Last fall, respected climate scientist Lonnie Thompson of Ohio State University published a paper in a special edition of the academic journal, The Behavior Analyst. The edition was devoted to the subject of climate change, and Thompson’s paper, “Climate Change: The Evidence and Our Options,” provided the scientific foundation for the contributions that followed.
“Climatologists, like other scientists … are not given to theatrical rantings about falling skies,” Thompson wrote. “(But) virtually all of us are now convinced that global warming poses a clear and present danger to civilization.”
“… Sooner or later, we will all deal with global warming. The only question is how much we will mitigate, adapt and suffer.” (See Yale Forum article.)
In 2011, there are plenty of reasons to conclude that “suffer” is the option the globe will most likely choose. In Washington, where the new House Majority Republican lawmakers are convinced that climate science concerns lack merit, there is little chance for a federal embrace of “mitigation” — that is, efforts to actually curb carbon emissions.
Still, journalists covering the climate issue in the United States will want to track developments on several key Washington fronts.
The Environmental Protection Agency, buttressed by the Supreme Court’s 2007 decision in Massachusetts v. EPA, is rolling out new regulations in 2011 designed to curb carbon emissions from vehicles, power plants, refineries, and other major sources. (See Yale Forum article.)
In Congress, where Republicans are emboldened by the November mid-term elections, efforts to strip the EPA of its regulatory power are under way. Some lawmakers have said they also may review mainstream climate science and question the credibility of prominent climate scientists.
In the federal appeals courts, legal challenges to the EPA’s regulatory moves are being heard.
In the U.S. Supreme Court, a review of a Second Circuit ruling could determine whether states can use nuisance lawsuits as common law instruments to force reductions in carbon emissions.
Some states, such as California and Massachusetts, continue to affirm their own paths toward low-carbon futures, while others, such as Texas, resist new regulations to cut carbon emissions.
Here’s a closer look at each of these fronts in the struggle over what to do, and how, on human-caused climate change.
EPA Rulemaking Throttles Up, But Will It Take Off?
The 2007 5-4 Supreme Court ruling in Massachusetts v. EPA found that carbon dioxide and other greenhouse gas emissions are air pollutants covered under the Clean Air Act. EPA is now launching a series of regulations designed to curb carbon emissions nationally.
On January 2, a national fuel efficiency program took effect. The rule establishes Corporate Average Fuel Economy standards, rolled out in two phases. Phase I requires the auto industry to reach an average 35.5 mpg for passenger cars, light trucks and medium-duty passenger vehicles by 2016. Proposed Phase II rules would require a fuel efficiency standard of between 47 mpg and 62 mpg by 2025.
Also taking effect that same day was the EPA’s “tailoring rule” designed to regulate new and refurbished stationary sources of carbon emissions such as power plants, oil refineries, and cement production plants. New regulations for existing stationary sources of carbon emissions are expected by 2016.
As of January 2, the nation’s largest greenhouse gas emitters — those emitting more than 100,000 tons of CO2 per year — that are planning to build new facilities or make major modifications to existing ones must obtain air permits and implement energy efficiency measures or technology to lower emissions.
Emissions from small sources, such as farms and restaurants, are not covered by the new permitting requirements.
One dispute worth following involves the EPA and Texas. The Lone Star State has refused to implement the agency’s new rules, and EPA has threatened to take over the state’s permitting process that the federal government now requires of all states, always a step EPA takes only as a last resort.
On December 30, the U.S. Circuit Court for the District of Columbia ordered the agency to halt its takeover and “wait at least a week so judges can make a decision on Texas’ legal bid to stave off federal intervention,” The New York Times has reported.
More complete discussions of the EPA’s rulemaking can be found at a variety of sources. Here are a few:
- The EPA
- The New York Times
- Vermont Law School. On January 3, the school published a report, “Vermont Law Top 10 Environmental Watch List,” which discusses in part the EPA’s new rules.
As expected, the new rules have sparked controversy over the EPA’s authority to force lower carbon emissions — particularly in Congress.
Back in October, the Los Angeles Times was among many news outlets that forecast the Congressional fight.
The newly seated 112th Congress is a far cry from the 111th. Here’s a look at new attitudes on Capitol Hill toward climate change.
Congressional Retreat on Climate?
In the wake of the Senate’s failure last summer to deliver a comprehensive energy bill, prospects for action in the 112th Congress to curb carbon emissions appear dimmer than ever.
The Republican take-over of the House empowers the new majority with many new and returning representatives who either question or completely reject mainstream climate science.
Half of the Republican caucus “flatly denies that the planet is warming,” Kate Sheppard of Mother Jones magazine reported shortly after the November election.
“Only four House Republicans have openly accepted the science of climate change,” Sheppard wrote. “Another five who are returning next year voted for last year’s climate and energy bill, but have stayed quiet when it comes to their stance on the science of global warming.”
California Republican Darrell Issa, the powerful new chair of the House Oversight Committee, has said he will preside over a series of investigative hearings, one of which will focus on the impact of regulation on job creation.
Some might expect that Issa’s hearing on regulation will include a review of EPA’s regulatory moves. But Issa’s spokesman, Kurt Bardella, told The Washington Post that that’s not his intent.
“‘EPA really wasn’t what we were thinking,’” Bardella told Stephen Stromberg of The Washington Post for his column on Jan. 3.
“The committee aims to get ‘input from business/small businesses, especially about what, if any, regulatory impediments are impacting their ability to create long-term, permanent jobs,” wrote Stromberg, quoting Bardella.
“This could mean that, essentially, they’re going after health care, not greenhouse gas regulation,” Stromberg continued. “Issa’s dropping of climate science from his agenda also accords with the image he wants to cultivate of an overseer more interested in rooting out waste and fraud than in throwing ideological bombs.”
Still, Issa’s skepticism of climate science and climate scientists has been widely reported. Elizabeth Kolbert wrote about Issa’s hostility toward climate science in a New Yorker piece November 22 that also reviewed the views of other Republican lawmakers.
The Hill has also reported on Issa’s skepticism.
Meanwhile, Wisconsin Republican Jim Sensenbrenner, who Stromberg wrote has been designated by GOP leaders as the party’s “climate change attack dog,” has said he will push for hearings that question the merits of climate science and the credibility of climate scientists. Sensenbrenner also has said he wants to use the Select Committee for Energy Independence and Global Warming, which was formed in 2007 when California Democrat Nancy Pelosi became Speaker, to probe “massive international scientific fraud.”
In addition, California Rep. Jerry Lewis wrote a letter to EPA Administrator Lisa Jackson in November in which he said he wants to strip the EPA of funding and conduct “unprecedented levels of oversight.” The news was reported by Politico and picked up by the environmental blog, Propel Earth Initiatives.
Congressional opposition to curbing carbon emissions is not entirely partisan. Democrats in coal-producing states also are reluctant to support new regulations that could place new constraints on utilities and hurt jobs.
This hostile environment toward climate science and regulatory steps to curb carbon emissions is apparently weighing heavily on some lawmakers who previously had expressed alarm over climate change.
Arizona Republican John McCain, who faced tough conservative opposition in his re-election campaign last year, has been all but mum on the climate issue.
Michigan Republican Fred Upton also has altered his views on the climate issue, as reported by Mother Jones, and he has since purged from his website some of his earlier more moderate views on the issue.
On December 28 in a Wall Street Journal column, Upton outlined his goal of stripping EPA of its regulatory power to curb carbon emissions.
In the Senate, there are other efforts to curb federal regulation of carbon emissions. Alaska Republican Lisa Murkowski’s resolution seeking to strip the EPA of its authority to regulate greenhouse gas emissions failed last June, but a bill by West Virginia Democrat Jay Rockefeller to delay EPA regulations is expected to get a new push early this year. Rockefeller is among those Congressional Democrats who are wary that federal regulations designed to cut carbon emissions could hurt the coal industry in their home states.
One glimmer of legislative progress for cutting carbon emissions could come from a Republican in the Senate — South Carolina Republican Lindsey Graham. Graham “is designing an agenda for next year featuring a clean energy standard for utilities, which rewards increased nuclear and renewable power alike,” Greenwire reported in The New York Times on December 14.
Here are some additional links related to the EPA’s new rulemaking effort, and opposition in Congress:
- Political risks to the Obama Administration
- EPA’s plans to push forward with regulations
- E&E article: EPA scrambles to the finish line on greenhouse gas rules
- EPA rules and impacts on the coal industry
- Auto industry study on potential jobs lost because of higher fuel efficiency standards
- Scientist Mike MacCracken’s defense of the EPA’s endangerment finding, challenged now in federal court
- The case for EPA action, according to The Nation
Legal Challenges to EPA Authority
Besides opposition in Congress, the EPA’s greenhouse gas rules face numerous legal challenges in the U.S. Court of Appeals for the District of Columbia.
The vehicle emission standards stand the best chance of being upheld, in part because the auto industry supports them, according to Vermont Law School Professor Pat Parenteau.
The tailoring rule, which would affect industries that account for 70 percent of the greenhouse gas emissions from stationary sources, is more vulnerable, Parenteau said in a recent telephone interview.
One challenge EPA faces involves its convincing the court that it has an inherent discretion to phase in regulations. There are literally millions of sources of greenhouse gas emissions in the country, Parenteau said, and it would be absurd to issue rules that apply immediately to all of them.
“The EPA has to convince the court that it has this sort of inherent discretion to phase (in regulations),” Parenteau said.
“If the court rules that the EPA doesn’t have that discretion, then it’s a train wreck.”
Parenteau said some legal experts believe that the lawsuits challenging the EPA’s rulemaking authority are trying to force such a train wreck.
“Congress would (then) have to step in and either amend the statute or put a moratorium on the rules or something like that,” he said. “It would basically mean there’s no progress, at least at the national level.”
Among the legal challenges to the EPA’s rulemaking is an attack on the agency’s endangerment finding, which was issued a year ago and provides the scientific foundation for not only the tailoring rule but also the fuel efficiency standards.
Parenteau said he doesn’t think the appeals court will overturn the endangerment finding.
“It would be shocking, I think, if a court were to say, ‘We find fault in the agency’s scientific judgment,’” Parenteau said.
“The Supreme Court, in the Massachusetts v. EPA case, made it clear this really was a judgment call on the EPA’s part as to whether these substances pose a risk to health and welfare. And, the Supreme Court said if the Administrator determines that they do pose a threat, then the Administrator has a mandatory duty to act.”
AEP v. Connecticut Headed for the Supreme Court
Whether the courts or Congress do or do not stifle EPA, there is yet another critical legal drama playing out this year in the climate wars.
In December, the Supreme Court agreed to review American Electric Power v. Connecticut.
Four of the nation’s largest coal-powered utilities, joined, to the chagrin of many environmentalists, by the Obama administration, asked the court to reverse that Second Circuit 2009 decision.
The Second Circuit has ruled that greenhouse gas emissions from power plants may be a public nuisance, and that lawsuits claiming that can go to trial.
Without ruling on the merits of the case, the Second Circuit concluded that a public nuisance claim targeting coal-fired power plants is allowed because the federal government has not regulated greenhouse gases.
The Second Circuit ruling came before the EPA issued its latest rules concerning greenhouse gas emissions.
The Obama administration has argued that the EPA’s latest actions represent federal regulations that should supersede a common law public nuisance claim.
The plaintiffs in the case, as reported by Professor Martha Judy and student Jonathan Gerard in the Vermont Law School “Top Ten Environmental Watch List 2011” report, have argued that “the current EPA regulations do not apply to existing coal-burning power plants at issue in this case.”
Judy, in a recent telephone interview, argued that the case should be allowed to go to trial.
“One of the things that would be considered at trial is whether the regulation that EPA has already undertaken in effect preempts a claim of nuisance,” Judy said. “Since those regulations weren’t in effect at the time the Second Circuit made its decision that (a nuisance) case could proceed — it seems like it’s premature for the Supreme Court to get involved in this.”
Justice Sotomayor has recused herself from the case because she was on the Second Circuit panel that heard the case.
The deciding vote in the case could well come down to Justice Kennedy — and it’s not at all certain how he’ll rule.
With a 4-4 vote, the Second Circuit decision would stand, and American Electric Power v. Connecticut would go to trial. But that doesn’t mean that all public nuisance claims arguing that greenhouse gases constitute a public nuisance can go forward to trial, Judy said. It depends on how the ruling is written.
“We want to allow the courts and the law to proceed on all fronts, not just on the regulatory front,” Judy said. “The law solves these kinds of problems through statutes, through legislation, through regulations, but also through the common law which is where in the courts we solve problems for which we don’t particularly have statutes in place that address them. … The public nuisance could be used to deal with this issue.”
Resolution of AEP v. Connecticut will decide “whether states should be allowed to use their common law as they see fit and let the courts resolve the issues, when there is clearly no regulation by the federal government,” Judy said.
“We won’t know when or whether there’s regulation until we can allow one of these cases to go to trial and they can weigh that argument.”
Advocates for action on cutting carbon emissions say they need every weapon in their arsenal.
“We need every tool, both scientific and legal, that we have to address this issue,” Judy said. “If the Supreme Court takes the action to limit this tool, then we have that much less that we can do to address a problem that very much needs our attention.”
Thinking Globally, Acting Locally
While federal policymakers bicker, some states are moving ahead with their own plans to cut carbon emissions.
California affirmed its commitment last fall, when its voters defeated an attempt to kill the state’s landmark 2006 law designed to dramatically lower statewide emissions.
The Vermont Law School report offers a succinct review of the fight last fall.
Meanwhile, some legal experts in California have said the passage of Prop. 26 in that state — seen by many as an under-the-radar attempt to rob the 2006 global warming law of its teeth — will not likely have a broad impact on the state’s existing greenhouse gas reductions law (see here and here).
Meanwhile, California Watch, a project of the Center for Investigative Reporting, recently published a report on how the timber industry stands to gain under the state’s new carbon credit system. The report offers an interesting look at the potential winners and losers of state initiatives to lower carbon emissions.
In Massachusetts, lawmakers have just announced a plan to cut greenhouse gases emitted by homes, cars, and businesses across the state by 25 percent below 1990 levels by 2020.
The move places “Massachusetts in the company of California, New Mexico and other states that have taken strong action to address global warming,” The New York Times reported.
Back on the West Coast, outgoing San Francisco Mayor Gavin Newsom (headed for Sacramento as the state’s new Lieutenant Governor) launched an initiative that he said will make the city 100 percent reliant on renewable energy by 2020.
Of course, initiatives by cities and even states — although California does send a strong message to Washington and the rest of the world — are mere gestures when it comes to the daunting challenge of cutting carbon emissions worldwide.
Gus Speth, a law professor now at the Vermont Law School and one of the authors of its “Top Ten” watch list, said the nation’s environmental movement must rediscover its roots and engage both Washington and Main Street.
“Mainstream (environmental) groups became too wonkish, and lost this capacity to deal with the public in a vocabulary that people can relate to — presenting a positive vision and talking about things that people really care about for themselves and their children,” Speth said. “We really need to get back to that.”
In academic circles, Speth added, researchers need to speak up, seizing back control of the climate science they’ve built, he said.
There are new stirrings from young people, and Speth cited as an example a planned Mother’s Day march by the group “I Matter.”
Echoing scientist LonnieThompson’s warnings of the climate future ahead of us, Speth said many opportunities to act have come and gone.
“We may well have run out of time to prevent enormously serious consequences,” Speth said.
“It’s just been 30 years of … running away from the reality of this problem, and the reality in that period got dramatically worse. So there is no slack anymore.”