The Emerging National Climate Program

Posted on April 30, 2009 by Robert Wyman

As Congress debates comprehensive climate legislation, the EPA considers its options and responsibilities under the Clean Air Act, and states and regions continue to develop their own programs, it is important to consider the potential risks of dual or overlapping federal and state programs. A federal climate program will be vastly superior to a patchwork of state and regional programs. Congressional action is preferred, but even a federal EPA program would likely be superior to a state or regional approach.


There are several obvious reasons why a federal climate program would be superior to a patchwork of state programs.  Successfully stabilizing the climate will require nothing less than the transformation of our energy and transportation systems. As some detractors of climate proposals have noted, near-term cap and trade programs will reduce emissions, but will not do nearly enough to make the progress needed to stabilize the climate. That will require long-term and broad scale changes to the way all nations generate and use energy. While states are valuable laboratories, there is little question that only the federal government can support the required scale of research and development, invest in the necessary infrastructure (including an adequate national transmission system and transportation fuel supply system) and otherwise establish and support markets of sufficient scale to stimulate needed change. Likewise, federal action is necessary to ensure that our climate policy is integrated with other high priority national goals, such as energy and transportation security, reliability and affordability. There is an emerging consensus as to the appropriateness of near-term comprehensive federal action, tempered by concerns about its economic impact during a severe recession and by debate regarding program design.


If there is a federal program and, if, as expected, it includes a cap and trade program, there should not be overlapping state cap and trade programs. The reasons for this conclusion were nicely illustrated yesterday by the highly-regarded economics consulting firm, National Economic Research Associates (NERA), in the second of its Climate Policy Economic Insights newsletters. As noted in the NERA document, if a state program is more stringent than the federal program, then the allowance price in that state will be higher than the federal allowance price because sources regulated in that state will face a higher cost abatement curve than sources subject only to the federal program. A good illustration of this problem is the emerging California climate program. Early estimates of the marginal cost of a carbon allowance in California at the compliance year 2020 are in excess of $100 per annual ton of carbon dioxide equivalent (CO2e) emissions (see “Analysis of Measures to Meet the Requirements of California’s Assembly Bill 32,” Precourt Institute for Energy Efficiency, Stanford University, Discussion Draft September 27, 2008, at 14-16). By contrast, EPA’s initial estimate of the marginal cost at 2020 of the Waxman-Markey Discussion Draft is expected to be in the range of  $17-22/ton CO2e (see EPA Preliminary Analysis of the Waxman-Markey Discussion Draft, April 20, 2009, at 3, 15). This cost differential is not in the least surprising, as California GHG sources have been subject for many years to ambitious renewable portfolio standards (requiring up to 20% of electricity to be supplied to investor-owned utility customers by 2010) and aggressive energy-efficiency standards, among other strategies. Requiring California sources to reduce their emissions further will simply cost more because the lower-cost options along their cost abatement curve are no longer available. Note that this is very different from requiring all sources to meet a common performance standard, in which case state-by-state costs per ton would be much closer. Indeed a national trading program based on a performance standard (e.g., carbon intensity) would likely reward California sources for their early actions.


The bottom line is that sources in states with more stringent carbon reduction programs will pay more for their next ton of carbon than their competitors elsewhere, potentially more than five times more. This might be warranted if GHG emissions had a local health impact, but it is not warranted given that GHG emissions impacts are global in nature and the location of the reduction generally is not of concern (except for the unusual, and easily segregated, situations in which there are co-benefits of reducing criteria pollutants). Notably, at a recent visit to Washington, DC, by Southern California elected officials and business leaders, one visitor urged Senate EPW Chair Barbara Boxer to consider preempting state programs to avoid disadvantaging California businesses. Senator Boxer answered that no California source would pay more for a ton of carbon than anyone else in the country. This is a reassuring statement, but one that can only be true if federal legislation preempts state climate programs. Fortunately, the Waxman-Markey draft appears to recognize the potential problems of overlapping federal and state programs, as it contains a partial preemption (through 2017) of state cap and trade programs.


Even if federal legislation preempts state cap and trade programs, there is a strong likelihood that so-called “complementary” measures may still be implemented at the state level. Such measures include several programs of strategic importance, such as renewable power and transmission investments, low carbon transportation fuel standards, and, in California’s case, comprehensive motor vehicle regulations. The Waxman-Markey Discussion Draft appears to recognize the value of undertaking these strategic programs instead at a federal level. While state leadership in each of these areas is to be recognized and lauded, once robust federal programs are in place state programs in these critical areas should be transitioned to the federal programs in a manner that minimizes, and even eliminates, the economic inefficiency associated with compliance with multiple programs.


Some states (again, California is a prime example) will develop complementary command and control measures to reduce GHG emissions in other sectors or for other categories for which the state regulation is not strategic. That is to say that the measures’ value will be primarily in reducing emissions, not in advancing a technology or fuel of critical national or regional importance. It may be that some of these measures are warranted at the state level. A good example would be energy efficiency programs to retrofit buildings or local or state initiatives to reduce energy consumption or vehicle miles traveled through smart land use and transportation planning. Except in such situations where states and localities offer unique advantages in structuring such programs, once Congress enacts (or EPA implements) a robust GHG cap and trade program, states should avoid the adoption of additional GHG regulations where the carbon cap already provides an adequate incentive for reducing emissions on a national basis.


Seasoned Congressional observers will recognize that, despite best efforts, Congress may not be able to enact a federal cap and trade program in the near term. If the Senate’s recent budget amendment is any indication of the prospects of legislation this year, 89 Senators voted to oppose climate legislation if it would have the effect of increasing electricity or fuel prices. Of course, raising the price of energy to reflect the environmental impact of carbon emissions is one central purpose of a cap and trade program. So the Senate vote is a danger sign to the prospects for passage. Senator Boxer’s subsequent amendment, which sought support for returning allowance auction revenues to consumers to neutralize the program’s overall price impact, garnered 54 votes, but still 6 shy of what would be required to prevent a filibuster.


Recognizing that Congress may not succeed in passing a federal cap and trade program this year, EPA should develop an appropriate federal framework backstop program. This course would be a natural progression from EPA’s recent proposal to find that GHG emissions endanger public health and welfare. When considering agency regulation of GHGs, EPA’s 2008 Advanced Notice of Proposed Rulemaking (ANPR) showed a deep understanding of the potential risks of regulating GHG emissions under the Clean Air Act on the one hand, and of the possible path forward that could avoid significant economic injury on the other. Following this path, EPA should be prepared to develop a national GHG program under section 111(d) of the Act. As suggested by the Waxman-Markey Discussion Draft, to ensure ultimate consistency with emerging federal legislation and to minimize economic risk, the EPA should not treat GHGs as criteria or hazardous air pollutants, nor should the agency apply the Act’s new source review program to GHG sources. Likewise, using the full scope of administrative discretion likely to be recognized by the courts as appropriate in this extraordinary context, EPA should focus on the largest GHG sources (above 25,000 annual tons) and apply Title V only to those sources already subject to the Title V program for other pollutants. If Congressional action is delayed, then, applying section 111 of the Act, EPA should develop appropriate performance standards or benchmarks for existing and new GHG sources that would form the basis of a national averaging and trading program similar to the program that was used to remove lead from gasoline. This program would initiate investment in carbon reductions and provide a basis for the creation and use of GHG emission reduction credits. It also could easily transition either to a Congressional cap and trade program or, if Congress cannot act promptly, to an EPA-administered national cap and trade program, with full recognition and value to any credits generated under the initial phase of the program. While Congressional action is clearly preferable, an EPA national trading program would be better than a patchwork of state programs for the reasons noted above.


Posted on April 24, 2009 by Mark Walker

On March 31, 2009, U.S. House Representatives Henry Waxman and Edward Markey released a discussion draft of the "American Clean Energy and Security Act of 2009". The bill is intended as an all-in-one clean energy, energy efficiency and greenhouse gas reduction law. The draft bill weighs in at a svelte 648 pages, anorexic in comparison to the recent 1073 page "Stimulus" bill, increasing the likelihood that it will actually be read. Bolstered by the EPA's 4/17/09 proposed findings that greenhouse gases threaten public health and contribute to the threat of climate change, this bill will now start winding its way through legislative review, possibly eliminating the need for independent EPA action on greenhouse gases. The House Subcommittee on Energy and Environment began hearings on the discussion draft on April 21, 2009. The  draft bill and administrative summaries can be reviewed here

The Waxman/Markey bill calls for U.S. reductions of greenhouse gas emissions to 97% of 2005 levels by 2012, 80% by 2020, 58% by 2030 and 17% by 2050. The bill utilizes the Clean Air Act as the authority to establish the declining limits, but otherwise exempts greenhouse gases from CAA regulation as criteria and hazardous air pollutants, from new source review, and from consideration in determining whether a stationary source requires a Title V permit.

Let the criticism (and bloggers) begin. Concerns have already been voiced about costs of compliance and raising the cost of conventional energy to the middle class. Some groups are critical of the bill because it allows carbon offsets, a perceived area of potential abuse. Some groups believe that the bill is not strict enough, making too many concessions at the outset, increasing the likelihood that it will be diluted through further legislative compromise. And then there is that pesky question of what to do with the revenues (taxes) generated from the anticipated cap and trade program (consumer rebates, deficit reductions, investment in sustainable energy programs, etc.). This is a greenhouse gas reduction bill to watch.

Is the Midwest Climate Initiative D.O.A.?

Posted on April 21, 2009 by George von Stamwitz

A report discussed at the March 31st meeting of the Midwestern Governors Association that highlights significant "leakage" if a regional GHG cap-and-trade program were adopted in the Midwest may be the beginning of the end for the Midwest GHG cap-and-trade program.  Essentially, the report notes the likelihood of significant increases in GHG emissions ("leakage") in other parts of the country that would result from a proposed regional cap-and-trade program.  According to a report cited in Carbon News, a companion publication of Inside EPA, the issue of leakage undermines the Midwest effort and attenuates the level of enthusiasm among state officials for a regional program. 

The report, “Cap-and-Trade Modeling: Initial Policy Run Results,” presented by the Pew Center on Global Climate Change, projects that more than half of the planned GHG emissions cuts would be offset by GHG emissions increases in other states.  Since only six states signed the Midwest Accord, the model assumes that the Midwest program would apply only to power generators within these six states, leading to an increase in electricity imported from non-participating border states.  The governors of Illinois, Iowa, Minnesota, Wisconsin, Kansas and Michigan (along with the Canadian province of Manitoba) signed onto the Midwest Accord in November 2007.  Ohio, Indiana, South Dakota and Ontario are observers to the process. The final meeting of the accord’s advisory group is May 11-12.  

Another factor that strongly contributes to a stalled Midwest GHG effort is the increasing likelihood that Congress will pass a national GHG cap-and-trade program.  On April 2, the House Energy and Environment Committee released a discussion draft of “The American Clean Energy and Security Act of 2009” (the Waxman-Markey bill).  While many important details have been left for future discussion, this comprehensive legislation promotes renewable sources of energy, carbon capture and sequestration technologies, energy efficiency, and would establish a national GHG cap-and-trade program.   The draft bill would apply to all sources greater than 25,000 tons per year and set aggressive reduction targets of 3% below 2005 level by 2012, 20% below by 2020, 42% below by 2030 and 85% below by 2050.  It has been projected that such reductions would virtually eliminate the use of carbon base fuels in the United States.  According to Rep. Waxman, D-California, a final draft of the bill will be sent to the floor for debate by Memorial Day.   

While some semblance of a Midwest GHG model rule may continue, it appears that any such effort under the Accord would serve simply as a prototype for a federal GHG cap-and-trade program (as would the Western Climate Initiative program).  Others argue that if the federal government fails to enact climate policy reasonably soon, the Midwestern Accord could serve as a “backstop,” but the more likely scenario would be the on-going effort at the EPA to regulate GHGs under the Clean Air Act.

Roger Walker
George von Stamwitz
Armstrong Teasdale LLP

U.S. EPA Issues Precedent-Setting Stormwater Decision

Posted on April 20, 2009 by David Van Slyke

On December 5, 2008, the U.S. EPA Region 1 announced that it would use its “residual designation authority” under Clean Water Act Section 402(p)(2)(3) to regulate owners of properties that discharge storm water into a three square mile urban watershed located within a major commercial center near downtown Portland, Maine. Landowners with one acre or more of existing “impervious surface” in the Long Creek watershed, such as parking lots, roads, and rooftops, will be required to obtain storm water permits under the National Pollutant Discharge Elimination System (NPDES).  The EPA decision was prompted by a March 6, 2008 petition from Conservation Law Foundation (CLF) asserting that certain storm water dischargers be required to obtain NPDES permits.  


The Long Creek Decision Reflects a Major Shift in EPA policy

The Long Creek decision, which closely follows a related decision announced by EPA Region 1 regarding the Charles River watershed in Massachusetts , represents a major shift in EPA policy.  For the first time, EPA is regulating runoff from parking lots and other impervious cover at existing commercial development (such as big box stores). EPA agreed with CLF that the percentage of impervious cover relates directly to storm water watershed degradation and that land development and associated impervious surfaces are a major source of water quality issues in impaired waterbodies such as the Long Creek and Charles River watersheds.

How will this change affect watershed landowners?

Under the program delegated to the Maine, DEP will now be regulating and issuing stormwater permits to all Long Creek watershed landowners meeting the one acre impervious cover threshold.  While storm water from new construction has been regulated by DEP under its existing stormwater rules, EPA’s Long Creek decision means that for the first time, Maine will impose stormwater permitting requirements for impervious cover on previously unregulated existing development.  

What are the requirements for watershed permittees?

EPA solicited public comment on its Long Creek RDA decision via a December 31, 2008 Federal Register Notice. The public comment period closed February 17, 2009; two public comments were recorded. Finalization of the decision is not expected until at least July 2009.

The precise scope of the requirements for prospective permittees will not be known until Maine DEP finishes its rulemaking; a draft rule regarding the new program will not be released until EPA issues its final decision.  However, it can be anticipated that landowners will have to control and treat storm water runoff from their parking lots, roads and roofs, develop and maintain various structural improvements and retrofits, monitor watershed conditions, and use best management practices at their properties.

EPA Clears the Way for Regulation of GHG

Posted on April 17, 2009 by Theodore Garrett

The Environmental Protection Agency has formally declared carbon dioxide and five other heat-trapping gases to be pollutants that threaten public health and welfare, setting in motion a process to regulate carbon dioxide and other gases associated with global warming. This announcement comes two years after the Supreme Court's decision in Massachusetts v. EPA. The Agency said the science supporting its so-called endangerment finding was "compelling and overwhelming." The ruling triggers a 60-day comment period before any proposed regulations governing emissions of greenhouse gases are published. Lisa P. Jackson, EPA's Administrator, said: "This finding confirms that greenhouse gas pollution is a serious problem now and for future generations.

Fortunately, it follows President Obama's call for a low-carbon economy and strong leadership in Congress on clean energy and climate legislation." EPA's announcement does not include specific targets for reducing greenhouse gases or new requirements for energy efficiency in vehicles, power plants or industry sources. Such new restrictions would be developed in subsequent rule-making or in legislation enacted by Congress. EPA's announcement stated that "[n]otwithstanding this required regulatory process, both President Obama and Administrator Jackson have repeatedly indicated their preference for comprehensive legislation to address this issue and create the framework for a clean energy economy."

A Rant Against Superfund

Posted on April 15, 2009 by Seth Jaffe

As some of my clients know all too well, I’ve been spending a lot of time on some Superfund matters recently. Although I can’t remember a period when I didn’t have at least one moderately active Superfund case, significant immersion in complex remedial decision-making and negotiations provides an unwelcome reminder just how flawed CERCLA is. Almost 20 years after the acid rain provisions of the Clean Air Act ushered in wide-spread acceptance of the use of market mechanisms to achieve environmental protection goals and the state of Massachusetts successfully privatized its state Superfund program, the federal Superfund program, like some obscure former Russian republic which remains devoted to Stalinism, is one of the last bastions of pure command and control regulation.


Can anyone tell me why the remedy selection process takes years and costs millions of dollars – before any cleanup has occurred or risk reduction been achieved? Can anyone tell me why, after the remedy has been selected, EPA has to spend millions of dollars – charged back to the PRPs, of course – to oversee the cleanup? Oversight costs can easily exceed 10% of cleanup costs, while oversight during the remedial design and feasibility study process sometimes seem to be barely less than the cost of actually performing the RI/FS.

While there are certainly a multiplicity of causes, there are two factors which greatly contribute to the problem. One was, coincidentally, highlighted in a post today by my friend Rob Stavins. As Rob noted, unlike the acid rain program, which was new at the time, the Superfund bureaucracy is well entrenched and there are a number of actors with a vested interest in maintaining the status quo

The second issue relates to the genesis of the Superfund program, as well as its continuing raison d’être. Whenever EPA has ranked relative risks from different environmental hazards, Superfund sites come in at the bottom. However, if you think back to Superfund’s origins, what comes to mind? Love Canal and the Valley of the Drums – and some concerned near-by residents who rallied around a cause to ensure that the problem would be addressed. As renowned risk communications expert Dr. Peter Sandman has noted, there is not necessarily a significant correlation between actual risk levels and public outrage, and it’s not possible to decrease outrage simply by providing accurate information about risks.

In short, the public is outraged by hazardous waste sites and does not trust PRPs to clean them properly. All of those EPA oversight costs are, in large part, intended not to decrease risk, but to lower outrage.  Outrage is understandable in some circumstances, and efforts to reduce it are laudable, but is it really an appropriate use of scarce environmental protection resources to spend the money that gets poured into Superfund sites?

There has to be a better way. Indeed, there is a better way. It’s called a privatized system in which PRPs have to meet well-defined cleanup standards, but are allowed to do so on their own, in whatever manner is most cost-effective, subject to audits by regulators. Privatized programs such as the one in Massachusetts are not perfect. However, their flaws – which largely stem from a failure to fully support privatization -- pale in comparison to the waste that is the federal program under CERCLA.

In other contexts, I’ve called on the Obama administration to embrace regulatory reform. Why not start with Superfund? Notwithstanding Rob Stavins’ point about the difficulty of overturning an entrenched status quo, if the states could do it, why not the federal government?

Besides, I have an entrenched personal reason for seeking Superfund reform. This stuff drives me nuts.

Clock Ticking on Comments In Response to EPA's Proposed Mandatory GHG Reporting Rule

Posted on April 14, 2009 by Mary Ellen Ternes


While we wait for EPA’s GHG Endangerment Assessment and new GHG legislation, the EPA’s proposed mandatory greenhouse gas (GHG) reporting rule was published in the Federal Register, at Mandatory Reporting of Greenhouse Gases, proposed rule, 68 Fed. Reg. 16448 (April 10, 2008)

This proposed rule would require calculation and reporting of carbon dioxide (CO2), methane (CH3), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6) in carbon dioxide equivalents by most major industrial and commercial sources of these gases with CO2 equivalent (CO2e) emissions over 25,000 tons per year. 



The sources covered by the proposed rule range from cement production to food processing, landfills to pulp and paper manufacturing. The rule also specifically requires separate reporting by suppliers of coal and coal-based liquid fuels, petroleum products, natural gas, natural gas liquids and industrial GHGs and manufacturers of vehicles and engines. Compliance with the proposed rule would appear to be challenging for those sources which emit hard to quantify, or never before quantified, fugitive emissions of GHGs. The proposed rule contemplates reporting by approximately 13,000 facilities, with the first annual report due in 2011 for the calendar year 2010.  EPA states that the reporting methods were built upon preexisting voluntary programs such as the U.S. Greenhouse Gas Inventory and The Climate Registry. 


There is a second public hearing on the proposed rule on April 16, 2009, at the Sacramento Convention Center, Sacramento, CA. More information is provided here.

Cap and Trade, CO2, and the Economy

Posted on April 14, 2009 by David Tripp

Cap and Trade for air pollution emissions reductions has a proven track record as an effective tool in reducing pollution – but can it work on CO2? Sulfur dioxide (SO2), perceived in the 1980s as the major air pollution threat, was reduced by 10 million tons over a 10-year period starting in 1990, according to EPA, without extensive delays and litigation associated with other environmental campaigns. How did it work so well? The marketplace, backed by the Clean Air Act, was used to create incentives for companies to reduce their SO2 emissions and earn “credits” for each ton of SO2 eliminated. Those credits could then be sold to other companies which needed more time to meet SO2 Clean Air standards.


How did the overall reductions occur? Using the implementing authority of Title IV of the Clean Air Act, 42 U.S.C. § 7651, successive “Phase-down” reductions of SO2 emissions were required. Under Phase I, (1995) certain large emitters of SO2 were to reduce the concentration of SO2 in their emissions to 2.5 lbs/mm Btu, or less. Later, in Phase II, (2000), all emitters above 75MW capacity were to reduce SO2 emissions to 1.2 lbs/mmBtu, or less. To help incentivize early compliance, and reduce the economic impact on individual companies, the companies making reductions were issued a credit for each ton of emissions reduction, and could apply the credit to use at another unit owned by the company, keep the credit for future use, or sell the credit through a market established by the Chicago Board of Trade. EPA reports that with these incentives, the national total of SO2 air emissions has been reduced by 50% since 1990.

            Does President Obama want to reduce CO2? You betcha! In August, 2002, then-Senator Obama proposed a reduction of CO2 from 1990 levels by eighty percent, to occur by 2050. The same goals appeared during the Presidential campaign. This is a very ambitious and potentially costly goal. The Congressional Budget Office has estimated a cost of $15 billion to the national economy over 10 years to meet this ambitious goal, but if certain economic safeguards are used, a deficit reduction savings of $80 billion could occur.

            A big change has occurred since then – Obama, as President, has stated Goal Number 1 is to restart the economy. This is a goal shared by nearly all. Congress and the President have begun implementing a stimulus package which would put nearly a trillion dollars into the economy, facing criticism that the debt burden this will place on future investors and generations will frustrate economic recovery. At the same time, Congress and EPA are intent on legislative or administrative action to reduce CO2.

            Can Cap and Trade work to reduce CO2 in a money-constrained economy? Political leaders appear to have concluded that CO2 reductions must be implemented quickly, and Cap and Trade may be the most efficient vehicle, and has been shown to work under the Clean Air Act model for SO2 . A more pointed question is whether Cap and Trade for CO2 should be utilized to generate a tax revenue stream to reduce the national deficit. During his March 24, 2009 news conference, Obama made reference to a budget outline he had sent to Congress earlier, which included hundreds of billions of dollars in revenue to the government through implementation of Cap and Trade. This plan was dubbed a “Cap and Tax” approach to CO2 reduction. In the latest development, in a Senate vote on April 2, 2009, 67 members of the Senate voted to require at least 60 votes to adopt any new cap and tax on carbon energy. These political maneuverings appear to emphasize the momentum by Congress, with public support, to adopt some form of Cap and Trade for CO2 that does not become a hidden tax or result in economic dislocations or hardships on a national or wide-scale regional basis.

            What are the safeguards needed to implement Cap and Trade, but not damage the economy? Most of these have been identified already:

·                    Safety valve provisions. National and regional economic disruptions caused by CO2 reduction requirements should be eligible for relief through any new legislation. Loss of jobs, disruption of the potential for job creation or job preservation and similar hardships should be grounds for flexibility on deadlines and enforcement actions.

·                    Realistic goals should be adopted. President Obama’s earlier proposed eighty percent reduction now may seem more than the country can afford. Congress should adopt more realistic goals, and be prepared in the future to make adjustments if needed.

·                    Research and development for carbon capture and storage must be accelerated. The stalemate over finding and proving technologies to capture CO2, and to safely sequester CO2 should be addressed in setting national priorities, something akin to the World War II stimulus for factories to supply war material.

·                    A “Price-Anderson”-style act for risks associated with carbon storage or sequestration should be adopted. Only when developers, investors and financiers learn they can avoid major, long term liability or loss of equity in the event of an unplanned release of CO2, will the markets be encouraged to get behind carbon capture and sequestration.

            These are not insolvable problems. Realistic goals, flexibility in the design and implementation of a national Cap and Trade system for CO2, and allowing the market to work as it did for SO2 reductions should reduce CO2 significantly without impeding economic recovery.


Posted on April 8, 2009 by Jeff Thaler

Wind energy is a centerpiece of the Obama Administration’s renewable energy resources program, and coastal wind development offers enormous potential yet faces severe challenges. On April 2, 2009 Secretary of the Interior Ken Salazar spoke of major findings from a report he had commissioned from Interior scientists.  Secretary Salazar said, “More than three-fourths of the nation’s electricity demand comes from coastal states and the wind potential off the coast of the lower 48 states actually exceeds our entire U.S. electricity demand.” 

While the National Renewal Energy Laboratory has identified more than 1,000 gigawatts of wind potential off the Atlantic Coast and more than 900 gigawatts of wind potential off the Pacific Coast, the Interior Report finds the Atlantic Coast to have greater feasible potential for wind energy due to its relatively shallow ocean depths and proximity to population centers.  By contrast, the deeper waters of the West Coast are less ideal for wind power, while Alaska’s high wind and shallow waters create an excellent potential power source-- but it sits too far from the lower 48 states’ consumers.


However, two major obstacles loom for the major renewable energy goals of Secretary Salazar and President Obama:  insufficient electrical transmission grid capacity to bring the power to market, and “environmental sensitivities” such as visual impact complaints.  Each obstacle presents different issues, yet each obstacle can – and MUST – be swiftly solved.

                With respect to transmission siting issues, there are several battles raging in the Courts and Congress at this time.  On February 18, 2009 the Fourth Circuit of the United States Court of Appeals ruled in the case of Piedmont Environmental Council v. FERC, No. 07-1651, 2009 U.S. App. LEXIS 2944 (4th Cir. Feb. 18, 2009), rejecting arguments by the Federal Energy Regulatory Commission (FERC) that the 2005 Policy Act had permitted FERC to order “National Interest” Transmission Projects to go forward even if State Utility Commissions had not approved those projects.  In this case, the New York and Minnesota Utilities Commissions had denied such projects, but those denials were overruled by FERC.  By a 2-1 decision, the 4th Circuit ruled against FERC. 

However, several weeks later, two leading United States Senators-- Senate Majority Leader Harry Reid (D-Nev.) and Senator Jeff Bingaman (D-N.M.)-- each proposed legislation expanding FERC’s authority over the siting of new transmission lines.  Both Senate bills would require all permit decisions and related environmental reviews under applicable federal laws to be completed “not later than 1 year” from the date FERC deems an application to be complete.  Both bills also would provide FERC with siting authority over new interstate transmission lines; FERC would serve as lead agency to coordinate any federal authorizations and environmental reviews; and state and regional permitting entities would be required to develop “interconnection-wide green transmission plans” to be submitted within 1 year to FERC for approval, or else FERC would complete the plan itself.  State Utility Commissioners have testified against these legislative proposals, not surprisingly.

With respect to the environmental “sensitivities” advocated by opponents to many different on- shore and some off-shore wind project proposals in recent years, the two primary issues have been visual impact and wildlife (including marine mammals for off-shore) impacts.  However, frequently missing from the list is the fundamental overriding environmental concern –global warming or climate change.  Very recent scientific work shows that the Noble-Prize winning Intergovernmental Panel on Climate Change (IPCC) Fourth Assessment Report issued in 2007 is already out-of-date.  For example, carbon dioxide is being emitted into the atmosphere faster than the IPCC had forecast just two years ago.  Moreover, recent studies find that the Arctic and Antarctic regions are warming faster than previously thought, and further find larger-than-expected pools of carbon in Arctic permafrost, which when released will accelerate levels of greenhouse gases in the atmosphere.  Moreover, since the 2007 IPCC report was issued, unexpectedly rapid melting of the vast Greenland Ice Sheet indicates that sea levels around the world could rise roughly 3 to 6 ½ feet by the end of the Century – almost triple that of the 2007 projections. 

Ocean and terrestrial plant and wildlife habitats already are being damaged by climate change, with the result that many of the birds, mammals, plants, trees and fish which are the subject of concern for some groups opposing wind projects will – in the absence of immediate and rapid facilitation of the siting and construction of clean energy projects – either be driven extinct or forced to move hundreds of miles northward in the United States or into Canada in order to survive during the lifetimes of our children and grandchildren.  Likewise, the environmental “concern” of scenic impact from wind turbines will – again in the absence of rapid facilitation of the siting and development of clean energy projects – be adversely impacted by accelerating climate changes that include greater presence of pests capable of destroying forest species and certain plant life.

                In Maine, an Ocean Energy Task Force has been hard at work over the past five months to meet the Governor’s Executive Order to increase our energy independence and security, reduce our substantial reliance upon fossil fuels, and substantially reduce our greenhouse gas emissions by, in part, developing a strategy to identify and recommend solutions to overcome “potential economic, technical, regulatory, and other obstacles to vigorous and expeditious development of grid-scale wind energy generation facilities in Maine’s coastal waters and adjacent federal waters.”  Tidal and wave power options are also being considered.  Sometime this month the Task Force will preliminarily forward to the Maine Legislature proposed legislation that would create a “General Permit” for off- shore wind energy demonstration projects at certain designated sites along the coast of Maine.

In conclusion, global warming, ocean energy, and our electrical grid system are each critical components to the urgent environmental and economic mandates requiring us to engage in a race, akin the 1960s’ race to the moon, to achieve what previously many may have thought to be unachievable – independence from foreign sources of fuel, independence from use of fossil fuels, and a deceleration of global warmer changes upon our hometowns, states, country and world.

Pres. Obama's DOJ Takes Second Shot at Citizen Suit Dismissal

Posted on April 3, 2009 by Jarred O. Taylor, II

Citizen suits in the environmental world are those filed in federal court under the authority Congress gave to a citizen to seek enforcement of the environmental laws, typically when the citizen believes the regulatory authority (i.e. EPA or a state agency) is not doing its job or has missed a violation.  


Entire articles have been written about the efficacy of such suits, and their appropriateness in the face of an already-initiated governmental enforcement or cleanup action. Recent cases suggest the courts want to encourage, and not discourage, such filings, although one recent US Supreme Court decision found the citizens lacked standing because there was not an actual, live, dispute. Summers v. Earth Island Institute, __U.S.__(No. 07-463, March 3, 2009) (see ACOEL blog entry of March 4, 2009).


Some, therefore, found it surprising when, on March 6, 2009, President Obama’s Justice Department filed a motion seeking the dismissal of a citizen suit filed against the United States over alleged mining contamination in a national forest. What some found even more surprising was this was not the DOJ’s first shot at the citizen group, the DOJ having attempted to get the case dismissed one time before, under Pres. Bush’s DOJ.


In Washington Environmental Council v. Mount Baker-Snoqualmie National Forest (W.D. Wash, CV No. 06-1249), the United States had argued in 2007 that it was already taking action at the site under Superfund, and argued that the citizen suit was a barred challenge to the United States’ “removal or remedial action” under Section 113(h) of Superfund. The federal district court denied this first motion to dismiss on the basis that the US Forest Service was just at the inspection and investigation stage, and had not actually selected a remedy.


On March 6, 2009, with the citizen suit still pending, DOJ filed another motion to dismiss, arguing that the US Forest Service had advanced its Superfund work so that all of its inspections were complete and it was beginning to perform the engineering evaluation for remediation, and to calculate those costs. DOJ argued in its motion that such activity, even though before any cleanup had been actually conducted, does meet the Section 113(h) criteria barring such challenges, and that the citizen suit should be dismissed. The author is unaware of a court ruling on this recent motion.


One hopes the administration’s position in this case (whether right or wrong) would be the same if the subject of the citizen group’s complaint was a non government organization or other private company, and not the United States. Comments?

Entergy Corp. v. Riverkeeper, Inc.

Posted on April 1, 2009 by Theodore Garrett

The Supreme Court upheld EPA’s decision not to mandate closed-cycle cooling systems, or equivalent reductions, for cooling water intake because the cost of closed-cycle would be nine times the estimated cost of compliance and because other technologies could approach the performance of closed-cycle operation. Entergy Corp. v. Riverkeeper, Inc., ___U.S. __(No. 07-588, April 1, 2009). EPA’s view that "best technology available for minimizing adverse environmental impact" allows consideration of the technology’s costs and of the relationship between those costs and environmental benefits is a reasonable interpretation of the statute, the Court held. When Congress wished to mandate the greatest feasible reduction in water pollution, it used plain language. The court noted that even respondents recognize that some comparison of costs and benefits is permitted.  It remains to be seen whether the impact of the decision will be limited to Section 316 of the Clean Water Act or whether it will be relied on to support the proposition that EPA may consider costs and benefits in other contexts where not expressly precluded by statute.