still be effective if the legislation is ultimately passed.

I expect two immediate outcomes of the EPA’s proposed rule.  First, large industrial greenhouse gas polluters will challenge the rule based on the high threshold which lets small polluters off the hook.  (One potential hurdle for such a lawsuit would be standing, since large polluters aren’t directly harmed by the EPA’s decision not to regulate small polluters.)  Second, the rule will put more pressure on Congress to enact climate change legislation, but at the same time it gives environmental groups good reason to consider the benefits of the currently regulatory approach under the Clean Air Act.  Despite these issues, it’s now practically certain that greenhouse gases from large sources will soon be regulated, either under the Clean Air Act or under new legislation.  Either way, the days of unregulated greenhouse gas emissions will soon be over.

Great Lakes Environmental Law Center and other conservation organizations join with Manitoba and Canada in opposing U.S. water diversion project in court

The Great Lakes Environmental Law Center has filed an amicus curiae (friend of the court) brief in the U.S. District Court for Washington D.C. in Government of the Province of Manitoba v. Ken Salazar, et al.  The case involves a challenge by Manitoba, joined by Canada and several conservation organizations, to the U.S. Bureau of Reclamation’s Environmental Impact Statement for the Northwest Area Water Supply (NAWS) Project. 

The NAWS Project is the first United States transbasin water transfer project to breach the barrier between the Missouri River Basin and the Hudson Bay Basin.  The diversion could transfer invasive species and diseases into downstream waters in the United States and Canada, and threatens the quality and quantity of water supplies.  The proponents of the project have not properly examined less damaging alternatives and options, such as water conservation and recycling.  Nor have the project’s proponents undertaken a full review of the environmental impacts of the water diversion.  For additional background on the NAWS project and other related projects, see the Great Lakes Environmental Law Center’s Transbasin Water Diversions webpage.

Conservationists have long been concerned with the risks of the NAWS project to water resources.  The NAWS water diversion represents the first ever federal project involving an interbasin water transfer linking the Missouri River Basin to the Hudson Bay Basin.  For better or worse, it could become an important precedent-setting project for other water diversions.  Given the stakes, the Bureau of Reclamation should have adhered strictly to the requirements of the National Environmental Policy Act with a thorough and comprehensive Environmental Impact Statement.  Instead, the Bureau of Reclamation is trying to rush through a novel and potentially devastating project that creates a danger for all fresh water basins in the United States, particularly the Great Lakes.

In addition to setting a precedent for other water diversions, the NAWS project threatens water quality and aquatic life in the Missouri River Basin and Hudson Bay Basin.  The diversion of water from one separate drainage basin to another will also impact residential, commercial and recreational water use.  The reductions of water levels in combination with the impacts from climate change pose an increased risk of invasion of non-native species and subsequent transfer of invasive species through the pipeline to the Hudson Bay Basin.

As detailed in our brief, the NAWS project advances an environmentally and economically unsound water diversion.  The project threatens to transfer invasive species, fails to account for climate change impacts, and completely ignores smarter, cheaper, less damaging alternatives like water conservation.  In this project and other legal advocacy on transbasin water diversions, the Great Lakes Environmental Law Center will continue to work for sound, practical policy solutions for water resource management while opposing dangerous, precedent-setting projects that could harm the people and environment of the Great Lakes region.

The Great Lakes Environmental Law Center filed the brief jointly with the National Wildlife Federation, Minnesota Conservation Federation, and South Dakota Wildlife Federation, supporting the Province of Manitoba (Manitoba’s brief is available here).  The Government of Canada also submitted an amicus brief to support Plaintiff Manitoba’s arguments. Attorney Nick Schroeck led the effort, with invaluable assistance from Wayne Environmental Law Clinic student Catherine Deciechi.

Federal appeals court allows climate change nuisance case to go forward against power companies; EPA issues final greenhouse gas reporting rule

It was a big week in the rapidly developing field of climate change law.  First, the U.S. Court of Appeals for the Second Circuit (based in New York) allowed a nuisance case brought by states, New York City, and nonprofit environmental groups against five major power companies that operate coal fired power plants to go forward.  The decision, Connecticut et al. v. American Electric Power Co. et al., is a huge victory in the legal fight against climate change.  The court essentially rejected every major legal defense that the power companies put forward.  Some highlights:

1. The court rejected the argument that greenhouse gas pollution and climate change harm is a “political question” that can only be addressed by legislatures and Congress – instead such claims can be heard in court;
2. The court rejected the argument that the environmental groups didn’t have standing – because their property interests would be harmed in the future by climate change, the environmental groups could bring the nuisance claims;
3. The court rejected the argument that a public nuisance claim can’t be used by environmental groups – a public nuisance is an interference with a right common to the general public and can be used to seek damages from greenhouse gas pollution;
4. The Court rejected the argument that the nuisance claims were preempted by the federal Clean Air Act – at least not yet, but that could change if and when the US EPA begins regulating greenhouse gas emissions under the Clean Air Act or under new legislation.

This case will have two immediate implications.  First, it opens the door to public nuisance lawsuits against greenhouse gas pollution from power plants, incinerators, cars, and any other major source.  By rejecting most of the typical legal arguments that would be used to dismiss a climate change nuisance case with a thorough 139 page opinion, the federal Court of Appeals has provided a legal roadmap for other courts to follow.  Second, the decision will motivate industry to seek either new climate change legislation or even regulation under the Clean Air Act to preempt these types of cases in the future.  While industry may not love the idea of greenhouse gas regulation, they would take regulation over litigation.

Also, it’s worth noting the judges that decided this case.  The three judge panel originally included Sonia Sotomayor, who was ultimately appointed to the U.S. Supreme Court and did not take a part in the final decision.  The other two judges are hardly crazy liberals - Judge Joseph McLaughlin was appointed by President George H.W. Bush and Judge Peter Hall was appointed by President George W. Bush.

Just a day after the court’s decision, the U.S. EPA issued its final rule for mandatory reporting of greenhouse gas emissions.  Beginning January 1, 2010, the U.S. EPA will require all major sources that emit 25,000 metric tons or more of carbon dioxide (CO2) equivalent per year to report greenhouse gas emissions annually.  This new reporting requirement will cover approximately 85 percent of the nation’s greenhouse gas emissions.  Reporting greenhouse gas emissions is likely just the first step towards eventually regulating the emissions.  Coupled with the court’s decision in Connecticut v. American Electric Power Co., it’s a big sign of progress in the legal fight against climate change.

Property Assessed Clean Energy - A Bright Spot in Michigan’s Economic and Environmental Future

The following guest post is by Eric Jamison, a law student at Wayne State University Law School who is working with the Great Lakes Environmental Law Center to assist local and state government leaders in developing a Property Assessed Clean Energy (PACE) Program for Michigan.  Eric is an “environmental capitalist” preparing to spend his career finding business solutions that are environmentally sustainable and economically viable for clients.  Eric’s legal work is focused on state and local energy policy and the effects of climate change on business.  He has a background in business management and obtained his BS in General Management from Oakland University.

While Michigan is struggling economically and lagging behind some other states in making the transition to a clean energy economy, Jeff Irwin, a Washtenaw County Commissioner, is taking a proactive approach to finding solutions to the state’s economic and environmental challenges.  Commissioner Irwin approached the Great Lakes Environmental Law Center to research and develop enabling legislation for a Property Assessed Clean Energy (PACE) program for Michigan.  The Great Lakes Environmental Law Center, in conjunction with a work team from the City of Ann Arbor, local and national environmental attorneys, and public interest groups, has drafted proposed enabling legislation that will authorize PACE programs.  The proposed legislation is modeled after similar program in other states, though additional input from stakeholders familiar with local government bonding in Michigan would be useful as the legislation moves forward.  The legislation is being prepared to be presented to the Michigan House of Representatives and Senate for consideration this fall. 

In a matter of just over a year, Property Assessed Clean Energy programs and their progeny have spread across the United States with 15 states passing enabling legislation and many others debating similar bills.  California and Colorado started the trend in 2008 with AB 811 and HB 1350, respectively.   (For more information about PACE programs nationally, see the PACE Now website.)

The enabling legislation expands traditional uses of land secured financing by authorizing local governments to sell revenue bonds to raise capital; the capital is loaned to consenting homeowners within the local government’s jurisdiction to purchase renewable energy systems or to make energy efficiency upgrades to their home or business.  Through a special assessment attached to the property, the amount voluntarily borrowed is repaid over a period of years on the property tax bill and transfers with the property in the event of a sale. 

PACE programs facilitate adoption of renewable energy technology and energy efficiency improvements by overcoming two significant barriers to entry: (1) the up-front capital; and (2) the payback period.  Upfront capital costs have always served as a barrier to entry.  With the tight credit market, property owners often cannot get the loans to pay the relatively high costs of a renewable energy system or energy efficiency upgrades.  PACE programs allow property owners to voluntarily borrow money from local governments to pay for such upgrades without negatively impacting their credit.  The payback period needed to make renewable energy and energy efficiency upgrades economically attractive has often been outside the reach of traditional loan programs.  Traditional home equity loans are limited to five to ten years, which don’t allow the increased payment to be offset by the energy savings.  Depending on the size of the loan, the PACE payments can be made for a period up to twenty years which allows the annual energy savings to exceed the cost. 

In addition, many people are hesitant to make significant renewable energy and energy efficiency investments in their property because of the likelihood of selling the property before the cost savings are realized.  PACE programs operate like traditional land secured financing which allows the special assessment to remain with the property in the event of a sale.  With the expansion of land secured financing to include PACE programs, two significant barriers to wide spread market adoption have been removed. 

States have used land secured financing for over a hundred years to fund improvement projects such as sidewalks, water works, and parks that benefit the public.  With the awareness of the damage that greenhouse gases cause to humans and the environment, the definition of what constitutes a public benefit naturally expands to include projects that reduce greenhouse gas emissions.  Most states that have passed PACE legislation have included specific statutory language to expand the definition of public benefit to include the adoption of renewable energy and energy efficiency improvements.  

As the state and country transition to a low carbon economy, PACE programs are an important step in the right direction.  Buildings account for almost 40 percent of greenhouse gas emissions in the United States.  PACE programs encourage existing building owners to invest in improvements that will reduce the buildings energy consumption.  In addition, most states (including Michigan) now have Renewable Portfolio Standards requiring the production of certain percentages of energy from renewable sources by certain target dates.  PACE programs may provide a potential aggregation point for states with these policies.

In uncertain economic times PACE programs offer a low risk, win-win economic development tool.  Property owners are justifiable hesitant to invest in their properties; PACE programs mitigate much of the risk through annual energy savings and because the investment is attached to the property and not the property owner.  If the PACE legislation is passed in Michigan it will drive economic development.  Manufacturers will need to produce the supplies; local contractors will be hired to do installations.  In 2007, $24 billion left the state of Michigan to pay for energy resources – coal, oil, natural gas, and uranium – that cannot be produced locally.   Even a modest one percent increase in energy efficiency would keep $240 million in the Michigan economy annually, create thousands of jobs for Michigan workers and help our residents and businesses save money on energy.

After nearly a decade of legal battles and precedents, controversial coal train project is nixed

Nearly a decade ago, the Dakota Minnesota & Eastern Railroad Corp. (DM&E) tried to build and upgrade a rail line between Wyoming and Minnesota.  While I’m usually a big fan of trains, the problem with this project wasn’t the train itself, but what the train would be carrying.  By design, it would carry 100 million tons of coal annually from Wyoming’s Powder River Coal Basin to the Midwest, enough to power about 50 average sized coal plants.  The rail line was a key part of the infamous Bush-Cheney energy plan to increase coal production and utilization.  When burned in coal plants, the coal carried by this rail line would have emitted approximately 200 million tons of carbon dioxide, along with mercury and numerous other air pollutants. 

In one of my first energy cases with the Minnesota Center for Environmental Advocacy, we challenged the project on behalf of Minnesotans for an Energy-Efficient Economy (now Fresh Energy) and the Sierra Club.  The federal Surface Transportation Board, when it approved the new rail line, performed an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA).  The government’s EIS considered the many direct impacts of the rail line (noise, vibration, train engine emissions).  However, it completely ignored the likely environmental impacts of burning the coal that the rail line was intended to carry, most notably carbon dioxide and mercury emissions.  Our legal challenge thus became one of the first cases to raise the issue of indirect greenhouse gas emissions from federally approved and funded projects. 

The court agreed with our arguments, and in Mid States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003), the Eighth Circuit Court of Appeals vacated the government’s decision pending further environmental review.  The case became a landmark decision requiring federal agencies to account for the indirect greenhouse gas pollution from major projects.

The federal government later issued a supplemental EIS, which was ultimately approved by the court in December 2006.  But by this time, the tide was beginning to turn on coal plants.  Demand for coal began dropping, as old coal plants were being phased out by environmental enforcement and new proposed coal plants were being stopped in a highly-effective national legal campaign.  Last week, citing the lack of a “favorable regulatory climate” and a lack of financing, the company finally nixed the project.  While the original case set an important legal precedent in the fight against climate change, this victory and the end of the project has real tangible benefits for climate protection.  Without the new rail line, the coal (and carbon) will stay in the ground, significantly reducing our greenhouse gas emissions every year. 

Great Lakes Environmental Law Center, joined by local businesses, brings lawsuit against the City of Ann Arbor over greenhouse gas pollution and violations of state Open Meetings Act and Freedom of Information Act

Last week, the Great Lakes Environmental Law Center joined with several local businesses in a lawsuit against the City of Ann Arbor over greenhouse gas pollution and other environmental impacts that will result from a massive new underground parking structure.  The complaint also includes claims against the City for violating the Michigan Open Meetings Act with secret email deliberations and communications regarding the proposed $50 million parking structure.  Further, because the City refused to disclose the full extent of these secret email deliberations and communications when requested by the Great Lakes Environmental Law Center pursuant to state law, the lawsuit seeks relief for violations of the Michigan Freedom of Information Act. 

As detailed below and in the linked documents, the City made a decision to borrow $50 million for a parking structure that its own study concluded is not needed, ignoring the comments and concerns from the Chairman of the City’s own Environmental Commission that the parking structure would increase automobile pollution and greenhouse gas emissions contrary to the City’s own environmental policies, and the City Council made this decision with secret email deliberations in violation of the Open Meetings Act, then failed to disclose those emails when requested pursuant to the Freedom of Information Act.  The dictionary definition for “boondoggle” may need to be updated to include this project and process.

The City Council approved bonding and construction of a massive new $50 million underground parking structure back in February, despite a 2007 study conducted for the City’s Downtown Development Authority (the agency that proposed the project and would operate the parking structure) which concluded that new parking is not needed.  (Full disclosure: my wife is currently a member and the former chair of the DDA’s volunteer board, and voted against the parking structure.)  The Ann Arbor Downtown Parking Study, prepared by the well-respected Nelson\Nygaard firm, concluded that: “Overall parking supply is sufficient to meet existing demand. The fact that utilization across the overall inventory fails to rise above 85% during peak periods indicates that overall supply is sufficient.”  (Bold in original, see Phase I Final Report, at page 3-41.)  Instead of borrowing millions of dollars to build a parking structure that’s not needed, the study recommended numerous options for the City that would be cheaper, less polluting, and better serve the City’s transportation needs, such as making the City more accessible for pedestrians and bicyclists, improving transit, and managing parking demand with market mechanisms.  (These recommendations and many others are detailed in the Phase II Final Report, at pages 5-5 to 5-23.)

The City Council’s approval of the parking structure also ignored the comments, concerns, and recommendations made in writing by the Chairman of the City of Ann Arbor’s Environmental Commission.  The Chairman’s comments to City Council were obtained through the Freedom of Information Act and are available as a scanned and converted document here.  The Chairman of the Environmental Commission requested that City Council postpone its decision regarding the bonding and approval of the proposed new parking structure until the City properly considered the need for the project, the environmental impact of the project, and the range of less impacting alternatives to the project.  It should be noted that the Chairman, Mr. Steve Bean, was speaking in a personal capacity and not on behalf of the City’s Environmental Commission, as the City Council never formally consulted with the Environmental Commission or sought the Environmental Commission’s input on the proposed new parking structure.

Environmental Commission Chairman Bean detailed in writing the potential for the project’s unnecessary and avoidable environmental impacts and raised numerous questions and decision-making criteria that warranted further study.  Specifically, Environmental Commission Chairman Bean expressed his concern about “the lack of consideration of environmental impacts (such as greenhouse gas emissions) from increasing parking supply.”  He thus requested that City Council “postpone action on the proposed underground parking structure” to allow City Council to get “comprehensive” information on the City’s “parking availability data,” “parking demand management efforts,” and “the presumed need for the structure and possible alternatives before approving its construction.” 

The City Council also ignored the City’s own policies and stated goals for reducing vehicle pollution and greenhouse gas emissions and totally failed to consider the vehicle miles and pollution that would be generated by the new parking structure.  Using a conservative calculation based on survey data from the Ann Arbor Downtown Parking Study (Phase I Final Report, at page 3-52), the proposed structure will support 494,210 vehicle trips per year resulting in 6,770,677 vehicle miles traveled per year.  According to U.S. Environmental Protection Agency estimates for average emissions from vehicles, the pollution from this increase in vehicle miles traveled will be 41,757 pounds of hydrocarbons, 311,690 pounds of carbon monoxide, 20,730 pounds of nitrogen oxides, and 6,201,940 pounds of carbon dioxide (the primary greenhouse gas). 

This increase in vehicle pollution and greenhouse gas emissions is totally at odds with the City’s own adopted 2006 resolution to reduce greenhouse gas emissions 20% from 2000 levels by 2015.  (See R-172-5-06, Resolution to Set Renewable Energy Goals for Ann Arbor.)  The City has acknowledged that meeting this greenhouse gas reduction goal will require reducing vehicle miles traveled in the City.  However, Ann Arbor’s State of Our Environment Report shows that total vehicle miles traveled are already increasing even without a massive new parking structure to bring more cars to the City.

Soon after the City Council approved the proposed new parking structure, the Great Lakes Environmental Law Center, Natural Resources Defense Council, Sierra Club, and several local residents (including experts in air pollution, public health, and urban development economics) sent a detailed letter to the City expressing both policy and legal concerns with the City’s decision.  (See media coverage from the Ann Arbor Chronicle and the Ann Arbor News.)  The Great Lakes Environmental Law Center also submitted several requests pursuant to the Michigan Freedom of Information Act, and that’s when things got really interesting, eventually exposing a troubling pattern of potentially illegal secret email deliberations by some City Council members, and the City’s failure to disclose these email communications as required by state law.

Requesting information pursuant to the Freedom of Information Act (FOIA) is standard procedure in public interest environmental work, as open government is critical to good environmental decision-making.  The Great Lakes Environmental Law Center’s first FOIA request to the City, dated March 27, 2009, sought all records relating to the City Council’s approval of the parking structure and relating bonding and financing.  The request specifically included “all e-mail communications … made by City Council members … during … City Council’s February 17, 2009 public meeting” (the meeting at which the parking structure and bonding were approved).  On April 20, 2009, the City responded to the FOIA request with some documents, but denied access to others and completely failed to acknowledge the existence of many of the City Council members’ emails.

We suspected that there were more emails between City Council members, and made another FOIA request on April 23, 2009 for “all records produced, prepared, or otherwise created by Ann Arbor City Council members during the City Council’s February 17, 2009 meeting.”  On April 30, 2009 the City responded by providing some (but still not all) of the City Council members’ emails, which began to show that City Council members were engaging in both substantive and non-substantive private email communications, using City laptops and email accounts, during the open public meeting.  Specifically, several City Council members exchanged numerous email messages discussing whether they supported postponement (as requested by the Environmental Commission Chairman) and why other City Council members supported or opposed postponement.  After determining through a private email discussion which City Council members opposed postponement and which members supported postponement (and why), and what a vote on the matter would thus likely result in, a motion for postponement was never brought or publicly discussed and voted on by the full City Council in open.  The Great Lakes Environmental Law Center has scanned these emails and posted them online to make them publicly available.  For a better read, the Ann Arbor Chronicle has detailed coverage of the email discussion, along with a thorough analysis of potential Open Meetings Act violations. 

In addition to these substantive emails, our FOIA request also uncovered numerous emails between some City Council members showing unprofessional, disrespectful, and insulting comments regarding other City Council members and constituents.  The Ann Arbor News covered these emails in two related articles (here and here) and in a scathing editorial and political cartoon.  While the Great Lakes Environmental Law Center is only concerned with the substantive private emails concerning the parking structure, many voters were offended by the other insulting emails and general disrespect for the public and ousted one of the ring-leading incumbent council members in the primary election two weeks ago (see coverage from AnnArbor.com and this Michigan Daily editorial, "Corruption loses").

But that wasn’t the end of the private email scandal.  Last month, we learned about numerous other private emails between city council members at the February 17 meeting regarding the parking structure that the Ann Arbor Chronicle obtained through FOIA (available here).  These emails showed an even more egregious disregard for the letter and spirit of the Michigan Open Meetings Act, which requires that all deliberations by public bodies be done in the open.  In one telling private email, sent from Council Member Leigh Greden to Council Member Margie Teall during the public meeting, Council Member Greden bragged “Isn't it nice when we script things?”  We don’t yet know why the City failed to produce these emails to the Great Lakes Environmental Law Center but did produce them to the Ann Arbor Chronicle – just one of the many questions that may be answered in the litigation.

In addition to claims regarding vehicle pollution, greenhouse gas emissions, and violations of the Open Meetings Act and Freedom of Information Act, the complaint also raises claims of nuisance and trespass on behalf of local businesses that will be devastated by the construction of the massive underground parking structure, most notably the famous Herb David Guitar Studio.  This Ann Arbor landmark has made, repaired, adjusted and sold instruments and accessories to John Lennon, John Paul Jones, Jerry Garcia, Carole King, Eric Clapton, and many other notable musicians.  If construction of the parking structure moves forward as planned, the Herb David Guitar Studio’s historic property could be permanently damaged and the studio could go out of business.

While this project and process have not exactly been a model of rational, informed, and open government decision making so far (to put it mildly), I’m still hopeful that reason and good judgment will prevail and the City will work collaboratively with its residents, businesses, and concerned environmental organizations to move towards a modern, efficient, less costly, and more sustainable transportation system instead of simply building an expensive parking structure that’s not even needed.  At a minimum, the City must reconsider its decision in light of the avoidable environmental impacts and public process abuses and ensure that neighboring independent landmark businesses are protected.

A Green Energy Alternative for Michigan

As the state of Michigan considers two proposals for huge new coal fired power plants, one of the central issues is whether the new coal plants are even needed.  Governor Granholm has made clear in an Executive Directive that the state will use its authority under the Clean Air Act and the Michigan Environmental Protection Act to make sure the plants are needed before their harmful air emissions would be permitted.  That determination of need will be very difficult in light of new report prepared for the Natural Resources Defense Council by Synapse Energy Economics, a premier energy consulting firm.  The report, A Green Energy Alternative for Michigan, details how the state’s businesses and residents can save millions of dollars while avoiding the harmful emissions of new coal fired plants with energy efficiency and conservation.  From the report:

Michigan is planning for its electricity future. The Michigan Public Service Commission issued an electricity plan in 2007 titled “The 21st Century Electric Energy Plan.”  This Plan projected steady growth in electricity demand and anticipated a need for significant investment in baseload coal-fired generation.  Such a plan might work in an era of steady demand growth, predictably low costs for coal-fired electric generation, and little concern over air emissions and global warming. However, that is not today’s world.  Our analysis holds the following lessons for Michigan: 

• The 21st Century Electric Energy Plan, developed nearly three years ago for the Michigan Public Service Commission, is today out of date, with unrealistic projections of future electrical demand, limited deployment of energy efficiency and renewables, and reliance on 20th Century coal technologies.   
• Michigan’s most-attractive energy choice by any measure is energy efficiency, which can be quickly implemented, save energy, make businesses more productive, lower energy bills, create jobs, avoid pollution, and keep money in Michigan. Programs that promote cost-effective efficiency make the single best energy investment available to Michigan citizens, business, and institutions. Renewable energy technologies are also attractive. These are the true 21st Century technologies. 
• A portfolio of 21st Century choices is less expensive, cleaner, faster, more economically robust, and creates more jobs in Michigan than a 20th Century plan based on new large fossil-fired power plants. 

With this report, it’s clear that the state of Michigan does not need the proposed new coal fired power plants (or their air pollution), and given the state’s legal authority and duty to avoid unnecessary environmental harm from coal plants, the state should deny the permits and instead encourage energy efficiency and conservation.

 

Update: The Natural Resources Defense Council, Great Lakes Environmental Law Center, and numerous other environmental organizations have now filed comments with the Michigan Department of Environmental Quality on Consumers Energy's Electric Generation Alternatives Analysis filing.  Our comments, based in part on this new report, demonstrate that Consumers Energy has failed to show the need for its proposed new coal plant.

Keep Burning Trash? A debate over the incinerator in Detroit

As the City of Detroit faces a looming decision about the future of its incinerator and waste management, the Detroit Free Press has published a series of debating op-eds on the greenhouse gas implications.  My op-ed recommends that the city stop using the incinerator for many reasons, which now includes the potential regulatory cost of millions of tons of greenhouse gas emissions.  Not surprisingly, the op-ed by the private company that operates the incinerator (and wants Detroit to keep using it) offers a different view, hoping that greenhouse gas emissions from the incinerator will be exempted from future federal regulations.

From the Detroit Free Press introduction: 

Here are two points of view on the incinerator in Detroit from the perspective of its impact on greenhouse gases, the emissions implicated in climate change and control of which is currently under debate in Congress.

Noah Hall, a Wayne State University professor who specializes in environmental law, warns that fees imposed on greenhouse gas emissions could prove costly for incinerator operations (link).

John Waffenschmidt, vice president for environmental science at the company that operates the incinerator, argues that greenhouse gas emissions are actually fewer at such a facility compared to landfilling trash and that Congress is likely to treat waste-to-energy facilities as an alternative energy source (link).

Updated on June 17, 2009 with short responses to the op-eds:

John G. Waffenschmidt - A great tool to fight global warming

Noah Hall - Reduce risks, emphasize recycling

Detroit must consider the cost of greenhouse gas regulation in continuing to operate the country's largest garbage incinerator

The City of Detroit’s garbage incinerator - the largest trash incinerator in the world - has long been a scourge of local residents and environmental justice groups.  It burns nearly 800,000 tons of trash per year, emitting hazardous air pollutants including mercury, lead, and dioxins.  Asthma hospitalization rates in Detroit are over three times the average rate of the state of Michigan.  In part due to the incinerator, Detroit is the only city of the 30 largest cities in the United States without any significant curbside recycling program (a pilot program was recently launched, and hopefully will be expanded soon).  For the full scoop on the incinerator – and the citizens working for a better solution – check out Curt Guyette’s Detroit Metro Times article and the Ecology Center’s many resources and videos.

The Great Lakes Environmental Law Center is now urging the City of Detroit to consider another reason to close down the incinerator and move to more modern waste management practices (download comment letter to Detroit City Council President Ken Cockrel Jr.).  Based on data provided by the Greater Detroit Resource Recovery Authority (which manages the incinerator) and U.S. EPA estimates for CO2 emissions, the facility could be responsible for as much as 750,000 tons of CO2 emissions per year.  Essentially, an incinerator does the opposite of carbon sequestration – it takes garbage containing tons of carbon, burns it, and releases the carbon into the atmosphere.  Pound for pound, burning municipal solid waste emits more CO2 per megawatt hour of electricity than burning coal.

As Obama’s EPA moves forward with steps to regulate greenhouse gas emissions under the Clean Air Act and Congress moves forward with the the American Clean Energy and Security Act (ACES), emitting significant quantities of CO2 and other greenhouse gases will soon become a legal and fiscal liability.  Strict application of the Clean Air Act could (and should) impose huge regulatory costs on the incinerator’s CO2 emissions.  Even under a more flexible cap and trade system, the City of Detroit would need to purchase credits for as much as 750,000 tons of CO2 emissions per year.  If those credits cost $10 per ton (a reasonable estimate), operating the incinerator will cost the City of Detroit an extra $7,500,000 per year.

The solution is clear.  Detroit’s City Council has endorsed a proposal by a broad coalition of community organizations – environmental, civil rights, health, labor, faith-based and social service advocates – for a New Business Model for Solid Waste Management in Detroit.  The City Council will soon be voting on a budget and taking other action on the incinerator’s future.  If City Council takes into account the cost of CO2 emissions, closing down the incinerator makes sense for both the environment and the City’s budget.

Cars and climate change

Making the drastic reduction in greenhouse gas pollution that scientists have determined is necessary to prevent catastrophic climate change will require major changes in how we generate and use electricity, design and build homes and offices, and manufacture and move products.  It will also require fundamental changes in how we get around every day.  Quite simply, we need less polluting cars and we need to drive them less.  This means that advocates for solving climate change (which should be all of us by now) must take a hard look at what we drive, how we drive, and alternatives to driving.  Fortunately, environmental law and policy is moving in this direction, with several exciting developments in the past week.

The American Clean Energy and Security Act (ACES), authored by House Energy and Commerce Committee Chair Henry Waxman (D-CA) and House Energy and Environment Subcommittee Chair Ed Markey (D-MA), would achieve a significant reduction in the total U.S. emissions of greenhouse gases responsible for global warming.  The legislation requires a minimum 17% reduction in greenhouse gases below 2005 levels by 2020, essentially cutting 1.2 billion metric tons of carbon dioxide in 2020 compared to inaction (there are many other provisions in ACES to reduce greenhouse gas pollution – see NRDC’s analysis for more details).  This reduction is comparable to taking 500 million cars off the road, which is twice the number of U.S. cars on the road today.  (Tip to Joe Romm of Climate Progress for all of these numbers and references). 

Obviously we cannot simply get rid of all cars – nor would doing so alone even meet the necessary greenhouse gas pollution reductions – but using cars less and making cars less polluting must be part of the equation.  President Obama and Congressional leaders know this, and in the past week have announced several initiatives to make this change.  Late last week, Senate leaders proposed legislation that would reduce automobile use and carbon emissions and boost public transit and rail service.  The Senate legislation requires annual reductions in per capita motor vehicle miles traveled (VMT) to reduce total U.S. surface transportation-generated CO2 emissions by 40 percent by 2030.

Making these significant cuts in per capita VMT (which means how much we drive) will require major changes in transportation funding at the federal, state, and local levels.  Instead of spending money on more highways and parking, resources must be invested in modern, reliable transit.  Americans use transit less than any other comparable country, according to a recent National Geographic Society report.  However, as Kaid Benfield, Director of NRDC’s Smart Growth Program points out, Americans surveyed reported that the biggest obstacle to their use of public transportation was lack of availability.  So we don’t use transit because it’s not readily available, which undermines support for greater investments in transit to make in more available.  Kudos to the Senate leaders for proposing legislation to end this chicken-and-egg cycle.

President Obama is also taking strong leadership to reduce our dependence on cars and make our cars more efficient.  He made his bold vision for high speed rail a centerpiece of the Recovery Act.  High speed rail would revitalize the Midwest, linking our cities and making the collective region far more economically competitive while reducing our dependence on dirty fossil fuels.  And today, President Obama is expected to announce that he has reached a deal with auto companies and states to significantly raise mileage standards, up to 36 miles per gallon for new passenger vehicles and light trucks by 2016.  

But we can’t simply wait for direction from Washington DC on this issue.  Local governments must consider reducing car use in all transportation and land use decisions.  California has led the way, with innovative enforcement of the California Environmental Quality Act by the Attorney General and environmental organizations such as the Center for Biological Diversity’s Climate Law Institute.  In several recent cases, California cities have either agreed or been forced in court to study and mitigate the impact of land use and transportation plans and investments in vehicle use and CO2 emissions.

In Michigan, the Great Lakes Environmental Law Center recently raised concerns about the City of Ann Arbor’s decision to spend about $50 million on a huge new parking structure.  Ann Arbor had adopted a resolution to reduce greenhouse gas emissions 20% from 2000 levels by 2015.  Meeting this goal will require reducing vehicle miles traveled (VMT) in the city, but Ann Arbor’s State of Our Environment Report acknowledges that total VMT have been steadily growing over the last several years.  The Great Lakes Environmental Law Center is concerned that the proposed new parking garage will increase VMT and make it difficult for Ann Arbor to achieve its greenhouse gas emission reductions.  For more details, see the Great Lakes Environmental Law Center letter submitted on behalf of NRDC, Sierra Club, and local residents and media coverage from the Ann Arbor Chronicle and the Ann Arbor News.  Ann Arbor has a reputation for environmental leadership and should take this opportunity to invest public money in the direction of the future, not the past.

International Joint Commission draft report blames climate change, not dredging, for falling Great Lakes water levels

Falling lake levels in the Great Lakes, especially Lake Huron and Lake Michigan, have generated considerable controversy and scientific debate.  In 2004, a study by the internationally respected coastal consulting engineering firm Baird & Associates found that decades of dredging in the St. Clair River, shoreline alterations, and sand and gravel mining have led to an increased conveyance that draws more water from Lakes Michigan and Huron into the lower lakes (Erie and Ontario) and out the St. Lawrence River to the Atlantic Ocean.  The Baird & Associates study was commissioned and paid for by the GBA (Georgian Bay Association) Foundation, with advocacy work led by the Georgian Baykeeper.  In response to the work of the GBA Foundation and Georgian Bay advocates (and resulting political pressure) the International Joint Commission agreed to conduct a public, scientific study to determine why lake levels are falling.

The result of the IJC International Upper Great Lakes Study is a draft report “Impacts on Upper Great Lakes Water Levels: St. Clair River” released for public comment on May 1.  The IJC draft report basically concludes that Lakes Michigan-Huron (which are really one water body) dropped more than 9 inches (23 cm) compared to Lake Erie between 1962 (the time of the last major dredging in the St. Clair River) and 2006.  The IJC draft report blames the falling lake levels on three primary factors:

1. Changes in climate, accounting for most of the decline in the last ten years.

2. A relatively dramatic and rapid change in conveyance in the St. Clair River in the mid-1980s, possibly resulting from a major ice jam. 

3. “Glacial isostatic adjustment,” which is the rebounding of the earth’s crust after the melting of the glaciers about 10,000 years ago (the draft report quantifies this as a relatively minor factor). 

According to the IJC draft report, these three factors, and not the dredging of the St. Clair River by the U.S. Army Corps of Engineers or other human physical disturbances, account for the declining lake levels.  The draft report concludes that there has been no ongoing erosion along the length of the St. Clair River bed since at least 2000, and thus remedial measures on the St. Clair River are not warranted at this time.

While many of us had hoped that the IJC’s work would provide a definitive answer to the question of falling lake levels to guide policy solutions, it may have created more controversy.  As reported by Dan Egan of the Milwaukee Journal Sentinel, the IJC draft report has not yet been peer reviewed, despite previous claims by the study co-chairman.  So the IJC has basically put the report and policy recommendations out for public comment without the benefit of scientific peer review.  This was done to speed things along in response to public and political pressure, according to the IJC. 

I appreciate the IJC’s responsiveness to growing concern over falling lake levels, but taking public comment before the study has been peer reviewed is putting the cart before the horse.  As a member of the public, I want to trust the scientific work of the IJC (and that trust depends on peer review), then offer my input on what the policy response should be.  Instead, the public won’t have the results of the peer review until the public comment period is almost over.  There’s a simple fix to this problem – extend the public comment period for 60 days after the peer review is completed (assuming the peer review approves the draft report’s methodology and conclusions).  Then we can have an informed and public debate about how to best protect Great Lakes levels from climate change, dredging, and other human impacts.

Update: 5/7/09 Dan Egan of the Milwaukee Journal Sentinel has more excellent reporting following up on the lack of public disclosure and peer review.

“Clean coal, leprechauns, and unicorns” – guest post by Chuck Warpehoski of the Interfaith Council for Peace and Justice

The following guest post is by Chuck Warpehoski, Director of the Interfaith Council for Peace and Justice.  (For a good look at Chuck, check out his photo and info as one of the Social Citizens Makeover winners.)  Among its many goals and important projects, the Interfaith Council for Peace and Justice is committed to environmental protection and stewardship, focusing on climate change.  When I asked Chuck to explain why a religious faith-based organization is putting so much effort into environmental stewardship, he responded:

“For those of us in the faith community, climate change and environmental stewardship issues are deeply religious.  Jews and Christians, for example, see that in the Genesis creation story God called the earth, the waters, the plants, and the animals ‘good.’  In this creation story God’s first command to humans was to care for the natural world the way a good king would care for his subjects.  In a similar manner, the Muslim Qur'an says that humans are appointed by Allah as ‘guardians on earth’ (Qur'an 6: 165).

What’s more, all the worlds’ faith traditions call their followers to care for the weak and vulnerable.  In Christianity, for example, Jesus tells his followers they will be judged by how they treat ‘the least of these.’ We know that the people who suffer most from environmental damage are ‘the least of these.’  It is the low-income children who live downwind from power plants.  It is the subsistence farmers in Bangladesh who will be washed out by rising sea levels caused by climate change.  So whether we look to religious teachings to care for God’s earth or to care for those who would be hurt most by global warming pollution, people of faith increasingly see that there is a spiritual obligation to protect the environment.” 

Chuck and other faith-based community leaders have been actively supporting the transition to clean energy and opposing the proposed new coal plants in Michigan.  Here is Chuck’s story:

“Clean coal, leprechauns, and unicorns.”  Students, faith leaders, tribal leaders, and environmental groups chanted about these three fairy tale creations prior to participating in the April 14 and 15 public hearings regarding the proposed coal-fired power plant in Bay City, Michigan.  Meanwhile, coal plant supporters shouted “go live in a cave.”  While some Bay City area businesses and unions have supported the power plant for the 1,000 short-term construction jobs and the 100 permanent jobs at the power plant, environmental groups see longer-term concerns.

Michigan is at a decision point.  What kind of energy future will we invest in?  Will we continue to invest in a fossil-fuel energy system, or will we invest in renewable energy?

There are jobs to be had in both cases.  As Van Jones of Green For All is fond of saying, “Solar panels don't install themselves.”  But only one path will help us address the threat of climate change, protect children’s health by reducing asthma-causing particulate emissions, and stop the blight that mountaintop removal and other destructive mining practices have created on America’s wild places.  Indeed, the very need for the proposed coal plants is under question.  Why should Michigan be creating more electricity when demand for electricity is declining in Michigan due to the economic slump and the declines in the domestic auto industry?

The Michigan Department of Environmental Quality is accepting comments on the proposed air quality permit until May 20.  You can make your comments online at the DEQ website or through the Clean Energy Now website.

A short introduction to Canada-United States transboundary environmental protection

The Windsor Review of Legal and Social Issues is publishing a special volume on Canadian and international environmental law, and to bring an American perspective, I was asked to write a short introductory article.  Titled "Canada-United States Transboundary Environmental Protection" the brief article surveys the major environmental treaties, agreements, and legal decisions that have shaped one of the best international environmental relationships in the world.  Yet the real value of the countries’ historical and recent successes is still to be seen in how they address the massive challenge of climate change.  From the article’s conclusion:

These recent successes in environmental protection and cooperation [such as the Great Lakes Compact and companion Agreement] give reason for optimism that Canada and the United States can together address the greatest environmental challenge of our time – climate change.  The two countries have much to lose from the impacts of climate change and much to gain from leading a global transformation from fossil fuels to clean energy.  They have the resources, both natural and human, to develop new technologies based on wind, solar, and other renewable sources of energy.  Most importantly, both countries have a strong tradition of environmental stewardship and an energized and engaged citizenry that will demand nothing short of success in meeting the challenge of climate change.  Canada and the United States led the way in developing international environmental law in the twentieth century, and to solve the global problem of climate change, they must lead again in the twenty-first century.

EPA takes major steps towards regulating greenhouse gas pollution

The Obama EPA is moving forward with several major steps towards regulating the greenhouse gas pollution that causes climate change.  Most significantly, the EPA just announced a proposed endangerment finding for greenhouse gas pollution.  The endangerment finding would trigger a new regulatory process for carbon dioxide emissions and other climate change pollutants.  (For an overview of the EPA’s endangerment finding, see this internal EPA presentation detailing the process and analysis, and see the EPA's webpage for additional information.)  Under the federal Clean Air Act, an endangerment finding would require EPA to begin the process of regulating greenhouse gas emissions from cars and light trucks, as well as new and modified stationary sources (such as coal-fired power plants and other major polluters).

This has been coming ever since the U.S. Supreme Court’s Massachusetts v. EPA decision in 2007, which held that greenhouse gases are pollutants under the Clean Air Act and that the EPA must either issue an endangerment finding or justify a decision not to do so.  With the overwhelming scientific data and studies demonstrating the harm from greenhouse gas pollution and climate change (heat waves, reduced freshwater supplies, coastal flooding, harmful air quality, infectious diseases, etc.) the endangerment finding was the only lawful outcome.  Still, the Obama administration and new EPA leadership should be commended for moving forward with this important regulatory step when the Bush administration delayed and avoided compliance with the Clean Air Act for years. 

The Obama EPA is also taking public comments on its proposed mandatory greenhouse gas reporting rule.  The proposed rule would require thousands of major greenhouse gas polluters to report emissions of carbon dioxide and other significant pollutants that cause climate change.  Reporting greenhouse gas emissions is an important first step towards eventual mandatory federal controls of greenhouse gas emissions, either through the Clean Air Act or new legislation.  The EPA is also expected to grant California’s requested waiver to put in place stricter greenhouse gas emissions requirements for cars, a move that many other states are certain to follow. 

The Obama administration is simply following existing laws (most notably the federal Clean Air Act) in moving forward with these regulatory actions.  Unless or until Congress enacts a meaningful and effective new statute to regulate greenhouse gas pollution, regulatory action under the Clean Air Act is required and critical for preventing catastrophic climate change.

Framing Water Policy in a Carbon Affected and Carbon Constrained Environment

Robert Abrams (one the leading water law experts in the country) and I have just finished an extensive and detailed (even by law journal standards) new article “Framing Water Policy in a Carbon Affected and Carbon Constrained Environment,” to be published later this year in the Natural Resources Journal.  A prepublication draft is now available, and here is the abstract:

Immense stresses are being thrust upon the nation’s water resources by massive changes affecting water supply and demand.  The climate, driven by emissions of carbon dioxide and other greenhouse gases, is changing in ways that substantially alter water availability in the United States.  Concurrently, dramatic shifts in domestic energy policy and production are underway through which the nation is seeking to reduce GHG emissions and increase energy independence.  Somewhat paradoxically, it will take far more domestic electricity generation to make headway in simultaneously reducing carbon emissions and reducing dependence on insecure sources of supply.  These energy sector changes and other water demand escalators will vastly increase water demand, with much of the increase coming in areas that are now water short and are predicted to lose usable supply according to most climate change models.  This article examines the extent of those changes in water supply and demand and assesses how water demands will be met in the four overarching water use categories: water for population security, water for ecological security, water for energy security, and water for food security.  Finally, the article suggests that water governance institutions and policies need to be retooled to better accommodate the necessary reallocation of water that will serve the nation’s water security needs.