Independent Berkeley Earth Study Confirms "Global Warming Is Real"

Oct 24: "Global warming is real," according to a major study by the Berkeley Earth Surface Temperature (BEST) project, just released on October 20. According to a summary, despite issues raised by climate change skeptics, the BEST project finds reliable evidence of a rise in the average world land temperature. The team finds that "the global land mean temperature has increased by 0.911 ± 0.042 C since the 1950s (95% confidence for statistical and spatial uncertainties). This change is consistent with global land-surface warming results previously reported, but with reduced uncertainty."

 

    The Berkeley Earth Surface Temperature (BEST) project, an effort to provide an unbiased and independent analysis of global warming to prove or disprove its existence, has release four scientific papers setting out the main conclusions of the study to date (October 2011). The BEST project was created to make the best possible estimate of global temperature change using as complete a record of measurements as possible and by applying novel methods for the estimation and elimination of systematic biases. It was organized under the auspices of Novim, a non-profit public interest group. The papers have been submitted for peer review and cover the following topics: Statistical Methods; Urban Heat Island; Station Quality; and Decadal Variations. The BEST team is making the preliminary results public, together with the programs and data set in order to invite additional scrutiny as part of the peer review process.

 

    The team explains that existing data used to show global warming have met with much criticism. The BEST project attempts to resolve current criticism of the former temperature analyses by making available an open record to enable rapid response to further criticism and suggestions. The results include the best estimate for the global temperature change and the estimates of the uncertainties in the record. The team indicates that "science is nonpartisan and our interest is in getting a clear view of the pace of climate change in order to help policy makers to evaluate and implement an effective response. In choosing team members, we engage people whose primary interests are finding answers to the current issues and addressing the legitimate concerns of the critics on all sides. None of the scientists involved has taken a public political stand on global warming."

 

    The team indicates that the most important indicator of global warming, by far, is the land and sea surface temperature record. This has been criticized in several ways, including the choice of stations and the methods for correcting systematic errors. The BEST study sets out to do a new analysis of the surface temperature record in a rigorous manner that addresses this criticism. It uses over 39,000 unique stations, which is more than five times the 7,280 stations found in the Global Historical Climatology Network Monthly data set (GHCN-M) that has served as the focus of many climate studies. The team's aim is to resolve current criticism of the former temperature analyses, and to prepare an open record that will allow rapid response to further criticism or suggestions.

 

    The Berkeley Earth Surface Temperature (BEST) project has the following objectives: (1) To merge existing surface station temperature data sets into a new comprehensive raw data set with a common format that could be used for weather and climate research; (2) To review existing temperature processing algorithms for averaging, homogenization, and error analysis to understand both their advantages and their limitations; (3) To develop new approaches and alternative statistical methods that may be able to effectively remove some of the limitations present in existing algorithms; (4) To create and publish a new global surface temperature record and associated uncertainty analysis; and (5) To provide an open platform for further analysis by publishing our complete data and software code as well as tools to aid both professional and amateur exploration of the data.

 

    The project is funded from grants and donations. A complete list of donors and the amounts that they contributed is available on the BEST website. The project has received financial support totaling more than $600,000 from the Folger Fund, the Lawrence Berkeley National Laboratory, the Fund for Innovative Climate and Energy Research (created by Bill Gates), the Bowes Foundation, the Koch Foundation, and the Getty Foundation. Together, the people who created these organizations span a wide range of political views. Also, the project has received funding from a number of private individuals, totaling $14,500 at this time. All donations were provided as unrestricted educational grants and donors have no influence over the methodology or the published results. The results have now been made public and will be presented with full transparency, and the data are available to those who wish to carry out their own analysis.

    Access a 2-page summary of results (click here). Access the BEST website for complete background, FAQs and related information (click here). Access links to the 4 papers, data sets, summaries, charts, and more (click here). Access the complete list of donors (click here). [#Climate]

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UNEP/WRI Report On Options In Reaching Climate Change Goals

Oct 24: A report by the United Nations Environment Programme (UNEP) and the World Resources Institute (WRI) warns that  international efforts to mitigate climate change are insufficient to meet the goal of keeping global warming to below 2 degrees Celsius above pre-industrial levels. The report is being released just a month in advance of the United Nations Framework Convention on Climate Change (UNFCCC) meeting in Durban, South Africa (COP17/CMP7).

 

    The report -- Building the Climate Change Regime: Survey and Analysis of Approaches -- outlines a list of options to achieve the target, including more cuts in greenhouse gases (GHGs) from additional sectors, stronger accounting rules both within the UNFCCC and through other multilateral and domestic strategies, sharing mitigation efforts based on countries' capacities or contributions to the problem, and legally binding commitments. The report reviews more than 130 proposals put forward by governments, non-governmental organizations (NGOs), and academics to design a climate regime capable of delivering adequate mitigation. At the upcoming climate meeting in Durban, November 28 to December 9, 2011, countries will have the opportunity to turn these ideas into action and start to bridge the ambition gap needed to truly have an impact [See WIMS 10/19/11].

    The report and warning from is the latest in a long series of UN warnings that world is falling behind in the battle against global warming. Just last month, at a Leaders' Dialogue on Climate Change on the eve of the high-level session of the General Assembly, Secretary-General Ban Ki-moon urged governments to show greater commitment. Scientists say that keeping to the 2-degrees Celsius limit over the course of the 21st century is crucial to avert widespread disasters, from the disappearances of low-lying island nations under rising seas and searing droughts, famines, extreme storms and flooding, to the extinction of species.

    UNEP Executive Director Achim Steiner said, "The analysis provided in this new report offers many options that can happen either in the formal negotiations or as complementary measures elsewhere, options that can assist the more than 190 United Nations Member States move quickly to harvest the opportunities of a transition to a climate resilient, low-carbon, resource-efficient Green Economy." The report highlights the need to mobilize a range of public and private sector groups at the international, national and sub-national levels, who can contribute to climate governance, emission reductions and adaptation investment.

    The report stressed that the issue of legally binding commitments is central to debates ahead of Durban and noted that it is possible to build upon existing UNFCCC processes to strengthen the climate regime and raise the overall level of ambition to reach the target. UNEP indicated that "While a number of studies have demonstrated that the level of climate mitigation pledged to date is insufficient to limit temperature increases to 2 degrees Celsius, this paper clearly demonstrates that there are a range of good ideas and options available that could help correct the course and move toward a safer and more stable climate." The report breaks down proposals into five key issues that have been major points of debate:

1. Options under the UNFCCC to Increase Ambition: Within the UNFCCC, new approaches could involve reducing the emissions of additional greenhouse gases, including additional sectors, and strengthening accounting rules for emissions and emission reductions. Utilizing tools within the UNFCCC can be beneficial because they minimize duplication and implementation costs while facilitating trust-building. However, other complementary options should also be considered.
2. Options outside the UNFCCC to Increase Ambition: Beyond the UNFCCC process, approaches include multilateral, plurilateral, bilateral and domestic strategies. These approaches offer prospects to mobilize actors around shared interests like development, trade, human rights, energy or food security. While these new strategies can generate greater ambition, one disadvantage of following approaches outside the UNFCCC is a risk of undermining existing processes and creating inefficiencies.
3. Means for Sharing the Mitigation Effort Under the UNFCCC: Various proposals could be used to allocate responsibility to bridge the gap between the current level of effort and scientific recommendations. Possible approaches include dividing mitigation efforts based on countries' capacity or based on countries' contribution to the problem. Setting a global carbon budget would help ensure that the climate regime meets the adequacy standard, but it could be difficult to implement new allocations for emission obligations.
4. The Role of Various Actors in Tracking Country Performance on Mitigation: Harmonized global accounting, reporting and verification standards are fundamental to progress. Two options are to use tools within the UNFCCC or outside the UNFCCC. Both options are discussed in detail.
5. The Legal Form of a Future Climate Agreement: The issue of legally binding commitments is central to the debates ahead of Durban. The paper presents multiple options for climate negotiators: to proceed without new, legally-binding commitments; to commit to achieving new legally-binding commitments immediately; or to strengthen the components of legal character over time to achieve new, legally-binding commitments as soon as possible.

    Access a release from the UN (click here). Access a more detailed release from UNEP (click here). Access a release from WRI with links to the complete report, background and related information (click here). Access the UNFCCC website for more information and details on the upcoming COP17/CMP7 meeting (click here). [#Climate]

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EPA Proposes Options For NPDES CAFO Reporting Rule

Oct 21: U.S. EPA has issued a proposed rule options [76 FR 65431-65458] regarding National Pollutant Discharge Elimination System (NPDES) permits and the Reporting Rule for Concentrated Animal Feeding Operation (CAFO). EPA co-proposes two options for obtaining basic information from CAFOs to support EPA in meeting its water quality protection responsibilities under the Clean Water Act (CWA). EPA indicates that the purpose of the co-proposal is to improve and restore water quality by collecting facility-specific information that would improve EPA's ability to effectively implement the NPDES program and to ensure that CAFOs are complying with the requirements of the CWA.

 

    Comments on the proposed action must be received on or before December 20, 2011. EPA plans to hold two Webinars in November, 2011 to provide an overview of, and answer questions about, the proposed rule requirements. The webcasts are scheduled for November 9 and 17, 2011, from 1:00-2:30 PM Eastern time. The webcasts are intended open for registration at this time (see link below).

 

    EPA co-proposes two options by which the Agency may achieve today's rule objectives: Option 1 would apply to all CAFOs; Option 2 would identify focus watersheds where CAFO discharges may be causing water quality concerns and EPA could use its section 308 authority to obtain information from CAFOs in these areas. EPA indicates that it recognizes that there may be other ways to achieve this objective, and the Agency solicits comment on alternative approaches to meet the objectives of the proposed rule. Such alternative approaches may require rulemaking. EPA would consider any such suggested alternative approaches in developing the final rule. EPA describes three such alternative approaches and seeks public comment on those approaches.

 

    EPA is proposing the rues in response to a settlement agreement with environmental groups that commits EPA to propose, by October 14, 2011, a rule under section 308 of the CWA, to require all owners or operators of CAFOs, whether or not they have NPDES permits, to submit certain information to EPA. EPA committed to take final action on the rule by July 13, 2012.

 

    In 2008, EPA issued revised regulations in response to the Waterkeeper decision [i.e. February 2005, U.S. Court of Appeals for the Second Circuit decision in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2d Cir. 2005)] Among other changes, the revised regulations required only those CAFOs that discharge or propose to discharge to obtain an NPDES permit. Subsequently, environmental groups and industry filed petitions for review of the 2008 rule, which were consolidated in the U.S. Court of Appeals for the Fifth Circuit. EPA signed a settlement agreement with the environmental petitioners in which EPA committed to propose a rule, pursuant to CWA section 308, that would require CAFOs to provide certain information to EPA. The settlement agreement provides the context and timeline for this proposed rulemaking.

 

    On March 15, 2011, the Fifth Circuit Court of Appeals vacated the requirement in EPA's 2008 CAFO rule that CAFOs that "propose" to discharge obtain NPDES permits and held that CAFOs are not liable under the CWA for failing to apply for NPDES permits. Nat'l Pork Producers Council (NPPC) v. EPA, 635 F.3d 738 (5th Cir. 2011). The Fifth Circuit held that there must be an "actual discharge to trigger the CWA requirement to obtain a permit." [See WIMS 3/16/11].

       

    Access the FR announcement for complete details and commenting instructions (click here). Access registration details for the webinars (click here). Access a fact sheet on the proposal (click here). Access a Q&A document (click here). Access EPA's CAFO Rulemaking website for complete background (click here). Access EPA's docket for this action with additional background and to review and submit comments (click here). [#Water, #Agriculture/CAFO]

 

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EPA Schedule For WWTP Standards For Natural Gas Wastewater

Oct 20: EPA Administrator Lisa Jackson issued a statement saying, "The president has made clear that natural gas has a central role to play in our energy economy. That is why we are taking steps -- in coordination with our federal partners and informed by the input of industry experts, states and public health organizations -- to make sure the needs of our energy future are met safely and responsibly. We can protect the health of American families and communities at the same time we ensure access to all of the important resources that make up our energy economy. The American people expect and deserve nothing less."

    EPA said in the statement that recent technology and operational improvements in extracting natural gas resources, particularly shale gas, have increased gas drilling activities across the country. Production from shale formations has grown from a negligible amount just a few years ago to almost 15 percent of total U.S. natural gas production and this share is expected to triple in the coming decades. EPA said, "The sharp rise in domestic production has improved U.S. energy security and created jobs, and as with any resource the Administration is committed to ensuring that we continue to leverage these resources safely and responsibly, including understanding any potential impact on water resources."

    Re: Shale Gas Standards - Currently, wastewater associated with shale gas extraction is prohibited from being directly discharged to waterways and other waters of the U.S. While some of the wastewater from shale gas extraction is reused or re-injected, a significant amount still requires disposal. As a result, some shale gas wastewater is transported to treatment plants (i.e. wastewater treatment plants, WWTP), many of which are not properly equipped to treat this type of wastewater. EPA will consider standards based on demonstrated, economically achievable technologies, for shale gas wastewater that must be met before going to a treatment facility.

    Re: Coalbed Methane Standards - Wastewater associated with coalbed methane extraction is not currently subject to national standards for being directly discharged into waterways and for pre-treatment standards. Its regulation is left to individual states. For coalbed methane, EPA will be considering uniform national standards based on economically achievable technologies.

    Information reviewed by EPA, including state supplied wastewater sampling data, have documented elevated levels of pollutants entering surface waters as a result of inadequate treatment at facilities. To ensure that these wastewaters receive proper treatment and can be properly handled by treatment plants, EPA will gather data, consult with stakeholders, including ongoing consultation with industry, and solicit public comment on a proposed rule for coalbed methane in 2013 and a proposed rule for shale gas in 2014.

    EPA said the schedule for coalbed methane is shorter because EPA has already gathered extensive data and information on coalbed methane. EPA will take the additional time to gather comparable data on shale gas. In particular, EPA will be looking at the potential for cost-effective steps for pretreatment of this wastewater based on practices and technologies that are already available and being deployed or tested by industry to reduce pollutants in these discharges.

    EPA said the announcement is part of the effluent guidelines program, which sets national standards for industrial wastewater discharges based on best available technologies that are economically achievable. EPA is required to publish a biennial outline of all industrial wastewater discharge rulemakings underway. EPA has issued national technology-based regulations for 57 industries since 1972. These regulations have prevented the discharge of more than 1.2 billion pounds of toxic pollutants each year into US waters. EPA publishes an Effluent Guidelines Program Plan (Plan) every other year. The Plan is required by Section 304(m) of the Clean Water Act. EPA last published a Plan in 2008. EPA published a preliminary 2010 Plan for public comment on December 28, 2009, and is now publishing the final "2010 Plan" (October 20, 2011).  

    Access the announcement from EPA (click here). Access extensive background information and document related to the Final 2010 Effluent Guidelines Program Plan, including a prepublication copy of the Federal Register notice, fact sheet, supporting documents and more (click here). [#Water, #Energy/NatGas]

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Global Investors Call For Meaningful Action On Climate Change

Oct 19: Despite the global economic crisis, and increased market volatility, the world's largest investors urged governments and international policy makers to take new and meaningful steps in the fight against climate change. In a joint statement, the group of 285 investors representing more than $20 trillion in assets stressed the urgent need for policy action which stimulates private sector investment into climate change solutions, creates jobs, and is essential for ensuring the long-term sustainability and stability of the world economic system.

    According to a release, investor support for climate action has more than doubled since November 2008, when 150 investors with $9 trillion in assets under management first came together to urge government leaders to act on climate change. Current levels of investments in low-carbon technology and infrastructure are substantially lower than the $500 billion per year deemed necessary by the International Energy Agency (IEA) to hold the increase of global average temperatures below 2 degrees Celsius -- the target agreed in Cancun last year.

    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 -- alongside the United Nations Environment Programme Finance Initiative (UNEP FI), and the Advisory Council of the Principles for Responsible Investment (PRI), the statement represents the largest ever grouping, by both number of signatories and assets under management, to call for policy action on climate change.

    The statement concludes: "Investment-grade climate change and clean energy policy will provide substantial economic benefits. Those countries that succeed in attracting private capital into low-carbon growth areas such as cleaner and renewable energy, energy efficiency and decarbonization will enjoy multiple benefits, including new jobs, new businesses, new research and technology innovation, more resilient and secure energy systems and, ultimately, more sustainable economies. Private investment can and must play a critical role in addressing the risks and opportunities posed by climate change. However, private sector investment will only flow at the scale and pace necessary if it is supported by clear, credible and long-term domestic and international policy frameworks -- "investment-grade climate change and energy policies" -- that shift the balance in favor of low-carbon investment opportunities."

    The statement is supported by the findings of a report -- Investment-Grade Climate Change Policy: Financing The Transition To The Low-Carbon Economy -- commissioned by the three investor groups and UNEP FI. The report underscores the importance of "investment-grade policy" which will enable institutional investors to allocate capital towards climate change solutions, including appropriate government incentives to compensate for heightened risk and sufficient scale of technology deployment. The report also emphasizes that long-term policy stability is critical and retroactive changes can significantly damage investor confidence. Contained within the report are case studies on the climate policies of six major emitters and further examples of investment-grade policy, which may prove instructive for national governments and negotiators considering future policy initiatives.

    Christiana Figueres, Executive Secretary of the United Nations Framework Convention on Climate Change (UNFCCC) commented saying, "Governments have clearly signaled their intention to move towards a low-carbon future. To get there fast enough will require huge new investments in clean energy. This is the only way to guarantee the long-term sustainability and security of the world economic system and the stability of returns from global investment, a major part of which is directly linked to the pensions and life insurance of ordinary people around the world. This global investor group has seen this clearly. The Statement from major private sector investors will help to give governments both the confidence and the knowledge to put the right incentives and mechanisms in place".

    The Investor groups sent the statement and report to the G-20 and other governments in anticipation of the United Nations Framework Convention on Climate Change meeting (COP17/CMP7) in Durban, South Africa November 28 to December 9, 2011 [See WIMS 10/11/11]. Investors will engage with policy makers there and call for domestic and international policy action including:

• The definition by governments of clear short-, medium- and long-term greenhouse gas emission objectives and targets and comprehensive, enforceable legal mechanisms and timelines.
• The creation of lasting financial incentives that shift the risk reward balance in favor of low-carbon assets.
• The design of lasting and comprehensive policies that accelerate the deployment of energy efficiency, cleaner energy, renewable energy, green buildings, clean vehicles and fuels, among others.

    International policy recommendations include:

• Continued work towards a binding international climate change treaty that includes all major emitters and sets short-, mid-, and long-term greenhouse gas emission reduction targets.
• Support the development of the Green Climate Fund and other comparable funding mechanisms.
• Accelerate efforts to reduce emissions from deforestation and forest degradation (REDD and REDD+).

    Stephanie Pfeifer, Executive Director at the IIGCC said, "Policy risk has a critical influence on investment in low-carbon growth areas such as renewable energy. Attracting capital at the scale required to meet climate change goals will only be possible when low carbon investments are seen as attractive relative to higher carbon investments. Determined leadership on national and international climate and energy policy will be fundamental in shifting this risk/return balance in favor of low carbon investments".

    Frank Pegan, Chair of IGCC Australia/New Zealand said, "Individual nations will be in a stronger position to attract private capital to stimulate their economies by implementing clear and credible climate policies. As and when governments around the world show leadership and reduce policy risk around climate change for investors, the investment flows will follow." Mindy Lubber, president of Ceres and director of the Investor Network on Climate Risk said, "The global economy is moving towards a low-carbon future. The governments that act aggressively to enact strong, long-term climate and energy policy will reap the rewards. They will drive the innovation, maintain competitiveness in the 21st century and attract investment."

    Access a release from the organizations (click here). Access the joint statement (click here). Access the 44-page report (click here). Access the UNFCCC website for more information and details on the upcoming COP17/CMP7 meeting (click here). [#Climate]

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Enviros Comment On "Bittersweet" Ruling On 4(d) Polar Bear Rule

Oct 17: In response to a challenge brought by the Center for Biological Diversity (CBD), Natural Resources Defense Council (NRDC), Greenpeace and Defenders of Wildlife, a Federal judge struck down a Bush administration rule that exempted greenhouse gas emissions from regulation under provisions of the Endangered Species Act (ESA). U.S. District Court Judge Emmet Sullivan, for the D.C. District, ruled that the Department of the Interior (DOI) violated the environmental review provisions of the National Environmental Policy Act (NEPA) when it issued a special rule that excluded from regulation activities occurring outside the range of the polar bear, such as greenhouse gas emissions from polluting facilities like coal plants.

    The groups reported, however, the court also held that DOI had broad discretion when crafting species-specific rules and therefore did not substantively violate the ESA in adopting the exemption for the polar bear. A similar interim rule issued simultaneously with listing of the polar bear as threatened in May 2008 remains in place until Interior complies with NEPA by completing a new environmental impact statement and issues a new final rule. The polar bear was the first species added to the endangered species list solely because of threats to the species from global warming. The groups said the ruling does not limit the applicability of the ESA to greenhouse gas emissions affecting species listed as endangered under the Act or to other threatened species for which Interior has not issued a specific exemption.

    Brendan Cummings at CBD commented, "Today's decision squarely places the fate of the polar bear back in the hands of the Obama administration. Rather than continue to defend an ill-conceived Bush-era rule, the Obama administration should take this opportunity to carefully craft a new rule that meaningfully addresses greenhouse gas emissions, the primary threat to the polar bear." Andrew Wetzler, director of the Lands and Wildlife program for NRDC said, "Now that the Department of the Interior must weigh in for the first time with full environmental analysis, the Obama administration is going to own this issue. It affords the president an opportunity to show he is serious about dealing with climate change and protecting wildlife. The court's ruling means the Obama administration won't be able to hide behind Bush-era policies on an issue the public clearly cares about."

    John Hocevar, oceans director at Greenpeace said, "The court's decision is bittersweet -- it acknowledges the devastating impact of global warming on polar bears and requires further review of the 4(d) rule, but stops short of fully disallowing an exemption for greenhouse gases. We will redouble our efforts to protect the polar bear's Arctic Ocean habitat, and continue to press the Obama administration to use all available tools, including the Endangered Species Act, to address greenhouse emissions and the climate crisis."

    On May 8, 2009, Department of Interior (DOI) Secretary Ken Salazar announced that he would retain the controversial special rule issued in December 2008, under the Bush Administration for protecting the polar bear under the Endangered Species Act [See WIMS 5/8/09]. But DOI said it would closely monitor the implementation of the rule to determine if additional measures are necessary to conserve and recover the polar bear and its habitat. Salazar said at the time, "To see the polar bear's habitat melting and an iconic species threatened is an environmental tragedy of the modern age. This administration is fully committed to the protection and recovery of the polar bear. I have reviewed the current rule, received the recommendations of the Fish and Wildlife Service, and concluded that the best course of action for protecting the polar bear under the Endangered Species Act is to wisely implement the current rule, monitor its effectiveness, and evaluate our options for improving the recovery of the species." At the same time, Salazar had received a letter from 53 law professors from around the country urging him to rescind the "special rule" created by the Bush administration which they said sharply limits protections for the polar bear under the Endangered Species Act.

 

    In the case , Judge Sullivan explained, "Plaintiffs claim, first, that the Service's Special Rule violates the ESA because it fails to provide for the conservation of the polar bear. Specifically, plaintiffs contend that the Service cannot effectively provide for the conservation of the polar bear without addressing global greenhouse gas emissions, which the agency itself identified as the cause of increasing Arctic temperatures that are expected to lead to a significant decline of the polar bear's sea ice habitat. Plaintiffs argue that the Service purposely and unlawfully crafted its Special Rule in such a way as to avoid addressing this threat, in contravention of the ESA's conservation mandate. The Court understands plaintiffs' frustration. However, as this Court has previously observed, climate change poses unprecedented challenges of science and policy on a global scale, and this Court must be at its most deferential where the agency is operating at the frontiers of science. . .

 

    "The question before the Court, then, is whether the Service reasonably concluded that its Special Rule provides for the conservation of the polar bear even if it does not reverse the trend of Arctic sea ice loss. . . the Court is persuaded that the

agency has done so. Accordingly, with respect to plaintiffs' ESA claim, the Court denies plaintiffs' motion for summary judgment and grants the federal defendants' and defendant-intervenors' motions for summary judgment. . .

 

    "In addition to their claims under the ESA, plaintiffs claim that the Service violated NEPA by failing to analyze the potential environmental impacts of its Special Rule, which is generally required for all 'major Federal actions significantly affecting the quality of the human environment.' 42 U.S.C. § 4332(2)(c). With respect to this claim, the Court agrees with plaintiffs. The Court declines to recognize the broad NEPA exemption that the federal defendants urge. Accordingly. . . the Court finds that the Service was required to conduct at least an initial assessment to determine whether its Special Rule for the polar bear warranted a full 'environmental impact statement' (EIS). Here, the Service conducted no analysis whatsoever; as a result, its Special Rule for the polar bear violates NEPA.

 

    "Accordingly, with respect to plaintiffs' NEPA claim, the Court grants plaintiffs' motion for summary judgment and denies the federal defendants' and defendant-intervenors' motions for summary judgment. The Court finds that vacatur of the final Special Rule is the appropriate remedy for the Service's NEPA violation. Upon vacatur of the final Special Rule [i.e. December 16, 2008], the prior May 15, 2008, interim final Special Rule for the polar bear shall remain in effect until further Order of the Court." 

 

    Access a release from the environmental groups (click here). Access the Doc No. 283 memorandum opinion (click here)Access a 5/2009 release from DOI and link to a Section 4(d) Q&A document (click here). Access the DOI Polar Bear Conservation and Management website (click here). [#Wildlife, #Climate]

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GOP & Dems Continue Debate Over Solyndra Loan Guarantee

Oct 14: The House Energy and Commerce Committee, Subcommittee on Oversight and Investigations, Chaired by Representative Cliff Stearns (R-FL) held a hearing on "Continuing Developments Regarding the Solyndra Loan Guarantee." [See WIMS 9/14/11]. Despite requests from Democrats for representation from the Department of Energy, the Subcommittee only heard testimony from two witnesses from the Department of Treasury.

    The Treasury Department testified about that Agency's belief that DOE violated the 2005 Energy Policy Act when restructuring the loan to the now-bankrupt Solyndra of a $535 million taxpayer guaranteed loan and, in the restructuring, placed taxpayers at the back of the line so that private investors would be the first to recoup losses on the company. Republican Members indicated that Treasury officials agreed to testify after the White House last Friday (October 7) "unloaded a significant new document production, including alarming emails from Treasury and OMB personnel expressing frustration that DOE had failed to communicate with them regarding the Solyndra loan guarantee or consult with the Department of Justice, as Treasury had advised. Moreover, the Treasury and OMB officials' emails clearly indicate they believe DOE's legal justification for placing taxpayers at the back of the line was inconsistent with their interpretation of the law."
 
    Republican Members cite a December 15, 2010 email, from senior officials at OMB questioning the legality of DOE's restructuring, writing: "There are some questions at the staff level about how DOE is going about the restructuring for Solyndra. At least one involves the legal question of what 1703(d) (3) means for their plan to make some of the debt 'junior' to the new debt. … I think they have stretched this definition beyond its limits." The Members indicate that the emails refer to a legal analysis prepared by DOE to justify its decision to place private investors ahead of taxpayers in the event of Solyndra's bankruptcy, despite a clear prohibition of such 'subordination' of the taxpayers' obligation in the law. 
 
    A Senior Treasury lawyer offered additional commentary on DOE's actions, writing in an August 16, 2011, email: "I would bet a quarter that the DOE lawyers have some kind of theory on how whatever restructuring they have done and whatever they are considering doing does not violate these requirements. Cant wait to hear it." Chairman Cliff Stearns said after the hearing, "I have never seen anything like this in all my years in Congress -- here we have one cabinet level agency concerned that another has broken the law, and taxpayers are on the hook for half a billion dollars as a result."

    Full Committee Chairman Fred Upton (R-MI) said in part, "What we have seen so far suggests that DOE essentially ignored Treasury after signing off on the $535 million loan guarantee. The documents also reveal a Department of Energy fervently steering more taxpayer cash to Solyndra with complete disregard to the alarm bells coming from Treasury and others within the Obama administration. DOE apparently stonewalled Treasury, failing or refusing to turn over information related to Solyndra's restructuring. . . The Department of Energy has a lot more explaining to do, and we will hear from them again soon. Unfortunately, we also have to ask: how many more Solyndras are there? Were other warning flags ignored, and risky gambles made with the taxpayers' hard-earned money?. . ."

    Full Committee Ranking Member Henry Waxman, (D-CA) said in an opening statement, "The Committee has received a six-page document from the Department of Energy that explains the Department's legal rationale for subordination. We asked last week if the majority would object if we released this document so the public could understand DOE's rationale. The majority objected. They did not want the public to see DOE's explanation. On Wednesday, the Democratic staff asked the Republican staff if there would be an objection if we included a discussion of the DOE legal memorandum in the background memorandum we provide to Democratic members. Again, the Republicans objected. They asked us to withhold this critical information -- DOE's legal rationale for its actions -- from our own members. And yesterday, the Republicans said they don't believe this memo should be made public at this time. This investigation is beginning to resemble a kangaroo court. . . I don't object to an investigation into Solyndra. Based on the record to date, I don't see evidence of wrongful conduct by government officials, just a bad investment decision. . ."

    According to the DOE legal analysis as contained in the memos referred to by Rep. Waxman, "On the current facts, the Loan Programs Office has determined that the proposed restructuring offers the best prospect of eventual repayment in full of the Borrower's obligations under the Loan Guarantee Agreement, and is demonstrably preferable to a liquidation of the Borrower. In light of that determination, we conclude that the proposed subordination of the Borrower's obligations to DOE is consistent with both the text and the purposes of Title XVII. . ."
 
    Access a release from Committee Republicans with links to the email, the Solyndra Restructuring Legal Memo and the second version Solyndra Restructuring Legal Memo (click here). Access the Republican website for the hearing with background documents, opening statements, witness testimony and a webcast (click here). Access the Democratic website for the hearing with links to opening statements and the DOE Memos (click here). [#Energy/Solar]

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House Approves H.R.2250 To Delay "Boiler MACT" Rules

Oct 13: The U.S. House of Representatives approved H.R.2250, the EPA Regulatory Relief Act (i.e. Boiler MACT bill) by a vote of 275-142 -- 234 Republicans and 41 Democrats voted for the bill; and 142 Democrats voted against it. The proposal would direct EPA to develop achievable standards affecting non-utility boilers and incinerators and grants additional time for development of and compliance with the rules. The legislation would stay the boiler and incinerator rules and calls for EPA to repropose the rules within 15 months and extend compliance times from 3 to 5 years [See WIMS 6/22/11]. The bill had been scheduled for passage on October 12, but was delayed [See WIMS 10/12/11].

 

    The House Energy & Commerce Committee Republicans issued a release indicating that, "The Obama administration recently issued a series of multi-billion dollar regulations affecting tens of thousands of manufacturing and industrial facilities nationwide. H.R. 2250, the EPA Regulatory Relief Act, offers a common-sense alternative approach to these rules, providing America's job creators with much-needed regulatory relief." Republicans said the bill, introduced by Representatives Morgan Griffith (R-VA) and G.K. Butterfield (D-NC), "will preserve hundreds of thousands of jobs currently at risk from EPA's boiler MACT rules. To protect jobs and produce sensible environmental safeguards, this legislation gives EPA time to re-propose and finalize new rules so that standards and timelines for reducing emissions from industrial boilers and incinerators are achievable for real world facilities."

"H.R. 2250 helps lift the burden of excessive regulations on America's job creators," said Rep. Griffith. "Unreasonable regulations – like the currently written Boiler MACT rules – are threatening jobs across the nation and creating uncertainty for businesses. The investments required by these rules are irreversible. For those businesses that decide to stop producing their product at a particular location, the job losses are also irreversible. The good news here is that excessive regulations are reversible and fixable. H.R. 2250 is an opportunity to fix these regulations and keep the focus on protecting valuable American jobs. I urge my colleagues in the Senate to take up this bipartisan jobs legislation soon."

    Energy and Power Subcommittee Chairman Ed Whitfield (R-KY) praised passage of both H.R.2250 and H.R.2681, the Cement Sector Regulatory Relief Act [See WIMS 10/6/11], which passed the House last week and offers similarly sensible regulatory solutions for cement manufacturers. Rep. Whitfield said, "The passage of these two bills is yet another example of the House's leadership in bringing balance to our environment and energy policies. EPA must consider the consequences on jobs and the economy when they implement new regulations and the passage of the Boiler and Cement MACT bills will provide EPA the time it needs and a framework to propose regulations that have achievable and workable timelines and standards without putting jobs at risk.  These bills protect over 230,000 jobs at risk as a result of the Boiler MACT rules, and at least 19,000 at risk because of the Cement MACT rules, while also ensuring that there is a timeline in place for the agency to issue new regulations to protect health and the environment."

 

    House Speaker John Boehner (R-OH) released a statement saying H.R.2250 would protect thousands of American jobs from excessive government regulations and is a key part of the Republican jobs plan. He said, "Removing government obstacles to job growth is a key part of the Republican jobs plan. This bipartisan bill protects hundreds of thousands of jobs by stopping excessive new federal regulations on boilers used in factories, colleges, and hospitals across the country. And it forces Washington to go back to the drawing board and develop sensible rules that don't raise prices on families or put thousands of jobs at risk. House leaders have sought common ground with the president on this bipartisan jobs bill, and I hope he'll urge the Senate to quickly pass it and commit to signing it so we can remove yet another government barrier to job growth."

 

    Speaker Boehner also referenced an October 3, letter from House leaders to President Obama regarding the two bills -- H.R.2250 & H.R.2681. The Members said in part, "The federal government has a responsibility under the Constitution to regulate interstate commerce, and there are reasonable regulations that protect our children and help keep our environment clean. But there are also excessive regulations that unnecessarily increase costs for consumers and small businesses, and make it harder for our economy to create jobs. The rules addressed by the bills the House will consider this week are examples of such harmful government excess. . . It is our hope that in the spirit of putting country before party, you will call on the Senate to follow the House in passing these measures, and commit to signing them into law should they reach your desk."

 

    John Walke, clean air director at the Natural Resources Defense Council (NRDC) on H.R. 2250 said in a statement, "We all lose with this legislation. The latest installment of the tea party's unraveling of the Clean Air Act allows dirty incinerators and industrial boilers to pollute our air with more cancer-causing dioxins, arsenic, mercury and lead. This bill, together with the cement bill and TRAIN Act passed earlier, will sacrifice tens of thousands of lives, pollute the air we breathe, and expose our children, families, and communities to toxic air pollutants that cause asthma, other illnesses and even brain damage in children. Polluters might claim victory but in the end, no one wins."

    Steve Cochran, Vice President of Climate and Air at Environmental Defense Fund (EDF) issued a statement saying, "Two weeks ago, they voted to let power plants, the nation's largest source of mercury air emissions, off the hook. Now they've decided to let industrial boilers and cement plants, the nation's second and third largest sources of mercury air emissions, off the hook too -- letting them continue to release mercury, arsenic, chromium, lead and dioxins into the air without limit. It's time Congress stopped pretending that increasing air pollution is an economic policy, or that forcing us to breathe dangerous toxins is a job creation plan. No one benefits when Americans suffer more heart attacks, asthma attacks, birth defects and premature deaths."

 

    American Chemistry Council (ACC) President and CEO Cal Dooley issued a statement saying, "By passing this bipartisan bill, House lawmakers have shown their commitment to effective, achievable emission standards for industrial boilers and heaters affecting 200,000 businesses, institutions and municipalities across the country. We urge the U.S. Senate to quickly approve its version (S.1392), which currently has 35 co-sponsors from both parties. Enactment into law will give EPA time to get the rules right, provide certainty about the rules and compliance deadlines, and enhance business confidence to move ahead with investments, expansions and hiring now. In April, ACC and other groups filed a petition asking EPA for an administrative 'stay' of the boiler emission standards pending reconsideration. While EPA granted the stay, its decision is being challenged in two courts, so legislation is essential."

    The National Association of Manufacturers (NAM), Senior Vice President for Policy and Government Relations Aric Newhouse issued a statement saying, "During this critical time in our nation's economic recovery, manufacturers simply cannot afford another costly and burdensome regulation that will put 230,000 jobs at risk, according to the Council of Industrial Boiler Owners. The Boiler MACT rule will cost manufacturers more than $14 billion in valuable capital that could be spent on investments to create jobs. Manufacturers thank the House members who stood up today for jobs and voted in support of this important legislation to rein in the EPA. We will continue to work to stop the EPA's aggressive agenda. Today's vote was another step to protect jobs and competitiveness, and we strongly urge the Senate to act on the EPA Regulatory Relief Act as soon as possible."

    Access a release from the Republican Energy & Commerce Committee (click here). Access the statement from Speaker Boehner and link to the letter to the President and related information (click here). Access the statement from NRDC (click here). Access the statement from EDF (click here). Access the statement from ACC and link to related information (click here). Access the statement from NAM (click here). Access the roll call vote (click here). Access legislative details for H.R.2250 including the roll call votes for passage and for all amendments (click here). [#Air] 

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House Approves Controversial Coal Ash Regulation Bill
GOP Senators Announce Alternative "Jobs Through Growth Act"
House Dems Want Hearing On Natural Gas Flaring
Air Advisors Consultation On NAAQS For Lead
ACC Launches New Blog "American Chemistry Matters"
Thiebaut vs. Colorado Springs Utilities

Solar Energy Industries Urge Extension Of Section 1603 Program

Oct 12: The Solar Energy Industries Association (SEIA) released a report entitled, "Economic Impact of Extending the Section 1603 Treasury Program," prepared by renowned the global energy analysis firm EuPD Research. The report examines projected job growth and solar deployment associated with a one-year extension of the Section 1603 Treasury Program. According to the report, a one-year extension would result in the solar industry supporting an additional 37,394 jobs in 2012. In addition, a one-year extension would result in nearly 2,000 additional megawatts (MW) of solar installations above baseline by 2016, enough to power 400,000 homes. The report also analyzed scenarios for two and five-year extensions of the program.

    Rhone Resch, president and CEO of SEIA said, "More than 100,000 Americans work in the solar industry, double the number in 2009. Solar is a proven job creator at a time when the unemployment rate for the country remains stubbornly high. The 1603 Treasury Program has been the single most effective policy driving renewable energy growth during the past two years."

    The program was created in 2009 in the wake of the financial crisis, which drastically reduced the availability of tax equity financing for energy projects. The Section 1603 Treasury Program allows energy developers to receive a federal grant in lieu of claiming an existing energy tax credit. The program does not create any new incentives, but instead simply accelerates the timing of the existing credit. This solution was designed to provide the liquidity needed for the further development of domestic energy projects during difficult financial times. 

    The state of financial markets and the availability of tax equity are still woefully inadequate to meet demand for renewable energy projects. The program, set to expire on December 31, 2011, was intended to outlast the stagnant markets, which have proven more resilient than anticipated. Resch added, "At a time when President Obama and Congress are looking for solutions for America's jobs crisis, it would be unconscionable to allow this proven job-creating program to expire. Killing the 1603 Program amounts to a tax increase on the thousands of small businesses that are creating jobs in solar. The bottom line is that our capital markets are still in trouble and this program is needed today as much as it was when it was created. Allowing it to lapse would kill jobs and severely restrict the market's ability to leverage private sector capital to finance new domestic energy projects. Congress must extend the 1603 program to help the American economy."

    In a background document released by SEIA, the organization indicated, "In a background document released by SEIA, the organization indicated, "The Solyndra bankruptcy is not indicative of the health of the U.S. solar industry and, as with any competitive and dynamic market, some companies will prosper and others will fail. Despite support from the federal government, Solyndra failed due to an unsustainable business model, as the company faced pressure from cheaper solar panels and simply could not compete in a high-tech, dynamic market. Competition in the solar industry is good for American consumers. It drives down costs, making solar affordable for more and more Americans every day.

    The report indicates that, "The 1603 Treasury Program [TGP] was created to address the shortage of tax equity available to renewable energy projects due to the collapse of the financial markets. The TGP allows developers to receive a cash grant in lieu of the Section 48 Investment Tax Credit (ITC). The TGP has supported more than a thousand solar projects representing over $3 billion in total investment, contributing to a nearly two-fold increase in solar electric capacity in 2010.

    Access a release from SEIA and links to the 43-page full report, executive summary and extensive background information (click here). [#Energy/Solar]

GOP & Senate Rules Block Passage Of American Jobs Act

Oct 11: Because of unanimous Republican opposition and the Senate Rules regarding filibuster and the cloture procedure requiring 60 votes to proceed with threatened legislation, S.1660, the President's $447 billion American Jobs Act (AJA) [See WIMS 10/6/11], was defeated by a vote of 51-48, with Senator Coburn (R-OK) not voting. [Note: the official count was 50-49-1; however, Senator Majority Reid voted no on the cloture vote for procedural reasons]. The proposed package includes $245 billion in tax cuts; $140 billion in investments in infrastructure ($60 billion + $30 billion for school rehab) and local aid; and $62 billion in continued unemployment benefits. The proposal was to be paid for by the so-called millionaires surtax of 5.6% on incomes over $1 million.

 

    The President issued a statement saying, "Tonight, a majority of United States Senators voted to advance the American Jobs Act. But even though this bill contains the kind of proposals Republicans have supported in the past, their party obstructed the Senate from moving forward on this jobs bill. Tonight's vote is by no means the end of this fight. Independent economists have said that the American Jobs Act would grow the economy and lead to nearly two million jobs, which is why the majority of the American people support these bipartisan, common-sense proposals. And we will now work with Senator Reid to make sure that the individual proposals in this jobs bill get a vote as soon as possible. 

 

    "In the coming days, Members of Congress will have to take a stand on whether they believe we should put teachers, construction workers, police officers and firefighters back on the job. They'll get a vote on whether they believe we should cut taxes for small business owners and middle-class Americans, or whether we should protect tax breaks for millionaires and billionaires. With each vote, Members of Congress can either explain to their constituents why they're against common-sense, bipartisan proposals to create jobs, or they can listen to the overwhelming majority of American people who are crying out for action. Because with so many Americans out of work and so many families struggling, we can't take 'no' for an answer.  Ultimately, the American people won't take 'no' for an answer. It's time for Congress to meet their responsibility, put their party politics aside and take action on jobs right now."

 

    Senate Majority Leader Harry Reid (D-NV) issued a statement saying, "Republicans unanimously voted against our nation's economic health to advance their narrow political interests. Republicans blocked a bill that would put nearly two million Americans back to work. And they voted against this job-creating bill despite previously supporting many of the ideas it contains, such as tax cuts for the middle class and small businesses.

    "This balanced bill would have asked millionaires to pay their fair share to help get our economy get back on track. Americans want us to create jobs by cutting middle-class taxes, hiring veterans, and putting Americans back to work building roads, bridges and schools. Democrats will continue to advance these job-creating policies, and Republicans will have to explain to the American people why they oppose common-sense, bipartisan solutions for putting Americans back to work. With millions of Americans unemployed, and millions more struggling to make ends meet, we need to act now. I hope Republicans start listening to the American people."

    Senator Reid issued a separate, more lengthy statement today (October 12) and said in part, "Republican obstructionism has once against cost this nation millions of jobs. Last night, Republicans blocked the American Jobs Act, President Obama's plan to create 2 million jobs by giving tax cuts to business and middle-class families and investing in modern roads, bridges and schools. . .  Last night, a majority of the Senate voted to take up this bill. But Republicans won't put politics aside for a moment, even when the price of their stubbornness is struggling families and failing businesses. But I'll say it again: Democrats will not give up on creating jobs in America. We will introduce the American Jobs Act piece by piece. . ."

    U.S. Senate Republican Leader Mitch McConnell (R-KY) issued a statement on the Senate Floor on October 11, prior to the vote saying in part, ". . .later today, the Senate will vote on President Obama's second attempt to address our nation's ongoing jobs crisis with a stimulus bill. And Republicans welcome the opportunity. "If voting against another stimulus is the only way we can get Democrats in Washington to finally abandon this failed approach to job creation, then so be it. "The President's been calling for this vote for weeks; and in my view, we can't have it soon enough. . .

    ". . .by proposing a second stimulus, Democrats are showing the American people that they have no new ideas for dealing with our jobs crisis. Today's vote is conclusive proof that Democrats' sole proposal is to keep doing what hasn't worked — along with a massive tax hike that we know won't create jobs. So it's hard to overstate the importance of this vote. The President's first stimulus was a legislative and economic catastrophe.  Nearly three years after passage, we're still learning about its failures and abuses. We knew it was a bailout for states. We knew about all the absurd projects it funded. And over the past several weeks, we've also learned that the Obama administration was doing the very thing with solar companies that it once rightly criticized many others for doing on Wall Street: gambling with other people's money. But there's really only one thing you need to know about the first stimulus to oppose this second one, and it's this: $825 billion later, there are 1.5 million fewer jobs in this country than there were when the first stimulus was signed. . .

    "Democrats have designed this bill to fail -- they've designed their own bill to fail -- in the hopes that anyone who votes against it will look bad for opposing a bill they misleadingly refer to as a 'jobs bill.' . . . So I've got a better idea: how about we get this vote that Democrats already know won't pass behind us, so we can focus on real job-creating legislation that we actually know is worthy of passing with bipartisan support? . .

    "Over the next weeks and months, Republicans will continue to press our friends on the other side to work with us on legislation that will actually do something to create jobs in this country. Our first criterion for any proposal is that it would actually lead to more jobs, not fewer. I know that may seem crazy to some, but in our view it's not a jobs bill if it leads to fewer jobs. Our second criterion is that it doesn't add to the deficit. Republicans have been calling on Democrats to work with us on bipartisan job-creating bills for three years. . .

    "Democrats like to point out that the second stimulus we'll have a vote on today is 'paid for' with tax hikes and that it contains a tax cut. What they don't tell you, of course, is that the tax cut lasts for about 13 months while the tax hike lasts forever. They hide the fact that over the next five years it will actually increase the deficit by nearly $300 billion dollars next year alone. Another thing the Democrat supporters of this bill fail to mention is that about four out of five of the people who'd be hit with their new tax are businesses, including thousands of small businesses across the country — in other words, the very people Americans are relying on to create new jobs. . ."

    Senator McConnell issued a second statement today (October 12) indicating further, "Later today the Senate will show that Democrats and Republicans can, in fact, work together to make it easier for American businesses to create jobs. By passing free-trade agreements with Colombia, Panama, and South Korea, we will help the economy and we'll put the lie to the ridiculous Obama campaign claim that Republicans are somehow rooting against the economy. The fact of the matter is, if President Obama were willing to work with us on more bipartisan legislation like this, nobody would even be talking about a dysfunctional Congress. There wouldn't be any reason to. But, as we all know, that doesn't fit in with the President's reelection strategy. The White House has made it clear that the President is praying for gridlock, so he has somebody – besides himself -- to point the finger at next November. . ."

    Access the statement from the President (click here). Access the first statement from Sen.Reid (click here). Access the second statement from Sen.Reid (click here). Access the first statement from Sen. McConnell (click here). Access the second statement from Sen. McConnell (click here). Access the White House website on the AJA for complete details of the bill (click here). Access the roll call vote on the cloture motion (click here). Access legislative details for S.1660 which includes links to the Congressional Record and Floor remarks (click here).

 

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Climate Interest Fading?; UNFCCC Last Session Before COP17/CMP7

Oct 11: A week of formal UN Framework Convention on Climate Change (UNFCCC) climate negotiations in Panama City, Panama ended on Friday, October 7, with reportedly some progress on drafting the decision texts that will allow governments to move forward at the upcoming COP17/CMP7 meeting in Durban, South Africa November 28 to  - December 9, 2011. UNFCCC indicated in a release that the Panama meeting "made good progress on preparing the decisions that will help developing countries adapt to climate change and get access to the technologies they need to create their own clean energy futures." The COP is the "supreme body" of the Convention. The CMP is the "supreme body" of the Kyoto Protocol.

 

    Christiana Figueres, UNFCCC Executive Secretary said, "This includes meeting deadlines for the launch of the new Adaptation Committee and Technology Mechanism which were agreed at last year's Cancun climate change conference. It also made clear progress on how efforts to limit emissions by developing countries will be matched with necessary support from developed countries in a transparent way. This includes work on a new Registry to record and account for this effort, which was also agreed

in Cancun.

 

    Figueres indicated that, "The progress made in Panama means governments can have more time and space in the coming weeks and during Durban to resolve those outstanding issues on the future of the global climate change regime which will require political guidance. Durban will have to resolve the open question over the future of the Kyoto Protocol and what that means for a future global climate agreement. Governments retain different positions but many technical issues related to this have already been brought to conclusion and there is a strong desire from all sides to see a final political decision made." She said that in Panama the South African Presidency led two inclusive and transparent consultations on those questions, one with governments and one with stakeholders and civil society.

 

    On the subject of financial support that developed countries have pledged to the developing world, Figueres said Panama had provided a better view of how the $30 billion (USD) in fast-track funds up to the end of 2012 have been committed and the plans to disburse them. Meanwhile, governments put forward their ideas for mobilizing the long-term finance that should reach USD100 billion a year by 2020. Figueres said, "It is critical that no financing gap occurs between the end of fast-start finance in 2012 and the ramp up of long-term finance to 2020."

 

    UNFCCC indicated that the Panama meeting also made some progress on the longer-term question of how governments will meet their agreed goal of limiting global average temperatures to no more than a 2 degree Centigrade (2C) rise. In Durban, governments will look to decide the shape of a formal Review between 2013 and 2015, which they agreed in Cancun as a reality check on progress towards their temperature goal. Governments discussed doing this via a possible expert body which would receive updates on the latest climate change science and its assessments. Figueres said, "Clarity on an effective, credible Review is most important, especially in light of the fact that the sum total of current national pledges to reduce global emissions falls 40% short of keeping below 2C and that gap will have to be filled in the future."

 

    While the UNFCCC painted an optimistic picture of the Panama meeting there was very little interest by U.S. interest groups, political leaders or news media. Others engaged in the process were not as encouraged and some even warned that the international negotiating process is on the verge of collapse. Environmental Defense Fund (EDF's) International Climate Program Director Jennifer Haverkamp observed, "Some positive signals came out of Panama – less rancor and obstructionism than we had come to expect this year, and some progress on teeing up negotiating texts -- but these glimmers of progress are eclipsed by the unresolved question of the Kyoto Protocol's future."

    Haverkamp said, "Our preferred Durban outcome is agreement on a timetable and pathway to a new mandatory agreement. Sad to say, that's looking like a heavy lift. But the prospect of a collapse of the existing legal framework will only strengthen the resolve of countries that actually want to tackle this problem to move forward in the avenues available to them. Much still needs to be done in the next six weeks if Durban is to successfully advance progress toward a climate regime that preserves the planet for our grandchildren in a form we would still recognize."

    Access a release from UNFCCC on the Panama meeting (click here). Access the UNFCCC website for links to more information and details from the Panama meeting (click here). Access a 16-page summary of the meeting from the International Institute for Sustainable Development (IISD) (click here). Access a release from EDF (click here). Access a NYT report on the meeting (click here) [#Climate]

 

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EPA Proposes Significant Changes To CSAPR Transport Rule

Oct 6: U.S. EPA signed a proposed rule, yet to be published in the Federal Register, indicating it is proposing or seeking comment on revisions to the final Transport Rule promulgated on August 8, 2011 (i.e. Cross-State Air Pollution Rule or CSAPR) [See WIMS 7/7/11]. These revisions address discrepancies in unit-specific modeling assumptions that affect the proper calculation of Transport Rule state budgets and assurance levels in Florida, Louisiana, Michigan, Mississippi, Nebraska, New Jersey, New York, Texas, and Wisconsin, as well as new unit set-asides in Arkansas and Texas. EPA is also proposing to revise allowance allocations to specific units covered by certain consent decrees that restrict the use of those allowances. These important technical fixes maintain the Transport Rule's ability to achieve the elimination of significant contribution and interference with maintenance as quantified by the proper application of these methodologies.

    EPA is also proposing to amend the assurance penalty provisions of the rule to make them effective beginning January 1, 2014, rather than in 2012, in order to promote the development of allowance market liquidity as these revisions are finalized. EPA believes that deferring the effective date of the assurance provisions would provide additional confidence and would not compromise the air quality goals of the program. In addition, we are proposing to correct typographical errors in the rule.

    On amending the assurance penalty provisions to make them effective 2 years later, EPA indicates, "EPA is also proposing in this action to amend the effective date of the Transport Rule assurance provisions to make them effective beginning on January 1, 2014. During outreach discussions with various stakeholders, the application of assurance penalties at the outset of the program has been raised as a major concern for compliance and market development in the early years of the program. Several stakeholders have expressed concern that Transport Rule allowance market development may be delayed by uncertainty over how each state will transition from 2010 and 2011 emission levels to meet the projected Transport Rule assurance levels in 2012 and 2013. . . EPA proposes to determine that amending the assurance provisions to take effect starting in 2014 is appropriate. EPA believes that a limited postponement of the effectiveness of these provisions is justified in order to smooth the transition from the existing CAIR programs to the new Transport Rule programs. . ."

    EPA also issued a brief statement saying, "On October 6, 2011, following the submission of additional data from states and companies and further review of the rule, EPA is proposing a routine rulemaking that will maintain the extensive public health benefits of the Cross State Air Pollution Rule while also making certain technical adjustments to account for the updated information the Agency recently received. These adjustments, possible because of the inherent flexibility of the Clean Air Act, will increase CSAPR emission budgets in ten states and ease limits on market‐based compliance options. While individual state adjustments vary, overall, the budget increases are slight -- about one percent -- when compared to the millions of tons of pollution reductions secured by CSAPR. Today's proposal will maintain the significant health benefits of the rule -- saving up to 34,000 lives a year -- while continuing CSAPR'S flexibility and certainty for utilities as we work together to ensure that we protect the air we all breathe and the jobs of American workers. While the CSAPR trading programs begins in January 2012, companies have until the end of 2012 and early 2013 to demonstrate compliance. As with any proposal, this rulemaking will go through a public comment period to ensure important feedback from stakeholders will inform the final standard." The Agency also released additional Technical Support Information (see link below).

 

    House Science, Space, and Technology Committee Chairman Ralph Hall (R-TX) issued a statement on EPA proposed corrections saying, "EPA's announcement confirms several major shortcomings with the CSAPR that were highlighted in our Committee's September 15th hearing. These problems include unreasonable timelines, failure to consult stakeholders, and the use of non-transparent models that do not seem to match up with actual pollution measurements.

 

    "EPA's decision to increase emission budgets and allowances for some states and facilities demonstrates the finalized rule lacked sufficient scientific analysis and economic consideration.  EPA's process is broken.  As we have seen in Texas and throughout the United States, pursuing an 'EPA-knows-best' approach to compliance will unquestionably result in increased unemployment, power plant shut-downs, and more expensive, less reliable energy.  These proposed revisions still fail to avoid usurping the States' statutory prerogative under the Clean Air Act to develop their own implementation strategies.

 

    "The concept of preventing emissions from significantly affecting the air quality in another state seems reasonable, and states have been making great strides to reduce their cross-state pollution.  But they need sufficient time to comply with new restrictions.  EPA has options, including continuing to apply the current effective approach under the Clean Air Interstate Rule (CAIR), while it takes a time out to finish the homework it should have completed before taking action.  Today's announcement is an ad hoc attempt to address certain deficiencies in an inherently flawed rule, but it does not do enough.  The CSAPR requires more than just a few 'technical adjustments.'  EPA needs to step back, reboot, and start over."

 

    Access a prepublication copy of EPA's proposal (click here). Access the statement from EPA (click here). Access additional Technical Support Information released by EPA (click here). Access the statement from Representative Hall with links to the Committee meeting and related information (click here). Access EPA's CSAPR website for complete background (click here). [#Air]

 

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