Readers & Subscribers Note: WIMS will not be publishing the week of the Thanksgiving Day holiday (Nov. 24 through Nov. 28), due to family holiday plans. We will resume publication on December 1, 2008.

Dingell Out; Waxman Will Lead Energy & Commerce Committee

Nov 20: Congressman John D. Dingell (D-MI) has lost his Chairmanship of the powerful House Committee on Energy and Commerce. Representative Henry Waxman (D-CA), current Chair of the House Committee on Oversight and Government Reform won approval from Democratic colleagues in a 137-122 vote to unseat Dingell. On November 5, Waxman (D-CA) announced that he would be seeking the Chairmanship of the Committee [See WIMS 11/13/8].

Dingell is the longest serving current Member of the House and second longest serving Member in the nation’s history. Dingell has been Chair of the Energy and Commerce Committee for 28-years and has represented Monroe County and parts of Wayne and Washtenaw Counties since 1955. Dingell was born July 8, 1926 in Colorado Springs, Colorado. Over the last five decades, Congressman Dingell has championed some of the best known laws protecting our health and our environment, as well as the rights of workers and consumers including the 1990 Clean Air Act the Endangered Species Act. Most recently, Dingell and Rick Boucher (D-VA) released their "discussion draft" of climate change legislation that has been two years in the making [See WIMS 10/7/08]. An effort which many environmental organizations said was short of what was needed to seriously address the global warming issue.

Representative Waxman represents California's 30th Congressional District, which includes the complete cities of Santa Monica, Beverly Hills, Agoura Hills, Calabasas, Hidden Hills, Malibu, Westlake Village and West Hollywood, as well as such areas of Los Angeles as Beverly-Fairfax, Pacific Palisades, Brentwood, Beverlywood, Topanga, Agoura, Chatsworth, West Hills, Canoga Park, and Westwood. Waxman is regarded as a leader on health and environmental issues and during this past year has conducted extensive investigations of U.S. EPA's denial of California's petition to regulate greenhouse gas emissions from motor vehicles; EPA's revision of the national ambient air quality standards for ozone and the President's use of executive privilege to withhold thousands of pages of documents. Waxman introduced the Safe Climate Act of 2006 [See WIMS 6/20/06] and was also one of the primary authors of the 1990 Clean Air Act.

Waxman's Safe Climate Act would freeze the level of emissions in 2010; gradually reduced by 2% each year through 2020, and then reduced by 5% each year through 2050. The Act would achieve the targets through a flexible economy-wide cap-and-trade program for greenhouse gas emissions, along with measures to advance technology and reduce emissions through renewable energy, energy efficiency, and cleaner cars.

The Natural Resources Defense Council (NRDC) issued a statement saying, “Chairman Waxman has been a leader on global warming for many years, and we look forward to working closely with him in this new role. Our nation faces many challenges, including the climate crisis, and Congressman Waxman understands that we can’t delay in taking on these issues. After many years of working with Congressman Dingell on toxics, endangered species, and EPA-related issues, we recognize his important contributions. We will continue to work with him and others in Congress on our nation’s most pressing environmental, energy and global warming challenges.”

Access the Energy & Commerce Committee website (click here). Access Representative Waxman's website (click here). Access Representative Dingell's website (click here). Access a release from NRDC (click here). Access various news reports on the Waxman victory (click here).

Major Corporations & NGOs Call For Cap-And-Trade Legislation

Nov 18: The U.S. Climate Action Partnership (USCAP), a coalition of 26 major corporations and 6 non-profit environmental and conservation organizations [See WIMS 2/13/07], held a press conference in Washington, DC to make the economic case for cap-and-trade legislation. Ironically, in a pre-recorded video message aired the same day at the Governors' Global Climate Summit in Los Angeles, President-Elect Barack Obama promised that under his leadership, the U.S. will establish a Federal cap and trade system with "strong annual targets that set us on a course to reduce emission to their 1990 levels by 2020 and reduce them an additional 80% by 2050." [See WIMS 11/18/08].

The coalition called on Congress and the incoming Obama Administration to pass meaningful climate protection legislation next year despite the difficult economic conditions, pointing to the economic benefits and job creation that will result from taking such action. The call for action from USCAP echoed a similar call on November 11, when more than 130 leading investors, representing assets worth $6.4 trillion, issued a joint statement sent to Heads of State and climate negotiators, calling for a strong, binding framework to succeed the Kyoto Protocol, despite the financial crisis [See WIMS 11/13/08]

USCAP said that cap-and-trade legislation is urgently needed to prevent the serious impacts of climate change. They said, "While the magnitude of needed reductions are not free of costs, legislation is necessary to spur innovation in green technologies that will create jobs, increase economic activity and provide the foundation for a vibrant, low-carbon economy." James Rogers, CEO of Duke Energy said, “Investment in new technologies and the infrastructure needed for a low-carbon economy are effective ways to generate the jobs and economic growth the U.S. needs to address the current economic crisis. We must position the U.S. to succeed in the new low-carbon, global economy and this is the best way to accomplish that.”

USCAP includes the following corporations and environmental NGOs: Alcoa, AIG, Boston Scientific, BP America, Caterpillar, ConocoPhillips, Chrysler, John Deere, Dow, Duke Energy, DuPont, Environmental Defense Fund, Exelon, Ford, FPL Group, GE, GM, Johnson & Johnson, Marsh, National Wildlife Federation, Natural Resources Defense Council, NRG Energy, The Nature Conservancy, PepsiCo, Pew Center on Global Climate Change, PG&E, PNM Resources, Rio Tinto, Shell, Siemens, World Resources Institute, and Xerox.

USCAP has taken a leadership role in support of climate protection legislation, calling for reductions in greenhouse gas (GHG) emissions by 2050 that are 60 percent to 80 percent below today’s levels. Its initial report on addressing climate change -- “A Call for Action” -- was issued in January 2007 and noted that each year of delay in controlling emissions increases the risk of consequences that could necessitate even steeper reductions in the future at potentially greater economic cost and social disruption. The groups said, "The cost of inaction is also a significant concern. The longer the U.S. waits to implement a cap-and-trade program, the more ground it will cede to other economies that are already working on these new green technologies."

Jeff Sterba, CEO of PNM Resources said, "One of the main barriers to realizing economic benefits from reducing carbon emissions has been the uncertainty surrounding how this will be accomplished. Americans want clean energy, and we can produce it if there is a federal roadmap on carbon emissions. Only comprehensive greenhouse gas legislation -- one that recognizes the link between energy, the environment, the economy and security -- can bring us the clean, affordable and secure energy future we so desperately need."

Access a release from USCAP with further details (click here). Access a 3-page summary of USCAP member statements (click here). Access the USCAP website for more information (click here). [*Climate]

President-Elect Obama Addresses Governors' Global Climate Summit

Nov 18: In Los Angeles , Governor Arnold Schwarzenegger welcomed more than 800 attendees from more than 50 states, provinces and countries to the Governors' Global Climate Summit. Following the Governor's opening remarks, a pre-recorded video message aired from President-Elect Barack Obama on global warming and supporting the states that have taken decisive action to address this urgent issue. The Governors' Summit brings together U.S. and international leaders to develop cooperative partnerships and promote collaborative actions needed to combat climate change. The forum also provides an opportunity for states and provinces to partner to reduce emissions, to grow their green economies and to influence the position their national governments take in the next global agreement on climate change.

The U.S. governors co-hosting the event and who were in attendance at the summit are Florida Governor Charlie Crist; Illinois Governor Rod Blagojevich; Kansas Governor Kathleen Sebelius; and Wisconsin Governor Jim Doyle. Governor Schwarzenegger said, "When California passed its global warming law two years ago, we were out there on an island, so we started forming partnerships everywhere we could. We teamed up with Great Britain, the Canadian provinces, the Western and Northeastern states and with states like those of my co hosts-Illinois, Florida, Kansas, Wisconsin and more. And right here, for the first time, we have officials from China, India, Mexico, Brazil, Indonesia and across the world in the same summit, working toward the same goal of reducing greenhouse gas emissions and growing green economies in our own backyards."

In a video address to the Summit's attendees, President-elect Obama emphasized his enthusiasm for the Poznan, Poland Conference and promised that his administration would mark a "new chapter in American leadership on climate change." He said, "Few challenges facing America -- and the world -- are more urgent than combating climate change. Many of you are working to confront this challenge....but too often, Washington has failed to show the same kind of leadership. That will change when I take office.

"Let me also say a special word to the delegates from around the world who will gather in Poland next month: your work is vital to the planet. While I won’t be President at the time of your meeting and while the United States has only one President at a time, I’ve asked Members of Congress who are attending the conference as observers to report back to me on what they learn there."

He also said, "Climate change and our dependence on foreign oil, if left unaddressed will continue to weaken our economy and threaten our national security." He said the U.S. will establish a federal cap and trade system with "strong annual targets that set us on a course to reduce emission to their 1990 levels by 2020 and reduce them an additional 80% by 2050." He called for investments of "$15 billion each year" to assist private efforts to develop a clean energy future. He said, ". . . we'll tap nuclear power while making sure its safe, and we will develop clean coal technology." He said he looks forward to working with "all nations to meet this challenge in the coming year." He said when he takes office the United States will "engage vigorously" in the climate change negotiations and "help lead the world in a new era of global cooperation on climate change."

The Summit emphasizes a "sectoral" approach to reducing greenhouse gas emissions with sector-specific breakout sessions focusing on specific actions in the following industries: forestry; cement, iron, steel and aluminum; energy; and transportation. Together, these sectors account for the vast majority of global greenhouse gas emissions. According to a release, the approach is considered a "promising mechanism to support the actions of developing nations with technical and financial assistance from developed nations."

With representatives from the world's biggest greenhouse gas emitters, the Governors' Summit provides "an important forum to discuss solutions to meeting our mutual environmental goals while creating an economic advantage for states, provinces and nations that take early and aggressive action." Showcasing the economic success of California's environmental leadership, the Governors' Summit will feature more than 30 clean-tech companies displaying innovative green technologies including electric cars, solar-powered flashlights and non-toxic cleaning products during the two-day Climate Solutions Showcase.

On September 17, in advance of the Conference, Governor Arnold Schwarzenegger signed Executive Order S-14-08 (EO) to streamline California's renewable energy project approval process and increase the state's Renewable Energy Standard to 33 percent renewable power by 2020. The Governor said, "I am proposing we set the most aggressive target in the nation for renewable energy -- 33 percent by the year 2020 -- that's a third of our energy from sources like solar, wind and geothermal. But we won't meet that goal doing business as usual, where environmental regulations are holding up environmental progress in some cases. This executive order will clear the red tape for renewable projects and streamline the permitting and siting of new plants and transmission lines. With this investment in renewable energy projects, California has a bright energy future ahead that will help us fight climate change while driving our state's green economy."

Access a release from Governor Schwarzenegger (click here). Access a link to a high quality version of the Obama webcast released from the transition office (click here). Access the Conference website for complete details (click here). Access a live webcast and subsequent archival video and podcasts of all events in the International Ballroom (click here). Access a release on the Governor's executive order including the full text and related links (click here). [*Climate]

FWS Notices New Wilderness Wildlife Refuge Stewardship Policy

Nov 17: The U.S. Fish and Wildlife Service (FWS) published a notice in the Federal Register [73 FR 67876-67882] announcing an updated and revised Wilderness Stewardship Policy which they say will improve the National Wildlife Refuge System's stewardship of lands designated as wilderness under the Wilderness Act of 1964. The policy is the Service's first revision since the original Wilderness Stewardship Policy was issued in 1986.

FWS said the new Wilderness Stewardship Policy clarifies that refuge visitors may use only non-motorized and non-mechanized equipment in designated wilderness areas while hunting, fishing or enjoying other appropriate wildlife-dependent recreational opportunities. In addition, it provides Service managers with the first-ever guidance on wilderness review of Refuge System lands to help them determine whether those lands should be recommended for wilderness designation. Such reviews are primarily conducted during the Comprehensive Conservation Planning process, which establishes long-term management objectives for each refuge.

Fish and Wildlife Service Director H. Dale Hall said, "Our Wilderness Stewardship Policy reconfirms the Service's commitment to protecting and preserving the wilderness resource while accomplishing the mission of the Refuge System. This policy will preserve the wild and natural character of wilderness within the Refuge System while providing opportunities for the public to enjoy the solitude of these special areas." Among its many other provisions, the Wilderness Stewardship Policy also provides guidance on development of wilderness stewardship plans and clarifies when prohibited uses may be necessary for wilderness preservation.

The Wilderness Act of 1964 established the National Wilderness Preservation System and a process for Federal land management agencies -- including the Service -- to recommend wilderness areas to Congress. Only Congress has the authority to designate lands and water as wilderness. Congress has designated more than 20 million acres on 63 national wildlife refuges as wilderness. Nearly 20 percent of the 107-million-acre National Wilderness Preservation System is on Refuge System lands.

FWS said the updated Wilderness Stewardship Policy will ensure consistency with several new management policies established in recent years -- including those governing the Mission, Goals and Refuge Purposes, Appropriate Refuge Uses, and Wildlife-Dependent Recreation -- as well as the Wilderness Act of 1964 and the National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act. It also reflects other developments in the policy and science of managing the Refuge System and wilderness.

According to a release from FWS, some provisions of the policy are: (1) The policy affirms that the Refuge System generally will not modify ecosystems, such as creating new impoundments, species population levels or natural processes in refuge wilderness unless doing so maintains or restores biological integrity, diversity or environmental health that has been degraded or is necessary to protect or recover threatened or endangered species. (2) The policy guides the determination of whether a proposed refuge management activity, such as protecting habitat for a threatened or endangered species, constitutes the minimum requirement for managing a refuge as wilderness.

(3) The policy permits appropriate recreational uses in wilderness areas in accordance with the Refuge Improvement Act, if such wildlife-dependent recreation (hunting, fishing, wildlife observation and photography, environmental education and interpretation) is non-motorized, non-mechanized and compatible with the refuge purpose and mission. (4) The policy describes the process that the Refuge System follows in conducting wilderness reviews in accordance with the refuge planning process as outlined in the planning policy. (5) The policy addresses special provisions of the Alaska National Interest Lands Conservation Act for wilderness stewardship in Alaska.

Congress has designated 75 wilderness areas on 63 units of the National Wildlife Refuge System in 26 states. About 90 per cent -- or 18.6 million acres -- of Refuge System wilderness is in Alaska. The remaining 2.5 million wilderness acres are in the lower 48 states. This represents approximately 22% of the National Wilderness Preservation System (over 106 million acres), that the Refuge System administers in coordination with the Bureau of Land Management, the National Park Service, and the Forest Service. The largest wilderness area in the Refuge System is 8 million acres of the Arctic National Wildlife Refuge (ANWR).

Access a release from FWS (click here). Access the FR announcement (click here). Access the new Wilderness Stewardship Policy (click here). Access the National Wildlife Refuge System website for links to additional information (click here). Access the Wilderness Information Network for more information (click here). [*Land]

EPA Appeals Board Sets Stage For CO2 Pollutant Regulation

Nov 13: In a move that Sierra Club says "signals the start of the our clean energy future," the U.S. EPA's Environmental Appeals Board (EAB) ruled that EPA had no valid reason for refusing to limit from new coal-fired power plants the carbon dioxide emissions that cause global warming. The decision means that all new and proposed coal plants nationwide must go back and address their carbon dioxide emissions. In the case, Sierra Club sought review of a prevention of significant deterioration (PSD) permit that EPA Region 8 issued to Deseret Power Electric Cooperative on August 30, 2007. The permit would authorize Deseret to construct a new waste-coal-fired electric generating unit at Deseret’s existing Bonanza Power Plant, located near Bonanza, Utah.

The highly controversial case involved interventions by National Association of Manufacturers (NAM), the American Petroleum Institute and U.S. Chamber of Commerce who joined in filing the brief in the appeals supporting construction of the new power plant and arguing the U.S. EPA's permitting process should not be turned into a regulatory tool to control carbon dioxide (CO2) emissions [See WIMS 3/26/08].

Joanne Spalding, Sierra Club Senior Attorney who argued the case said, “Today’s decision opens the way for meaningful action to fight global warming and is a major step in bringing about a clean energy economy. This is one more sign that we must begin repowering, refueling and rebuilding America. The EAB rejected every Bush Administration excuse for failing to regulate the largest source of greenhouse gases in the United States. This decision gives the Obama Administration a clean slate to begin building our clean energy economy for the 21st century.”

The Deseret Power facility has also been the subject of an investigation of the House Committee on Oversight and Government Concern, Chaired by Representative Henry Waxman (D-CA) which held a hearing on November 8, 2007, regarding EPA Approval of New Power Plants: Failure to Address Global Warming Pollutants. The hearing examined the implications of U.S. EPA's refusal to consider the global warming effects of a coal-fired power plant’s greenhouse gas emissions in a recent permitting decision in light of the recent U.S. Supreme Court decision in Massachusetts v. EPA [See WIMS 4/2/07]. On March 11, 2008, Waxman introduced H.R. 5575, to require new coal-fired electric generating units to use state-of-the-art control technology to capture and permanently sequester carbon dioxide emissions.

The Sierra Club went before the Environmental Appeals Board in May of 2008 to request that the air permit for Deseret Power Electric Cooperative’s proposed waste coal-fired power plant be overturned because it failed to require any controls on carbon dioxide pollution. Deseret Power’s 110 MW Bonanza plant would have emitted 3.37 million tons of carbon dioxide each year.

Bruce Nilles, Director of the Sierra Club’s National Coal Campaign said, “Coal plants emit 30% of our nation’s global warming pollution. Building new coal plants without controlling their carbon emissions could wipe out all of the other efforts being undertaken by cities, states and communities across the country. Everyone has a role to play and it’s time that the coal industry did its part and started living up to its clean coal rhetoric. Instead of pouring good money after bad trying to fix old coal technology, investors should be looking to wind, solar and energy efficiency technologies that are going to power the economy, create jobs, and help the climate recover.”

The Environmental Appeals Board said the Sierra Club petition raised two issues. First, Sierra Club argues that the Region’s permitting decision violates the public participation provisions of Clean Air Act (CAA) section 165(a)(2), which require the Agency to consider “alternatives” to the proposed facility. Sierra Club argued that the Region erred by failing to consider alternatives to the proposed facility. Second, Sierra Club argues that the Region violated CAA sections 165(a)(4) and 169(3) by failing to apply best available control technology (BACT), to limit carbon dioxide (CO2) emissions from the facility. Sierra Club pointed to the Supreme Court’s decision in Massachusetts v. EPA, contending that because CO2 is an air pollutant, the permit violates the requirement to include a BACT emissions limit for “each pollutant subject to regulation under CAA.

The Appeals Board indicated that it, ". . . denies review of the Region’s alleged failure to consider alternatives to the proposed facility, but remands the permit to the Region for it to reconsider whether to impose a CO2 BACT limit and to develop an adequate record for its decision."

Clarifying further, the Appeals Board said, "Having determined that the Region has discretion under the statute to interpret the term 'subject to regulation under this Act' and that the Region wrongly believed that its discretion was limited by an historical Agency interpretation, the Board remands the permit to the Region for it to reconsider whether to impose a CO2 BACT limit and to develop an adequate record for its decision. In remanding this permit to the Region for reconsideration of its conclusions regarding application of BACT to limit CO2 emissions, the Board recognizes that this is an issue of national scope that has implications far beyond this individual permitting proceeding. The Board suggests that the Region consider whether interested persons, as well as the Agency, would be better served by the Agency addressing the interpretation of the phrase 'subject to regulation under this Act' in the context of an action of nationwide scope, rather than through this specific permitting proceeding."

Access a release from Sierra Club with links to additional information (click here). Access the Environmental Appeals Board 69-page Deseret Power decision (click here). Access the Environmental Appeals Board Deseret Power website with links to all of the extensive briefs and filings in the case (click here). Access the SourceWatch Coal Issues Portal (click here). Access the Sierra Club data (click here). [*Energy, *Air, *Climate]

Investors Call For Climate Agreement Despite Financial Crisis

Nov 11: More than 130 leading investors, representing assets worth $6.4 trillion, warned world leaders that any global agreement on climate change must be strong and binding to guarantee necessary financing for global emissions reduction and adaptation efforts, and that the financial crisis should not delay efforts to address rising global temperatures. In a joint Statement sent to Heads of State and climate negotiators, investors called for a strong, binding framework to succeed the Kyoto Protocol, warning that clear and long-term policy signals are essential if investors are to allocate the huge amounts of private capital required to fund the transition to a low-carbon economy.

The Statement was sent by some of the world’s largest asset managers and pension funds, collectively representing $6.4 trillion in assets. It was coordinated by three leading investor groups on climate change -- (the US-based Investor Network on Climate Risk (INCR), the European Institutional Investors Group on Climate Change (IIGCC), and the Investors Group on Climate Change (IGCC) in Australia and New Zealand). Peter Dunscombe, Chairman, Institutional Investors Group on Climate Change said, "We are urging world leaders to provide the policy framework that will help investors drive the financial flows necessary to address this urgent crisis. A strong global agreement will provide companies, governments and investors with the incentives to act quickly and efficiently in tackling climate change”.

According to a release, the investors believe that the downturn in the global economy should not delay an international agreement on climate change, and that the agreement must be concluded by the end of 2009. As investors with diversified portfolios, they are concerned about the impacts of climate change on investments in individual companies and other asset classes such as property and the global economy as a whole. Mindy Lubber, Ceres President and Director of the Investor Network on Climate Risk said, “The climate crisis is a multi-generational challenge that requires strong national and international policies immediately. World leaders must shun the excuse that it is too expensive to act to curb global warming. It is too expensive not to act.”

The Statement outlines in detail what investors are looking for from policymakers in order to allocate capital in a way that supports both the transformation to a low carbon economy and the development of adaptation measures. The investors are calling for: A binding global target for reducing greenhouse gas emission reductions informed by the latest available scientific evidence for avoiding dangerous climate change (which suggests that global greenhouse gas emissions must decline by 50-85% by 2050 against a base year of 2000); Long and medium-term emission reduction targets for developed countries which will be backed up by effective national action plans; Contributions from developing countries, initially in the form of national action plans focused on energy efficiency commitments, but with the ultimate aim of absolute emission reductions;

"Continuity in the legally binding framework underpinning the carbon markets and provisions for an expanded and more liquid global carbon market; A review, reform, and expansion of the Clean Development Mechanism; Clear measures to reverse deforestation and value forests as carbon sinks; A commitment to adaptation in order to prepare for, and respond to the physical impacts of climate change."

Access a joint release from the three groups (click here). Access the letter to Heads of State (click here). Access the complete Investor Statement (click here). [*Climate]

High Court Rules In Winter (Navy) v. NRDC On Sonar Issues

Nov 12: In the U.S. Supreme Court, the case of Donald C. Winter, Secretary of the Navy, et al. v. Natural Resources Defense Council, Inc., et al., [NRDC] Case No. 07–1239 [See WIMS 10/9/08]. The case was appealed from the U.S. Court of Appeals, Ninth Circuit [See WIMS 3/3/08]. In this complicated split decision, Justice Roberts delivered the opinion of the Court, in which Justices Scalia, Kennedy, Thomas and Alito joined. Justice Breyer filed an opinion concurring in part and dissenting in part, in which Justice Stevens joined as to Part I. Justice Ginsburg filed a dissenting opinion in which Justice Souter joined.

The questions presented that were stated by the High Court are: The district court found a likelihood that the Navy failed to comply with the National Environmental Policy Act (NEPA) and preliminarily enjoined the Navy’s use of midfrequency active (MFA) sonar during training exercises that prepare Navy strike groups for worldwide deployment. The Chief of Naval Operations concluded that the injunction unacceptably risks the training of naval forces for deployment to high threat areas overseas, and the President of the United States determined that the use of MFA sonar during these exercises is “essential to national security.” The Council on Environmental Quality (CEQ), applying a longstanding regulation, accordingly found “emergency circumstances” for complying with NEPA without completing an environmental impact statement. The Ninth Circuit nevertheless sustained the district court’s conclusion that no “emergency circumstances” were present and affirmed the preliminary injunction.

The questions presented are: 1. Whether CEQ permissibly construed its own regulation in finding “emergency circumstances?”2. Whether, in any event, the preliminary injunction, based on a preliminary finding that the Navy had not satisfied NEPA’s procedural requirements, is inconsistent with established equitable principles limiting discretionary injunctive relief.

The majority opinion of the High Court held that the Court of Appeals was wrong in upholding a preliminary injunction imposing restrictions on the Navy’s sonar training and reversed and vacated its decision. The majority noted that even the Appeals Court acknowledged that “the record contains no evidence that marine mammals have been harmed” by the Navy’s exercises. In its opinion, the majority said, "The use of MFA [“mid-frequency active”] sonar during these exercises is 'mission-critical,' given that MFA sonar is the only proven method of identifying submerged diesel-electric submarines operating on battery power."

The Supreme Court said, "The Navy emphasizes that it has used MFA sonar during training exercises in SOCAL [southern California] for 40 years, without a single documented sonar-related injury to any marine mammal.The Navy asserts that, at most, MFA sonar may cause temporary hearing loss or brief disruptions of marine mammals’ behavioral patterns."

The Supreme Court ruled, "We agree with the Navy that the Ninth Circuit’s 'possibility' standard is too lenient. Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. . . We also find it pertinent that this is not a case in which the defendant is conducting a new type of activity with completely unknown effects on the environment. . . the plaintiffs are seeking to enjoin -- or substantially restrict -- training exercises that have been taking place in SOCAL for the last 40 years."

The majority ruled further, "even if plaintiffs have shown irreparable injury from the Navy’s training exercises, any such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors. A proper consideration of these factors alone requires denial of the requested injunctive relief. . ." Finally, the Supreme Court majority says, "We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines. . ."

The High Court also commented on the dissenting opinions in a footnote saying, "As to the injunction, the dissent barely mentions the Navy’s interests. . . We find that those interests, and the documented risks to national security, clearly outweigh the harm on the other side of the balance. We agree with much of Justice Breyer's analysis. . . (opinion concurring in part and dissenting in part), but disagree with his conclusion that the modified conditions imposed by the stay order should remain in force until the Navy completes its EIS . . ."

NRDC issued a release and further information on the decision. Joel Reynolds, senior attorney and director of NRDC’s marine mammal program said, “The essential ruling today is that the lower courts did not properly balance the competing interests in issuing and upholding the injunction. However, this is a narrow ruling that leaves in place four of the injunction’s six mitigation measures that protect marine mammals from harm caused by high-intensity sonar during training. The Supreme Court eliminated two of the injunction’s mitigation measures out of deference to the Navy’s claims that they would impinge on training. The court did not upset the underlying determination that the Navy likely violated the law by failing to prepare an environmental impact statement.” Richard Kendall, NRDC co-counsel said, “It is gratifying that the court did not accept the Navy’s expansive claims of executive power, and that two thirds of the injunction remain in place." NRDC said, "The Navy acknowledges that sonar can be deadly to marine mammals, and that the exercises at issue would 'take' an estimated 170,000 marine mammals, including causing permanent injury to more than 500 whales and temporary deafness to at least 8,000 whales."

Access the complete opinion and dissents (click here). Access the Supreme Court Docket for the case (click here). Access the oral argument transcript (click here). Access links to briefs filed in the case (click here). Access the opinion of the Ninth Circuit (click here). Access a release from NRDC with links to background information (click here). [*Wildlife, *Water]

GAO Report On Speed Limit & Energy Conservation

Readers Note: WIMS will not be publishing tomorrow,
November 11, 2008, in observance of Veterans Day.

Nov 10: The U.S. Government Accountability Office (GAO) has released a letter report entitled, Energy Efficiency: Potential Fuel Savings Generated by a National Speed Limit Would Be Influenced by Many Other Factors (GAO-09-153R, November 07, 2008). The report was requested by Senator John Warner (R-VA), the Ranking Member on the Subcommittee on Private Sector and Consumer Solutions to Global Warming and Wildlife Protection of the Committee on Environment and Public Works.

GAO recounts that Congress previously used a national speed limit as an approach to conserve fuel when, in 1974, it provided for a national 55 mile per hour (mph) speed limit to reduce gasoline consumption in response to the 1973 Arab oil embargo. The law prohibited federal funding of certain highway projects in any state with a maximum speed limit in excess of 55 mph. In 1987, Congress allowed states to raise the maximum speed limit to 65 mph on rural interstate routes. In 1995, the 55 mph speed limit was repealed. Since then, states have been free to set speed limits without the loss of federal highway funds. Congress expressed interest in obtaining information on using a national speed limit to reduce fuel consumption. In response to the request, we reviewed existing literature and consulted knowledgeable stakeholders on the following: (1) What is the relationship between speed and the fuel economy of vehicles? (2) How might reducing the speed limit affect fuel use?

For a vehicle traveling at high speed, reducing its speed increases fuel economy. In general, at speeds over approximately 35 to 45 mph, if a vehicle reduces its speed by 5 mph, its fuel economy can increase by about 5 to 10 percent, because air resistance, or drag, increases exponentially as a vehicle goes faster. Conversely, air resistance diminishes more rapidly as a vehicle slows down, thus increasing its fuel economy. According to existing literature and knowledgeable stakeholders, there is no single speed that optimizes fuel economy for all vehicles.

Optimal speed for fuel economy for individual vehicles ranges widely, but is generally between 30 and 60 mph, depending on a vehicle's characteristics. However, a vehicle's fuel economy also depends on other factors besides air resistance. Factors that enhance fuel economy include engine efficiency enhancements (e.g., fuel injection), electronic and computer controls, more efficient transmissions, and hybrid technology. However, other factors decrease fuel economy. In general, over the last 2 decades, fuel economy gains resulting from advances in automotive technologies have largely been offset by increases in vehicle weight, performance, and accessory loads.

Specifically, vehicles are heavier than in the past, because they are larger and include more technologies. Further, increased accessory loads, such as air conditioning and electronics, have also reduced fuel economy. For example, average vehicle weight has increased from 3,220 pounds in 1987 to 4,117 in 2008, according to U.S. EPA. According to EPA, from 1987 through 2004, on a fleetwide basis, technology innovation was utilized exclusively to support market-driven attributes other than fuel economy, such as performance. Beginning in 2005, however, according to EPA's analysis of fuel economy trends, technology has been used to increase both performance and fuel economy, while keeping vehicle weight relatively constant.

Lowering speed limits can potentially reduce total fuel consumption. According to literature we reviewed examining the impact of the national speed limit enacted in 1974, the estimated fuel savings resulting from the 55 mph national speed limit ranged from 0.2 to 3 percent of annual gasoline consumption. According to DOE's 2008 estimate, a national speed limit of 55 mph could yield possible savings of 175,000 to 275,000 barrels of oil per day. This range is consistent with estimates of the impact of the past national speed limit.

According to the Energy Information Administration (EIA), total U.S. consumption of petroleum for 2007 was about 21 million barrels of oil per day. However, other factors, including drivers' compliance with a reduced speed limit, would affect the actual impact of a lower speed limit on the amount of fuel savings. Reducing the speed limit does not necessarily mean that drivers will comply. Moreover, a national speed limit would not affect many of the miles driven in the United States, such as those in urban areas, where most vehicles are already traveling at lower speeds due to lower speed limits or congestion.

Other external conditions also affect fuel economy, such as road conditions, including whether a road is steep or flat, and weather conditions, including wind speed and direction. Finally, other aspects of driver behavior may also affect fuel consumption. The speed limit is only one tool among many for potentially conserving fuel. Certain realities, such as congestion on our nation's roads, how people drive and maintain their vehicles, and emerging technologies, are other potential considerations as the nation looks for options to conserve fuel.

Access the brief 8-page report (click here). [*Energy/Efficiency]

"Green Recovery" Report Author Responds To Critic

Nov 7: On September 9, The Center for American Progress (CAP) and the Political Economy Research Institute (PERI) released a 42-page report entitled, Green Recovery: A Program to Create Good Jobs and Start Building a Low-Carbon Economy [See WIMS 9/10/08]. According to the organizations, "The report outlines a green economic recovery program to strengthen the U.S. economy over the next two years and leave it in a better position for sustainable prosperity." CAP is headed by John Podesta, former chief of staff to President Bill Clinton and professor at the Georgetown University Center of Law, who is now co-chairman of President-elect Barack Obama’s transition team.

On November 5, in a "WebMemo" entitled, Impact of CO2 Restrictions on Employment and Income: Green Jobs or Gone Jobs?, David Kreutzer, Ph.D., with the Heritage Foundation criticized the report and two others claiming that policy initiatives to advance a green investment agenda necessarily hurt economic growth and employment. Kreutzer said, "The clear political failure of the Lieberman–Warner bill last spring shows that support for global–warming legislation wanes considerably when the extraordinary costs are compared to the almost insignificant benefits. In response, those pushing restrictions on carbon dioxide (CO2) have tried to repackage global warming legislation as jobs bills. As appealing as the repackaging seems on the surface (lots of high–paid, high–tech workers in lab coats), the support for these claims collapses once it is examined."

Kreutzer concludes, "When all is said and done, restricting CO2 cuts energy, income, and jobs. Pretending that breaking windows creates employment may make choosing among alternatives easier, but it leads to bad policy."

Robert Pollin of CAP and a co-author of the Green Recovery report has responded to the critique with a detailed response. According to Pollin, "Kreutzer claims that 'Green Recovery' is able to show that green investments produce positive job effects only by making an elementary error in logic. He claims we count the jobs that are created by spending a given amount of money, for example, $100, on green investments, but we ignore the jobs that are lost when $100 in new taxes have to be raised to pay for the green investments.

"Kreutzer reaches this conclusion by ignoring all the basic arguments in 'Green Recovery.' Spending $1 million on green investments, for example, will create about 17 jobs within the U.S. economy, while spending that same amount within the oil industry will create about 4.5 jobs. As a short-term stimulus program -- in which an increase in spending is not offset by any corresponding rise in taxes -- a $1 million increase in spending on green investments will therefore produce 17 new jobs, with no job losses elsewhere in the economy.

"Over the longer term, a $1 million increase in green investment spending that is offset by a $1 million reduction in spending within the oil industry will still produce a net increase of 12.5 jobs. Investments in energy efficiency will also reduce energy costs now. Investments in renewable energy are bringing these energy sources into cost competitiveness with fossil fuels. Continued investments in conventional fossil fuels also neglect the economic costs of global warming." Pollin then summarizes the six basic arguments in Green Recovery that underpin the report findings.

The Green Recovery report includes individual state supplements for: AK, AZ, AR, CA, CO, FL, IL, IN, IA, KS, ME, MD, MA, MI, MN, MO, MT, NE, NV, NH, NJ, NM, NY, NC, ND, OH, OR, PA, SC, TN, VA, WA, WV, and WI.

Access the Heritage Foundation critique (click here). Access the critique response from CAP (click here). Access an overview from CAP and link to the complete report and state reports (click here). Access more information from PERI (click here). [*Energy, *Climate]

DOE Issues Advanced Tech Vehicle Incentive Rule

Nov 5: U.S. Department of Energy (DOE) issued an Interim Final Rule that implements the Advanced Technology Vehicles Manufacturing Incentive Program authorized by section 136 of the Energy Independence and Security Act of 2007 (EISA). The FY09 Continuing Resolution provided DOE with funding to make up to $25 billion in direct loans to eligible applicants for the costs of reequipping, expanding, and establishing manufacturing facilities in the United States to produce advanced technology vehicles, and components for such vehicles. The vehicles must provide "meaningful improvements" in fuel economy performance. In the FY09 Continuing Resolution, Congress required DOE to issue to issue interim final regulations for the section 136 program within 60 days -- that is, by November 29.

DOE Secretary Samuel Bodman said, "Issuance of this interim final rule opens the process for automakers and component manufacturers to immediately apply for government funding under the Advanced Technology Vehicles Manufacturing Incentive Program. Since Congress provided funding for this loan program approximately 30 days ago, the Department has worked quickly and responsibly to draft this rule, set up a loan office, and establish a credit review board to review loan applications."

Congress has appropriated $7.5 billion to cover the subsidy costs of direct loans issued to automobile manufacturers and component suppliers under EISA section 136. The actual amount of loans that DOE will be able to issue with this funding, up to the statutory ceiling of $25 billion in loans, will depend on the particular circumstances of specific borrowers and proposed projects. Additionally, the Department must comply with statutory requirements including the National Environmental Policy Act (NEPA) in connection with the issuance of any loans to be made under the EISA section 136 program. The Department said it intends to act quickly to review and evaluate any applications it receives from eligible applicants under the section 136 program.

Under the Interim Final Rule procedure, the rule becomes effective immediately upon publication in the Federal Register; however, comments will be received for 30 days. A final rule will be issued at a later date. Under the proposal the first set of applications for loans must be submitted by December 31, 2008.

Access a release from DOE (click here). Access a prepublication copy of the rule (click here). Access the Advanced Technology Vehicles Manufacturing Loan Program (click here). Access a fact sheet on the loan program (click here). [*Energy, *Air, *Climate]

Obama Wins - Environment & Energy Reactions And Further Details

Nov 4: Following the victory in the historic and remarkable Presidential race, President-Elect Obama will now face the stark reality of addressing enormous environmental and energy issues facing the U.S. and the world; all within the backdrop of a global financial crisis. Obama said it well in his victory speech, "For even as we celebrate tonight, we know the challenges that tomorrow will bring are the greatest of our lifetime -- two wars, a planet in peril, the worst financial crisis in a century. . . This victory alone is not the change we seek. It is only the chance for us to make that change. And that cannot happen if we go back to the way things were. . . Let's resist the temptation to fall back on the same partisanship and pettiness and immaturity that has poisoned our politics for so long."

Major environmental organizations reacted positively to an Obama Presidency. Audubon Society said, the change offered "a new era of hope for our environment, and the people, birds, and other wildlife that depend on it." The Union of Concerned Scientists (UCS) said they are "looking forward to quick and decisive action to combat climate change." The Natural Resources Defense Council (NRDC) said the Obama election "represents a new day for environmentalists." National Wildlife Federation (NWF) said, "This election was powered by a voting public that wants dramatic and meaningful change, especially for a new energy future. . ." Sierra Club said, "voters solidly rejected policies of the past in favor of energy policies of the future."

The American Petroleum Institute (API) issued a brief statement saying, “America’s oil and natural gas industry looks forward to working with President-elect Barack Obama and Congress to deliver a comprehensive and realistic energy policy that encourages development of all domestic energy sources, including oil and natural gas, for the benefit of consumers." The U.S. Chamber of Commerce vowed to work with President-elect Barack Obama and the new Congress "to help quickly restore economic growth, ensure a smooth transition of power, and tackle the many serious issues facing the country." The Chamber also urged "the outgoing Congress and administration to quickly enact additional economic stimulus measures during a lame duck session that will save and expand jobs in critical industries such as autos, housing, infrastructure, and trade."

Reportedly a transition team is working aggressively and key staffers for the new administration could be announced soon. Representative Rahm Emanuel (D-IL) and former aide to President Bill Clinton has reportedly accepted the role of chief of staff. The organization Beyond Pesticides, posted an article outlining some possible names being mentioned for EPA Administrator include: Mary Nichols, a former Natural Resources Defense Council lawyer and senior official in the Clinton EPA who currently chairs the California Air Resources Board; Kathleen McGinty, former Al Gore aide and first chair of the Clinton Administration’s Center for Environmental Quality who currently serves as secretary of the Pennsylvania Department of Environmental Protection (DEP); and, Dan Esty, a current top energy advisor to the Obama campaign and former George H.W. Bush EPA official; as candidates for the top EPA position.

Beyond Pesticides says others in the blogosphere have pointed to Robert Kennedy Jr., professor of environmental law and co-director of the Pace Environmental Litigation Clinic and founder and chairman of the Waterkeeper Alliance; Robert Sussman, Deputy EPA Administrator under the Clinton Administration and currently a senior fellow at the Center for American Progress; and, Bradley Campbell, environmental lawyer and former Commissioner of the New Jersey (DEP).

WIMS previously outlined some of the highlights of the Obama plans for energy, environment and climate [See WIMS 10/21/08]. Complete details on the energy, environment and climate change proposal are contained in the documents referenced below.

Access the Obama victory speech (click here). Access a release from Audubon (click here). Access a release from UCS (click here). Access a release from NRDC (click here). Access a release from NWF (click here). Access a release from Sierra Club (click here). Access the statement from API (click here). Access a release from the U.S. Chamber (click here). Access the Beyond Pesticides article (click here). Access a UK Telegraph article outlining a number of possible Obama Cabinet appointees (click here). Access the overview of the Obama New Energy for America Plan (click here). Access the details of the Obama Energy Plan (click here). Access the details of the Obama Environmental Plan (click here). Access the Energy Speculation Plan (click here). Access the Wildfire Prevention Plan (click here).

Rotterdam Convention Adds Pesticide Tributyltin To Global “Watch List”

Oct 31: Over 120 countries, party to the Rotterdam Convention meeting in Rome, Italy, agreed to add the pesticide tributyltin to a global trade “watch list”, but were unable to reach consensus on the inclusion of chrysotile asbestos and the pesticide endosulfan during negotiations last week. The conference also reaffirmed that governments have an obligation to use the Convention’s information-sharing mechanism to inform others about their national decisions on the import and management of hazardous chemicals.

Tributyltin (TBT) compounds are pesticides used in antifouling paints for ship hulls and are toxic to fish, molluscs and other aquatic organisms. The International Maritime Organization has moved to ban the use of antifouling paints containing TBT compounds. Chrysotile asbestos is the most commonly used form of asbestos, accounting for around 94 percent of global asbestos production. It is widely used in building materials, such as asbestos cement, pipe and sheet, and in the manufacture of friction products, gaskets and paper. Endosulfan is a pesticide widely used around the world, particularly in cotton production. It is hazardous to the environment and detrimental to human health, particularly in those countries where safeguards are not adequate.

Bakary Kanté, Director of the Division of Environmental Law and Conventions, United Nations Environment Programme (UNEP) said, “Trade comes with rights and responsibilities, and the discussions this week have shown the strong commitment of many countries to this spirit of reciprocity. UNEP, along with the Food and Agriculture Organization (FAO), jointly manages the Convention secretariat. The Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for certain Hazardous Chemicals and Pesticides in International Trade promotes transparency and information sharing about potential risks to human health and the environment. Its so-called PIC list currently contains 39 hazardous substances, including all other forms of asbestos.

Under the Convention, exports of chemicals and pesticides on the PIC list require the prior informed consent of the importing country. This gives developing countries in particular the power to decide which potentially hazardous chemicals they want to receive and to exclude those they cannot manage safely. Exporting countries are responsible for ensuring that no exports leave their territory when an importing country has made the decision not to accept the chemical or pesticide in question.

During the conference, many governments expressed serious concern about the failure to list chrysotile asbestos. The World Health Organization (WHO) made a statement reminding participants that chrysotile is a human carcinogen and that at least 90,000 people die every year of asbestos-related diseases such as lung cancer and mesothelioma, a rare form of cancer directly linked to asbestos.

UNEP Executive Director Achim Steiner said, “Clearly the chemical footprint of our modern economies is expanding exponentially today. The transition towards a greener economy touches upon the responsibilities that we have as societies, as governments and as international institutions to look at how the use of chemicals empowers development and not undermines it, not least through the impact it has on the health of our societies.”

According to a UNEP release, some 70,000 different chemicals are available on the market today, and around 1,500 new ones are introduced every year. UNEP says, "This can pose a major challenge to regulators charged with monitoring and managing these potentially dangerous substances. Many pesticides that have been banned or whose use has been severely restricted in industrialized countries are still marketed and used in developing countries."

Access a release from UNEP (click here). Access a second release from the PIC website listing all of the chemicals on the PIC list (click here). Access the Rotterdam Convention website for extensive information on the meeting and background (click here). Access the Interactive Training on the Operation of the Rotterdam Convention (click here). Access the UNEP Activities in Chemicals website (click here). [*Toxics, Haz]

Industry Supports New CAFO Rules; Enviros Oppose

Oct 31: Late Friday (October 31), U.S. EPA announced it has finalized a rule helping to protect the nation’s water quality by requiring concentrated animal feeding operations (CAFOs) to safely manage manure. EPA estimates CAFO regulations will prevent 56 million pounds of phosphorus, 110 million pounds of nitrogen, and 2 billion pounds of sediment from entering streams, lakes, and other waters annually. Assistant Administrator for Water Benjamin Grumbles said, “EPA’s new regulation of animal feedlots sets a strong national standard for pollution prevention and environmental protection, while maintaining our country’s economic and agricultural competitiveness. This clean water rule strengthens environmental safeguards by embracing a zero discharge standard and requiring site-specific management plans to prevent runoff of excess nutrients into our nation’s waters.”

EPA indicated that it is the first time it has required a nutrient management plan (NMP) for manure to be submitted as part of a CAFO’s Clean Water Act permit application. Manure contains the nutrients nitrogen and phosphorus, which, when not managed properly on agricultural land, can pollute nearby streams, lakes, and other waters. Previous rules required a CAFO operator to use an NMP for controlling manure, but the regulation builds on that by requiring the NMP to be submitted with the permit application. The plan will be reviewed by the permitting authority and conditions based on it will be incorporated as enforceable terms of the permit. The proposed NMP and permit will be available for public review and comment before going final.

The regulation also requires that an owner or operator of a CAFO that actually discharges to streams, lakes, and other waters must apply for a permit under the Clean Water Act. If a farmer designs, constructs, operates and maintains their facility such that a discharge will occur, a permit is needed. EPA is also providing an opportunity for CAFO operators who do not discharge or propose to discharge to show their commitment to pollution prevention by obtaining certification as zero dischargers.

In addition, the final rule includes technical clarifications regarding water quality-based effluent limitations and use of best management practices to meet zero discharge requirements, as well as affirming the 2003 rule requirement for reducing fecal coliform through the use of best conventional technology. EPA indicated that it worked closely with the U.S. Department of Agriculture during the development of the rule and will work closely with states during implementation. The rule deadline for newly defined facilities to apply for permits is February 27, 2009, and the rules will become effective 30-days following publication. The final rule responds to a February 2005 federal court decision [Waterkeeper Alliance et al. v. EPA, 399 F.3d 486] that upheld most of the Agency’s 2003 rule, but directed further action or clarification on some portions.

The National Pork Producer Council (NPPC) called the new regulation “tough but fair rule” and said it sets a high environmental standard for livestock producers. NPPC Environment Committee Chairman Randy Spronk, a pork producer from Edgerton, MN said, “The CAFO regulation issued today is a tough but fair rule and sets a standard that the U.S. pork industry has been and will continue living up to. Pork producers are ready to comply with the new regulation.” NPPC said the new rule is the product of more than 10 years of work to overhaul the federal Clean Water Act rules applicable to livestock operations. Spronk said, “Looking back to where we were in federal policy in 1998, when this all started, through the 2001 proposed rule, the 2003 final rule, a 2005 federal court decision and now this 2008 final rule, EPA is making sweeping policy changes that affect all aspects of pork operations and water quality."

The Natural Resources Defense Council (NRDC) issued a release calling the final rule a "Halloween Trick from Bush Administration: Treat to Factory Farms." NRDC said under the rule, "Thousands of factory farms will be exempt from needing permits that limit water pollution." Jon Devine, Senior Attorney in the Water Program at NRDC said, “Literally and figuratively, this rule puts the Bush Administration’s stamp of approval on a load of manure. Even though Congress specifically targeted factory farms for regulation under the Clean Water Act in 1972 and EPA has recognized the importance of these operations getting pollution control permits, the Administration stepped in it today.”

Jeffrey Odefey, Staff Attorney at the Waterkeeper Alliance said, “It’s outrageous to see the environmental yard sale that marks the Bush Administration’s final days in office. Clearly, industry lobbyists are picking up last-minute deals intended to preserve their right to pollute for years to come. Instead of offering meaningful protection of our nation’s waters and communities, EPA has come up with an unworkable muddle that sets the country back by decades.” Ed Hopkins, Sierra Club's Environmental Quality Program director said, "Clean water is too important to allow polluting factory farms to continue business as usual. Yet again, the Bush Administration has put private industry profits before public health."

Access a release from EPA (click here). Access a prepublication copy of the 240-page final rule (click here). Access a 2-page fact sheet (click here). Access EPA's CAFO rule website for additional background information (click here). Access a release from NPPC (click here). Access the WIMS-EcoBizPort CAFO links for additional information (click here). [*Water]