Friday, June 29, 2007

Pelosi Declares Energy Independence Day

Jun 28: It appears that House Speaker Nancy Pelosi (D-CA) was attempting to make good on her previous commitment to have comprehensive energy legislation ready by the Fourth of July; when she gave her Energy Independence Day speech at a press conference on June 28. However, Energy and Commerce Committee Chairman John Dingell (D-MI), had already indicated that some of the difficult issues such as motor vehicle fuel economy, coal-to-liquids, and a renewable portfolio standard have all been left out and will be addressed in the fall in the context of comprehensive climate change legislation.

Despite the lack of a complete package, the Speaker was joined by other Democratic Leaders and Committee Chairs to announce the “Energy Independence Day” legislation. Pelosi said, Today, in the tradition of our Founding Fathers and in the interest of our children and our grandchildren, we begin a new American revolution. With confidence in American ingenuity and high faith in our future, we Democrats declare America’s independence from foreign oil. For their extraordinary efforts I thank our chairs, Chairman Dingell, Chairman Obey, Chairman Rangel, Chairman Miller, Chairman Oberstar, Chairman Waxman, Chairman Rahall, Chairman Lantos, Chairman Gordon, Chairman Peterson, and Chairwoman Velazquez.

“At the beginning of this Congress, I asked our distinguished chairs to bring to the House of Representatives legislation that addressed the issues of energy independence and reversing global warming, and to do so in a way that promoted innovation, to create small businesses in our country, and to do so in a way that was fiscally sound. On the 11 committees of jurisdiction that relates to energy independence and global warming, almost every Member of Congress serves. So almost every Member of Congress, Democrat and Republican alike, has had an opportunity to weigh in on the legislation that I am announcing today. As promised, as part of our open process that allowed Republicans and Democrats to weigh in on the House committees, the committee chairs crafted a New Direction energy independence initiative."

Dingell discussed the Committee markups for six sections of an energy bill. While indicating that many difficult issues were being delayed until fall, Dingell announced on June 27 that "We should set ambitious goals and targets..." and he called for reductions in "U.S. greenhouse gas [GHG] emissions of between 60, and perhaps as much as 80, percent by 2050." [
See WIMS 6/27/07]. The sections (Committee Prints #1-#6) were just finally approved by the Committee at meetings on June 27 and 28. On the Energy and Commerce website the various prints, and the amendments considered for each are available. In summary form the prints deal with the following subjects and were approves as follows: Committee Print #1: Title I: Energy Efficiency, approved by a vote of 27-18; Committee Print #2: Smart Grid, approved by voice vote; Committee Print #3: Amount of Loans Guaranteed, approved by voice vote; Committee Print #4: Renewable Fuels Infrastructure, approved by vote of 33-21; Committee Print #5: Advanced Battery and Plug-in Hybrid Programs, approved by voice vote; and Committee Print #6: Energy Information Enhancement, approved by voice vote.

While the Speaker was touting energy independence, another group of 47 fiscally conservative House Democratic legislators known as the "Blue Dog Coalition," unveiled an endorsed set of principles to guide Congress as it works to rewrite the nation’s energy policy. The “Blue Dog Energy Principles” were endorsed by the Coalition as a moderate and comprehensive approach to our nation’s energy policy that emphasizes a focus on national and economic security. The principles represent a broad range of stakeholders, with the underlying belief that our country’s current reliance on foreign energy supplies threatens our national security and our ability to compete in the global marketplace.

The Blue Dog Energy Task Force Co-Chairs Jim Matheson (D-UT) and Charlie Melancon (D-LA) led the effort that produced the Blue Dog Coalition Energy Principles -- eight planks dealing with topics such as domestic energy production, climate change, fuel diversity and technology development. Both are members of the House Energy and Commerce Committee. On climate change, for example, the Blue Dogs say, "the U.S. should address climate change by developing predictable long term policies that do not disproportionately affect one industry or sector."

The Blue Dog principles struck a cord with the National Association of Manufacturers (NAM) President John Engler who commented that, "Forward-thinking principles like the Coalition’s will go a long way toward crafting a functional domestic energy infrastructure. Supporting these principles is the right course of action for our country, and will help lead the nation toward lower energy costs and a more secure energy future.” Engler said the Principles were a “break from the usual rhetoric,” and said they were "highly consistent with the NAM’s own energy and economic security plan, support domestic energy production, diversity, and technology development."

Access a release from the Speaker (
click here). Access the Committee Prints #1, #2, & #3 and the various amendments considered (click here). Access the Committee Prints #4, #5, & #6 and the various amendments considered (click here). Access a release from the Blue Dog Coalition (click here). Access the Blue Dog Energy Principles (click here). Access the Blue Dog Coalition website for a list of members and additional information (click here). Access a release from NAM (click here). Access various media reports on the House energy bill efforts (click here).[*Energy, *Climate]

Thursday, June 28, 2007

Bald Eagle Is Un-Endangered; But, Controversy Persists

Jun 28: Secretary of the Department of Interior (DOI) Dirk Kempthorne announced the removal of the bald eagle from the list of threatened and endangered species at a ceremony at the Jefferson Memorial in Washington, DC. After nearly disappearing from most of the United States decades ago, the bald eagle is now flourishing across the nation and no longer needs the protection of the Endangered Species Act. The eagle population fell into steep decline, due primarily to widespread use of the pesticide DDT after World War II. DDT accumulated in eagles and caused them to lay eggs with weakened shells, decimating the eagle population across the nation.

Secretary Kempthorne said, “Today I am proud to announce: the eagle has returned. In 1963, the lower 48 states were home to barely 400 nesting pairs of bald eagles. Today, after decades of conservation effort, they are home to some 10,000 nesting pairs, a 25-fold increase in the last 40 years. Based on its dramatic recovery, it is my honor to announce the Department of the Interior’s decision to remove the American Bald Eagle from the Endangered Species List.” Kempthorne emphasized the ongoing commitment of the Interior Department and the entire federal government to the eagle’s continued success, noting that bald eagles will continue to be protected by the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act. Both Federal laws prohibit “taking” -- killing, selling or otherwise harming eagles, their nests or eggs.

Earlier this month, the U.S. Fish and Wildlife Service clarified its regulations implementing the Bald and Golden Eagle Protection Act and published a set of National Bald Eagle Management Guidelines [72 FR 31131-31140, 6/5/07] . These measures are designed to give landowners and others clear guidance on how to ensure that actions they take on their property are consistent with the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act. In addition, the Service is accepting public comments on a proposal to establish a permit program under the Bald and Golden Eagle Protection Act that would allow a limited take of bald and golden eagles. Any take authorized would be consistent with the purpose and goal of the Bald and Golden Eagle Protection Act, ensuring eagle populations remain healthy and sustainable.

Those new guidelines are not without controversy. On June 4, the Pacific Legal Foundation (PLF) said the new bald eagle regulations effectively extend the "delisting" under the Endangered Species Act and create "harsh land use controls." [See WIMS 6/6/07] PLF said, "After dragging its feet for nearly eight years since President Clinton declared the bald eagle recovered... to remove the bald eagle from the Endangered Species Act list... a new federal rule on land use in the vicinity of bald eagles is too harsh and will burden small property owners and businesses without justification..." PLF said "the rule is so restrictive that it would effectively negate the removal of the bald eagle from the federal Endangered Species Act list." For this reason PLF attorneys and their client are considering a legal challenge because the restriction may mean that their client's long wait to be able to build small lakeside cabins on his land could go on, because there are eagle nests in the area.

The official removal of the bald eagle from the Federal List of Endangered and Threatened Wildlife and Plants will become effective 30 days after publication in the Federal Register. Upon delisting, the Service will continue to work with state wildlife agencies to monitor eagles for at least five years, as required by the Endangered Species Act. If at any time it appears that the bald eagle again needs the Act’s protection, the Service can propose to relist the species. The Service has developed a draft monitoring plan that is available for public review and comment.

Susan Holmes, Senior Legislative Representative for Earthjustice issued a statement saying, "We can all be proud that together, we have brought bald eagle populations back from the brink... As we applaud this national success, it is troubling to note that the Bush administration has recently been working behind closed doors to undermine the Endangered Species Act's ability to recovery other species at risk of extinction. Even as they celebrate the eagle's comeback, the administration is drafting new regulations that could severely weaken the law which has so effectively kept our nation's symbol with us..."

John Flicker, President of the National Audubon Society said, "The rescue of the bald eagle from the brink of extinction ranks among the greatest victories of American conservation. Like no other species, the bald eagle showed us all that environmental stewardship has priceless rewards. In every state, parents and grandparents can still point to the sky and share a moment of wonder as a bald eagle soars overhead. The success is evident in the Audubon counts. Over a 40-year period from 1967 to 2006, bald eagle sightings have gone up nine-fold and increased an average of six percent per year every year. The top five states with the most dramatic increases were Ohio, Pennsylvania, West Virginia, Vermont and Michigan, which all had at least a 13-fold increase over 40 years."

Access a release and links to related information including the Bald Eagle website from the DOI (
click here). Access a release from PLF (click here). Access a release from Earthjustice (click here). Access a release from the Audubon Society and link to additional information (click here). [*Wildlife]

Wednesday, June 27, 2007

Dingell Calls For 60-80% GHG Reduction By 2050

Jun 27: In a statement to the House Energy and Commerce Committee, on the mark up of energy policy legislation, Chairman John Dingell (D-MI) said, "We should set ambitious goals and targets for that legislation. It should stabilize greenhouse gas concentrations at levels that will avoid or avert large-scale climate change consequences. That will require a reduction in U.S. greenhouse gas [GHG] emissions of between 60, and perhaps as much as 80, percent by 2050." While the Senate was debating its comprehensive energy bill on the Senate Floor last week [See WIMS 6/22/07], one of Dingell's Subcommittees was debating a set of Committee prints addressing energy efficiency standards, a smart electricity grid, loan guarantees for innovative energy technologies, renewable fuels infrastructure incentives, and advanced battery and plug-in hybrid vehicle promotion [See WIMS 6/19/07]. The prints are now being considered by the full Committee this week, beginning June 27, and subsequent days if necessary. The Committee will consider six Committee prints related to energy legislation that were approved by the Subcommittee on Energy and Air Quality.

Dingell also indicated that issues such as motor vehicle fuel economy, coal-to-liquids, and a renewable portfolio standard have been left out of the base text and although members may wish to offer amendments on those subjects, he recommended that those issues be addressed in the fall in the context of comprehensive climate change legislation. He said, "We will have to examine the future of coal and the role of nuclear power. We will need to get beyond the stale debate over miles per gallon. We should be talking about the lifetime carbon footprint of vehicles, about the carbon content of fuels, about the promotion of renewable fuels and advanced batteries and other technologies. We will need to discuss the role of carbon sinks and sequestration, as well as land use policies. "

He concluded saying, "We should leave as few of these issues to bureaucratic discretion as possible. It is the job of the Congress, and of this Committee, to make tough calls – as we did in writing the Clean Air Act Amendments in 1990. This will allow us to distribute the burdens fairly – and there will be burdens. But let’s accept that, and also accept our own responsibility: to create a secure future for our country and our world, one that preserves economic opportunity and our natural environment."

Access the complete statement from Representative Dingell (click here). Access links to the Committee prints and section-by-section explanations (click here). [*Energy, *Climate]

Tuesday, June 26, 2007

Home Builders & EPA Prevail In Supreme Ct. CWA/ESA Ruling

Jun 25: The U.S. Supreme Court, in a split 5-4 decision, has decided two consolidated cases -- National Association of Home Builders v. Defenders of Wildlife (No. 06-340) and Environmental Protection Agency v. Defenders of Wildlife et al. (No. 06–549). The majority decision is in favor of the arguments of U.S. EPA and the National Association of Home Builders (NAHB). The cases were on appeal from the U.S. Court of Appeals, Ninth Circuit and involve competing provisions of the Clean Water Act (CWA) and the Endangered Species Act (ESA). Judge Alito delivered the opinion of the Court, in which Roberts, Scalia, Kennedy, and Thomas, joined. Justice Stevens, filed a dissenting opinion, in which Souter, Ginsburg, and Breyer joined. Justice Breyer filed a separate dissenting opinion.

As explained by the majority, these cases concern the interplay between two Federal environmental statutes. Section 402(b) of the CWA requires that U.S. EPA transfer certain permitting powers to state authorities upon an application and a showing that nine specified criteria have been met. Section 7(a)(2) of the ESA of 1973 provides that a Federal agency must consult with agencies designated by the Secretaries of Commerce and the Interior in order to "insure that any action authorized, funded, or carried out by such agency. . . is not likely to jeopardize the continued existence of any endangered species or threatened species." The question presented is whether §7(a)(2) effectively operates as a tenth criterion on which the transfer of permitting power under the first statute must be conditioned. The majority opinion said, "We conclude that it does not. The transfer of permitting authority to state authorities -- who will exercise that authority under continuing federal oversight to ensure compliance with relevant mandates of the Endangered Species Act and other federal environmental protection statutes -- was proper. We therefore reverse the judgment of the United States Court of Appeals for the Ninth Circuit."

Under Federal law, a state may take over the CWA pollution permitting program in its state from the Federal EPA) if it applies to do so and meets the applicable standards. The case concerned Arizona’s application to run the CWA program in Arizona. In its August 22, 2005, 2-1 split opinion [See WIMS 8/29/05] the Ninth Circuit had said the case, "...largely boils down to consideration of one fundamental issue: Does the Endangered Species Act authorize -- indeed, require -- the EPA to consider the impact on endangered and threatened species and their habitat when it decides whether to transfer water pollution permitting authority to state governments?" The Ninth Circuit ruled that, EPA did have the authority to consider jeopardy to listed species in making the transfer decision, and erred in determining otherwise," and said EPA’s decision was "arbitrary and capricious."

In his dissenting opinion, Justice Stevens indicates, "These cases present a problem of conflicting 'shalls...' When faced with competing statutory mandates, it is our duty to give full effect to both if at all possible... The Court [majority opinion] fails at this task. Its opinion unsuccessfully tries to reconcile the CWA and ESA by relying on a federal regulation... which it reads as limiting the reach of §7(a)(2) to only discretionary federal actions... Not only is this reading inconsistent with the text and history of §402.03, but it is fundamentally inconsistent with the ESA itself."

In a release, NAHB President Brian Catalde said, “This decision recognizes that we must always maintain a balance when we look at environmental regulations. We can’t say that the Endangered Species Act is an ‘uber-statute’ that should slow down regulatory decisions under the Clean Water Act even as we recognize that both laws concern issues that are vital to preserving this earth for the next generation. This decision also tells us that the U.S. Supreme Court is helping to preserve housing affordability by striking down efforts at unnecessary, duplicative regulation. Congress created the Clean Water Act to prevent, reduce and eliminate pollution. But it’s the Clean Water Act, not the Arid Desert Act. There is no logic to twisting a program designed to protect the waters of the United States to give special considerations to species that have no relation to that water.”

In a statement from Rodger Schlickeisen, President of Defenders of Wildlife he said the decision limits, "...the obligation of federal agencies under the Endangered Species Act to ensure that their actions do not jeopardize imperiled species. The majority held that the Endangered Species Act’s duty to consult applies only to discretionary actions. Today’s decision, while unfortunate, should apply only to a very narrow category of actions by federal agencies -- actions compelled by the terms of another federal law -- and should not be read as a broad abrogation of the authority of the Endangered Species Act. We are very disappointed with the majority’s interpretation of the Endangered Species Act, which we think ignores the clear intention of Congress when they enacted the Endangered Species Act. The Act was intended by Congress as a clear, independent mandate for all federal agencies to ensure that their actions do not jeopardize endangered species or destroy their critical habitat."

Access the Supreme Court decision, the Syllabus and the dissenting opinions (
click here). Access the Supreme Court Docket for the case (click here). Access the complete Ninth Circuit opinion (click here). Access a release from NAHB (click here). Access a release from Defenders (click here). [*Water, *Wildlife]

Friday, June 22, 2007

Senate Passes Energy Bill: CAFE Yes; Taxes No; RPS No

By a vote of 65-27 (7 not voting) the U.S. Senate passed the Senate version of H.R. 6, the National Energy and Environmental Security Act of 2007. On its passage, Senate Majority Leader Harry Reid (R-NV) issued a statement saying, “Tonight’s vote was a victory for the American people. This bill starts America on a path toward reducing our reliance on oil by increasing the nation’s use of renewable fuels and, for the first time in decades, significantly improving the fuel efficiency of cars and trucks. We are saving consumers money, protecting them from gas price-gouging, creating new jobs and making our country safer -- all while taking steps to reduce global warming. It is unfortunate that in passing this bill the Administration and most Senate Republicans blocked an effort to require more of our nation’s electricity to come from renewable sources as well as incentives to spur the production of more renewable fuels right here in America."

The Democrats major accomplishment was the inclusion of a last minute compromise on CAFE standards that will require an increase from 25-35 mpg by 2020. While the bill contains many other items of importance including a requirement for 36 billion gallons of biofuels by 2022, gasoline price-gouging provisions, various grant and loan programs, carbon dioxide sequestration testing; the hotly debated Renewable Portfolio Standard (RPS) was not included and the major $32 billion tax package for energy investment was defeated by three votes.

The big win for Democrats was the compromise on corporate average fuel economy (CAFE) gas mileage standards. The Senate approved, by voice vote, the bipartisan compromise to increase fuel economy standards from 25 to 35 miles per gallon by model year 2020. The compromise legislation, offered by Senators Ted Stevens (R-AK) and Thomas Carper (D-DL), was endorsed by Senators Dianne Feinstein (D-CA), Olympia Snowe (R-ME), Daniel Inouye (D-HI), Byron Dorgan (D-ND), John Kerry (D-MA), Maria Cantwell (D-WA), Bill Nelson (D-FL), Barbara Boxer (D-CA), Amy Klobuchar (D-MN), and Larry Craig (R-ID). According to a release from Senator Feinstein the measure will save between 2.0 and 2.5 million barrels of oil saved per day by 2025 -- nearly the amount of oil imported today from the Persian Gulf.

According to a summary from Feinstein, the compromise gives automakers the time and flexibility needed to meet these new fuel economy standards. It would requires the National Highway and Transportation Safety Administration (NHTSA) to determine vehicle fuel economy based on their attributes, such as size or weight. Each class of vehicles – as determined by NHTSA – would be required to meet the new fuel economy standard for that particular class to achieve the fleetwide average of 35 miles per gallon by 2020. This means that each automaker will no longer be required to average the fuel economy for the entire fleet of cars they produce. This creates a level playing field for all automakers. From 2011 to 2019, NHTSA must set fuel economy standards that are the maximum feasible, and ratchet these standards up, making steady progress, to meet the 2020 target of 35 miles per gallon. In 2020, the total average must meet 35 miles per gallon, unless NHTSA determines -- based on clear and convincing evidence -- that the achievement of the 35 miles per gallon standard would not be cost-effective for the nation. From 2021 to 2030, NHTSA must set fuel economy standards that are the maximum feasible, and ratchet these standards up at a "reasonable rate."

The national Renewable Portfolio Standard (RPS) as advocated by Senate Energy and Natural Resources Chairman Jeff Bingaman (D-NM) [
See WIMS 6/14/07], that would have required utilities to produce 15 percent of their electricity from clean, renewable sources such as wind, solar and biomass by 2022, was defeated in a procedural slight of hand. As reported by insiders, because the Senate invoked cloture on the Energy Bill, lawmakers could not introduce an amendment to create a renewable electricity standard because it would not be germane to the base bill.

According to Marchant Wentworth, Washington representative for the Clean Energy Program at the Union of Concerned Scientists (UCS), "Despite majority support in the Senate, a small group of senators mugged the latest effort to pass a national renewable electricity standard. They didn't take a vote, there's no record of who actually killed the initiative, so there is no accountability to the American people - who overwhelmingly support a strong standard.

On the defeat of the $32 billion tax investment package (Baucus Amdt. No. 1704), Senator Reid said, "...Republicans continue to pander to the big oil and energy companies. In voting against tax incentives that would spur investment in renewable fuels, clean-coal technology and energy-efficient vehicles, not to mention consumer incentives for buying green products and cars, the Grand Oil Party has sided yet again with the industry that fills Republican campaign coffers as those same oil companies drill deeper into Americas’ pockets." The amendment was defeated when it failed by three votes to gain the necessary 60 votes in a cloture vote.

U.S. Senator Max Baucus (D-MT), Chairman of the Senate Finance Committee unveiled his tax incentive package for developing clean energy on June 15, which he indicated would provide various tax incentives for developing clean and green power, alternative vehicles and biofuels, and clean coal technologies. The $32.1 billion cost was to be "fully offset, in part by changes to tax laws concerning major oil and gas companies."

The National Association of Manufacturers (NAM) sent a letter to all members of the U.S. Senate prior to the final vote, urging them to vote against the Reid substitute to H.R. 6, the Clean Energy Act of 2007, to oppose all procedural motions to end debate on the bill and specifically to oppose the Baucus amendment (#1704) that would hike taxes on the oil and gas industry. Jay Timmons, NAM Senior Vice President for Policy said, “Adequate, affordable and reliable energy supplies are essential to the growth of the U.S. economy and especially vital to U.S. manufacturers who use one-third of our energy. Unfortunately, we believe this legislation has progressively worsened and is now beyond repair.”

The Alliance of Automobile Manufacturers (AAM), the trade association representing BMW Group, DaimlerChrysler, Ford Motor Company, General Motors, Mazda, Mitsubishi Motors, Porsche, Toyota and Volkswagen; did not comment directly on the CAFE compromise, but had supported an alternative proposal advanced by Senators Pryon-Bond-Levin-Voinovich and others that would have required a 36 mpg requirement for "passenger cars". They said, "manufacturers understand the need for CAFE reform, and want to be part of the solution to meeting our energy needs. A 36 mpg passenger car standard is a tough standard. This is a floor with no loopholes. While tough on the industry, this bipartisan bill protects consumer choice by maintaining the distinction between passenger cars and light trucks, and acknowledging the key attributes that separate these two types of vehicles." They said the original H.R. 6 proposal was a "wildly extreme measure" and would have required all passenger cars and light trucks to ultimately average "an unattainable 52 mpg."

Access releases from Senator Reid on overall passage (
click here); and the tax-cut package (click here). Access the vote details on final passage (click here). Access legislative voting details on all amendments (click here). Access legislative details for H.R. 6 (click here). Access a detailed release from Senator Feinstein on the CAFE compromise (click here). Access a release from the UCS on the defeat of the RPS standard (click here). Access a summary of the Baucus tax package (click here). Access a release from NAM (click here). Access a release from AAM on the alternative CAFE proposal (click here). [*Energy]

Thursday, June 21, 2007

EPA Proposes Tighter NAAQS Standards For Ozone

Jun 21: U.S. EPA is proposing to strengthen the nation's air quality standards for ground-level ozone, revising the standards for the first time since 1997. The proposal is based on the most recent scientific evidence about the health effects of ozone -- the primary component of smog. EPA Administrator Stephen Johnson said, "Advances in science are leading to cleaner skies and healthier lives. America's science is progressing and our air quality is improving. By strengthening the ozone standard, EPA is keeping our clean air momentum moving into the future."

The proposal recommends an ozone standard within a range of 0.070 to 0.075 parts per million (ppm). EPA also is taking comments on alternative standards within a range from 0.060 ppm up to the level of the current 8-hour ozone standard, which is 0.08 ppm. The Agency will take public comment for 90 days following publication of the proposal in the Federal Register and will hold four public hearings. The hearings will be held in Los Angeles and Philadelphia on August 30, and in Chicago and Houston on September 5.

EPA says that since 1980, ozone levels have dropped 21 percent nationwide as the Agency, states and local governments have worked together to continue to improve the nation's air. Ground-level ozone is not emitted directly into the air, but is created through a reaction of nitrogen oxides and volatile organic compound emissions in the presence of sunlight. Emissions from industrial facilities, electric utilities, motor vehicle exhaust, gasoline vapors, and chemical solvents are the major man-made sources of these ozone precursors.

EPA also is proposing to revise the "secondary" standard for ozone to improve protection for plants, trees and crops during the growing season. The secondary standard is based on scientific evidence indicating that exposure to even low levels of ozone can damage vegetation. EPA is proposing two alternatives for this standard: a standard that would be identical to the "primary" standard to protect public health; and a cumulative standard aimed at protecting vegetation during the growing season.

EPA is estimating the health benefits of meeting a range of alternative ozone standards based on published scientific studies and the opinion of outside experts. These findings will be detailed in a Regulatory Impact Analysis to be released in the next few weeks, which will include both the estimated costs and benefits. EPA projects that health benefits of the proposed standard could be in the billions of dollars. However, EPA does not consider costs in setting ozone standards.

The American Lung Association (ALA) said it was pleased that the EPA is calling for tighter standards and it was "a step toward cleaner air;" however, the organization said, "the agency’s plan falls short of the goal recommended by its own scientific experts [Clean Air Scientific Advisory Committee (CASAC) Ozone Review Panel, See WIMS 10/25/07]. We are particularly concerned that the EPA has left the door open to choosing options that are simply not acceptable. We have reason to be concerned... Under today’s proposal, the EPA could tighten the smog standards to 75 parts per billion (ppb), a clear improvement, but far short of the 60 to 70 ppb unanimously recommended by the scientists after they conducted an extensive review of the evidence. Alarmingly, the new EPA plan leaves the door wide open to an option the American Lung Association considers unacceptable: Making no improvements in the standards at all by retaining the current standard."

The United States Chamber of Commerce said, “It would be ludicrous for EPA to revise any NAAQS [National Ambient Air Quality Standards], let alone the standards for ozone, without first considering the impact of these extraterritorial emissions.” The Chamber made the comment in a release that applauded the Task Force on Hemispheric Transport of Air Pollution (HTAP), which released a draft interim study finding that emissions from foreign nations constitute a significant share of the background ozone levels; which they said would make it "very difficult for localities to meet the new more restrictive standards being proposed by the Environmental Protection Agency (EPA) in its National Ambient Air Quality Standards (NAAQS)." The Chamber's vice president for Environment, Technology and Regulatory Affairs Bill Kovacs said, “This confirms what the Chamber has been saying for years: emissions from China, India, Mexico, and Africa don’t just disappear—they come to the United States.” The Long Range Transboundary Air Pollution (LRTAP) Executive Body created the Task Force on Hemispheric Transport of Air Pollutants.

The Chamber said that lowering the current standard of 84 ppb to either 70 ppb or 60 ppb, as recommended by the Science Advisory Board, would double, or even triple, the number of U.S. counties in non-attainment. They said the economic consequences of non-attainment are serious -- "non-attainment counties can lose federal highway and transit funding; restrictive permit requirements deter companies from building new plants or modifying existing ones; and mandated federal pollution control measures inhibit business expansion as local plans for economic development are put on hold."

Access an EPA release (
click here). Access EPA's 2007 Proposed Revisions to Ground-Level Ozone Standards website with links to background information, a fact sheet, the Proposed Rule and Tech Support Documents (click here). Access a release from ALA (click here). Access a release from the U.S. Chamber (click here). Access the HTAP recently revised executive summary (click here). Access the draft chapters of the 2007 interim report for review and discussion at a May HTAP Task Force Meeting (click here). Access the HTAP website (click here). Access additional information on the LRTAP (click here). Access a release from Sierra Club (click here). Access a release from the Union of Concerned Scientists (click here). Access a release from Environmental Defense (click here). Access the Clean Air Scientific Advisory Committee (CASAC) Ozone Review Panel website for their review documents (click here). [*Air]

Wednesday, June 20, 2007

New Farm Bill Blog To Track Congressional Debate

Jun 19: A leading Farm Bill reform expert, Environmental Defense Farm Policy Campaign Director Scott Faber, launched a blog called, “The Ruminant” to respond to rapidly changing developments in the debate over congressional renewal of the Farm Bill this summer. Faber has testified before Congress on the issue and been quoted in many news outlets.

Faber’s blog launch coincides with a vote by the House Committee on Agriculture’s Subcommittee on General Farm Commodities and Risk Management about whether to increase depression-era farm subsidies that help few farmers and violate international trade agreements. Specifically, the Subcommittee is expected to approve a hike in target prices for wheat, soybeans, oats and barley. Faber says, “As a result, most farm spending would continue to flow to a handful of farmers in a handful of districts -- farmers in just 19 congressional districts would continue to collect more than half of all farm spending. In fact, eight of the top ten congressional districts collecting about one-third of all farm spending between 2003 and 2005 are represented by legislators who serve on the Committee."

Environmental Defense is a member of left-right alliance of groups that support Farm Bill reform proposals to provide more funding for voluntary conservation programs that reward farmers who offer to meet our environmental challenges, such as providing clean air, clean water, clean energy, and wildlife habitat. The group says, "Unlike subsidies, conservation payments flow to all farmers, ranchers and landowners regardless of what they grow, how much they grow or where they grow it. As a result of inadequate conservation funding of the current Farm Bill that took effect in 2002, the U.S. Department of Agriculture now turns away two out of three farmers who are eligible for conservation payments."

A majority of the U.S. House of Representatives (219 members) have cosponsored legislation endorsed by Environmental Defense that would dramatically increase funding for voluntary conservation programs in the Farm Bill. These bills include The Healthy Farms, Foods and Fuels Act (H.R. 1551/S.919), EAT Healthy America Act (H.R. 1600), Chesapeake's Healthy and Environmentally Sound Stewardship of Energy and Agriculture Act (H.R. 1766/S.1346), Farm, Nutrition, and Community Investment Act (H.R. 2144), NOURISH Act (H.R. 2401) and FARM 21 Act (H.R. 2720/S. 1422).

In a related matter Agriculture Secretary Mike Johanns issued a release regarding Farm Bill legislation advanced by House Subcommittees and said, "I am disappointed in the Title I legislation put forth today by the House Subcommittee on General Farm Commodities and Risk Management. The bill fails to recognize the need for greater equity and predictability in farm policy, and does nothing to provide a more responsive safety net... The House draft also fails to bring greater equity to farm policy. Some farmers would continue to receive guaranteed money while others, including 60% of farmers, are left out. Fruit and vegetable growers in California, Florida, Michigan, Pennsylvania and elsewhere make a compelling case that they deserve to be supported... The House draft offers no overall funding increase for conservation, while the Administration put forth a proposal to increase funding by $7.8 billion. The House draft offers no mandatory funding in an area Congress itself has identified as a top priority - renewable energy, while the Administration proposes more than $1.6 billion in new renewable energy funding, targeted to cellulosic ethanol projects..."

Access a release on the new Blog (click here). Access The Ruminant Blog (click here). Access ED's Farm Bill reform website for additional information (click here). Access a release from Secretary Johanns (click here). Access the latest information on the House Farm bill development from the Agricultural Committee website (click here). [*Land, *Water, *Agriculture]

Tuesday, June 19, 2007

House Energy Legislation In Development Next 2 Weeks

Jun 18: Representative John Dingell (D-MI), Chair of the Committee on Energy and Commerce and Rick Boucher (D-VA), Chairman, Subcommittee on Energy and Air Quality have issued a memo to members of the Committee regarding a set of Committee prints addressing energy efficiency standards, a smart electricity grid, loan guarantees for innovative energy technologies, renewable fuels infrastructure incentives, and advanced battery and plug-in hybrid vehicle promotion. The prints will form the basis for markup of energy legislation in the Subcommittee on Energy and Air Quality this week and in the full Committee next week.

The memo notes that a number of the more controversial issues such as coal-to-liquids, fuel economy standards, a low carbon fuel standard, various mandates, and the role of Federal and State programs, are not included in the set of prints but will be taken up with comprehensive climate change legislation in the fall.

According to the memo, "This procedure for considering energy legislation at this time was discussed with the Speaker, and she understands the rationale for proceeding this way so that we can rapidly complete work on a bipartisan bill that can be signed into law. As we see in Senate consideration of energy legislation [See WIMS 6/14/07], many of these issues are complex and difficult, and it is our desire to avoid unnecessary delays in passing legislation that can accomplish much good. For example, the energy efficiency provisions of the Committee prints, when fully enacted, will remove from the atmosphere carbon dioxide emissions equivalent to those emitted from all cars currently on the road, according to an analysis by the American Council for an Energy Efficient Economy and the Alliance to Save Energy. This does not even count any savings from the smart grid or other provisions included in the prints."

Representative Ed Markey (D-MA), Chairman of the House Select Committee on Energy Independence and Global Warming and a Member of the House Energy and Commerce Committee, released a statement in response to the announcement by Chairman Dingell and Chairman Boucher. Markey said, “I welcome Chairman Dingell and Chairman Boucher’s decision to back down from several controversial provisions in their draft energy legislation that would have taken our nation in exactly the wrong direction when it comes to energy independence and global warming.

“The original discussion draft would have overturned the Supreme Court’s decision on Massachusetts vs. EPA [See WIMS 4/2/07] regarding regulation of CO2 emissions from motor vehicle tailpipes. It would have pre-empted California from adopting their own stronger standards, thereby blocking other states from adopting the California standard. It would have put in place weak fuel economy standards for cars and trucks [that] are insufficient in meeting the challenge our nation faces from its increasing dependence on imported oil from the Middle East. And finally, it would have increased emissions of carbon dioxide pollutants by promoting coal-to-liquids fuels. There was broad opposition to these provisions, from Governors, the Attorneys General, and the environmental and public interest community. Twelve Democratic members of the committee, including me, all opposed the draft, as did Speaker Pelosi [See WIMS 6/8/07, subscribers only]. A bill with these provisions in it was clearly not going to become law."

Access the memo (
click here). Access the Committee prints and a section-by-section explanation of the prints (click here). Access the complete release from Representative Markey (click here). [*Energy, *Climate]

Monday, June 18, 2007

Report Finds Agreements On Nuclear Power Issues

Jun 14: The Keystone Center released a report showing areas of agreement from a diverse – and perhaps surprising – group of stakeholders on the risks and benefits of nuclear power as they relate to climate change, safety and security, economics, waste, reprocessing and proliferation. The Joint Fact-Finding on Nuclear Power reports conclusions from 27 participants associated with the nuclear industry, environmental groups, consumer advocates, government regulators, consultants, and academics. The group met from September 2006 through May 2007 and agreed on several critical issues, including: Climate Change; Economics; Safety and Security; Waste; Reprocessing; Proliferation; and The Global Nuclear Energy Partnership (GNEP).

Financial Support for the project came from American Electric Power, Constellation Energy, Duke Energy, Entergy Corporation, Exelon, Florida Power & Light, General Electric, National Commission on Energy Policy, Nuclear Energy Institute, Pew Charitable Trusts, and Southern Company.

Some of the groups involved included: Union of Concerned Scientists; Natural Resources Defense Council, Environmental Defense; Clean Air Task Force; Nuclear Energy Institute; National Wildlife Federation; Maine Department of Environmental Protection; Duke Power; GE Energy; Entergy Corp.; American Electric Power; George Mason University; and others.

For example, on the issue of the Global Nuclear Energy Partnership the report concludes, "that critical elements of the program are unlikely to succeed." On the highly controversial issue of nuclear waste management, the report says: "Spent nuclear fuel must ultimately be placed in long-term disposal facilities. The best disposal option is deep underground geologic repositories, and suitable environments exist in the U.S. and the world. There is little confidence that the proposed repository at Yucca Mountain will meet its already delayed schedule. Given this experience, the search for a second or an alternative site would benefit from a different approach. Until an operating repository is available, older spent fuel can be stored safely and securely, on-site. Centralized interim storage is a reasonable alternative for managing waste from decommissioned plant sites."

On the subject of Climate Change, the report indicates: "We considered hypothetical scenarios for nuclear expansion in order to better understand what role nuclear power might play in mitigating global climate change. In order to achieve a 25 gigatonne carbon reduction from nuclear power over 50 years (a Pacala/Socolow “wedge”), the nuclear industry would need to return immediately to the most rapid period of growth experienced in the past and sustain this growth rate. This projection is more ambitious than indicated by current announcements of proposed plant construction, and the group reached no consensus about the likely rate of expansion. In a carbon-constrained world, the relative economics of nuclear power will improve."

Mike Hughes, vice president of The Keystone Center said, “We congratulate the group for what it accomplished over many months of constructive work on these extraordinarily complex issues. The debate about nuclear power has endured for decades, and is not likely to disappear soon. However, this group has found agreement on a number of critical issues, and has significantly narrowed differences on others, which should help Congress, the administration, and the public as they consider the future of nuclear power in this country.”

The Keystone Center is a non-profit organization that was founded in 1975 to help facilitate cross-sector dialogues on pressing environmental, energy, and public health issues. The Keystone Center does not take positions or advocate particular points of view. Instead, it convenes meetings on issues and facilitates practical, consensus-based solutions that break old logjams or that avert unnecessary future disputes over science and public policy.

Access a release listing all 27 stakeholder participants (
click here). Access links to an executive summary, briefing announcement, audio clips, and related information (click here). Access the 108-page final report (click here). Access the Keystone Center website (click here). [*Haz/Nuclear]

Friday, June 15, 2007

NAS Report Calls For New Approach To Toxicity Testing

Jun 14: A new report from the National Academy of Sciences (NAS), National Research Council (NRC) says that recent advances in systems biology, testing in cells and tissues, and related scientific fields offer the potential to fundamentally change the way chemicals are tested for risks they may pose to humans. The report -- Toxicity Testing in the Twenty-first Century: A Vision and a Strategy -- outlines a new approach that would rely less heavily on animal studies and instead focus on in vitro methods that evaluate chemicals' effects on biological processes using cells, cell lines, or cellular components, preferably of human origin. The new approach would generate more-relevant data to evaluate risks people face, expand the number of chemicals that could be scrutinized, and reduce the time, money, and animals involved in testing.

Today, researchers typically test the safety of commercial chemicals, pesticides, and other substances by administering large doses to groups of animals and observing them for symptoms of disease; these tests inform decisions about whether and how to regulate the chemicals' use. But how relevant the animal tests are for humans, usually exposed at much lower doses, has often been called into question. Moreover, the current approach is time-consuming and costly, resulting in an overburdened system that leaves many chemicals untested, despite potential human exposure to them, the report observes. Recognizing these limitations, the U.S. EPA -- which oversees the testing of many agricultural, commercial, and industrial chemicals -- asked the Research Council to develop a new approach and strategy for toxicity testing.

The report recommends an approach that would take advantage of rapidly evolving scientific understanding of how genes, proteins, and small molecules interact to maintain normal cell function and how some of these interactions can be perturbed in ways that could lead to health problems. Specifically, the new testing approach would focus on toxicity pathways -- cellular pathways that, when sufficiently perturbed, are expected to lead to adverse health effects. The committee recommends the use of "high-throughput assays" -- rapid, automated experiments that can test hundreds or thousands of chemicals over a wide range of concentrations -- to evaluate chemicals' effects on these toxicity pathways. On the basis of data from these and other experiments, researchers could develop models to describe responses in toxicity pathways, and other models to estimate the human exposure necessary to produce responses in these pathways.

According to the report, over time, the need for traditional animal testing could be greatly reduced, and possibly even eliminated someday. For the foreseeable future, however, targeted tests in animals would need to be used to complement the in vitro tests, because current methods cannot yet adequately mirror the metabolism of a whole animal. Studies observing human populations will be needed to provide information on human susceptibility and "background" exposures to chemicals that people face every day, so that results of the in vitro tests can be properly interpreted. These population studies may also reveal health risks not previously identified through toxicity testing. In addition, human exposure data can be used to select doses for toxicity testing, so that the tests generate information on biological effects at environmentally relevant exposures. By comparing human exposure data with concentrations that cause biologically significant alterations in toxicity pathways, researchers can identify potentially harmful exposures.

The report acknowledges that current toxicity-testing practices are long established and deeply ingrained in some sectors. But it emphasizes that the proposed changes will generate better data on the potential risks humans face from environmental agents, building a stronger scientific foundation that can improve regulatory decisions to mitigate those risks, and reducing the time, money, and animals needed for testing. Implementing the strategy envisioned by the committee will require a substantial research effort to develop and validate all of the new approach's components. A critical factor for success is the creation of an institution that fosters multidisciplinary research. If the research is dispersed among different locations and organizations without a core organizing institute to enable communication and problem-solving across disciplines, there will be less chance of success within a reasonable time frame.

Access a release from NAS (
click here). Access links to the complete report, a 25-page executive summary and related information (click here). [*Toxics]

Thursday, June 14, 2007

The Mandated Renewable Portfolio Standard Debate

Jun 13: The U.S. Chamber of Commerce, the world’s largest business federation representing more than three million businesses and organizations of every size, sector, and region, released a letter to all Senators who are now debating on the Senate Floor a comprehensive energy bill -- S. 1419, the Renewable Fuels, Consumer Protection, and Energy Efficiency Act of 2007 [Previously passed House version is H.R. 6]. The letter indicates the Chamber's strong opposition to and urges a no vote on "an amendment expected to be offered by Energy and Natural Resources Chairman Jeff Bingaman (D-NM) to establish a Federally mandated renewable portfolio standard (RPS) to S. 1419." The Chamber reminds Senators in the letter that it "may consider votes on, or in relation to, this issue in our annual How They Voted scorecard."

The letter indicates, "The Chamber understands such legislation will require utilities to generate at least 15 percent of electricity from renewable energy sources by 2020, or else purchase credits from the federal government or other companies. A mandatory RPS could raise electricity prices for all consumers, result in a wealth transfer among states, and impose new burdens on the reliability of the nation’s electric grid."

The Chamber further indicates, "The amendment’s one-size-fits-all mandate fails to take into account two critical factors: (1) the U.S. is made up of fifty individual states, not all of which possess enough renewable power capability to meet a 15 percent RPS; and (2) the 20 states able to meet this standard have already implemented renewable power programs on their own. A federal RPS will force those states lacking adequate renewable resources to purchase credits from the federal government -- essentially a direct tax on electricity used by businesses and other consumers, driving up energy costs, and hurting economic growth. Moreover, the federal mandate will undercut and/or preempt existing programs in the states that have imposed their own RPS... renewable generation sufficient to meet an unrealistic 15-percent mandatory federal requirement is neither cost-effective nor achievable nationwide."

The Chambers opposition echoes announced opposition also by Ranking Member of the Energy and Natural Resources Committee, Senator Pete Domenici (R-NM). On June 11, On June 11, Domenici announced that Florida had joined what he called a "growing chorus of states and utilities to speak out against a federal renewable portfolio standard." He said, "A one-size-fits-all RPS is the wrong approach. It unfairly punishes states in the southeast -- and the citizens that live in them..." He said he would offer a "Clean Portfolio Standard (CPS) amendment" that will include what he said would be "more clean energy resources like nuclear, hydropower and efficiency standards, in an effort to bring more states into the fold and reduce our emissions.”

On June 12, Senator Bingaman issued a release saying he had "found the cure for the RPS blues!" Bingaman said, "Utility commissioners in the Southeast (and some lobbyists in Washington) are running a temperature about the prospects for a national renewable portfolio standard (RPS). They seem to be feeling under the weather because they think such a law would mean higher costs for consumers. This suspicion is supported by 'evidence' in a study commissioned by - surprise, surprise - the utility industry’s biggest trade association, the Edison Electric Institute..."

Bingaman released what he called the "cure" which he said "puts in context any overheated allegations that a national renewable portfolio standard would harm consumers." He announced the a new 29-page study, prepared by "experts" at the Energy Information Administration (EIA) entitled, Impacts of a 15 Percent Renewable Portfolio Standard. Bingaman indicates that a key finding of the EIA study is that, "The increased use of renewable energy in a national RPS leads to only slightly higher electricity expenditures (0.5 percent) by 2030 and lower coal and natural gas prices." He said, "So, if fear of renewables is the fever, EIA’s new analysis surely is the cure."

According to EIA, the specific 15% Bingaman RPS proposal which it analyzed would exempt smaller electricity providers – those with fewer than 4 billion kilowatthours in annual sales – from meeting the requirement, and would not allow current generation from existing hydroelectric and municipal solid waste facilities to meet the requirement. However, retail sellers who generate from existing hydroelectric and municipal solid waste facilities are allowed to exclude this generation from their sales base when calculating their required renewable share. The RPS would allow affected electricity providers to generate their own renewable energy or trade renewable energy credits to assure compliance. Compliance could also be achieved by purchasing credits from the government at an inflation-adjusted rate of 1.9 cents per kilowatthour credit. Generation from distributed generators, represented by end-use photovoltaic installations in this analysis, would earn three credits for every kilowatthour of generation.

Some of the results of the EIA analysis included in an executive summary include:
  • The RPS leads to a large increase in biomass generation, which grows to almost 320 billion kilowatthours in 2030, triple the level in the reference case. Wind and photovoltaics also show significant increases in generation.
  • By 2030, solar installations produce about 8 percent of qualifying renewable generation, but account for approximately 20 percent of the total credits held because of the triple credits awarded to distributed photovoltaics.
  • The increased use of renewable sources in the RPS case leads to lower coal generation. Nuclear and natural gas generation are also lowered to a lesser degree.
  • Relative to the reference case, retail electricity prices rise by an average of 0.9 percent over the 2005 to 2030 period in the RPS case. Reduced demand for coal and natural gas in the RPS case results in slightly lower prices for these fuels by 2030 when compared to reference case projections.
  • Compared with the reference case, end-use sector expenditures for electricity rise while end-use sector expenditures for natural gas fall. From 2005 through 2030, cumulative expenditures for electricity and natural gas by all end-use sectors taken together by all end-use sectors are $18 billion (0.3 percent) higher.
  • Compared with the reference case, cumulative residential expenditures on electricity from 2005 through 2030 are $7.2 billion (0.4 percent) higher, while cumulative residential expenditures on natural gas are $1.0 billion (0.1 percent) lower.
  • Total electricity-sector carbon dioxide emissions are reduced by 222 million metric tons (6.7 percent) in 2030 relative to the reference case. Over the 2005 to 2030 period, cumulative energy-related carbon dioxide emissions are reduced by 2,925 million metric tons (1.7 percent).
Access a release from the U.S. Chamber (click here). Access a release from Senator Domenici (click here). Access a release from Senator Bingaman (click here). Access the new EIA study (click here). Access a release from the Edison Electric Institute and links to their analysis (click here). Access legislative details for H.R. 6 (click here). Access the Senate floor voting on energy bill amendments as the debate continues (click here). [*Energy]

Wednesday, June 13, 2007

Lester Brown Warns Senate Of Biofuels Blunder

Jun 13: Lester Brown, founder and President of the Earth Policy Institute has released a document entitled, Biofuels Blunder, subtitled, "Massive Diversion of U.S. Grain to Fuel Cars is Raising World Food Prices, Risking Political Instability." The document is presented as a briefing before U.S. Senate Committee on Environment and Public Works, Senator Barbara Boxer (D-CA), Chair. Brown has been described as “one of the world’s most influential thinkers” and as “the guru of the global environmental movement.”

According to the document, "The escalating share of the U.S. grain harvest going to ethanol distilleries is driving up food prices worldwide. Investment in fuel ethanol distilleries has soared since gasoline prices jumped at the end of 2005. Once completed, distilleries now under construction could double U.S. ethanol output, turning nearly 30 percent of next year's U.S. grain harvest into fuel for automobiles. This unprecedented diversion of the world's leading grain crop to the production of fuel will affect food prices everywhere, risking political instability.

"The U.S. corn crop, accounting for 40 percent of the global harvest and supplying nearly 70 percent of the world's corn imports, looms large in the world food economy. Annual U.S. corn exports of some 55 million tons account for nearly one fourth of world grain exports. The corn harvest of Iowa alone exceeds the entire grain harvest of Canada. Substantially reducing this export flow would send shock waves throughout the world economy...

"Already corn prices have doubled over the last year, wheat futures are trading at their highest level in 10 years, and rice prices are rising. Soybean prices are up by half. If the United States were to suffer intense heat and severe drought this summer in the Corn Belt, rising grain prices could quickly take the world into uncharted territory.

"The countries initially hit by rising food prices are those where corn is the staple food. In Mexico, one of more than 20 countries with a corn-based diet, the price of tortillas is up by 60 percent. Angry Mexicans in crowds of up to 75,000 have taken to the streets in protest, forcing the government to institute price controls on tortillas...

"Since the United States is the leading exporter of grain, shipping more than Canada, Australia, and Argentina combined, what happens to the U.S. grain crop affects the entire world. With the massive diversion of grain to produce fuel for cars, exports will drop. What was for decades the world's breadbasket is fast becoming the U.S. fuel tank...

"The stage is now set for direct competition for grain between the 800 million people who own automobiles, and the world's 2 billion poorest people. The risk is that millions of those on the lower rungs of the global economic ladder will start falling off as rising food prices drop their consumption below the survival level."

Brown says there are alternatives to this "grim scenario," and they are to encourage a shift to more fuel-efficient cars and a new automotive fuel economy centered on plug-in hybrid cars and wind energy.He concludes, "Ethanol euphoria is not an acceptable substitute for a carefully thought through policy. Do we really want to subsidize a rise in food prices?"

Access the complete briefing statement (click here). Access the Earth Policy Institute website for additional information (click here). [*Energy]

Tuesday, June 12, 2007

Unanimous Supreme Ct Settles CERCLA Liability Issues

Jun 11: In a relatively brief, 11-page unanimous opinion, the U.S. Supreme Court has decisively settled an important liability issue left open in a previous decision and which has been dealt with by three separate circuits. The case, U.S. v. Atlantic Research Corp. (Docket: 06-0562), appealed by the U.S. from the Eighth Circuit Court of Appeals decision of August 11, 2006 [See WIMS 8/14/06]. Oral arguments were held on April 23, 2007 [See WIMS 4/23/07].

The High Court succinctly summarizes its opinion saying, "Two provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) -- §§107(a) and 113(f) -- allow private parties to recover expenses associated with cleaning up contaminated sites. 42 U. S. C. §§9607(a), 9613(f). In this case, we must decide a question left open in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161 (2004): whether §107(a) provides so-called potentially responsible parties (PRPs), 42 U. S. C. §§9607(a)(1)–(4), with a cause of action to recover costs from other PRPs. We hold that it does."

The High Court explains that after SARA’s [Superfund Amendments and Reauthorization Act of 1986] enactment, some Courts of Appeals believed it necessary to “direc[t]traffic between” §107(a) and §113(f). As a result, many Courts of Appeals held that §113(f) was the exclusive remedy for PRPs. But as courts prevented PRPs from suing under§107(a), they expanded §113(f) to allow PRPs to seek “contribution” even in the absence of a suit under §106 or §107(a). Aviall Servs., Inc. v. Cooper Industries, Inc., 312 F. 3d 677, 681 (CA5 2002) (en banc). In Cooper Industries, we held that a private party could seek contribution from other liable parties only after having been sued under §106 or §107(a). 543 U. S., at 161. The High Court said, "This narrower interpretation of §113(f) caused several Courts of Appeals to reconsider whether PRPs have rights under §107(a)(4)(B), an issue we declined to address in Cooper Industries. Id., at 168."

The Eighth Circuit opinion in Atlantic Research Corp agreed with a similar ruling in the Second Circuit decision in Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d 90, 100 (2d Cir. 2005]; however, those decisions were in conflict with a decision of the Third Circuit in E. I. Dupont de Nemours & Co. v. United States, 460 F. 3d 515 (CA3 2006).

In brief review of the instant case, the High Court summarizes that Atlantic Research cleaned the site at its own expense and then sought to recover some of its costs by suing the United States under both §107(a) and §113(f). After our decision in Cooper Industries foreclosed relief under §113(f), Atlantic Research amended its complaint to seek relief under §107(a) and federal common law. The United States moved to dismiss, arguing that §107(a) does not allow PRPs (such as Atlantic Research) to recover costs.The District Court granted the motion to dismiss, relying on a case decided prior to our decision in Cooper Industries, Dico, Inc. v. Amoco Oil Co., 340 F. 3d 525 (CA8 2003). The Court of Appeals for the Eighth Circuit reversed.

The Supreme Court says, "The parties’ dispute centers on what 'other person[s]' may sue under §107(a)(4)(B). The Government argues that 'any other person' refers to any person not identified as a PRP in §§107(a)(1)–(4).2 In other words, subparagraph (B) permits suit only by non-PRPs and thus bars Atlantic Research’s claim. Atlantic Research counters that subparagraph (B) takes its cue from subparagraph (A), not the earlier paragraph (1)–(4). In accord with the Court of Appeals, Atlantic Research believes that subparagraph (B) provides a cause of action to anyone except the United States, a State, or an Indian tribe -- the persons listed in subparagraph (A). We agree with Atlantic Research... The Government’s interpretation makes little textual sense."

The Supreme Court summarizes the Government's arguments as follows: the Government maintains that our interpretation, by offering PRPs a choice between §107(a) and §113(f), effectively allows PRPs to circumvent §113(f)’s shorter statute of limitations. Furthermore, the Government argues, PRPs will eschew equitable apportionment under §113(f) in favor of joint and several liability under §107(a). Finally, the Government contends that our interpretation eviscerates the settlement bar set forth in §113(f)(2).

The High Court counters the three Government arguments and explains in some detail why "in the case of reimbursement, the PRP cannot choose the 6-year statute of limitations for cost-recovery actions over the shorter limitations period for §113(f) contribution claims." Likewise, the High Court says, "a PRP could not avoid §113(f)’s equitable distribution of reimbursement costs among PRPs by instead choosing to impose joint and several liability on another PRP in an action under §107(a). The choice of remedies simply does not exist. In any event, a defendant PRP in such a §107(a) suit could blunt any inequitable distribution of costs by filing a §113(f) counter-claim." And, finally the High Court says, "...permitting PRPs to seek recovery under §107(a) will not eviscerate the settlement bar set forth in §113(f)(2). That provision prohibits §113(f) contribution claims against '[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement . ..'”

Washington State Attorney General Rob McKenna hailed the decision as a victory for his State and explained why the decision is important to other states as well. McKenna said, "The Court’s decision ensures that many contaminated sites which might have been unaddressed for a significant time will be cleaned up. In Washington, more than 1,200 sites are listed on the state’s contaminated sites list. Of these, approximately 250 are in the process of being cleaned up by liable parties under the state’s formal oversight. Because the state does not have resources to address every known site in the state, the remaining sites will likely be addressed as voluntary cleanups. This means that a party who has liability for cleaning up the property will undertake the cleanup without any action by the federal or state government. The ability to obtain contribution to the costs of cleanup from other parties who have liability for a contaminated site is one of the key incentives for parties to perform these voluntary cleanups.”

Access the complete opinion (
click here). Access the U.S. Supreme Court Docket listing all amici curiae parties for the case (click here). Access a release from the Washington State AG (click here). Access a discussion of the opinion on the SCOTUS Blog (click here). [*Remed]

Monday, June 11, 2007

Appeals Court Denies Rehearing Of South Coast Ozone Case

Jun 8: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 04-1200, 04-1201. The case, South Coast Air Quality Mgmt. Dist. v. EPA, involves five petitions for rehearing with regard to the vacatur and remand of a final rule implementing the eight-hour national ambient air quality standard (NAAQS) for ozone under the Clean Air Act (CAA) [See Final Phase 1 Rule To Implement the 8-Hour Ozone NAAQS, 69 Fed. Reg. 23,951 (Apr. 30, 2004) (codified at 40 C.F.R. parts 40, 51, 81) (2004 Rule)]. The petitions were filed by a group of Environmental Petitioners, the Chamber of Greater Baton Rouge et al. (Baton Rouge), National Petrochemical & Refiners Association (NPRA), American Chemistry Council et al. (ACC), and EPA.

According to the Appeals Court, the petitions overlap in part, challenging principally the court’s interpretation of the statutory gap, described in Whitman v. American Trucking Ass’ns, 531 U.S. 457 (2001), that arises from the decision of the Environmental Protection Agency (EPA) to change from a one-hour to an eight-hour measurement system for ozone, and the court’s construction of the CAA’s anti-backsliding provision. See S. Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006) [
See WIMS 1/02/07].

The Appeals Court said, "None of these challenges has merit and we deny the petitions. However, we grant the joint request of EPA and the Environmental Petitioners to clarify the description of the required conformity determinations and to modify the scope of the vacatur of the 2004 Rule."

Earthjustice represented a group of public health and environmental organizations including the American Lung Association, Environmental Defense, the Natural Resources Defense Council and the Sierra Club; that challenged the EPA rule and then subsequently defended the court's December decision that overturned the rule. In explaining the decision, Earthjustice said, "Today's decision reaffirms that EPA violated the Clean Air Act by relaxing limits on ozone, or smog pollution, from large power plants, factories and other industrial sources. The U.S. Court of Appeals for the District of Columbia denied the EPA and industry petitions for rehearing, and actually clarified in even stronger terms that weakening air protections is illegal under federal law. The court characterized the industry's desired readings of the law as a 'glaring loophole' that nothing suggests Congress intended." The Appeals Court said, "EPA is urged to act promptly in promulgating a revised rule that effectuates the statutory mandate by implementing the eight-hour standard, which was deemed necessary to protect the public health a decade ago."

Access the complete 8-page opinion (
click here). Access a release from Earthjustice (click here). Access other related South Coast articles posted on the WIMS-eNewsUSA Blog (click here). [*Air]

Friday, June 08, 2007

Environmental Impacts Of The"Thirst for Corn"

Jun 7: A 10-page World Resources Institute (WRI) Policy Note entitled, Thirst for Corn: What 2007 Plantings Could Mean for the Environment, says that now that the ethanol industry has been jump-started by legislation, priorities should be directed less at the expansion of the industry and more at an evolution that offers the most benefits for the environment and energy security. The brief indicates that as a result, in large part from the Renewable Fuels Standard (RFS) -- legislative mandate for increased renewable fuels use that passed as part of the Energy Policy Act of 2005 -- the corn ethanol industry is expanding at an unprecedented rate in the United States.

The 115 ethanol plants operating in April 2007 have the capacity to produce 5.75 billion gallons per year (BGY) of ethanol, and an estimated 86 plants under construction are expected to produce an additional 6.34 BGY of capacity within the next 18 months. The cumulative total capacity -- more than 12 BGY by 2009 -- far exceeds the RFS blending mandate of 7.5 BGY by 2012, and has been the driving force behind skyrocketing corn prices in the last 12 months.

The brief points out, "Although ethanol is widely promoted as a green alternative to gasoline, there are many different ways to produce ethanol, using many different feedstocks, and some ways are greener than others. Production of the feedstock represents a significant share of the environmental footprint of ethanol production; to ensure sustainability of production, we need to pay close attention to the environmental impacts of producing those feedstocks and have policies in place to avoid or mitigate those impacts."

The brief provides a sophisticated analysis of the environmental and economic impacts of increased ethanol production from corn. WRI uses a national scale agro-environmental production model, which integrates the Regional Environmental and Agricultural Production model (REAP) -- a national agricultural production model developed and maintained by USDA’s Economic Research Service (ERS) and formerly known as USMP -- with the Environmental Policy Integrated Climate (EPIC), a plant growth and environmental impact model. The combined model allows projections indicating how increased corn demand will translate into regional changes in crops grown, tillage practices used, and crop rotations employed, and to then estimate the net environmental impacts of those changes. To measure environmental impacts WRI looked specifically at agricultural GHG emissions, which are often under-represented in the dialogue about greenhouse gas reductions, as well as at nitrogen and phosphorus loads into local waterways and rates of soil erosion, which have been the focus of most existing and pilot agricultural conservation programs.

The baseline agricultural production scenario for our analysis uses the USDA’s 2006 projected baseline for 2007 crop production patterns and a baseline ethanol production level of 6 BGY. Relative to that scenario, we explore how 2007 planting patterns are likely to respond to meet projected corn demands for 2008 ethanol production levels ranging from the baseline of 6 BGY up to 11 BGY.

The analysis results suggest that meeting projected demands for ethanol will require a substantial reallocation of land to corn production and that the shift to corn production will have significant negative environmental impacts if we assume that existing production practices continue under the current policy framework. The results of that analysis for each land-supply scenario are summarized and described in more detail in the briefing report.

Access the 10-page analysis and recommendations (
click here). [*Energy]

Thursday, June 07, 2007

G-8 Says GHG Must Stop Rising; Followed By Reductions

Jun 7: At the G-8 meeting being held in Heiligendamm, Germany from June 6-8, the member countries adopted a Summit Declaration that includes major provisions on climate change and energy efficiency and energy security. The forum brings together heads of state from the G-8 countries (Britain, France, Germany, Italy, Russia, the United States, Canada and Japan) plus 5 countries (China, India, Mexico, Brazil and South Africa), which together produce 75 percent of the world’s greenhouse gases.The European Commission and United Nations are also represented at the meetings.

As part of the 38-page Summit Declaration document entitled, Growth and Responsibility In The World Economy, the G-8 countries addressed the issue of climate change by saying, "Since we met in Gleneagles, science has more clearly demonstrated that climate change is a long term challenge that has the potential to seriously damage our natural environment and the global economy. We firmly agree that resolute and concerted international action is urgently needed in order to reduce global greenhouse gas emissions and increase energy security. Tackling climate change is a shared responsibility of all, and can and must be undertaken in a way that supports growth in developing, emerging and industrialized economies, while avoiding economic distortions...

"We recognize the important opportunities offered by effective action addressing climate change, in particular for innovation, technological development as well as poverty reduction... we are committed to the further development of the international regime to combat climate change, especially in the run-up to the UN Climate Change Conference in Indonesia at the end of this year...

"Addressing the challenge of energy security will require unprecedented international cooperation in several areas, including market transparency, enhancing energy efficiency, diversifying energy supplies and developing and deploying new and transformational technologies... we herewith strongly reaffirm our commitment to Global Energy Security Principles... Improving energy efficiency worldwide is the fastest, the most sustainable and the cheapest way to reduce greenhouse gas [GHG] emissions and enhance energy security.

Noting the recent UN Intergovernmental Panel on Climate Change (IPCC) reports, the G-8 nations said,"We are therefore committed to taking strong and early action to tackle climate change in order to stabilize greenhouse gas concentrations at a level that would prevent dangerous anthropogenic interference with the climate system. Taking into account the scientific knowledge as represented in the recent IPCC reports, global greenhouse gas emissions must stop rising, followed by substantial global emission reductions. In setting a global goal for emissions reductions in the process we have agreed today involving all major emitters, we will consider seriously the decisions made by the European Union, Canada and Japan which include at least a halving of global emissions by 2050. We commit to achieving these goals and invite the major emerging economies to join us in this endeavor...

"We stress that further action should be based on the UNFCCC principle of common but differentiated responsibilities and respective capabilities. We reaffirm, as G8 leaders, our responsibility to act. We acknowledge the continuing leadership role that developed economies have to play in any future climate change efforts to reduce global emissions, so that all countries undertake effective climate commitments tailored to their particular situations. We recognize however, that the efforts of developed economies will not be sufficient and that new approaches for contributions by other countries are needed. Against this background, we invite notably the emerging economies to address the increase in their emissions by reducing the carbon intensity of their economic development."

The countries also agreed that the UN climate process is the appropriate forum for negotiating future global action on climate change, and said they are committed "to moving forward" by participating in the UN Climate Change Conference in Indonesia in December 2007, "with a view to achieving a comprehensive post 2012-agreement (post Kyoto-agreement) that should include all major emitters." The declaration further details the countries' positions on Technology, Market Mechanisms, Reducing Emissions by Curbing Deforestation, Adapting to Climate Change, Biodiversity, and a major section on Energy Efficiency; where they indicated energy efficiency policies could contribute to 80% of avoided greenhouse gases while substantially increasing security of supply. Under Energy Efficiency they agreed to principles on Sustainable Buildings, Transportation, Power Generation, and Energy Diversification.

Access the 38-page Summit Declaration (
click here). Access the G-8 Summit German website for additional information (click here). Access a June 6 press briefing including Jim Connaughton, Council on Environmental Quality, with comments on the G-8 meeting (click here). Access links to various media reports on the G-8 climate change action (click here). [*Climate, *Energy]