In Other News (May 9)

New Lawsuit Challenges Arctic Seismic Oil Exploration

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.   

In an e-mail to Climate Law Update, Shell Exploration and Production Company spokesman Curtis Smith said:

"Shell has already conducted safe and environmentally responsible seismic programs in the Beaufort and Chukchi seas during 2006 and 2007. We will continue to do so in 2008 while meeting or exceeding all regulatory requirements."

He added that the prior explorations "were successfully completed without any recordable safety incidents or known negative impact to the environment or local communities." The company spent $2.1 billion earlier this year acquiring oil and gas leases in the Chukchi Sea. 

A BP spokesman, Steve Rinehart, who noted that the company was not active in the Chukchi Sea,  told Climate Law Update:

"BP does have a well-considered seismic survey planned for this summer. It's a survey that will be conducted in a way, and is designed in a way to not harm or conflict with fish, sea birds, marine mammals or other wildlife."

He also said that the timing of the explorations means they would not occur during whale migrations, and would take place at a time of lessened ice, meaning fewer bears should be present. 

Although the latest lawsuit has little explicitly to do with global warming, that issue was clearly not far from the minds of some of the protagonists. Brendan Cummings, a California attorney for the Center for Biological Diversity, and one of the plaintiffs in the litigation, said in a statement issued by the groups (see text here):

"All of the marine mammals of the Arctic are under severe threat from global warming and should not be subjected to further harm. Yet the planned seismic surveys would subject literally tens of thousands of these already imperiled animals to dangerously loud sounds."

Cummings' group, along with the Natural Resources Defense Council, another plaintiff in the latest litigation, recently won a judge's ruling ordering federal wildlife officials to quickly decide whether to grant Endangered Species Act protection to the polar bear because of threats posed by climate change. Such a move also could require heightened environmental scrutiny for oil exploration operations, the groups contend (see Climate Law Update stories here, herehere and here).

The center is also pressing federal officials to extend the protections of the endangered species law to four seal species that inhabit the Chukchi and Beaufort seas, both as a result of global warming and oil development (see Climate Law Update story here).

Shell and BP are also among the defendants in a separate lawsuit filed in federal court in San Francisco alleging global warming damage to Kivalina, an Alaskan village (see lawsuit here).

 (Photo: Minerals Management Service)

 

 

   

 

 

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States, Environmental Groups Sue EPA to Trigger Greenhouse Regs

A legal action led by Massachusetts and supported by 17 other states and nearly a dozen environmental organizations was launched Wednesday to force the Environmental Protection Agency to issue a critical document that would trigger nationwide regulation of greenhouse gases.

The new move, in the form of a petition for a writ of mandamus, was filed in the U.S. Court of Appeals for the District of Columbia Circuit. It sought to require the EPA to put forward its formal determination of whether emissions of the climate-changing gases endanger the public’s health or welfare. Such an “endangerment” finding, the filing  charged, has already been made but it is being withheld (see text).

“It is a necessary and critical step, which is why the administration is making its stand there,” said David Bookbinder, chief climate attorney for the Sierra Club, one of the groups filing the action, during a nationwide conference call with reporters. “They know once the endangerment finding is made they’re obligated to begin controlling greenhouse gases.”

He acknowledged that no final regulation was likely to be in place until after a new administration comes into office. However, he and others said that it was important to move forward now to get the process started.

“Time is not on our side,” said James Milkey, chief of the environmental protection division under Massachusetts Attorney General Martha Coakley (pictured).

 

Joining Massachusetts as parties were California, Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, the District of Columbia, the city of New York and the government officials of Baltimore. A number of other states also came in as friends-of-the-court in support of the filing. Many of the nation’s largest environmental groups also came on board, including the Natural Resources Defense Council, Environmental Defense Fund and the Center for Biological Diversity.

The latest action came on the one-year anniversary of the U.S. Supreme Court’s landmark Massachusetts v. EPA decision holding that the agency had the authority to regulate the emissions as pollutants under the Clean Air Act. The high court’s ruling did not outright require the agency to issue regulations but it told the EPA it had to consider such issues as whether the public health might be threatened. The ruling came in the context of regulating emissions from motor vehicles but no one believes the implications stop there.

Last week, EPA Administrator Stephen L. Johnson cited the broad potential of a decision to regulate in the area when he informed lawmakers he would take more time to consider the decision under an administrative procedure that could take months to complete. That announcement set off a wave of criticism from Democrats and environmental groups that culminated in Wednesday’s court action. But it also drew praise from some in industry (see previous Climate Law Update stories here and here).

Not all the critics were Democrats. California's Republican Gov. Arnold Schwarzenegger issued a statement Wednesday (see text) chastising the EPA for having "failed to lead" and pledging that the state is "prepared to force it out of the way in order to porect the environment."

In an e-mail to Climate Law Update, Jonathan Shradar, the EPA’s press secretary, said the agency would continue working on the process laid out by Johnson, “taking into account all sources of GHG emission and realizing the best approach for dealing with climate issues.” Shrader characterized the rule-making procedure announced by Johnson as “a reasonable path forward.” 

Advocates of government regulation have not missed the larger implications, either. Bookbinder noted that petitions have already been filed with the EPA seeking to regulate emissions from such sources as power plants. One heated controversy involves a Utah coal-fired power plant for which the EPA issued a permit that is now being appealed by environmentalists, including the Sierra Club, citing the Supreme Court decision (see Climate Law Update story).

Said Milkey:

“While the petition we filed today is specific to motor vehicles, the same logic also applies to power plants. That is, if motor vehicle emissions are causing endangerment then certainly power plant emissions are doing so and EPA has an obligation to regulate them under the Clean Air Act.”

California Attorney General Jerry Brown, who also signed on to the writ, suggested that forcing the EPA to issue its finding would have important ramifications for the national conversation over climate change:

“If this administration says that greenhouse gases endanger public health, then that’s something. That’s an important step that prevents somewhat their continuing obfuscation of this whole matter of global warming.”

The filing puts the case back in the hands of a court that had previously agreed with the EPA’s decision that it lacked the authority to regulate greenhouse emissions (see text of ruling). It was that decision the Supreme Court overturned last year. Bookbinder said the District of Columbia court is where the case started and “they’ll be the one whose job it is to enforce the Supreme Court’s mandate.”

Brown seemed to acknowledge the case might be headed into unfriendly territory.

“There’s some right-wing judges that were put on there and, you know, they have their own view of the world,” he said. He quickly added: “We’re hopeful the strength of the case is so clear that we have a good chance, although we recognize the realities that pertain in present-day Washington.”

(Photo of Massachusetts Attorney General Martha Coakley via Wikipedia)

Western States Take New Steps on Greenhouse Gas, Vehicle Miles and Renewables

Led by Washington state, where the governor just signed a new law charting a path to reduced greenhouse gas emissions, Western states have made several recent moves on the climate change and renewable energy fronts.

Oregon and South Dakota put in place new laws to boost the renewable energy industry. Oregon’s statute is aimed at manufacturers of renewable energy equipment, while the South Dakota legislation gives breaks to wind energy facilities and transmission lines serving them.

The new Washington statute, signed by Gov. Chris Gregoire, firms up goals established in a law passed last year and a 2007 executive order that would reduce Washington’s climate-related emissions to 1990 levels by 2020, the same as California’s AB 32. The Washington statute also sets goals for later years, including a 50 percent reduction below 1990 levels by 2050. (See here for text of 2007 law; the 2007 executive order; Gov. Gregoire's press release upon signing the 2008 legislation, House Bill 2815, into law and the full text of the 2008 statute, as well as a legislative analysis.)

The new law directs the Washington Department of Ecology to come up with plans for reaching the targets by Dec. 1. It also sets specific benchmarks for reducing vehicle miles traveled in the state, with an ultimate goal of cutting the figure in half by 2050. Additionally, it directs the state to try to develop 25,000 green sector jobs through a variety of means, including new or expanded incentives. The legislation also tells state officials to work with the Western Climate Initiative, a multi-state effort, to reduce emissions across the West. The initiative is currently working on a design for a market mechanism, such as a cap-and-trade system, to be in place by late this summer.  

Gregoire, in her statement at the time she signed the bill, touted what she viewed as its economic potential:

“This is another example of Washington leading the way on climate change by being clean, green and competitive. Because we are acting now, we will capitalize on unique and exciting economic opportunities and increase our competitive edge in the world economy.”

Oregon’s new legislation, signed by Gov. Ted Kulongoski, allows tax credits of up to $40 million, and it also seeks to expand the state’s green economy. It includes provisions that would force officials to reduce or eliminate tax incentives under certain circumstances, including a determination that a business was unlikely to base a decision to locate to the state because of the credits, if a facility won’t produce a lot of new jobs, or if the state's revenues fall below certain benchmarks. (See Kulongoski’s announcement of the bill signing and full text and a staff analysis of the measure, House Bill 3619.)

The South Dakota legislation exempts wind energy facilities with a capacity of five megawatts or more from all state and local property taxes, replacing the revenue with a $3-per-kilowatt tax on capacity plus 2 percent of gross receipts. Developers can also get substantial rebates on transmission and other facilities serving the wind projects amounting to up to 90 percent of the taxes paid for the first five years. South Dakota Gov. Mike Rounds signed the bill earlier this month. (See Rounds’ bill signing announcement and the full text of the legislation, House Bill 1320.)  

(Above: Gov. Chris Gregoire, official portrait)       

Costs of Congress' Greenhouse Gas Bill Debated

Legislation in Congress to reduce the country’s greenhouse gas emissions might carry a hefty economic price tag, according to a new analysis released Friday by the U.S. Environmental Protection Agency. But sponsors of the bill, Sen. Joseph Lieberman, I-Conn., and Sen. John Warner, R-Va., said the report actually demonstrates that the country could accomplish the cuts without sacrificing its prosperity.

Even as the costs of addressing climate change sparked discussion,  there were new signs global warming itself could prove economically destructive. Earlier in the week, another government study suggested potentially dire consequences from unchecked climate change on the nation's Gulf Coast, a vital part of the nation's shipping and petroleum infrastructure.

EPA's forecasts covered a variety of possible impacts. The agency predicted the economy might feel a drag on growth of less than 1 percent by 2030, but that the punch could also be nearly four times as strong. Among the "many uncertainties" it cited were the availability of new technologies and what other countries do regarding climate change.   

The EPA’s report followed by a day another set of estimates – this one prepared by the National Association of Manufacturers and the American Council for Capital Formation – showing the bill dragging on the economy to the tune of millions of fewer jobs and slowing the growth of the gross domestic product (see press release). The Environmental Defense Fund, an environmental group, immediately attacked the business groups’ findings, noting they did not analyze the costs of doing nothing to stop climate change.

Environmentalists were more split on the EPA study, however, with Environmental Defense saying it showed the economy could grow substantially while controlling emissions, and the Natural Resources Defense Council accusing the agency of hiding the key conclusions that demonstrated emissions reductions are affordable. 

Under the Lieberman-Warner bill, known as the Climate Security Act, greenhouse emissions from major economic sectors, including electric power, transportation, manufacturing and natural gas would be capped and gradually reduced. It also would establish a trading program for emissions credits. Backers of the legislation have estimated it would reduce emissions by as much as 66 percent from 2005 levels by 2050. The full Senate is expected to take up the bill, which some environmental groups want to strengthen, in June.

The EPA report also did not discuss the economic benefits of reducing emissions. But the other newly released government analysis suggested those could be substantial. The study prepared by the U.S. Climate Change Science Program and the U.S. Department of Transportation and made public earlier in the week (see press release here) predicted global warming could pose huge threats to the Gulf Coast region. Those included increased intensity of hurricanes, sea level increases of up to seven feet, endangering roads and other infrastructure and the inundation of a “vast portion” of the coast from Houston, Texas, to Mobile, Alabama. One group said the government appeared to be trying to release the report in a way to minimize public notice. The report noted that about two-thirds of the nation's oil imports pass through the region, and that it is home to the largest concentration of freight-handling ports in the country. It painted the threat to the region's transportation network in stark terms:

"Warming temperatures are likely to increase the costs of transportation construction, maintenance, and operations. More frequent extreme precipitation events may disrupt transportation networks with flooding and visibility problems. Relative sea level rise will make much of the existing infrastructure more prone to frequent or permanent inundation – 27 percent of the major roads, 9 percent of the rail lines, and 72 percent of the ports are built on land at or below 122 cm (4 feet) in elevation. Increased storm intensity may lead to increased service disruption and infrastructure damage: More than half of the area’s major highways (64 percent of Interstates; 57 percent of arterials), almost half of the rail miles, 29 airports, and virtually all of the ports are below 7 m (23 feet) in elevation and subject to flooding and possible damage due to hurricane storm surge."

The EPA's analysis of the climate change bill, which also did not factor in last year’s energy conservation legislation that, among other things, required better gas mileage in cars, some  impacts were potentially more significant than the business groups’ figures showed. The EPA compared a variety of scenarios to a baseline that assumed compliance with existing domestic and international policies but no new ones after 2007.

 According to the EPA, by 2030, the Liberman-Warner bill could reduce the nation’s GDP by as little as less than 1 percent to as much as nearly 4 percent, or $983 billion, compared to what it would be otherwise. The business groups’ report showed a maximum impact of about 2.7 percent by 2030.

On the other hand, the EPA report also predicted there might be no flight of emissions to other countries, known as “leakage,” as energy prices rise. It also predicts that the use of fossil fuels might peak as soon as 2010, followed by a slow decline to 2050. It also shows renewable sources, such as wind and solar, playing a “significant role” if the bill were enacted. Among other highlights of the report, which were also outlined in a letter to Lieberman from Robert J. Meyers, the EPA’s principal deputy assistant administrator, the bill could reduce emissions by up to 56 percent by 2050, a slightly lower estimate than that put forward by the legislation’s sponsors, and it cites the electricity sector as providing the greatest source of emissions reductions. The report also suggested that technology to capture and store carbon could deploy by as early as 2020.

Meyers' letter also promised that the EPA would issue a revised analysis in May or June, showing the effect of the new energy law. 

In a joint statement responding to the EPA’s analysis, the senators focused on findings under certain scenarios studied by the EPA that they said showed the economy would grow almost as fast with the legislation in place as without it, that greenhouse emissions would not be shifted abroad, and that that other benefits would occur, such as driving natural gas out of the electricity sector, to the benefit of manufacturers who use gas.  

“EPA’s detailed analysis indicates that the U.S. can curb global warming without sacrificing economic prosperity,” Lieberman said in the statement. “We will examine the results closely for improvements that they might suggest for the bill.”

Warner said the results also indicated that greenhouse gases could be controlled “in a manner that leaves the economy whole and is not burdensome on consumers.”

(Wikipedia Photo: Hurricane Katrina damage to New Orleans)

California Utilities Overseers Back Greenhouse Gas Cap-and-Trade

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.  

          

The document is in the form of a proposed decision to be presented for consideration by the full five-member CPUC. If adopted by the panel, the paper would  then constitute a recommendation to the California Air Resources Board, which is the key body in charge of implementing AB 32,  the law that mandates big reductions in California climate-change emissions by 2020 and which officials hope to have up and running by 2012.

Peevey wrote:

We favor inclusion of the electricity sector in a cap-and-trade program for
a number of policy reasons. While we fundamentally favor a certain minimum
level of mandatory reductions from existing programs as described above, a
cap-and-trade system in combination with these mandatory reductions should
be able to produce the GHG emissions reductions required by AB 32 at a lower
cost than reliance on additional mandatory reductions. This is because emissions
trading maximizes flexibility in achieving emissions targets by allowing
obligated entities to rely on the least-cost options across the entire economy.

Significantly, Peevey wrote that any cap-and-trade program must include a component to include electricity imported from other states. While California gets about 20 percent of its juice from neighboring states, those imports represent more than half of the greenhouse gas emissions from the sector, he noted.

It was partly along those lines that he recommended that electricity deliverers to the grid bear the burden of complying with AB 32. Other options would have placed the responsibility on retail providers; in-state generators, with no inclusion of imports in the cap-and-trade system; and in-state generators, with retail providers as the point of regulation for imports. All the choices were evaluated against a set of criteria including "environmental integrity," accuracy and ease of reporting, compatibility with ongoing reforms in energy markets and legal issues.

The so-called deliverer option worked best, Peevey wrote:

After evaluating the point of regulation options against these key criteria,
we find that the deliverer option best meets the criteria. Each of the other
options has serious shortcomings regarding one or more of our priorities. The
deliverer system provides for the environmental integrity of the system by
covering imported power as well as in-state generation. It also shares a number
of common characteristics with a pure generation-based point of regulation
making it likely to be compatible with the eventual design of a cap-and-trade
system that is broader in geographic scope (regional and/or national). The
deliverer point of regulation also improves the ability to report and track
emissions in the sector and minimizes the impact of AB 32 GHG regulations on
California’s wholesale electricity markets. Finally, the deliverer method can be supported on legal grounds.

Despite advocating the inclusion of a market-based approach in efforts to control climate-changing emissions from the electricity sector, Peevey shied away from backing an immediate move along those lines for natural gas. He cited "key differences between the electricity and natural gas sectors" for his recommendation to leave gas out of the equation for now. Those included, he wrote, "significantly fewer options" for reducing greenhouse emissions in the natural gas sector and the "very limited availability of low-carbon alternatives" to gas. However, he added that as California gains experience with a cap-and-trade system and other developments occur, "it may become appropriate" to add the natural gas sector to such a system.

Peevey cited support for a cap-and-trade approach from a wide range of interests, not all of whom usually see eye-to-eye, including environmental groups, utilities, power suppliers and others.

There isn't unanimity among all of the parties, however, as reflected in written comments filed with the CPUC.  Environmentalists, including The Natural Resources Defense Council, filed comments urging officials to "move forward in designing a [greenhouse gas] cap and trade program for electricity. Those same organizations also advocated that California go ahead with "a cap and trade system that includes natural gas, even if regional and federal programs have not yet emerged." Meanwhile, El Paso Corporation, a large natural gas supplier, submitted arguments urging a wait-and-see approach to imposing a gas cap and trade system. The Utility Reform Network, a vocal California ratepayer group, asked that any cap and trade system adopted for 2012 exclude electrical generation, arguing that the state would be better off "promoting existing policies that result in real GHG reductions" and taking other steps, such as developing a regional tracking system for the emissions.