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

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, here, here 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)

Kassie Siegel, a California attorney and climate program director for the Center for Biological Diversity, one of the plaintiffs in the lawsuit prodding the government to act, in a written statement (see text here) called the decision "a huge victory" for the Arctic-dwelling predator. By the judge's deadline, Siegel said, the bear "should receive the protections it deserves under the Endangered Species Act, which is the first step toward saving the polar bear and the entire Arctic ecosystem from global warming."

Activists have long said that they see the listing of such animals as the polar bear -- which would be the first mammal given an endangered species designation because of climate-related reasons -- as bringing the law into the broader struggle against global warming. It could also have implications for more local concerns, such as oil exploration in the Arctic (see previous Climate Law Update story here).

Andrew Wetzler, director of the Natural Resources Defense Council's endangered species project, said in the same statement that the federal court decision was a lifeline for the "incredible animal." He added that the endangered species law "requires the decision to be based solely on science, and the science is absolutely unambiguous that the polar bear deserves protection." The NRDC, along with Greenpeace, is also a plaintiff in the case.

Meanwhile, U.S. Sen. Barbara Boxer, no friend of the Bush administration, also took the opportunity to weigh in (see statement here). Boxer, a California Democrat, who chairs the Senate Environment and Public Works Committee and who has repeatedly clashed with the executive branch's environmental officials, had this to say:

"Interior Secretary Kempthorne, like [Environmental Protection Agency] Administrator Stephen Johnson, has been stonewalling our committee, and I am very pleased that the court has ordered the Interior Department to stop stalling and finalize its decision regarding polar bears. These magnificent creatures are in peril, and this administration has no right to walk away from protecting them."

(Photo: U.S. Department of Interior)

Wilken is presiding over a lawsuit brought by environmental groups who contended that the government, as a result of prior litigation, was supposed to have formally issued its decision by Jan. 9 (see text of lawsuit here; see Climate Law Update story here; ). More recently, the environmentalists filed a summary judgment motion asking Wilken to order officials to act within a week of the next hearing on the matter, now scheduled for May 8 (see motion here).

In court filings Thursday, Justice Department lawyers representing Interior argued that Wilken should grant the plaintiff’s motion – but “adopt the [wildlife] service’s proposed deadline of June 30, 2008 for submission of the final listing determination for the polar bear to the Federal Register.” The government acknowledged that as far back as December 2006 officials had proposed listing the bear as threatened. Additional studies were ordered, however, and a draft decision is now in the hands of Lyle Laverty, the department’s assistant secretary for fish and wildlife and parks. Laverty “anticipates a final listing decision will be completed” by the June date, the department's lawyers wrote.

They also asked the court to allow the decision to go into effect 30 days after its publishing in the register, meaning no protections would kick in until about Aug. 1. The filing noted that 670,000 public comments have been received on the issue.

“The assistant secretary must ensure that the final determination has addressed the public comments, is supported by the best available scientific and commercial data, and is legally sufficient,” the government attorneys wrote. Additionally, they argued that a 30-day waiting period “will have a negligible effect” on the bear, which they contended is adequately covered in the short term by the Marine Mammal Protection Act.

The move came barely a day after President Bush warned against attempts to use the endangered species law and other federal statutes to prod action on climate change (see Climate Law Update story here).

Kassie Siegel, an attorney for the Center for Biological Diversity, one of the plaintiffs in the lawsuit, told Climate Law Update the government has handed out oil and gas leases in the region and is also issuing permits for related seismic exploration. Officials, she charged, do not want to go through the additional steps “on any of that stuff” that they would be required to take if the bear were listed. The plaintiffs also issued a written statement criticizing the administration (see text here). 

In a statement (see text here), the Sierra Club, which is not a plaintiff in the case, charged that the government’s delay has “allowed just enough time for the Interior Department to open polar bear habitat to oil drilling.” It added that seismic tests in the Chukchi Sea, a part of the Arctic Ocean, could begin this summer.

Shane Wolfe, an Interior Department spokesman, told Climate Law Update Friday that the court filings, including a sworn statement from Laverty, would speak for themselves “because there’s a lot of information” in them. He added, however, that the Chukchi Sea lease sale had been “long-scheduled” and constituted only a “very early step in the process of producing oil and natural gas.” He pointed to Laverty’s court declaration, which noted that the government had previously determined that oil and gas development, among other potential dangers, “do not threaten the polar bear throughout its range.”

In light of that finding, Wolfe said Interior Secretary Dirk Kempthorne has argued that to cancel the lease sale “would really say that what we said [earlier] wasn’t true.” 

(Photo: Steve Hillebrand, U.S. Fish and Wildlife Service)

She noted that other questions arise when considering the placement of wind farms and solar power facilities, some in remote and environmentally sensitive areas, such as California’s desert lands:

“Surely there are good places to build these things and bad places to build these things. What’s the right process and what’s the right way to engage people who care about the desert and don’t just see it as deadland to put things on. None of us sees deserts that way any more.”

In her presentation to the conference, which was sponsored by the school’s California Center for Environmental Law and Policy, Carlson also highlighted transmission issues. She focused on the ambitious plans of the Los Angeles Department of Water and Power, the nation’s largest municipally owned utility, to aggressively increase its generation from renewable sources. Goals include boosting to 20 percent the proportion of the utility’s electricity coming from renewables by 2010 – more than doubling the current proportion -- and hitting 35 percent by 2025, she said. California has established its own renewable portfolio standards, which generally apply to private utilities, that are similar (see background here). 

Among the consequences of the Los Angeles utility's action, Carlson noted, was the need to build a lengthy transmission project from the proposed site of some of that new generation (see project description here). That is being opposed by a number of groups, including residents and local officials in areas where the lines will run who will not benefit directly from the power (see opposition group site here). Carlson said the utility also faces other pressures. Those include demands from its own unionized workers that the utility itself own much of the renewable generation. Additionally, the facilities must comply with an array of state and federal environmental laws, legal requirements that themselves provide ample opportunity for lawsuits filed by opponents. The challenges aren't unique to Los Angeles, she said: 

“So the sort of localized environmental clashes or values battles is a problem that is really international in scope and also is really long-term, as opposed to short-term. It raises real problems for not just again LADWP but for any utility that is seeking to shit its energy sources away from conventional sources to renewable sources.”

For another example of the kind of fights that can occur and their potential consequences, the Washington Post recently looked at opposition in the “green” state of Wisconsin over new wind farms planned for offshore waters in the Great Lakes (see story here).

Of course, that might not be the full extent of the societal conflicts that could occur as restrictions on greenhouse gases tighten up. In California and other states, there are movements already underway to reduce the amount of vehicle miles people travel (see Climate Law Update stories here and here). That's an issue that might produce some real backlash in a state that has never meaningfully connected land use and transportation policy, warned  William Fulton, a land-use expert who runs the Solimar Research Group. Fulton predicted that once people realize that reducing “VMT” means driving less, they could respond politically, even launching a new recall campgain similar to the 2003 recall of Gov. Gray Davis. That led to Gov. Arnold Schwarzenegger, the politician perhaps most closely identified with California’s climate change-fighting efforts, getting into office in the first place.

(Photo of Ann Carlson via UCLA School of Law)

Theoretically, an eventual placement of the animals on the list could lead to restrictions on a number of the local activities, as well as adding the agency as a regulatory player in combating climate change. The endangered species law contains provisions mandating that “federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this act.”

Under the law, regulators throughout government are supposed to consider potential impacts on endangered species when carrrying out their duties. That means, for one, consulting with colleagues in the wildlife regulatory agencies. It's a wide net that environmentalists believe should be used to cover government activities such as issuing permits for power plants or new highway construction.

Cummings said the seals face a "double-barreled threat" both from local development, such as oil and gas projects, and from greenhouse gas-related global warming. He noted that new threats to the animals might also develop as the ice disappears, allowing for shipping lanes to open and for additional fisheries to develop.

"It's being viewed as the new gold rush," he said. A listing of the seals would give the creatures some additional protections if the new developments occur.

But he said there would also have to be efforts to curtail emissions of greenhouse contributors such as carbon and methane.

"If we don’t stop global warming, there’s not much we can do for these species,” said Cummings, whose office is in Joshua Tree, California. He noted, for instance, that unlike some other marine mammals such as the walrus that can use dry land as a habitat of last resort, the ribbon seal is never seen on land.

In addition, he said other issues need to be examined “pro-actively,” including the impacts of an ocean fishery that may be shifting geographically northward along with warming waters.

A listing by the fisheries service would also engage an agency, which is housed in the U.S. Commerce Department's National Oceanic and Atmospheric Administration, that the environmental group feels has been historically more responsive to endangered species considerations than its sister bureaucracies. That latter category includes the Interior Department’s Fish and Wildlife Service, with which the organization has repeatedly tangled.

Part of the goal, Cummings said, is to “get [the fisheries service] involved in species management in a changing climate.”

Doug Mecum, acting administrator for the fisheries service’s Alaska region, was reluctant to predict what would result if the seals were to be listed.

“We’re kind of a long ways away from determining what, if anything, might be done,” he told Climate Law Update. He acknowledged, however, that “it’s kind of mind-boggling given the potential scope” of actions that theoretically could be implicated.

At the same time, Mecum suggested his agency’s specific authority had limits.

“I think that first and foremost you look at things under your immediate control,” he said. For example, the agency has since the early 1990s listed some part of the Stellar sea lion population as threatened and others endangered, and officials have identified threats to animals as  diverse as killer whales because of climate change and issues related to the commercial fishing industry. He said the agency has little it can do about the first two and so it has concentrated on regulation related to the fisheries (see recovery plan here).

When it comes to the seals, he said, one thing to look at would be finding ways to mitigate the impact of oil and gas development in their habitat.

On the larger issue of how multiple government agencies would deal with species found to be threatened by climate change, Mecum said he “wouldn’t hazard a guess” about what the future holds.

“This is pretty much new ground we’re breaking here,” he said.      

Clearly, organizations such as Cummings’ intend to press the issue. The Center for Biological Diversity has targeted global warming’s alleged effects on a number of cold-climate animals, including the polar bear and the Pacific walrus, in addition to the seals. It recently joined with other environmental groups to sue the fish and wildlife service (see Climate Law Update story) to prod some action out of the agency on listing the bears. The group has also sent the agency a formal request (see press release and petition) to protect the walrus under the endangered species law.  Regarding more temperate regions of the world, the group successfully pushed the fisheries service into listing two species of Florida and Caribbean coral as threatened because of global warming, and designating "critical habitat" for the invertebrates (see press release).

But traditional wildlife agencies aren’t the only ones facing the group’s legal assault. Attorneys for the organization recently enlarged a lawsuit against the U.S. Department of Energy regarding that agency’s designation of new power transmission line corridors. The lawsuit claimed officials allegedly failed to consider the impacts on endangered species, specifically by not going through the inter-agency consultation process (see lawsuit and Climate Law Update story). In addition, the environmental group in 2007 won a federal appeals court ruling against the U.S. Department of Transportation that just last week produced action to begin considering global warming when setting fuel economy standards for light trucks and sport utility vehicles (see Climate Law Update story).

(Photo of ribbon seal courtesy of NOAA) 

Johnson, in the letter to Boxer, the California Democrat who chairs the Senate Environment and Public Works Committee, and Sen. James Inhofe, the committee’s ranking Republican from Oklahoma, seemed to acknowledge a decision to regulate could have wide ramifications:

"Such an approach makes sense because, as the Act is structured, any regulation of
greenhouse gases - even from mobile sources - could automatically result in other regulations applying to stationary sources and extend to small sources including many not previously regulated under the Clean Air Act. Consequently, any individual decision on whether and how sources and gases should be regulated may dictate future regulatory actions to address climate change. My approach will allow EPA to solicit public input and relevant information regarding these interconnections and their possible regulatory requirements.

"This approach gives the appropriate care and attention this complex issue demands. It
will also allow us to use existing work. Rather than rushing to judgment on a single issue, this approach allows us to examine all the potential effects of a decision with the benefit of the public's insight. In short, this process will best serve the American public."

But Johnson in his letter also noted that his agency is facing legal action and petitions on the issue. Among them, although he did not mention it specifically, is an attempt by a number of organizations to impose greenhouse gas controls on a proposed Utah power plant (see Climate Law Update story).

The latest move follows by weeks Johnson’s issuance of his formal reasons for turning down California’s attempt to regulate greenhouse gas emissions from motor vehicles, in a move that also has raised hackles on Capitol Hill and among environmentalists (see Climate Law Update story).  

In his letter Thursday, Johnson wrote that he would direct the EPA staff to prepare an "Advance Notice of Proposed Rulemaking" to "discuss and solicit public input on these interrelated matters." That document would be issued later this spring and then would be followed by a public comment period. "The agency will then consider how to best respond to the Supreme Court decision and its implications under the Clean Air Act," he wrote.

Officials in Johnson's office did not return a call from Climate Law Update seeking comment on the latest move. 

Boxer, an outspoken environmental advocate, issued a statement accusing Johnson of "foot-dragging." She said the letter "makes it clear that EPA doesn't intend to take any real action to combat global warming before President Bush leaves office."

Aides to Inhofe, who has called global warming “the most media-hyped issue of all time,” could not be reached for comment Thursday.

Environmental groups and California government officials ripped Johnson. Said David Bookbinder, chief climate counsel for the Sierra Club, in a written statement (see press release):

"One year after the Supreme Court recognized the grave problem of climate change and ordered EPA to take the formal steps necessary to begin controlling global warming-causing pollution, Administrator Johnson has decided that what he needs to do is think about it some more.  After a year of navel-gazing, Administrator Johnson says that later this spring he will ask the public to provide EPA with (a) the "best available science" on global warming, and (b) their views on the "interconnections" between various parts of the Clean Air Act that "may" be affected by any decision to begin limiting GHG emissions.  Then, after months of public comments and some unspecified period thinking about them -- and only then -- will EPA "consider how best to respond to the Supreme Court decision and its implications under the Clean Air Act."

The Natural Resources Defense Council also weighed in (see press release), with a statement by David Hawkins, the environmental group’s climate center director. Hawkins said the announcement “follows an industry script designed to delay any real action to reduce global warming pollution for as long as possible and certainly until the next administration.”

Both Hawkins and Bookbinder threatened new court action. Hawkins said the NRDC would, as part of a coalition of groups, “return to federal court next week to enforce compliance with the Supreme Court’s decision.”

The negative reaction was not limited to environmental groups. Stanley Young, a spokesman for the California Air Resources Board, told Climate Law Update the "EPA's inaction heaps delay upon delay." However, he said the air board would continue moving forward with implementing California's own greenhouse gas reduction law, AB 32.

Kenneth Alex, a top lawyer for California Attorney General Jerry Brown, in an interview with Climate Law Update, said the latest move was part of “an ongoing abdication of responsibility and it’s nothing new.” Brown has been aggressively moving to require local governments and private entities in California to take steps to curb greenhouse emissions.

“In essence,” said Alex, a supervising deputy attorney general, “they’ve opened a public comment period on nothing.”

(Photo: Sen. Barbara Boxer via official Web site)

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)