Senators Continue To Debate Energy Price Speculation v. Supply

Jul 22: Democratic Senators Byron Dorgan (D-ND) and Amy Klobuchar (D-MN) held a press conference with energy experts to discuss the Stop Excessive Energy Speculation Act (S. 3268), which they said "will stop greedy energy traders who artificially inflate oil prices and ensure Americans pay a fair price at the pump." Republicans, generally disagree, saying speculation is only a small factor and opening up new oil and gas drilling areas is more important [See WIMS 7/21/08]. The Senate began debate on the bill on July 21 and voted overwhelmingly 94-0 to continue debate on the bill today (July 22).

Dorgan said, “The price of gas and oil continues to shoot up like a Roman candle. It has become abundantly clear that speculators, not the laws of supply and demand, are driving up prices. This legislation will cut out the rampant speculation that is happening in the oil futures market.” Klobuchar, noting that the price of gas has gone up $1 in just the past six months said, “The experts tell us that a good amount of the money we now pay at the pump is going into the bank accounts of financial speculators, when I was a prosecutor we had a saying: ‘Follow the money and you’ll find the bad guy.’ If we’re going to protect American consumers and businesses, we need to follow the money and stop the speculators.’’

On July 17, Senator Pete Domenici's (R-NM), Ranking Member of the Senate Energy and Natural Resources Committee, office issued a release saying that energy market experts disagree with Democrats about the market speculation issue. A number of experts cited in the Republican release indicated that generally high energy prices are not the result of speculation, but rather a factor of supply and demand. On July 21, Senate Minority Leader Mitch McConnell (R-KY) issued a release saying, "The Majority Leader has moved to a bill that only addresses the issue of speculation. But no serious person thinks passing this legislation alone will fix the problem. I don’t know of any reputable economists who think that simply addressing the futures market will significantly affect the price of gas. . . Strengthening regulation of the futures market is a worthwhile piece of any legislative effort, but let’s be clear from the outset: it’s just a piece -- and a small piece at that."

Sherri Cabrera, Director of Legislative Affairs for the Petroleum Marketers Association of America said, “Petroleum marketers want to be able to respond to the needs of their customers to provide affordable gas and diesel, and heating oil dealers desperately need to be able to provide affordable heating oil to their customers. Reducing speculation is something that can be done immediately. Other solutions are important, but long term. Petroleum marketers are focused on reducing prices now. If S. 3268 is not enacted, not only will the economy continue to suffer, but this extreme energy crisis could well cost human lives this winter. Gas station owners and heating fuel retailers are fighting to lower fuel prices by urging Senators to pass S. 3268. Consumers who want lower gas prices should also tell their Senators to pass S. 3268.”

McConnell said, ". . . gas prices will not go down unless supply goes up. . . They [Democrats generally] need to unlock the Outer Continental Shelf and lift their ban on the development of the vast oil shale deposits in western states. . . So far, a dozen Democrats have expressed some level of openness to new domestic exploration. We are approaching a bipartisan consensus on the need to increase domestic supply. But their leadership isn’t there. Their presidential nominee opposes every effort to increase supply. The Speaker of the House is walking in lock-step with Al Gore." On July 21, Senator Domenici said he would introduce an amendment to S. 3268 that would seek to lift the moratorium on deep sea exploration.

As the Senate began its debate on S. 3268, Senate Majority Leader Harry Reid (D-NV) turned the tables and said, "Democrats have made it clear that we support more domestic production. That is certainly part of the answer. But it’s only one part. . . He outlined the Democratic strategy in four parts saying, "First – we end the billions of dollars in tax breaks for big oil companies whose executives have been hauling record profits while we pay record prices. Second – we force the oil companies to do their part by investing some of their profits in clean and affordable alternative energy. Third – we protect the American people from price gougers and greedy oil traders who manipulate the market. And fourth – we stand up to OPEC and countries who are colluding together to keep oil prices sky-high."

Senator Reid said, "We have offered Republicans a chance to vote on not just speculation, but the issue they’ve talked about for weeks: allowing state governors to decide on offshore drilling. We have made it clear that we are willing to compromise and work together on energy legislation that both sides can live with. They can offer their drilling amendment, and we would offer our own alternative. Both measures would receive a vote. That is how the legislative process is supposed to work. This latest Republican obstruction tactic has left us with no choice but to file cloture to proceed to our speculation bill. . . By forcing us to file cloture, Republicans are wasting precious time when prompt action is desperately needed. Perhaps during these 30 hours we must now spend on cloture, Republicans will decide to vote on speculation and vote on drilling. The American people will certainly be waiting to see whether Republicans are willing to take yes for an answer – and legislate on the energy crisis."

Access a release from Senate Democrats (click here). Access a release from Senator McConnell (click here). Access the floor speech from Majority Leader Reid (click here). Access the Senate Republicans website for links to many releases, statements and videos on the debate (click here). Access the Senate Democrats website for links to information on the debate (click here). Access legislative details for S. 3268 which includes links to all Congressional actions and the floor statements (click here). [*Energy]

Dems & Republicans Disagree On Energy Market Speculation Issues

Jul 21: On July 16, Senate Majority Leader Harry Reid (D-NV) introduced the Stop Excessive Energy Speculation Act (S. 3268) with 12 cosponsors. Reid said, “Right now, Wall Street traders are raising gas prices with nothing more than the click of a mouse. Without regard for anything but their own profits, traders are bidding up prices by buying huge quantities of oil just to sell them at an even higher price.

"For nearly eight years, the Bush-Cheney Administration has turned a blind eye to this increasingly excessive speculation, which has driven oil future prices to record levels and directly contributed to soaring prices of gasoline at the pump. In fact, the former head of the CFTC’s [Commodity Futures Trading Commission's] trade division said speculation has increased the price of oil by as much as 50 percent. That is why Democrats have introduced legislation to curb excessive speculation and increase transparency and accountability in the oil and gas markets. This bill will address the rising cost of gasoline in the short-term, prevent Wall Street traders from gaming the oil markets and ensure that American consumers are paying a fair price at the pump.”

On July 17, Senator Pete Domenici's (R-NM) office issued a rebuttal release saying that energy market experts disagree with Democrats about the market speculation issue. The Republican release quotes experts and agencies including: Warren Buffet, Chairman & CEO, Berkshire Hathaway; International Energy Agency; Ben Bernanke, Chairman of the Federal Reserve; Daniel Yergin, Chairman, Cambridge Energy Research Associates; John Chapman, Researcher at the American Enterprise Institute; Michael Haigh, senior commodity analyst at Societe Generale Corporate and Investment Banking; and Craig Pirrong, professor of finance at the University of Houston. The "experts" all indicate that generally high energy prices are not the result of speculation, but rather a factor of supply and demand.

Senator Domenici, ranking member of the Senate Energy and Natural Resources Committee, said he plans to offer an offshore production amendment to S.3268. Domenici said, “Although I’m perfectly willing to work with Democrats on speculation, it is clear to me -- and most economists -- that the real reason for the high price of oil is a global supply and demand imbalance. For that reason, I believe that any legislation considered by the Senate should seek to address supply and demand.

“While it is unclear at this point whether the Majority Leader will allow amendments to his bill, it is my intention to introduce an amendment that would seek to lift the moratorium on deep sea exploration. My amendment would allow states to opt into exploration if they choose, providing states with a substantial source of revenue and providing America with much needed domestic oil. Since the President has already lifted the Executive Moratorium on offshore exploration, Congress is the last remaining obstacle. I believe the American people want to see the Senate debate and vote on this issue, and as the floor manager for Republicans on this bill, I intend to do everything in my power to make it happen.”

Access a release from Senator Reid with a summary of the legislation (click here). Access the 7/17 release from Senator Domenici (click here). Access the 7/21 release from Domenici (click here). Access legislative details for S. 3268 (click here). [*Energy]

Markey: Oil Industry Behind White House Switch On Global Warming

Jul 18: According to a release from Representative Edward Markey (D-MA), Chairman of the Select Committee on Energy Independence and Global Warming, a Committee investigation has found that members of government at the highest levels, including "the office of President George W. Bush’s Chief of Staff and numerous heads of Cabinet departments, had decided to use the Clean Air Act to regulate global warming emissions not only from vehicles, but also from power plants, refineries, and other so-called stationary sources – but reversed their decision in the face of strong opposition from ExxonMobil and others within the oil industry, as well as from at least one senior adviser to Vice President Dick Cheney."

Markey said, "This is the dysfunctions and motivations of the Bush administration laid bare. The fact that they can, with near unanimity, completely switch positions on global warming to please the oil industry is shocking, and yet disappointingly predictable." The investigation by the Select Committee is based on an on-the-record interview with a former high-ranking EPA official, Jason Burnett, confidential discussions with other EPA staff, and review of EPA documents obtained in response to a Select Committee subpoena.

On July 11, when EPA released its Advance Notice of Proposed Rulemaking (ANPR) soliciting public input on the effects of climate change and the potential ramifications of the Clean Air Act in relation to greenhouse gas (GHG) emissions. Administrator Stephen Johnson said, "While EPA’s staff has done an outstanding job making a square peg fit into a round hole, I believe the ANPR demonstrates the Clean Air Act is ill-suited for the task of regulating global greenhouse gases. Based on the analyses to date, pursuing this course of action would take decades and inevitably result in a very complicated and likely, convoluted set of regulations. If our nation is truly serious about regulating greenhouse gases, the Clean Air Act is the wrong tool for the job" [See WIMS 7/11/08].

According to a summary of the investigation included in Markey's release, highlighting some key points:

• President Bush’s Deputy Chief of Staff Joel Kaplan and numerous heads of cabinet agencies -- including Energy Secretary Samuel Bodman, Office of Management and Budget’s Susan E. Dudley, and White House Council on Environmental Quality Chairman James L. Connaughton, among others -- and White House offices endorsed EPA’s finding that greenhouse gas emissions endanger public welfare, and EPA’s proposals that greenhouse gas emissions from both vehicles and stationary sources including power plants and refineries should be regulated under the Clean Air Act.
  
• White House Deputy Chief of Staff Kaplan personally approved EPA’s plan to go forward with a positive endangerment finding, which would necessitate the regulation of greenhouse gas regulations for motor vehicles and fuels, as well as trigger regulation of stationary source emissions under the Clean Air Act.
  
• While electric utility representatives, including the Edison Electric Institute (which represents the nation’s major investor-owned utilities), agreed that it would be best for EPA to proceed with regulation of both vehicles and stationary sources using Clean Air Act authority, oil industry representatives from ExxonMobil, the American Petroleum Institute, and the National Petrochemicals and Refiners Association, adopted a "not on my watch" approach – arguing that such regulations would tarnish President Bush’s conservative anti-regulatory legacy, and should be delayed until the next President took office.
  
• Doing the oil industry’s bidding, the Bush administration reversed course on regulating heat-trapping emissions – opting to do nothing and leave it to the next president to respond to the serious environmental threat of global warming. This decision was made at the very highest level within the White House. The winning argument against regulatory action had the support of the Office of Vice President Cheney, including Vice President Cheney’s energy adviser, F. Chase Hutto III.
  
• Most of the cabinet secretaries and heads of White House offices who recently wrote letters opposing use of the Clean Air Act to regulate global warming emissions – which were appended to the release of EPA’s July 11, 2008 "Advance Notice of Proposed Regulation" – had previously supported regulation of both vehicles and stationary sources under the act.
  

Markey's charges add to other similar investigations in the House and Senate. On July 8, Senator Barbara Boxer (D-CA), Chair of the Senate Environment and Pubic Works Committee held a press briefing on the issue of White House Interference in Addressing the Dangers of Global Warming following information received from Jason Burnett, who responded to an inquiry from her committee. She said, "History will judge this Bush Administration harshly for recklessly covering up a real threat to the people they are supposed to protect." [See WIMS 7/9/08].

Additionally, Representative Henry Waxman (D-CA), Chairman of the House Committee on Oversight and Government Reform is still deciding how to proceed on his investigation of White House interference, since the President asserted executive privilege over thousands of pages of documents that Waxman says would show whether the President and his staff complied with the Clean Air Act (CAA) in overruling EPA Administrator Stephen Johnson on important environmental decisions [See WIMS 6/20/08].

Access a release from Representative Markey (click here). Access the full 35-page investigative report (click here). Access the 64-page transcript of the interview with Jason Burnett (click here). [*Climate]

Al Gore Calls For CO2-Free Electricity By 2018

Jul 17: Al Gore delivered a speech in Washington, DC entitled, A Generational Challenge to Repower America. In what has been termed by some a "moon-walk" type challenge, Gore says, "I'm proposing today a strategic initiative designed to free us from the crises that are holding us down and to regain control of our own destiny. It's not the only thing we need to do. But this strategic challenge is the lynchpin of a bold new strategy needed to re-power America. Today I challenge our nation to commit to producing 100 percent of our electricity from renewable energy and truly clean carbon-free sources within 10 years."

Gore says, "Scientists have confirmed that enough solar energy falls on the surface of the earth every 40 minutes to meet 100 percent of the entire world's energy needs for a full year. Tapping just a small portion of this solar energy could provide all of the electricity America uses. And enough wind power blows through the Midwest corridor every day to also meet 100 percent of US electricity demand. Geothermal energy, similarly, is capable of providing enormous supplies of electricity for America. The quickest, cheapest and best way to start using all this renewable energy is in the production of electricity. In fact, we can start right now using solar power, wind power and geothermal power to make electricity for our homes and businesses."

By way of background, Gore points out, "We're borrowing money from China to buy oil from the Persian Gulf to burn it in ways that destroy the planet. Every bit of that's got to change." Gore says, "A few years ago, it would not have been possible to issue such a challenge. But here's what's changed: the sharp cost reductions now beginning to take place in solar, wind, and geothermal power - coupled with the recent dramatic price increases for oil and coal -- have radically changed the economics of energy."

"To those who say the costs are still too high: I ask them to consider whether the costs of oil and coal will ever stop increasing if we keep relying on quickly depleting energy sources to feed a rapidly growing demand all around the world. When demand for oil and coal increases, their price goes up. When demand for solar cells increases, the price often comes down. When we send money to foreign countries to buy nearly 70 percent of the oil we use every day, they build new skyscrapers and we lose jobs. When we spend that money building solar arrays and windmills, we build competitive industries and gain jobs here at home."

Gore indicated that, ". . .a political promise to do something 40 years from now is universally ignored because everyone knows that it's meaningless. Ten years is about the maximum time that we as a nation can hold a steady aim and hit our target." He said, ". . .the greatest obstacle to meeting the challenge of 100 percent renewable electricity in 10 years may be the deep dysfunction of our politics and our self-governing system as it exists today. In recent years, our politics has tended toward incremental proposals made up of small policies designed to avoid offending special interests, alternating with occasional baby steps in the right direction. Our democracy has become sclerotic at a time when these crises require boldness. It is only a truly dysfunctional system that would buy into the perverse logic that the short-term answer to high gasoline prices is drilling for more oil ten years from now."

Gore concluded saying, "I watched along with hundreds of millions of others around the world as Neil Armstrong took one small step to the surface of the moon and changed the history of the human race. We must now lift our nation to reach another goal that will change history. Our entire civilization depends upon us now embarking on a new journey of exploration and discovery. Our success depends on our willingness as a people to undertake this journey and to complete it within 10 years. Once again, we have an opportunity to take a giant leap for humankind."

Access the complete Gore speech (click here). Access an annotated analysis on the New York Times website (click here). Access links to various media reports (click here). Access Al Gore's We Can Solve It website for more information (click here). [*Energy, *Climate]

EPA Posts "Endangerment Analysis For Greenhouse Gas Emissions"

Jul 14: U.S. EPA has quietly posted a critical document entitled, Technical Support Document for Endangerment Analysis for Greenhouse Gas Emissions under the Clean Air Act, Sixth Order Draft, dated June 4, 2008. The 147-page document, which is posted on the Internet as part of the docket [EPA-HQ-OAR-2008-0318] for the Advanced Notice of Proposed Rulemaking (ANPR) for Greenhouse Gases Under the Clean Air Act [See WIMS 7/11/08], is specifically noted: "DO NOT CIRCULATE OR CITE" on each page. The document is one of dozens posted as "Supporting and Related Materials" to the ANPR.

According to the document, which has already been circulated to millions via its posting on the Internet, "This document provides technical support for the endangerment analysis concerning greenhouse gas (GHG) emissions that may be addressed under the Clean Air Act. The primary GHGs of concern directly emitted by human activities include carbon dioxide CO2, methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulfur hexafluoride (SF6)."

According to the report, "The current (year 2005) CO2 concentration is 379 parts per million (ppm) and has recently been increasing by about 1.9 ppm per year. Current ambient concentrations of CO2 and other GHGs remain well below published thresholds for any direct adverse health effects, such as respiratory or toxic effects. . .

"Warming of the climate system is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global average sea level. Global mean surface temperatures have risen by 0.74°C (1.3ºF) over the last 100 years. The rate of warming over the last 50 years is almost double that over the last 100 years. . .

"Most of the observed increase in global average temperatures since the mid-20th century is very likely due to the observed increase in anthropogenic GHG concentrations. Climate model simulations suggest natural forcings alone (e.g., changes in solar irradiance) cannot explain the observed warming. Likewise, North America’s observed temperatures over the last century can only be reproduced using model simulations containing both natural and anthropogenic forcings. . .

"Observational evidence from all continents and most oceans shows that many natural systems are being affected by regional climate changes, particularly temperature increases. Observations show that climate change is currently impacting the nation’s ecosystems and services in significant ways. . .

"The range of projected ambient concentrations of CO2 and other GHGs will remain well below published thresholds for any direct adverse health effects, such as respiratory or toxic effects. . . "All of the U.S. is very likely to warm during this century, and most areas of the U.S. are expected to warm by more than the global average. The average warming in the U.S. is projected to exceed 2°C (3.6°F) by the end of the century, with 5 out of 21 models from IPCC projecting average warming in excess of 4°C (7.2°F). . . By the end of the century, sea level is projected to rise between 0.18 and 0.59 meters relative to around 1990. . . "

The report indicates that the Global and U.S. Impacts Associated with Future Climate Change include:

• Risk increases with increases in both the rate and magnitude of climate change. Climate warming may increase the possibility of large, abrupt, and unwelcome regional or global climatic events (e.g., disintegration of the Greenland Ice Sheet or collapse of the West Antarctic Ice Sheet). . .
• Severe heat waves are projected to intensify in magnitude and duration over the portions of the U.S. where these events already occur. . .
• The IPCC projects with virtual certainty declining air quality in U.S. and other world cities due to warmer and fewer cold days and nights and/or warmer/more frequent hot days and nights over most land areas. . .
• Moderate climate change in the early decades of the century is projected to increase aggregate yields of rainfed agriculture by 5-20% in the U.S., but with important variability among regions. . .
• Disturbances like wildfire and insect outbreaks are increasing and are likely to intensify in a warmer future with drier soils and longer growing seasons. . .
• Coastal communities and habitats will be increasingly stressed by climate change impacts interacting with development and pollution. . .
• Climate change will constrain over-allocated water resources in the U.S., increasing competition among agricultural, municipal, industrial, and ecological uses. . .
• Climate change is likely to affect both U.S. energy use and energy production; physical infrastructures; institutional infrastructures. . .
• Disturbances such as wildfire and insect outbreaks are increasing in the U.S. and are likely to intensify in a warmer future with drier soils and longer growing seasons.
• Climate change impacts in certain regions of the world may exacerbate problems that raise humanitarian and national security issues for the U.S.

Section 8 of the report describes how climate change may increase exposure to concentrations of ozone and, in some cases, PM with associated impacts on public health and welfare in the U.S. The report indicates, "Assuming constant population and dose-response characteristics, ozone related deaths from climate change in the U.S. are projected to increase by approximately 4.5% from the 1990s to the 2050s (under the IPCC A2 scenario) (Field et al., 2007; Bell et al., 2007; Knowlton et al., 2004). According to the IPCC (Field et al., 2007), the 'large potential population exposed to outdoor air pollution, translates this small relative risk into a substantial attributable health risk.' In New York City, health impacts could be further exacerbated by climate change interacting with urban heat island effects (Field et al., 2007). . ."

Access the Endangerment document (click here). Access the EPA Docket with links to the many other background materials (click here). Access EPA's website on the ANPR with additional information (click here). [*Climate]

EPA Issues Proposed Rules For GHG Geologic Sequestration

Jul 15: U.S. EPA announced its proposed rule to regulate carbon dioxide (CO2) geologic sequestration that can prevent industrial emissions the greenhouse gas (GHG). Secure, long-term underground storage of GHG is one way scientific innovation could lessen the effects of climate change. EPA Administrator Stephen Johnson said, "Today's proposal paves the way for technologies that would protect public health and help reduce the effects of climate change. With proper site selection and management, geologic sequestration could play a major role in reducing emissions of carbon dioxide into the atmosphere."

EPA's proposed regulation creates a consistent, national framework for the injection of carbon dioxide underground and protection of underground drinking water resources. The rule would create a new class of injection wells under the authority of the Safe Drinking Water Act's Underground Injection Control (UIC) program. The proposed rule builds on the existing UIC program, including extensive requirements to ensure wells are appropriately located, constructed, tested, monitored, and ultimately, closed with proper funding. It would apply to owners and operators of wells that will be used to inject carbon dioxide into the subsurface for the purpose of long-term storage.

Carbon capture and storage (CCS) is part of a portfolio of technologies available to reduce greenhouse gas emissions. EPA is coordinating with the Department of Energy on carbon sequestration research and development. EPA is requesting public comments on the proposed rule for 120 days following publication in the Federal Register.

EPA indicates that while the elements of the proposal are based on the existing regulatory framework of EPA’s Underground Injection Control (UIC) Program, modifications address the unique nature of CO2 injection for GS. The relative buoyancy of CO2, its corrosivity in the presence of water, the potential presence of impurities in captured CO2, its mobility within subsurface formations, and large injection volumes anticipated at full scale deployment warrant specific requirements tailored to this new practice.

CO2 is captured from flue gas produced by fossil-fueled power plants or industrial facilities, typically compressed to convert it from a gaseous state to a supercritical fluid, and transported to the sequestration site, usually by pipeline. The CO2 is then injected into deep subsurface rock formations through one or more wells, using technologies that have been developed and refined over the past several decades. To store the CO2 as a supercritical fluid, it would likely be injected at depths greater than approximately 800 meters (2,625 feet), where the pressure and temperature below the earth’s surface are sufficient to keep the CO2 in a supercritical state.

When injected in an appropriate receiving formation, CO2 is sequestered by a combination of physical and geochemical trapping processes. Physical trapping occurs when the relatively buoyant CO2 rises in the formation until it reaches a low-permeability layer that inhibits further upward migration, or when residual CO2 is immobilized in formation pore spaces. Geochemical trapping occurs when chemical reactions between the dissolved CO2 and minerals in the formation lead to the precipitation of solid carbonate minerals. Similarly, naturally-occurring CO2 deposits have been physically and geochemically trapped in geologic formations for millions of years.

The United States has abundant CO2 storage potential in onshore and offshore deep saline formations, depleted oil and gas fields, and deep, unmineable coal seams. These formations are present across the country and 95 percent of the largest stationary sources in the nation that emit CO2 are within 50 miles of a candidate CO2 storage reservoir.

On July 10, the House Energy & Commerce Committee, Energy and Air Quality Subcommittee, held a hearing on H.R. 6258, the Carbon Capture and Storage Early Deployment Act, that was introduced by Subcommittee Chairman Rick Boucher (D-VA) on June 12 [See WIMS 6/12/08]. The bipartisan legislation would advance the development and deployment of carbon capture and storage (CCS) technologies [See WIMS 7/10/08]. The bill, which has strong, bipartisan support, is designed to accelerate the time CCS becomes generally available by creating a Carbon Storage Research Corporation and a $1 billion annual fund to be distributed by the Corporation in the form of grants and contracts to governmental, academic and private entities for projects with the purpose of accelerating the commercial availability of CCS technologies.

Access a release from EPA with links to an audio file of the announcement (click here). Access a prepublication copy of the proposed rule (click here). Access a fact sheet on the proposal (click here). Access EPA website on Geologic Sequestration of Carbon Dioxide for extensive information (click here). Access the H.R. 6258 hearing website for a webcast and links to all testimony (click here). Access legislative details for H.R. 6258 (click here). [*Energy, *Climate]

D.C. Circuit Vacates Clean Air Interstate Rule Citing "Fatal Flaws"

Jul 11: In the case of State of North Carolina v. U.S. EPA, in the U.S. Court of Appeals, D.C. Circuit, Case Nos. No. 05-1244 consolidated with 31 other cases involving scores of attorneys. These consolidated petitions for review challenge various aspects of the Clean Air Interstate Rule (CAIR). The Appeals Court said, "Because we find more than several fatal flaws in the rule and the Environmental Protection Agency (EPA) adopted the rule as one, integral action, we vacate the rule in its entirety and remand to EPA to promulgate a rule that is consistent with this opinion."

By way of background the Court explains that like the NOx SIP Call, the Clean Air Interstate Rule -- Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx SIP Call, 70 Fed. Reg.25,162 (May 12, 2005) (CIR”) -- is the rule at issue in these consolidated petitions for review. At issue in much of this litigation is the definition of the term “contribute significantly.” In other words, in order to promulgate CAIR, EPA had to determine what amount of emissions constitutes a “significant contribution” to another state’s nonattainment problem.

Recognizing that its actions will result in significant disruption of EPA Clean Air Act activities, the D.C. Circuit said, ". . . the threat of disruptive consequences cannot save a rule when its fundamental flaws 'foreclose EPA from promulgating the same standards on remand,' [citing Natural Res. Def. Council v. EPA, 489 F.3d 1250, 1261–62 (D.C. Cir. 2007).]

" We must vacate CAIR because very little will “survive[ ] remand in anything approaching recognizable form.” Id. at 1261. EPA’s approach -- regionwide caps with no state-specific quantitative contribution determinations or emissions requirements -- is fundamentally flawed. Moreover, EPA must redo its analysis from the ground up. It must consider anew which states are included in CAIR, after giving some significance to the phrase 'interfere with maintenance' in section 110(a)(2)(D), 42 U.S.C. § 7410(a)(2)(D). It must decide what date, whether 2015 or earlier, is as expeditious as practicable for states to eliminate their significant contributions to downwind nonattainment. The trading program is unlawful, because it does not connect states’ emissions reductions to any measure of their own significant contributions. To the contrary, it relates their SO2 reductions simply to their Title IV allowances, tampering unlawfully with the Title IV trading program. The SO2 regionwide caps are entirely arbitrary, since EPA based them on irrelevant factors like the existence of the Title IV program. The allocation of state budgets from the NOx caps is similarly arbitrary because EPA distributed allowances simply in the interest of fairness. It is possible that after rebuilding, a somewhat similar CAIR may emerge; after all, EPA already promulgated the apparently similar NOx SIP Call eight years ago. But as we have explained, the similarities with the NOx SIP Call are only superficial, and CAIR’s flaws are deep. No amount of tinkering with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule. Of course the Federal Implementation Plan EPA imposed is intimately connected to CAIR, and we vacate the FIP as well."

The Appeals Court notes that, ". . .in the absence of CAIR, the NOx SIP Call trading program will continue, because EPA terminated the program only as part of the CAIR rulemaking. CAIR, 70 Fed. Reg. at 25,317 (codified at 40 C.F.R. § 51.121(r)). The continuation of the NOx SIP Call should mitigate any disruption that might result from our vacating CAIR at least with regard to NOx. In addition, downwind states retain their statutory right to petition for immediate relief from unlawful interstate pollution under section 126, 42 U.S.C. § 7426."

In its summary of the decision, the Appeals Court indicates, "To summarize, we grant the petitions of Entergy, SO2 Petitioners, and Minnesota Power. We grant North Carolina’s petition with respect to the 'interfere with maintenance' language, CAIR’s 2015 compliance date, and the unrestricted trading of allowances; we deny it with respect to EPA’s definition of 'will' in 'will contribute significantly,' and the PM2.5 contribution threshold. We deny the petitions of the Florida and Texas petitioners, and the Florida Association of Electric Utilities. Accordingly, we vacate CAIR and its associated FIP and remand both to the EPA."

In a release from Environmental Defense Fund (EDF) summarizing the ruling they said, “The government should take immediate corrective action to protect the millions of Americans hard hit by power plant pollution. Power plants must do their part to cut the smog that blankets our cities, the mercury that threatens our children’s development and the greenhouse gases that are recklessly warming the planet. Cost-effective solutions are at hand to protect human health and the environment from power plant pollution while ensuring the steady flow of affordable electricity. . .

"The court agreed with North Carolina that EPA must consider faster reductions that better reflect states’ obligations to restore healthy air and making pollution cuts that help prevent states from backsliding into non-compliance with health-based standards. The court also agreed with North Carolina that EPA must tailor pollution cuts in upwind states with the level of impacts wrought on downwind jurisdictions. The court also agreed with industry litigants that EPA erred in relying on or otherwise interfering with the allowance trading system established to address acid rain while affirming EPA’s broad remedial powers to require interstate air pollution abatement to protect human health. The court agreed with gas-based utilities that EPA unfairly credited coal-based utilities in designing the program. Finally, the court rejected utility claims seeking to exclude Florida and West Texas from the program."

Access the complete 60-page opinion (click here). Access a release from EDF (click here). [*Air]

16 Major Economies Add To G-8 Climate Change Commitments

Jul 9: Not to be confused with the recent G-8 statement on climate change calling for a 50% reduction by 2050 [See WIMS 7/8/08], the so-called "Major Economies" organized by the White House, also met following the G-8 meeting and issued a statement. The Major Economies Meeting (MEM) included: Australia, Brazil, Canada, China, the European Union, France, Germany, India, Indonesia, Italy, Japan, the Republic of Korea, Mexico, Russia, South Africa, the United Kingdom, and the United States.

The eleven point statement indicated in part that, "we, the leaders of the world's major economies, both developed and developing, commit to combat climate change in accordance with our common but differentiated responsibilities and respective capabilities and confront the interlinked challenges of sustainable development, including energy and food security, and human health."

They said they will continue working together to strengthen implementation of the Convention [U.N. Framework Convention on Climate Change, UNFCCC] and support the process designed to reach long-term cooperative action, "now, up to, and beyond 2012, in order to reach an agreed outcome in December 2009." They said the Major Economies Meetings constructively contributes to the "Bali process."

Without specifying specific targets, the MEM declaration said, "We support a shared vision for long-term cooperative action, including a long-term global goal for emission reductions, that assures growth, prosperity, and other aspects of sustainable development, including major efforts towards sustainable consumption and production, all aimed at achieving a low carbon society. Taking account of the science, we recognize that deep cuts in global emissions will be necessary to achieve the Convention’s ultimate objective, and that adaptation will play a correspondingly vital role. We believe that it would be desirable for the Parties to adopt in the negotiations under the Convention a long-term global goal for reducing global emissions, taking into account the principle of equity. We urge that serious consideration be given in particular to ambitious IPCC scenarios. Significant progress toward a long-term global goal will be made by increasing financing of the broad deployment of existing technologies and best practices that reduce greenhouse gas emissions and build climate resilience. However, our ability ultimately to achieve a long-term global goal will also depend on affordable, new, more advanced, and innovative technologies, infrastructure, and practices that transform the way we live, produce and use energy, and manage land."

The said, "We will do more – we will continue to improve our policies and our performance while meeting other priority objectives – in keeping with the principle of common but differentiated responsibilities [CBDR] and respective capabilities. . . the developed major economies will implement, consistent with international obligations, economy-wide mid-term goals and take corresponding actions in order to achieve absolute emission reductions and, where applicable, first stop the growth of emissions as soon as possible, reflecting comparable efforts among them. At the same time, the developing major economies will pursue, in the context of sustainable development, nationally appropriate mitigation actions, supported and enabled by technology, financing and capacity-building, with a view to achieving a deviation from business as usual emissions."

Finally, the MEM recognizes that tackling climate change will require greater mobilization of financial resources, both domestically and internationally; the members agreed to seven specific actions to enable the full, effective, and sustained implementation of the Convention between now and 2012; and said they will continue to work constructively together to promote the success of the Copenhagen climate change conference in 2009.

The G-5 countries of Brazil, China, India, Mexico and South Africa; issued a separate declaration addressing several issues including climate change. On climate change the G-5 said in part, "We urge the international community to address the challenge of climate change through long term cooperative action in accordance with the United Nations Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol, especially the principle of common but differentiated responsibilities and respective capabilities." Specifically, they said, "It is essential that developed countries take the lead in achieving ambitious and absolute greenhouse gas emissions reductions in accordance with their quantified emission targets under the Kyoto Protocol after 2012, of at least 25‑40 per cent range for emissions reductions below 1990 levels by 2020, and, by 2050, by between 80 and 95 per cent below those levels, with comparability of efforts among them."

"For developing countries, adaptation is of cardinal importance, particularly given their vulnerability, limited capacity and inadequate means. We stress the need of scaling up resources for adaptation and strengthening of adaptive potential in developing countries in order to reinforce capabilities to prevent and confront the increased frequency and scale of natural disasters and the other adverse effects of climate change."

The Union of Concerned Scientists (UCS) attended the meetings and issued a commentary at the conclusion saying, "The only good news about the Bush 'major economies meeting' (MEM) is that it has mercifully now come to an end -- not with a bang, but a whimper. The clear split between the European Union and the United States, Canada and Japan on global warming policy was on full display these past three days. This fissure prevented the G-8 members from reaching any meaningful understanding with the major developing countries that came to Hokkaido for the major economies meeting. President Bush gets the lion's share of the blame for this failure of leadership, but Prime Minister Fukuda and Prime Minister Harper share responsibility as well. . .

"One bright spot at this meeting is that the so-called G-5 countries. . . have developed a unified position on key issues, and issued their own detailed declaration in response to the G-8 leaders' statement. They made it clear that if 'developed countries take the lead in achieving ambitious and absolute greenhouse gas emissions reductions,' they would be 'committed to undertaking nationally appropriate mitigation … actions' aimed at "achieving a deviation from business-as-usual" emissions levels."

Access the declaration statement of the Major Economies meeting (click here). Access the G-8 Summit website which also includes the MEM documents (click here). Access the complete G-5 countries declaration (click here). Access the complete commentary of UCS (click here). Access and explanation of the CBDR principle (click here). [*Climate, *Energy]

House Hearing On Boucher Carbon Capture and Storage Bill

Jul 10: The House Energy & Commerce Committee, Energy and Air Quality Subcommittee, held a hearing on H.R. 6258, the Carbon Capture and Storage Early Deployment Act, that was introduced by Subcommittee Chairman Rick Boucher (D-VA) on June 12 [See WIMS 6/12/08]. The bipartisan legislation would advance the development and deployment of carbon capture and storage (CCS) technologies. CCS is a method of reducing greenhouse gas emissions by capturing and injecting underground the carbon dioxide emitted from electricity generation plants that use fossil fuels.

Witnesses included representatives from: American Electric Power; Carnegie Mellon University; Electric Power Research Institute; North Carolina Utilities Commission; Counsel to United Mine Workers of America; and Natural Resources Defense Council.

In a lengthy opening statement Chairman Boucher said, "The bill creates a non-governmental fund operating under the auspices of the Electric Power Research Institute for the purpose of accelerating the early deployment of carbon dioxide capture and storage technologies. It is a response to recommendations from many individuals and groups, including the Advanced Coal Technology Working Group, that Congress create a CCS early deployment fund. The Advanced Coal Technology Working Group, and advisory committee to the EPA, comprised of a broad cross section of energy and environmental stakeholders, is particularly noteworthy. Its final report issued in January of the year unanimously recommended the early creation of a CCS deployment fund. . .

"The bill before the committee will accelerate the time CCS becomes generally available. . . In order to accelerate the deployment of CCS technologies, the Carbon Capture and Storage Early Deployment Act authorizes the establishment of a Carbon Storage Research Corporation. . . The Corporation will assess fees on distribution utilities for all fossil fuel-based electricity delivered to retail consumers. The assessment will be applied to electricity generated from coal, natural gas and oil and will reflect the relative CO2 emission rates of each fuel. The assessment will total approximately $1 billion annually. The legislation specifies the distribution utilities will be allowed to recover the costs of the fee from retail consumers, resulting in a roughly $10-12 total annual increase in residential electricity rates. . . "The $1 billion annual fund will be distributed by the Corporation in the form of grants and contracts to governmental, academic and private entities for projects with the purpose of accelerating the commercial availability of CCS technologies."

Some cosponsors for the bill include: Representatives Fred Upton (R-MI); John Murtha (D-PA); Joe Barton (R-TX); Nick Rahall (D-WV); Ed Whitfield (R-KY); Jerry Costello (D-IL); John Shimkus (R-IL); Jim Matheson (D-UT); Mike Doyle (D-PA); Tim Holden (D-PA); Brad Ellsworth (D-IN); Baron Hill (D-IN); Charlie Wilson (D-OH); and Deborah Pryce (R-OH).

Access a release from Chairman Boucher (click here). Access the hearing website for a webcast and links to all testimony (click here). Access a release from Environmental Defense Fund (click here). Access legislative details for H.R. 6258 (click here). [*Energy, *Climate]

Boxer Charges White House Of Reckless Cover-Up Of Warming Issues

Jul 8: Senator Barbara Boxer (D-CA), Chair of the Senate Environment and Pubic Works Committee, held a press briefing on the issue of White House Interference in Addressing the Dangers of Global Warming. Senator Boxer delivered a statement saying, "You have heard me say many times that this Administration has downplayed the dangers posed by global warming. They have used every excuse to avoid taking action, even hiding behind China and India. Now, thanks to a very brave former EPA official, Jason Burnett, who has responded to an inquiry from this committee, who is here today, we know that the Administration's efforts have been about covering up the real dangers of global warming and hiding the facts from the public. This cover-up is being directed from the White House and the Office of the Vice President."

The Senator's charges add to those that have already been uncovered and revealed previously by Representative Henry Waxman (D-CA), Chairman of the House Committee on Oversight and Government Reform. Representative Waxman is still deciding how we should proceed on his investigation of White House interference, since the President asserted executive privilege over thousands of pages of documents that would show whether the President and his staff complied with the Clean Air Act (CAA) in overruling EPA Administrator Stephen Johnson on important environmental decisions [See WIMS 6/20/08].

Boxer said she had met with Burnett, who resigned from the Agency after concluding that no constructive action on global warming would take place during this Administration. She said, "What a sad day it is for the American people that they lost a brilliant professional who wanted to protect us from the ravages of global warming. In October of 2007, when we held a hearing on the health impacts of global warming, we were stunned to learn that the testimony of CDC Director Julie Gerberding was watered down and heavily redacted. We now know that this censorship was part of a master plan. The goal of the plan was to ensure that the EPA's response to the Supreme Court decision in Massachusetts v. EPA would be as weak as possible."

On December 10, 2007, Waxman release a proposed report on some of his investigations that highlighted the climate change testimony of Dr. Julie Gerberding, the Director of the Centers for Disease Control and Prevention, and Dr. Thomas Karl, the Director of National Climatic Data Center, who appeared before Boxer's Committee and the House Oversight Committee and said their testimony was heavily edited by both White House officials and political appointees at the Commerce Department [See WIMS 12/11/07]. It said, there was a systematic White House effort to minimize the significance of climate change by editing climate change reports. It indicates the White House insisted on edits to EPA’s draft Report on the Environment (ROE) were so extreme that the EPA Administrator opted to eliminate the climate change section of the report.

At that time, White House Press Secretary, Dana Perino, rebuked Waxman and his Committee for releasing the report at the time of the Bali, UNFCCC climate change meeting saying it was "rehashed rhetoric that has come out of the Democrats beforehand, and we just reject it as being untrue." In response to a question stating, Did the White House ever asked employees at agencies like NOAA to suppress climate change information and science?; Perino said, "Not that I'm aware and I do not believe that is true. "

Boxer said at her briefing, "What started in October with Dr. Gerberding's censored testimony [See WIMS 10/24/08] continued into December, when the EPA had finally decided to begin to tell the truth about the dangers posed by unchecked global warming. The Office of Management and Budget at the White House refused to open the e-mail containing the provisional endangerment finding from the EPA. When EPA refused to retract the e-mail, the finding was left in limbo. These two things - the CDC censorship and the stonewall on the endangerment finding -- are obviously related."

Boxer said that the CDC wanted to go into detail in its testimony about: Direct effects of heat [including mortality]; Health and safety effects related to extreme weather events; Air pollution-related health effects; Allergic diseases; Water- and food-borne infectious diseases; Vector-borne diseases; Food and water scarcity for some populations; Mental health problems; and, Long-term impacts of chronic diseases and other health effects. But, she said, "their testimony was altered. CDC's work clearly would lead us to the endangerment finding. Fortunately, thanks to the free press and the work of congressional committees, the CDC's concerns were made known, adding to the pressure on the EPA to make the endangerment finding."

As a result of her latest findings, Boxer announced a series of six actions: (1) I am asking EPA Administrator Stephen Johnson to release every document related to the Agency's finding that global warming poses a danger to the public, including bringing the endangerment e-mail back to earth. (2) EPA should also immediately release a strong advance notice of proposed rulemaking on global warming emissions. (3) If the information is not released, then I will use every means available to this Committee to obtain it. (4) I am sending Jason Burnett's letter on the Administration's efforts to block action on global warming to the Governor and Attorney General of California so they may be fully informed of the Bush Administration's misconduct relating to global warming, which may directly affect California's efforts to protect the public from this serious threat. (5) I will hold a hearing on July 22 to present the most recent evidence of the serious danger posed by global warming. Mr. Burnett will be a witness. (6) This Committee will also continue its work on how current authorities under the Clean Air Act could be used to address global warming now. We will hold a hearing on that subject in the fall, Mr. Burnett has agreed to give his advice and testimony, and we will issue a Committee report so that the next President can have all of our findings at his disposal at the start of the next Administration.

Boxer concluded saying if Administrator Johnson cannot deliver on items 1 & 2 above, ". . .he should resign. The American people need the head of the EPA to be an independent advocate for their health and their environment." She also said, "This is not about me, or about Mr. Johnson, or President Bush, or Vice President Cheney or Mr. Burnett. It is about protecting the public and the planet. . . History will judge this Bush Administration harshly for recklessly covering up a real threat to the people they are supposed to protect."

Access the Boxer press statement and links to the letter from Burnett, CDC testimony and related background documents (click here). [*Climate]

G-8 Ministers Call For 50% GHG Reduction By 2050

Jul 8: According to a release from the G8 summit in Japan, the ministers have said, ". . . the G8 shares the recognition that we seek to adopt, as a global goal, the goal of achieving at least 50% reduction of global greenhouse emission by 2050. We the G8 have confirmed today here at Toyako that this long-term goal is an appropriate and necessary goal for the earth." While the goal 50% reduction in greenhouse gas (GHG) emissions may seem very conservative to many, it is precisely the goal recommended by Tony Blair and The Climate Group last week in their presentation to Prime Minister Yasuo Fukuda [See WIMS 6/27/08]. That report, Breaking the Climate Deadlock: A Global Deal for Our Low Carbon Future indicated, "The trend of opinion -- scientific and political -- is clear, for reasons of energy security as well as climate change: we have to change the way we grow, to reduce radically our dependence on carbon. That is why a 2050 target of at least a 50 percent reduction in emissions should now be able to be agreed."

By comparison, Lester Brown at the Earth Policy Institute (EPI) issued a statement on July 2, indicating that it is time to implement Brown's "Plan B," which set as a necessary goal cutting net carbon dioxide emissions 80 percent by 2020. Brown said, "This would prevent the concentration of CO2 in the atmosphere, already at 384 parts per million (ppm), from exceeding 400 ppm, thus keeping future global temperature rise to a minimum" [See WIMS 7/2/08]. On June 20, a group of climate change interests launched 350.org, that says, "Below 350 parts per million (ppm) carbon dioxide (CO2) in the atmosphere is the number that the most recent science indicates is what must be achieved or the planet will risk huge and irreversible damage."

Various other targets have been set in legislation currently being discussed in Congress. The iCAP bill (H.R. 6186) introduced by Representative Ed Markey (D-MA) would caps pollution at 85 percent below 2005 levels by 2050 [See WIMS 5/28/08]. Representatives John Dingell (D-MI) and Rick Boucher (D-VA) in their many meetings in the House Committee on Energy and Commerce and its Subcommittee on Energy and Air Quality, have been discussing a cap-and-trade regulatory program designed to reduce greenhouse gas emissions to a specified level of 60-80% by 2050. The highly debated Boxer-Lieberman-Warner Climate Security Act of 2008 substitute (S. 3036 substitute for S. 2191) would reduce emissions from covered facilities 19% below current levels by 2020, and 71% by 2050. It is estimated to reduce total U.S. emissions (from all sources, capped and non‐capped) by up to 66% by 2050.

The G-8 Ministers indicated that the long-term goal of 50% by 2050 "requires the wisdom and cooperation of the entire world." The G-8 said it will set up a new international initiative for the research and development of innovative technologies to contribute to the realization of a low-carbon society. Furthermore, the G-8 will implement ambitious economy-wide mid-term goals in order to achieve absolute emissions reduction. In addition, new multilateral “Climate investment funds” have been set up to assist the efforts of developing countries [See WIMS 7/7/08]. In this context, Japan said it will promote its “Cool Earth Partnership Initiative.”

The Ministers said, "When we look back, the past year has been a long journey. Since agreeing to 'seriously consider' a long-term goal, at last year, Heiligendamm Summit, Japan, as the Chair of G-8, has repeatedly conducted difficult negotiations. We have arrived at the agreement reached today. It goes without saying that the achievement of the long-term goal will only be realized with the contribution for other major economies. . . Based on the strong resolve expressed here today at Toyako, we will begin efforts to lead to the common action on a global scale."

The Ministers released an "Environment and Climate Change" document summarizing their actions on climate change and other environmental issues such as promoting clean energy, nuclear energy infrastructure, poverty eradication efforts, the partnership between developing and developed countries, support of the IEA [International Energy Agency] to develop roadmaps for innovative technologies (including capture and storage), finance and investments, support of the Action Plan for Climate Change to Enhance the Engagement of Private and Public Financial Institutions adopted by the Finance Ministers, reduction or elimination of trade barriers on environmental and climate change services, encouraging Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (REDD), conservation and the sustainable use of biodiversity, implementing the principles of the 3Rs (Reduce, Reuse, Recycle), and promotion of Education for Sustainable Development (ESD).

At a press briefing by the White House officials, Dan Price, Assistant to the President for International Economic Affairs and Deputy National Security Advisor, attempted to clarify what the 50% goal really means and said, "The G8 declaration makes clear that the G8 is not seeking to impose its view on anybody. In respect of the goal, the G8 declaration expressly states, we seek to share with all parties to the U.N. Convention the vision of, and together with them, to consider and adopt in the U.N. negotiations the goal of achieving at least a 50 percent reduction of global emissions by 2050. . . expresses the view of the G8 that they are seeking -- seeking -- together with the other parties to the U.N. Convention, to consider and adopt a goal of achieving at least a 50 percent reduction -- all right? I noted that in our view, and in the view of the leaders in the room, this represents substantial progress from last year."

Access a release from the G-8 (click here). Access the Environment and Climate Change document (click here). Access links to all G-8 Summit documents (click here). Access the G-8 Japan Summit meeting website for additional information (click here). Access the Finance Ministers Action Plan (click here). Access the White House press briefing transcript (click here). Access the White House G-8 2008 website for additional information (click here). Access the announcement and links to the Plan B summary report with references (click here). Access the 350.org website (click here). [*Climate, *Energy]

Honigman Alert Re: Corps CWA Jurisdictional Determinations Letter

Jul 3: Honigman Miller Schwartz and Cohn LLP (Honigman), one of the WIMS-EcoBizPort corporate sponsors, issued an Environmental Alert drawing attention to an important June 26, 2008, Regulatory Guidance Letter (No. 08-02, 7-pages+attachment) from the United States Army Corps of Engineers regarding Jurisdictional Determinations (JDs) under Section 404 of the Clean Water Act (CWA) and Sections 9 and 10 the Rivers and Harbors Act of 1899 (RHA).

The Corps issues jurisdictional determinations in order to identify and delineate waters under the Corps’ jurisdiction, such as wetlands or other navigable waters. Honigman indicates that the June 26, 2008, Letter explains the two types of JDs issued by the Corps, i.e., an Approved JD and a Preliminary JD. The Letter also discusses when an Approved JD is required, and when a person can decline to request and obtain an Approved JD and elect to use a Preliminary JD instead.

According to the Letter, an Approved JD "is an official Corps determination that jurisdictional ‘waters of the United States,’ or ‘navigable waters of the United States,’ or both, are either present or absent on a particular site." If jurisdictional water is deemed present, then an Approved JD can serve as an initial step in the permitting process. An Approved JD will specifically identify and delineate the waterbodies and wetlands that are subject to the Corps’ jurisdiction. Alternatively, an Approved JD may document that no jurisdictional waters exist at a site. An Approved JD can be relied upon for up to five years, can be used as evidence in a CWA citizen suit, and is a final agency action that is immediately appealable.

Honigman explains that a Preliminary JD, on the other hand, is a non-binding opinion that there may be jurisdictional water of the United States on a particular site. It is neither definitive nor authoritative. A Preliminary JD is, therefore, advisory and not appealable. The recipient of a Preliminary JD can later request an Approved JD.

The Corps will provide an Approved JD when: (1) a party requests an Approved JD; (2) a party contests jurisdiction over a particular body of water; (3) a party appeals from a permit decision that was not based on an Approved JD; or (4) if the Corps determines that jurisdiction does not exist over a particular body of water. While a landowner, permit applicant, or other affected party can elect to request an Approved JD, it can also decline to request an Approved JD and may instead obtain a Corps individual or general permit authorization based on either a Preliminary JD, or, where appropriate, no JD at all.

A Preliminary JD may be used, for example, to waive or set aside questions regarding CWA/RHA jurisdiction over a particular site in order to expedite Corps permit authorization. An affected party may even make an informed, voluntary decision to obtain a Preliminary JD in situations where the indications suggest that no jurisdictional waters are present; however, the Letter states that "a permit decision made on the basis of a preliminary JD will treat all waters and wetlands that would be affected in any way by the permitted activity on the site as if they are jurisdictional waters of the U.S." The Corps may also use Preliminary JDs instead of Approved JDs in enforcement actions where access to a site is impractical or unauthorized.

The Letter states that the Corps is now required to use a specified form whenever a Preliminary JD is issued. The form, called the Preliminary Jurisdictional Determination Form (Preliminary JD Form), sets forth the minimum requirements for a Preliminary JD and provides information for the requesting party regarding the option to request an Approved JD and appeal rights. According to the Letter, the information on a Preliminary JD Form should be limited to the amount and location of wetlands and waterbodies on a site, and should not contain the level of detail required for a permit decision. The Letter also states that the type of information collected to support the decision on a permit application, such as decisions and judgments on environmental impacts and public interest determinations, will be the same whether the permit application was preceded by a Preliminary JD or an Approved JD.

The Letter notes that a key distinction between an Approved and a Preliminary JD is that a Preliminary JD cannot be used as a finding that there are no jurisdictional waters on a site. Only Approved JDs can make such a determination. However, the Letter states that the Corps retains the right to issue a "no-permit required" letter to indicate that a certain proposed activity is not subject to the CWA or RHA. A "no-permit required" letter, however, does not make any determinations regarding the presence or absence of jurisdictional waterbodies on a site.

Honigman notes that, "The Letter does not address the decision-making process behind the issuance of JDs." For guidance on the jurisdiction of the CWA and the RHA, the Letter refers to regulations promulgated by the Corps, and the Corps’ June 19, 2007 memorandum entitled "Memorandum re: Clean Water Act (CWA) Jurisdiction Following the U.S. Supreme Court Discussion in Rapanos v. United States."

Access the Honigman Alert posted on the WIMS-EcoBizPort website and link to the complete letter and contact information (click here). Access the WIMS-EcoBizPort Special Report on the Rapanos decision and related issues (click here) [*Water]

UCS Says Auto Industry Backing Away From CAFE Commitments

Jul 2: the Union of Concerned Scientists (UCS) charge that the auto industry comments submitted yesterday asking the Bush administration to weaken fuel economy standards below levels the industry previously acknowledged it could meet are "a brazen attempt to undermine the intent of the law passed by Congress late last year." The comments were submitted to the National Highway Traffic Safety Administration (NHTSA) by the industry's main trade group, the Alliance of Automobile Manufacturers (AAM). UCS and many other organizations and states also submitted comments to the agency, urging it to strengthen standards.

Jim Kliesch, a UCS senior engineer said, "Americans are paying more than four dollars for a gallon for gas and the auto industry wants to produce more gas guzzlers. That would not only hurt consumers, it would devastate auto dealers. Dealers can't even give away gas guzzlers in a world of high gas prices. Regulators need to reject the auto industry's scare tactics and pass stronger standards based on realistic assumptions about how much better fuel economy will benefit consumers." In its comments to NHTSA, UCS noted that the agency is basing its calculations on a gas price that falls about $1.50 short of current prices. One of UCS's objections to the NHTSA draft rule is that is uses an extremely low estimate for the cost of gas, approximately $2.50 a gallon or less between 2011 and 2030 (in 2007 dollars).

UCS says that last year, the Alliance launched a "disinformation campaign" in an unsuccessful attempt to blunt Congressional support for better fuel economy standards. The Alliance's recent comments repeated many of that campaign's economic scare tactics, Kliesch said, despite the fact that the industry eventually agreed to the standards passed by Congress.

UCS cites for example, a December 1, 2007, statement, from Alliance President Dave McCurdy called the fuel economy bill "realistic and reasonable." He also said, "We believe this tough, national fuel economy bill will be good for both consumers and energy security. We support its passage."

According to UCS calculations, achieving just the minimum 35 miles-per-gallon (mpg) fleet-wide average by 2020 would bolster the auto industry and the economy. The standards would cut oil use by 1.1 million barrels a day. For consumers, that is akin to cutting the cost of gasoline at today's prices by more than a dollar per gallon. Rather than boosting oil industry profits, drivers would spend those fuel savings locally, strengthening local economies. Kliesch said further that producing fuel-efficient technologies and vehicles would generate green, domestic jobs. According to a UCS analysis, achieving a 35-mpg fleet-wide average would create 149,000 new jobs nationwide in 2020.

According to a recent UCS report, NHTSA could set cost-effective fleet average fuel economy standards approaching 40 mpg by 2020, a target achievable even without hybrid technology. With a modest 25 percent hybrid market share in 2020, a fleet average fuel economy of 42 mpg could be achieved, while increased sales of fuel-efficient hybrids could push the average even higher.

Specifically the Alliance said in part, that "The technology analyses used by NHTSA understate the costs and overestimate the benefits associated with the proposed standards. Materials provided by the Alliance raise issues about the net benefits of the proposed standards and in fact indicate that they may create net social costs. NHTSA’s proposed standards exceed the statutory “maximum feasible” criterion, especially for the earlier years of the five year period. The pace of technological development required by the proposed 4.5% growth rate of CAFE standards from MYs 2011 through 2015, year over year, are based on a 'front-loading' of the implementation of technologies, and the results go beyond what it is technologically feasible and economically practicable.

"We urge that the above concerns be taken into account. We believe this will support the conclusion that NHTSA’s average annual increase of 4.5% in CAFE standards for model years 2011-2015 is overly aggressive. The setting of future standards is a complex issue that can have detrimental effects on industry, the economy and consumer choice, if done without proper consideration of all issues. The specific “front loaded” standards proposed in the rulemaking will pose a significant challenge to the automobile industry. Our comments provide suggestions for improving the methodology and assumptions that would lead to an improved final rule."

NHTSA issued its proposed rules -- Average Fuel Economy Standards, Passenger Cars and Light Trucks; Model Years 2011-2015 -- [See WIMS 4/28/08] on May 2, 2008 [73 FR 24351-24487], with the comment deadline of July 1, 2008. The proposal indicated that, "This document proposes substantial increases in the Corporate Average Fuel Economy (CAFE) standards for passenger cars and light trucks that would enhance energy security by improving fuel economy. Since the carbon dioxide (CO2) emitted from the tailpipes of new motor vehicles is the natural by-product of the combustion of fuel, the increased standards would also address climate change by reducing tailpipe emissions of CO2. Those emissions represent 97 percent of the total greenhouse gas emissions from motor vehicles. Implementation of the new standards would dramatically add to the billions of barrels of fuel already saved since the beginning of the CAFE program in 1975."

Access a UCS release with links to extensive additional information (click here). Access a second UCS release regarding the Administrations role in the CAFE standards (click here). Access part of the extensive AAM comments (click here). Access the EPA Docket for the rulemaking with links to the proposed rules, background documents and all public comments (click here). [*Energy]

Mossville, LA Group Submits Environmental Racism Petition

Jun 23: Advocates for Environmental Human Rights (AEHR), a human rights law firm, has submitted a Second Amended Petition and Petitioners’ Observations on the Government’s Reply Concerning the United States Government’s Failure to Protect the Human Rights of the Residents of Mossville, Louisiana, to the Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS). The submission is on behalf of Mossville Environmental Action Now (MEAN) and residents of Mossville, Louisiana, pursuant to Article 23 of the Rules of Procedure of the Inter-American Commission.

The 97-page petition charges that the residents of the small unincorporated area of Mossville, composed of approximately 375 households, predominantly African American, located between two incorporated areas suffer from severe health problems, elevated levels of cancer-causing and hormone-disrupting chemicals, a devastated environment, and a deteriorated quality of life, all of which arise from governmental approvals of highly toxic industrial development in and around Mossville.

The petition indicates that the United States government and its political subdivisions have authorized fourteen industrial facilities to manufacture, process, store, and discharge toxic and hazardous substances in close geographic proximity to Mossville residents. Three of these facilities -- an oil refinery, a vinyl manufacturer, and a petrochemical facility -- are located within the recognized historic boundaries of Mossville, and eleven other facilities -- three vinyl manufacturers, one coal-fired power plant, and eight petrochemical facilities -- are located within 0.8 kilometers (one-half mile) of the community. Each of the facilities in the Mossville area has received from governmental agencies the requisite permits to pollute the air, water, and land.

The petition charges, "Although the environmental and health agencies of the United States have documented the massive industrial pollution burdens on the Mossville community, as well as residents’ exposure to health-damaging levels of toxic chemicals, these agencies have failed to adequately address this environmental health crisis that denies Mossville residents their fundamental human rights to life, health, and privacy. Furthermore, although the United States government has acknowledged the pervasive pattern of discrimination that subjects Mossville, as well as other African American, Latino, Native American, and Asian American communities throughout the nation, to racially disproportionate toxic pollution burdens, the United States government has failed to protect the human right to freedom from racial discrimination."

Mossville and the MEAN group seek remedies for these human rights violations and respectfully requests that the Commission, pursuant to human rights laws and standards, recommend to the United States that it: (1.) provide medical services to Mossville residents suffering from diseases and health problems associated with environmental toxic exposures, including health monitoring services; (2.) offer appropriate relocation to consenting Mossville residents that allows them to live in healthier environs, away from toxic industrial facilities and contaminated sites; (3.) refrain from issuing environmental permits and other approvals that would allow any increase in pollution by existing industrial facilities located in close proximity to the Mossville community, and refrain from issuing any environmental permits and other approvals that would allow the introduction of any new industrial facility in the Mossville area; and (4.) reform its existing environmental regulatory system in a number of specified ways.

The Inter-American Commission on Human Rights (IACHR) is one of two bodies in the inter-American system for the promotion and protection of human rights. The Commission has its headquarters in Washington, DC. The IACHR is an autonomous organ of the Organization of American States (OAS). Its mandate is found in the OAS Charter and the American Convention on Human Rights. The IACHR represents all of the member States of the OAS. It has seven members who act independently, without representing any particular country. The members of the IACHR are elected by the General Assembly of the OAS.

Access the complete Mossville petition (click here). Access the AEHR website for more information (click here). Access the IACHR website for additional information (click here).

Record-Setting Year For Renewable & Efficiency Investments

Jul 1: A new report, Global Trends in Sustainable Energy Investment 2008, prepared by UK-based New Energy Finance for United Nations Environment Programme's (UNEP's) Paris-based Sustainable Energy Finance Initiative indicates that climate change worries, growing support from world governments, rising oil prices and ongoing energy security concerns, combined to fuel another record-setting year of investment in the renewable energy and energy efficiency industries in 2007. Over $148 billion in new funding entered the sustainable energy sector globally last year, up 60% from 2006, even as a credit crunch began to roil financial markets.

Achim Steiner, the head of UNEP said, "The clean energy industry is maturing and its backers remain bullish. These findings should empower governments-both North and South-to reach a deep and meaningful new agreement by the crucial climate convention meeting in Copenhagen in late 2009." Wind energy again attracted the most investment($50.2 billion in 2007), but solar power grew most rapidly:attracting some $28.6 billion of new capital and growing at an average annual rate of 254% since 2004, driven by the advent of larger project financings.

The picture since the end of 2007 has been somewhat subdued across the sector, with only mergers and acquisitions up as several substantial wind developers sold their portfolios -- many realizing that with the tightening up of the credit markets they could not finance the growth themselves -- and the U.S. ethanol industry undergoing restructuring. But in the second quarter of 2008 most areas of investment rebounded, even as global financial markets remained in turmoil. Sustainable energy venture capital and private equity in Q2 2008 was up 34% on Q2 2007, new build asset finance was up 8% and public market investment showing a strong recovery with the IPO of Portuguese utility EDP's renewable energy business, EDP Renovaveis.

Steiner, who is also a UN Under-Secretary General said, "Just as thousands were drawn to California and the Klondike in the late 1800s, the green energy gold rush is attracting legions of modern day prospectors in all parts of the globe. A century later, the key difference is that a higher proportion of those looking for riches today may find them. With world temperatures and fossil fuel prices climbing higher, it is increasingly obvious to the public and investors alike that the transition to a low-carbon society is both a global imperative and an inevitability. This is attracting an enormous inflow of capital, talent and technology. But it is only inevitable if creative market mechanisms and public policy continue to evolve to liberate rather than frustrate this clean energy dawn. What is unfolding is nothing less than a fundamental transformation of the world's energy infrastructure."

Most of the new money flowed into Europe, followed by the USA. However, China, India and Brazil are drawing growing investor interest -- their share of new investment growing from 12% in 2004 to 22% in 2007, an increase in absolute terms of 14 times, from $1.8 billion to $26 billion. Total 2007 sustainable energy transaction volume was $204.9 billion, of which $98.2 billion went into new renewable energy generation (especially wind in the US, China and Spain), $50.1 billion went into technology development and manufacturing scale-up, and $56.6 billion changed hands through mergers and acquisitions. With 31 gigawatts of new installed generation, sustainable energy accounted for 23% of new power capacity added globally in 2007, about 10 times that of nuclear.

Sustainable energy companies accounted for 19% of all new capital raised by the energy sector on the global stock markets in 2007. The report indicates that, "Investment in the sustainable energy sectors must continue to grow strongly if targets for greenhouse gas reductions and renewables and efficiency increases are to be met. Investment between now and 2030 is expected to reach $450 billion a year by 2012, rising to more than $600 billion a year from 2020. The sector's overall performance during 2007 and into 2008 sets it on track to achieve these levels."

Access a lengthy release from UNEP with additional details and links to extensive related information (click here). Access links to the complete report, executive summary, and PowerPoint presentation (click here). [*Energy, *Climate]

Suit Filed Challenging EPA's "Water Transfer Rule"

Jun 27: As previously promised, Earthjustice filed suit in U.S. Circuit Court in Atlanta to challenge the Bush administration's controversial "water transfer rule" announced on June 9, 2008 [See WIMS 6/10/08]. Earthjustice indicates that the new rule "says polluters don't need to comply with the Clean Water Act when they transfer dirty water -- from canals contaminated by urban or agricultural pollution, for example -- directly into public lakes and streams." Representing Florida Wildlife Federation, Earthjustice contends in its lawsuit that such water transfers should be protected by the Clean Water Act. Earthjustice also said the rule is intended to effectively overrule a 2006 Federal court decision which declared the practice of unpermitted pollution pumping to be illegal (See Friends of the Everglades, Inc. v. S. Fla. Water Mgmt. Dist.).

According to EPA the final rule defines a water transfer as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. This does not apply to pollutants introduced by the water transfer activity itself to the water being transferred. EPA indicates that water transfers are activities that divert water between waterbodies, typically through the use of pumps or passive redirection through tunnels, channels, and/or natural stream water features.

The Association of Metropolitan Water Agencies (AMWA) applauded the rule, calling it essential for ensuring adequate water supplies for communities. AMWA said the rule affirms how water transfers have been regulated for decades, and states will retain the authority they have always had to regulate transfers under state law, should they choose to do so. AMWA had said previously in support of the rule [See WIMS 8/16/06] that requiring NPDES permits for water transfers could impermissibly interfere with local water resource management decisions that Congress intended to protect. They said their position is also held by the Supreme Court. AMWA is an organization of the largest publicly owned drinking water systems in the United States. AMWA's membership serves more than 120 million Americans with drinking water from Alaska to Puerto Rico.

Earthjustice attorney David Guest, said, "The Bush administration has no right to create exemptions in the Clean Water Act that endanger public drinking water supplies. The public won't stand for this last-ditch move to protect polluters." Earthjustice indicated that the Federal court case challenged the practice of "backpumping" water from contaminated drainage canals into Lake Okeechobee a major drinking water supply. The federal court ruled that the polluted water, coupled with routine disinfection at public water plants, creates "toxic disinfection byproducts that can sicken humans."

They said that "transfers of contaminated water have already triggered numerous toxic algae blooms around the United States. The algae growths can make people sick and sometimes kill livestock or pets that drink the water. The drinking water supplies for millions of Americans across the country have been affected, including notable cases in Florida, Colorado, New Hampshire, and California. The dirty water is a health risk for pregnant women, and taxpayers are on the hook for hundreds of millions of dollars in additional treatment costs while polluters put more profits in their pockets."

Access a release from Earthjustice and links to background information (click here). Access the petition to vacate the EPA final rule (click here). Access links to the final rule, fact sheet and 19-page interpretation memo from EPA's website (click here). Access the EPA docket for the rulemaking for background information and comments (click here). Access the AMWA website for additional information (click here). [*Water]