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

• The "clean tech" sector looks to be bouncing back strongly from the credit crunch, with a new report prepared for the United Nations environment program showing a resurgence of interest from investors in alternative energy, so says the U.K.'s Guardian.
• Solar power gets a break in Vermont, with a new program becoming effective in which customers will be paid by Green Mountain Power for all solar energy they generate, according to a statement from Green Mountain. 
• Solar also looks to have a bright future in New Mexico, with word that the state's four largest electricity providers will get together on a big commercial generating plant, reported by New Mexico Business Weekly.
• But some in the solar industry continue to growl about the federal government's moratorium on new applications for projects on public lands, says MarketWatch. It's also an issue that Climate Law Update has reported on, of course.  
• Maybe it's too much of a good thing, but plenty of wind and rain in the Pacific Northwest adds up to more wind- and water-generated electricity than the transmission grid can deliver to power-hungry California, according to this article in the Portland Oregonian.
• Penguins are in trouble and scientists say a variety of reasons are behind the problems, including climate change, reports the U.K.'s Telegraph.
• Record storms and floods that swept through the Midwest last month underscored the fact that as the nation grows more reliant on corn for fuel it is becoming vulnerable to the hazards posed to crops, says this analysis in The New York Times.
• A doubling of oil prices in the past year was due to strong demand, coupled with shortages of supply and refining capacity -- not speculation, says the International Energy Agency, a Reuters dispatch reports.
• Insurance companies, using computer models showing climate-related impacts such as more severe hurricanes, are boosting premiums and making big money, according to the Wall Street Journal's Environmental Capital blog, citing a story in the Journal.  
• Wind power from Oregon will supply customers of Pacific Gas & Electric Co. in California as a result of a new long-term agreement, reports the Portland Business Journal.

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• A federal appeals court panel in Washington has rejected a move by numerous states (including California and Massachusetts) and private groups to pressure the U.S. Environmental Protection Agency into regulating greenhouse gases under the Clean Air Act. Here are stories from The New York Times and the Boston Globe's The Green Blog, as well as Climate Law Update's previous coverage of this case.
• The big anti-greenhouse gas plan unveiled by California air pollution regulators this week prods the state toward a future less dependent on cars, according to this analysis by the San Francisco Chronicle. It also constitutes "the first comprehensive effort to combat global warming by any American state," but it has a long way to go before it takes effect, reports the Los Angeles Times, as the news media weigh in heavily on the document.
• Republicans in the Senate have introduced legislation to open up public lands in Utah and elsewhere to oil shale exploration and production, according to the Deseret News. But such an attempt faces intense opposition from environmental groups, including the Wilderness Society and the Center for Biological Diversity, warning of the time it would take to produce the oil and high levels of greenhouse gases it would generate.
• Forest plant species may be migrating to higher elevations to survive climate change, scientists report in a study cited in this Reuters dispatch. 
• Along similar lines, an analysis of data from nearly 50 years of weekly fish-trawl surveys in Narragansett Bay and adjacent Rhode Island Sound reveals a long-term shift in species composition, likely related to global warming, reports Science Daily.
• Former British Prime Minister Tony Blair concedes he could have done more to combat climate change but he nevertheless defends his record, in this article in the Guardian. 

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Adapting to climate change seems to be a big theme for the U.S. Environmental Protection Agency these days.

For the second time this week, the agency has promoted a document that supports the notion of finding ways of living with a warming world. Just a day earlier, as reported by Climate Law Update, the EPA trumpeted a program to support studies of estuaries and how they might weather the new environment. Friday, it issued a 910-page tome based on studies of public resources such as national parks and forests suggesting management approaches to reducing "stressors" from climate change.

And, lo and behold, the agency concludes that some of the practices already followed to protect the resources, such as restoring vegetation along streams (such as the Iowa project pictured here), can also play a role in helping them coexist with climate change.

It's at least a somewhat hopeful take on what can be a pretty gloomy if not downright frightening prospect for the world. As recently as Thursday, the U.S. Climate Change Science Program, the government agency that also helped foster the new report, released another document that predicted a grim future of extreme weather featuring such wild variations as droughts and heavy downpours, excessive heat and intense hurricanes. All of that could become more commonplace "as humans continue to increase the atmospheric concentrations of heat-trapping gases," related an accompanying statement from the National Oceanic and Atmospheric Administration.

The public is looking for some answers, suggested George Gray, assistant administrator for the EPA's office of research and development in a press release announcing the newest report:

“People always say ’Don’t just tell us what will happen – tell us what we can do about it. By using the strategies outlined in this document, we can help managers protect our parks, rivers, and forests from possible future impacts of a changing climate.”

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• In a move that we'll probably hear more about as word gets around, the Schwarzenegger administration in California has advised cities, counties and other agencies approving projects subject to the California Environmental Quality Act that they can't ignore ignore greenhouse gas emissions and climate change, according to the California Planning and Development Report. 
• The troubled European carbon trading market, which got off to a poor start by issuing too many permits at the outset, provides a cautionary tale and a warning that such approaches could collapse, despite their political popularity, in this piece from The New York Times.
• Meanwhile, carbon trading markets combined with skyrocketing oil prices could actually harm efforts to curb greenhouse gas emissions, at least according to some analyses reported by Environmental Capital, the Wall Street Journal environmental blog.
• But at the same time, demands that world leaders take action on climate change are coming from ... big and powerful corporations, because they stand to gain; Environmental Capital again.
• Could it be that energy and environmental issues such as climate change are going to play a big role in the presidential election? Republican Sen. John McCain has been talking about the issue a lot lately, notably calling for more oil drilling and nuclear power. Now, the Sierra Club and the United Steelworkers endorse Democratic Sen. Barack Obama, with a wind generator as a backdrop, as noted by Grist.   
• Renewable energy experts and advocates wrapping up a major conference in New York warn that recent upticks in investment might be clouded by uncertainty over the future of renewable energy tax credits, according to Clean Edge.
• In what was called a "bold political gamble," Canada's opposition Liberals have proposed a raft of new carbon taxes despite record energy prices, reports Reuters.
• Tupelo honey could be in trouble because the trees that provide the nectar for the celebrated sweet treat are disappearing; some blame government policies leading to water reductions, says this story from the Tallahassee Democrat. 
     

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• The chances for extreme weather in the U.S. such as the record rainfall and flooding in Iowa this month are increasing as worldwide temperatures rise, a report from a federal agency studying the climate says, according to Bloomberg. See the report from the U.S. Climate Change Science Program.
• Republican presidential candidate Sen. John McCain has set a goal of seeing 45 new nuclear power reactors built in the United States by 2030 but critics say the investment community won't bite, according to The New York Times. Meanwhile, a scorecard produced by an environmental think tank shows nuclear power growing only one-tenth as fast as wind, says the Wall Street Journal's Environmental Capital blog.    
• Researchers have found a "subtle error" in earlier measurements that suggests oceans have been warming 50 percent faster than earlier believed, according to Dot Earth, environmental blog of The New York Times.
• A lawsuit filed by an environmental group has made Canada the first country ever taken to court for allegedly failing to meet its commitments under the Kyoto climate change accords, says this item running on the Environmental News Service. 
• The electric power industry is committed to working toward climate legislation to produce substantial emissions cuts -- but targets and timetables "must be premised on utilities’ ability to bring a full suite of technology options to bear, or consumers will face dramatically higher energy bills than would otherwise be the case," says a statement from the Edison Electric Institute, whose president, Tom Kuhn, testified before a House committee.
• An in-depth look at Alaska's fishing industry notes that regulators are moving to formally block off Arctic waters to commercial fishing before a warming climate and vanishing sea ice draws fish stocks northward, reports the Christian Science Monitor. 
• Iberdrola Renewables and Gamesa have agreed to the largest turbine supply contract ever, an approximate 6.3 billion euro ($9.75 billion) deal that represents a total capacity of 4,500 megawatts. Turbines are destined for Iberdrola projects in Spain, other parts of Europe, the United States and Mexico, according to Clean Edge. Gamesa also issued a statement on the huge deal.
• The federal government has announced a "funding opportunity" for as much as $90 million over four years to advance the research, development and demonstration of next-generation geothermal energy technology, according to the U.S. Department of Energy.
• Economic and policy challenges, including the current difficulties in getting a renewable tax incentive package through Congress, were on the minds of experts at an ongoing renewable energy finance conference in New York, according to this item from CNET's Green Tech blog.

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• Did you hear the one about the Italian opera based on Al Gore's "An Inconvenient Truth"? So did John Tierney and The New York Times writer passes along some production notes.
• Businesses interested in addressing the "risks and opportunities associated with climate change" have a new guide they can turn to, which also includes examples of partnerships involving the U.S. Environmental Protection Agency, according to a statement from the EPA (which includes a link that leads to further information about the programs and the guide itself).
• Energy is on the minds of top officials from the United States and China, who began two days of talks Tuesday with an admonition from Treasury Secretary Henry Paulson that, as the two largest net importers of oil, the countries face similar challenges, according to this Reuters dispatch.
• Oregon's governor Tuesday outlined a set of legislative proposals that could require all new buildings in the state to achieve zero net emissions by 2030, the Portland Business Journal reports.
• The barrier islands of Alabama and Mississippi are disappearing as a result of a lack of sand, rising sea levels and more frequent intense storms, sending officials to Congress seeking hundreds of millions of dollars to help restore them, reports the Birmingham Press-Register. 
• Former Vice President Al Gore, a champion of clean energy, endorses fellow Democrat, Sen. Barack Obama, for president, while Republican Sen. John McCain calls for ending the moratorium on offshore oil drilling, setting up this story in which The New York Times touches on the role of energy in the presidential campaign. 
• Nuclear power is gaining support among politicians and, apparently, the public in the United States and even in European countries long opposed to the concept, but it still faces vexing questions about cost and waste, reports the Wall Street Journal's blog Environmental Capital.
• Climate change, by such mechanisms as forcing people out of their traditional homelands and triggering "extreme poverty and conflict," is helping to fuel a refugee crisis, warns the head of the UN's refugee agency in this article in The Guardian.
• Some experts are concerned that noise from energy and mining exploration in the West could  disrupt the sage grouse's mating patterns, in turn leading to restrictions that could limit the industry, according to The Environment Report (audio required). 

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• Reports of the death of the SUV may be premature -- but not by much, according to this near-obituary of the beloved gas-guzzler appearing in U.S. News & World Report. 
• Some big companies, including Dell and Lenovo, are joining together with cities and nonprofit groups to launch a campaign called Together to promote energy-saving products, services and initiatives, according to ChannelWeb.
• Just 'cause this is cool: Check out the "penguin cams'' at the soon-to-reopen California Academy of Sciences in San Francisco and watch the aquatic birds adjust to their new climate.
• The California Public Employees' Retirement System may commit up to $640 million to clean tech-focused firm Khosla Ventures, according to a report at Private Equity Hub which cited two sources, CNET reported. 
• Siemens Energy has decided to locate a wind turbine research and development center near Boulder, Colorado, reports the Associated Press, in a dispatch carried by CNN Money. 
  
   

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• Beetles are bad for trees and as the climate changes, the insects may thrive and alter Canada's forests forever, according to a story in the Ottawa Sun.
• Ethanol, once viewed as a "license to print money," now appears to be at a crossroads, as a result of rising corn prices and jitters among government officials and Wall Street, reports the Chicago Tribune. 
• Could global warming induce Old Faithful to become less trustworthy? The San Jose Mercury News takes a look at the science around what is probably the world's most famous geyser.
• As the United States embarks on a debate about climate change, India is taking up the topic as well, and doesn't want its growth compromised by efforts to combat the problem, suggests an article in The Hindu.  
• The European Union and environmentalists are calling for urgent action on climate change at UN-led talks in Germany, but the United States says it's too early, according to Australia's news.com.au.

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As far as Climate Law Update knows, no one has yet polled the polar bears on the U.S. Interior Department's decision last week to list them as threatened under the Endangered Species Act. But lots of other interested parties seem less than enamored with the action, and they're looking toward the courts to do something -- albeit for quite different reasons.

The latest rip comes from the Pacific Legal Foundation, a California-based nonprofit law firm that generally champions legal principles from a conservative perspective and is often critical of how the endangered species law is applied. On Monday, one of its top lawyers said the organization was moving toward filing a lawsuit to undo what he called a "purposeless listing" that nevertheless carried with it a potential to create legal mischief for a broad range of industries. Last week, Pacific Legal had also criticized the move (see press release here).

Interior Secretary Dirk Kempthorne's action to put the bear on the list, largely for reasons having to do with the melting of its icy habitat, "will, we believe, open the door for litigious activists to challenge industry for carbon emissions to the atmosphere," Reed Hopper, a principal attorney for Pacific Legal, told Climate Law Update. Said Hopper, who is based in Washington state: 

"You can expect attacks on oil and gas and utilities and refineries and manufacturers, housing and the like. Ultimately, we think that's going to drive up substantially the cost of housing and food and transportation."

Hopper's warning comes just a few days after environmental groups themselves launched their own legal effort to strengthen the federal government's action. Chief among their objections were efforts by the interior secretary to limit the impact of the listing decision (see Climate Law Update story here; access government listing documents here).  

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Disgruntled environmental groups late Friday filed a flurry of new legal papers seeking to beef up what they characterized as the federal government's "legally deficient" protections for the polar bear announced earlier this week.

The organizations -- the same groups that successfully pressured the Bush administration to list the animal as "threatened" under the Endangered Species Act -- filed an updated federal court lawsuit, as well as other documents that could lead to even more legal claims in the future. 

The groups claimed the action by U.S. Interior Secretary Dirk Kempthorne "denied the species ... necessary protections." The documents were all filed in federal court in Oakland, California on Friday and included a letter sent a day earlier to Kempthorne outlining some of the organizations' objections (see text of lawsuit here; see additional notice to court here; see letter to Kempthorne here).  

Kempthorne, while making the polar bear the first mammal to be listed under the endangered species law for climate-related reasons, enraged activists by taking steps to prevent the listing from being used as a general weapon against global warming. One of his actions was to  issue a separate "interim" rule that appeared to be aimed at preventing the listing from interfering with oil and gas development in the Arctic (see Climate Law Update story here; see text of listing here; see special rule here). The rule also "purports to exempt all greenhouse gas emitting projects" from consideration under the section of the law at issue, the lawsuit charged. 

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U.S. Interior Secretary Dirk Kempthorne, under pressure from the federal courts and environmentalists, Wednesday declared the polar bear threatened because of loss of its sea ice habitat. But he also acted to make sure the move wouldn't trigger broader efforts aimed at tackling global warming.

In addition, Kempthorne said the government would propose an approach that appeared explicitly to be intended to allow oil development to go forward in the Arctic without interference. Oil and gas drilling had been cited by environmentalists as a threat to the bear but Kempthorne disagreed. 

Environmental groups that had waged a multi-year battle to cover the animal under the Endangered Species Act offered strictly limited praise for the determination. They also issued none-too-veiled threats to continue litigating to beef up the protections. Activists had clearly hoped a listing could be employed in the broader fight against climate change and to provide more oversight over activities such as oil drilling (see Climate Law Update story here). 

"We're going to challenge any attempt to improperly reduce protections for the polar bear," Kassie Siegel,  a California attorney for the Center for Biological Diversity, told Climate Law Update. The group was one of the organizations that had won a court ruling last month demanding the government make a final decision on listing the bear under the endangered species law by May 15 (see Climate Law Update story here). A hearing in the case was scheduled for Thursday in federal court in Oakland, California.

Late in the day, the environmental plaintiffs fired their first legal shot (see court filing here). They accused the government of dragging its feet so much that the listing would not actually meet the May 15 deadline because it couldn't be published in the Federal Register by then. They also took issue with other parts of the government's action, including its failure to include protections for the bears' "critical habitat."   

Kempthorne made his announcement at a news conference in in Washington, D.C. (see press release here; text of Kempthorne statement here; access formal documents here). He cited the melting of the bear's icy habitat for his determination that the animal deserved protection under what he called "perhaps the least flexible law Congress has ever enacted." But Kempthorne added he was taking several administrative steps to "make certain the ESA isn't abused" to set policies to control global warming, such as controlling emissions from cars or power plants. That echoes a position taken by President Bush recently (see Climate Law Update story here).

Said Kempthorne:

"This decision may not be a popular decision; but I believe it is the right decision. I also believe it is right to put into place what tools I had available to me so we do not have the unintended consequences. We have seen that some have suggested that this will now be the opportunity to regulate greenhouse gases. It's not. This is not the tool." 

A listing of threatened is second only to a classification of endangered under the law. The bear becomes the first mammal to be granted protection under the statute for reasons related to climate change.

Kempthorne's decision drew criticism both from environmentalists and their allies in Congress but also from conservative critics of climate change science.

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