by Stan Chiueh, Law Student Intern

This week, the Center for Biological Diversity (CBD) notified the government of its intent to file suit against the National Oceanic and Atmospheric Administration (NOAA) for delaying protection of Arctic seals under the Endangered Species Act.

Last May, the Center filed a petition to “protect the ice-dependent ringed, bearded, and spotted seals under the Act due to threats from global warming and increasing oil development in their habitat.” While NOAA found that these three species may be  deserving  of protection under the ESA, the agency failed to make any binding decision as to whether or not the Arctic seals would receive such legal protection within the one-year deadline provided by the statute. The CBD’s notice of its intent to sue is just the first step in its efforts to compel the agency to comply with existing law.

The petition and subsequent suit on behalf of the seals’ protection is just one of several high-profile efforts that CBD has undertaken in the past year to ensure Environmental Species Act protection for a wide variety of Arctic wildlife, including polar bears, ribbon seals, and Pacific walruses. In this case, the petition is based on CBD’s contention that retreating Arctic ice caused by global warming has severely threatened the breeding and life-cycle habits of these various types of seals. According to CBD:

Ringed, bearded and spotted seals use the sea ice in slightly different ways, but each depends on the sea ice for giving birth, rearing pups, and resting. Ringed seals … excavate snow caves on sea ice to provide hidden, insulated shelters for themselves and their pups. The early breakup of sea ice destroys these snow sanctuaries, resulting in increased deaths of pups. Bearded seals … give birth and rear their pups on drifting pack ice over shallow waters, where their bottom-dwelling prey is abundant. The early retreat of the sea ice off the food-rich shallow shelves decreases food availability for these seals. Spotted seals … rely on the edge of the sea ice away from predators as safe habitat for giving birth and as a nursery for their pups. Loss of sea ice and early sea-ice breakup threaten these seals’ ability to successfully rear their young.

CBD further noted that the threats to these seals come not only from retreating sea ice as a result of global warming, but also from an increased risk of oil spills, noise pollution, and other man-made intrusions into the seals’ native habitats that have occurred as an ice-reduced Arctic has opened the area up to increased human development and transportation.

From the CBD and other environmental activist groups’ perspective, little has changed in the early months of the Obama Administration from the systemic foot-dragging of agencies tasked with carrying out environmental protection rulings and regulations during the past decade. According to Rebecca Noblin of CBD, “[a]n entire ecosystem is rapidly melting away, and we risk losing not only the polar bear but the ice seals and other ice-dependent species if we do not take immediate action to address global warming … Unfortunately, the [NOAA] has shown the same disregard for the law under the Obama administration as it did under Bush. Federal officials should not be allowed to view compliance with legal deadlines as optional.”

In a bold and sweeping policy memorandum issued today, President Obama reaffirmed the critical role that state and local governments play in our constitutional system. The President’s memorandum directs executive branch officials to review every regulation adopted in the past ten years to scrub them of inappropriate preemption language.

In an assault on federalism and our Constitution, the Bush Administration quietly inserted preemptive language into a number of important regulations in an attempt to favor corporate interests at the expense of state laws protecting their citizens. Today the Obama Administration recognized that states serve as “laboratories of democracy” and often are the most aggressive defenders of public health, safety, and the environment.

Today’s action follows yesterday’s decision to adopt California’s automobile emissions standards at the national level—a perfect example of how our country benefits when states act as policy innovators. The states led, the nation followed, and the broad coalition of industry leaders, state officials, and environmental advocates assembled at the White House yesterday showed our country at its best.

In December, Constitutional Accountability Center (CAC) joined a coalition of organizations on a letter, available here, asking then-President-Elect Obama to review and reject the Bush Administration’s preemption policies. Before the Supreme Court, CAC also successfully advocated for a rejection of Bush-era regulatory preemption in Wyeth v. Levine, a case where the Supreme Court slammed the Bush Food and Drug Administration for trying to trump state consumer protection laws by including preemptive language in regulatory preambles.

According to CAC’s President Doug Kendall: “Combined with the Supreme Court’s Wyeth opinion, today’s memorandum is the last nail in the coffin for Bush-era preemption policy.”

Cross-posted on Text & History.

Today at noon, the White House made its formal announcement that it is proposing the nation’s first federal standards for greenhouse gas tailpipe emissions, and is harmonizing those standards both with California’s proposed “Pavley” emissions standards and with national corporate average fuel economy (CAFÉ) standards.  The new regulations will require new vehicles to achieve a fleet average of 35.5 mpg by model year 2016.

According to news sources, the White House reached an agreement with the State of California as well as with  auto industry leaders, in which the federal standard will be set to match the Pavley standards California first introduced in 2004. President Obama said he plans to grant California its long awaited waiver of federal preemption needed for the State to enforce its standards. However, as a concession to the auto industry, California has agreed to adjust the time frame in which it will enforce the standards’ intermediate reduction targets (those set for model year 2012).  According to the agreement, by 2016, the entire country – including California – will then be up to the same emissions and fuel economy standard standards, which would result in an average 30% reduction in greenhouse gas emissions from new vehicles.

It is also our understanding that the automakers waging the four federal “preemption” lawsuits against states that have adopted the Pavley standards have agreed to file motions to stay all those cases.  California will then formally amend its own auto emissions standards to reflect the EPA’s less stringent timeline, after which the auto industry will file motions to dismiss the pending preemption lawsuits.  These details are reflected in letters sent to EPA Administrator Lisa Jackson and Secretary of Transportation Ray LaHood (whose Department oversees NHTSA, which determines federal fuel economy standards) from California Gov. Arnold Schwarzenegger and state Attorney General Jerry Brown.

As Warming Law has reported extensively, California’s right to implement better-than-federal auto emissions standards — a right that dates back nearly 40 years to the 1970 Clean Air Act –- reflects our Constitution’s vibrant federalism, in which state governments are encouraged to engage in innovation to protect their citizens and resources.  Constitutional Accountability Center filed an amicus curiae brief in support of California’s efforts in court to obtain the waiver of preemption denied it by the Bush Administration, arguing that the decision to deny the waiver was contrary to the text of the Clean Air Act, congressional intent, and the Supreme Court’s historical reading of the Supremacy Clause of the Constitution. Thus, while it is certainly phenomenal news that President Obama has proposed establishing nationwide standards for greenhouse gas emissions from new vehicles as well as raising fuel economy standards, it is equally important that the President has also acknowledged California’s historical role as a leader in federal auto emissions regulations.

In fact, we hear California is already gearing up for the next set of auto emissions standards that will come into effect after 2016 – standards that we around here plan on calling “Pavley II.”

On the same day news sources reported that the White House is planning to set federal auto emissions standards at the same level set by California in its embattled “Pavley” standards, the U.S. Court of Appeals for the Ninth Circuit decided today to put on hold an appeal brought by the auto industry challenging the Pavley standards on the ground that they are preempted by federal law.

In an order filed Monday, the Ninth Circuit granted the State’s request to stay the case until July 13, 2009.   California requested the stay due in part to the fact that the Obama Administration is currently reconsidering the State’s request for a waiver of federal preemption under the Clean Air Act to enforce the Pavley standards (a request originally denied by the Bush Administration in 2007), and in light of Congress’s recent decision to impose a deadline of June 30 on the current Administration for deciding whether to grant the waiver.

Today’s news that the Administration will soon introduce new federal auto emissions standards that will bring the entire country up to the California standards – though not yet formally confirmed by the White House – will likely make the auto industry’s claims of federal preemption moot.

Stay tuned to Warming Law for updates on the California preemption lawsuit, as well as for coverage of the three other federal preemption lawsuits currently being fought by the auto industry against states that have adopted the Pavley standards.

The NY Times and Politico are reporting that President Obama is planning to introduce new national auto emission standards that would raise the entire country to the standards set by  California known as the “Pavley” standards, as well as harmonize these emissions standards with current national corporate average fuel economy (CAFÉ) standards.  The Pavley standards require a 30% reduction in tailpipe emissions from new vehicles and light trucks by 2016.

In addition, the Times reports that the Obama Administration will grant California its long sought-after waiver of federal preemption under the Clean Air Act, which would allow California and several other states to enforce the Pavley standards on a state-by-state basis .   California first requested the waiver in 2005; that request was denied by the Bush Administration in December 2007, prompting the State to sue.  That lawsuit is still pending.  Meanwhile, soon after taking office, President Obama ordered his team to reevaluate the waiver denial.

If granted now, however, the waiver will likely make little difference if the White House does indeed set the federal standards at the same level as those set by California.  And for the same reason, it would also make little sense for the auto industry to continue pursuing its numerous legal challenges against states that have adopted the Pavley standards, which the industry has argued are preempted by federal law.

According to news sources, auto industry leaders have been part of secret discussions planning for this announcement, and are in support of the Administration’s move to introduce consistent, federal auto emissions regulations that will provide for greater stability and certainty in the auto market.

Sources anticipate a formal White House announcement as early as Tuesday.  Stay tuned to Warming Law for further information as it becomes available.

Representative Joe Barton (R-TX), ranking minority member of the House Energy and Commerce Committee, unveiled yesterday his plans for a climate bill that he says serves as a better alternative to the widely-discussed Waxman-Markey clean energy bill.

According to a summary released by Rep. Barton’s office, Barton’s proposed bill would:

Amend the Clean Air Act (CAA) to overturn Massachusetts v. EPA

• Amends definition of “air pollutant” to exclude carbon dioxide, water vapor, methane, nitrous oxide, HFCs, PFCs, or sulfur hexafluoride
• Nothing in CAA will authorize/require regulation of greenhouse gases

Preempt State Authority

• Preempts state authority to regulate certain fuels
• Preempts state authority to regulate all gases exempted from CAA regulation

So in other words, the bill aims to strip the EPA and the Obama Administration of their current authority to regulate greenhouse gases under the Clean Air Act, as well as strip states of their authority to regulate greenhouse gases in the absence of federal regulation.

Sounds like a doozie to us.

Among other things, the Barton bill also offers financial and regulatory rewards to coal-fired power plants that use existing control technology, and states explicitly that it aims to allow the construction of new coal-fired power plants to proceed.  The bill would require new coal-fired power plants to become slightly more energy efficient by 2030, though all existing energy generating facilities “are grandfathered in.”  The bill also allocates money for the development of an array of environmental unfriendly (or simply not-yet-invented) technologies such as nuclear energy, carbon capture and sequestration, biofuels, “clean coal,” methane, and “oil shale, tar sands, and other strategic unconventional fuels,” in addition to authorizing offshore and Arctic oil exploration and extraction, deregulating oil shale, and accelerating the creation of new refineries.

Fortunately, Barton’s alternative seems to be attracting little attention, and has already been soundly dismissed by the National Wildlife Federation.  Nevertheless, given that the fossil fuel industry has been a big contributor to Barton’s campaigns over the years, this bill certainly gives us a sense of the sort of climate legislation (if any) the industry might endorse if it could prohibit the EPA from tackling greenhouse gases under the Clean Air Act.

The Center for Biological Diversity announced Wednesday that it has filed notice with the U.S. Bureau of Land Management (BLM) and the U.S. Fish and Wildlife Service — both housed within the Department of Interior – stating that it intends to file a lawsuit challenging a government plan that includes selling public lands in eastern Nevada for construction of three coal-fired power plants.

According to the Center’s press release:

The Ely Resource Management Plan, approved by the U.S. Bureau of Land Management in 2008, controls the agency’s management of approximately 11.5 million acres of public lands in White Pine, Lincoln, and a portion of Nye counties, Nevada. The plan covers ongoing activities such as off-road vehicle use, grazing, mining, and energy production. It also allows for the sale of public lands for construction of three new coal-fired power plants: the White Pine Energy Station, Toquop Energy Project, and Ely Energy Center.

The area covered by the plan is home to a diverse range of rare wildlife and plants, including the desert tortoise, the Big Spring spinedace, the White River springfish, the White River spinedace, the Pahrump poolfish, the Hiko White River springfish, the Pahranagat roundtail chub, the Railroad Valley springfish, the southwestern willow flycatcher, and the Ute ladies’ tresses – all species that are protected by the federal Endangered Species Act.

In its notice of intent to sue, the Center faults the BLM for providing “programmatic authorization” for the three coal-fired power plants without any discussion of the plants’ effect on thesabove species or other listed species.  The Ely Plan also “completely fails to discuss the effects of climate change on the covered species and on other listed species in the stated action area,” according to the notice.

The Center contends that the agencies’ approval of the Ely Plan violates the Endangered Species Act, which requires each federal agency to ensure that its actions are not likely to “jeopardize the continued existence” of a protected species, or “result in the destruction or adverse modification” of a protected species’ habitat.   The Center’s notice states that if the agencies do not act to correct these violations it will sue both the BLM, as well as the Fish and Wildlife Service, which administers the endangered species program, on or after June 28 of this year.

If filed, this lawsuit would be one of many the Center for Biological Diversity is currently pursuing against the federal government for allegedly failing to protect threatened or endangered species from the impacts of global warming.

A deal announced yesterday appears to bring to an end to the dramatic battle over the controversial plans of Sunflower Electric Power Corporation to build a massive expansion to its coal-fired power plant in southern Kansas.

As we have previously reported, then-Governor Kathleen Sebelius –over steadfast opposition from state legislators — successfully resisted the expansion plans, on several occasions vetoing bills that would have given a green light to the expansion.  But now, less than a week after stepping in to replace Sebelius following her confirmation as President Obama’s Health and Human Services Secretary, former Lt. Governor Mark Parkinson has struck a deal with Sunflower that would allow construction to go forward, albeit on a smaller scale.

Stacy Morford from Solve Climate details the more positive aspects of the deal:

Parkinson yesterday promised Sunflower CEO Earl Watkins that he would no longer block construction if the company agreed to build one coal-fired unit producing close to 900 megawatts of power – and 6.7 million tons of CO2 a year – rather than the proposed two, which would have produced 1,400 megawatts of electricity. Sunflower also agreed to close two oil-burning power plants and eventually establish 179 MW of wind power and 126 MW of biomass energy.

The deal hinges on legislative approval of a package of alternative energy proposals that includes net-metering with generating capacity up to 1 percent of peak demand, greater energy efficiency in state buildings and vehicles, and a renewable electricity standard that would require investor-owned utilities to provide 20 percent of their electricity from renewable sources by 2020.

Also included in the deal according to press accounts was a proposal, reportedly put forth by Sunflower and its allies, that limits the authority of Kansas Health and Environment Secretary Rod Bremby to restrict greenhouse gas emissions.  According to the press, the Secretary will be prohibited without legislative approval from imposing emissions regulations stricter than those set at the federal level – which is convenient, given that there are currently NO limits at the federal level and likely will not be for many months to come.

The 19-month battle over the Holcomb coal-fired power plant expansion started when Secretary Bremby famously denied Sunflower a permit to build the Holcomb coal-fired power plant expansion, citing global warming concerns.  The denial resulted in no fewer than four attempts by the Kansas state legislature to pass a bill overriding Bremby’s decision, each of which was vetoed by Gov. Sebelius.  In addition to the legislative efforts to allow construction to go forward, Sunflower has pursued administrative, state, and federal legal challenges to the denial, including a federal lawsuit in which the company claimed the Sebelius Administration violated the Commerce Clause and Sunflower’s equal protection rights by continuing to block expansion of the plant.  That lawsuit, Sunflower v. Sebelius et al, is, as of this writing, still awaiting a ruling on a February motion filed by Sebelius and her co-defendants to dismiss the case, with no new filings mentioning the just-announced deal between the state and Sunflower.

Stay tuned to Warming Law for any updates on the Kansas coal-fired power plant battle.

There is a really dumb version of the judicial doctrine of “originalism” that goes something like this: “If the Framers didn’t imagine something happening at the time of the original drafting of the Constitution, then addressing that thing must be unconstitutional.” (CAC’s better method for preserving constitutional accountability is explained here.)

A perfect illustration of this widely-ridiculed approach to constitutional interpretation is Tuesday’s op-ed by LA Times columnist Jonah Goldberg, who views last week’s finding by the EPA that greenhouse gases endanger public health and welfare as “disturbing to people who believe in democratic, constitutional government.” As Goldberg correctly notes, the finding will allow the EPA to regulate greenhouse gases under the Clean Air Act without waiting for further action from Congress – a step that was effectively mandated by the Supreme Court in Massachusetts v. EPA.

However, after getting this one fact straight, Goldberg marches headfirst into La-La Land with the rest of his article:

So the government bureaucracy is on its way to strong-arming the economy in ways Congress never imagined when it passed the Clean Air Act in 1970. Or the president has suddenly gained sweeping new powers over American life, in ways never imagined by Congress or the founders, and despite the fact that these new powers were never put before the voters.

There are way too many flaws in Goldberg’s article to address all of them here, so let’s just address the specific flaws contained in this one statement.

First, while it is certainly the case that the horse-and-buggy-driving Founders were not envisioning greenhouse gas emissions from automobiles or anything similar when they wrote and ratified the Constitution, what Goldberg fails to mention is that they specifically endowed Congress with the power to regulate commercial matters that affect more than one state. Air pollution and climate change are, in fact, classic examples of the type of problem the Framers had in mind when they drafted the Commerce Clause of the Constitution — problems that no state government can solve on its own and that necessarily require coordinated, national regulation. Congress thus unquestionably had the constitutional authority to enact the Clean Air Act.

Second, while it may Read more »

While the battle to halt construction of the infamous Cliffside coal-fired power plant in Rutherford County, NC is being waged on the ground this week, it will also continue this year in federal court. Late last month, Duke Energy Carolinas, LLC – the plant’s developer – was granted its request for a jury trial, which has been scheduled for this summer.

Among other things, the company is expected to try to convince a jury that its controversial planned 800-MW expansion to the Cliffside power plant does not qualify as a “major source” of hazardous air pollutant emissions under Section 112 of the Clean Air Act, which requires qualifying plants to seek a pre-construction determination of the “Maximum Achievable Control Technology” (MACT) for limiting its emissions.

Last year, environmental groups sued Duke Energy in a North Carolina federal court for failing to obtain the MACT determination before starting construction of the plant. The groups sought a declaration from the court that the Cliffside expansion was subject to Section 112, along with an injunction to halt construction.

Duke Energy disputed the groups’ claim, arguing that it was not subject to Section 112 because, at the time its permit was issued, the Bush Administration had taken steps to “delist” most major coal-fired power plants from the requirements of that section of the Clean Air Act. However, in February 2008, the United States Court of Appeals for the D.C. Circuit, in a case called New Jersey v. EPA, struck down this move by the Bush EPA. That widely-expected ruling came just a few days after Duke Energy had received a permit to construct the Cliffside expansion. The company sought to exploit an alleged loophole created by the Bush Administration’s failed delisting effort, arguing that subjecting it to Section 112 requirements would be a “retroactive” application of the law.

As we reported in December, District Court Judge Lacy Thornburg soundly rejected this argument, explaining that Read more »