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Global Warming: A Comparative Guide to the E.U. and the U.S. and Their Approaches to the U.N. Framework Convention on Climate Change and the Kyoto Protocol
By Deborah Paulus-Jagrič
Deborah Paulus-Jagrič holds a J.D. and an M.S.L.I.S., and is the Reference/Educational Services Librarian at N.Y.U. Law School Library. She was Project Librarian for Breaking the Logjam: Environmental Reform for the New Congress and Administration from 2007-09, and worked on Breaking the Logjam: Environmental Protection That Will Work, by David Schoenbrod, Richard B. Stewart & Katrina M. Wyman (Cambridge: Yale Univ. Press, 2010), in a variety of capacities. Her latest article, A New Land Initiative in Nevada, 17 (1) N.Y.U. Environmental Law Journal 398 (2008), co-authored with Kai S. Anderson, appeared in ELJ’s symposium issue for the Breaking the Logjam Conference, held at N.Y.U. Law School in 2008.
Published May 2010
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Table of Contents
1. Introduction
2. Background on the UN Framework Convention on Climate Change (UNFCCC)
3. Kyoto Protocol: Adopted at COP-3
3.1. Overview
3.2. Marrakesh Accords
3.2.1. Kyoto’s “Flexibility” Mechanisms
3.2.2. LULUCF
3.3. COP-12
3.4. COP-13
3.5. COP-14
3.6. COP-15
3.6.1. Pre-COP-15
3.6.2. COP-15 Outcome
3.6.3. Post-COP-15
3.7. COP-16
3.8. Finding Relevant Documents
3.8.1. IPCC’s Assessment Reports
4.1. The Clinton Administration, 1993-2001
4.1.1. The Former Clinton Administration: Subsequent Developments
4.2. The Bush Administration & Climate Change, 2001-2006
4.2.1. Asia-Pacific Partnership on Clean Development & Climate
4.2.2. Religion & Climate Change
4.2.3. Post-Midterm Elections, 2006-2008
4.2.4. Political Interference with Climate Research & Other Sciences
4.2.5. Arctic Animals Endangered by Global Warming
4.2.5.1. Polar Bears
4.2.5.2. Penguins
4.3. The 2008 Presidential Campaign
4.4. The Obama Administration, 2009-2012
4.4.1. GHG Legislation
4.4.1.1. House of Representatives
4.4.1.2. Senate
4.4.1.3. Congress as a Whole
4.4.2. GHG regulations: EPA & Mass. v. EPA
4.4.2.1. California Waiver
4.4.2.2. Regulatory “End Run” Around Congress: EPA’s Endangerment Finding
4.4.2.2.1. Mobile Sources
4.4.2.2.2. Stationary Sources
4.4.2.3. “Climategate”
4.4.2.4. Legislation To Prevent the “End Run”
4.4.2.5. Lawsuits Challenging the EPA Endangerment Finding
4.4.2.6. Business, ENGO & State Reactions to EPA Regulation of GHG
4.4.2.7. EPA Defense of Endangerment Finding & GHG Regulation
4.4.3. COP-15 & the Obama Administration
4.4.4. Obama Administration and Climate, Generally
4.5. California: State, County & City Actions to Reduce GHG Emissions
4.6. Other States’ Actions To Reduce GHG Emissions
4.6.1. Auto Industry vs. States That Adopted California’s GHG Standard
4.7. State Actions That Will or Would Have Increased GHG Emissions
4.7.1. Alaska
4.7.2. Minnesota and South Dakota
4.7.3. New Mexico
4.7.4. Texas
4.8. State Actions Which Will Increase GHG Emissions: South Dakota
4.9. Domestic/International Businesses & Climate Change
5.1. Finding EU Documents on Climate Change
5.2. Europe’s Emissions Trading Scheme (ETS)
5.2.1. EU Carbon Tax Initiative
5.3. New EU Energy Plan
5.4. EU Reports on GHG
5.5. Individual Member States & Climate Change
7. Online Scientific Resources Relating to Global Climate Change
7.1. General Web Sites & Blogs for Climate Change Resources and Programs
7.2. Scientific Materials
8. Online Legal & Policy Resources about Global Climate Change
9. Innovative Technologies to Reduce GHG
I began this guide in the fall of 2006, just prior to a number of significant climate-related events. The Twelfth Conference of the Parties to the UNFCCC and the Second Meeting of the Parties to the Kyoto Protocol (COP-12/MOP-2) were held in Nairobi in November 2006, as were the mid-term elections in the U.S.; in February 2007, the IPCC’s Fourth Assessment Report was released, which found it all but certain that human activities are responsible for climate change. Discussions of climate change are everywhere. Here is just one example to illustrate the current urgency: On Jan. 17th, 2006, the BBC reported that the “Doomsday Clock” had been moved two minutes closer to midnight, partly because of the threat caused by carbon-emitting technologies. The symbolic clock, devised in 1947 by the Bulletin of the Atomic Scientists as a measure of the world’s proximity to apocalypse, now stands at 5 minutes to annihilation. A geoscientist from Princeton University said of the occasion: “… [T]his organization, which for 60 years has been monitoring and warning us about the nuclear threat, now recognizes climate change as a threat that deserves the same level of attention.” [1]
However, on Jan. 14, 2010, the scientists pushed the minute hand back one minute (it now stands at 6 minutes to midnight), partly under the influence of President Obama’s more “pragmatic, problem-solving approach” to international affairs, including both nuclear weapons and climate change. [2]
This document is not a traditional research guide. It is a continuously updated narrative of the four branches of the U.S. government and their various attempts to arrive at meaningful GHG emission controls. The U.S. is finding it difficult to decide whether global warming is a natural or an anthropogenic phenomenon, or indeed, whether it is happening at all. I briefly summarize the UNFCCC and the Kyoto Protocol, discuss the sources one would use to research them, and compile information on the important work that U.S. states, cities and businesses have initiated to address climate change and, hopefully, to compel federal government action. Comparisons to the E.U. and the rest of the world are of course inevitable.
My primary sources of electronic information are email alerts from Grist, [3] especially Daily and Weekly Grist, which summarize environmental news and occasionally link to the original news sources. I rely heavily on daily BBC News updates for climate change news from the E.U. and the E.C.; the BNA International Environment Daily, available here; the BNA Daily Environment Report; the BNA Environment Reporter; and BNA’s U.S. Law Week, available here. [4] Subscribers to BNA publications online should go these sites and click the All Issues buttons on the right to get to the articles archive; subscribers to the publications in paper can locate them by dates &/or citations. If you are a subscriber, links to BNA’s World Climate Change Report will take you to the article referenced. In addition, after the Supreme Court decision in Mass. v. EPA, a new blog was developed entitled Warming Law: Changing the Climate in the Courts that I rely on for up-to-date information on the many global warming law suits. [5]
I am grateful to my colleague Mirela Roznovschi for the opportunity to write on this subject.
Greenhouse gases (“GHG”), such as water vapor, carbon dioxide, ozone, and methane, trap heat and thereby warm the atmosphere. Emissions of greenhouse gases are increasing, and it is anticipated that the subsequent increases in global temperature will have severe effects on precipitation, ocean levels, extinction of species, and more. In 1988, the World Meteorological Organization and the United Nations Environment Programme (UNEP) created the Intergovernmental Panel on Climate Change (IPCC). [6] The panel’s First Assessment Report in 1990 [7] stated the belief of 400 scientists that global warming was real, and urged that steps be taken to avoid any further damage to the environment. For more recent IPCC assessment reports, see infra § 3.8.1. IPCC’s Assessment Reports.
After that, Europe in particular, and other countries as well, began to call for action on climate change; in response, the UN, on Dec. 21, 1990, created the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change (INC). During the negotiation sessions, the U.S. often took strong positions, particularly against enforceable reduction targets and timetables, claiming scientific uncertainty about climate change and that emissions targets would adversely affect the U.S. economy.
The United Nations Framework Convention on Climate Change (hereafter UNFCCC) [8] was adopted by the INC on May 9, 1992, and was opened for signature in Rio de Janeiro, at the United Nations Conference on Environment and Development (UNCED), otherwise known as the "Earth Summit," June 4th to 14th, 1992; it remained open for signature in New York until June 19, 1993, by which date it had been signed by 166 countries. Portugal was the 50th nation to ratify the treaty, enabling it to enter into force on March 21, 1994.[9] The UNFCCC has been ratified, accepted, or approved by a total of 190 countries.[10]
The George H.W. Bush administration signed the UNFCCC in Rio on June 12, 1992, and the U.S. Senate ratified it unanimously on Oct. 15, 1992.[11]
The original, authentic Convention was deposited with the Secretary-General of the United Nations.[12] Parties to the Convention agreed to consider climate change in such matters as agriculture, industry, energy, natural resources, and activities involving sea coasts, in an attempt to slow the process of global warming.
The Conference of the Parties (COP) is “the ‘supreme body’ of the Convention; it is the highest decision-making authority. It is an association of all the countries that are Parties to the Convention. The COP meets every year, unless the Parties decide otherwise,” to review progress on the Convention. See UNFCCC art. 7, 1771 U.N.T.S. at 176, reprinted in 31 I.L.M. at 860 (1992), and the UNFCCC Web site, under Meetings here .
Developed nations are referred to in the UNFCCC as “Annex I” nations, as they are listed in the first annex to the Convention, along with 12 “economies in transition,” the EIT parties. The developed countries in Annex I were also members of the OECD in 1992. “Annex II” parties are only those OECD members of Annex I; EIT parties are not so considered. “Non-Annex I Parties to the Convention” are primarily developing countries. Several (48) of these Parties are classified as least developed countries (LDCs) and are recognized as being especially vulnerable, either to the economic effects of reducing emissions, or to climate change itself. [13] The UNFCCC placed the greatest responsibility for reducing emissions on parties included in Annex I, who agreed to contain emission levels at 1990 rates by the year 2000.[14] However, the Convention did not impose binding limits on emissions.
Under the UNFCCC articles 4 and 12, all parties are required to “[d]evelop, periodically update, publish and make available to the Conference of the Parties, in accordance with Article 12, a national inventory of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol.” [Art. 4 (1) (a)][15] The initial “progress reports” were to be communicated by Annex I Parties within six months of the entry into force of the Convention for that Party; within three years for non-Annex I parties; and at the discretion of the least developed countries. UNFCCC Art. 12(a) states that the inventories shall use “comparable methodologies to be promoted and agreed upon by the Conference of the Parties.” These national communications shall also include detailed descriptions of the policies and measures that each party has adopted to implement its commitment under the Convention. [16]
The U.S.’s Climate Action Reports are our national communications required by the UNFCCC. The United States submitted the first U.S. Climate Action Report (USCAR) to the UNFCCC Secretariat in 1994, the second in 1997, and the third in 2002; they are available from depository libraries. The Fourth U.S. Climate Action Report-2006 is available on the State Department’s web site.
A draft of the Fifth U.S. Climate Action Report 2010 (Washington: Global Publishing Services, January 2010) was available from the State Department in April 2010; comments were accepted until May 6, 2010.
Under Articles 4 and 12 of the Convention and various decisions of the COP, Annex 1 Parties are also required to submit to the secretariat annual inventories of anthropogenic GHG emissions not already controlled by the Montreal Protocol. The IPCC Guidelines for National Greenhouse Gas Inventories were first accepted in 1994, published in 1995, and revised in 1996. The Revised 1996 IPCC Guidelines were reaffirmed by COP-3 in Kyoto which stated that they “should be used as ‘methodologies for estimating anthropogenic emissions by sources and removals by sinks [17] of greenhouse gases in calculation of legally-binding targets during the first commitment period.” They were published in three volumes which are available on the Web: Volume 1 gives Reporting Instructions on how to prepare and transmit national inventory data consistently; volume 2 is the Workbook, with instructions to assist experts to start developing inventories if they do not have them already; and volume 3 is the Reference Manual, with methods to estimate emissions for a wider range of GHG and lists of source types for each.
The nearly-500-page, 15th annual Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2008 (April 2010, U.S. EPA #430-R-10-006) is available in whole or in part from the EPA, which also has a web archive of earlier editions. It shows a drop in overall emissions of 2.9% from 2007 to 2008; however, emissions are still 13.5% higher than they were in 1990.
Reference: Inventory of U.S. Greenhouse Gas Emissions and Sinks:
1990-2006, USEPA #430-R-08-005
The UNFCCC also established two subsidiary bodies:
Both subsidiary bodies meet twice a year. The twenty-fourth meeting of the subsidiary bodies was held in 2006, in Bonn, Germany, as well as the twenty-sixth meeting, in 2007.
As the Convention did not contain binding emissions limits, the member countries almost immediately decided that the Convention’s commitments were insufficient to make an impact on climate change. In March/April of 1995, the Convention’s first Conference of the Parties in Berlin [19] adopted the “Berlin Mandate,” [20] which called for adoption of a protocol to the UNFCCC that would contain more stringent ways for Annex I Parties to limit greenhouse gas emissions. [21] The Parties also set up a new subsidiary body, the Ad Hoc Group on the Berlin Mandate (AGBM) at COP-1 to negotiate a protocol to the Convention; its first meeting was in the summer of 1995. A fourth subsidiary body, the Ad Hoc Group on Article 13 (AG13), was also established to explore options for conflict resolution. [22]
In July, 1996, at COP-2 in Geneva, the parties instructed the representatives “to accelerate negotiations on the text of a legally-binding protocol or another legal instrument to be completed in due time for adoption at the third session of the Conference of the Parties… [that] should fully encompass the remit of the Berlin Mandate,” especially the commitments for Annex I Parties. [23] In the “Geneva Ministerial Declaration,” published in an Annex to the Report of the Conference of the Parties on page 71, members endorsed the Second Assessment Report of the Intergovernmental Panel on Climate Change as “currently the most comprehensive and authoritative assessment of the science of climate change, its impacts and response options now available.” Further, the members encouraged accelerated negotiations on the text of a protocol to be adopted at COP-3, in accordance with the Berlin Mandate.
After negotiations that were described as “tough, grueling and long,” [24] the Kyoto Protocol was adopted in December, 1997, at COP-3. [25] It was open for signature from the middle of March, 1998, to the middle of March the following year. Only parties to the UNFCCC can become parties to the Protocol and as of September 2006, 166 countries have either ratified, acceded to, approved of, or accepted it[26]; see Parties and Observer States. Only the Annex I Parties to the UNFCCC, 22 countries and the EU-15, are required to reduce their emissions of GHGs under it; their individual targets are found in the Protocol’s Annex B.
The COP to the Convention also serves as the Meeting of the Parties (MOP) to the Kyoto Protocol. [27] Both bodies issue decisions and resolutions.
The Protocol set mandatory targets for greenhouse-gas emissions, for Annex I Parties only, and specifically excluded developing country parties from any obligations under it. Annex A lists the greenhouse gases it covers: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, as well as the sectors/source categories that emit them. According to article 3.1, Annex I Parties would ensure that their overall emissions of those gases would be reduced “by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.” [28] However, article 3.8 allows any Annex I Party to use 1995 as a base year for the last 3 gases. [29] Also, a “certain degree of flexibility” was built into article 3 regarding Annex I Parties undergoing the process of transition to a market economy regarding the base year they use, if 1990 is considered too strict. [30]
Although under the protocol, Annex I countries were required to reduce their greenhouse gas emissions from 1990 levels by an average of 5.4 percent during the first compliance period, 2008–2012, but by the end of 2008, Annex I nations had reduced their overall emissions by only 1.2 percent, with most of the reductions coming from former Soviet bloc countries, whose economies had collapsed after the 1990 benchmark year. [31]
The Secretariat has been located in Bonn, Germany, since August of 1996.
Entering into force: Article 25 of the Protocol provides two conditions that must be satisfied before the Protocol could enter into force: First, at least 55 Parties to the Convention must ratify, accept, approve, or accede to the Protocol, of which there must be enough Annex I Parties to have accounted for at least 55 % of carbon dioxide emissions in 1990. The Protocol would enter into force 90 days after both conditions were satisfied. As the U.S. was responsible for 36% of 1990’s GHG emissions, its ratification was considered essential to the Protocol’s implementation, and there was dismay in the international community when the U.S. failed to ratify. [33] However, Russia, responsible for 17% of 1990 GHG emissions, ratified on Nov. 18, 2004. [34] Thus the Protocol came into effect on Feb. 16, 2005. The original, authentic Protocol was deposited with the Secretary-General of the United Nations. [35]
Compliance with the Protocol: The Compliance Committee began operation in March 2006; it has two branches, enforcement and facilitative. If the enforcement branch determines that a Party is not in compliance with its obligations under the Protocol, it will “require the Party to make up the difference between its emissions and its assigned amount during the second commitment period, plus an additional deduction of 30%. In addition, it shall require the Party to submit a compliance action plan and suspend the eligibility of the Party to make transfers under emissions trading until the Party is reinstated.” The facilitative branch assists Parties in meeting their obligations under the Protocol.
COP-4 (held in Buenos Aires, Argentina), in 1998, COP-5 (held in Bonn, Germany), in 1999, COP-6 (held in The Hague, The Netherlands), in 2000, [36] and COP-6b, the resumed session (held in Bonn, Germany), in July, 2001, continued work on the details of the Protocol. It was at the second Bonn conference that negotiations resulted in a compromise that permitted the Protocol to go forward. The U.S. did not take part in the negotiations. [37]
The "Marrakesh Accords," adopted in October/November, 2001, at COP-7, [38] in Marrakesh, Morocco, addressed the actual operation of the Protocol, including its three “flexibility,” or free-market mechanisms, which were proposed by the U.S. delegation:
· the clean development mechanism
· joint implementation
· emissions trading. [39]
Flexibility mechanisms enable countries that cannot meet their emissions reductions to purchase or acquire the right to emit from other countries. It was necessary to establish these mechanisms before the Kyoto Protocol could enter into force. Decisions of the COP/MOP on the Mechanisms are available online.
The Marrakesh Accords also established several expert groups:
· The Consultative Group of Experts (CGE) assists developing countries prepare reports on climate change.
· The Least Developed Country Expert Group (LEG) gives advice to the least developed countries.
· The Expert Group on Technology Transfer (EGTT) works to share technology with less developed countries.
The Clean Development Mechanism (CDM) under the Protocol’s article 12 allows developed nations to pay for projects that cut emissions in developing nations, for which efforts they receive credits that they can apply to meeting their own emissions targets.
A project to clean up a Chinese factory that emits the GHG HFC-23, trifluoromethane, illustrates problems with the program. HFC-23 is a Freon-type refrigerant that will soon be banned in industrial nations because it depletes the ozone layer. Cleaning up that factory under the CDM enables chemical companies to expand existing factories that produce HFC-23 for use in cheap, inefficient appliances to be sold in India and China, which have no responsibilities under the Kyoto Protocol; the factory will still function, although in violation of the Montreal Protocol to the Vienna Convention for the Protection of the Ozone Layer, which requires it and others like it to be phased out. [40]
The Joint Implementation Mechanism (JI) under the Protocol’s article 6 is similar to the CDM; it allows developed countries to receive “emissions reduction units” for financing projects to mitigate climate change in other developed countries that are “economies in transition,” that is, formerly Communist countries.
Emissions trading under the Protocol’s article 17 allows Annex I Parties to purchase the right to emit from other countries that have not used up their emission limits.
The European Emissions Trading Scheme, the largest of its kind in the world, discussed infra § 5.2.1., and carbon trading in general, is not uncontroversial. Analysts estimate that the UK’s most polluting industries earned millions of pounds in windfall profits in 2005 from over-allocation of emissions permits. Groups such as the Durban Group for Climate Justice, a group of international organizations that met in South Africa in 2004, reject the free market approach to climate change. The Durban Declaration of Climate Change rejects carbon trading and its attempt to “commodify” natural resources. [41]
In May 2007, the World Bank issued a report entitled State and Trends of the Carbon Market 2007, by Karen Capoor and Philippe Ambrosi. The report showed that the global market for CO2 emissions credits doubled in 2006 to $30.1 billion: $24.4 billion was generated by the EU’s Emissions Trading Scheme (see infra), $5.3 billion through the CDM, and $141 million through JI. [42]
COP-7 in Marrakesh also adopted Decision 11/CP.7, regarding the principles to govern Land-Use, Land-Use Change and Forestry (LULUCF). Decision 11/CP.7, among other things, recommended that draft decision -/CMP.1 on Land use, Land-use change and Forestry be adopted by the first session of the COP serving as the Meeting of the Parties of the Kyoto Protocol. (This was COP-11 in 2005, see infra; it did adopt the LULUCF decision.) The Decision also made various requests to the SBSTA in its section 2, and several “invitations” to the IPCC in its section 3. This work was based on a 2000 Special Report on Land Use, Land-Use Change & Forestry by the Intergovernmental Panel on Climate Change, [43] which in turn was based on the Protocol itself. Article 3.3 of the Protocol says that “net changes in greenhouse gas emissions from sources and removals by sinks resulting from direct human-induced land use change and forestry activities, limited to afforestation, reforestation, and deforestation [44] since 1990…shall be used to meet the commitments in this Article of each Party included in Annex I.” Article 3.4 of the Protocol states that at the first COP/MOP session (in 2005) Parties should “decide upon modalities, rules and guidelines as to how and which additional human-induced activities related to changes in greenhouse gas emissions and removals in the agricultural soil and land use change and forestry categories, shall be added to, or subtracted from, the assigned amount for Parties included in Annex I, …” LULUCF activities provide a relatively low cost way for Parties to offset their GHG emissions. [45]
The World Summit on Sustainable Development was held in Johannesburg in 2002; the U.S. Secretary of State Colin Powell, one of the U.S. representatives, was criticized there by environmental groups that disagreed with the U.S. stance on a variety of environmental policies. [46]
COP-8 was held in New Delhi, India, in 2002; COP-9 was held in Milan, Italy, in 2003; and COP-10 was held in Buenos Aires, Argentina, in 2004. COP-11 was held in Montreal, Canada, from Nov. 28 to Dec. 9, 2005; it also marked the entry into force of the Kyoto Protocol and was the first COP that served as the Meeting of the Parties to the Protocol.
Among other things, COP-11 established the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG). [47] The AWG’s first session was held in Bonn from May 17 to May 25, 2006; its second session was held in Nov. 6-14, 2006, in Nairobi.
In preparation for COP-12, the UN issued its annual report on Oct. 30, 2006, which was compiled from data that all 41 Annex I Parties to the UNFCCC submitted to the secretariat. The report, entitled Greenhouse Gas Emissions Data for 1990-2004 for Annex I Parties, showed that since 2000, emissions had increased slightly, in both EIT and non-EIT Parties; also, the number of Parties with emissions decreases had declined to seven nations from 23 of the 41 since 2000. [48] One of the report’s conclusions was that “industrialized countries will need to intensify their efforts to reduce greenhouse gas emissions.” [49]
COP-12 was held from Nov. 6-17, 2006, in Nairobi, Kenya, in conjunction with the second meeting of the Parties to the Kyoto Protocol (COP-12/MOP-2). A press release issued the first day of the Conference was entitled: Nairobi United Nations Climate Change Conference opens with warning that climate change may be most serious threat ever to face humankind. One of the major goals of the Conference was to work on a global agreement for the time period after the Kyoto Protocol runs out in 2012. Another was to help poorer African countries adapt to climate change. [50] The UN released its Report on the African Regional Workshop on Adaptation just before the meeting opened; the report anticipates that the effects of climate change on Africa will be particularly severe. [51]
COP-12/MOP-2 participants pledged to review the effectiveness of the Kyoto Protocol in 2008 as required under its Article 9 to determine whether it adequately deals with increases in GHG emissions. Negotiators “assur[ed] developing nations that the effort will not include consideration of new mandatory requirements on their greenhouse gas emissions.” It was also agreed to conduct another review, required by the protocol’s Article 3.9, to determine whether more severe emissions cuts will be required after the first compliance period ends in 2012. [52]
Meetings of the subsidiary bodies and the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol were held in Bonn from May 7-18, 2007, in preparation for COP-13/ MOP-3 to be held in Bali in December 2007. Delegates continued to discuss extending the Kyoto Protocol, which expires in 2012. [53] A high-level meeting of heads of state was proposed on May 8 by U.N. Secretary General Ban Ki-moon to discuss the post-Kyoto era; it would be held in New York in September, in preparation for the Bali meeting. [54]
The fourth session of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol and the fourth workshop under the dialogue on long-term cooperative action to address climate change by enhancing implementation of the Convention was held in Vienna, Austria, Aug. 27-31, 2007. About 1000 delegates agreed to set GHG emissions cuts between 25 and 40 percent below 1990 levels in the successor pact to the Kyoto Protocol. [55]
3.4. COP-13
COP 13 & the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol (CMP) 3, opened Dec. 3, 2007, in Nusa Dua, Bali, Indonesia. Observers hoped for a political breakthrough in international climate change negotiations and a timetable for a successor agreement to the Kyoto Protocol, which expires in 2012. [56] The conference continued until December 14th. Before it opened, leaders from 150 global companies endorsed a legally binding framework to address climate change in The Bali Communiqué, in the belief “that tackling climate change is the pro-growth strategy. Ignoring it will ultimately undermine economic growth.” [57] Signatories included Shell, Coca-Cola, Dupont, British Airways, Rolls Royce, and many more. In a letter to Yvo de Boer, the head of the U.N. Climate Change Secretariat, Rep. Edward Markey, Chairman of the House Select Committee on Energy Independence and Global Warming, stated that “...President Bush's avoidance of action is not the status quo here in America," and that “...Congress, the states, cities, and Americans from coast to coast [were] looking to act immediately on global warming.” [58] Finally, a rough and vague Road Map was agreed to, “which consists of a number of forward-looking decisions that represent the various tracks that are essential to reaching a secure climate future. The Bali Road Map includes the Bali Action Plan, which charts the course for a new negotiating process designed to tackle climate change, with the aim of completing this by 2009.” [59] The U.S. reluctantly agreed to the proposal. [60] A Papua New Guinea representative said to the U.S. in apparent desperation and in unusually strong language that was applauded by the delegates: “We seek your leadership. But if for some reason you are not willing to lead, leave it to the rest of us. Please, get out of the way.”[61] Work proceeds to draft a successor agreement by 2009. [62]
A hearing was held before the Senate Foreign Relations Committee entitled: International Climate Change Negotiation: Bali and the Path Toward a Post-2012 Climate Treaty on Jan. 24, 2008. James Connaughton, chairman of the White House CEQ and a top environmental adviser to the Bush administration, said that he continued to oppose mandatory limits on U.S. GHG emissions, and reiterated the administration’s well-known position that it would not commit to international goals unless major developing countries did also. [63]
Three months after the Bali conference, talks opened in Bangkok, Thailand, from March 31st to April 4th, 2008, in an attempt to advance the Bali Road Map. Sessions of the Ad hoc Working Group on Long-term Cooperative Action under the Convention (first session) and the Ad hoc Working Group on further Commitments for Annex I Parties under the Kyoto Protocol (first part of the fifth session) also took place. [64] Yvo de Boer, UNFCCC executive secretary of the UNFCCC, noted that only about a year and a half was left to forge a complex and controversial agreement. [65]
Another meeting of 17 nations that account for 80% of global GHG emissions was held in Paris later in April, 2008, led by the U.S. Many delegates (as well as environmentalists, scientists and lawmakers) criticized President Bush’s speech on April 16th, where he called for US emissions to slow down over the next decade, stop by 2025, and begin to reverse after that; he reiterated his endorsement of coal and nuclear power and his antipathy to raising taxes. Other nations took consolation from the fact that Bush would soon be leaving office. [66] Two more meetings were held to prepare for the July 7-9th Group of Eight summit. [67]
COP-14 and the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol (CMP-4) took place in Poznań, Poland, on Dec. 1-12, 2008. It concluded with a “clear commitment from governments to shift into full negotiating mode next year in order to shape an ambitious and effective international response to climate change, to be agreed in Copenhagen at the end of 2009. Parties agreed that the first draft of a concrete negotiating text would be available at a UNFCCC gathering in Bonn in June of 2009.” (It was not.) President-elect Barack Obama did not attend, as he did not assume office until Jan. 20, 2009.
See also infra, § 4.4.3. COP-15 & the Obama Administration
3.6.1. Pre-COP-15
A prelude to COP-15, the World Business Summit on Climate Change was one of a series of meetings during 2009 designed to press governments to take the radical measures that will be needed in Copenhagen; it was held there from May 24th-26th. [68] "The Copenhagen Call," a powerful if concise statement (4 pages), sets out the six elements business believes are required to forge an effective new global climate treaty, was issued at its conclusion.
In July, 2009, Hans Joachim Schellnhuber, chair of an advisory council known by its German acronym, WBGU, spoke at a conference at New Mexico’s Santa Fe Institute and released a study entitled: Solving the climate dilemma: The budget approach, which, as reported by Mark Hertsgaard of Grist, “has monumental implications for the pivotal meeting in December in Copenhagen, where world leaders will try to agree on reversing global warming.” The WBGU study (unlike the IPCC, which says rich industrial countries must cut emissions 25 to 40 percent compared with 1990 by 2020) says: “the United States must cut emissions 100 percent by 2020—in other words, quit carbon entirely within 10 years. Germany and other industrial nations must do the same by 2025 to 2030. China only has until 2035, and the world as a whole must be carbon free by 2050. The study adds that big polluters can delay their day of reckoning by “buying” emissions rights from developing countries, a step the study estimates would extend some countries’ deadlines by a decade or so. Needless to say, this timetable is light-years more demanding than what the world’s major governments are talking about in the run-up to Copenhagen.”
Intersessional Informal Consultations were held in Bonn from August 10-14, as a prologue to the ad-hoc working group meetings to be held in Bangkok later this fall. They resulted in little progress and a warning from the director general of the UNFCCC, Yvo de Boer, that if the speed of progress does not increase, an agreement on a successor to the Kyoto Protocol in Copenhagen in December will not be possible .[69]
Climate meetings sponsored by the U.N., the Ninth Ad-hoc Working Group on the Kyoto Protocol (AWG-KP) and the Seventh Ad-hoc Working Group on Long-term Cooperative Action (AWG-LCA) under the UNFCCC, were held in Bangkok from Sept. 28th to Oct. 9th, 2009. The U.S. envoy, Jonathan Pershing, warned that it would be difficult for the U.S. to make international commitments in Copenhagen prior to the enactment of domestic climate legislation. (See infra.) There was conflict between rich and poor nations over proposals to require developing nations to control emissions after 2012. Delegates from Mexico said that the U.S. delegation had become an “obstacle” to a final agreement, and the EU was also criticized. [70]
On Sept. 22, 2009, “nearly 100 world leaders accepted UN Secretary-General Ban Ki-moon’s invitation to participate in an historic Summit on Climate Change in New York ... to mobilize political will and strengthen momentum for a fair, effective, and ambitious climate deal in Copenhagen this December.”
However, on Oct. 20, 2009, less than two months before COP-15 in Copenhagen, the N.Y. Times reported that hopes are not high that the major differences among the major GHG emitters will be resolved before the meeting or that it will produce a comprehensive new treaty. [71] The following day, Oct. 21, 2009, India and China signed a 5-year agreement to cooperate on climate issues and to “ensure a fair and equitable outcome at Copenhagen.” See infra, under India.
On the Copenhagen climate negotiations, see Lavanya Rajamani, Addressing the ‘Post-Kyoto’ Stress Disorder: Reflections on the Emerging Legal Architecture of the Climate Regime, 58 International and Comparative Law Quarterly 803 (Oct. 2009), which argues “that one of the most significant factors hindering substantive progress on a post-2012 climate agreement is what is characterized here as the ‘post-Kyoto stress disorder’, a lack of trust amongst some developing countries that industrialized countries will, given current and past form, honour their commitments, and/or take the lead in the new climate agreement.”
A final round of U.N.-sponsored climate change talks prior to Copenhagen was scheduled in Barcelona, Nov. 2-6, 2009. The chairman of the Ad-hoc Working Group on Long-term Cooperative Action did not believe that Copenhagen’s COP-15 meeting (Dec. 7-18) will produce a successor protocol to Kyoto even if Barcelona has a positive outcome, because of a lack of willingness to compromise on emissions reduction targets and the financial issues. [72] On Nov. 4, 2009, it was announced that key government and U.N. officials were admitting that arriving at a successor protocol is probably unlikely in December but might happen next year if a legally binding framework, rather than a treaty, is agreed to in Copenhagen. [73]
On the 6th of November, the Barcelona talks ended with the U.S. and Europe repeating demands that the existing Kyoto treaty be scrapped in favor of a single new international treaty; poorer nations disagreed. “The 130 developing countries represented by the G77 group said today they would walk out of Copenhagen if rich countries did not offer far deeper emission cuts and more money.” [74] The Africa Group boycotted the discussions on Nov. 4th. [75] Ambassador Lumumba Di-Aping of Sudan, chair of the Group of 77, the largest intergovernmental organization of developing states in the United Nations (with 130 members, despite its name), repeatedly criticized industrialized nations for condemning poorer nations to environmental disaster. [76] The U.S. Chamber of Commerce issued a report on Nov. 12th entitled The Prospects for Copenhagen: More Realism Can Smooth the Way, that pointed out the obstacles to a successful outcome to COP-15. [77]
However, the news that the Kerry-Boxer bill had been reported out of the Senate Environment and Public Works Committee the day before, Nov. 5, 2009 (see infra, § 4.4.1.2.), was moderately encouraging and representatives “from the United Nations, European Union, G-77, and even the laggard United States all confirmed that a fair, ambitious, and legally binding global agreement is still absolutely possible to achieve next month.” [78] EU environment ministers will meet again Nov. 23d in Brussels to work on still-unresolved issues before Copenhagen. [79]
The Center for Public Integrity launched the International Consortium of Investigative Journalists in 1997 and began a project in July 2009 entitled The Global Climate Change Lobby to uncover the special interests attempting to influence negotiations leading to the pivotal December talks on a climate change treaty in Copenhagen and involved reporters in eight of the major economies deemed essential to a successful treaty: Australia, Brazil, Canada, China, the European Union, India, Japan, and the United States, and which account for 65% of global GHG emissions. In Nov. 2009 they report that global attempts to craft a pivotal new climate treaty in Copenhagen this December are being stymied by a far-reaching, multinational backlash led by fossil fuel industries and other heavy carbon emitters, according to an eight-country report by the International Consortium of Investigative Journalists. [80] The web site has an interactive map with emissions data from 2005 [in 2009] with GHG emissions per capita, cumulative emissions from the mid-19th century, current emissions, and emissions’ intensity, that is, per unit of GDP.
On Monday, Nov. 16, 2009, environment ministers from 44 countries (including Brazil, China, India, and the U.S.) met in Copenhagen for a 2-day meeting to discuss the upcoming COP-15 and the difficult issues that have had the 192 UNFCCC members deadlocked for two years. Danish Climate Minister Connie Hedegaard will present a concise (5-8 page) draft proposal for a binding political agreement. [81]
On Nov. 20, 2009, Rajendra Pachauri, chairman of the IPCC, said the gap between developed and developing nations appeared to be widening as Copenhagen approaches, partly because of U.S. reluctance to bring a specific emissions reduction target to the negotiations, which would have carried a great deal of credibility. Other UN officials, including Secretary-General Ban Ki-moon and Yvo de Boer, were less pessimistic. [82]
COP-15 will be held at the Bella
Center outside of Copenhagen. A climate-friendly car is parked outside . [83]
At the Asia-Pacific Economic Cooperation summit meeting in Singapore in mid-Nov. 2009, President Obama and other world leaders acknowledged that it was unrealistic to expect a legally binding new climate treaty to emerge at Copenhagen in December as originally intended, given the conflicts between the 192 nations involved. They decided that it made more sense to make the COP-15 goal a less specific “politically binding” agreement and to postpone the difficult issues until 2010. One of the major reasons was the lack of progress on U.S. climate legislation; see supra § 4.4.1. [84] An EU official said that “it had been clear for months that Copenhagen was not going to yield a breakthrough and that there was plenty of blame to go around.” [85] It was announced in Singapore that “the United States has embraced the Danish proposal for finalizing an interim international climate agreement in Copenhagen in December.” (Emphasis supplied.) President Obama traveled to China after that meeting, and at the summit that followed with Hu Jintao the “United States and China announced ... a package of cooperative agreements on clean energy and climate change that are remarkable in both breadth and ambition. The cluster of seven initiatives, partnerships, action plans, and research centers covers a range of low-carbon energy strategies from electric cars to energy efficiency technologies.” [86]
3.6.2. COP-15 Outcome
COP-15 nearly collapsed on the last day and might have done so but for the intervention of President Obama; even so, it was not viewed as an unqualified success. The interim agreement, the Copenhagen Accord, FCCC/CP/2009/L.7 (Dec. 18, 2009), vaguely reiterated well-known “commitments”; among other things, funds for mitigation, adaptation and forest conservation were promised; a High Level Panel was established to study potential sources of revenue; the Copenhagen Green Climate Fund was established to support projects, policies and other activities in developing countries related to mitigation; a Technology Mechanism was established to accelerate technology development and transfer. Committed parties are required under the Accord to submit national action plans for emission reductions by the end of January, 2010; the plans must be consistent with the agreement’s stated goal of limiting global temperature increases from carbon pollution from increasing to more than 2 degrees Celsius (3.6 degrees Farenheit) over pre-industrial levels. [87]
Leaders from developing countries, including Brazil, South Africa, India, and China (the so-called “BASIC” nations, a really terrible acronym), with the personal encouragement of President Obama, participated in finalizing this agreement; it is the first time developing nations have agreed to binding emissions reductions in an international agreement. Furthermore, the Accord “includes a compromise between the United States and China to verify pollution reductions according to rigorous and transparent guidelines depending on the source of financing for the reductions. All reductions are subject to ‘international consultation and analysis.’” [88]
Hopefully the Accord will morph into a binding legal agreement by the end of 2010. It was accepted by 188 of the 192 attending countries by the end of the meeting, and only five—Bolivia, Cuba, Nicaragua, Venezuela, and Sudan—refused it. However, “[a]s of Jan. 11, only four countries—Australia, Canada, the Maldives, and Papua New Guinea—had officially stated they support the document and one, Cuba, had declared it does not support it. Countries have until Jan. 31 to state a preference one way or the other, although the UNFCCC Secretariat indicated that this was not a hard deadline.” [89]
According to U.S. Climate Action Network, a total of 73 countries - 40 Annex I and 33 non-Annex I countries – have submitted targets to the Secretariat; of these, 64 were “associated” with the Accord. Thirty-five more, are “associated” with the Accord without having, so far at least, submitted targets. (That means a total of 99 countries are “associated.”) Thirteen more countries (including Brazil, China and India, despite their importance in finalizing the agreement, supra) have expressed support for the Accord but are not “associated” with it, for a tentative total of 112 “associated” or “supportive” countries. [90]
For commentary on COP-15, see James Hansen et al., Target Atmospheric CO2: Where Should Humanity Aim?, 2 Open Atmos. Sci. J. 217 (2008) & James Hansen, Never-give-up fighting spirit: lessons from a grandchild, GRIST, Dec. 1, 2009.
Stockholm Environment Institute & Potsdam Institute for Climate Impact Research, A Copenhagen Prognosis: Towards a Safe Climate Future: A Synthesis of the Science of Climate Change, Environment and Development (2009). (“This report presents a concise diagnosis of the state of the biosphere and observed trends and offers a treatment plan that is consistent with a 2°C warming threshold, equity and economic development.”)
GRIST’s Copenhagen Hub Page has many useful links to understanding the conference.
Joseph E. Aldy & Robert N. Stavins, Post-Kyoto International Climate Policy: Implementing Architectures for Agreement (Cambridge University Press, 2010).
Joseph E. Aldy & Robert N. Stavins, Post-Kyoto International Climate Policy: Summary for Policymakers (Cambridge University Press, 2009).
Opinion: Copenhagen Accord pledges are paltry: Current national emissions targets can’t limit global warming to 2 °C, calculate Joeri Rogelj, Malte Meinshausen and colleagues — they might even lock the world into exceeding 3 °C warming, 464 Nature 1126 (April 22, 2010) (“In the worst case the Copenhagen Accord pledges could permit emission allowances to exceed business-as-usual projections.” The report also suggested that many countries, including the EU and China, pledged lower reductions than they have already been achieving. [91])
On Jan. 7, 2010, the Congressional Research Service issued a report entitled Greenhouse Gas Emissions: Perspectives on the Top 20 Emitters and Developed Versus Developing Nations. It suggests a new, more flexible approach, after the inability to come up with a binding successor agreement in Copenhagen, that would focus on major emitters, which the 2005 data from the World Resources Institute says are China (19.1%), and the U.S. (18.3%): “no other country emits more than 6 percent of total emissions, the report said, although the European Union's 27 collective nations accounted for 13.4 percent of world emissions.” The 1992 UNFCCC placed responsibilities on industrialized nations to reduce emissions, but the developing world now, almost 20 years later, emits more than industrialized nations. [92]
By Jan. 20, 2010, Yvo de Boer had spoken to 15 or 20 countries after the conference about their intentions, and concluded that there was no guarantee that a treaty would be concluded this year. He stated in a webcast press conference that these countries anticipated that they would “forge an agreement this December on how to tackle climate change and then discuss further how to ‘package that outcome’ as a treaty” in 2011. [93]
On Feb. 18, 2010, two months after COP-15, Yvo de Boer, executive secretary of the U.N. Framework Convention on Climate Change, announced he would resign on July 1st; he had held office since September 2006. GRIST said “De Boer had come under fire for the outcome of the Dec. 7-19 UNFCCC negotiations in Copenhagen, which ended in near-chaos as world leaders scrabbled to find a face-saving deal.” [94]
On Feb. 23, 2010, Mr. de Boer said that the Copenhagen Accord “could evolve into a broader agreement on goals and content by the end of the Mexico negotiations...[b]ut the development of a full treaty will have to come after that.” [95] He remains hopeful that a binding treaty will be in force before the Kyoto Protocol expires at the end of 2012. See infra § 3.7. COP-16 on other early attempts to lower expectations for the Cancun meeting.
The U.S. is under pressure to pass climate change legislation in 2010 in preparation for a successor agreement to Kyoto. However, the news that several Democratic Senators (Sen. Chris Dodd (D-Conn.) & Sen. Byron Dorgan (D-N.D.)) will not seek re-election in November 2010 makes it uncertain whether Democrats will be able to maintain their necessary 60-vote filibuster-proof majority. [96]
Then, on Jan. 19, 2010, a special election was held in Massachusetts to fill Edward Kennedy’s Senate seat, which he had held from 1962 until his death in 2009. Surprisingly to many, Republican Scott Brown neatly defeated Martha Coakley, thus ending the Democrats’ 60-seat Senate majority and putting climate change legislation (and health care reform) in jeopardy. See infra.
A report released by the U.N. Environment Program on Feb. 23, 2010, entitled Information Note: How Close Are We to the Two Degree Limit?, concluded that current GHG reduction plans are insufficient to keep global temperatures from rising above 2 degrees Celsius (3.6 degrees Fahrenheit), as agreed at COP-15. [97]
See Harvard Project on International Climate Agreements (“Drawing upon leading thinkers in Australia, China, Europe, India, Japan, and the United States, the Project conducts research on policy architecture and key design elements of a post-2012 international climate policy regime.”)
3.7. COP-16
COP-16 will be held in Cancun, Mexico, Nov. 29th to Dec. 10, 2010. [98] However, in February 2010, with the meeting over nine months away, officials were already trying to lower expectations that it would result in a binding climate treaty, especially after high hopes for Copenhagen were so nearly dashed. Todd Stern, the U.S. special envoy on climate change, said passage of U.S. climate legislation was crucial if the U.S. hoped to exert influence over other countries to reduce their emissions. [99] Then in March, BusinessWeek reported that since the Copenhagen talks, shares in renewable-energy stocks have sunk, and that a binding, global treaty on climate change was not a reasonable expectation for Cancun, especially as the U.S. Congress appears to be bogged down with other issues, and given the state of the world economy. [100]
The web page of the United Nations Framework Convention on Climate Change serves both the Convention and the Kyoto Protocol by transmitting official documents and reports and other related information. It provides the latest data and is an invaluable resource for anyone researching in this area. The guide entitled Feeling the Heat included in the Essential Background section provides a useful introduction to global climate change, information on how the international community is responding, and background on the UNFCCC and the Kyoto Protocol.
Reports from COP/MOP sessions back to 1997 can be found under Meetings/Meetings Archive or you can do an Advance Search in Documentation/Documents on the UNFCCC Web page.
3.8.1. IPCC’s Assessment Reports: The Intergovernmental Panel on Climate Change (IPCC) was “established by the WMO and the UNEP to assess scientific, technical and socio-economic information relevant for the understanding of climate change, its potential impacts and options for adaptation and mitigation.” The third and fourth assessment reports, and other IPCC publications, are available in full text here.
IPCC Fourth Assessment Report: Climate Change 2007 (AR4): Working Group I’s contribution to the Fourth Assessment Report deals with the “Physical Science Basis” of climate change. The other three sections are from Working Group II, “Impacts, Adaptation and Vulnerability,” Working Group III, “Mitigation of Climate Change,” and the Synthesis Report. [101]
The report concluded, according to the New York Times, that “global warming is ‘unequivocal’ and that human activity is the main driver….” The article pointed out that this is the first report “in which the group asserts with near certainty — more than 90 percent confidence — that carbon dioxide and other greenhouse gases from human activities” are responsible for the warming. [102] Twelve hundred scientists, from over a hundred countries, participated in the report.
At the conference in Paris where the report was released, the U.S. government favored developing technology to block sunlight or refract it away from the earth with giant orbiting mirrors, and is on record as having wanted such a proposal included in the summary for policymakers. [103]
See Geoengineering, infra § 8. Innovative Technologies to Reduce GHG.
The secretary of the DOE, the chief of NOAA, and the administrator of the EPA said that despite the findings in the FAR, the Bush administration continued to reject mandatory measures to reduce U.S. GHG emissions, despite the fact that Congress was forging ahead with proposals to enact them. [104]
Indeed, President Bush’s fiscal 2008 budget, released Feb. 5, 2007, shortly after the FAR came out, cut funding for the U.S. Climate Change Science Program by 7% from fiscal 2007 levels. Climate change research at NOAA, NASA and the EPA would be cut as well. The DOE had a slight increase in climate change research funding. [105]
The FAR states that “[p]aleoclimate information supports the interpretation that the warmth of the last half-century is unusual in at least the previous 1300 years. The last time the polar regions were significantly warmer than present for an extended period (about 125,000 years ago), reductions in polar ice volume led to 4 to 6 metres of sea level rise.” [106] Achim Steiner, the executive director of the U.N. Environment Program, stated: “Anyone who would continue to risk inaction on the basis of the evidence presented here will one day in the history books be considered irresponsible.” [107]
However, a report, Recent Climate Observations Compared to Projections, published online by ScienceExpress the day before the FAR was released suggested that “[t]he data available for the period since 1990 raise concerns that the climate system, in particular sea level, may be responding more quickly to climate change than our current generation of models indicates.” [108]
The second part of the IPCC’s Fourth Assessment Report, entitled Impacts, Adaptation, and Vulnerability was released on Friday, April 6, 2007. [109] Although some areas in the northern hemispheres will temporarily benefit from global warming, poorer nations that are already at risk from climate changes are likely to suffer the most. [110] The report recommended prompt adjustment in vulnerable regions of the world, which include the Arctic, sub-Saharan Africa, small islands, and Asian river deltas. [111]
The third section of the IPCC’s FAR, entitled Mitigation of Climate Change was released on May 4, 2007, in Bangkok. The report showed that GHG emissions have increased 70% between 1970 and 2004. They will continue to grow unless consumption is seriously curtailed. However, the report concludes that emissions stabilization can be achieved at costs, projected at 3% global GDP, that do not disrupt the global economy. [112]
Fifth Assessment Report (AR5) will be finalized in 2014.
As noted supra, the U.S. signed and ratified the UNFCCC in 1992 during the George H.W. Bush administration.
Shortly after taking office, President Bill Clinton announced on Earth Day, April 21, 1993, “the Nation’s commitment to reducing our emissions of greenhouse gases to their 1990 levels by the year 2000.” [113] However, in the 1994 mid-term elections, the Democrats lost control of both houses of Congress for the first time in 40 years, and after that the president was unable to persuade the Republican Congress to cooperate with his good intentions. [114] Our subsequent lack of national consensus on climate change was a disappointment to environmentalists. [115]
In 1995, COP-1 met in Berlin, adopted the Berlin Mandate as discussed supra § 2., and began negotiating a Protocol that would set enforceable reductions in emissions, for Annex I parties only. The U.S. agreed to the Berlin Mandate, despite misgivings about the exclusion of developing country parties (the “non-Annex I” parties). [116]
At COP-2 in Geneva, in July 1996, the U.S. representative, Timothy Wirth, Under Secretary for Global Affairs at the Department of State, reversed the U.S.’s earlier position and announced support for binding national emissions limits. [117] At the December session of the AGBM, parties agreed to submit draft protocol proposals by the middle of January, 1997, as under the UNFCCC’s Article 17, proposals had to be communicated to the Parties at least 6 months before the Conference of the Parties at which they would be discussed.
Clinton and Gore were reelected in the November 1996 election.
In January, 1997, the U.S. State Department produced a draft protocol that contained specific caps on the greenhouse gases countries could emit during specific periods of time, based on 1990 emissions; it was a kind of international emissions trading scheme. Its attempt to encompass developing countries was deleted from the final draft protocol. [118] In March, 1997, the AGBM met to discuss the proposals.
In June, 1997, the U.S. Senate held hearings to discuss the protocol to the UNFCCC, and whether the Senate should pass its Resolution 98, also known as the “Byrd-Hagel Resolution,” which advised the president not to sign the Protocol. [119] The appendix to the report, S. Rpt. 105-54, that accompanied Senate Resolution 98 contained the testimony given at those hearings. The primary reasons the Senate gave for the U.S. not to sign included the protocol’s exemption of all 129 developing country parties from any obligations under the protocol. The Senate considered that omission “inconsistent with the need for global action on climate change and … environmentally flawed.” Also, the Senate “strongly” believed that “serious harm to the United States economy…” could result if the U.S. did join. [120] Resolution 98 was passed by the Senate 95-0 on July 25, 1997. Senator Byrd, one of its co-authors, elaborated on those two reasons in the Congressional Record about six months later, referring to the Protocol several times as a “work in progress” and a “partly painted” canvas. [121]
On Oct. 22, 1997, President Clinton spoke at the National Geographic Society where he outlined three elements of a “comprehensive framework…which…will enable us to build a strong and robust global agreement”: 1) the U.S. would commit to the “binding and realistic target” of lowering emissions to 1990 levels between 2008 and 2012; 2) the U.S. would “embrace flexible mechanisms” for meeting those limits, including a joint implementation system; and 3) the first two elements were conditioned on the participation of industrialized and developing nations in addressing global climate change. The president also outlined six elements of a plan to “provide incentives and lift roadblocks” to increase companies’ and individuals’ involvement. [122]
As noted supra, the Kyoto Protocol was adopted on Dec. 11, 1997, at COP-3, after about 30 months of delicate negotiations. [123] In February of 1998, the Senate Committee on Foreign Relations held a hearing entitled Implications of the Kyoto Protocol on Climate Change. The testimony noted that the Protocol as adopted the previous December “fails—fails—to meet either of the requirements of Senate Resolution 98. It fails to meet the minimum criteria set unanimously by the U.S. Senate,” referring to the Senate’s complaints in Resolution 98 that the Protocol exempted non-Annex I parties and would cause serious damage to the U.S. economy. [124]
In fact, U.S. Vice-President Gore did sign the Protocol on Nov. 12, 1998, and agreed to make greenhouse gas emission cuts of 7% below 1990 levels. [125] The signature was largely symbolic, as it was extremely unlikely, after the Byrd-Hagel Resolution passed so decisively, that the Senate would ratify it. [126] Indeed, neither the Clinton nor the subsequent Bush Administration has sent the Protocol to the Senate for ratification. [127]
At the last moment, in December 2005, former U.S. president Bill Clinton was added to the schedule as a speaker at COP-11 in Montreal, much to the consternation of the Bush administration, which told organizers of the conference that allowing Clinton to speak would “scuttle” any hopes of the U.S. signing onto the Kyoto Protocol. [128] Mr. Clinton spoke anyway, at the request of conference officials, and called the Bush administration’s opposition to the Protocol on the basis that it would harm the U.S. economy “flat wrong.” [129]
On Aug. 2, 2006, former President Clinton launched the Clinton Climate Initiative, as part of the William J. Clinton Foundation, in order to “make a difference in the fight against climate change in practical and measurable ways.” The Initiative joined with the Large Cities Climate Leadership Group (a group of 23 cities world wide, formed in 2005 to reduce urban carbon emissions) to help large cities combat global warming; the group is now called C40 Cities. [130]
Since his defeat in the 2000 presidential election, former Vice-President Al Gore has made a name for himself as an environmentalist. His 2006 film, “An Inconvenient Truth,” devoted to the risks of global warming, debuted at the Sundance festival and was a critical success, even earning Academy Awards for best documentary feature and best original song, I Need to Wake Up, by Melissa Etheridge, in January 2007. [131]
Al Gore was also nominated for the Nobel Peace Prize in February 2007, [132] and on Oct. 12, 2007, it was announced that he and the IPCC would share the prize, for their efforts to raise awareness of man-made global warming. However, a White House spokesperson said that the award would not impact administration policy regarding climate change. [133]
The Bush administration was known to have many connections with the oil industry, and the new president was not expected to favor environmental efforts. Indeed, President Bush made it clear shortly after assuming office, on June 11, 2001, in his Remarks on Global Climate Change that he would not support the Kyoto Protocol, repeatedly claiming that it was “fatally flawed in fundamental ways,” [134] that it unfairly exempted most of the world, and that as written it was not in the economic interests of the United States. [135] Former Vice-President Gore’s signature had little effect without ratification, but the signature did mean that the U.S. must not work against the Protocol, or prevent other nations from ratifying.
The president directed a Cabinet-level review of climate change science in March of 2001; the preliminary findings were released on June 11, 2001, in a report entitled Climate Change Review (2001). The report included an overview of U.S. actions to address climate change, an extremely critical analysis of the Kyoto Protocol, a discussion on advancing the science and technology of climate change and “building partnerships within the Western Hemisphere and with other like-minded countries.” [136]
In the course of writing the report, President Bush’s working group requested that the National Academy of Sciences write a review of the state of climate change science, in hopes that it would counterbalance the conclusions of the IPCC’s research. It was released in June of 2001, in time for the president to refer to it in his June 11, 2001 speech. However, the report largely agreed with the IPCC’s conclusions. [137] The NAS report was written by the Committee on the Science of Climate Change of the National Research Council, and was entitled: Climate Change Science: An Analysis of Some Key Questions (Washington, D.C.: National Academy Press, 2001).
The National Climate Change Technology Initiative (NCCTI) was also launched on June 11, 2001. The Climate Change Technology Program (CCTP), a multi-agency effort to develop climate change technology, was established in the Department of Energy to implement the NCCTI. CCTP was reviewed at workshops in 2005, and in May 2006 a report was issued, entitled Results of a Technical Review of the U.S. Climate Change Technology Program’s R&D Portfolio. The report concluded that the program is “doing very little in terms of novel, pushing-the-envelope technology development,” such as carbon sequestration, zero emission agricultural practices, more efficient power transmission and conducting, and “bio-inspired” fuels. [138]
The president’s Clear Skies Initiative, a proposed revision of the Clean Air Act announced on February 2002, submitted to Congress in July 2002, and to each of the Congresses that followed, [139] sought to reduce GHG "intensity" by 18% by 2012 and was advertised as “a better alternative to the Kyoto Protocol.” According to some, however, it actually “would weaken existing emission reduction targets for sulfur dioxide, mercury, and nitrogen oxides under the Clean Air Act by allowing three times more toxic mercury emissions, 50 percent more sulfur emissions, and hundreds of thousands more tons of nitrogen oxides.” [140] It has not been enacted.
The Senate Environment Committee
Sen. James Inhofe (R - OK), current (in December 2006) chairman of the Senate Committee on Environment and Public Works, is on record as believing that global warming is "the greatest hoax ever perpetrated on the American people" [141] and an overly media-hyped issue. [142]
Monday, Sept. 25, 2006, Senator Inhofe gave a speech debunking media coverage of global warming, entitled “Hot & Cold Media Spin Cycle: A Challenge To Journalists Who Cover Global Warming.” On Sept. 28, 2006, he gave a follow-up speech called “America Reacts to Speech Debunking Media Global Warming Alarmism” in which he discussed CNN’s criticism of his earlier speech.
On Dec. 6, 2006, the Environment Committee held a hearing on Climate Change and the Media. In his opening remarks, Senator Inhofe said that the media are “advocates for hyping scientifically unfounded climate alarmism.” [143]
Several pieces of climate-change legislation were introduced in the 109th Congress, which ended in December 2006. Several died in Senator Inhofe’s committee, including the following:
On Feb. 14, 2002, President Bush launched his Clear Skies and Global Climate Change Initiatives; its goal was to reduce U.S. GHG “intensity” by 18% over the next 10 years. [146] Two voluntary programs were begun to implement it as an alternative to the mandatory efforts of the Kyoto Protocol that the administration believes would harm the economy. [147] One program, the Climate Leaders Program, is run by the U.S. Environmental Protection Agency; the other, Climate VISION (Voluntary Innovative Sector Initiatives: Opportunities Now), is run by the Department of Energy.
However, a report published by the General Accounting Office in April of 2006, entitled Climate Change: EPA and DOE Should Do More to Encourage Progress Under Two Voluntary Programs, concluded that many of the U.S. companies participating in the programs have failed to set goals for cutting emissions. Neither agency has a means to punish firms that have not set goals. [148]
Climate Change Science Program
Also in 2002, President G.W. Bush launched the U.S. Climate Change Science Program (USCCSP) to coordinate climate change research at 13 departments and agencies, including EPA, NOAA, and the DOE; it incorporates the U.S. Global Change Research Program (USGCRP), established under the Global Change Research Act of 1990, Pub. L. No. 101-606, 104 Stat. 3096, during the presidency of George H.W. Bush, and the Climate Change Research Initiative, established by President George W. Bush in 2001.
An over-200-page report was issued in July 2003 by the Climate Change Science Program and the Subcommittee on Global Change Research, entitled The Strategic Plan for the U.S. Climate Change Science Program.
Under the Global Change Research Act of 1990 (§ 107 of the original act), the USCCSP is required to submit an annual report to Congress. These reports, entitled Our Changing Planet, have been posted on the U.S. Global Change Research Information Office Web page since 2004. The report for fiscal 2010 and the latest, as of November 2009, were posted on Oct. 28, 2009.
The Climate Change Science Program also produces the National Assessment of the Potential Consequences of Climate Variability and Change. The Global Change Research Act of 1990, § 106, requires that at least every 4 years the U.S. Global Change Research Program (known as the U.S. Climate Change Science Program since 2002) shall prepare and submit to the President and Congress an assessment to analyze, inter alia, the effects of global change on the environment, the economy, human health and safety, and project major trends for the future.
The first National Assessment, entitled: Climate Change Impacts on the United States: U.S. National Assessment of the Potential Consequences of Climate Variability and Change, was finally issued in October, 2000; the update to it was due in November, 2004. [149] See Letter of April 14, 2005, from Senators John McCain and John F. Kerry, entitled Climate Change Assessment: Administration Did Not Meet Reporting Deadline. [150]
On Nov. 14, 2006, the Center for Biological Diversity, Greenpeace, and the Friends of the Earth sued the Bush administration, claiming it had violated the Global Change Research Act by refusing to produce the overdue 2004 National Assessment. The case, Center for Biological Diversity, et al. v. Dr. William Brennan, et al., No. 06-CV-7062 (SBA), was filed in U.S. District Court for the Northern District of California. [151] The case was decided in favor of the plaintiffs in an order filed on Aug. 21, 2007. It was reported that: “District Judge Saundra Armstrong in Oakland, California, said the U.S. government ‘unlawfully withheld action’ required under the Global Change Research Act of 1990 to update a research plan and scientific assessment of climate change. The law mandates the research plan should be revised every three years and the assessment every four years. The last research plan was in 2003 and the last assessment was published in 2000. Greenpeace International and two other environmental groups who say the U.S. government suppresses science on climate change sued in November seeking a court order to produce the reports. ‘As the research plan is now more than a year overdue, the court orders that a summary of the revised proposed research plan be published in the Federal Register no later than March 1 [2008],’ Armstrong said in the order today. The scientific assessment must be produced by May 31 [2008], she said.” [152] Brendan Cummings, one of the attorneys who argued the case for the CBD, stated: “Today’s ruling is a stern rebuke of the administration’s head-in-the-sand approach to global warming.” [153]
Scientific Assessment of the Effects of Global Change on the United States was in fact released in May 2008, and Global Climate Change Impacts in the United States was released in June 2009. Compiled by NOAA, NASA, the Pentagon, the National Science Foundation, the Department of State and eight other federal agencies, the report concluded that: “Global temperature has increased over the past 50 years. This observed increase is due primarily to human-induced emissions of heat-trapping gases.” [154]
The National Assessment was a constant source of controversy for the Bush Administration. [155] See infra § 4.2.4., Political Interference with Climate Research and other Sciences, Hearings in the House of Representatives.
On May 10, 2007, EPA announced the formation of two committees to provide advice on two USCCSP programs. The committees are the Adaptation for Climate-Sensitive Ecosystems and Resources Advisory Committee, to work on a study titled: “Preliminary Review of Adaptation Options for Climate-Sensitive Ecosystems and Resources” program, and the Human Impacts of Climate Change Advisory Committee, to work on a study titled: “Analyses of the Effects of Global Change on Human Health and Welfare and Human Systems” study. [156]
On Nov. 5, 2007, Senators John Kerry (D-Mass.) and Olympia Snowe (R-Maine) introduced the Kerry-Snowe Global Change Research Improvement Act of 2007, S. 2307, to revise the USCCRP, which has not been significantly amended since 1990, to include consideration of state and local climate change issues. [157] It was referred to the Senate Committee on Commerce, Science, and Transportation and reported out of committee on May 22, 2008, by Senator Inouye with amendments and written report S. Rep. No. 110-341. It was placed on the Senate Calendar but failed to pass.
The Feinstein-Snowe Resolution
On Feb. 16, 2005, the exact day the Kyoto Protocol took effect, Senator Dianne Feinstein (D – CA) and thirteen co-sponsors introduced S. J. Res. 5, 109th Cong., Expressing the sense of Congress that the United States should act to reduce greenhouse gas emissions. The resolution was referred to the Senate Committee on Foreign Relations on the same day. The resolution states, inter alia, that 141 nations have ratified the Kyoto Protocol, and that the U.S. is the only member of the “Group of 8” [158] that has not. It cited major scientific organizations that have “issued statements acknowledging the compelling scientific evidence of human modification of climate,” including the IPCC, and concluded that it was in the best interest of the U.S. to “play an active role in any international discussion on climate policy.” It stopped short of recommending that the U.S. sign the Kyoto Protocol. No action was taken, and the resolution expired at the end of the 109th Congress, 2d Session.
The lead co-sponsor of the Resolution, Olympia J. Snowe (R - ME), was co-chairman of the International Climate Change Taskforce, which released a report entitled Meeting the Climate Challenge in January, 2005. [159]
The Sense of the Senate on Climate Change
On June 22, 2005, Senator Jeff Bingaman introduced (for himself and 12 other senators) Senate Amendment 866 to H.R. 6, a bill to ensure jobs for our future with secure, affordable, and reliable energy. The Bingaman “Sense of the Senate on Climate Change Legislation” amendment stated:
Congress finds that--(1) greenhouse gases accumulating in the atmosphere are causing average temperatures to rise at a rate outside the range of natural variability and are posing a substantial risk of rising sea-levels, altered patterns of atmospheric and oceanic circulation, and increased frequency and severity of floods and droughts; (2) there is a growing scientific consensus that human activity is a substantial cause of greenhouse gas accumulation in the atmosphere; and (3) mandatory steps will be required to slow or stop the growth of greenhouse gas emissions into the atmosphere.
It is the sense of the Senate that, before the end of the first session of the 109th Congress, Congress should enact a comprehensive and effective national program of mandatory, market-based limits on emissions of greenhouse gases that slow, stop, and reverse the growth of such emissions at a rate and in a manner that--(1) will not significantly harm the United States economy; and (2) will encourage comparable action by other nations that are major trading partners and key contributors to global emissions. [160]
The measure was defeated by roll call vote of 44 to 53 on June 22, 2005. Senator James Inhofe, among others, spoke extensively against the measure, emphasizing the uncertainty of climate science and the potential damage to the economy. [161] H.R. 6 became the Energy Policy Act of 2005, Pub. L. No. 109-58.
The Bush administration established the Asia-Pacific Partnership on Clean Development and Climate in July 2005. Member nations include Australia, Canada, China, India, Japan, the Republic of Korea, and the United States. [162] The APP was formed to “accelerate the development and deployment of clean energy technologies”; it “will be consistent with and contribute to Partners’ efforts under the UNFCCC and will complement, but not replace, the Kyoto Protocol.” The first meeting was held in Sydney, Australia, in January 2006. In April 2006, in Berkeley, California, Task Forces in the following major energy-intensive sectors in Partner economies –
Aluminum,
Buildings and Appliances,
Cement,
Cleaner Fossil Energy,
Coal Mining,
Power Generation and Transmission,
Renewable Energy and Distributed Generation, and
Steel
- met to begin developing Task Force Action Plans. In a later meeting in October 2006, in Korea, nearly 100 individual projects aimed at reducing greenhouse gas emissions over the last few years were endorsed. [163]
4.2.2. Religion & Climate Change: In January 2006, evangelical Christian members of the Evangelical Climate Initiative signed a statement entitled: Climate Change: An Evangelical Call to Action, suggesting that the Bush administration was losing some of its core supporters on the issue of climate change. The movement, according to the group’s Web site, has been in existence since about 2002. [164] Since then, the National Association of Evangelicals has agreed to collaborate, but the Interfaith Stewardship Alliance, launched by the Traditional Values Coalition as “an alternative to radical left-leaning environmentalism,” and other conservative Christian groups have criticized the alliance. [165]
In April 2007, the Church of England published a pamphlet entitled How Many Lightbulbs Does it Take to Change a Christian, encouraging Christians to help stop climate change.
On May 22, 2007, over 20 Christian, Jewish and Muslim groups, including the National Association of Evangelicals, sent a letter to President Bush and Congress urging action on climate change. The letter was published in two Capital Hill newspapers, Politico and Roll Call. [166]
The Vatican held a conference on climate change in April 2007; a papal encyclical was debated.[167]
On Oct. 15, 2007, officials in the Vatican called environmental damage “an ‘abuse’ of ‘God’s creation,’” and announced that it would install solar panels on the roof of the Paul VI auditorium. [168] It will also plant a 37-acre forest in Hungary to offset the GHG emissions produced by the Vatican. These actions will hopefully influence governments of the world’s Catholic countries. [169]
On Nov. 30, 2009, the Dalai Lama called for action on climate change for the first time, in Sydney, Australia. [170]
In an address to foreign ambassadors on Jan. 11, 2010, Pope Benedict said that he regretted that “economic and political resistance to combating the degradation of the environment” prevented a successful outcome at COP-15 in Copenhagen, and expressed his hope that this year would bring a comprehensive agreement on climate change. [171]
Court decisions have found that to criticize evolution in the public schools is a violation of the separation of church and state. Opponents of evolution among evangelical Christians are getting around that by insisting that global warming be debated along with evolution, the origin of the universe and other allegedly controversial issues, thus encouraging academic freedom in general. States with either enacted or unenacted legislation or pending bills to that effect include Texas, Kentucky, Oklahoma and South Dakota. [172]
Republican Sen. Lindsey Graham of South Carolina, who in late 2009 and early 2010 was working with Senators Kerry and Lieberman (both Democrats) on a climate change and energy bill (see infra § 4.4.1.2. GHG legislation: Senate), has been roundly criticized by conservatives for doing so. However, in March 2010, the Christian Coalition (with 2.5 million conservative Republican supporters) came out in support of Graham and climate change legislation. [173]
For academic commentary, see, e.g., Stephen M. Johnson, Is Religion the Environment's Last Best Hope? Targeting Change in Individual Behavior Through Personal Norm Activation, 24 Journal of Environmental Law and Litigation 119 (2009).
In November 2006, Democrats won a narrow majority in the House and the Senate, which also meant that the chairmanship of important environmental and energy committees would switch to members of the new majority. [174] Articles in the popular press warned against excessive optimism and cautioned that it would still be difficult, for example, to enact tougher automobile fuel-economy standards. [175] Nevertheless, on Nov. 29, 2006, the day of oral arguments on Mass. v. EPA, see infra, union representatives of over 10,000 EPA scientists, engineers, specialists and support staff members, filed a mass petition calling for Congress to take immediate action against global warming, and for an end to political interference with climate change scientists. See infra § 4.2.4. Political Interference with Climate Science.
At the 2007 World Economic Forum in Davos, Switzerland, British Prime Minister Tony Blair was optimistic that a major shift in the U.S. attitude toward climate change was pending. Senator John McCain spoke also, claiming that Congress would act soon on climate change legislation. [176] However,
Representative John Dingell (D-Mich.), the new chair of the House Energy and Commerce Committee, has expressed resistance to burdensome GHG legislation; Representative Joe Barton (R-TX), the outgoing chair and the new minority leader on that committee, is unabashedly skeptical of the science on climate change. Representative Henry Waxman (D-CA) is the new chairman of the House Government Reform Committee; Senator Jeff Bingaman (D-NM) is the new chair of Energy and Natural Resources; and Senator Barbara Boxer (D-CA) will chair Environment and Public Works. The latter three have all supported legislation to reduce GHG emissions. [177]
Surprisingly enough to Democrats, on Jan. 4, 2007, at the start of the 110th Congress, Senator Ted Stevens (a Republican from Alaska, and an ardent supporter of drilling in the Arctic National Wildlife Refuge) introduced S. 183, the Improved Passenger Automobile Fuel Economy Act of 2007, that would require passenger cars sold in the U.S. to get an average of 40 MPG by model year 2017. [178] It was referred to the Senate Committee on Commerce, Science, and Transportation. The bill would “remove the legal ambiguity that for years has inhibited the Secretary of Transportation” … from raising the CAFE (Corporate Average Fuel Economy) standards, and would thus lower prices at the gas pump, limit our dependence on foreign oil, and “significantly reduce greenhouse gas emissions.” [179] It would also establish market-based initiatives for GHG reduction. However, the bill finally reported back to the Senate by the Commerce Committee on May 8, 2007, was S. 357, the “Ten-in-Ten Fuel Economy Act,” which would if enacted only boost fuel economy to at least 35 MPG by model year 2019, and which also would give the Department of Transportation the option to permit a lower standard if it determined that the costs of the new rules outweighed the benefits. [180] It did, however, eliminate the “SUV loophole” by not distinguishing between passenger cars and light trucks, and would be the first major revision of fuel economy standards since the 1970s. Environmentalists were not enthusiastic, though they admitted that it was at least a start, and auto manufacturers were even less so, calling the new standards “unattainable” and lamenting the loss of the SUV .[181] In June 2007 auto manufacturers continued to object to an increase in fuel economy standards and to attempt to convince lawmakers to grant them an “escape hatch” in case the rules were too expensive to meet. [182]
Fuel economy is taken much more seriously in Europe, where 113 vehicle models get at least 40 mpg (combined city and country), an increase of 27 models from 2005. The U.S., on the other hand, which had 5 such models in 2005, has only 2 in 2007: the Honda Civic and the Toyota Prius. Astonishingly, “nearly two-thirds of the 113 highly fuel-efficient models that are unavailable to American consumers are either made by U.S.-based automobile manufacturers or by foreign manufacturers with substantial U.S. sales operations, such as Nissan and Toyota. These cars sold in Europe meet or exceed U.S. safety standards, so there is no reason why they shouldn’t be made available to U.S. consumers,” said the president of the Civil Society Institute, which (with others) conducted a study entitled American Voters and 40 MPG Fuel Standards: What They Want Congress to Do Now, in June 2007. [183]
Sen. James Inhofe (R-OK), former chairman of the Senate Committee on Environment and Public Works, handed over the chairmanship to Barbara Boxer (D-CA) in January 2007. [184] Senator Boxer has called the Bush administration’s record on global warming “dismal, worse than dismal,” [185] and said that “her priority will be to begin ‘a very long process of extensive hearings’ on global warming, which started in January 2007. She cited California's legislation requiring automakers to reduce emissions [see infra] as ‘an excellent role model.’” [186]
Senator Boxer has added two global warming subcommittees to Environment and Public Works. She will chair the Subcommittee on Public Sector Solutions to Global Warming, Oversight, and Children's Health Protection [originally Public Sector Solutions to Global Warming, Oversight, Children's Health Protection, and Nuclear Safety], and Sen. Joseph Lieberman (I-Conn.) will head the Subcommittee on Private Sector and Consumer Solutions to Global Warming and Wildlife Protection. [187]
House Speaker Nancy Pelosi co-sponsored (with 112 other representatives) H.R. 5642, the Safe Climate Act of 2006, in June of 2006, that would cap GHG emissions in 2010 and then reduce them. [188] It was referred to the House Subcommittee on Energy and Air Quality on July 17, 2006 where it died at the end of the 109th Congress. In March 2007, Representative Henry Waxman reintroduced the Safe Climate Act, now H.R. 1590, with 128 cosponsors, but House Speaker Pelosi was not among them; she decided not to cosponsor any climate change bill introduced in the House after her election as Speaker of the House on Jan. 4, 2007, to preserve her impartiality. [189] H.R. 1590 would reduce total U.S. greenhouse gas emissions to 80% below 1990 levels by 2050 by freezing total U.S. greenhouse gas emissions at 2009 levels in 2010; in 2011, the legislation would mandate a 2% annual reduction in emissions to 1990 levels by 2020, and 5% annual reductions beginning in 2021.
Speaker Pelosi established a select House committee to gather scientific information to improve public awareness of climate change, [190] called the House Select Committee on Energy Independence and Global Warming. [191] On March 9th, 2007, Pelosi named Rep. Ed Markey (D-Mass.) as chairman. On the same day, Rep. Markey issued a statement that the select committee “will conduct hearings and investigations, gather information, and develop recommendations to cut dependence on foreign oil and reduce greenhouse gas emissions linked to global warming.” [192] However, as a Select Committee, it lacks real power. The Editor in Chief of Science magazine wrote in July 2007: “[The committee’s] impotence was a concession to John Dingell (D-MI), the congressman from Ford and Chevy, who heads the powerful Energy and Commerce Committee and wanted no threat to its authority.” [193] In the January 2007 press release announcing the new committee, Speaker Pelosi said she hoped to have global warming legislation through committees with jurisdiction over energy, environment and technology policy by July 4th, 2007. [194]
In January 2007, the National Oceanographic and Atmospheric Administration (NOAA) acknowledged that human activities were contributing to warmer temperatures. [195]
On Jan. 12, 2007, Representative Nick J. Rahall, II, and 198 co-sponsors, introduced H.R. 6, the “Creating Long-Term Energy Alternatives for the Nation Act of 2007” or the “CLEAN Energy Act of 2007.” The bill (one of several major climate-related bills introduced in the new 110th Congress [196]) would roll back tax and other forms of relief for the oil and gas industry, [197] and steer the resulting funds toward energy efficiency and renewable energy sources. [198] The related House Resolution 66, reported from the Rules Committee, providing for consideration of H.R. 6 with 3 hours of general debate, was passed on Jan. 18, and H.R. 6 was enacted as Pub. L. No. 110-140 on Dec. 19, 2007. (See infra for discussion of H.R. 2420, and Energy & CAFE standards in the 110th Congress.)
On Jan. 16, 2007, Senators Biden and Lugar reintroduced S. Res. 30, “[e]xpressing the sense of the Senate regarding the need for the United States to address global climate change through the negotiation of fair and effective international commitments.” It was referred to the Committee on Foreign Relations, like its predecessor, which was not voted on. If passed, it would “essentially reverse a 1997 sense-of-the-Senate resolution that warned the Clinton administration against signing the Kyoto Protocol, which would have required mandatory greenhouse gas emissions reductions by the United States.” [199] See Byrd-Hagel Resolution, S. Res. 98, supra. It was approved by the Foreign Relations Committee on March 29th, [200] reported back to the Senate without an amendment or a written report, and placed on the Senate Legislative Calendar under General Orders, Calendar No. 101; as of mid-April 2007, it was thought that S. Res. 30 might be considered by the Senate by Memorial Day, [201] but it was not passed.
The 110th Congress began with several relevant bill introductions, including:
In his State of the Union Address, Jan. 23, 2007, President Bush offered several modest energy proposals: an increase in renewable fuels, [202] primarily ethanol, and increasing mileage standards for cars and trucks (the Corporate Average Fuel Economy or “CAFE” standards) by about 4% a year. Democrats and environmental groups were disappointed that emissions from stationary sources that burn fossil fuels were not mentioned. [203]
On Jan. 24, 2007, the day after the State of the Union address, President Bush issued Executive Order 13423, Strengthening Federal Environmental, Energy, and Transportation Management, ordering that all agencies improve their energy efficiency and reduce their GHG emissions by 3% or 30% annually through the end of fiscal 2015, relative to that agency’s energy use in fiscal year 2003; that they use renewable sources of energy and generate it themselves where feasible; that agencies with 20-vehicle or more motor fleets reduce their petroleum consumption by 2% annually through the end of fiscal year 2015 and increase the non-petroleum-base fuel consumption by 10% annually; and more. [204]
On Feb. 8, 2007, the House Committee on Science and Technology held hearings entitled The State of Climate Change Science 2007, coordinated with the release of the IPPC’s Fourth Assessment Report. Testifying were Dr. Susan Solomon of NOAA, Dr. Kevin Trenberth of the National Center for Atmospheric Research, Dr. Richard Alley of the Department of Geosciences, Pennsylvania State University, and Dr. Gerald Meehl of the National Center for Atmospheric Research.
On March 20, 2007, the House Committee on Energy and Commerce held a hearing entitled Climate Change: Perspectives of Utility CEOs. The executives were not opposed to mandatory carbon emissions limits, but were predictably concerned about increased utility charges. [205] Also on that date, Rep. Henry Waxman, with 127 cosponsors, introduced H.R. 1590, the “Safe Climate Act,” which calls for 80 percent cuts from 1990 GHG emissions levels by 2050. It was referred for consideration to the Subcommittee on Energy and Air Quality on March 21st, and never re-emerged. Twenty-one pages long, it referred to the findings of the IPCC; said that the U.S. Congress should participate in UNFCCC negotiations; that the CAA should be amended and that the EPA should promulgate GHG emissions targets beginning in 2010, GHG emissions not to exceed those of 2009; in 2011, emissions should be reduced by 2% per year so that by 2020 emissions don’t exceed those of 1990; starting in 2021 emissions should be reduced by 5% per year so that by 2050 emissions are 20% lower than they were in 1990. It also sketched out an emissions trading scheme.
On March 21, 2007, a joint hearing entitled Perspectives on Climate Change was held before the House Energy and Commerce Subcommittee on Energy and Air Quality, and the House Science and Technology Subcommittee on Energy and the Environment. Testifying were former vice president Al Gore, [206] and Bjørn Lomborg, adjunct professor, Copenhagen Consensus Center, Copenhagen Business School. Later that day, Mr. Gore also testified in front of the Senate Committee on Environment and Public Works. Mr. Gore had many recommendations for Congress, including an immediate freeze on CO2 emissions, a moratorium on new coal-fired power plants that cannot capture and sequester CO2, a carbon tax on industries, banning incandescent light bulbs, and tightening fuel economy standards for cars and trucks. [207] Predictably, Democrats received his proposals favorably, but only a few Republicans joined them, albeit cautiously. Other Republicans, especially Senator Inhofe (R-OK) and Representative Barton (R-TX), were critical. [208]
On March 28, 2007, Senator Durbin (D-IL) and Senator Hagel (R-Neb) introduced the Global Climate Change Security Oversight Act, S. 1018, that would, if enacted, require federal intelligence agencies to collaborate on a National Intelligence Estimate to evaluate the effect of predicted climate-related disasters on U.S. national security. Shortly thereafter, on April 16th, a report entitled National Security and the Threat of Climate Change was released by the CNA Corporation’s Military Advisory Board, which consisted of 11 retired 3- and 4-star admirals and generals, a former NASA administrator, and other experts. General Gordon R. Sullivan, chairman of the MAB, stated that: “We found that climate instability will lead to instability in geopolitics and impact American military operations around the world.” He appeared before the House Select Committee on Energy Independence and Global Warming on April 18th. [209] Three members of CNA’s Military Advisory Board testified again on May 9, 2007, before the Senate Foreign Relations Committee. One of them, retired Air Force Gen. Charles Wald, ranked climate change among the top three security threats to the U.S., and stated that: "This is one of the most dangerous times in our history." [210] On May 11th, 2007, the House of Representatives passed a provision in the 2008 Intelligence Authorization Act, H.R. 2082, that would require intelligence agencies to prepare a National Intelligence Estimate on the geopolitical effects of global climate change and the potential impacts on national security. The White House was not enthusiastic. [211]
As of April 23, 2007, the House Energy and Commerce Committee had held 11 hearings and heard testimony from over 50 witnesses, in an effort to develop climate change legislation that would be even-handed in the burdens it distributed on industries. The committee anticipated submitting the legislation in the fall of 2007. [212]
On May 14, 2007, President Bush, apparently in response to the Supreme Court decision in Mass. v. EPA, issued Executive Order 13432, entitled: Cooperation Among Agencies in Protecting the Environment with Respect to Greenhouse Gas Emissions From Motor Vehicles, Nonroad Vehicles, and Nonroad Engines to ensure that the Departments of Transportation, Energy, Agriculture, and the Environmental Protection Agency work together to protect the environment against vehicular GHG emissions “in a manner consistent with sound science, analysis of benefits and costs, public safety, and economic growth.” [213]
On June 12, 2007, the U.S. Senate began debates on a new energy bill, which Speaker Pelosi wanted to have enacted by July 4th. [214] In October of 2007, no legislation had been enacted, but Congress was still trying. See below. On Oct. 3d, the House of Representatives issued the first in a series of Climate Change Legislation Design White Papers, to “focus the discussion” in Congress as it attempts to enact a climate change bill; the first was entitled “Scope of a Cap-and-Trade Program.”
On Oct. 18, 2007, Senators Lieberman (chair of the Environment and Public Works Subcommittee on Private Sector and Consumer Solutions to Global Warming and Wildlife Protection) introduced the America’s Climate Security Act of 2007, S. 2191, aka the “Lieberman-Warner bill,” which would, in its section 9004, Retention of State Authority, refrain from preempting states from enacting GHG standards more stringent than the federal ones. [215] It would also cap the nation's GHG emissions and would make a gradual transition from free distribution of allowances to an auction-based system. [216] A hearing on the bill was held on Wednesday, Oct. 24, 2007, before the Senate Committee on Environment and Public Works to which the bill was referred. Testimony was presented by Kevin Anton, President of Alcoa Materials Management; Frances Beinecke, President of Natural Resources Defense Council; Dr. William R. Moomaw, Director of Tufts University Institute for the Environment; Will Roehm, Vice President of the Montana Grain Growers Association; and Paul Cicio, Executive Director of Industrial Energy Consumers of America. On Nov. 1, 2007, after modifications that procured more support, [217] the bill was cleared by the Senate Subcommittee on Private Sector and Consumer Solutions to Global Warming and Wildlife Protection and reported back to the full committee, [218] the first of the many global warming bills introduced in the 110th Congress to be endorsed by any congressional body. [219] Senator Boxer, chair of the Environment and Public Works Committee, said that she hopes to schedule a full committee vote before the December U.N. climate change meeting in Bali, [220] and indeed, S. 2191 was reported by the Senate Environment and Public Works Committee with an amendment in the nature of a substitute in an 11-8 vote on Dec. 5, 2007 [221]; a tough time, including a possible filibuster, was anticipated in the Senate, but Sen. Lieberman (I/D-Conn.) predicted that enough Republicans would support the legislation to provide the 60 votes needed to break it. [222] James E. Rogers, president and CEO of Duke Energy Corp., one of the world’s largest emitters of CO2, criticized the bill in January, 2008, for directing where the proceeds from an emissions allowance auction should be spent. [223]
In March 2008, the EPA completed an economic analysis of S. 2191 and found it relatively favorable to U.S. businesses. [224] But shortly thereafter, energy companies and other business interests launched an attack against it, claiming it would cost millions of jobs, send energy prices into the stratosphere and drain paychecks; others have said that the opposition has failed to take the increase in green energy into consideration. [225] But at the end of April, the Energy Information Administration (EIA is the statistical arm of the Energy Department) determined that the bill would have a relatively minor impact on the economy, only reducing GDP by about 0.3% in 2030, despite calling for a reduction in U.S. GHG emissions of almost 70% by 2050. [226] Unsurprisingly, on May 5, 2008, the American Petroleum Institute issued a report entitled Addendum to Impact Assessment of Mandatory GHG Control Legislation on the Refining and Upstream Segments of the U.S. Petroleum Industry that concluded the bill would “increase the cost of refining petroleum, sending many of those operations and their jobs overseas and raising already-escalating fuel costs for consumers.” [227]
S. 2191 was placed on the Senate Calendar in May 2008. [228] On May 6, 2008, two EPA specialists, Laurie Williams and Allan Zabel, sent an open letter to each member of Congress, expressing the opinion that a cap-and-trade program, such as the one in S. 2191, is inferior to a carbon tax. [229] In any case, S. 2191 did not pass the Senate.
On May 20th, Senator Boxer introduced a tougher climate bill, S. 3036, but later supported the earlier bill because it had more general support and a greater likelihood of passing. On June 6, 2008, the Lieberman-Warner Climate Security Act of 2008 (S. 3036) died in the Senate after failing to get the 60 votes needed to limit a filibuster, as Sen. Lieberman had hoped. [230]
The Pew Center on Global Climate Change has a 2-page document on their Web site which neatly and clearly summarizes the major GHG proposals. Published on Nov. 26, 2007 and entitled Economy-wide Cap-and-Trade Proposals in the 110th Congress, it includes legislation introduced as of November 16th.
The Bush Administration held its own climate-change conference for the world’s largest economies in Hawaii, Jan. 30-31, 2008. Australia, Brazil, Britain, Canada, China, the European Union, France, Germany, India, Indonesia, Italy, Japan, Mexico, Russia, South Africa, South Korea, and the United Nations have been invited to send delegates. [231] (The January meeting is a follow-up to one held in Washington, D.C., in September 2007. [232]) The administration’s approach, focusing on voluntary reductions, has met with skepticism from ENGOs and others. [233] On July 9, 2008, Bush and other leaders of the G8 signed a “commitment” to cutting GHG emissions 50% by 2050, with no interim targets and no mechanism for achieving the goal. And on July 11, 2008, the administration said it would not use the Clean Air Act to regulate GHG emissions, the Supreme Court decision in Mass. v. EPA notwithstanding. See David Malakoff, Climate Change: Bush Takes a Final Swipe, and Salute, at CO2 Emission Curbs, 321 (5887) Science 324 (July 18, 2008).
Energy & CAFE standards in the 110th Congress: On May 23, 2007, the House Foreign Affairs Committee approved H.R. 2420, the International Climate Cooperation Re-engagement Act of 2007, which would have required U.S. negotiators to launch talks aimed at securing U.S. participation in binding GHG reduction agreements that would also include Brazil, China and India, to prevent a gap in Kyoto Protocol requirements after 2012; the bill would have created within the Department of State an Office on Global Climate Change, headed by an Ambassador-at-Large for Global Climate Change to advise the president on these matters and advance the country’s goals; it would have provided clean energy assistance to foreign countries; and created an international clean energy foundation. [234]
According to thomas.loc.gov, the text of H.R. 2420 was “generally incorporated” in H.R. 3221, the New Direction for Energy Independence, National Security, and Consumer Protection Act; as enacted (Pub. L. No. 110-289), H.R. 3221 was a bill to provide needed housing reform.
Anything that survived of H.R. 2420 was incorporated into H.R. 6, the Energy Independence & Security Act of 2007, which was agreed to by the House of Representatives by a 235-181 vote (Roll no. 1140) on Thursday, Dec. 6, 2007. [235] (The White House had sent a letter to Nancy Pelosi threatening to veto it on Dec. 3, 2007. [236]) The bill would eliminate $13.5 billion in tax breaks given to the 5 largest U.S. oil companies; the proceeds would be used to encourage development of renewable energy sources. Auto manufacturers would be required to boost fuel economy by 40% to an average of 35 mpg by 2020, the first increase in fuel economy standards for automobiles since they were enacted in 1975 (and a relatively minor improvement, compared to foreign car manufacturers, see supra). On Friday, Dec. 7th, Senate Republicans prevented Democrats from bringing up the bill for a vote. That is, the Senate ended debate on a motion to agree to the House amendments to the Senate amendments to H.R. 6 by a 53 to 42 vote, and requiring the negotiations to begin all over again. [237] The major sticking points were the requirement that utilities generate 15% of their electricity from renewable sources, and some of the tax provisions. H.R. 6 was eventually signed into law on Dec. 19, 2007; as enacted (Pub. L. No. 110-140) the bill retained the 40% increase in the national fuel economy standard in its § 102 (b)(2)(A), which prescribed “a combined fuel economy average for model year 2020 of at least 35 miles per gallon for the total fleet of passenger and non-passenger automobiles manufactured for sale in the United States for that model year.” [238] Unfortunately, it retained the tax breaks to oil companies, the elimination of which would have funded renewable energy sources, and did not impose new taxes on them .[239] It will also gradually phase out incandescent light bulbs in favor of CFLs by 2014. However, environmental advocates on Jan. 17, 2008, said: “Growth in vehicle travel may wipe out any greenhouse gas emissions reductions that will be realized from newly enacted requirements to increase automobile fuel efficiency.” [240]
On Mar. 13, 2008, the American Energy Independence and Security Act of 2008, S. 2758, was introduced to open the Arctic National Wildlife Refuge to oil drilling if oil reaches $125 per galleon for 5 consecutive days; its sponsors were Alaska Senators Lisa Murkowski and Ted Stevens. However, few believed the bill to have significant support, and it did not emerge after referral to the Committee on Energy and Natural Resources. [241]
Shortly before leaving office, in November 2008, the Bush EPA was working to finalize air-quality rules that would weaken CAA protections for “Class 1 areas” near national parks and wilderness areas and “ease the way for the construction of at least two dozen coal-fired utilities within 186 miles of 10 national parks.” This despite the fact that 5 of the EPA’s 10 regional administrators formally dissented from the decision, and 4 others criticized it in writing; all but 2 of the regional administrators objecting to the proposed rule are political appointees .[242]
Hearing transcripts are located on committee Web sites for a while but, be warned, they are not archived there. I give the links to hearings when updating, but eventually they will not work. Later, some hearings will be on this website, from the 104th Congress (1995-96) to current, or on LexisNexis Congressional (by subscription only). (Committee reports are here from the 104th Congress (1995-1996) to current. Bills are also; the Bill Text feature covers the 101st Congress (1989) to current; Bill Summary and Status covers the 93rd Congress (1973) to current.)
UCS & GAP Reports:
Hearings in the House of Representatives: Atmosphere of Pressure, supra, was presented on Tuesday, Jan. 30, 2007, at a hearing held by the House Committee on Oversight and Government Reform, chaired by Rep. Henry Waxman (D-CA), entitled Allegations of Political Interference with the Work of Government Climate Change Scientists, 110th Cong. (2007). Testifying were Francesca T. Grifo, Ph.D., from the Union of Concerned Scientists; Rick Piltz, from the Government Accountability Project; Dr. Drew T. Shindell, a climate researcher at NASA’s Goddard Center; and Roger A. Pielke, Jr., University of Colorado, Boulder. A transcript is no longer (on Dec. 3, 2009) on the committee Web site, as noted above; it is, however, available from GPO Access or LexisNexis Congressional.
Rick Piltz had resigned in protest as senior associate with the Climate Change Science Program in 2005 over “efforts by industry groups and White House officials to weaken or delete language in official reports on global warming.” [245] At that time he sent a memo entitled On Issues of Concern About the Governance and Direction of the Climate Change Science Program to the CCSP explaining his motives. In his 2007 testimony, Mr. Piltz expressed concern over the politicization of the National Assessment of the Potential Consequences of Climate Variability and Change (the “National Assessment”), discussed supra § 4.2., The Bush Administration & Climate Change, Climate Change Science Program.
In his opening statement and in his Memo to Committee Members Regarding CEQ Documents, Mr. Waxman discussed the difficulties the committee, under his leadership and that of his predecessor, had when it requested what he characterized as routine documents from the White House’s Council on Environmental Quality. The CEQ repeatedly refused to produce more than a few documents although the committee scaled back the request several times and extended its deadlines. The documents had been viewed in camera by staff members so there was no doubt that they were relevant to attempts by administration officials to “mislead the public by injecting doubt into the science of global warming and minimizing the potential dangers.” Mr. Waxman noted that the CEQ chief of staff is Phillip Cooney, a former lobbyist for the American Petroleum Institute, and not a scientist.
House Hearings continued in the House Committee on Oversight and Government Reform entitled Allegations of Political Interference with Government Climate Change Science on Mar. 19, 2007. In his opening statement, Chairman Waxman stated that the documents produced since the earlier hearing on Jan. 30th suggested that “there may have been a concerted effort directed by the White House to mislead the public about the dangers of global climate change.” Testifying were Mr. Philip Cooney, former Chief of Staff, White House Council on Environmental Quality; Dr. James Hansen, Director, Goddard Institute for Space Studies, National Aeronautics and Space Administration; Mr. George Deutsch, former public affairs officer, National Aeronautics and Space Administration; Mr. James Connaughton, Chairman, White House Council on Environmental Quality; and Dr. Roy Spencer, University of Alabama in Huntsville. Mr. Cooney, who worked for the American Petroleum Institute before joining the CEQ in 2001, defended the 181 alterations he made to climate reports while working at CEQ. [246] A transcript is available through LexisNexis Congressional but on Dec. 3, 2009, it was not on GPO Access.
The House Committee on Natural Resources held a hearing entitled Endangered Species Act Implementation: Science or Politics? on May 9, 2007. One witness, Jamie Rappaport Clark, testified that the current administration has “undermined the scientific integrity of its [ESA] programs with political interference and slowly starved the program of needed resources.” The hearing was held the week after Julie MacDonald, former deputy assistant secretary for fish, wildlife and parks, resigned over allegations that she “bullied federal scientists,” among other things. [247] A transcript is available through LexisNexis Congressional but is not available on GPO Access as of Dec. 3, 2009.
Senate Hearing: The Senate Committee on Commerce, Science, and Transportation, chaired by Senator Daniel K. Inouye (D-Hawaii), held similar hearings, entitled Climate Change Research and Scientific Integrity, on Wednesday, Feb. 7, 2007. Opening statements were made by majority Senators Inouye, the committee Chairman, and Kerry; no one spoke from the minority. Testifying were Mr. William Brennan, Acting Director, USCCSP, who praised the Bush administration and claimed that the FAR could not have been possible without it; Dr. Richard Anthes, President of the University Corporation for Atmospheric Research, whose remarks centered on the decrease in budgets of NASA and NOAA; Mr. Thomas R. Knutson, a research meteorologist at NOAA who stated that NOAA’s Public Affairs staff had occasionally and unreasonably interfered with interviews he and others had given; Dr. James R. Mahoney, an Environmental Consultant for several organizations, who described the 6 levels of NOAA peer review of released documents or media communications aimed at reducing or eliminating errors or misrepresentations; Rick Piltz, Director of Climate Science Watch, Government Accountability Project, who also testified at the House hearing on Jan. 30th, supra, and who was the most outspoken on the subject; and Dr. F. Sherwood Rowland, a Professor of Chemistry and Earth System Science. A transcript is available through LexisNexis Congressional, but not from GPO Access.
Additional examples:
In early 2006, the director of the NASA Institute for Space Studies [248] located at Columbia University in New York City, Dr. James Hansen, a leader in climate-change research, “complained that he had been harassed by White House appointees as he tried to sound the global-warming alarm.”[249]
Commentary includes: Robert F. Rich & Kelly R. Merrick, Use and Misuse of Science: Global Climate Change and the Bush Administration, 14 Virginia Journal of Social Policy & the Law 223 (2007).
Seth Shulman, Undermining Science: Suppression and Distortion in the Bush Administration (Berkeley: University of California Press, 2006).
Sidney A. Shapiro, "Political" Science: Regulatory Science After the Bush Administration, 4 Duke J. Const. Law & Pub. Pol'y 31 (2009).
Michele Estrin Gilman, The President as Scientist-in Chief, in Symposium, Presidential Power in the 21st Century, 45 Willamette L. Rev. 565 (spring, 2009).
Image courtesy of the U.S. Fish and Wildlife Service, National Digital Library
4.2.5.1. Polar Bears: In 2004, the Center for Biological Diversity’s Climate, Air, and Energy Program started a petition that was eventually filed on Feb. 16, 2005, to give polar bears Endangered Species Act protection as a result of climate change. [258] When the Department of the Interior’s Fish and Wildlife Service failed to respond, the Center filed a law suit, Center for Biological Diversity et al. v. Norton, in December, 2005, in the U.S. District Court for the Northern District of California. On Dec. 21, 2005, the Interior Department released a 262-page report entitled Range-Wide Status Review of the Polar Bear (Ursus maritimus) on the effect of human activities on Arctic warming and the bears’ survival, despite the department’s having denied for months that it had analyzed human activities on polar bears. [259] On Dec. 27, 2006, in order to settle the suit, the Service proposed to list the polar bear as “threatened” under the ESA; the polar bear report was not cited in the listing. [260] Comments were accepted until April 9th, 2007, with a final decision on the listing required by Jan. 9, 2008. Kassie Siegel, climate director at the Center for Biological Diversity, stated: “As far as we can determine, it is the first admission by the administration in a legally meaningful context of the reality of global warming.” [261]
“Once listed, federal agencies will be obligated to ensure that any action they authorize, fund, or carry out will not jeopardize the Polar Bears’ continued existence or adversely modify its critical habitat, and the USF&WS will be required to prepare a recovery plan for the Polar Bear, specifying measures necessary for its protection.” [262]
On Feb. 13, 2007, the Center for Biological Diversity and Pacific Environment sued the federal government in U.S. District Court for the Northern District of California in San Francisco, claiming that the Fish and Wildlife Service did not fully consider the effects of global warming and oil and gas exploration on polar bears and other marine mammals when it wrote the regulations in Title 50, part 18, subpart J, entitled Nonlethal Taking of Marine Mammals Incidental to Oil and Gas Exploration, Development, and Production Activities in the Beaufort Sea and Adjacent Northern Coast of Alaska; the plaintiffs claimed that the regulations violated the Marine Mammal Protection Act and NEPA. The suit focused on the regulatory term “incidental taking.” [263]
Subpart J was added in August of 2006, in response to a 2002 request by the Alaska Oil and Gas Association and a 2004 request from BP Exploration (Alaska), Inc., that the Fish and Wildlife Service “promulgate regulations for non-lethal incidental take of small numbers of Pacific walrus and polar bears for a period of 5 years….” [264] That means that the companies wanted a regulatory procedure (they would request a “Letter of Authorization” or LOA) that would permit them to disturb marine mammals’ activities, such as “migration, breathing, nursing, breeding, feeding, or sheltering.” [265]
Venue was transferred to Alaska at some point in the proceedings, and Alaska Oil and Gas Association intervened on the side of defendant/appellees. The District Court gave summary judgment to defendants, upholding the regulations, and plaintiffs appealed. On Dec. 2, 2009, Judge Jerome Ferris of the 9th Circuit Court of Appeals affirmed the district court. [266]
Two companion bills were introduced in the first session of the 110th Congress: H.R. 2327, the Polar Bear Protection Act of 2007, on May 15, 2007, and S. 1406, by the same name, on May 16, 2007. Neither was reported back to Congress by the committees to which they had been referred.
On Sept. 7, 2007, the U.S. Geological Survey released the results of studies on the effects of climate change on polar bears [267]; the studies were to determine whether the bears should be regulated under the Endangered Species Act. [268] The reports concluded that two-thirds of the current population of 22,000 polar bears would disappear by 2050, regardless of any mitigating steps that may be taken to reduce global warming. [269]
Although a final decision on the listing was due on Jan. 9, 2008, the FWS postponed the decision for a few weeks on Jan. 7th. [270] Representative Edward Markey (D-MA) introduced H.R. 5058 on Jan. 17, 2008, “To prohibit the Secretary of the Interior from selling any oil and gas lease for any tract in the Lease Sale 193 Area of the Alaska Outer Continental Shelf Region until the Secretary determines whether to list the polar bear as a threatened species or an endangered species under the Endangered Species Act of 1973, and for other purposes.” [271] It was referred to the House Committee on Natural Resources, where it died.
On Jan. 17, 2008, the International Fund for Animal Welfare released a report entitled: On Thin Ice: The Precarious State of Arctic Marine Mammals in the United States Due to Global Warming, a comprehensive report commissioned to gauge the effects of unprecedented climate change on polar bears and other ice-dependent marine mammals within the United States.
On Mar. 10, 2008, NRDC, the Center for Biological Diversity, and Greenpeace sued the Bush administration for missing the January 2008 deadline for a final decision on whether to list the polar bear under the ESA. [272] On April 28, 2008, Judge Claudia Wilkin issued an injunction in Center for Biological Diversity v. Kempthorne, N.D. Cal., No. 08-1339, ordering the Department of the Interior to publish the listing decision in the Federal Register by May 15th; in documents filed on April 17th the Department had said it needed until June 30th to decide. [273] Kassie Siegel (see supra) hypothesized that the delay was connected to the Bush administration’s plan to issue offshore petroleum leases in one of the two areas the bears live. [274]
Interior Secretary Dirk Kempthorne announced that polar bears would be listed as “threatened” under the ESA, a lower level of protection than “endangered.” The Center for Biological Diversity, Greenpeace and the Natural Resources Defense Council filed papers on May 16, 2008, to reject the decision. [275]
On May 15, 2008, the final rule, entitled Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range [emphasis supplied], was published at 73 Fed. Reg. 28212, to be codified at 50 C.F.R. Part 17.
4.2.5.2. Penguins: In Sept. 2008 the FWS settled a
lawsuit by the Center for Biological Diversity after it failed to list twelve
species of penguins under the ESA as requested in 2006; the agency proposed to
list seven of the twelve as threatened or endangered by Dec. 19, 2009, which it
did not do. (Listing was denied to emperor and northern rockhopper penguins
despite scientific evidence that they are threatened by climate change.) On
Mar. 9, 2010, the CBD and the Turtle Island Restoration Network filed in the
District Court for the Northern District of California a lawsuit, Center for
Biological Diversity et al v. Salazar et al, 3:10-cv-00992-SC, accusing the FWS
of delaying the listing of the seven species. 
If the listing happens it would
complicate the approval of fishing permits, and compel federal agencies to
assess the impact of GHG emissions on penguins and attempt to mitigate the
potential harm to them.
[276]
The groups also intend to challenge the denial of ESA listing to the emperor
and northern rockhopper penguins. [277]
Image courtesy of the Freshwater and Marine Image Bank
Climate change was an issue for candidates of both parties in 2008. Al Gore’s winning the Nobel Peace Prize with the IPCC (see supra) in fall of 2007 gave Democrats a chance to highlight their attempts to raise CAFE standards and pass legislation to curtail GHG emissions. Rudolph Giuliani and Mitt Romney came out in favor of “clean coal” technology; John McCain has proposed legislation to establish a cap-and-trade program and raising CAFE standards; Mike Huckabee and Sam Brownback have tried to appeal to religious conservatives with a spiritual approach. All the Republican candidates were in favor of encouraging nuclear power. Fred Thompson suggested that we need more research in the area. [278]
John McCain choose first-term Alaska governor Sarah Palin as his running mate, described by Greenpeace’s Alaska Global Warming Campaigner, Melanie Duchin, as having "one of the most anti-environment records of any governor in the United States."[279] See infra § 4.7.1. Alaska.
On Nov. 13, 2007, the Environmental Appeals Board ruled (In Re Deseret Power Electric Cooperative EPA EAB, PSD Appeal No. 07-03, 11/13/08) that the EPA must reconsider its refusal to impose limits on CO2 emissions when it granted a permit for a new coal-fired power plant in Utah. The Sierra Club applauded the decision, saying that it “gives the Obama Administration a clean slate” to regulate GHG emissions from such sources under the CAA after Mass. v. EPA. [280]
President Obama referred to the importance of dealing with global climate change in his inaugural address on Jan. 20, 2009, as he was sworn in as the 44th president of the United States, [281] and included a GHG cap-and-trade system in his Feb. 26 proposed budget summary. [282] This cap-and-trade proposal “shifts the baseline for cutting annual U.S. greenhouse gas emissions from 1990—the measuring stick he used in his presidential campaign—to 2005 levels, which if implemented would mean more modest reductions by mid-century.” However, it “sent a clear signal to the environmental community that he intended to follow through on his pledge for mandatory controls on U.S. emissions.”[283]
On Earth Day, April 22, 2009, President Obama and Interior Department Secretary Ken Salazar announced new guidelines clearing the way for major offshore wind projects. It represented “the biggest federal step forward to date for clean energy in the United States.” [284]
After Chancellor Merkel spoke to a joint session of Congress (see infra § 4.4.1.3.) on Nov. 3, 2009, President Obama hosted an E.U.-U.S. summit and told European Commission President Jose Manuel Barroso, E.U. foreign policy chief Xavier Solana, and Fredrik Reinfeldt, Prime Minister of Sweden and the current E.U. president, that it was “imperative for us to redouble our efforts in the weeks between now and the Copenhagen meeting to assure that we create a framework for progress in dealing with [a] potential ecological disaster.” [285]
4.4.1. GHG legislation:
The Center for Public Integrity’s web site, The Climate Change Lobby, reports that the number of climate change lobbyists in Washington has mushroomed from 2003 to 2008. They estimate an increase of more than 300 percent in the number of lobbyists on climate change in just five years, or about four climate lobbyists for every member of Congress.
For academic commentary on U.S. climate change legislation, see, e.g., Victor B. Flatt, Taking the Legislative Temperature: Which Federal Climate Change Legislative Proposal Is "Best"?, 102 Nw. U. L. Rev. Colloquy 123 (Dec. 2007).
Jonathan Hiskes, UN chief will pressure senators on climate bill, Grist (Oct. 26, 2009).
4.4.1.1. House of Representatives: On May 21, 2009, the House Energy and Commerce Committee approved H.R. 2454, Waxman-Markey’s American Clean Energy and Security Act (aka “ACES”) by a vote of 33 to 25. [286] The committee’s web page said on May 28th [287]: “The American Clean Energy and Security Act will create millions of new clean energy jobs, save consumers hundreds of billions of dollars in energy costs, enhance America's energy independence, and cut global warming pollution. To meet these goals, the legislation has four titles:
* A clean energy title that promotes renewable sources of energy, carbon capture and sequestration technologies, clean electric vehicles, and the smart grid and electricity transmission.
* An energy efficiency title that increases energy efficiency across all sectors of the economy, including buildings, appliances, transportation, and industry.
* A global warming title that places limits on emissions of heat-trapping pollutants. This legislation would cut global warming pollution by 17% compared to 2005 levels in 2020, by 42% in 2030, and by 83% in 2050. These are science-based targets and within the range agreed to by USCAP.
* A title that protects U.S. consumers and industry and promotes green jobs during the transition to a clean energy economy.”
On June 26, 2009, the House of Representatives passed H.R. 2454 by a vote of 219-212. EDF stated that the bill: Establishes a cap-and-trade program to spur investment in clean energy technologies and new manufacturing jobs, sets a declining cap on greenhouse gas emissions at 17% below 2005 levels by 2020 and 83% by 2050, and costs only about a postage stamp a day for the average household, according to an analysis by the nonpartisan Congressional Budget Office. [288] However, it passed by just one vote more than the simple majority of 218 needed to pass legislation in the House. [289] It was placed on the Senate Legislative Calendar on July 7, 2009, as General Order 97. [290]
On Oct. 27, 2009, a consultant with Wood Mackenzie, Alan Gelder, stated that H.R. 2454 as drafted “poses a disruptive threat to the U.S. refining industry,” because it would force refiners to purchase most of their emissions credits, thus giving an advantage to imported oil. [291]
4.4.1.2. Senate: The American Clean Energy
Leadership Act of 2009 (
S
.
1462
)
was approved by the Senate Energy and Natural Resource Committee and reported
out of committee on July 16, 2009; see S. Rep. No. 111-48.
In April 2010, Senator Harry Reid is considering amending this bill with
broader climate change provisions. [292]
On Sept. 30, 2009, S. 1733, The Clean Energy Jobs and American Power Act, aka the “Kerry-Boxer bill,” was introduced in the Senate. It would “require U.S. power plants and other operations to cut their greenhouse gas emissions 20 percent by 2020 from 2005 levels.” [293] The Senate Environment and Public Works Committee marked up climate change legislation in November. [294]
On Oct. 23, 2009, EPA’s Office of Atmospheric Programs released a comparative analysis of the two leading House & Senate bills, entitled Economic Impacts of S. 1733: The Clean Energy Jobs and American Power Act of 2009. EPA estimated that the impacts of S. 1733 would be similar to those for the House-passed climate bill, H.R. 2454. The average loss in consumption per household “will be relatively low, on the order of hundreds of dollars per year….” [295] The same day, Senator Boxer, Chairman of the Senate Committee on Environment and Public Works, released a new version of S. 1733; hearings will start on Oct. 27th. [296]
Analysts from the Pew Center on Global Climate Change warned at the end of October, that the lack of progress on S. 1733 will hamper the negotiations in Copenhagen in Dec. 2009, as the meeting’s success hinges on what the U.S. will offer by way of a commitment. They suggested lowering expectations, rather than raising them, say, by looking for a strong interim agreement instead of a new binding GHG reduction agreement. [297]
Senator Boxer stated at the end of October 2009 that the target of a 20% emissions reduction by 2020 in the Senate’s bill (the House bill only stipulates 17% reduction) is feasible given that emissions have fallen by 8% over the last 2 years due to the economic downturn; however, the bill needs the support of Democrats from coal states who have expressed concern about the steepness of the target. [298]
Three days of hearings began on Oct. 27, 2009, before the Senate Environment and Public Works Committee, entitled Legislative Hearing on S. 1733, Clean Energy Jobs and American Power Act. Senator James M. Inhofe of Oklahoma, ranking Republican on the committee and a global warming skeptic, and Senator Max Baucus, Democrat of Montana, expressed serious doubts about the costs of and potential benefits from the bill. [299] Climate legislation is running into serious opposition not only from Inhofe, but also Bob Stallman, President of the American Farm Bureau Federation, which is, according to Grist, probably the nation’s most potent agribusiness interest group. [300] On Oct. 30th, Senator Boxer revealed the version of the bill reported by the committee, the revised chairman’s mark. On Nov. 3, the committee began debate on S. 1733, although all seven Republican members boycotted the proceedings, claiming that they wanted EPA to finish a more detailed cost analysis, although the economics are nearly the same as for the House bill, Waxman-Markey, supra. [301] Senate Democrats reported the bill out of committee on an 11 to 1 vote on Nov. 5, 2009, a “modest step forward,” but progress nonetheless. [302] The vote against was cast by Sen. Max Baucus (D-Mont.), who wants China to make similar cuts and believes the bill’s 20% target is unreasonable. [303]
Senator Baucus chairs the Senate Finance Committee, one of four other committees (the other 3 are Agriculture, Nutrition, and Forestry; Commerce, Science, and Transportation; and Foreign Relations) with jurisdiction over portions of the bill. The Finance Committee will begin hearings on S. 1733 on Nov. 10, 2009. However, Baucus has already stated that the emissions cuts are too deep for him to support; he says no date has been set for a Finance markup of the bill, and doubts that Senate floor debate or a floor vote will happen this year. [304]
On Nov. 17, 2009, Senate Majority Leader Harry Reid (D-Nev.) announced that the Senate will act in early 2010 on legislation to battle climate change; thus the U.S., as expected, will not have adopted climate legislation by the Copenhagen meeting in December 2009.[305]
The Republican side of the Senate Environment and Public Works Committee was empty Tuesday, Nov. 4, 2009, during climate talks.[306] Committee chair Senator Barbara Boxer sits in the left front corner. GRIST maintains that part of the bill’s problem is a lack of senatorial willingness to cooperate with her.[307]
Meanwhile, on Wednesday, Nov. 4, 2009, Senators John Kerry (D-Mass), Lindsey Graham (R-S.C.) and Joe Lieberman (I-CT) announced that they were working with the Senate to produce a compromise bill that could conceivably get 60 votes in the Senate. [308] On Mar. 17, 2010, the senators discussed an 8-page outline of their proposal with industry leaders and some of the details were leaked; it was projected that a full outline would be released Tuesday, Mar. 23d. Although it was not, the three announced that they will soon begin discussions with a larger group of Senate colleagues. Points rumored to be in the bill: preemption of EPA regulation of GHGs from stationary sources under the CAA; it would match H.R. 2454's 17% cut in emissions by 2020 from 2005 levels [309]; it would exempt plants that emit 25,000 tons of GHG per year or less from participation in the program. Senator Kerry insisted that their bill will have both climate and energy provisions; it will not be limited to energy. They hope it will pass the Senate in 2010, although that seems unlikely given the recent battle over health care legislation and the upcoming midterm elections. [310]
On Friday, Mar. 19, 2010, after the health care legislation was passed, Sen. Tom Udall and 21 other Senate Democrats sent a letter to Harry Reid expressing support for passing climate and energy legislation this year. [311]
After attending a briefing on the new bill Mar. 26-29th, energy efficiency experts were concerned that it would not contain provisions providing emissions allowances to states to fund energy efficiency or renewable energy programs. On April 1st it was announced that Kerry, Graham, and Lieberman were aiming to unveil the bill during the week celebrating the 40th anniversary of Earth Day on April 22. [312]
Seven state attorneys general wrote a letter April 5, 2010, to Senators Graham, Kerry and Lieberman, urging them to avoid preempting state, local or regional programs to control GHG emissions, such as RGGI (see infra § 4.6.), in their new climate and energy bill. The senators have hinted that their bill might preempt EPA from regulating new or modified stationary sources; it might also preempt independent state and regional efforts, which have been permitted under federal environmental laws as long as they are at least as stringent as federal standards. [313] On April 21, 2010, Senator Voinovich (R-Ohio) said he would only support their bill if it included his amendment preempting EPA or any other federal agency, as well as any state or local government, from regulating GHG emissions through programs or laws independent of a federal climate change program; it would give the DOT exclusive authority for regulating GHG from mobile sources, despite the joint EPA/NHTSA rule finalized April 1st (see infra § 4.4.2.2.1.). States were opposed to preemption, and at least one Senator believed that coal states supported it. [314]
On April 20th, the release date of the Graham, Kerry and Lieberman bill was estimated to be Monday, April 26th; its tentative name is the “American Power Act.” Then on Saturday, April 24th, Senator Graham announced in an angry letter [315] to the other two senators that he was withdrawing his support for the bill, as democrats had decided to take up immigration reform before the energy/climate bill and he didn’t feel that Congress could deal with both issues at once. [316] This in the context of Arizona’s enactment of a stringent anti-immigration bill the previous week, which spurred the apparent action by Senate Majority Leader Harry Reid. (“Apparent” because, as of April 26, 2010, he had not stated that immigration would take precedence, and indeed has expressed his commitment to addressing climate, energy, and immigration in this session; on April 27th, Reid stated that as the climate bill is further along in the legislative process, it would take precedence over immigration reform. [317]) Graham’s decision means the bill is indefinitely postponed; furthermore, his withdrawl of support may mean endorsement by other Republican senators and Senate passage once it is introduced are both in doubt. [318] On the 26th, Senator Graham said he will not reconsider his decision; aides to Lieberman and Kerry stated that they will proceed with or without him. One possibility would be to submit the draft bill to EPA for cost analysis (a process that could take 5-6 weeks) before introducing it sometime in June; a description of the draft bill (not the actual text) was given to EPA on the 28th . [319] Senator Kerry stated that he viewed Graham’s defection as only a “temporary setback.” On April 28th, over a hundred businesses, including wind and solar energy companies, encouraged the Senate to forge ahead with a climate bill. [320] One commentator felt that the lack of U.S. climate legislation could doom the chances of an international deal this year on a successor to the Kyoto Protocol. [321]
Earlier, on Friday, April 23, 2010, House Speaker Nancy Pelosi said that she believed there was enough time this year for Congressional action on immigration, climate and energy, as well as financial reform, and Sen. Barbara Boxer agreed. [322]
On April 27th, 31 environmental groups including Defenders of Wildlife, Environment America, and the National Wildlife Federation sent a letter to senators encouraging bipartisan support of the legislation, and on April 28th a group of 175 clean energy companies (joining the businesses mentioned above) wrote a letter to Harry Reid, encouraging him to move forward with the bill. [323]
I had held off publication of this update hoping to discuss the bill, but that will not be possible now; hopefully, congressional progress on climate legislation will appear in the next update.
4.4.1.3. Congress as a whole: Chancellor Angela Merkel spoke to a joint session of Congress on Nov. 3, 2009, the first German chancellor to do so since Konrad Adenauer in 1957, to mark the 20th anniversary of the fall of the Berlin wall. She received many standing ovations, except when she spoke in favor of a climate change agreement in Copenhagen, and then many Republicans remained seated. [324]
4.4.2. GHG regulations: EPA & Mass. v. EPA
4.4.2.1. California waiver of federal preemption: On Wednesday, July 8, 2009, the EPA issued a decision “withdraw[ing] and replac[ing] the EPA’s prior denial of the CARB’s Dec. 21, 2005 waver request, which was published in the Federal Register on Mar. 6, 2008.” The denial was published at 73 Fed. Reg. 12156-12169 (2008) and discussed infra, under Mass. v. EPA. The 91-page notice granting CARB’s waiver request, was entitled California State Motor Vehicle Pollution Control Standards; Notice of Decision Granting a Waiver of Clean Air Act Preemption for California’s 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles, and published at 74 Fed. Reg. 32744 on July 8, 2009.
4.4.2.2. Regulatory “end run” around Congress: EPA’s Endangerment Finding: Under Mass. v. EPA, see infra § 4.6., EPA is required to determine whether emissions from cars and trucks endanger public health and welfare; an endangerment finding would require the agency to regulate those emissions.
On April 24, 2009, EPA proposed a finding that GHG emissions endanger public health and welfare, and that emissions from cars and light trucks cause or contribute to the endangerment, entitled Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act; the Agency reported receiving over 300,000 comments on the proposal.[325]
4.4.2.2.1. Mobile Sources: On May 19, 2009, President Obama announced a new National Fuel Efficiency Policy intended to increase fuel economy and reduce GHG emissions for all new cars and trucks sold in the U.S. The policy “represents an unprecedented collaboration between the Department of Transportation (DOT), the Environmental Protection Agency (EPA), the world’s largest auto manufacturers, the United Auto Workers, leaders in the environmental community, the State of California, and other state governments.” EPA Administrator Jackson said: “A supposedly ‘unsolvable’ problem was solved by unprecedented partnerships.” [326]
California “has agreed to defer to the proposed national standard through model year 2016. The 2016 endpoint of the two standards,” California’s and the new federal standard, “are essentially the same, although the national standard is using an attribute-based approach (consistent with the new CAFE), while California’s standard used the older approach of vehicle type. The national program ramps up slightly more slowly than the California program envisioned, but does get to the same fleet average endpoint. The national program also results in a greater total amount of greenhouse gas reductions than what a California program would have delivered, even with the 14 states who they said they would join the California program, according to the official.” [327] President Obama also said in his remarks: “I want to applaud California and Governor Schwarzenegger and the entire California delegation for their extraordinary leadership. They have led the way on this, as they have in so many other efforts to protect the environment.”
A direct offshoot of this policy was a notice of intent to conduct a joint rulemaking, [328] jointly announced by DOT Secretary Ray LaHood and EPA Administrator Lisa P. Jackson; the details were elaborated on in September, [329] and the Proposed Rulemaking To Establish Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards was published on Sept. 28, 2009.[330] This rule (expected to be finalized Mar. 31, 2010 [331] (see infra)) would be the first federal limitation on global warming pollution. It would cover model years 2012 through 2016 and would, in the words of Secretary LaHood, “[b]ring about a new era in automotive history.” Administrator Jackson stated, “[t]hrough that partnership [with American automakers], we’ve taken the historic step of proposing the nation’s first ever greenhouse gas emissions standards for vehicles, and moved substantially closer to an efficient, clean energy future.”[332] Senate Foreign Relations Chairman John Kerry approved the message the administration was sending to the international community slightly over 2 months before COP-15 in Copenhagen, where U.S. leadership will be critical in drafting a successor protocol to Kyoto.
On Nov. 9, 2009, EPA sent a draft endangerment finding to the White House OMB, which has 90 days to review it; it must be finalized before the agency can issue the final emissions standards that were proposed in September. [333] An endangerment finding would be the legal basis for proposed regulation of car and light truck GHG emissions as well as emissions from new and modified stationary sources, see infra. [334]
Despite the “Climategate” controversy, see infra § 4.4.2.3., the endangerment finding was released on Dec. 7, 2009, at a news conference, the day COP-15 opened in Copenhagen, which enabled the president to show UN delegates there that the U.S. is finally moving aggressively to curb emissions. [335] The finding was published on Dec. 15th at 74 Fed. Reg. 66,496, and had a deadline of Feb. 16, 2010, for filing lawsuits challenging it (see infra § 4.4.2.5.). EPA took final action on GHG emissions from cars and light trucks on April 1, 2010, see infra. [336]
On Oct. 30, 2009, EPA promulgated the Mandatory Reporting of Greenhouse Gases rule, 74 Fed. Reg. 56,260, which required 31 industry sectors, covering 85 percent of total U.S. GHG emissions, to track and report their emissions to inform future policy decisions.[337] Under the rule, suppliers of fossil fuels or industrial GHGs, manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of GHG emissions are required to submit annual reports to EPA. It is first such rule in the U.S. and had an effective date of Dec. 29, 2009. On Mar. 22, 2010, amendments were proposed to the rule to collect data from the oil and natural gas sector, industries that emit fluorinated gases, and from facilities that inject and store carbon dioxide (CO2) underground for the purposes of geologic sequestration or enhanced oil and gas recovery. EPA also proposes that all facilities in the reporting program provide details of their corporate ownership. Public hearings will take place in April 2010.
Despite the flurry of proposed regulations, the administration would prefer that Congress pass legislation to limit GHG emissions in lieu of a regulatory approach, but the president has encouraged EPA to move forward with regulations to hopefully goad Congress into acting and to offer as an indication of the U.S.’s sincerity at the Copenhagen COP-15 conference in December. [338]
On Wednesday, Dec. 9, 2009, EPA Administrator Lisa Jackson spoke in Copenhagen, describing the endangerment finding as offering a dual path, complimentary to legislation, to cutting GHG emissions as: "… not an either/or moment. This is a “both/and” moment." [339]
In her response to the Feb. 19, 2010, Rockefeller Letter, see infra, on Feb. 22, 2010, Administrator Jackson wrote:
“You asked in your letter what the result would be if Senator Lisa Murkowski’s resolution of disapproval ... were enacted. One result would be to prevent EPA from issuing its greenhouse gas standard for light-duty vehicles, because the endangerment finding is a legal prerequisite of that standard. The impacts of that result would be significant. In particular, it would undo an historic agreement among states, automakers, the federal government, and other stakeholders. California and at least thirteen other states that have adopted California’s emissions standards likely would enforce those standards within their jurisdictions, leaving the automobile industry without the explicit nationwide uniformity that it has described as important to its business.” [footnotes omitted]
From EPA homepage: DOT, EPA Set Aggressive National Standards for Fuel Economy and First Ever Greenhouse
Gas Emission Levels For Passenger Cars and Light Trucks
The historic joint final rule (837 pages long) establishing light-duty vehicle GHG emission standards and corporate average fuel economy standards was announced on April 1, 2010 by EPA, acting under the Clean Air Act, and the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA), regulating Corporate Average Fuel Economy (CAFE) standards under the Energy Policy and Conservation Act. [340] (A corrected, 1469-page version of the final rule appeared shortly thereafter on the NHTSA web page, in advance of publication in the Federal Register; the official version had not yet appeared on April 28th.) Starting with 2012 model year vehicles, the rules require automakers to improve fleet-wide fuel economy and reduce fleet-wide GHG emissions by approximately five percent every year. By 2016, new cars will have to get an average of 35.5 miles per gallon, from 26 mpg today, and emit 250 grams per mile of CO2. The rule will add about $1000.00-1300.00 to the cost of a new car, but petrol savings are expected to more than cancel out those projected costs [341]: the rules could potentially save the average buyer of a 2016 model year car $3,000 over the life of the vehicle. Nationally, it will conserve about 1.8 billion barrels of oil, and reduce nearly a billion tons of GHG emissions over the lives of the vehicles covered. EPA Administrator Lisa Jackson described the final rule as “a win-win program for our economy and our environment,” [342] and stressed, again, that there would be no regulation of stationary sources this year [343]; as the new auto emission standards will not formally “take effect” until the 2012 model year begins (that is, no earlier than Jan. 2, 2011), the introduction of power plant regulations will be delayed until early 2011. [344] The rule moves up the goals of a 2007 energy law requiring a 35 mpg standard after 2020. [345] (Discussed supra, under Energy & CAFE standards in the 110th Congress; & infra, § 4.6 Other States’ Actions to Reduce GHG Emissions, Mass. V. EPA.)
In a speech at Andrews Air Force Base on Mar. 31, 2010, President Obama said: “[J]ust a few months after taking office, I also gathered the leaders of the world’s largest automakers, the heads of labor unions, environmental advocates, and public officials from California and across the country to reach a historic agreement to raise fuel economy standards in cars and trucks. And tomorrow [April 1, 2010], after decades in which we have done little to increase auto efficiency, those new standards will be finalized, which will reduce our dependence on oil while helping folks spend a little less at the pump.” [346]
U.S. EPA Administrator Lisa P. Jackson and Transportation Secretary Ray LaHood held a press conference call Thursday April 1, 2010, at 12:00 p.m. to discuss the administration’s historic “clean cars” rule. Unfortunately, the conference call was available to credentialed media only.
This author is of the opinion that the truly historic and unprecedented coalition formed among federal agencies, California and the 14 other states that had already signed onto California’s emissions standard, auto manufacturers, ENGOs, unions and others, was not acknowledged or appreciated by the popular media to the extent it deserves. This was a huge achievement of the Obama Administration, at the very least on par with health care reform.
4.4.2.2.2. Stationary Sources: On Oct. 27, 2009, EPA proposed a “tailoring rule” to limit prevention-of-significant-deterioration provisions to sources that emit more than 25,000 tons per year of carbon dioxide or other GHGs for 5 years, which would limit the number of sources potentially subject to the regulation, entitled: Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 74 FED. REG. 55292. However, states complained that many more sources would be covered by PSD under the 25,000 ton rule than previously thought, and in March 2010, Administrator Jackson offered to raise the threshold to 75,000 tons for the first 2 years. Also, for the first 6 months of 2011 it will only apply to sources that are already subject to criteria air pollutant standards for other pollutants. In the second half of 2011, however, PSD would apply to all sources (about 1700) that emit over 75,000 tons. [347]
On Mar. 25, 2010, EPA announced that the tailoring rule will not be finalized by the Mar. 31, 2010, deadline originally set by the agency,[348] but on April 7th they announced that they expected it to be finalized by the end of April.[349] On April 22, 2010, a final version of the tailoring rule was sent to the OMB, typically the last step before a significant agency action.[350]
On Monday, Mar. 29, 2010, EPA issued a final rule entitled Reconsideration of Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs, published at 75 Fed. Reg. 17004 (April 2, 2010). Administrator Jackson announced formally what she had suggested in her Feb. 22d letter, supra, that large new or modified stationary sources of GHGs would not be required to obtain federal pollution permits before Jan. 2, 2011 . [351]
On April 2, 2010, the regulation (which postponed regulation of stationary sources to give industry more time to comply and which may apply only to sources emitting over 25,000 (or more) tons per year, when the tailoring rule is finalized, see supra) was challenged in the D.C. Circuit by mining and agricultural groups in Coalition for Responsible Regulation v. EPA, D.C. Cir., No. 10-1073, petition filed April 2, 2010. The petition questions EPA’s right to regulate GHG emissions from stationary sources under Mass. v. EPA and the CAA. [352]
After the worst mine disaster in 40 years at the Upper Big Branch mine in West Virginia killed 29 miners in early April 2010, [353] coal mining executives testified at a hearing entitled The Role of Coal in a New Energy Age before the House Select Committee on Energy Independence and Global Warming on April 14th. Chairman Edward Markey (D-Mass.) urged industry representatives to end both their resistance to EPA regulation of GHG emissions from stationary sources and their challenges to climate science, but the leaders still maintained that EPA’s efforts constituted a “war on coal.”[354]
4.4.2.3. “Climategate”: However, while the endangerment finding was in process in fall 2009, on Nov. 17, 2009, more than 1000 hacked emails dating back 13 years between climate scientists at the University of East Anglia’s Climatic Research Unit and their colleagues at other universities appeared on internet blogs, indicating that climate scientists were actively manipulating scientific data to fit their models. [355] Climate skeptics called for an inquiry and labeled the controversy “Climategate”; it was labeled “Swifthack” by proponents, referring to the attack on Senator Kerry in 2004. [356] Dr. Rajendra Pachauri, IPCC head, said the matter could not be ignored and will be investigated.[357] Professor Phil Jones, head of the CRU, stepped down during the inquiry.
This controversy affected the discussion in the U.S., as Senator Inhofe and other Republicans called on EPA Administrator Lisa Jackson to delay the proposed endangerment finding at a Dec. 2 hearing of the Environment and Public Works Committee (ostensibly about TSCA), as the emails called into question the science behind the finding. Jackson refused, saying the evidence is overwhelming.
At a House hearing on the administration’s view of climate science before the Select Committee on Energy Independence and Global Warming in early December 2009, Rep. Sensenbrenner (R-Wis) stated the hacked emails show “systemic suppression of dissenting opinion among scientists in the climate change community… [and] possible criminal activity….” John Holdren, of the White House Office of Science and Technology Policy, said the evidence of climate change was “overwhelming.” [358] However, a Time article stated: “In the weeks since the e-mails first became public, many climate scientists and policy experts have looked through them, and they report that the correspondence does not contradict the overwhelming scientific consensus on global warming, which has been decades in the making. ‘The content of the stolen e-mails has no impact whatsoever on our overall understanding that human activity is driving dangerous levels of global warming,’ wrote 25 leading U.S. scientists in an open letter to Congress on Dec. 4. ‘The body of evidence that underlies our understanding of human-caused global warming remains robust.’” [359]
A letter to Nature in the Jan. 7, 2010, issue, entitled Climate e-mails: man's mark is clear in thermometer record, by Hans von Storch (Institute for Coastal Research, Geesthacht, Germany) and Myles Allen (Department of Physics, University of Oxford, Oxford, England), explains that: “The thermometer record [since 1850] [as opposed to “proxy reconstructions of temperature over the past millennium, which are based on indirect evidence such as tree rings”] shows unequivocally that Earth is warming, and provides the main evidence that this is caused by human activity. This crucial record remains unchallenged.” [360]
Senator Inhofe, not to be deterred, released an 84-page report on Feb. 23, 2010, entitled: ‘Consensus' Exposed: The CRU Controversy, and a press release: Senate EPW Minority Releases Report on CRU Controversy: Shows Scientists Violated Ethics, Reveals Major Disagreements on Climate Science. Inhofe appears to be trying to find a way to criminalize the 17 key researchers involved with the IPCC Assessment Reports. The allegations came up at a full committee hearing entitled, "Hearing on the President's Proposed EPA Budget for FY 2011."
As a result of the scandal, IPCC chair Rajendra K. Pachauri announced on Feb. 27, 2010, that the IPCC would “establish an independent committee to review the procedures associated with drafting and assembling the panel's assessment reports.”[361] On March 9th, Science reported that the InterAcademy Council, representing 15 nations’ national science academies and co-chaired by Robbert Dijkgraaf, a Dutch mathematical physicist, would appoint a panel of scientists to investigate the IPCC and the mistakes in the FAR; the report is expected to be complete by August 2010.[362]
On Mar. 11, 2010, congressional leaders received a letter entitled U.S. Scientists and Economists' Call for Swift and Deep Cuts in Greenhouse Gas Emissions, signed by 2,026 U.S. climate scientists and economists (including 8 Nobel Prize winners in science or economics, 32 members of the National Academy of Sciences, 10 members of the National Academy of Engineering, 11 recipients of the MacArthur Fellowship, 3 National Medal of Science Recipients, and more than 100 members of the Intergovernmental Panel on Climate Change, which shared the 2007 Nobel Peace Prize). It stated that the science of global warming is indisputable (in response to “climategate”), and urged Congress to require immediate and deep cuts in GHG emissions. It recommended emissions cuts “‘on the order of 80 percent below 2000 levels by 2050’ and [suggested] that the first step should be reductions on the order of 15 to 20 percent below 2000 levels by 2020.” [363] EPA regulation of GHG emissions was not mentioned. However, on the same date, a Gallup poll conducted March 4-7, 2010, revealed that political conservatives are now significantly less convinced than they were 2 years ago that the effects of global warming are already taking place (30% down from 50%). [364] Views of liberals were only slightly different. On Mar. 13, 2010, federal agencies received a letter signed by 252 climate scientists, mostly from leading U.S. institutions and universities and including some IPCC scientists, discussing the comparatively few errors in the IPCC’s Fourth Assessment Report and the efforts by Congress and the media to discredit the entire report based on those errors.
Members of Parliament investigating climate scientists at the UEA’s CRU found no evidence in March 2010 that climate data had been manipulated or withheld, and the reputations of its scientists remain intact. It said that in future climate science must be “transparent and irreproachable.”[365]
For additional information, see the following:
Al Gore’s op-ed in the Feb. 27, 2010, N.Y. Times, We Can’t Wish Away Climate Change, discussing Climategate and “Himalayagate” (see infra); the heavy snowfalls in the Northeastern U.S. that global warming detractors have used to further discredit climate science and scientists; and the “political paralysis that is now so painfully evident in Washington [that] has thus far prevented action by the Senate — not only on climate and energy legislation, but also on health care reform, financial regulatory reform and a host of other pressing issues.”
Australian author Clive Hamilton wrote several articles on “climate cyber-bullying” in February 2010: Bullying, lies and the rise of right-wing climate denial (2/22); Who is orchestrating the cyber-bullying ? (2/23); and Manufacturing a scientific scandal (2/25).
Douglas Fischer & The Daily Climate, Cyber Bullying Intensifies as Climate Data Questioned: Researchers must purge e-mail in-boxes daily of threatening correspondence, simply part of the job of being a climate scientist (Mar. 1, 2010).
4.4.2.4. Legislation intended to prevent the “end run”: Months before EPA’s endangerment finding was issued, H.R. 391 was introduced by Rep. Marsha Blackburn and 152 cosponsors on Jan. 9, 2009, to provide that GHGs are not subject to the Clean Air Act. But EPA GHG regulations were considered inevitable after the release of its endangerment finding in Dec. 2009, which was a precondition to any such EPA regulation.[366] However, with the Democrats’ loss of their filibuster-proof majority in the Senate, climate change legislation seemed increasingly unlikely in 2010, and for that matter, so do EPA regulations.
On Dec. 15, 2009, H. Res. 974 was introduced by Rep. Rodney Alexander urging EPA Administrator Jackson to reevaluate the endangerment finding, issued “under the pretense of the Supreme Court decision in Massachusetts v. EPA,” as it was “unacceptable” to the House of Representatives. A bill, H.R. 4396, was introduced the next day, Dec. 16, 2009, by Earl Pomeroy (D-N.D.), to block EPA from regulating GHG emissions by amending GHGs out of the Clean Air Act. It has 5 cosponsors. [367] Also on Dec. 16th, H.J. Res. 66 was introduced by Rep. Jerry Moran, also disapproving the EPA endangerment finding.
Senator Lisa Murkowski (R-AK) said on Jan. 20, 2010, that she plans to introduce a resolution of disapproval to prevent the EPA’s regulation of GHG emissions, rather than make a floor amendment to a bill (H.J. Res. 45) to raise the federal debt limit. (Apparently it was learned that the Murkowski amendment was written in collaboration with several dirty energy lobbyists. [368]) Under the Congressional Review Act, a resolution of disapproval can get to the Senate floor very quickly, and only requires 51 votes to pass; it would, according to an EDF email, “permanently bar the Environmental Protection Agency from requiring polluters to cut their emissions of greenhouse gases.”
According to Warming Law, since the fall of 2009 Murkowski has been “seeking collaborators in Congress to amend the Clean Air Act so that it cannot be used to tackle greenhouse gases. ... If successful, Murkowski’s efforts would effectively negate the Obama Administration’s progress over the past year toward complying with the Supreme Court’s 2007 ruling in Massachusetts v. EPA. ...”[369] On Jan. 21, 2010, the senator introduced the disapproval resolution to the Senate, ostensibly to avoid the "economic train wreck" she believes would result if EPA regulated GHG under the CAA. [370] On Feb. 23d the resolution (S. J. Res. 26) had 40 co-sponsors, of whom 37 are republicans and 3 (Landrieu from Louisiana, Lincoln from Arkansas, and Nelson from Nebraska) are democrats; it was referred to the Committee on Environment and Public Works on Jan. 21st. The resolution reads:
“Disapproving a rule submitted by the Environmental Protection Agency relating to the endangerment finding and the cause or contribute findings for greenhouse gases under section 202(a) of the Clean Air Act.
“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Environmental Protection Agency relating to the endangerment finding and the cause or contribute findings for greenhouse gases under section 202(a) of the Clean Air Act (published at 74 Fed. Reg. 66496 (December 15, 2009)), and such rule shall have no force or effect.”
With 41 votes including herself, Murkowski is still shy of the 51 she would need in the Senate to invoke expedited procedures for overturning unpopular federal rules under the Congressional Review Act of 1996 (as opposed to 60 needed to avoid a filibuster); but even if she got 51 she still would need the House and the President to approve the resolution, as the latter especially is highly unlikely to do. According to Republican aides she plans to petition the EPW Committee by the end of February to force the release of the resolution, which she can do with the votes she has. She is looking to bring the resolution up for a vote in mid-March, 2010, but as of March 16th that had not yet happened. Senate newby Scott Brown (R-Mass) has not signed on. [371]
On Feb. 19th eight U.S. Senators wrote a letter to EPA Administrator Jackson asking about the agency’s plans for regulating GHG in 2010 (known as the “Rockefeller Letter” after Senate Commerce, Science, and Transportation Chairman Jay Rockefeller (D-W.Va.)).
Back in the House, Rep. Ike Skelton (D-Mo.) introduced a bill on Feb. 2, 2010, that would block EPA regulation of greenhouse gas emissions by removing them from 42 U.S.C. § 7602(g) of the Clean Air Act. Skelton's bill (H.R. 4572) was co-sponsored by 13 representatives including Collin Peterson (D-Minn.), chairman of the House Agriculture Committee, and referred to the Energy and Commerce Committee. [372] Later in the month, on Feb. 25th, Mr. Skelton introduced H.J. Res. 76 with 31 co-sponsors, identical to Murkowski’s S. J. Res. 26, supra.
On Mar. 2, 2010, House Energy and Commerce ranking Republican Joe Barton (Texas) introduced another joint resolution, H.J. Res. 77, also identical to Murkowski’s S. J. Res. 26 and disapproving the EPA endangerment finding. It has 105 co-sponsors, including House Minority Leader John A. Boehner (Ohio); Darrell Issa (Calif.), ranking Republican on the House Oversight and Government Reform Committee; and Frank Lucas (Okla.), ranking Republican on the House Agriculture Committee. [373]
On Mar. 4, 2010, Sen. Jay Rockefeller introduced S. 3072 which would suspend for 2 years “any Environmental Protection Agency action under the Clean Air Act with respect to carbon dioxide or methane pursuant to certain proceedings, other than with respect to motor vehicle emissions”; that is, it would prevent EPA from regulating stationary sources of GHG emissions but leave rules on vehicle emissions alone. There were no cosponsors. On the same date, a companion bill, H. R. 4753, aka the ‘‘Stationary Source Regulations Delay Act,’’ was introduced in the House by Rep. Nick Rahall (D-W.Va.) and 6 co-sponsors. [374]
On Mar. 29, 2010, Senator Murkowski (S. J. Res. 26, supra) requested a meeting with Jackson to discuss EPA’s regulation of GHGs. [375]
4.4.2.5. Lawsuits challenging EPA’s endangerment finding: As noted above, EPA’s endangerment filing had a deadline of Feb. 16, 2010, for filing lawsuits challenging it, and critics wasted no time, partly due to “climategate,” discussed supra. On Dec. 23, 2009, “a coalition of coal-mining companies and beef producers ... challenged the endangerment finding in a petition filed with the D.C. Circuit Dec. 23. Sixteen states have moved to intervene in support of EPA in that case (Coalition for Responsible Regulation Inc., et al. v. EPA, D.C. Cir., No. 09-1322, motion to intervene filed 1/21/10).” [376]
On behalf of 13 House Republicans (John Linder, Phil Gingrey, Lynn Westmoreland, Tom Price, Paul Broun, Nathan Deal, and Jack Kingston (all of Ga.), Dana Rohrabacher (R-Calif.), John Shimkus (R-Ill.), Steve King (R-Iowa), Michele Bachmann (R-Minn.), Joe Barton (R-Texas) and Kevin Brady (R-Texas)) and 17 associations and companies, the Southeastern Legal Foundation filed a lawsuit on Feb. 10, 2010, in the Court of Appeals for the D.C. Circuit challenging the endangerment finding. The Foundation had filed a petition for reconsideration of the finding in December and is filing a supplemental filing the week of Feb. 8th, 2010, showing scientific errors and fraud. The lawsuit, Linder v. EPA, No. 10-1035, claims that the scientific basis for the endangerment finding is “flawed, based on questionable and potentially fraudulent data, and certainly does not rise to the level of certainty necessary to upend the American economy, toss millions out of work, and which promises little or no climate change benefit over the next half-century.” [377]
U.S. Chamber of Commerce v. EPA, D.C. Cir., No. 10-1030, was filed on Feb. 12, 2010; and on Feb. 16, 2010, more lawsuits were filed in the D.C. Cir., challenging the endangerment finding, just meeting its deadline: State of Texas, et al. v. EPA, No. 10-1041; American Iron and Steel Institute v. EPA, No. 10-1038; National Association of Manufacturers, et al. v. EPA, [378] No. 10-1044. [379] Other suits filed on the 16th alone in the D.C. Circuit, from PACER, are: Commonwealth of Virginia v. EPA, No. 10-1036; Gerdau Ameristeel Corp. v. EPA, No. 10-1037; State of Alabama v. EPA, No. 10-1039; Ohio Coal Association v. EPA, No. 10-1040; Utility Air Regulatory Group v. EPA, No. 10-1042; Competitive Enterprise Institute, et al. v. EPA, No. 10-1045; and Portland Cement Association v. EPA, No. 10-1046.
In addition to Texas, Virginia and Alabama, about 13 other states have also sued EPA in the D.C. Circuit challenging the endangerment finding; however, as the finding imposes no requirements in and of itself, petitioners may have a problem establishing standing to sue at all. [380]
The Virginia Attorney General announced April 1, 2010, that it will also challenge the GHG emissions limits for cars and light trucks finalized on that date (see supra § 4.4.2.2. Regulatory “end run” around Congress: EPA’s Endangerment Finding) in the same lawsuit, Commonwealth of Virginia v. EPA, No. 10-1036, they filed on Feb. 16th. [381] On April 15, 2010, attorneys general from Alabama and Virginia filed a motion in the D.C. Circuit to force EPA to reopen its endangerment finding and hold public hearings on the science it used; as the agency had relied on information from the University of East Anglia’s Climate Research Unit, which was involved in “Climategate,” see supra, the premise was that the endangerment finding was flawed and needs to be reexamined. [382]
4.4.2.6. Business, ENGO & State Reactions to EPA Regulation of GHG:
On Mar. 10, 2010, nearly 100 manufacturing, coal and agricultural organizations sent a letter to all senators urging them to pass the Murkowski resolution. [383]
Mississippi Gov. Haley Barbour (R) drafted and circulated a letter rejecting Jackson's offer to delay regulating GHGs as insufficient and “strongly urg[ing] Congress to stop harmful EPA regulation of greenhouse gas emissions that could damage....” the U.S. economy. [384] The letter was signed by Barbour and 19 of his fellow governors (17 Republicans and 2 Democrats) and sent to Nancy Pelosi, Harry Reid, John Boehner and Mitch McConnell on Mar. 10, 2010. [385] It did not, however, recommend passage of the Murkowski resolution.
On Mar. 30, 2010, the Affordable Power Alliance released a study entitled Potential Impact of the EPA Endangerment Finding on Low Income Groups and Minorities hypothesizing that EPA regulation of GHGs would impact minorities disproportionately and have a negative effect on the U.S. economy as a whole.[386]
4.4.2.7. EPA Defense of Endangerment Finding & GHG Regulation
On April 28, 2010, Administrator Jackson spoke at a hearing before the House Energy and Environment Subcommittee of the Committee on Energy and Commerce entitled “Clean Energy Policies That Reduce Our Dependence on Oil.” In her remarks in defense of the December, 2009, endangerment finding and the April 1st joint rulemaking with the NHTSA, supra, she stated:
“My endangerment finding in December satisfied the prerequisite in the Clean Air Act for establishing a greenhouse gas emissions standard for cars and light trucks of Model Years 2012 through 2016. So I was able to issue that final standard earlier this month, on the same day that Secretary of Transportation Ray LaHood signed a final fuel efficiency standard for the same vehicles.
“Using existing technologies, manufacturers can configure new cars and light trucks to satisfy both standards at the same time. And vehicles complying with the federal standards will automatically comply with the greenhouse gas emissions standard established by California and adopted by 13 other states. This harmonized and nationally uniform program achieves the goal the President announced last May.
“Moreover, the EPA and DOT standards will reduce the lifetime oil use of the covered vehicles by more than 1.8 billion barrels. That will do away with more than a billion barrels of imported oil, assuming the current ratio of domestic production to imports does not improve. The standards also will eliminate more than 960 million metric tons of greenhouse gas pollution.
“But if Congress now nullified EPA’s finding that greenhouse gas pollution endangers the American public, that action would remove the legal basis for a federal greenhouse gas emissions standard for motor vehicles. Eliminating the EPA standard would forfeit one quarter of the combined EPA-DOT program’s fuel savings and one third of its greenhouse gas emissions cuts. California and the other states that have adopted California’s greenhouse gas emissions standard would almost certainly respond by enforcing that standard within their jurisdictions, leaving the automobile industry without the nationwide uniformity that it has described as vital to its business.
...
“EPA’s recent work on vehicles and fuels shows that enhancing America’s energy security and reducing America’s greenhouse gas pollution are two sides of the same coin.”
4.4.3. COP-15 & the Obama Administration:
See also supra, § 3.6.
For academic commentary, see, e.g., David B. Hunter, International Climate Negotiations: Opportunities and Challenges for the Obama Administration, 19 Duke Envtl. L. & Pol'y F. 247 (Spring, 2009).
The Council on Foreign Relations held a symposium on Nov. 10, 2009, in Washington, entitled: Countdown to Copenhagen: What's Next for Climate Change?, but the panelists were not optimistic about Copenhagen’s outcome. The first secretary at the Chinese embassy in Washington stated that industrialized nations were responsible for getting the world in the condition it is in and should bear the majority of the costs that developing nations will have to spend to remedy it. None of the participants expected specific emissions limits to be set in Copenhagen. [387]
President Obama announced in November that he may attend the Copenhagen conference in Dec. 2009 if his being there would be helpful and lead to a positive outcome. He believed a satisfactory framework convention could be worked out, despite the fact that the Senate will probably not pass climate legislation before the meeting; see supra § 4.4.1.2., and § 3.6. [388]
On Nov. 25, 2009, the president announced that he will attend COP-15 en route to Oslo to receive his Nobel Prize. He will deliver a speech in Copenhagen on Dec. 9th at the beginning of the conference, offering a tentative U.S. reduction of GHG emissions “in the range of 17 percent below 2005 levels by 2020,” according to the White House, and 80% by mid-century, the same reduction in the House bill passed in June. [389] But then, on Dec. 4th, 2009, the White House announced that the president will attend COP-15 on Dec. 18th, the final day of the conference and the “high-level segment of the negotiations,” to signal his commitment to pushing the negotiations forward. [390] See supra.
4.4.4. Obama Administration and Climate, Generally
In his Feb. 1, 2010 budget request for 2011, President Obama upped the DOE’s budget to $28.4 billion; tried, again, to eliminate over $2.7 billion in tax subsidies for oil, coal and natural gas companies; increased the federal loan guarantee program to construct new nuclear reactors; cut fossil energy programs and increased renewable energy and energy efficiency programs [391]; and cut funding for EPA (as part of a broader freeze in nondefense discretionary spending), but increased funding for climate change programs, including $21 million to implement the mandatory GHG reporting rule for the largest GHG emitters. [392]
On Feb. 18, 2010, two years after the initial request was made by the Sierra Club, NRDC and the International Center for Technology Assessment, the White House Council on Environmental Quality made an announcement to the effect that it saw “...no basis for excluding greenhouse gas emissions from...” agencies’ consideration of the environmental effects of their actions under NEPA. CEQ released on that date three draft guidance documents in conjunction with the 40th anniversary of NEPA in an attempt to “modernize and reinvigorate” the act. The first was entitled: DRAFT NEPA GUIDANCE ON CONSIDERATION OF THE EFFECTS OF CLIMATE CHANGE AND GREENHOUSE GAS EMISSIONS, “for public consideration and comment on the ways in which Federal agencies can improve their consideration of the effects of greenhouse gas (GHG) emissions and climate change in their evaluation of proposals for Federal actions under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq.” This notice was published on Feb. 23d at 75 Fed. Reg. 8046; comments are requested on or before May 24, 2010. The second was: ESTABLISHING AND APPLYING CATEGORICAL EXCLUSIONS UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT, published on Feb. 23d at 75 Fed. Reg. 8045, with comments accepted until April 9th. The third was: DRAFT GUIDANCE FOR NEPA MITIGATION AND MONITORING, also published on Feb. 23d at 75 Fed. Reg. 8046; comments may be submitted until May 24, 2010. [393] Each of the draft documents stated: “The NEPA Draft Guidance documents are available here,” but, in line with the anniversary, the CEQ updated its NEPA web page to provide more information, [394] and the documents are in fact on the New CEQ NEPA Guidance page. EPA also launched its Rulemaking Gateway on the same day, in order to provide greater transparency in its regulatory process. [395]
In April 2010, Senator Inhofe introduced the NEPA Certainty Act (S. 3230), with 6 Republican sponsors, to insure that federal agencies should not consider GHG emissions when assessing the environmental impacts of their actions, as such considerations would be too expensive and environmentally ineffective. [396]
On Mar. 31, 2010, the Obama Administration announced that it will open the Atlantic, Gulf, and Alaskan coasts to offshore oil and natural gas drilling in what GRIST called “a stunning concession to fossil-fuel companies.” [397] The map below, brazenly, though respectfully and gratefully, copied from the N.Y. Times, compares the new areas of exploration and protection to existing areas of exploration. The actual amounts of fuel that might be found are not known, [398] and several states may object given the ecologically sensitive nature of their coastlines. The reason given for the move was the national security interest in reducing oil and gas imports. Inevitably, it drew criticism not only from environmentalists, but also from Republicans, who claim he did not go far enough, and some Democrats as well. [399]
© N.Y. Times Co., 2009. From John M. Broder, Obama to Open Offshore Areas to Oil Drilling for First Time, N.Y. Times, Mar. 31, 2010
For academic commentary, see, e.g., Matthew Visick, If Not Now, When? The California Global Warming Solutions Act of 2006: California's Final Steps Toward Comprehensive Mandatory Greenhouse Gas Regulation, 13 Hastings W.-N.W. J. Env. L. & Pol'y 249 (2007).
Joanna D. Malaczynski & Timothy P. Duane, Reducing Greenhouse Gas Emissions from Vehicle Miles Traveled: Integrating the California Environmental Quality Act with the California Global Warming Solutions Act, 36 Ecology L.Q. 71 (2009).
California’s Air Resources Board was in operation before the formation of the Environmental Protection Agency under the Clean Air Act of 1970, and California’s clean-air laws predated those of the federal government. Therefore, the 1970 Act re-authorized California’s authority to set its own, more stringent, air standards, after receiving a waiver of preemption from the EPA, “to foster California’s role as a laboratory for motor vehicle emission control, in order to continue the national benefits that might flow from allowing California to continue to act as a pioneer in this field.”[400] The 1977 amendments to the Clean Air Act added § 177, which allows other states to follow California’s more-stringent-than-federal standards, provided they do so exactly and at least two years before the beginning of the automobile model year to which they apply. [401] California is also the world's 12th-largest emitter of greenhouse gases, responsible for 10% of the carbon dioxide produced nationally and 2.5% globally, but it has been making an attempt to mend its ways. [402]
California has been concerned about global warming since at least the year 2000, when Governor Gray Davis signed Senate Bill No. 1771, Chapter 1018, which created the California Climate Action Registry. A voluntary, non-profit registry for GHG emissions, the registry’s purpose is to help companies and organizations with operations in California establish emissions baselines and to record their emissions inventories. It has, as of April 19, 2007, 242 members.
In 2002, Governor Gray Davis signed Senate Bill No. 1078, Chapter 516, which established the California Renewables Portfolio Standard Program. It requires all “load serving entities,” that is, all firms responsible for buying electricity for end-users in California, to purchase at least 20% of their electricity from renewable sources by 2010.
California’s first Low Emission Vehicle (LEV) regulations were adopted in 1990; the updated regulations (LEV II) were adopted in 2000 and modified later that year. The EPA granted a waiver for the LEV II program in April 2003. [403] The standard is effective for 2004 model years and becomes increasingly more stringent for model years through 2010 and beyond. It ensures that only the cleanest vehicle models will be sold in California.
In 2002, Fran Pavley, a Democratic assemblywoman, introduced Assembly Bill No. 1493, Chapter 200, which would require about a 30% reduction in GHG emissions from cars and trucks sold in California by the 2016 model year. [404] The bill was passed by both houses and approved by the governor on July 22, 2002 [405] and directed the Air Resources Board to promulgate regulations no later than Jan. 1, 2005, to achieve the maximum feasible and cost-effective reduction of GHG emissions from motor vehicles.
The new addition to the LEV II regulations, Cal. Code Regs. Tit. 13 § 1961.1, entitled Greenhouse Gas Exhaust Emission Standards and Test Procedures –2009 and Subsequent Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles, was in fact filed on Sept. 15, 2005, to be effective Jan. 1, 2006. [406] The regulation applies to model years 2009 to 2016 and establishes one standard for passenger cars and light trucks and another standard for heavier trucks; it defines “greenhouse gases” as: carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons. [407] The new standards will, in theory, allow the transportation sector to meet its 2020 emissions reduction target, as it will result in a near term (2009-12) reduction of about 22% in CO2 emissions as compared to 2002 cars, and the mid-term (2013-16) will result in about a 30% reduction. On Dec. 21, 2005, California requested a waiver of preemption for the new GHG regulations, [408] but as of March 2007, the EPA has not acted on that request, presumably because it was waiting for the Supreme Court’s decision in Massachusetts v. EPA, which was released on April 2, 2007 .[409] See infra under § 4.6. Other State Actions to Reduce GHG Emissions, Massachusetts v. EPA.
Central Valley Chrysler-Jeep, Inc, et al. v. Witherspoon, No. CV-04-6663 (E.D. Cal. 2006) [410]: See infra.
On Sept. 29, 2005, Assembly Bill No. 1007, Chapter 371, required that not later than June 30, 2007, the state would develop a plan to increase the use of alternative fuels in California.
The landmark Global Warming Solutions Act of 2006 (Assembly Bill No. 32, Chapter 488 (2006)), also authored by Fran Pavley and signed on Aug. 27, 2006, sets strict standards on greenhouse gas emissions from utilities, refineries and manufacturing plants, and aims to reduce emissions 25 percent, down to 1990 levels, by 2020. The law makes California the first state to place hard caps on GHG emissions from heavy industries. [411] The law defines GHGs as: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, and requires CARB to adopt by Jan. 1, 2008, a statewide GHG emissions limit equal to the statewide levels in 1990, to be achieved by 2020. Trading of emissions credits is a key aspect of the legislation; credits can be traded within the state and with companies in the UK and continental Europe. [412]
On Jan. 18, 2008, CARB, having met its pre-2008 deadlines, announced a plan to develop a detailed strategy to eliminate 173 million tons of GHGs by 2020 as required by A.B. 32. [413]
An economic analysis of the effects of full implementation of A.B. 32 released in March 2010 and including a greenhouse gas emissions trading program, concluded that doing so will help lower energy costs and produce new jobs. [414] CARB Chairman Mary D. Nichols said that the report, Updated AB 32 Scoping Plan Economic Analysis, took the current economic downturn and slower growth into consideration. Business and industry groups, eager to postpone implementation of the A.B. 32 scoping plan, produced their own industry-funded economic analysis, entitled: An Estimate of the Economic Impact of A Cap-and-Trade Auction Tax On California which, perhaps unsurprisingly, told the opposite tale, of massive job losses and draconian costs to individuals and businesses alike.
California utility regulators are joining with other regulators in Oregon, New Mexico, and Washington State to “develop plans to promote energy efficiency and explore standards for emissions of greenhouse gases related to power generation.” [415]
Another California law, Senate Bill No. 107, Chapter 464, signed Sept. 26, 2006, requires investor-owned utilities to get at least 20 percent of their power from renewable sources by 2010. The law expands the state’s existing Renewable Electricity Standard, adopted in 2002. [416] The Union of Concerned Scientists predicts that the new law will result in a reduction of carbon dioxide emissions alone by 18.7 million metric tons, equivalent to taking 2.8 million cars off the road. According to one source, as of Sept. 27, 2006, 22 states have adopted similar mandates for renewable energy. [417]
Yet another new California law, Senate Bill No. 1368, Chapter 598, signed on Sept. 29, 2006, prohibits large utilities and corporations from entering into long-term power contracts with suppliers whose electricity sources do not meet California’s GHG emission standards; that is, firms that buy electricity for end-users in California must buy that energy from low-carbon power plants. [418]
California v. General Motors [419] (No. 06-05755): The state of California sued the six largest American and Japanese automakers (General Motors, Ford Motor Co., Toyota Motor North America, DaimlerChrysler AG, Honda North America Inc., and Nissan North America Inc.) for contributing to global warming. The state's then-attorney general, Bill Lockyer, filed the suit based on a ‘public nuisance’ argument, stating that greenhouse gases emitted by vehicles have cost California billions of dollars in damages to the state’s water supplies, coastline, forests, wildlife and public health. The case was filed on Sept. 20, 2006, in U.S. District Court for the Northern District of California in Oakland. [420]
The new California Attorney General, Jerry Brown, filed court papers in February 2007 to keep the lawsuit alive, and wrote the car manufacturers requesting meetings to discuss a possible settlement. He was also willing to discuss the 2004 case by automakers seeking to overturn the 2002 law requiring them to reduce GHG emissions, discussed supra. [421] In Sept. 2007 the case was dismissed in the Northern District on the ground that it raised non-justiciable political questions. The state appealed to the 9th Circuit Court of Appeals, and oral argument was scheduled for May 8, 2009; however, according to Warming Law, the state requested a 6-month continuance in April, and in June filed a motion to dismiss. Reasons given pertained to admissions by the Obama administration that global warming constitutes endangerment to public health, as well as its adoption of the California standard for auto emissions. See supra § 4.4.2. GHG regulations: EPA & Mass. v. EPA.
Interstate and international agreements: On July 31, 2006, California Governor Arnold Schwarzenegger[422] and British Prime Minister Tony Blair “sidestep[ped] the Bush administration”[423] and signed an agreement to work together to curb GHG emissions, promote cleaner fuels and work together on research to fight global warming.[424]
On Oct. 18, 2006, Governor Schwarzenegger signed Exec. Order S-20-06 that, among other things, directed the Air Resources Board to work with other state agencies to develop a market-based program to permit GHG emissions trading with the E.U., the Regional Greenhouse Gas Initiative, see infra, and other markets.
