Posted on May 27, 2010 by Ridgway Hall

On May 12, 2010, EPA, with the support of six other federal agencies, issued a Strategy For Protecting and Restoring the Chesapeake Bay Watershed. The strategy document is a major milestone in an enormous multi-stakeholder exercise involving issues of science, law, policy and politics launched a year ago by President Obama. Executive Order 13508, 74 Fed. Reg. 23099, entitled “Chesapeake Bay Protection and Restoration,” recognized the unique ecological, economic, recreational and cultural value of the Bay, and the failure of federal and state efforts over the previous 25 years to reverse its serious degradation. The Order directed the seven federal agencies to work together to develop a strategic plan to restore the Bay to a healthy condition by 2025, in consultation with the six states whose lands are included in the Chesapeake Bay watershed and the District of Columbia, plus stakeholder groups, NGOs and concerned citizens among the 17 million people who live in the watershed. While the most relevant law in this effort is the Clean Water Act, other federal, state and local laws are also in play. This article briefly describes the problems faced by the Bay and then discusses the strategy for its restoration.

The Problem

The Chesapeake Bay is the largest estuary in North America and the third largest in the world. Water quality problems are particularly challenging because it is relatively shallow compared with the land mass—64,000 square miles—which drains into it. EPA has called it a “world-class ecological treasure that is home to several thousand species of plants and animals,” including migratory birds. Its production of crabs, oysters and other seafood, plus recreational uses and shipping, “make the Chesapeake Bay a multi-billion dollar economic driver for the mid-Atlantic.”


Over a century of pollution from heavy industrial, commercial, agricultural and other uses has resulted in serious degradation. The principal pollutants are nitrogen, phosphorus and sediment, which have prevented attainment of water quality standards for dissolved oxygen, clarity/underwater grasses and chlorophyll-a (a measure of algae levels). In the summer large “dead zones” spread out across the Bay where fish cannot live because the oxygen is depleted by decaying algae which bloom as a result of excess nutrient discharges.


For the past 25 years, despite a series of cleanup agreements among federal agencies and the Chesapeake Bay states, with leadership from EPA’s Chesapeake Bay Program established under Section 117 of the Clean Water Act, efforts to stem the pollution have been unsuccessful. Regulation has been weak and enforcement has been lax. Currently 89 of the 92 tidal segments of the Bay fail to meet one or more water quality standards.



The Strategy For Restoration

On May 12, 2009, President Obama issued Executive Order 13508 in response to widespread calls from many of the Bay states and citizens groups for federal leadership. The Order required the seven federal agencies with responsibility for the Chesapeake, including EPA and the Departments of Agriculture, Interior, Commerce (including NOAA), Defense, Transportation and Homeland Security, to develop reports on environmental conditions throughout the watershed, identify tools and resources to protect and restore water quality, wildlife habitat and adjacent lands, and develop a schedule for restoration and protection of these resources by 2025, including measurable 2-year milestones.


EPA Administrator Lisa Jackson is committed to restoration of the Bay and appointed as her Senior Advisor on the Chesapeake Bay and Anacostia River Charles (“Chuck”) Fox. Fox, a Bay sailor who previously served as EPA’s Assistant Administrator for Water under President Clinton as well as Secretary of the Maryland Department of Natural Resources, has been a key player in the implementation of the Executive Order.


The Strategy document issued on May 12 lays out a series of measurable objectives designed to achieve, among other things, sustainable and healthy populations of blue crabs, oysters, fish and other wildlife; restoration of degraded wetlands and creation of new wetlands and forest buffers along the Bay and its tributaries; protection of forests, farms and land that is naturally or historically important; expanded public access, recognizing that people will work to protect the things they enjoy; and an enhanced public awareness of the importance of a healthy Bay and watershed to the enjoyment and economic well-being of its citizens.


At the heart of the Strategy is restoration of water quality, based on the establishment of a total maximum daily load (TMDL)—actually a large number of TMDLs—under Section 303 of the CWA which will cover all 92 segments of the Bay and its tidal tributaries. Based on decades of data gathering and modeling, the final TMDL will be the largest in history. It will include “waste load allocations” for point sources and “load allocations” for non-point sources addressing the three pollutants of major concern: nitrogen, phosphorus and sediment. EPA seeks to finalize it by year end.


The TMDL allocations will be applied to point sources through NPDES permits, and to non-point sources through various state regulatory programs, all of which will be collectively embodied in Watershed Implementation Plans (WIPs) which each Bay state and the District of Columbia are already developing. The WIPs will be evolving documents, updated as experience is gained with their initial application. If states fail to adopt timely WIPs, or the WIPs are not adequate to achieve reasonable progress at two-year milestone intervals, EPA will write the WIP itself, and provide backup enforcement wherever state enforcement is lax.


Compliance challenges may be especially great for non-point sources. For example, EPA currently estimates that approximately 42% of nitrogen, 46% of phosphorus and 72% of sediment discharged to the Bay come from agricultural activities, most of which involve non-point sources such as farms. States currently require nutrient management plans and best management practices for most farms, but the enforcement tools are weak. Legislation is pending before the Senate and House to strengthen the Chesapeake Bay provision of the Clean Water Act, Section 117, but as of this writing the fate of that legislation is uncertain. Funding is available to assist farmers develop and implement improved practices through the U.S. Department of Agriculture and state agencies. Technical resources are available from those agencies and various NGOs and university programs. Given traditional suspicion of government programs, however, substantial community outreach and stakeholder involvement will be required to achieve the goals of the strategy.


EPA is also launching several related regulatory initiatives. These include more effective regulation of concentrated animal feeding operations (CAFOs) to reduce runoff from animal manure and process waste, expanded regulation of municipal separate storm sewer systems, supporting state and local regulation of septic systems, and developing nutrient trading programs and the use of offsets for new and expanded discharges. More rigorous regulation is being considered for stormwater runoff from impermeable surfaces and construction sites from which large quantities of sediment are washed into rivers and streams. To address air emissions of nitrogen which result in atmospheric deposition on the Bay, the Strategy proposes more stringent regulation of power plants and other sources of nitrogen to the air.


This brief summary does not address many elements of this massive Strategy. For more information, see the EPA Executive Order web site and EPA’s web site for the Chesapeake Bay TMDL. EPA and the Bay states are conducting public meetings and outreach efforts throughout the watershed.



The Chesapeake Bay Restoration Strategy will, among many other things, provide numerous opportunities for lawyers to provide counseling to those who will be subject to federal and state permitting and regulatory requirements driven by the TMDL and the related WIPs. The restoration effort provides many opportunities to find novel approaches outside the courtroom for resolving the problems and conflicts which will inevitably result during the course of implementation. Finally, much of this activity will provide models for addressing similar problems elsewhere around the country.

Just What We Need: More Community Engagement in Superfund Sites

Posted on May 26, 2010 by Seth Jaffe

Last week, EPA’s Office of Solid Waste and Emergency Response announced release of its Community Engagement Implementation Plan. Who could be against community engagement? It’s as American as apple pie. It’s environmental justice. It’s community input into decisions that affect the community. It’s transparency and open decision-making.


Call me a curmudgeon, but I’m against it. Study after study shows that, in terms of the actual risks posed by Superfund sites, we devote too many of our environmental protection dollars to Superfund sites, when we should be focusing on air and water. Why do we keep doing this? Because the community demands it. As Peter Sandman has noted, perceptions of risk are driven only partly by the actual hazard posed. To a significant degree, those perceptions are more driven by outrage over the situation. In some circumstances, what Sandman calls outrage management makes sense, but I’m skeptical that EPA’s community engagement initiative is really about outrage management.


In any case, here’s the public policy question of the day. Does it really make sense to spend scarce environmental protection resources, not to reduce risk, but to reduce outrage?

BNSF No Big Deal, says U. S. District Court

Posted on May 25, 2010 by Rick Glick

The U. S. District Court for the Eastern District of California has denied reconsideration of its pre-BNSF order finding defendants jointly and severally liable under CERCLA. U. S. v. Iron Mountain Mines. Defendants had argued that the Supreme Court in the BNSF case mandated the district courts to consider grounds for reasonable apportionment. They had earlier argued for apportionment before BNSF and then cited the Supreme Court’s decision as an intervening change of law that entitles it to reconsideration.


The court disagreed, finding that BNSF did not change the law, rather it simply reaffirmed existing law and applied it to a specific set of facts. It seems strange that the Supreme Court would grant cert in a case where the law is settled just to apply the facts. In fact, the working presumption in CERCLA litigation had been that joint and several liability is the rule and apportionment is rare, even though CERCLA doesn’t say that. Most practitioners saw BNSF as a game changer, reopening the possibility of a hard look given to reasonable bases for apportionment in mediated allocations and in court. But the District Court followed the lead of the Justice Department, which has consistently said BNSF marks no departure from standard CERCLA jurisprudence.


It sure would be great if the Supreme Court would provide some clarity in its environmental decisions. Few would think Rapanos helped much with our understanding of the Clean Water Act, and now we need to muddle through a certain lack of precision in representing clients in Superfund matters. While BNSF opens the window, it remains to be seen whether the opening is just a crack or will really let some fresh air in.

Fighting the Last War: The Relevance (and Irrelevance) of the Exxon Valdez Spill to the Deepwater Horizon Spill

Posted on May 24, 2010 by Bradley Marten

A number of us in the Pacific Northwest can remember the phone call that came in the spring of 1989 telling us to come to Alaska. There had been an oil spill, the caller said, and we had better get up there right away. We packed up and left, sometimes with just a couple of sets of clothes, and ended up staying for months, or years. We were lawyers, not scientists, and we could neither contain the spill nor predict its impacts. What we could do – or thought we could do – was assess blame and assign damages. That turned out to be harder than any of us imagined.

Nearly twenty years of litigation followed the Exxon Valdez spill, and there was not a single case, but many. By understanding some of the history of the Exxon Valdez cases, one can appreciate what the lawyers working on the Deepwater Horizon case have in front of them. At the same time, the many differences between the two spills suggest that history will not repeat itself. The legal response to the Deepwater Horizon case, like the cleanup response being carried out in the Gulf at this time, is likely to be far more complex, involve even more parties, and possibly even more time. By way of example:

  • The federal Oil Pollution Act of 1990 ("OPA 90"), one of the principal laws likely to be invoked in response to the Deepwater Horizon, was enacted after (indeed, in response to) the Exxon Valdez. While the elements of the liability case against responsible parties under OPA 90 are similar to those asserted under the Clean Water Act in the Exxon case, OPA 90 allows plaintiffs to potentially recover a broader range of compensatory damages, including: damages to real or personal property; subsistence use; federal, state, and local tax revenues; lost profits and earning capacity; and the cost of providing additional public services resulting from the spill. In that sense, the law is more complex now than it was at the time of the Exxon Valdez spill, involves more parties and more and different potential claims. There is also very little case law decided under it;
  • The causation issues in the Exxon Valdez case were far simpler than in the present spill. There was no question as to the cause of the 1989 spill into Prince William Sound – a tanker hit a reef. In the case of the Deepwater Horizon, on the other hand, press reports and briefings by BP point to a chain of events, each of which may have contributed to the explosion and to the still mounting damages;
  • Unlike the Clean Water Act, OPA 90 expressly allows for contribution claims among responsible parties that were not available under the Clean Water Act. Therefore, the party that initially responds to the spill (BP) may have statutory claims that they choose to assert against other responsible parties at some future time;
  • The Exxon case involved a single state (Alaska) and the federal government (and Alaska Native corporations). By comparison, several states have already become involved in the Deepwater Horizon spill (including Louisiana, Mississippi and Alabama), raising potential jurisdictional questions and possible conflicting claims among the governmental plaintiffs;
  • In oil spill cases, one of the potentially largest claims the government can bring is for natural resource damages. In order to do so, however, the government has to establish a "baseline" of pre-spill conditions. This is much more difficult to do in some of the ports and commercial areas along the Gulf Coast that are already impacted by hydrocarbons, as opposed to the relatively pristine waters of Alaska's Prince William Sound.

II. The Exxon Valdez Litigation

Against this backdrop, it may be helpful to review the history of the litigation that began in March, 1989 with the grounding of the oil tanker Exxon Valdez on Bligh Reef in Prince William Sound, Alaska. Estimates of the quantity of oil spilled range from 10.8 million to 30 million gallons. More than 1,200 miles of coastline were contaminated, 250,000 birds were killed, and 330 civil lawsuits were filed.

  • Criminal Prosecution

The state of Alaska criminally prosecuted the Exxon Valdez’s captain, Joe Hazelwood. The United States prosecuted Exxon for various environmental crimes, including criminal violations of the Clean Water Act, the Refuse Act, and the Migratory Bird Treaty Act. Exxon Corporation pled guilty to one count of violating the Migratory Bird Treaty Act, and Exxon Shipping pled guilty to one count each of violating the Clean Water Act, the Refuse Act, and the Migratory Bird Treaty Act. The corporations were jointly fined $25 million and were ordered to pay restitution of $100 million.

  • Civil Litigation: The Natural Resource Damage Claims

The United States and the state of Alaska sued Exxon for natural resource damages. That litigation was settled by entry of a consent decree under which Exxon agreed to pay $900 million over a period of ten years. The money was used at the direction of the Oil Spill Trustee Council for species and habitat restoration and recovery. The consent decree contain a reopener provision that allowed the governments to make additional claims of up to $100 million for natural resource damages not known when the settlements were reached.

In 2006 the Department of Justice and the State of Alaska asserted a claim against Exxon under the reopener provision, seeking payment of $92 million clean up oil the governments contend remains in the environment from the 1989 spill. Exxon responded that the nearly 350 studies that have been conducted demonstrate that the spill has left no lingering damages in Prince William Sound, and that the governments’ demands do not satisfy the requirements of the settlement agreement. No case has yet been filed.


  • The Private Party Claims

Most of the private civil lawsuits were consolidated before Judge H. Russell Holland in the United States District Court for the District of Alaska. The damages trial proceeded in phases: Phase I determined whether Exxon was liable for punitive damages, and held that it was. Phase II determined the amount of compensatory damages owed to the plaintiffs. Phase III determined the amount of punitive damages to award to the plaintiffs. Subsequent proceedings adjudicated the claims of members of the fifty classes of claimants in the consolidated class action lawsuit.
On August 11, 1994, following the second phase of the trial, the jury returned a verdict of compensatory damages against Exxon of nearly $287 million. On September 16, 1994, following the third phase of the trial, the jury returned a $5 billion punitive damages verdict against Exxon. Exxon appealed, marking the start of an additional fifteen years of litigation and three appeals to the Ninth Circuit and, ultimately, the Supreme Court.

In the first appeal, the Ninth Circuit remanded the punitive damage award to the district court to be reconsidered in light of intervening decisions by the United States Supreme Court addressing the constitutionality of punitive damage awards. In BMW v. Gore and Cooper Industries v. Leatherman Tools, the Supreme Court articulated factors a court must consider when reviewing a punitive damage award: the reprehensibility of the defendant’s conduct; the ration of the award to the harm inflicted on the plaintiff; and the difference between the award and civil and criminal penalties in comparable cases. The district court conducted an extensive analysis of those factors, and concluded the actual harm to plaintiffs was more than $500 million and a ratio of punitive damages to harm was 10 to 1, supporting the original $5 billion award. Nonetheless, the court reduced the punitive damages to $4 billion, to conform to what it viewed as the Ninth Circuit’s mandate. Exxon appealed.

While the second appeal was pending, the Supreme Court issued another punitive damages opinion, State Farm Mut. Auto Ins. Co. v. Campbell. State Farm instructed courts to weigh five specific considerations in calculating punitive damages, and “strongly indicated the proportion of punitive damages to harm could generally not exceed a ration of 9 to 1.” Those five factors are (1) whether the harm caused was physical as opposed to economic; (2) whether the conduct causing the plaintiff’s harm showed “indifference to or a reckless disregard of the health or safety of others;” (3) whether the “target of the conduct” was financially vulnerable; (4) whether the defendant’s conduct involved repeated actions as opposed to an isolated incident; and (5) whether the harm caused was the result of “intentional malice, trickery, or deceit, or mere accident.” The Ninth Circuit summarily remanded the second appeal of the punitive damage award to the district court for recalculation in light of State Farm. On remand, the district court again determined actual harm to be $513.1 million and increased the punitive damage award to $4.5 billion, a ratio of just under 9:1. Exxon appealed again, and this time, the plaintiffs cross-appealed, seeking reinstatement of the $5 billion award.

In the third appeal, Exxon argued that all of its settlement and other pre-judgment compensatory payments to the plaintiffs, which totaled approximately $493 million, had to be subtracted from the more than $500 million in actual harm before calculating the ratio of punitive damages to actual harm. As a result, Exxon argued, the measure of damages would be reduced to $20.3 million. Applying what it contended was the appropriate ratio, 1:1, Exxon argued that a punitive damage award should be capped at $25 million. This time, the Ninth Circuit accepted the District Court’s approximation of $500 million as the amount of actual harm, but in determining the appropriate ratio of punitive damages to actual damages, took into account the fact that while Exxon’s conduct (its “reckless decision to risk the livelihood of thousands by placing a relapsed alcoholic in command of a supertanker”) was particularly egregious and the economic damages significant, it was not intentional. And, as a mitigating factor, Exxon promptly took steps to ameliorate the harm. Thus, Exxon’s conduct, “though inexcusable,” warranted a ratio of 5:1 rather than 9:1, resulting in a punitive damage award of $2.5 billion dollars.

The parties then appealed to the United States Supreme Court. In 2008, the Supreme Court reversed the Ninth Circuit and limited the punitive damage claim to a 1:1 ratio, or roughly $507 million. However, the high court declined to decide whether Exxon was required to pay interest on the amount of the award, and sent the issue back to the Ninth Circuit. Two months later, the appeals court held that Exxon was required to pay the interest, dating back to 1996, roughly doubling the amount of the final award. The average award to the 33,000 claimants came to about $15,000 -- roughly 20% of the amount that was awarded by the jury in 1994.

III. What Happens Next

Press reports indicate that a number of economic damage cases have already been filed against BP, Halliburton and Transocean over the Deepwater Horizon spill, and there are almost certain to be many more, depending on the impact of the spill. The government has yet to file litigation, but it can be expected to do so, under a variety of federal laws including OPA, the Clean Water Act, the Refuse Act, and the Migratory Bird Treaty Act, among others. There will be a lengthy and expensive natural resource damage assessment that the defendants will be expected to pay for. There are potential insurance claims, potential shareholder claims, and possibly contractual and statutory contribution claims between the responsible parties, among others. And if the sum of these were not enough to challenge even the most battle-tested lawyers on all sides, there is the reputational and political overlay which can dominate the legal and scientific issues at play, including Congressional hearings. A spill the size of this one not only impacts BP and its partners, but the entire industry. It also will test the legal system and the brightest minds in it.

For more information regarding the legal impacts of the Gulf spill, please contact Brad Marten or any other member of Marten Law’s Energy, Climate Change or Waste Cleanup practices.


Posted on May 12, 2010 by Larry Ausherman


On May 4, 2010, EPA released its proposed rule to regulate disposal and management of coal combustion residuals (“CCRs”) from coal-fired power plants. The 563 page proposal presents for public comment two alternative approaches. In one approach, EPA would regulate CCRs as a new category of “special wastes” under Subtitle C of RCRA when they are destined for disposal in landfills or surface impoundments. Under the alternative approach, EPA would use Subtitle D of RCRA to set performance standards for disposal of CCRs in landfills and impoundments that would be enforced principally by States. Under both proposals, beneficially used CCRs would be exempt from hazardous waste regulation under RCRA. Neither proposal would have EPA regulate placement of CCRs in mines or non-minefill uses of CCRs at coal mine sites.


What are CCRs?

CCRs are residual materials that remain after combustion of coal to generate electric power. This material is also sometimes referred to as coal ash, coal combustion waste, or coal combustion byproducts. Large volumes of CCRs are generated by power plants in the United States. Some CCRs are beneficially used in other products or processes, some are returned to mines as reclamation material or for non-minefill uses and the rest is disposed at landfills.

How are CCRs Regulated Now?

In August 1993 and May 2000, EPA considered whether to regulate CCRs as a hazardous waste under Subtitle C of RCRA, and determined not to do so. Instead, it applied the Bevill Amendment exception (for mining activities) to CCRs and left open the possibility that States may regulate disposal of CCRs. The Office of Surface Mining in the United States Department of the Interior (“OSM”) has authority to regulate placement of CCRs in mines as part of coal mine reclamation.


Why is EPA Revisiting its Previous Determinations Not To Regulate CCRs Under RCRA, Subtitle C?

In December 2008, in Kingston, Tennessee, a retaining wall of a TVA surface impoundment used for disposal of CCRs breached, and CCRs saturated with water from the impoundment were released. The release prompted renewed scrutiny of CCR disposal practices and, in large part, prompted EPA’s decision to revisit previous determinations not to regulate CCRs. EPA’s re-evaluation of CCR disposal since the Kingston release has prompted substantial debate resulting in the delayed announcement of EPA’s May 4, 2010 proposal.


Two Options for Regulation.

In light of strongly held opposing views about regulation of CCRs and the EPA’s desire to avoid further delay in issuing a proposed rule, EPA’s proposal is in the somewhat unusual format of two alternative options. After a 90 day public comment, EPA will decide upon an approach to regulation.


Under the more stringent of the two options, EPA would reverse its previous Bevill Amendment determination, address CCRs as a “special wastes” under RCRA Subtitle C, and regulate the disposal of CCRs in landfills or surface impoundments. “Special wastes” would be a new waste category that would be subject to some, but not all, of Subtitle C requirements applicable to hazardous waste. The Subtitle C option would regulate CCRs from the point of generation to final disposal and would include regulation of siting, liners, run-on and run-off controls, ground water monitoring, fugitive dust controls, financial assurance, corrective action and closure. The Subtitle C approach is favored by environmental groups but opposed by electric power generators because it would significantly increase CCR disposal costs.


The less stringent alternative regulatory option proposed by EPA would leave the Agency’s previous Bevill determination in place so that CCRs would not be regulated under Subtitle C of RCRA. However, CCRs disposed of in surface impoundment or landfills would be subject to RCRA Subtitle D. This option would not require permits from EPA, and requirements would be enforced primarily by States rather than EPA.



Certain uses and disposals of CCRs are not covered by EPA’s proposed rule making. First, EPA is not proposing to change the existing regulatory exemption from hazardous waste regulations for beneficially used CCRs. Examples of beneficial uses of CCRs may be road construction, agriculture, and building products. EPA is seeking comment on potential refinements for certain beneficial uses. Second, EPA is not proposing to address placement of CCRs in coal mines or non-minefill uses of CCRs at coal mines. Instead, OSM, in consultation with EPA, will consider recommendations of the National Research Council and take the lead in developing national standards for placement of CCRs at coal mines. Third, EPA has not proposed to revise its previous Bevill determination for CCRs generated by non-utilities.


Public Comment.

A 90 day public comment period will begin when the proposed rule is published in the Federal Register. Comments can be submitted to EPA, identified by docket ID No. EPA-HQ-RCRA-2009-0640.

Interview: Obama Administration Environmental Initiatives & Priorities

Posted on May 10, 2010 by Rachael Bunday

On March 4th and March 9th, 2010, Angus Macbeth conducted interviews of Robert Sussman and Igancia Moreno regarding the Obama Administration Environmental Initiatives and Priorities.

Robert Sussman is Senior Policy Counsel for the United States EPA and Ignacia Moreno is Assistant to the Attorney General, Environment and Natural Resources Division, Department of Justice.

Audio of the two interviews is accessible by clicking the links below: 

Robert Sussman - March 4, 2010

Ignacia Moreno - March 9, 2010

Energizing Brownfields

Posted on May 7, 2010 by George von Stamwitz

It has always amused me how many people are involved with Brownfields work as compared to how few projects have been completed. It is tough to make the economics work on a Brownfield development in the best of times. Thanks to clean energy rules and incentives this may be changing.


Brownfields and clean energy have several synergies. Brownfields are often in industrial corridors, with great infrastructure and proximity to electrical grids. Biomass projects in particular need access to efficient transportation networks in order to move large volumes of material. Clean energy projects such as solar, wind and biomass plants work well with risk based remediation and institutional controls required for cost effective risk management at a Brownfields sites.

Add to these synergies a vast array of incentives, mandatory quotas and grants for clean energy and we just may have a path to economic viability for some Brownfields projects. EPA has a task force known as ER3 to help facilitate such projects. Keep your eye on a project in Charlotte, North Carolina known as ReVenture Park which seems destined to put wind energy, wastewater treatment and a biomass plant on a large, complex CERCLA/RCRA site.


Posted on May 6, 2010 by Mark Walker

By now, everyone is familiar with "Climategate", the scandal surrounding the hacked e-mails from the Climate Research Unit (CRU) at the University of East Anglia in England. The inner workings of CRU are significant because the CRU is responsible for preparing the land temperature records upon which most of the climate change studies are based and which, more importantly, form the foundation for the assessment by the Intergovernmental Panel on Climate Change (IPCC) that manmade greenhouse gas emissions are responsible for global warming. The e-mails at issue include many e-mails which had previously been requested by numerous Freedom of Information requests, but which East Anglia had refused to produce, including e-mails relating to the preparation of the IPCC 2007 Fourth Assessment Report.

The CRU Temperature "Adjustments"

Most people probably think that land temperature records are the product of the rather mundane ministerial task of collecting and reporting actual temperature readings from weather stations around the world. However, there are numerous "adjustments" to the actual temperature readings which are made by CRU. There are adjustments made to account for the different times of day that the readings are taken. In addition, it is well recognized that urban areas artificially increase the measured temperature because materials like concrete, asphalt and metal structures collect and retain heat during the day and release the heat during the night. This artifact, known as the "urban heat index" (UHI), must be accounted for in the land temperature records. The magnitude of the proper adjustments for UHI are the subject of intense scientific debate, and the extent of any adjustments made for UHI serve to reduce global warming attributed to manmade greenhouse gases. Scientists that have studied UHI have also made subjective calls as to which weather stations to include and exclude in their studies, thereby injecting another "adjustment" into the equation. Numerous Freedom of Information requests had been made to and resisted by East Anglia for the underlying raw temperature data and the UHI adjustments that CRU made to such data, as well as requests for the underlying data upon which the Director of CRU, Dr. Phil Jones, had based his previous UHI studies.

EPA Endangerment Finding Based Upon IPCC Assessments

As one of the foundational components of the IPCC's assessments, the accuracy of CRU's temperature records have far reaching implications. The IPCC assessments were relied upon by the United States Supreme Court in Massachusetts v. EPA, and were a cornerstone of the EPA's Endangerment Finding in response to Massachusetts.


Commonwealth of Virginia's Challenge to Endangerment Finding

Although there have been numerous challenges to EPA's Endangerment Finding, several have specifically raised Climategate as the basis for their challenges. Noteworthy are the separate challenges filed by Virginia and Texas. In its challenge, Virginia claims that the Climategate e-mails demonstrate that the, "CRU scientists questioned the reliability of their own data, the methodologies used in developing and analyzing such data, and the conclusions based thereon." Virginia maintains that the EPA had a duty to independently investigate and verify the accuracy of the CRU temperature records upon which most of the climate change research and IPCC assessments are based. In addition, Virginia claims that the, "EPA substantially ceded its obligation to make a judgment whether GHGs may endanger public health and welfare to the IPCC, an international body that is not subject to U.S. data quality and transparency standards."


State of Texas' Challenge to Endangerment Finding

Texas' 38 page Petition for Reconsideration takes the drama and intrigue to the next level, painstakingly discussing the Climategate e-mails, the context in which they were made, and the conclusions which Texas maintains should be drawn therefrom:
"Previously private email exchanges among top IPCC climatologists reveal an entrenched group of activists focused less on reaching an objective scientific conclusion than on achieving their desired outcome. The scientists worked to prevent contravening studies from being published, colluded to hide research flaws, and collaborated to obstruct the public's right to public information under open records laws."

The future of Climategate in the courts is uncertain. It may eventually be viewed as the event that exposed the political agenda behind some of the climate change "science", or it may be viewed as a tempest in a teapot. In any event, its inclusion in these legal proceedings ensures that Climategate will for the foreseeable future be included in the ongoing climate debate and certainly that it will survive beyond the usual 24 to 72 hour news cycle.

Climate Change Work Group Phase Two - EPA Searches for Energy Efficiency and Innovation Using an Unlikely Tool

Posted on May 5, 2010 by Robert Wyman

EPA is stuck between a rock and a hard place in using the Clean Air Act to regulate greenhouse gas emissions. Having made an endangerment finding and issued final motor vehicle regulations, EPA soon (commencing January 2, 2011) must implement its Prevention of Significant Deterioration (PSD) preconstruction review program for stationary sources as one or more greenhouse gases become “regulated pollutants” under the statute. But the PSD program is hardly an ideal tool for the job, and may indeed be one of the worst.


Recognizing the difficulty of its task, in late 2009 EPA commissioned a Climate Change Work Group to advise it regarding how best to implement the PSD permit program and how to define Best Available Control Technology (BACT) for sources of greenhouse gas emissions. This January the Work Group issued a Phase One report that contained some important but relatively basic recommendations.

Now the Agency has launched Phase Two of the Work Group effort. In an April 9 letter to Work Group Co-Chairs, EPA Assistant Administrator Gina McCarthy asked the Work Group to focus on two of the most important strategies for reducing greenhouse gas emissions – energy efficiency and innovation.


Most seasoned observers recognize that the PSD process currently discourages energy efficiency investments. That is because PSD rules assume that more efficient units will be used more and that such projects could cause net emission increases that trigger PSD review and require the installation of BACT. The PSD process thus significantly delays and adds cost to many energy efficiency projects. As a result, many efficiency upgrades are foregone for fear that they will trigger the PSD process. This is tragic because efficiency upgrades offer the greatest potential for near-term and cost-effective greenhouse gas reductions. See, e.g., Unlocking Energy Efficiency in the U.S. Economy (July 2009).


The Work Group’s task of encouragingenergy efficiency by using the instrument most responsible for chilling such investments is the policy equivalent of placing a square peg into a round hole. If the Work Group recommends expediting or exempting from PSD review appropriate efficiency projects, then there is some hope that EPA can use the program to capture as-yet-untapped efficiency and innovation opportunities that currently exist. If, on the other hand, the Work Group, and ultimately EPA, remain unwilling to clear the regulatory costs and hurdles that PSD customarily imposes, then the opportunity will be lost.


EPA has asked the Work Group to provide its recommendations by no later than mid July. So stay tuned.