Climate 411

Victory for Healthy Air: Court Rejects Nebraska Attorney General’s Attempt to “Short-Circuit” the Law in Challenge to Carbon Pollution Standards

By Megan Ceronsky / Published: October 7, 2014

Nebraska Attorney General Jon Bruning’s attempt to block the U.S. Environmental Protection Agency’s (EPA) efforts to limit carbon pollution from power plants failed yesterday.

The federal district court in Nebraska dismissed the Attorney General’s lawsuit challenging EPA’s proposed Carbon Pollution Standards for new fossil fuel power plants.

The court held that:

[the Attorney General’s] attempt to short-circuit the administrative rulemaking process runs contrary to basic, well-understood administrative law. (Decision, Page 1)

The Attorney General’s challenge was flawed because it was filed only one week after EPA published proposed carbon emission standards for new power plants, in January 2014.

But the law is this case is clear and anchored in common sense.

As the court explained, legal challenges may only be brought against final standards:

Simply stated, the State cannot sue in federal court to challenge a rule that EPA has not yet actually made. (Decision, Page 1)

EPA’s proposed action is still in draft form and has been the subject of extensive public comment.

In December 2012, the D.C. Circuit rejected a similar challenge to EPA’s original proposal for the very same reason — that the standards had yet to be finalized.

This latest attempt at an end run around the Clean Air Act would have deprived the public of a chance to comment on a proposed rule and present its diverse viewpoints to the agency.  Moreover, for a court to review standards that are still being developed would be a waste of judicial resources and Americans’ tax dollars.

The court also noted a defect in the Nebraska Attorney General’s central legal claim.

The Attorney General argued that EPA’s reliance, in part, on data from facilities receiving federal assistance was unlawful.

The court explained:

The merits of this claim are not before the Court. But the Court notes that [Energy Policy Act section] 402(i) only forbids the EPA from considering a given technology or level of emission reduction to be adequately demonstrated solely on the basis of federally-funded facilities. 42 U.S.C. [section] 15962(i). In other words, such technology might be adequately demonstrated if that determination is based at least in part on non-federally-funded facilities. (Decision, Footnote 1, Page 5)

EDF previously examined the flaws with the Nebraska Attorney General’s legal claim in a detailed white paper. (You can read my blog about the white paper here)

Unfortunately for the citizens of Nebraska, Attorney General Bruning is devoting precious taxpayer resources to misguided legal attacks.

It’s not the only way in which Nebraska’s taxpayer dollars are being deployed to block vital clean air progress for our nation.

The Guardian reported that Bruning, on a conference call organized by the American Legislative Exchange Council (ALEC), told other state attorneys general that Nebraska has challenged EPA authority more than 30 times and will keep on doing so.

Yet the Carbon Pollution Standards for new power plants have won broad public support from millions of Americans — including public health associations, Moms Clean Air Force, faith-based organizations, the League of United Latin American Citizens, and leading power companies.

Nebraska’s failed lawsuit is just one more misguided attempt to prevent vital limitations on the carbon pollution emitted by power plants from moving forward.

According to the Guardian, Bruning claims that:

EPA continues to try and ‘fix things’ that are not broken.

Tell that to the millions of Americans who are experiencing the harmful impacts of climate change.

While EPA takes steps to address carbon pollution from the single largest source in the country, Attorney General Bruning is devoting Nebraska’s tax dollars to flawed lawsuits.

Fortunately, millions of Americans in red and blue states alike are working together to forge solutions for our families, our communities and our nation.

Also posted in Clean Power Plan, EPA litgation, Greenhouse Gas Emissions, Policy / Read 2 Responses

8 reasons for hope: Our top take-aways from Climate Week

By Nat Keohane / Published: September 30, 2014

(This post originally appeared on EDF Voices)

My forecast had been for a Climate Week “on steroids” and that’s exactly what we got.

Image source: Jane Kratochvil

We saw the largest climate rally in history draw 400,000 people – up from the 250,000 we had initially hoped for – and then the United Nations Climate Summit, where 125 heads of state joined business and civic leaders to discuss ways to curb greenhouse gas emissions.

Another highlight for the week was the growing momentum for putting a price on carbon. More than 1,000 businesses and investors, nearly 100 national, state, province and city governments, and more than 30 non-profit organizations called for expanding emissions trading and other policies that create market incentives for cutting pollution.

Could it be that we’re finally reaching the point of meaningful action on climate change? To find out, I asked colleagues at Environmental Defense Fund who participated in the Climate Summit for their key take-aways from the week.

Here’s their report:

1. PEOPLE’S CLIMATE MARCH

Eric Pooley, Sr. Vice President, Strategy and Communications: This march shot down, once and for all, the old canard that Americans “don’t care” about climate change. And it reminded me what an extremely big tent the coalition for climate action really is — with plenty of room for groups with vastly different views.

More than 1,000 EDF members and staff, plus 300 members of the Moms Clean Air Force, were proud to be marching alongside all kinds of people from all kinds of groups from all over the country. To win on climate, we need a strong outside game and a strong inside game. EDF is helping to build both.

2. METHANE EMISSIONS RISE TO THE TOP

Mark Brownstein, Associate Vice President, U.S. Climate and Energy: Methane is becoming a top priority in the fight against climate change. Last week, EDF helped to launch the Climate and Clean Air Coalition’s Oil & Gas Methane Partnership, which creates a framework for oil and gas companies to measure and reduce methane emissions and report their progress.

At the summit, I watched the chief executive of Saudi Aramco, the world’s biggest oil company, turn to Fred Krupp to say that his company was interested in joining the six companies that already agreed to sign on. While the ultimate test of the partnership will be the reductions that it achieves, it has gotten off to a promising start.

3. COMMON GROUND ON FORESTS

Stephan Schwartzman, Senior Director, Tropical Forest Policy: One of the high points of the week, no doubt, came when 35 national and state governments, more than 60 non-profits and indigenous organizations, and 34 major corporations pledged to halve deforestation by 2020 – and to completely end the clearing of natural forests by 2030. EDF was proud to be part of the coalition that put the New York Declaration on Forests together.

4. INDIGENOUS PEOPLES GOT THE RECOGNITION THEY DESERVE

Christopher Meyer, Amazon Basin Outreach Manager: Indigenous groups from the major rain forest basins pledged to continue to conserve 400 million hectares under their control. Those 400 million hectares are important for cultural and biodiversity purposes globally, but they also hold an estimated 71 gigatons of carbon dioxide, equivalent to 11 years of emissions from the United States.

I was honored to accompany Edwin Vasquez Campos of the Coordinator of the Indigenous Organizations of the Amazon River Basin, and to watch him deliver a stirring speech to a room that included the leaders of Norway and Indonesia. It was the first time an indigenous leader was given such an opportunity at the U.N.

5. US-CHINA LEADERSHIP ON CLIMATE?

Fred Krupp, EDF President: On September 23, EDF hosted a meeting with Chinese government officials, who reiterated their plans for a national carbon market in China, and said they’re interested in working with the United States to combat climate change. Later that day, I heard President Obama speak at the United Nations General Assembly.

I was encouraged and inspired to hear him say that the U.S. and China, “as the two largest economies and emitters in the world … have a special responsibility to lead.”

6. CLIMATE-SMART AGRICULTURE – NO LONGER JUST A CATCH PHRASE

Richie Ahuja, Regional Director, Asia: After a three-year global effort involving a large number of diverse stakeholders, we finally launched the Global Alliance for Climate-Smart Agriculture. Its purpose: To help the world figure out how to feed a growing population on a warming planet.

The alliance will use the latest technology and draw on the experience of farmers to improve livelihoods and build resilience – while at the same time cutting greenhouse gas emissions and other environmental impacts. This is climate action that truly counts.

7. CORPORATIONS ARE ON BOARD

Ruben Lubowski, Chief Natural Resource Economist: One thing that made the Climate Summit unique was that it included corporate leaders, not just heads of state. In addition to signing the New York Declaration on Forests, chief executives of major global companies that buy and trade palm oil and other tropical commodities that drive deforestation – companies like Cargill, Unilever, and Wilmar – spoke strongly about their plans to change sourcing practices.

Already, companies accounting for about 60 percent of the world’s palm oil trade have made commitments to eliminate deforestation from their products.

8. CALIFORNIA DOES IT AGAIN

Derek Walker, Associate Vice President, U.S. Climate and Energy: California has served as a proving ground for climate change policies that can be adapted by other jurisdictions, whether in the U.S. and abroad – and there’s more to come. My highlight for the week: when Gov. Jerry Brown said that California will set a post-2020 emissions limit and ratchet up its 33-percent renewable standard – already the nation’s top target.

California Air Resources Board Chair Mary Nichols also told us that the state is preparing to develop rules on how to incorporate forest carbon credits into its carbon market – a key step toward reducing deforestation.

Posted in News / Read 2 Responses

Traveling to the climate march: Worth the carbon footprint?

By Gernot Wagner / Published: September 18, 2014

(This blog originally appeared on EDF Voices)

Lauren Frohne/Flickr

Looks like the simmering “climate swerve” may come to a boil on September 21 in New York City for what’s billed as the People’s Climate March.

Bill McKibben called for it in the Rolling Stone magazine. Tens of thousands are slated to respond to his call, ostensibly to channel Franklin D. Roosevelt’s ghost and make world leaders “do it” – push for strong climate policies, now.

Except that it wouldn’t be the climate movement if it weren’t beset with self-doubt and second-guessing. Going to New York, you see, produces carbon dioxide emissions, the very cause of the problem. So how then can climate activists justify riding, driving or – heaven forbid – flying in the name of climate action?

We do because traveling to Manhattan, and expanding our carbon footprint in the process, may be better for the planet in the long-run than if we stayed home.

Real climate policy is what we need

Every cross-country roundtrip flight causes about a ton of carbon dioxide, per passenger. Driving emits carbon, if not quite as much. Trains do, too. Even if you bike or walk, you will need extra calories, which also come with additional carbon emissions.

A plethora of online calculators can help you decide how to minimize your own footprint. You could get positively crazy making these calculations, and some possibly have.

If you spend so much time online researching your carbon footprint that your power consumption shoots up, you may be on the wrong track.

We should all be decreasing our carbon footprint. The emphasis is on “all.” Real climate action, then, must go far beyond individual action by the committed core.

The People’s Climate March will take place on the eve of the United Nations’ Climate Summit, convened by Secretary General Ban Ki-moon on September 23, and for good reason. It’s policy that needs to change.

Coal cannot be banned, but it can be priced

The headwinds are strong, to say the least.

King Edward I banned the burning of coal in 1306, replete with the death penalty for repeat offenders. It didn’t take long for the ban to be lifted, and the coal-fueled industrial revolution has brought untold riches to many.

The coal question, in many ways, goes to the heart of the matter. Banning coal is out. It is neither possible nor necessarily desirable.

What we need is to incorporate the full societal cost of burning that coal into everyone’s private decisions.

At the moment, each ton of coal and each barrel of oil used causes more in external damage to human health and the environment than it adds in value to the economy. That doesn’t mean we should not burn any coal or any oil, but it does mean putting a price on carbon, ideally directly via carbon markets or taxes.

It means regulation. It means standards. It means tax reform. It means taking significant policy steps to restructure misguided market forces so they lead us off of the current high-carbon, low-efficiency path.

Composting counts, but it’s not enough

Going green is fine. I don’t drive, don’t eat meat, and do all sorts of other things that minimize my own carbon footprint. The climate movement is home to quite a few who go the full-on vegan, composting, skip-coffee-because-it’s-bad-for-the-climate route.

But going green is only good if it actually gets somewhere.

If you compel your in-laws to compost more and drive less – go forth and proselytize. But if this makes them ignore efforts to achieve critical policy changes, your campaign for a voluntary green lifestyle should probably stop.

Many actions needed for a climate revolution are akin to a bootstrapping problem. Building a wind turbine takes steel, which in turn takes energy. The green energy revolution then may well mean an increase in current, largely fossil-fueled energy use for the sake of decreased carbon emissions later.

The Climate March falls into the same category. Going to New York implies emissions, as do most other things we hold near and dear in our daily lives.

Participating in the march won’t change that fact overnight. But calling for real, measured climate action just might. Helping to build the momentum toward policy change is precisely what’s needed.

If you can do it while also decreasing your own footprint, so much the better. If not, choose policy change.

Bike if you can, fly if you must. By all means, go to New York on September 21.

Also posted in Greenhouse Gas Emissions, Policy / Comments are closed

The Future of Fires

By EDF Blogs / Published: September 16, 2014

(This post was written by Derek Sylvan of  the Institute for Policy Integrity, and first appeared on The Cost of Carbon Pollution. The Cost of Carbon Project is a joint project of the Environmental Defense Fund, the Institute for Policy Integrity, and the Natural Resource Defense Council.)

 U.S. Forest Service photo by John Newman

The 2014 wildfire season is not yet over, but in some regions it is already one of the most destructive ever. Fires continue to rage in many parts of the country, threatening hundreds of homes, creating emergencies in National Parks and residential areas, and straining government budgets — Washington State’s wildfire season is already six times more damaging than average.

And we may be in for much worse in the near future if climate change is not contained, according to a new report from the Cost of Carbon Pollution project.

The newly released report, Flammable Planet: Wildfires and the Social Cost of Carbon, surveys the scientific and economic literature on wildfires and climate change, in order to project the costs of climate change-induced fires. Written by Dr. Peter Howard, an economics fellow at the Institute for Policy Integrity, the report offers the first-ever estimates of the economic damages from future wildfires.

The report quantifies the many types of damage wildfires cause: market damages (such as from lost timber, property, and tax revenue), non-market damages (such as health effects and loss of ecological services), and adaptation costs (for fire prevention, suppression, and rehabilitation). Citing dozens of past studies, the report estimates the costs of various damage categories, per 100 acres burned. Already today, these costs are significant — the United States currently faces annual costs of $20 billion to $125 billion. But climate change could take these damages to new heights.

Scientists will never be able to definitively claim that any specific wildfire is the result of climate change. But the consensus view among climate scientists is that increases in global average temperature will make wildfires more frequent and intense, and fire seasons will last longer. Additionally, more areas are expected to face fire risk, and climate models project an increase in fire sizes (in terms of area burned). Some studies predict a 50 to 100 percent increase in area burned in the United States by 2050, with the most severe changes occurring in Western states. The beginnings of this trend may already be visible in recent wildfire data, as seen below:

Using the established scientific projections, Flammable Planet catalogs the estimated costs of climate-change induced wildfires, for both the United States and the world. By 2050, climate change is expected to raise the costs of U.S. wildfires by $10 billion to $60 billion annually.

Tallying these enormous costs can help policymakers and the general public better understand the effects of climate change. Perhaps more importantly, the report can lead to action — it advocates for including these wildfire costs in the government’s social cost of carbon estimate. This figure, which is used to help evaluate carbon regulations, currently omits wildfires and many other significant damages.

As scientists and economists continue to increase our understanding of the damages we face from carbon pollution, the case for cutting this pollution is stronger than ever. President Obama has taken important steps, using his authority under the Clean Air Act to propose emission limits on both new and existing power plants. Additional, robust action now can help avoid an increasingly fiery future.

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Americans Have Caught the Fever

By Sam Parry / Published: July 3, 2014

This is an amazing, exciting time. I, like so many millions of Americans, have been completely swept up in the groundswell of exhilarating national pride peaking just as we are about to celebrate our 238th anniversary as an independent nation.It’s time to wave that flag high and proud!

Flickr/Little Baby G

Flickr/Little Baby G

Americans have caught on to a movement that most of the rest of the world has long embraced. From Germany to England, France to Mexico, Brazil to South Korea, it unites so much of the world in a common purpose, a shared sense of hope and global cooperation. And over these last few weeks, I have rejoiced as Americans have caught the fever.

No, I’m not referring to the FIFA World Cup soccer tournament – though that has been a real treat to watch. And hats off to the inspiring performance of the Stars and Stripes squad in Brazil. What an amazing effort against Belgium. As a parent of a young soccer player, I couldn’t be more thrilled.

Actually, I’m talking about the overwhelming support Americans are showing for real climate action since the EPA announced its landmark Clean Power Plan to slash carbon pollution from America’s power plants.

And how inspiring it is. We Americans have been debating national climate policy since I was in high school in the first Bush administration. Here we are (gulp) a quarter century later, and we now have a proposal to — for the first time ever — limit dangerous climate pollution from America’s fossil fuel-fired power plants, the largest source of climate pollution in the U.S.

Can you imagine that we have spent all this time with NO NATIONAL LIMITS on climate pollution from power plants? Frankly, it’s shocking.

We’ve spent years debating a national cap and trade bill, a carbon tax, and a wide range of renewable energy standards to drive down America’s dependence on fossil fuels. And, we’ve made some progress.

But, all along, our fossil fuel-fired power plants were left unchecked, allowed to spew carbon dioxide into our atmosphere with no national limits.

That’s why the EPA Clean Power Plan is so essential and it’s why every American who cares about clean energy and a safer climate future should take action and support strong limits.

When the EPA announced its proposal a month ago, it was supposed to be divisive. It was supposed to ignite a furor of debate. The vaunted Big Carbon PR machine was supposed to be geared up and ready to grind the proposal to a pulp.

But, something funny happened on the way to cleaner energy. In the weeks since the EPA announced its pollution reduction plan, there has been a profound and perplexing lack of coherent or competent response from the richly financed corporate public relations industry. Yes, the Koch brothers, Karl Rove, the National Mining Association, and others are using this as a wedge issue to ramp up political pressure.

But, these squawking voices have been countered by former Republican EPA Administrators and former Republican Treasury Secretary Henry Paulson, who have stepped up in recent weeks to support climate action. Even some utility companies have warmed to the proposal.

Overall, public support has been overwhelmingly positive. A Washington Post poll last month found that as many as 70 percent of all Americans support carbon pollution limits for power plants — including 63 percent of Republicans and 69 percent of Independents.

Let’s be very clear about this. There are precious few political issues these days that garner 70 percent support – across all political lines. That’s important. And it is heartwarming evidence that America is ready to act on climate.

So, on this Independence Day, I’m planning to celebrate our great country by watching some World Cup soccer, enjoying the day off with my family, and rejoicing in the hope and opportunity we have as a country to unleash our clean energy future.

Go, go USA. I believe that we will act!

Also posted in Clean Power Plan, Policy, What Others are Saying / Comments are closed

Supreme Court Reaffirms EPA’s Bedrock Legal Authority to Cut Carbon Pollution from Power Plants

By Tomas Carbonell / Published: June 27, 2014

Source: Openclipart

The United States Supreme Court issued a long-awaited decision in Utility Air Regulatory Group v. EPA (No. 12-1146) this week, resolving the last of many multi-year legal challenges to EPA’s first generation of climate protections under the Clean Air Act.

The U.S. Supreme Court ruled 7-to-2 that the U.S. Environmental Protection Agency (EPA) permissibly read the Clean Air Act to require large new or modified industrial pollution sources to deploy modern pollution controls for greenhouse gases. Thus, new and rebuilt large emitters of other regulated pollutants such as particulate matter, sulfur dioxide, and oxides of nitrogen subject to the Clean Air Act’s pre-construction review permit program must use the “best available control technology” to control climate pollution.

This is now the third decision in which the Court has affirmed the application of the Clean Air Act to climate pollution.

A 5-to-4 majority of the court also held that EPA must narrow its permit program to avoid applying the permitting program to many smaller sources that EPA itself had taken steps to exclude from regulation.

The UARG case emphatically puts an end to the misplaced claims by some who question EPA’s bedrock authority to address the deleterious carbon pollution from power plants and other industrial sources under section 111 and the Prevention of Significant Deterioration (PSD) permit program of the Clean Air Act. The central question in the UARG case was not whether EPA must address climate-destabilizing pollution from power plants and other industrial sources, but rather how EPA should carry out these essential clean air protections.

When it took up the UARG case, the Supreme Court decided not to review EPA’s rigorous, science-based determination in 2009 that six greenhouse gases endanger the public health and welfare of current and future generations — the legal foundation for addressing climate pollution under the Clean Air Act. The Court similarly declined to review EPA’s landmark rules in 2010 setting the first limits on greenhouse gas emissions from new passenger vehicles (the Clean Car Standards). The Supreme Court’s review of UARG was focused exclusively on EPA’s interpretation of the PSD permitting program. Nothing about the Supreme Court’s final decision in UARG affects the Clean Car Standards or the science-based finding that greenhouse gas emissions endanger public health and welfare and therefore must be addressed under the Clean Air Act. And in UARG, seven justices of the Court agreed with EPA that large industrial sources that are already required to obtain PSD permits due to their emissions of other regulated pollutants must limit their greenhouse gas emissions with “best available control technology.”

The UARG case also reinforces EPA’s clear legal authority to reduce carbon pollution from the nation’s fossil fuel-fired power plants, which emit nearly forty percent of the United States’ carbon dioxide and are currently subject to no national limits on carbon pollution. As described in detail on our earlier blogs, EPA has proposed long-overdue and much-needed rules under section 111 of the Clean Air Act that would, for the first time, require new power plants to use advanced technologies available for carbon reduction — and would reduce carbon pollution from existing power plants to 30 percent below 2005 levels by 2030 through available cost-effective solutions. Together, these rules would cut carbon pollution from our nation’s largest source, achieve significant reductions in other harmful pollutants that are emitted together with carbon pollution from fossil fuel-fired power plants, and spur complementary action in other countries.

The Supreme Court has affirmed time and again EPA’s authority to regulate carbon pollution, and it further reiterated this precedent in UARG:

  • Seven years ago in Massachusetts v. EPA, the Supreme Court held that “greenhouse gases fit well within the Act’s capacious definition of ‘air pollutant,’” and are therefore clearly within EPA’s authority to regulate under the Clean Air Act. 549 U.S. 497, 532 (2007). In UARG, the Court rejected requests by some of the parties to overturn this fundamental holding.
  • Four years later in American Electric Power Co. v. Connecticut, the Supreme Court explicitly acknowledged EPA’s authority to limit carbon pollution from existing power plants, holding that it was “plain” that section 111 of the Clean Air Act “speaks directly to emissions of carbon dioxide from the defendants’ plants.” 131 S. Ct. 2527, 2537 (2011). 
  • During the February 24, 2014 oral argument in UARG, industry attorney Peter Keisler conceded, in response to questioning from Justice Ginsburg, that EPA has clear authority to address climate pollution from power plants under section 111.  The Court specifically acknowledged and reiterated this holding in UARG – noting that the section 111 is “not at issue here” and that “no party in American Electric Power argued [section 111] was ill suited to accommodating greenhouse gases.”

It is always an important occasion when the Supreme Court weighs in on legal issues affecting the Clean Air Act. It’s especially important when the Court is addressing the climate pollution that presents a clear and present danger to the health of our communities and families and to our prosperity.

Also posted in Climate Change Legislation, Greenhouse Gas Emissions, Policy / Comments are closed