Climate Law Update: Climate Change & Sustainable Energy News : Thelen Reid Law Firm : Renewable Energy, Construction, Project Finance Lawyers & Attorneys

• Businesses in the United Kingdom will not back the case for high levels of environmental taxation, such as those placed on emissions auctions, if the money goes towards meeting other public spending commitments, argues Independent business columnist Jeremy Warner.
• British great tits have proved themselves to be far more adaptable to climate change than their counterparts in the Netherlands. Or so reports London's ever-vigilant The Times. 
• Think there's nothing funny about climate change? There are those who disagree, reports the Guardian.
• Environmental groups are urging Congress to keep in place a ban on purchases of fuel from Canadian tar sands deposits, writes the Globe and Mail (see environmental organizations' press statement here).
• Another day, another verbal beating administered by Congress upon the Environmental Protection Agency for its alleged failure to make decisions based on science rather than politics, as recounted by McClatchy Newspapers. 
• Giant Danish wind power company Vestas says Europe should focus on land-based rather than offshore facilities, reports the Wall Street Journal's Environmental Capital. 
• President Bush and Congress remain at odds over the latest version of a farm bill, according to the Des Moines Register.
  

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A new lawsuit filed by environmentalists challenges Arctic oil and gas exploration efforts the groups contend threaten marine mammals such as whales.

Plaintiffs include organizations that have already sought to force new federal protections for polar bears and other animals because of alleged threats from climate change, a move that could also have implications for oil development in the region.

Filed in U.S. District Court in Alaska on Monday the lawsuit asks a judge to rule that federal authorizations allowing the explorations in the Beaufort and Chukchi seas by Shell  and BP were issued before proper environmental reviews were conducted and that the actions could seriously harm marine mammals. The plaintiffs also asked for a preliminary injunction blocking the activities, at least some of which were planned for this summer (see lawsuit text here; motion for preliminary injunction here).

Seismic surveys planned by the companies "will result in excessive noise pollution in Arctic waters that have not been subjected to such levels of concurrent seismic noise pollution for at least 15 years, if ever," claimed the documents filed by the groups. The plaintiffs, which also include a native village, focused primarily on concerns for the health of such animals as whales and seals. Polar bears are only briefly mentioned in the lawsuit, as inhabitants of both of the seas year-round. 

Officials of the federal Minerals Management Service, which issued the seismic survey permits, and the National Marine Fisheries Service, which was also named as a defendant, told Climate Law Update they would have no immediate comment on the case.  Both oil companies, neither of which was named in the lawsuit, also declined comment specifically on the case but they each defended the environmental soundness of their exploration practices.   

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A new federal economic analysis of the Lieberman-Warner Climate Security Act shows that the measure wouldn't impede strong growth in the United States; whereas a new federal study of the bill forecasts a gloomy future of  higher energy prices and problems for industry.

It's the same document. Just depends on who's looking at it.

Produced by the Department of Energy's statistical arm, the Energy Information Administration, the new report seems to have done little to foster agreement between the warring sides in the battle over the greenhouse gas reduction bill. The Senate is poised to take up the bill, sponsored by Sens. Joe Lieberman, I-Conn., and John Warner, R-Va., in June.

Like a previous government analysis of the bill, which would cap emissions and establish a trading program, the new report shows some economic impacts but it also predicts by mid-century the legislation would produce better than 50 percent cuts in the production of heat-trapping gases (see text of report here). 

According to the new study, the drag on the gross domestic product between 2009 to 2030 would be between 0.2 percent and 0.6 percent. The bill's impacts would fall more heavily on industry than on other parts of the economy, the report predicted. While comparing the two analyses is difficult because of differences between them, the overall economic effects forecast by the new document appear to be generally smaller than those found by the U.S. Environmental Protection Agency in its  analysis put forward earlier this year (see Climate Law Update story here).  

Perhaps not surprisingly, supporters and opponents of congressional action to address climate change saw the energy department report dramatically differently. Oklahoma Sen. James Inhofe, a leading Republican global warming skeptic (pictured), said the analysis showed the bill "is wrong for America." Environmental groups and congressional supporters of the legislation saw it as confirming the bill as economically benign.

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The U.S. Department of Interior had only a muted reaction to Monday's federal court ruling demanding a quick decision on whether to protect the polar bear under the Endangered Species Act because of global warming. But that didn't keep the department's critics from weighing in.

A spokesman for the department headed by Secretary Dirk Kempthorne (pictured), in an e-mail forwarded Tuesday to Climate Law Update, gave little clue as to the government's next step in aftermath of U.S. District Judge Claudia Wilken's ruling:

"We have received the court's decision and we are reviewing it. We will evaluate the legal options and will decide the appropriate course of action." 

Wilken Monday ruled in favor of a number of environmental groups and ordered the department to decide by May 15 whether to shield the animals under the endangered species law. The judge, who sits in Oakland, Calif., also rejected calls by the government, which has previously proposed designating the bears as "threatened," to delay the effect of its decision (see Climate Law Update story below). 

The ruling gave those skeptical of the agency's motives plenty of ammunition, and also a chance to talk about the larger implications of a listing under the powerful federal statute. They also seemed to have little doubt that the government will extend law's protections to the bear.

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A federal judge in California late Monday gave the federal government barely two weeks to make a final decision on protecting the polar bear under the Endangered Species Act, a move that could have significant implications for regulatory efforts to combat climate change.

Environmentalists pushing for protections for the iconic animals have accused the Bush administration of dragging its feet on the matter in order to avoid interfering with plans to explore for oil in parts of the bears' far northern home. Federal officials had concluded that oil and gas development would not pose a threat to the bears throughout their range. 

U.S. District Judge Claudia Wilken (access biography here), in a 10-page decision, told the Interior Department to issue a final ruling on the matter by no later than May 15 (see text of order here). The judge also required that whatever decision the government makes would take effect immediately at the time it is issued. Additionally, she wrote that she did not need to have the parties come to court to argue the matter because "timeliness is essential, the issues are not complex and the parties are generally in agreement" on the issue.

The ruling was a win for the environmental groups including the Center for Biological Diversity, which has been pushing since 2005 to list the polar bear as an endangered species because of the effects of global warming on the bears' icy habitat. The interior department's U.S. Fish and Wildlife Service, as part of a prior court agreement, had proposed to list the bear as a threatened species last year (see text of proposal here) but then took no final action (see Climate Law Update stories here and here).

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On Earth Day, attention naturally turns to all things green – as in money.

Pocketbook issues are at the center of a number of new reports that assess the impact of efforts to combat climate change and promote the development of renewable sources of energy. One report shows government subsidies taking a big jump in recent years with renewables such as solar and wind getting a proportionately large share of the money.

The Environmental Defense Fund has come out with a document that studies the studies out there on the economic cost of a cap-and-trade system to cut emissions of greenhouse gases. Perhaps coming as no shock, the organization concludes that “a clear consensus” among the models demonstrates such a market system “is consistent with long-term economic growth.” The overall cost of capping the gases would amount to less than 1 percent of household budgets over the coming two decades, according to the EDF, which supports market approaches to the problem (see press statement here; text of study here).

Release of the analysis comes as the U.S. Senate is readying to take up the Lieberman-Warner Climate Security Act, which would establish a cap-and-trade system in the country. It also comes against a background of other reports issued by the government and business organizations showing potentially significant  economic impacts from such a system (see Climate Law Update story here).

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Greenhouse gas emissions in the United States dropped by a somewhat lower fraction than earlier reported, according to final estimates released this week by the U.S. Environmental Protection Agency.

However, the annual Inventory of Greenhouse Gas Emissions and Sinks still showed a 1.1 percent drop between 2005 and 2006, compared to a draft report’s estimate earlier this year of a 1.5 percent decline (latest report can be accessed here; EPA press statement here). It also indicated that previous years’ emissions were a bit lower than had been previously estimated.

Both versions of the report also concluded that a variety of factors, including increased use of natural gas and renewable power sources, warmer winter weather and rising fuel prices contributed to the decline (see previous Climate Law Update story here).

The agency recalculated some of the base figures used in the report, which produced estimates lower than those previously reported. Those changes also helped narrow some of the gaps between the years. For instance, the earlier draft report showed total emissions in 2005 were equivalent to 7.3 billion metric tons of carbon dioxide, dropping to just more than 7.2 billion in 2006, a difference of about 112 million tons. In the revised report, those figures were about 7.1 billion and 7 billion, respectively, a difference of approximately 75 million tons.

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By any measure, it’s been a tough few weeks in the spotlight for biofuels such as corn-based ethanol and other alternative sources for transportation energy, including hydrogen.

A Time Magazine cover story not-so-subtly titled: “The Clean Energy Scam,” set the tone for the criticism. But it was met by a spirited rejoinder from the biofuels industry, which sees itself as helping to lead the way toward sustainability.  

The scrutiny focused on biofuels didn't stop with the magazine. 

Recently, reports have emerged that American biofuel subsidies have, in the characterization of the Wall Street Journal’s Environmental Capital, been “boomeranging” across the Atlantic (see story here). Meanwhile, the Los Angeles Times reported a California biofuels manufacturer was “short on cash and suffering from higher corn and plant construction costs” which threaten the company. The paper also noted a number of other plants that have been put on hold across the country, citing narrowing margins between the cost of production and the selling price of ethanol (see story at newspaper's Web site here).

Then, late last week, reports began emerging that corn had hit a record $6 a bushel, prompting the food industry to pin the blame rising prices squarely on government encouragement of ethanol production. The Grocery Manufacturers Association said the "ripple effects" are being "felt throughout the economy" (see statement here).  

On the hydrogen front, the San Jose Mercury News tweaked California Gov. Arnold Schwarzenegger, who four years ago proclaimed the creation of a “hydrogen highway” that would allow motorists to fill up fuel cell cars. So far, however, the newspaper reported (see story here), “not a single hydrogen fueling station has been built under the program.” The article cited a number of possible reasons, from economics to politics, for the failure. The paper also reported that Mary Nichols, the chairwoman of the California Air Resources Board, believes up to 100 stations will be built by 2015, five years later than expected.

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An attorney for one environmental group that has actively sought to bring the tools of endangered species protections into the fight against global warming says the tactic could have multiple effects.

Brendan Cummings, a lawyer for the Center for Biological Diversity, suggested in an interview with Climate Law Update that the organization’s recent success in getting the National Marine Fisheries Service to examine climate-related endangered species protection for several species of seals could produce impacts both locally and much broader in scope. The agency last week announced it would review the ribbon seal, a mammal that inhabits Alaska’s Bering Sea, for listing under the Endangered Species Act, as well as three other seal species: bearded, spotted and ringed (see press release and formal notice).

The fisheries service said it was acting on a petition presented last year by the environmental organization asking it to list the seal as threatened or endangered (see text of petition). Last week's statement by the agency came a few days after the environmental group threatened to bring a lawsuit to force the government to act.  

At a regional level, the group’s petition to the government agency cited threats to the seals from such sources as oil and gas development, commercial fishing and Russian harvesting of the animals. But it also warned that the ice on which the seals live is rapidly melting due to global warming.

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Despite all the talk about greenhouse gas reductions and the means to achieve them, including establishing new trading schemes for carbon, a pair of new studies suggests the nation has a ways to go.

One of the documents, in which a former U.S. Environmental Protection Agency official has parsed the latest government data, shows that carbon dioxide emissions from power plants appear to be back on the rise (see press release and report and appendices). That follows on the heels of government study released only this month showing overall carbon emissions, including those from power generation, had fallen just a year earlier (see study and Climate Law Update article).

In addition, a Department of Energy study of Western utilities suggested that some of them are including fairly optimistic estimates about the impact of trading mechanisms on carbon prices. The study (which can be seen here) appeared to gently urge them to boost those figures. At the same time, it found that the utilities are aggressively planning to increase efficiency and add new renewable generation to their portfolios.

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Environmental groups Monday (March 10) sued to prod the federal government into listing polar bears as threatened due to the climate change-related loss of sea ice, which is vital to the animals' survival. Such a move could have far-reaching regulatory implications beyond the fact that the iconic bear would be the first mammal receiving Endangered Species Act protection because of global warming.

Some environmentalists and activists see the species law as providing a powerful tool for controlling greenhouse gas emissions in addition to playing its traditional role in protecting vulnerable animal and plant populations. The latest lawsuit comes amid a flurry of similar litigation and other moves to press government agencies and industry on alleged damage to animals as well as humans, including native Alaskan villagers. 

"We already have laws that will help us do a lot on global warming, if we just enforce them," with perhaps the most important being the Endangered Species Act, said Kassia Siegel, an attorney for the Center for Biological Diversity, one of the plaintiffs in the polar bear case.  

According to the newest lawsuit (which can be viewed here) filed in federal court in Oakland, the Bush administration missed a January deadline for making a final determination on the bear’s status. The Interior Department in 2006, under court pressure from environmental groups, announced a proposal to list the bears as threatened. A spokeswoman for the U.S. Fish and Wildlife Service, the branch of the Interior Department most directly involved, said it was not known when a final decision would be made.

But also on Monday, an official of the Interior Department’s inspector general’s office confirmed that a preliminary inquiry had been launched into the delay in making the decision. Such a probe had been requested by environmental groups.

“It is at the very, very earliest stages,” wrote Kris Kolesnik, associate inspector general for external affairs in an e-mail to Climate Law Update.    

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California's top utility regulator has endorsed a cap-and-trade program to reduce greenhouse gas emissions from electrical generation but he's advising a go-slower approach when it comes to natural gas providers. California Public Utilities Commission President Michael R. Peevey in a joint proposal with the California Energy Commission on Feb. 8 also recommended that some portion of the emission allowances be auctioned -- and that a part of the proceeds be used to benefit the state's ratepayers. The 126-page document recommended that a cap-and-trade system work in conjunction with "direct mandatory/regulatory requirements."

Peevey (pictured above) also weighed in on an issue that has caused no little debate among insiders watching the proceedings when he recommended that the state designate "deliverers of electricity to the California grid" as the entities responsible for meeting the requirements of California's groundbreaking AB 32.  

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