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UPDATE: 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 is the Reference Librarian for Educational Services at New York University School of Law Library. Her latest article is: Online Law Library Maps, 98 (4) Law Library Journal 691 (fall, 2006).
Published February 2009
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Table of Contents
1. Introduction
2. Background on the Convention and the Protocol
2.1. The UN Framework Convention on Climate Change (UNFCCC)
3. The Kyoto Protocol to the UNFCCC
3.1. Overview
3.2. Marrakesh Accords
3.2.1. Kyoto’s “Flexibility” Mechanisms
3.3. LULUCF
3.4. COP-12
3.5. The Secretariat
3.6. Finding Relevant Documents
4.1. The Clinton Administration, 1993-2001
4.1.1. The Former Clinton Administration: Recent Developments
4.2. The Bush Administration & Climate Change (2001-2006)
4.2.1. Recent Relevant Developments
4.2.1.1. Religion & Climate Change
4.2.2. Post-Midterm Elections, 2006-2008
4.2.3. Political Interference with Climate Science
4.2.4. Polar Bear Regulations
4.3. State, County, & City Actions to Reduce GHG Emissions: California
4.4. Other State, County and City Actions to Reduce GHG Emissions
4.5. State Actions That Would Have Increased GHG Emissions: Texas
4.6. State Actions Which Will Increase GHG Emissions: South Dakota
4.7. Domestic/International Businesses & Climate Change
4.8. The 2008 Presidential Campaign
4.9. The Obama Administration, 2009-2012
5.1. Finding EU Documents on Climate Change
5.2. EU: Recent Relevant Developments
5.2.1. Europe’s Emissions Trading Scheme (ETS)
5.2.2. New EU Energy Plan
5.2.3. EU Report on GHG
5.3. Individual Member State Initiatives
7. Online Scientific Resources Relating to Global Climate Change
7.1. General Sites for Climate Change Resources and Programs
7.2. Specific Scientific Materials
7.3. 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 finds 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 January 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, which was founded in 1945 by former Manhattan Project physicists, 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]
My primary sources of electronic information are the email alerts available from Grist,[2] especially Daily and Weekly Grist, which not only summarize environmental news but also link to the original news sources. I also rely heavily on daily BBC News updates for climate change news from the E.U. and the E.C., the BNA International Environment Daily, the daily Environmental Law Reporter updates, the BNA Environment Reporter, and BNA’s U.S. Law Week.[3] In addition, after the Supreme Court decision in Massachusetts 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. The blog moved to a new site in June 2008.[4]
In this guide, I briefly summarize the UNFCCC and the Kyoto Protocol, and discuss the sources one would use to research them, but I make no claim to originality there. As a comparative guide, it has relatively little to offer, at least thus far. To state the major difference between the E.U. and the U.S. in the simplest way, in the E.U. there are climate change laws to apply (the E.U. has ratified the Kyoto Protocol and takes its commitments very seriously), and in the U.S. there are none, at least at the federal level. When and if the U.S. government chooses to act on climate change, this guide will include its actions; thus it will evolve and become a truly comparative guide. Its current value lies in its compilation of recent information on the important work that U.S. states and cities have initiated to address climate change and, hopefully, to compel the federal government into action. I want to thank Mirela Roznovschi for the opportunity to write on this vital 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).[5] The panel’s First Assessment Report in 1990[6] 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 under Online Scientific Resources Relating to Global Climate Change, Specific scientific materials.
After that, Europe in particular, and other countries as well, began to call for action on climate change; in response, the UN, on December 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)[7] 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.[8] The UNFCCC has been ratified, accepted, or approved by a total of 190 countries.[9]
The George H.W. Bush administration signed the UNFCCC in Rio on June 12, 1992, and the U.S. Senate ratified it unanimously shortly thereafter, on October 15, 1992.[10]
The original, authentic Convention was deposited with the Secretary-General of the United Nations.[11] Parties to the Convention agreed to consider climate change in such matters as agriculture, industry, energy, natural resources, and activities involving sea coasts, and thus to attempt to slow the process of global warming.
The Conference of the Parties (hereafter “COP”), which is the supreme decision-making body of the UNFCCC, meets annually to review progress on the Convention.[12]
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, Annex I Parties are required to communicate to the COP “a national inventory of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol.”[15] These 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 article 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, our national communications required by the UNFCCC, are available online from the U.S. Global Change Research Program.[17] On May 4, 2007, the State Department released a draft version of U.S. Climate Action Report 2006. It updates U.S. climate-related actions since the last report in 2002. Public comment is requested until May 18, 2007.[18] On May 15th, the deadline for comments was extended to June 1, 2007.[19]
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[20] of greenhouse gases in calculation of legally-binding targets during the first commitment period.”[21] 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.[22]
The UNFCCC also established two subsidiary bodies:
Both subsidiary bodies meet twice a year. The 2006 meeting of the subsidiary bodies was held in Bonn, Germany, as well as the twenty-sixth meeting, in 2007.[24]
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[25] in Berlin adopted the “Berlin Mandate,”[26] 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.[27] 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.[28] A fourth subsidiary body, the Ad Hoc Group on Article 13 (AG13), was established to explore options for conflict resolution.
In July, 1996, at COP-2 in Geneva,[29] 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.[30] 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.”[31] 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,”[32] the Kyoto Protocol was adopted in December, 1997, at COP-3.[33] 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, by ratifying, accepting, approving, or acceding to it. As of September 2006, 166 countries have either ratified, acceded to, approved of, or accepted the Protocol; see Status of Ratification.[34] Only the Annex I Parties to the UNFCCC, 22 countries and the EU-15, are required to reduce their emissions of GHGs under it.[35] Their individual targets are found in the Protocol’s Annex B.[36]
The COP to the Convention also serves as the Meeting of the Parties (MOP) to the Kyoto Protocol.[37] Both bodies issue decisions and resolutions.[38]
The Protocol sets mandatory targets for greenhouse-gas emissions, for Annex I Parties only, specifically excluding 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.”[39] However, article 3.8 allows any Annex I Party to use 1995 as a base year for the last 3 gases.[40] 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.[41]
COP-4 (held in Buenos Aires, Argentina), in 1998,[42] COP-5 (held in Bonn, Germany), in 1999,[43] COP-6 (held in The Hague, The Netherlands), in 2000,[44] and COP-6b, the resumed session (held in Bonn, Germany),[45] in July, 2001, continued work on the details of the Protocol. It was at the 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.[46]
The "Marrakesh Accords," adopted in October/November, 2001, at COP-7,[47] 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.[48] 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.[49]
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.[50]
The European Emissions Trading Scheme, the largest of its kind in the world, discussed infra, 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.[51]
The Clean Development Mechanism (CDM) under the Protocol’s article 12 allows developed nations to pay for projects that cut emissions in developing nations and receive credits in exchange that they can apply to meeting their own emissions targets.[52]
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. Thus the Kyoto Protocol’s mechanism is used to clean up HFC-23 factories, leaving them functioning and in violation of the Montreal Protocol to the Vienna Convention for the Protection of the Ozone Layer, which requires them to be phased out.[53]
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.[54]
In May 2007, the World Bank issued a report entitled State and Trends of the Carbon Market 2007, by Karen Capoor and Philippe Ambrosi.[55] 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.[56]
The Marrakesh Accords also established several expert groups:
· The Consultative Group of Experts (CGE) assists developing countries prepare reports on climate change.[57]
· The Least Developed Country Expert Group (LEG) gives advice to the least developed countries.[58]
· The Expert Group on Technology Transfer (EGTT) works to share technology with less developed countries.[59]
COP-7 in Marrakesh also adopted Decision 11/CP.7, regarding the principles to govern Land-Use, Land-Use Change and Forestry (LULUCF).[60] 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, which they did.[61] 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,[62] 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[63] 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.[64]
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.[65]
COP-8 was held in New Delhi, India, in 2002[66]; COP-9 was held in Milan, Italy, in 2003[67]; COP-10 was held in Buenos Aires, Argentina, in 2004.[68]
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.[69] However, Russia, responsible for 17% of 1990 GHG emissions, ratified on November 18, 2004.[70] Thus the Protocol came into effect on February 16, 2005. The original, authentic Protocol was deposited with the Secretary-General of the United Nations.[71]
COP-11 was held in Montreal, Canada, from November 28 to December 9, 2005, and was also the first MOP to the Kyoto Protocol.[72]
Among other things, COP-11 established the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG).[73] The AWG’s first session was held in Bonn from May 17 to May 25, 2006[74]; its second session was held in November 6-14, 2006, in Nairobi.[75] See infra.
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.”[76] The facilitative branch assists Parties in meeting their obligations under the Protocol.
The most recent meeting of the Climate Change Convention was COP-12, held from November 6-17, 2006, in Nairobi, Kenya, in conjunction with the second meeting of the Parties to the Kyoto Protocol (COP-12/MOP-2).[77] 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.[78] 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.[79] The UN released its Report on the African Regional Workshop on Adaptation just before the meeting opened; the report states that the effects of climate change on Africa will be particularly severe.[80]
In preparation for COP-12, the UN issued its annual report on October 30, 2006, which 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 have increased slightly, in both EIT and non-EIT Parties; also, the number of Parties with emissions decreases has declined to seven nations from 23 of the 41 since 2000.[81] One of the report’s conclusions is that “industrialized countries will need to intensify their efforts to reduce greenhouse gas emissions.”[82]
COP-12/MOP-2 concluded on November 17, 2006. Participants pledged to review the effectiveness of the Kyoto Protocol in 2008 as required under Article 9 of the protocol 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.”[83] 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.[84]
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 and COP/MOP-3 to be held in Bali in December 2007.[85] Delegates continued to discuss extending the Kyoto Protocol, which expires in 2012.[86] 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 Bali.[87]
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, August 27-31, 2007.[88] Delegates agreed to set GHG emissions cuts between 25 and 40 percent below 1990 levels in the successor pact to the Kyoto Protocol.[89]
COP-13
United Nations Climate Change Conference in Bali, COP 13 & the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol (CMP) 3, opened December 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.[90] The conference continued until December 14th. Before it opened on November 30th, 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.”[91] 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, and 10 House committee chairmen, emphasized the willingness of the majority of Americans to reduce GHG emissions.[92] Finally, a rough and vague roadmap (the “Bali Action Plan”) for a new global climate treaty was proposed, to which the U.S. reluctantly agreed.[93] 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.”[94] Work proceeds to draft a successor agreement by 2009.[95]
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 January 24, 2008.[96] 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.[97]
Three months after the Bali conference, talks opened in Bangkok, Thailand, which continued 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.[98] 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.[99]
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 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.[100] Two more meetings were held to prepare for the July 7-9th Group of Eight summit.[101]
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 December 1-12, 2008. The conference also included the 29th sessions of the Convention’s two subsidiary bodies, the Subsidiary Body for Scientific and Technological Advice (SBSTA) and the Subsidiary Body for Implementation (SBI). SBSTA and SBI,n as well as the 4th session of the AWG-LCA and the 2nd part of the 6th session of the AWG-KP. President-elect Barack Obama did not attend, as he did not assume office until January 20, 2009.
Both the UNFCCC and the Kyoto Protocol are served by the Climate Change Secretariat.[102] The mandate of the Secretariat is laid out in Article 8 of the Convention. Its main functions are:
The Secretariat has been located in Bonn, Germany, since August of 1996.
This is the web page of the United Nations Framework Convention on Climate Change.[104] This site 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[105] included in the Essential Background section provides a useful introduction to global climate change, as well as background of the UNFCCC and the Kyoto Protocol.
Reports from COP/MOP sessions can be found under Search documents of the COP, COP/MOP and all Subsidiary Bodies on the UNFCCC Web page.[106]
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.”[107] 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.[108] Our subsequent lack of national consensus on climate change was a disappointment to environmentalists.[109]
In 1995, COP-1 met in Berlin, adopted the Berlin Mandate as discussed supra, and began negotiations on a Protocol that would set enforceable reductions in emissions for Annex I parties only.[110] The U.S. agreed to the Berlin Mandate, despite misgivings about the exclusion of developing country parties (the “non-Annex I” parties).[111]
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.[112] 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.[113] 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.[114] The appendix to the report that accompanied Senate Resolution 98 contained the testimony given at those hearings.[115] 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.[116] Resolution 98 was passed by the Senate 95-0 on July 25, 1997.[117] 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.[118]
On October 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.[119]
As noted supra, the Kyoto Protocol was adopted on December 11, 1997, at COP-3, after about 30 months of delicate negotiations.[120] 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.[121]
In fact, U.S. Vice-President Gore did sign the Protocol on November 12, 1998, and agreed to make greenhouse gas emission cuts of 7% below 1990 levels.[122] The signature was largely symbolic, as it was extremely unlikely, after the Byrd-Hagel Resolution passed so decisively, that the Senate would ratify it.[123] Indeed, neither the Clinton nor the Bush Jr. Administration has sent the Protocol to the Senate for ratification.[124]
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.[125] 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.”[126]
On August 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.”[127] The initiative joined with the Large Cities Climate Leadership Group[128] (a group of 23 cities world wide, formed in 2005 to reduce urban carbon emissions) to help large cities combat global warming.[129]
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 an Academy Award nomination for best documentary feature (and one for best original song, I Need to Wake Up, by Melissa Etheridge) in January 2007,[130] both of which won.[131]
Al Gore was also nominated for the Nobel Peace Prize in February 2007, for his efforts to educate people about climate change.[132] On October 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 have no impact on administration policy regarding climate change.[133]
The Bush administration was known to have many connections with the oil producing industry, and the new president was not expected to favor environmental efforts. Indeed, President Bush made it clear shortly after assuming office 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] The U.S. signature has little effect without ratification, but the signature does mean that the U.S. must not work against the Protocol, or prevent other nations from joining. The Natural Resources Defense Council has a Web page entitled The Bush Administration's Global Warming Policies.[136]
According to Press Secretary Ari Fleischer, the president directed a Cabinet-level review of climate change science in March of 2001[137]; the preliminary findings were released on June 11, 2001, in a report entitled Climate Change Review (2001), and discussed in the president’s Remarks on Global Climate Change made on that day.[138] The report includes 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.”[139]
In the course of writing their 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 speech of June 11, 2001.[140] However, the report largely agreed with the IPCC’s conclusions.[141]
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).[142]
The National Climate Change Technology Initiative (NCCTI) was launched on June 11, 2001, in a speech the president made in the Rose Garden.[143] 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 President's NCCTI.[144]
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.[145] Marilyn Brown was the lead author. 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.[146]
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,[147] 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.”[148] 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"[149] and an overly media-hyped issue.[150]
Monday, September 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.”[151] On September 28, 2006, he gave a follow-up speech called “America Reacts to Speech Debunking Media Global Warming Alarmism”[152] in which he discussed CNN’s criticism of his earlier speech.
On December 6, 2006, the Environment Committee held a hearing on Climate Change and the Media.[153] In his opening remarks, Senator Inhofe said that the media are “advocates for hyping scientifically unfounded climate alarmism.”[154]
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 February 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.[159] 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.[160] One program, the Climate Leaders Program,[161] is run by the U.S. Environmental Protection Agency (EPA); the other, Climate VISION (Voluntary Innovative Sector Initiatives: Opportunities Now),[162] 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,[163] 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 punishing firms that have not set goals.[164]
Climate Change Science Program
Also in 2002, President 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, and the Climate Change Research Initiative, established by the President in 2001.[165]
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.[166]
Under the Global Change Research Act of 1990,[167] the USCCSP is required to submit an annual report to Congress. The reports, entitled Our Changing Planet, are posted on the U.S. Global Change Research Information Office Web page.[168] Our Changing Planet: The U.S. Climate Change Science Program for Fiscal Year 2007 was posted on the USGCRP Web site on December 15, 2006.[169]
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 (since 2002, the U.S. Climate Change Science Program, see supra) 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, and human health and safety, and project major trends for the future.[170] The most recent National Assessment, entitled: Climate Change Impacts on the United States: U.S. National Assessment of the Potential Consequences of Climate Variability and Change, was issued in October, 2000; the update to it was due in November, 2004.[171] See Letter of April 14, 2005, from Senators John McCain and John F. Kerry, entitled Climate Change Assessment: Administration Did Not Meet Reporting Deadline.[172]
On November 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.[173] The case was decided in favor of the plaintiffs in an order filed on August 21, 2007.[174] “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.”[175] 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.”[176]
The National Assessment is an ongoing source of controversy for the Bush Administration.[177] See Political Interference with Climate Science and Testimony of Rick Piltz before the House Committee on Oversight and Government Reform, Hearing on Allegations of Political Interference with the Work of Government Climate Change Scientists, Jan. 30, 2007,[178] and Rick Piltz, On Issues of Concern About the Governance and Direction of the Climate Change Science Program, June 2, 2005.[179]
On May 10, 2007, the 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 the “Preliminary Review of Adaptation Options for Climate-Sensitive Ecosystems and Resources” program[180]; and the Human Impacts of Climate Change Advisory Committee, to work on the “Analyses of the Effects of Global Change on Human Health and Welfare and Human Systems” study.[181]
On November 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 hasn’t been significantly amended since 1990, to include consideration of state and local climate change issues.[182] It was referred to the Senate Committee on Commerce, Science, and Transportation.
The Feinstein-Snowe Resolution
On February 16, 2005, the exact day the Kyoto Protocol took effect, Senator Dianne Feinstein (D – CA) and thirteen co-sponsors introduced S. J. Res. 5, Expressing the sense of Congress that the United States should act to reduce greenhouse gas emissions.[183] 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”[184] 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. As of November 28, 2006, no action has been taken, and if nothing further happens the resolution will expire at the end of the 109th Congress, 2d Session.
The lead co-sponsor of the Resolution, Olympia J. Snowe (R - ME), is the co-chairman of the International Climate Change Taskforce, which released a report entitled Meeting the Climate Challenge in January, 2005.[185]
The Sense of the Senate on Climate Change
On June 22, 2005, Senator Jeff Bingaman[186] introduced Senate Amendment 866 to H.R. 6, a bill to ensure jobs for our future with secure, affordable, and reliable energy; it became Pub. L. No. 109-58.[187] 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.[188]
The measure was defeated by roll call vote of 44 for, 53 against, 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 U.S. economy.[189]
The Bush administration established the Asia-Pacific Partnership on Clean Development and Climate in July 2005. Member nations include Australia, China, India, Japan, the Republic of Korea, and the United States.[190] 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.”[191] 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.[192] 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.[193]
4.2.1.1. 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.[194] Since then, the National Association of Evangelicals has also agreed to collaborate, but the Interfaith Stewardship Alliance and other conservative Christian groups have criticized the alliance.[195] 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.[196] On May 22, 2007, more than 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.[197] The Vatican held a conference on climate change in April 2007; a papal encyclical was debated.[198]
On October 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. 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.[199]
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.[200] 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.[201] Nevertheless, on November 29, 2006, the day of oral arguments on Mass. v. EPA, see infra, union representatives of over 10,000 EPA scientists 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.[202] See infra for more on political interference.
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.[203]
Representative John Dingell (D-Mich.) is the new chair of the House Energy and Commerce Committee; he has expressed resistance to GHG legislation that would burden the U.S. 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; Senator Barbara Boxer (D-CA) will chair Environment and Public Works. The latter three have all supported legislation to reduce GHG emissions.[204]
Surprisingly enough to Democrats, on January 4, 2007, 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.[205] 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.”[206] 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.[207] It does, however, eliminate the “SUV loophole” by not distinguishing between passenger cars and light trucks, and would be the first major revision of fuel economy since the 1970s. Environmentalists were not enthusiastic, though they admit that it is at least a start, and auto manufacturers were even less so, calling the new standards “unattainable” and lamenting the loss of the SUV.[208] 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.[209] See infra, Massachusetts v. EPA. Fuel economy is taken much more seriously in Europe, where 113 vehicle models get (combined city and country) at least 40 mpg, 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.[210]
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.[211] Senator Boxer has called the Bush administration’s record on global warming “dismal, worse than dismal,”[212] 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.’”[213]
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, 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.[214]
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.[215] 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.[216]
She also decided to establish a select House committee to gather scientific information to improve public awareness of climate change,[217] called the House Select Committee on Energy Independence and Global Warming.[218] 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.”[219] 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.”[220] 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.[221]
A list of articles on relevant environmental issues and hopes for GHG legislation after the election can be found on the Environmental Health News site.[222]
In January 2007, the National Oceanographic and Atmospheric Administration (NOAA) acknowledged that human activities were contributing to warmer temperatures.[223]
On January 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.”[224] The bill (one of several major climate-related bills introduced in the new 110th Congress[225]) would roll back tax and other forms of relief for the oil and gas industry,[226] and steer the resulting funds toward energy efficiency and renewable energy sources.[227] 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 January 18th.[228]
On January 16, 2007, Senators Biden and Lugar reintroduced S. Res. 30,[229] “[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.”[230] See Byrd-Hagel Resolution, S. Res. 98, supra. It was approved by the Foreign Relations Committee on March 29th,[231] reported back to the Senate without an amendment or a written report, and, as of mid-April 2007, it is thought that S. Res. 30 might be considered by the Senate by Memorial Day.[232]
The 110th Congress began with several relevant bill introductions, including S. 280, the McCain-Lieberman bill, aka the Climate Stewardship and Innovation Act of 2007, to cut emissions back to 2004 levels by 2012; S. 309, to cut GHG 80 percent below 1990 levels by 2050; S. 317, which would cap GHG emissions from power plants at 2001 levels in 2015 and require a 1% additional reduction each year through 2020; and S.R. 30, a resolution that asked the Bush administration to engage in international climate change negotiations.
To search for other legislation, go to Thomas, for legislative information from the Library of Congress, or to GPO Access, from the Government Printing Office.
In his State of the Union Address, January 23, 2007, President Bush offered several modest energy proposals: an increase in renewable fuels,[233] primarily ethanol, and increasing mileage standards for cars and trucks (the Corporate Average Fuel Economy or “CAFE” standards[234]) by about 4% a year. Democrats and environmental groups were disappointed that emissions from stationary sources that burn fossil fuels were not mentioned.[235]
On January 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.[236]
On February 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.[237]
On March 20, 2007, the House Committee on Energy and Commerce held a hearing entitled Climate Change: Perspectives of Utility CEOs.[238] The executives were not opposed to mandatory carbon emissions limits, but were predictably concerned about increased utility charges.[239] 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 Committee on Energy and Commerce and the Committee on Foreign Affairs.[240]
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,[241] and Bjørn Lomborg, adjunct professor, Copenhagen Consensus Center, Copenhagen Business School.[242] Later that day, Mr. Gore also testified in front of the Senate Committee on Environment and Public Works.[243] 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.[244] 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.[245]
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.[246] 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.[247] 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.[248] Three members of CNA’s Military Advisory Board testified again on May 9, 2007, before the Senate Foreign Relations Committee.[249] 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."[250] 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.[251]
As of April 23, 2007, the House Energy and Commerce Committee has held 11 hearings and heard testimony from over 50 witnesses, in an effort to develop climate change legislation that will be even-handed in the burdens it distributes on industries. The committee anticipates submitting the legislation in the fall of 2007.[252]
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.”[253]
On May 23, 2007, the House Foreign Affairs Committee approved H.R. 2420, the International Climate Cooperation Re-engagement Act of 2007, which would, if enacted, require 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. A new international agreement would prevent a gap in Kyoto Protocol requirements after 2012.[254]
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.[255] In October, 2007, no legislation had been enacted, but Congress was still trying. See below. On October 3d, the House of Representatives issued the first in a series of Climate Change 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.”[256]
On October 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, which would, in section 9004, Retention of State Authority, refrain from preempting states from enacting GHG standards more stringent than the federal ones.[257] 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.[258] A hearing on the bill was held on Wednesday, October 24, 2007, before the Senate Committee on Environment and Public Works to which it has been 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.[259] On November 1, 2007, after modifications that procured more support,[260] 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,[261] the first of the many global warming bills introduced in the 110th Congress to be endorsed by any congressional body.[262] 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,[263] and indeed, S. 2191 was cleared by the Senate Environment and Public Works Committee in an 11-8 vote on Dec. 5, 2007[264]; a tough time, including a possible filibuster, was anticipated in the Senate, but Sen. Lieberman (I/D-Conn.) predicts that enough Republicans would support the legislation to provide the 60 votes needed to break it.[265] James E. Rogers, president and chief executive officer 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.[266]
In March, 2008, the EPA completed an economic analysis of the bill and found it relatively favorable to U.S. businesses.[267] But shortly thereafter, energy companies and other business interests launched an attack against the bill, claiming it would cost millions of jobs, send gas and electricity prices into the stratosphere and drain paychecks; others have said that the opposition has failed to take the increase in green energy into consideration.[268] But then at the end of April, the Energy Information Administration (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.[269] 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.”[270]
S. 2191 was scheduled to come up for floor debate in the Senate in June 2008.[271] 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.[272] On May 20th, S. 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, 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.[273]
The Pew Center on Global Climate Change has a 2-page pdf document on their Web site which neatly and clearly summarizes the major GHG proposals. Entitled Economy-wide Cap-and-Trade Proposals in the 110th Congress, on November 26, 2007, it included legislation introduced on November 16th.[274]
The Bush Administration held its own climate-change conference for the world’s largest economies in Hawaii, January 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.[275] The January meeting is a follow-up to one held in Washington, D.C., in September 2007.[276] The administration’s approach, focusing on voluntary reductions, has met with skepticism from environmental NGOs and others.[277]
Energy & CAFE standards in the 110th Congress: H.R. 6, the Energy Independence & Security Act of 2007, was agreed to by the House of Representatives by a 235-181 vote (Roll no. 1140) on Thursday, Dec. 6, 2007.[278] The White House sent a letter to Nancy Pelosi threatening to veto it on December 3rd.[279] 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).[280] On Friday December 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.[281] 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 December 19, 2007; as enacted, the bill retained the 40% increase in the national fuel economy standard.[282] Unfortunately, it retained tax breaks, the elimination of which would have funded renewable energy sources, and did not impose new taxes on oil companies.[283] It will also gradually phase out incandescent light bulbs in favor of CFLs by 2014. However, environmental advocates on January 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.”[284]
On March 13, 2008, legislation (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.[285]
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.[286]
In early 2006, the director of the NASA Institute for Space Studies[287] 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.”[288]
UCS & GAP Reports: On January 3, 2007, the day before the opening of the 110th Congress, the Union of Concerned Scientists issued a report entitled Smoke, Mirrors & Hot Air: How ExxonMobil Uses Big Tobacco’s Tactics to “Manufacture Uncertainty” on Climate Change. Alden Meyer, the Union of Concerned Scientists’ Director of Strategy and Policy stated, “ExxonMobil needs to be held accountable for its cynical disinformation campaign on global warming. Consumers, shareholders and Congress should let the company know loud and clear that its behavior on this issue is unacceptable and must change.”[289]
In late January 2007, just as the IPCC was preparing to release the Fourth Assessment Report, see infra, the Union of Concerned Scientists and the Government Accountability Project released a 92-page report based on a 2006 survey UCS made of over 1600 federal climate scientists (with 308 respondents), over 40 interviews GAP held with climate scientists and agency officials, and various FOIA documents. Entitled Atmosphere of Pressure: Political Interference in Federal Climate Science, the report asserts, e.g., that nearly half of all respondents (46%) were aware of or had personally experienced government pressure to eliminate the words “climate change,” “global warming” or similar terms from their communications; 25% were aware of or personally experienced scientists resigning from or removing themselves from a project because of pressure to change the results of their research; and 58% had personally experienced one or more of such incidents within the last 5 years, for a total of at least 435 incidents of political interference.[290]
Hearing in the House of Representatives: Atmosphere of Pressure was presented on Tuesday, January 30, 2007, at a hearing held by the House Committee on Oversight and Government Reform, chaired by Representative Henry Waxman (D-CA), entitled Allegations of Political Interference with the Work of Government Climate Change Scientists.[291] 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.[292]
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.”[293] 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.[294]
In his testimony, Mr. Piltz was especially concerned over the politicization of the National Assessment of the Potential Consequences of Climate Variability and Change (the “National Assessment”), discussed supra.
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.
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, February 7, 2007.[295] 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 January 30th, supra, and who was the most outspoken on the subject; and Dr. F. Sherwood Rowland, a Professor of Chemistry and Earth System Science.
House Hearings continued in the House Committee on Oversight and Government Reform entitled Political Interference with Science on March 19, 2007.[296] In his opening statement, Chairman Waxman stated that the documents produced since the earlier hearing on January 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.[297]
Among the complaints against the Bush administration appointee to lead the World Bank, Paul Wolfowitz, is that he “watered down” or removed references to climate change in an important environmental strategy paper presented to the bank’s shareholder governments in September 2006, in an effort to promote the administration’s policy on climate, which contradicted bank policy.[298]
House Committee on Natural Resources Hearing entitled Implementation of the Endangered Species Act: Politics or Science?: One witness, Jamie Rappaport Clark, testified on May 9, 2007, that the current administration has “undermined the scientific integrity of its [ESA] programs with political interference and slowly starved the program of needed resources.”[299] 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.[300]
The Smithsonian Institution was accused of underemphasizing the effects of climate change on the Arctic in a 2006 exhibit entitled "Arctic: A Friend Acting Strangely" by rewriting the script in a way that made climate change science appear uncertain and by deleting scientific interpretations of some research. A former administrator did not claim that the Bush administration influenced the Institute, but believed that it acted on its own, out of fear that the exhibit would upset Congress or the White House.[301]
On October 23, 2007, the testimony of the director of the Centers for Disease Control, Julie Gerberding, before the Senate Environment and Public Works Committee on the projected health effects of climate change was altered by the White House OMB. The White House claimed her statements did not coincide with the position of the IPCC; CDC scientists were outraged.[302]
In December, 2007 (during the Bali Conference), the House Oversight and Reform Committee issued a report entitled Political Interference with Climate Change Science Under the Bush Administration, the result of 16 months of investigations.[303] The committee inspected over 27,000 pages of documents from the White House Council on Environmental Quality (CEQ) and the Commerce Department, held two investigative hearings, and deposed or interviewed key officials. They concluded: “There was a systematic White House effort to minimize the significance of climate change by editing climate change reports. CEQ Chief of Staff Phil Cooney and other CEQ officials made at least 294 edits to the Administration’s Strategic Plan of the Climate Change Science Program to exaggerate or emphasize scientific uncertainties or to deemphasize or diminish the importance of the human role in global warming.”[304] The GOP response accused Democrats of “deep animus toward the Bush administration.”[305]
In early May, 2008, it was alleged that a NOAA regulation to require ships to reduce their speed at certain times of the year to protect endangered right whales (only 350-400 remain) along the East Coast has been delayed by the White House OMB and the Office of the Vice President since February 2007.[306]
On May 19, 2008, the House Committee on Oversight and Government Reform received documents and testimony that showed that “EPA career staff unanimously supported granting California’s request for a waiver to enforce its greenhouse gas emissions standards for cars and trucks. [See infra.] EPA Administrator Stephen Johnson also supported granting the petition, at least in part, until he communicated with the White House.”[307] The last page of a 20-page memorandum entitled EPA's Denial of the California Waiver and released on the 19th, stated: “It appears that the White House played a significant role in the reversal of the EPA position. This raises questions about the basis for the White House actions. The Clean Air Act contains specific standards for considering California's petition. It would appear to be inconsistent with the President's constitutional obligation to faithfully execute the laws of the United States if the President or his advisors pressured Administrator Johnson to ignore the record before the agency for political or other inappropriate reasons.”[308]
On May 20, 2008, the Senate Environment and Public Works Committee approved (10 to 9) "The Reducing Global Warming Pollution from Vehicles Act of 2008,” which would require the president to approve California’s CAA waiver request (which the president apparently pressured EPA Administrator Johnson to deny).[309]
In 2004, the Center for Biological Diversity’s Climate, Air, and Energy Program started a petition that was eventually filed on February 16, 2005, to give polar bears Endangered Species Act protection as a result of climate change.[310] 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.[311] On December 21, 2005, the Interior Department released a 262-page report entitled Range-Wide Status Review of the Polar Bear 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.[312] On December 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.[313] Comments were accepted until April 9th, 2007, with a final decision on the listing required by January 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.”[314]
“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.”[315]
On February 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 which, the author assumes, are those 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 suit focuses on the regulatory term “incidental taking.”[316]
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….”[317] That means that the companies wanted a regulatory procedure (they would request a “Letter of Authorization”) that would permit them to disturb marine mammals’ activities, such as “migration, breathing, nursing, breeding, feeding, or sheltering.”[318]
Two companion bills were introduced in the first session of the 110th Congress: H.R. 2327, the Polar Bear Protection Act of 2007, “To amend the Marine Mammal Protection Act of 1972 to strengthen polar bear conservation efforts, and for other purposes,” on May 15, 2007,[319] and S. 1406, on May 16, 2007.[320]
On September 7, 2007, the U.S. Geological Survey released the results of studies on the effects of climate change on polar bears[321]; the studies were to determine whether the bears should be regulated under the Endangered Species Act.[322] 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.[323]
Although a final decision on the listing was due on January 9, 2008, see supra, the FWS postponed the decision for a few weeks on January 7th.[324] Representative Edward Markey (D-MA) introduced H.R.5058 on January 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.”[325] It was referred to the House Committee on Natural Resources.
On January 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.[326]
On March 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.[327] 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.[328] Kassie Siegel (see supra) hypothesized that the delay was connected to the Bush administration’s issuing offshore petroleum leases in one of the two areas the bears live. [329]
Interior Secretary Dirk Kempthorne announced that polar bears would be listed as “threatened” under the ESA, a lower category than “endangered.” The Center for Biological Diversity, Greenpeace and the Natural Resources Defense Council filed papers on May 16th to reject the decision.[330]
California’s Air Resources Board was in operation before the formation of the Environmental Protection Agency under the Clean Air Act of 1970, and its 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.”[331] 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.[332] 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.[333]
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.[334] 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. [335] 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.[336] 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, which would require about a 30% reduction in greenhouse gas emissions from cars and trucks sold in California by the 2016 model year.[337] The bill was passed by both houses and approved by the governor on July 22, 2002.[338] The law directed the Air Resources Board[339] to promulgate regulations no later than January 1, 2005, that would achieve the maximum feasible and cost-effective reduction of greenhouse gas 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 September 15, 2005, to be effective January 1, 2006.[340] 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.[341] 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 December 21, 2005, California requested a waiver of preemption for the new GHG regulations,[342] 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.[343] See infra under Other State Actions: California’s GHG emissions regulations, and Massachusetts v. EPA.
Central Valley Chrysler-Jeep, Inc, et al. v. Witherspoon, No. CV-04-6663 (E.D. Cal. 2006) [344]: Before the GHG emissions regulation had been finalized, on December 7, 2004, Toyota, General Motors, Ford, DaimlerChrysler, BMW, Mazda, Mitsubishi, Porsche and Volkswagen filed a complaint in federal court against the Air Resources Board, attempting to block the new regulation, contending that it is not an emissions standard, but a fuel economy standard and thus pre-empted by federal authority. The industry appeared to dread the prospect of 50 different states having 50 different requirements, but at the same time vigorously opposed an increase in fuel economy standards by Congress.[345] On October 20, 2005, motions to intervene filed by the Sierra Club, the Natural Resources Defense Council, Environmental Defense, Bluewater Network, Global Exchange, and Rainforest Action Network were granted.[346] The case was set to proceed in January 2007, but was postponed in U.S. District Court for the Eastern District of California pending action by the U.S. Supreme Court in Massachusetts v. EPA (see infra).[347]
Central Valley Chrylser-Jeep v. Goldstone [Executive Officer of CARB after Witherspoon left] was decided on December 11, 2007.[348] (See 529 F. Supp. 2d 1151 (E.D. CA 2007)) U.S. District Judge Anthony W. Ishii held, inter alia: “(3) Summary adjudication is hereby GRANTED in favor of Defendants as to Plaintiffs’ claims for preemption under EPCA and for preemption under United States foreign policy.”; and “(5) The court declares that, should California’s AB 1493 Regulations be granted waiver of preemption by EPA pursuant to section 209 of the Clean Air Act, enforcement of those regulations by California or by any other state adopting the AB 1493 Regulations pursuant to section 177 of the Clean Air Act shall not be prevented by the doctrine of conflict preemption or by express preemption under the terms of 48 U.S.C. § 32919.” A Warming Law post on December 13th stated: “Some organizations have suggested humorously that the industry should fire or "bench" their lawyers after this latest legal defeat, and start putting their engineers to work on making cleaner cars.”[349]
In November 2005, three Vermont auto dealerships, DaimlerChrysler, General Motors, and two trade associations sued the state of Vermont shortly after it became the first of several states to adopt the California GHG emission standards in 13 C.C.R. § 1961.1. Petitioners in this case also claimed that the GHG emissions standard was not an emissions standard but a fuel economy standard, and therefore was preempted by federal law. The case is Green Mountain Chrysler v. Dalmasse, No. 2:05-cv-302 (D.Vt. Nov. 30, 2006). Opening arguments were held on April 10, 2007.[350] See infra Other State Actions.
On July 31, 2006, California Governor Arnold Schwarzenegger[351] and British Prime Minister Tony Blair “sidestep[ped] the Bush administration”[352] and signed an agreement to work together to curb GHG emissions, promote cleaner fuels and work together on research to fight global warming.[353]
On October 18, 2006, Governor Schwarzenegger signed Executive 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.[354]
In April 2007 a delegation of California officials met in London for 2 days with the UK’s officials to work on the development of a low-carbon standard for transportation fuels, as required by EO S-01-07, infra, which Governor Schwarzenegger signed in January 2007, and in accordance with the agreement between the California governor and Tony Blair, supra. The California Air Resources Board was required to implement the standard by the end of 2008.[355]
On September 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.[356]
The landmark Global Warming Solutions Act of 2006 (Assembly Bill No. 32, Chapter 488 (2006)), also authored by Fran Pavley and signed on August 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.[357] The law makes California the first state to place hard caps on GHG emissions from heavy industries.[358] The law defines greenhouse gases as: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride,[359] and requires the state Air Resources Board to adopt by January 1, 2008, a statewide greenhouse gas 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.[360]
On January 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.[361]
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.”[362]
Another new California law, Senate Bill No. 107, Chapter 464, signed September 26, 2006, requires investor-owned utilities to get at least 20 percent of their power from renewable sources by 2010.[363] The law expands the state’s existing Renewable Electricity Standard, adopted in 2002.[364] 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.[365] According to one source, as of Sept. 27, 2006, 22 states have adopted similar mandates for renewable energy.[366]
Yet another new California law, Senate Bill No. 1368, Chapter 598, signed on September 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.[367]
California v. General Motors[368]: 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, California v. General Motors, 06-05755, was filed on September 20, 2006, in U.S. District Court for the Northern District of California in Oakland, and is still pending as of May of 2007.[369]
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.[370]
In December 2006, Governor Schwarzenegger signed a non-binding 5-year Memorandum of Understanding with the Canadian province of Manitoba, agreeing to collaborate on low- and zero-emission vehicle technology and on other technologies to reduce GHG emissions. The agreement is similar to the one California and the UK signed in July 2006; see supra.[371] On May 4, 2007, Governor Schwarzenegger signed another Memorandum of Understanding with the premier of the Australian state of Victoria.[372] The two states agreed to collaborate in developing climate change policies and initiatives.[373] And on May 31, 2007, the premier of the Canadian province Ontario, Dalton McGuinty, signed a similar MOU to collaborate on clean energy technologies and policies, emissions trading programs, and energy efficient buildings and lighting.[374]
Low Carbon Fuel: In his January 2007 State of the State address, Governor Schwarzenegger promised to issue an Executive Order that will establish a Low Carbon Fuel Standard (LCFS) that will reduce by at least 10% the carbon content of all passenger fuels sold in California by the year 2020.[375] A “first-of-its-kind standard,” it will support the emissions targets of the Global Warming Solutions Act of 2006, discussed supra, and increase market demand for corn-based ethanol, biodiesel, and experimental fuels made from plant waste or non-food agricultural crops.[376] Executive Order S-01-07, related to AB 32 from September 2006, supra, was in fact signed on January 18, 2007.[377] On June 4, 2007, the California Senate passed S.B. 210, which would, if enacted, codify the low-carbon fuel standard, thus preventing subsequent administrations from weakening the standard; it would also require CARB to “adopt, implement, and enforce” the standard “on or before January 1, 2010”.[378]
How Many Legislators Does It Take To Change a Light Bulb: A bill, AB 722, was introduced in the California Assembly on February 22, 2007 by Lloyd Levine. Its purpose is to phase out incandescent light bulbs in favor of more energy-efficient types, such as compact fluorescents or LEDs, by 2012.[379]
“According to the Rocky Mountain Institute (RMI), a nonprofit organization that focuses on energy policy, replacing a 75-watt incandescent light bulb with a 20-watt compact fluorescent would result in the same amount of light but would save 1,300 pounds of carbon dioxide and save customers $55 over the life of the bulb….”[380]
On February 23, 2007, Assembly Member Jared Huffman introduced AB 1109, the California Lighting Efficiency and Toxics Reduction Act, which would make lighting manufacturers 1) develop systems for recycling light bulbs, as incandescent bulbs contain lead and energy-efficient fluorescent bulbs contain mercury, and 2) reduce the toxic materials in light bulbs; it would also establish programs and incentives to encourage the sale of general purpose lights that meet or exceed certain standards: 25 lumens per watt by 2013, and 60 lumens per watt by 2018.[381]
Land Use Law Suits: In June 2007, seven major California law suits were pending that challenged the legitimacy of environmental impact reports and permit approvals of land use and transportation projects that do not consider the effects of those projects on global warming. Most of the suits were filed by the Center for Biological Diversity.[382]
Governors’ Global Climate Summit: Finding Solutions Through Regional & Global Action: Governor Schwarzenegger hosted this Summit in Los Angeles on Nov. 18th & 19th, 2008, in an effort to create a framework for United Nations’ negotiators to use in Poland at COP-14 in December 2008. Barack Obama addressed attendees by video message, promising that once he took office, “the United States will once again engage vigorously in these negotiations, and help lead the world toward a new era of global cooperation on climate change.”[383] At the conclusion of the summit, 26 governors and regional leaders from 6 countries[384] agreed to work together to cut greenhouse gas emissions, clearly demonstrating that leaders were ready to work together in December.
4.4. Other State, County and City Actions to Reduce GHG Emissions
California is not alone.[385] Terry Tamminen, environmental adviser to Arnold Schwarzenegger, secretary of the California EPA, and senior cabinet adviser, has recently left the administration, “with Schwarzenegger's blessing,” to “Johnny Appleseed” California’s approach to climate change and “build a de facto national climate plan one state at a time.”[386]
C40 Large Cities Climate Summit 2007: See infra; this international initiative by large cities is under The Rest of the World.
California’s GHG emissions regulations: According to the National Academy of Sciences in April 2006, seven states, Massachusetts, New York, New Jersey, Connecticut, Rhode Island, Vermont, and Maine, have adopted the California GHG emissions standards from mobile sources.[387] See supra. In addition, Washington State recently adopted the standard contingent on Oregon’s adopting it also, which Oregon did in June 2006.[388] An article in March 2007 states that a dozen states have now adopted the California standard.[389] By April 2007, Governor Schwarzenegger’s Web site stated that eleven other states had adopted the standards with two more in the process of doing so, for a total, so far, of fourteen states, which account for about one third of all U.S. car sales.[390] By May 23, 2007, the Seattle Times reported, in an article about the EPA hearing on the California standards, see infra, that six states (Arizona, Colorado, Illinois, New Hampshire, New Mexico, and North Carolina) are “actively considering” adopting them in addition to the twelve that have already done so, making a potential total of eighteen.[391] In December 2007, New Mexico in fact formally approved GHG reduction regulations modeled after those of California, which still has not received its waiver from EPA.[392]
On June 7, 2007, Representative Henry Waxman (D-CA) introduced the Carbon-Neutral Government Act of 2007, H.R. 2635, which would require the federal government to use vehicles that comply with California’s GHG vehicle emissions standards; federal agencies would be required to cap their GHG emissions in 2011 and to reduce them by 2% a year through 2050.[393] In introducing the bill, Mr. Waxman said that while American corporations have “begun to step up, the government has stepped back.”[394] The bill was approved by the House Oversight and Government Reform Committee on June 12th.
Center for Biological Diversity v. National Highway Traffic Safety Administration, No. 06-71891: Ten states (California, Connecticut, Maine, Massachusetts, Minnesota, New Jersey, New York, Oregon, Rhode Island, Vermont), the District of Columbia, New York City, and four public interest groups (the Sierra Club, the Natural Resources Defense Council, Public Citizen, and Environmental Defense) joined the Center for Biological Diversity in its April 2006 suit claiming that the Bush administration violated the Environmental Policy and Conservation Act and the National Environmental Policy Act when in April 2006 it set low (well under 25 mpg) fuel economy standards for SUVs and pickup trucks for model years 2008-11 without taking into consideration GHG emissions and global warming.[395] Kassie R. Siegel, staff attorney and Director of the Climate, Air, and Energy Program at the Center stated that: “These levels leave the United States with the lowest fuel-economy standards of any developed nation in the world, and lower even than some developing nations like China.”[396] The case was heard by a 3-judge panel of the Ninth Circuit Court of Appeals on May 14, 2007; a decision should come soon.[397]
Chicago Climate Exchange: CCX is “North America’s only, and the world’s first, greenhouse gas (GHG) emission registry, reduction and trading system for all six greenhouse gases (GHGs). CCX is a self-regulatory, rules-based exchange designed and governed by CCX Members.” In January 2007, Sacramento County officials sought approval to join CCX, enabling it to trade GHG emissions allowances from county-owned facilities and vehicles. If permitted to join, it will be the first California county member, and the second in the country, after King County, Washington.[398]
Australian utility AGL Energy Ltd. joined the Chicago Climate Exchange on March 19, 2007; it is the first utility located outside North America to do so.[399]
The Climate Registry: Thirty-one states, representing over 70% of the U.S. population, plus one Native American tribe and two Canadian provinces, have, as charter members, pledged to “measure, track, verify and publicly report GHG emissions accurately, transparently and consistently across borders and industry sectors” in order to develop “robust programs to reduce GHG emissions.”[400] Unsurprisingly, Texas has not joined, but California has.[401] Most importantly, the data gathered will be verified by a third party.[402] By November 2007 the membership had grown to 39 states, D.C., 3 Canadian provinces, 3 tribes, and 1 Mexican state.
On October 29, 2007, the group issued a draft General Reporting Protocol that, if approved, will set a common standard for members to measure, track, verify, and report their GHG emissions.[403] On January 15, 2008, “52 companies and local governments including Shell Oil Co. and Duke Energy Corp. have agreed to measure and publicly report their greenhouse gas emissions” under the General Reporting Protocol; the Registry’s membership has grown to include “39 U.S. states including California, Florida, and New York; five Canadian provinces; two Mexican states; the District of Columbia; and three Native American tribes.”[404]
Coke Oven Environmental Task Force v. Environmental Protection Agency; since September 13, 2006, the case is known as New York v. EPA, No. 06-1322. The case was filed in the U.S. Court of Appeals for the D.C. Circuit, 2006 U.S. App. LEXIS 23499, on September 13, 2006 by several states, cities, industry and environmental groups challenging EPA’s failure to regulate carbon dioxide and other GHG emissions from new power plants under its new source performance standards. The case was held in abeyance pending the Supreme Court’s decision in Massachusetts v. EPA in April, 2007, as the issues in the cases are very similar. Parties were requested to file motions to govern further proceedings within 30 days of that April decision. On May 2nd, petitioners filed a Motion Governing Further Proceedings, requesting that the court reverse and vacate EPA’s conclusion that it has no authority under the Clean Air Act to regulate GHG emissions from power plants and to remand the matter to EPA for proceedings consistent with Mass. v. EPA.[405]
Connecticut: On Monday, May 5, 2008, the Connecticut legislature unanimously approved a bill, H.B. 5600, requiring “drastic reduction” of GHG emissions, which the governor was expected to sign into law. The bill “would require Connecticut to cut emissions, mainly from the burning of fossil fuels, to 10 percent below 1990 levels by 2020 and 80 percent below 2001 levels by 2050.”[406]
Connecticut, et al., v. American Electric Power Co., Inc., et al.: In a case similar to California v. General Motors, discussed supra, Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin, and the City of New York, sued American Electric Power Co., Xcel Energy Inc., Cinergy Corp., Southern Co., and the Tennessee Valley Authority, alleging that utility power plants create a public nuisance with their carbon dioxide emissions by reducing water supplies, raising sea levels and exposing people to smog that can cause asthma.[407] The case was dismissed in September, 2005, on the basis that it presented “non-justiciable political questions that are consigned to the political branches, not the Judiciary.”[408] The case, 05-5104cv, has been on appeal to the U.S. Court of Appeals for the Second Circuit since December 2005; oral arguments were heard in spring of 2006, but as of May 2007 there has been no decision.[409]
Friends of the Earth, Inc., et al. v. Watson and Merrill: In 2002, Friends of the Earth, Greenpeace, Boulder, Colorado, and the cities of Oakland, Arcata and Santa Monica, California, sued two federal agencies—the Export Import Bank and the Overseas Private Investment Corporation—alleging that they have provided financing and insurance for fossil fuel projects overseas for a period of ten years, without assessing their contribution to global warming or their impact on the U.S. environment, as required by the National Environmental Policy Act. On August 23, 2005, the court ruled, inter alia, that plaintiffs have standing to sue, and denied defendants’ motion for summary judgment, thus permitting the case to proceed.[410] On April 14, 2006, the merits of the case were heard in U.S. District Court for the Northern District of California, but as of February 2007, there has not yet been a decision.[411]
Green Mountain Chrysler Plymouth Dodge Jeep v. Dalmasse: As noted above, Vermont adopted California’s GHG emissions regulations, which have not yet received EPA approval. Automobile manufacturers sued, claiming, e.g., that the state's greenhouse gas regulations are either preempted by or violate the CAA and the Energy Policy and Conservation Act. [412] Vermont, joined by New York State and five environmental groups, argued that the manufacturers' suits for declaratory and injunctive relief are not yet ripe for judicial action, as the EPA has yet to grant California’s waiver of federal preemption for its GHG regulations, in 13 C.C.R. § 1961.1. But the court refused to grant the state’s motion to dismiss, finding that the manufacturers’ challenges to the regulations are neither abstract nor hypothetical. The manufacturers have alleged current injury that is not contingent on future events, as well as the threat of future injury should the EPA grant the waiver from preemption, which it may not do for months or even years. Thus the preemption and constitutional challenges to Vermont's greenhouse gas regulations are as concrete and fit for decision today as they would be if and when the regulations are enforced. The fundamental legal issue in the case is: are states preempted from regulating GHG emissions from cars under the CAA because to do so requires alteration of fuel economy standards, which is not permitted under the EPCA?[413] The Supreme Court arguably resolved that issue in Mass. v. EPA, 549 U.S. __, at 29, where it stated: “But that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public’s ‘health’ and ‘welfare,’ … a statutory obligation wholly independent of DOT’s mandate to promote energy efficiency. … The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.”[414] On April 3rd, the plaintiffs filed a memorandum regarding Massachusetts v. EPA concluding that the decision did not resolve “the relationship between federal and state power in this area, and in particular the lines of demarcation between the types of action forbidden to the States by EPCA, notwithstanding their authority under the Clean Air Act.”[415] On April 4th, Judge William K. Sessions III of the U.S. District Court of Vermont had a hearing on the state’s motion to dismiss, which he denied. The trial began April 10th and is expected to last for three weeks.
On September 13, 2007, Judge Sessions ruled against the auto industry in Green Mountain Chrysler Plymouth Dodge v. Crombie, 2:05-cv-302 & 2:05-cv-304, 508 F. Supp. 2d 295 (D. Vt. 2007).[416] It was widely acknowledged as a huge success by Environmental Defense, NRDC, the Sierra Club, other environmental groups, the New York Times and other major papers, but the auto industry appealed to the Second Circuit Court of Appeals (Nos. 07-4342,-4360). [417] Opening briefs for the auto industry were filed on March 14, 2008[418]; the state’s papers are not due until June 12th.
Joint Action Framework on Climate Change: On December 1, 2006, leaders of public utility commissions in California, Oregon, Washington, and New Mexico signed an agreement to share policies and technologies to reduce GHG and promote energy efficiency.[419] The agreement was inspired by the West Coast Governors Global Warming Initiative discussed supra.[420]
Kansas: On October 18, 2007, the Kansas Department of Health and Environment became the first such agency in the U.S. to deny a request for a permit to build a coal-fired power plant that would have emitted 11 million tons of carbon dioxide a year on the grounds that it would be detrimental to health and the environment.[421]
Lincoln Dodge, Inc. v. Sullivan, No. 1:06-CV-0070 (D.R.I. filed Feb. 13, 2006): In yet another case, auto dealers and manufacturers challenge Rhode Island’s adoption of California’s GHG emissions regulations.
Massachusetts v. EPA: In July, 2002, a coalition of 11 states led by Massachusetts’ Attorney General Reilly wrote a letter to President Bush requesting that the federal government regulate GHGs. When that failed, in June, 2003, AG Reilly filed a lawsuit on behalf of Massachusetts, Connecticut and Maine, arguing that EPA had failed to regulate CO2 as the agency was required to do under the Clean Air Act. In August, 2003, the EPA reversed its earlier position, denying that CO2 was an air pollutant subject to regulation under the CAA[422] and denying its legal authority to regulate GHG emissions. The EPA also denied a four-year old petition for rulemaking[423] that requested that it regulate GHG emissions from new motor vehicles, as it was required to do under Section 202 of the Clean Air Act.[424] In October, 2003, 12 states, 3 cities, and 10 environmental groups filed suit in the Court of Appeals for the D.C. Circuit challenging the EPA’s position.[425] The case was consolidated as Massachusetts, et al. v. EPA, et al., the EPA being joined by 10 states and several automotive industry associations. A three-judge panel of the D.C. Circuit issued three opinions, only one of which favored the petitioner states. On August 29, 2005, AG Reilly requested that the full court rehear the case; that request was denied. On March 2, 2006, AG Reilly filed a petition of certiorari to the United States Supreme Court, which was granted on June 26, 2006. Oral argument in Massachusetts, et al. v. EPA, No. 05-1120, was held on November 29, 2006, and a decision was expected by spring of 2007.[426] The threshold issue at the Supreme Court argument was whether the petitioner states have the right to sue at all. The Bush administration argued that the alleged damage suffered is too generalized to be addressed by a court.[427] However, even if the case fails, after the mid-term elections put the Democrats in control of Congress, legislative controls on carbon emissions have become more conceivable.[428]
The case came down on April 2, 2007, in a 5-4 decision in favor of petitioners. The opinion was written by Justice Stevens; two dissents, written by Chief Justice Roberts and Justice Scalia, were joined by the other conservative justices.[429] The majority held that petitioners had standing to sue; that greenhouse gases were air pollutants within the Clean Air Act’s broad definition, and that therefore the EPA has the statutory authority to regulate their emission from new motor vehicles; and that as the agency’s rationale for not regulating was not reasonably related to the statute, it was arbitrary, capricious or otherwise not in accordance with law. The court recommended that if the agency cannot show that CO2 is not implicated in global warming, the agency should regulate it. The Chief Justice’s dissent focused on standing, which he would have denied; Justice Scalia thought the court should not interfere with the discretion of an executive agency.[430] The decision may push Democrats in Congress to pass new legislation to curb or cap GHG emissions in the U.S., but it is now considered inevitable that U.S. emissions will be regulated one way or the other, either by Congress or by the EPA.[431] Although Mr. Bush stated on April 3rd that he considered the measures he has taken to address global warming to be sufficient, the opinion was welcomed by Congress and the states, 40 of which have filed at least 300 bills addressing GHGs and climate change.[432] However, one commentator, from his long experience dealing with the Clean Air Act, has no faith that EPA will do anything significant anytime soon, at least not until new and improved legislation is enacted, if then. He distrusts Congress’s ability to make the tough choices that are necessary to deal with the problem.[433] Governor Schwarzenegger is confident that the EPA will now grant California’s request for a Clean Air Act §209(a) waiver of federal preemption, entitling California to set its own emissions standards for motor vehicles.[434] See supra, discussion of Cal. Code Regs. Tit. 13 § 1961.1, entitled Greenhouse Gas Exhaust Emission Standards and Test Procedures.
EPA Administrator Stephen Johnson was questioned on April 24th at a hearing before the Senate Environment and Public Works Committee about when the agency would begin to regulate CO2 emissions now that it has the authority, but he has so far resisted providing a timetable. Senator Boxer (D-CA), the chairperson of the committee, sees “no excuse for delay.” Senator Inhofe (R-OK) and other Republican senators encouraged him to resist the pressure.[435] The hearing was entitled “The Implications of the Supreme Court’s Decision Regarding EPA’s Authorities with Respect to Greenhouse Gases under the Clean Air Act.” Also testifying were Carol M. Browner and William K. Reilly, former EPA administrators; David Doniger, former director of climate change policy at the EPA and currently policy director of NRDC’s climate center; Peter Glaser; and Ann R. Klee, former General Counsel of the EPA.[436] Administrator Johnson did say that he had signed a notice of public hearing and request for comments that day about California’s proposed GHG standards; it appeared in the Federal Register on April 30, 2007.[437] Comments on the standards were accepted until June 15th ; a public hearing, entitled "Examining the Case for the California Waiver" was held on May 22 in Washington, D.C., also before the Environment & Public Works Committee.[438] Testifying were the Honorable Edmund G. Brown Jr., Attorney General of the
State of California[439]; Professor Jonathan H. Adler, Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law; and the Honorable Alexander B. Grannis, Commissioner of the New York State Department of Environmental Conservation. The EPA had its own public hearing on the waiver on the same day at its Potomac Yard Conference Center, 2777 Crystal Drive, Room S-1204, Arlington, Virginia.[440] Another hearing was held on May 30th in Sacramento, at which more than 50 waiver proponents spoke; auto makers predictably reiterated that the California emissions limits would have no impact on global warming.[441]
On April 25, 2007, Governor Schwarzenegger spoke to EPA Administrator Johnson by telephone and wrote a letter to the agency, notifying it of the state’s intent to sue if the agency failed to act within 6 months of the decision in Mass. v. EPA, on California’s December 21, 2005, request for a waiver of preemption to enable it, and the eleven other states that have so far adopted the standards, to regulate GHG emissions from new vehicles. If the EPA actually took until the end of October 2007, the waiver would have been pending for 22 months.[442] In a response to the governor’s letter, EPA spokeswoman Jennifer Wood said that she anticipated a decision would come at the end of the public comment period that ends June 15th.[443] In an op-ed piece in the Washington Post on May 21, 2007, entitled Lead or Step Aside, EPA: States Can't Wait on Global Warming, Governor Schwarzenegger and Jodi Rell, Republican governor of Connecticut, expressed their frustration with the administration and said that federal inaction on global warming “borders on malfeasance.”[444]
On June 1, 2007, Representative Rick Boucher, Democrat of Virginia (representing a coal-producing part of the state) and chairman of the House Energy and Commerce Sub-Committee on Energy and Air Quality, and Michigan Representative John Dingell, a Democratic ally of automobile manufacturers, drafted a provision to a new energy bill that would prohibit the EPA from issuing California’s waiver of federal preemption at all, and would limit the EPA’s power to set federal climate change rules, effectively overruling at least part of Mass. v. EPA, and giving the NHTSA the exclusive authority to regulate vehicle emissions.[445] Speaker Nancy Pelosi (D-CA) stated in response: “Any proposal that affects California’s landmark efforts to reduce greenhouse gas emissions or eliminate the EPA’s authority to regulate greenhouse gas emissions will not have my support.”[446] A hearing was held on June 7th before the Subcommittee on Energy and Air Quality on the Discussion Draft Concerning Alternative Fuels, Infrastructure, and Vehicles.[447] Included in the record was a letter from the Attorneys General of 14 states and the Corporation Counsel of New York City, dated June 6, 2007, strongly objecting to the elimination of California’s forty-year-old Clean Air Act right to enact more stringent emissions limits than the federal government, and pointing out that most of the existing technological innovations to reduce automobile emissions have come about because of California’s standards.[448] Governors from eight of the interested states, including California and New York, wrote a letter to Mr. Boucher on June 7th, likewise objecting at his efforts to preempt their efforts.[449] Also on June 7th, Representative Dingell responded to the Attorneys General and NYC’s Corporation Counsel with his own letter, referring to “a number of factual inaccuracies” in theirs.[450] Dingell says that the discussion draft would not change California’s power to regulate any vehicle emissions except GHGs, which he confuses with fuel efficiency. (“As a result of the Supreme Court’s interpretation of the Clean Air Act [in Mass. v. EPA], we now have two Federal regulatory schemes assigning two different Federal agencies authority using two different standards to regulate essentially the same thing–fuel efficiency and greenhouse gas emissions.”) He states that: “For more than 32 years, CAFE has the distinction of being the only effective constraint on greenhouse gas emissions throughout the entire economy.” Those old enough to remember know that the CAFE standards had nothing to do with GHG emissions in 1975, or since; they were enacted to increase fuel efficiency after the Arab oil embargo of the early 1970s and (supposedly) to reduce America’s dependence on foreign oil. Scientists were concerned about climate change then, but legislators were not. To this reader, there is a great deal of difference between regulating what comes out of a vehicle’s tail pipe and the amount of fuel it uses to travel a given number of miles. Obviously, a vehicle that emits few pollutants or GHGs and that uses less gas to get from point A to point B is better for the environment than a low-emitting vehicle that uses a lot of fuel, or the other way around. But the issue of which agency is regulating what is perfectly clear.
On June 8th, 2007, EPA Administrator Stephen Johnson announced at a hearing before the Select Committee on Energy Independence and Global Warming entitled Massachusetts v. U.S. EPA: Implications of the Supreme Court Verdict that he would neither decide whether to regulate GHG emissions from vehicles, nor make a decision on California’s waiver of federal preemption until late in 2008.[451] When the chairman of the committee, Representative Markey, encouraged him to act more expeditiously, Johnson defended his position.[452] Washington Representative Inslee called Johnson’s response “grossly unsatisfactory,” but California Attorney General Jerry Brown claimed not to be surprised by Johnson’s “obfuscation and dissembling,” and was apparently resigned to a law suit, as promised by Governor Schwarzenegger on April 25, 2007, in his letter providing 180-day notice of intent to sue under the CAA and APA.[453] See supra. Governor Schwarzenegger responded to Johnson’s testimony by letter dated June 13th. He referred to his April 25th letter and said that a law suit “now appears to be inevitable.”[454] As a result of the political pressure from state officials, Johnson reversed his earlier position and promised in June 2007 to make a decision by the end of the year.[455]
Representative Waxman (D-CA), head of the House Oversight and Government Reform Committee, claimed that a DOT official made phone calls urging members of Congress to submit negative comments to the EPA to help block California’s GHG emission rules. (The comment period ended June 15, 2007, see supra.) Acting DOT General Counsel Rosalind Knapp denied that such lobbying violates anti-lobbying rules regarding federal employees as they do not apply to contacts between executive branch officials and members of Congress.[456]
By the time the comment period ended, the EPA had received 60,000 comments on California’s global-warming rules. Legislation has been introduced into Congress to force the EPA to act on the state’s waiver request.[457] On July 12, 2007, Senators Boxer (D-CA) and Nelson (D-FL) introduced S. 1785, which would require the EPA to make a decision on California’s GHG emission rules within 30 days of its enactment, but would not force the agency to grant the state’s request for a waiver of federal preemption.[458]
In August of 2007, the Congressional Research Service released a report for Congress entitled: California’s Waiver Request to Control Greenhouse Gases Under the Clean Air Act; the report concluded that California has a strong case that it has met the conditions for approval of its waiver request.[459]
The EPA, according to Paul Argyropoulos, senior policy adviser in the EPA's Office of Transportation and Air Quality, is formulating new regulations on GHG emissions from mobile sources that will parallel the California rules, as yet (as of mid-October, 2007) unapproved. The EPA rules will allegedly be proposed before the end of 2007, but the amount of reduction is still undecided.[460] However, on November 8, 2007, California filed the afore-promised lawsuit (California v. U.S. Environmental Protection Agency) in U.S. District Court for the District of Columbia, accusing the EPA of unreasonably delaying its decision on its Clean Air Act waiver, which was requested on December 23, 2005.[461] The 14 states that have adopted California’s GHG emissions regulations from mobile sources filed motions to intervene in the same court.[462]
By December 2007, 16 other states had adopted California’s emissions regulations, but nevertheless, the EPA declined (for the first time ever) to grant California’s request for a waiver of federal preemption under the CAA. “California Attorney General Jerry Brown Jr. blasted the EPA’s actions, saying ‘It is completely absurd to assert that California does not have a compelling need to fight global warming by curbing greenhouse gas emissions from cars. There is absolutely no legal justification for the Bush administration to deny this request—Governor Schwarzenegger and I are preparing to sue at the earliest possible moment.’”[463] In his 12/19/2007 denial, Johnson rescinded his promise to issue proposed GHG regulations before the end of 2007 as they are not necessary after new energy legislation was enacted raising CAFE standards to 35 mpg by 2020. On 12/20/2007, NRDC filed a FOIA request for documents relating to the waiver denial, and Rep. Henry Waxman (D-CA), chair of the House Oversight and Government Reform Committee, opened an investigation and asked Johnson to provide the committee with relevant documents.[464] The EPA missed a January, 2008, deadline for submission of those documents to the Committee, and on January 15th Waxman announced that he planned to depose seven key EPA officials.[465] Also on Dec. 20th, Senator Barbara Boxer, chair of the Senate Committee on Environment and Public Works Committee, requested documents from the EPA on the waiver by January 7th, and in letters sent to her January 4 & January 11, 2008, the EPA claimed to be striving to collect the documents and to comply with the request but had not yet produced them. On January 10th, Johnson did not appear at a field hearing about the waiver denial, and neither did any other EPA official.[466] On January 11th, Senator Boxer stated:
“The Administrator’s continuing refusal to cooperate with the Committee’s oversight of the EPA is absolutely unacceptable. What started off as foot-dragging is looking suspiciously like a cover-up. What is Stephen Johnson trying to hide? The Administrator will be appearing before the Committee on January 24. If all of the documents are not forthcoming before that hearing, it will further demonstrate his contempt for Congress and the American people.”[467]
In a January 18, 2008, letter to Senator Boxer’s committee, the EPA “invoked attorney-client privilege and a desire to protect agency staff confidentiality as reasons for redacting the documents requested by the committee.” For example, “a committee aide said that … 16 pages of a 43-page EPA PowerPoint presentation on the decision were left blank.” The EPA letter suggested that the agency will publish a formal decision document on California’s waiver request in the Federal Register that will include its rational for the denial[468]; it should appear by the end of February, 2008, and until it is published, the waiver is not technically denied.[469] The parts of the PowerPoint that were revealed showed that EPA staffers believed that the waiver application should have been approved, and that if it was not, that the agency would probably lose in a lawsuit to overturn the decision, which has already been filed, see infra.[470]
On Jan. 2, 2008, California and 15 other states sued to overturn the denial in U.S. Court of Appeals for the Ninth Circuit, claiming that the EPA’s decision “is flawed and reverses decades of agency practice, according to state Attorney General Jerry Brown.”[471] The case is California v. EPA, 9th Cir., No. 08-70011.[472]
A full committee hearing of the Senate Environment and Public Works Committee, entitled "Oversight of EPA’s Decision to Deny the California Waiver," was held on January 24, 2008; EPA Administrator Johnson testified.[473] Chairman Boxer’s opening remarks included the following: “The purpose of today's hearing is to continue the Environment and Public Works Committee's investigation into the unconscionable decision by the EPA Administrator to deny California and the other states the opportunity to cut global warming pollution from motor vehicles. … It's not just California that suffers. Fourteen other states have adopted California's standards, or are in the process of adopting them. Another four are moving toward adopting the California standards. All together, those 19 states represent more than 152,000,000 Americans - a majority of the U.S. population.”[474] Johnson said at the hearing that the EPA will comply with Mass v. EPA and issue a rulemaking on GHG emissions from mobile sources, but did not say when, and defended his decision.[475] He had stated at the end of December that a rulemaking might not be necessary after the energy bill (Pub. L. No. 110-140) was enacted on the 19th.[476] The attorneys general from 18 states threatened further legal action on January 23d if the EPA did not issue the rulemaking by February 27, 2008 as required by Mass. v. EPA, and as the agency promised to do by the end of 2007.[477] Senator Boxer, on January 24, 2008, introduced S. 2555, the “Reducing Global Warming Pollution from Vehicles Act of 2008,” to reverse Johnson’s decision by amending §209 of the Clean Air Act.[478] The bill has 17 original bipartisan cosponsors, all from states that either have already adopted the California standard or are considering doing so, and has been referred to the Environment and Public Works Committee.[479]
On February 27, 2008, the EPA refused to provide a timetable for compliance with Mass. v. EPA,[480] but on the 29th it issued a 48-page document entitled California State Motor Vehicle Pollution Control Standards; Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles explaining its rationale for denying the waiver request.[481]
On March 6, 2008, another bill was introduced in the House to overturn the EPA’s waiver decision. H.R. 5560, entitled the ‘Right to Clean Vehicles Act,’ which would “permit California and other States to effectively control greenhouse gas emissions from motor vehicles,” had 60 supporters.[482]
At a March 13, 2008, hearing before the House Select Committee on Energy Independence and Global Warming, Administrator Johnson would not commit to issuing a CAA finding of endangerment from CO2 emissions, because it would trigger burdensome requirements on emitting facilities. On the same day, Representative Henry Waxman issued a subpoena to compel the EPA to issue unredacted documents related to its denial of California’s waiver request (see supra).[483]
Midwestern Greenhouse Gas Reduction Accord: “Ten Midwestern leaders – Governor Jim Doyle of Wisconsin, Governor Tim Pawlenty of Minnesota, Governor Rod Blagojevich of Illinois, Governor Mitch Daniels of Indiana, Governor Chester J. Culver of Iowa, Governor Jennifer Granholm of Michigan, Governor Kathleen Sebelius of Kansas, Governor Ted Strickland of Ohio, Governor M. Michael Rounds of South Dakota, and Premier Gary Doer of Manitoba – today [Nov. 15, 2007] signed the Midwestern Regional Greenhouse Gas Reduction Accord. Indiana, Ohio, and South Dakota are signing the agreement as observers to participate in the formation of the regional cap-and-trade system.”[484]
The New England Governors/Eastern Canadian Premiers Climate Change Action Plan was signed in August of 2001. Its goals were to reduce regional GHG emissions to 1990 emissions by 2010; reduce them to at least 10% below 1990 levels by 2020, with procedures to adjust the goals if necessary; and reduce them to levels which will eliminate any dangerous threat to the climate.[485]
New York City: Speaking on Earth Day, April 22, 2007, at the American Museum of Natural History, Mayor Michael Bloomberg announced a plan to make NYC "the first environmentally sustainable 21st-century city" in the country and, in the prerecorded words of Tony Blair, “a global leader in halting climate change.” Probably the most controversial proposal in “plaNYC” is “congestion pricing,” charging passenger cars $8.00 per day and commercial trucks $21.00 per day for driving into Manhattan south of 86th Street on weekdays; indigenous Manhattan cars would be charged $4.00. Proceeds from the system would go to create a new agency, the Sustainable Mobility and Regional Transportation Authority, which would finance transportation projects. The proposals required approval and support from then-Governor Eliot Spitzer, and the federal government.[486] On May 22, 2007, the mayor announced that the City’s 13,000-vehicle taxi fleet will go hybrid by 2012; the new taxis will also increase their gas mileage from the current 14 miles per gallon to about 30 mpg.[487] Governor Spitzer had many innovative environmental ideas but by March of 2008 he was out of office[488]; his successor, David Paterson, also favors congestion pricing.[489] Nevertheless, on April 7, 2008, the plan, strongly opposed by politicians from the outer boroughs, was defeated in a closed conference room in the Capitol. The city will loose “$354 million worth of federal money that would have financed the system for collecting the fee and helped to pay for new bus routes and other traffic mitigation measures.”[490]
New York State: Former Governor Eliot Spitzer announced a plan (“15 by 15”) to cut the state’s electrical usage by 15% from estimated 2015 levels and to lower electrical costs at the same time by increasing the state’s ability to generate clean energy.[491]
RGGI: The Regional Greenhouse Gas Initiative (RGGI) is a regional move by northeastern states to reduce GHG emissions by use of a cap-and-trade program for power plant emissions.[492] New York Governor George Pataki, a Republican, originated the RGGI proposal in 2003. The seven member states would begin January 1, 2009, to stabilize CO2 emissions by 2015 and reduce emissions by 10 percent from 2009 levels between 2015 and 2019.[493]
On Monday, October 16, 2006, California Governor Arnold Schwarzenegger and outgoing N.Y. Governor George Pataki announced that California would join with RGGI to help California power plants comply with the Global Warming Solutions Act of 2006 discussed above. Governor Schwarzenegger said he would sign an executive order on October 17th to that effect.[494]
On January 18, 2007, newly elected Massachusetts governor Deval Patrick rejoined RGGI, after his predecessor opted out. Rather than give away CO2 emissions permits to power plants, the governor decided to sell them at a regional auction, thus raising money for energy conservation projects.[495]
In December 2006, the NYS Department of Environmental Conservation released draft regulations to implement RGGI, which are “strongly opposed by the Independent Power Producers of New York,” particularly because the state would auction its emissions allowances instead of giving them away.[496]
By May 2007, 10 states had joined RGGI.[497] On October 29, 2007, a report was prepared for the group entitled Auction Design for Selling CO2 Emission Allowances Under the Regional Greenhouse Gas Initiative, which contains recommendations on how to proceed with an auction of emissions credits.[498] However, at a January 23, 2008, seminar, the possibility was raised that only 3 or 4 of RGGI’s 10 members will be ready for the first CO2 allowance auction in June of that year.[499] Perhaps for that reason, the date for the first auction was pushed forward to September 10, 2008; the second was held on December 17th.[500] One allowance, or one ton of CO2 emissions, will have an initial price of $1.86. The September auction was the first in the U.S. The 10 member states have agreed to stabilize power plant emissions from 2009-2014, and then reduce them by 2.5% for each of the following 4 years; compliance began January 1, 2009.[501] However, a study by the Environmental Integrity Project released on March 18, 2008, showed that 2007 had the largest single-year increase in power plant emissions (2.9%) since 1998; the biggest increases were in Texas, Georgia, Arizona, California, and Pennsylvania.[502] The report is entitled: Running Out Of Time: New U.S. EPA Power Plant Data Shows Greenhouse Gases Rising Steadily.[503]
New York State did not participate in RGGI’s September auction, but planned to participate in the second, due to a delay promulgating final regulations to implement the auction.[504]
The first RGGI auction was held on September 25th, 2008; 6 of the 10 member states participated.[505] The second was scheduled for December 17th. New York, despite then-governor Pataki having proposed RGGI in the first place (see supra), did not participate in the first auction,[506] as the regulations implementing RGGI were only finalized on Sept. 15th by the New York State Energy Research and Development Authority (NYSERDA).[507]
Southwest Climate Change Initiative: Arizona and New Mexico signed a Memorandum of Understanding on February 28, 2007, forming the Southwest Climate Change Initiative, agreeing to collaborate on ways to identify, evaluate and implement GHG emissions.[508]
State Action Plans: According to the EPA, “July 2006, 29 states and Puerto Rico have completed, or are working on, action plans that identify cost-effective options for reducing greenhouse gas emissions or enhancing greenhouse gas capture, or sequestration.” EPA’s Web page has links to State Action Plans, a State and Regional Climate Actions Table, and a State Action Plans Database.[509]
State Suits Against the Department of Energy: During the nearly six years of the current Bush administration, the DOE has not updated any appliance standards, and, in fact, attempted to weaken those for central air conditioners. That attempt was thwarted by a federal court in 2004 as a result of a lawsuit, New York v. Abraham, brought by NRDC, New York Attorney General Spitzer, the states of California, Connecticut, Maine, Massachusetts, Nevada, New Hampshire, New Jersey, Rhode Island, Vermont, the Public Utility Law Project, the Consumer Federation of America, the Texas Ratepayers' Organization to Save Energy, the Massachusetts Union of Public Housing Tenants, and the National Association of Regulatory Utility Commissioners as interveners.[510]
In September, 2005, Natural Resources Defense Counsel, 15 states led by New York Attorney General and Governor Elect Eliot Spitzer, and 2 low-income consumer organizations, the Massachusetts Union of Public Housing Tenants and the Texas Ratepayers’ Organization to Save Energy, filed suit against the DOE, charging that the agency was years late in updating energy efficiency standards for a wide range of products, as it is required to do by law.[511] The lawsuit was settled by consent decree filed in Southern District of New York in November 2006. The standards that the agency has agreed to establish according to a strict timetable will help combat global warming by cutting carbon dioxide emissions by as much as 103 million metric tons a year.[512] NRDC will monitor the agency to be sure the new standards “maximize savings and protect consumers and the environment.”[513]
U.S. Mayors Climate Protection Agreement: On February 16, 2005, the day the Kyoto Protocol became effective, Seattle, Washington’s mayor, Greg Nickels, announced that Seattle would take local action to reduce GHG emissions, and invited other mayors to join him. On March 30, 2005, 10 U.S. mayors sent a letter entitled Cities Working Together to Protect Our Air Quality, Health and Environment: A Call to Action to over 400 other U.S. mayors to encourage them to take steps to reduce global warming. On June 13, 2005, the 73rd annual meeting of the U.S. Conference of Mayors passed the Mayors Climate Protection Agreement unanimously.[514] As of November 15, 2006, 330 mayors representing over 53.3 million Americans have accepted the challenge. By January 10, 2007, the total was 358 mayors from 49 states[515] representing a total population of over 55 million citizens.[516] The cities’ aim is to reduce GHG by 7% below 1990 levels by 2012.
In January 2007, the Institute for Local Self-Reliance published a report entitled Lessons from the Pioneers: Tackling Global Warming at the Local Level, that surveyed the climate change activities in 10 “Kyoto cities” that belong to the U.S. Mayor’s Climate Protection Agreement, and concluded that the over 350 member cities will miss their goals, “unless complementary state and federal policies are put in place.”[517] Only Portland, Oregon, has come close to its goal.
In his March 2007 testimony before a joint congressional hearing, Al Gore stated that “[m]ore than 420 Mayors have now adopted Kyoto-style commitments in their cities and have urged strong federal action.”[518] See supra. But, although by January 2008 over 600 mayors had joined the organization, the Voice of San Diego reported that at least several California mayoral members had made very little progress toward achieving their goals.[519]
WCGGWI: The governors of California, Oregon, and Washington joined together in September, 2003, to form the West Coast Governors Global Warming Initiative.[520] In November, 2004, a report entitled Staff Recommendations to the Governors was published, prepared by the Executive Committee. The report noted that the three states’ combined carbon emissions ranked 7th as compared with other countries in the world (between Germany and the UK)[521] and suggested steps they could take to achieve a significant reduction in GHG emissions.
Western Climate Initiative: In February of 2007, governors of Arizona, California, New Mexico, Oregon and Washington joined together to meet the regional challenges of climate change; they have since been joined by British Columbia, Manitoba, and Utah; the states of Colorado, Kansas, Nevada, and Wyoming, the Canadian Provinces of Ontario, Quebec, and Saskatchewan, and the Mexican State of Sonora have joined as official observers.[522] The group wants to cut GHG emissions to 15% below 2005 levels by 2020.[523] In January, 2008, Montana joined just prior to a public meeting held on the 10th, about the design of a multi-sector regional greenhouse gas emissions cap-and-trade program to be implemented by regulatory and legislative authorities from participating states; a draft plan was expected in July and the final version by August 2008.[524]
Western Governors’ Association: In June 2006, the governors of 19 states[525] and 3 US-Flag Pacific Islands signed a policy resolution entitled Clean and Diversified Energy for the West, based on the work of their Clean and Diversified Energy Advisory Committee (CDEAC).[526] The resolution called on states and cities to reduce greenhouse gas emissions caused by human activities.[527] Governors Bill Richardson (NM), Arnold Schwarzenegger (CA), Dave Freudenthal (WY) and John Hoeven (ND) are leaders in the area of clean energy.
The Western Governors Association’s Annual Meeting was held June 10-12, 2007, in Deadwood, South Dakota, where they called for carbon sequestration technology to be put on a “fast track.” They also released a report entitled Clean Energy, a Strong Economy and a Healthy Environment: Western Governors’ Association Clean and Diversified Energy Initiative 2005-2007 Progress Report that requested more cooperation from the federal government to assist it in achieving its goal of adding 80,000 megawatts of clean energy by 2015.[528]
Western Regional Climate Action Initiative: Five western states’ governors (Arizona, California, New Mexico, Oregon, and Washington) signed a Memorandum of Understanding in February 2007, forming the Western Regional Climate Action Initiative.[529] They plan to establish a regional target for reducing GHG emissions by August 2007, a mechanism for meeting the target within 18 months, and a 5-state registry for tracking and managing emissions.[530] On April 20, 2007, British Columbia’s Premier Gordon Campbell signed an addendum joining the Initiative.[531]
Texas generates about 10% of the nation’s CO2 emissions, more than any other state, and has taken the position that government action, state or federal, is unnecessary.[532] Texas utility TXU Energy plans to build 11 new coal-fired power plants in the near future, which will double its emissions of CO2; it has the support of the state’s newly reelected Republican governor, Rick Perry, who is fast-tracking the plants’ permitting process via an executive order, RP49, issued in October, 2005.[533] Although the company claims it will invest in technology to limit carbon emissions, environmentalists are unconvinced. One group, Environmental Defense, has a Stop TXU Web page[534] and in October 2006, it sued the State Office of Administrative Hearings and the Texas Commission on Environmental Quality in Travis County state district court[535]; the TCEQ must give its permission before the plants can be built.
In February 2007 a judge ruled that the governor’s executive order was not binding on state hearing administrators. The hearing is expected to be delayed as a result.[536] The Sierra Club joined the suit in December 2006.[537]
In December 2006, five banks announced
that they would not contribute to TXU’s controversial $11 billion project,
according to Rainforest Action Network, as they viewed the
project as an economic risk.[538]
On February 26, 2007, in a deal endorsed by NRDC and Environmental Defense, TXU Energy’s board of directors approved a bid to sell the company to private equity firms in the largest leveraged buyout in history. The projected power plants will be cut to 3 from 11, which “will prevent 56 million tons of annual carbon emissions,” TXU said. William Reilly, chairman emeritus of WWF and former EPA Administrator, will join the TXU board.[539] The deal included “a commitment by the investors to return the carbon-dioxide emissions by TXU to 1990 levels by 2020 and support a $400 million energy efficiency program.” [540] At this point it is not known whether shareholders will seek a higher price or look for other purchasers.
In March 2007, TXU announced plans for 2 demonstration plants that will employ integrated gasification combined cycle (IGCC) technology (coal gasification plus CO2 capture). TXU’s Sustainable Energy Advisory Board, which has representatives from Environmental Defense and NRDC, will review the plans.[541]
The South Dakota Supreme Court upheld the state’s PUC decision to construct the Big Stone II coal-fired power plant, which would increase South Dakota’s carbon dioxide emissions by more than 33 percent, or about 4.7 million tons of CO2 each year, on the basis that it would not pose a serious threat to the environment. The court also pointed out that no emissions standards for GHGs have been enacted by any state or the federal government. At least one environmental group plans to contest the air quality permits, which have yet to be issued.[542]
2007 Index of Silicon Valley: Produced by Joint Venture: Silicon Valley Network, a Valley-based research organization, the 2007 Index of Silicon Valley[543] was released in January, 2007, and showed that the economy there was growing steadily, after a 5-year decline. The report stated that: “…investment in environmental technologies grew by 178% between Q1 2005 and Q3 2006. The bulk of this investment went into Energy Generation, Energy Storage, and Advanced Materials. Silicon Valley has emerged as one of the top regions in the country for clean technology investment. In 2005, the region accounted for 23% of the deals in California and 5% of the deals in the nation.”[544] The New York Times states: “In Silicon Valley, investment in clean technology—from alternative energy products, like solar panels and hybrid cars, to the use of nanotechnology to solve environmental problems—went from $34 million in the first quarter of 2006 to $290 million in the third quarter….”[545] Furthermore, the residents of the area are embracing renewable energy and alternative modes of transport (including walking and biking, using public transit, and avoiding commuting by working from home) to a greater extent than the rest of the country.[546] This is clearly contrary to the Bush administration’s view that adapting to climate change will damage the U.S. economy.
Alliance to Save Energy: In March 2007, ASE joined other industrialists (including ASE member Philips Lighting NA, the world’s largest manufacturer of light bulbs), the Natural Resources Defense Council, and energy specialists in the Lighting Efficiency Coalition, which has pledged to eliminate the incandescent light bulb by 2016, in favor of more efficient products.[547] In a news release ASE stated: “Once completed, this market transformation will save consumers and businesses approximately $18 billion annually on electricity bills and save an amount of lighting energy equivalent to the power generated by 30 nuclear power plants (at 1,000 MW) or up to 80 coal-burning power plants (at 500 MW). In addition, energy-efficient lighting would avoid power plant emissions of more than 158 million tons of carbon dioxide and 5,700 pounds of airborne mercury.” See also General Electric, infra this section; California; Australia.
Ceres: Investors and Environmentalists for Sustainable Prosperity[548]: Ceres, a 17-year-old network of investors, environmental organizations and public interest groups, works with companies to address sustainability issues such as global warming. Its mission is “integrating sustainability into capital markets for the health of the planet and its people.” Its latest report, Climate Risk Disclosure by the S&P 500, from January 2007, finds that “over half of the nation's largest companies are providing inadequate disclosure to investors, despite growing financial losses in multiple sectors from climate change.”[549]
2006 Corporate Governance and Climate Change: Making the Connection is a 300-page report issued by Ceres in 2006, which analyzes how 100 of the world’s largest companies are addressing the challenges from climate change.[550]
From Risk to Opportunity: How Insurers Can Proactively and Profitably Manage Climate Change is a Ceres report from August 2006.[551]
In February 2007 Ceres helped compile information on the 42 climate-change related shareholder resolutions that were filed this year with 36 companies. (In 2004 there were only 25.[552]) From that information it compiled a “Climate Watch List” of 10 U.S. corporations that shareholders say have not been responsive to climate change issues.[553]
Cleantech Group: New technology and related business models offering competitive returns for investors and customers while providing solutions to global challenges. The Cleantech Awards have been given to individuals, companies, and other organizations that have furthered the sector since 2003.
Climate Counts: Launched on June 19, 2007, nonprofit Climate Counts is a way to rate the climate performance of major consumer brands and their degree of commitment to reducing their impact on the environment. Gary Hirshberg, head of Stonyfield Farm, was primarily responsible for the project. The intent is for companies to become more active about reducing their effect on climate change, and for consumers to support with their business the companies that are.[554]
Climate Protection Campaign: Sonoma County aims to reduce emissions by 25% below 1990 levels by 2015, which it claims is the most ambitious target of any U.S. community.[555]
Climate RESOLVE (Responsible Environmental Steps, Opportunities to Lead by Voluntary Efforts), a Business Roundtable program, encourages member companies to take voluntary action to control GHG emissions and reduce the GHG intensity of the U.S. economy.[556]
Climate Savers Computing Initiative: An initiative of businesses, consumers, and conservation groups, led by Google and Intel, began in 2007 to reduce GHG emissions from operation of computers by 54 million tons per year, or the annual equivalent of 11 million cars, by halving the electrical use of new computers by 2010.[557]
Combat Climate Change, a.k.a. the 3C Initiative: A coalition of 20 international companies committed to “drawing a roadmap to a low-emitting society” formed in Brussels on January 11, 2007. Their interest is to develop an effective global climate protection policy for the period after the Kyoto Protocol expires. The companies “believe that the global community should aim at reducing the emissions of carbon dioxide and other greenhouse gases to acceptable levels as rapidly as possible, as well as providing secure and affordable energy for a stable, global development. [558] The Swedish utility company Vattenfall AB coordinates the initiative.[559] Vattenfall’s 80-page report, entitled: Curbing Climate Change: An outline of a framework leading to a low carbon emitting society was released in January 2006.[560]
The EPA Green Power Partnership began in 2001 to “recognize the growing number [of] companies and organizations that have committed to green energy use.” It identifies the “Top 25 Partners” list, launched in 2004, for the 25 largest purchasers of green power from renewable resources; the “Fortune 500 Green Power Challenge,” launched in late 2006, acknowledging the collective green power purchases of Fortune 500 companies; and the “100 Percent Green Power Purchaser” list of organizations that meet 100% of their U.S. electricity needs from green power. On May 1, 2007, PepsiCo headed all three lists.[561]
In early November, 2007, Fiji Water, which transports bottled water from the Fiji Islands in the South Pacific, announced that it was taking steps to become not just carbon neutral but “carbon negative,” meaning that it would offset more than the amount of GHGs released during the production of its product. It would also use more renewable sources of energy, such as wind power, use alternative fuels, protect the local rainforest, and use less plastic and paper.[562]
General Electric: After 128 years, GE announced improvements to incandescent light bulbs, called high efficiency incandescent, or “HEI lamps,” that will make their energy efficiency levels comparable to those of compact fluorescent bulbs. The company has made significant financial investments in this new technology to support the global effort to reduce GHG emissions.[563] See also ASE supra this section; California; Australia.
Investors and Business for US Climate Action: On March 19, 2007, more than 60 leading investors, asset managers and companies requested prompt and “tangible” action by the U.S. Congress on climate change in a 4-page document entitled: Imperatives of Climate Risk and Opportunity: A Call to Action from Leaders in Investing and Business. They specifically requested, among other things, 60-90% reductions below 1990 levels by 2050 through mandatory market-based solutions, and for the SEC to clarify what information companies should disclose to investors in their reports.[564] The group was organized by Ceres, supra.
The U.S. Climate Action Partnership (USCAP) encourages the federal legislature to act swiftly to enact a policy framework for mandatory reductions of GHG emissions, including a cap-and-trade program. It wants to see reductions of 10 to 30 percent over the next 15 years.[565] The new group includes four environmental groups (NRDC, Environmental Defense,[566] World Resources Institute, and the Pew Center on Global Climate Change) as well as manufacturers (General Electric, Alcoa, Caterpillar), public utilities (Duke Energy, PG&E of California, the FPL Group of Florida, PNM Resources of New Mexico), the oil company BP, and Lehman Brothers.[567] Its January 2007 proposal was entitled A Call for Action.[568] On Monday, January 22, 2007, the day before President Bush’s State of the Union speech, the group issued a statement calling for the federal government to act swiftly and enact “strong national legislation to achieve significant reductions of greenhouse gas emissions.”[569]
In April 2007, ConocoPhillips, the world’s 5th-largest oil company, joined USCAP. The company issued a statement saying that it is in favor of mandatory limits on GHG emissions. [570]
In May 2007, General Motors became the first automaker to join USCAP, along with 9 companies and 2 environmental groups, The Nature Conservancy and the National Wildlife Federation.[571]
However, on Feb. 20, 2008, Business Week reported that “several companies that belong to USCAP are simultaneously supporting efforts and organizations that oppose mandatory cuts in greenhouse gases or promote policies that would make the USCAP reductions nearly impossible to meet.” Apparently, “[t]hree high-profile USCAP members—General Electric, Caterpillar, and Alcoa—also sit on the board of the Center for Energy & Economic Development [CEED], … that opposes regulations on greenhouse-gas emissions.” And several months ago, Duke Energy joined “Americans for Balanced Energy Choices …, a group hatched by CEED in 2000 that advocates expanded coal use.”[572]
On January 15, 2009, USCAP released its Blueprint for Legislative Action: Consensus Recommendations for U.S. Climate Protection Legislation at a press conference and presented it to the House Energy and Commerce Committee.[573] The Prologue says: “Our Blueprint is a balanced and integrated approach to key linked issues that must be addressed in any national climate legislation…. [It] is the consensus product of a diverse group of companies and non-governmental organizations.” The plan is more detailed than the 2007 proposal, but has been criticized by environmental groups for giving away many allowances to companies emitting CO2, although the free allowances would eventually be phased out.[574]
UK Manifesto on the EU Emissions Trading Scheme: Businesses, government and environmentalists have called on European industry and EU Member State Governments to back Britain in securing a sound footing for the future of the carbon trading market after Kyoto’s first commitment period ends in 2012. The Manifesto is from March 19, 2007.[575]
We're in This Together: Eight British companies have launched a campaign by this name to help their customers cut their carbon emissions and reduce their impact on climate change.[576] For example, two companies cut the costs of light bulbs and insulation.
WWF’s Climate Savers Program: Twelve major companies that participate in the program are aiming to cut at least 10 million tons of CO2 emissions a year by 2010. In February 2007, Nike Inc. won an award for achieving its emissions reduction target (13% for business travel and operational facilities between 1998 and 2005) 5 years ahead of its 2010 deadline.
The other companies are: Johnson & Johnson, IBM, Polaroid, Collins, and Xanterra from the U.S.; Sagawa and Sony from Japan; Lafarge from France; Catalyst from Canada; Tetra Pak from Sweden; and Novo Nordisk from Denmark.[577]
Xerox Corp.: The Company reported that it has reduced GHG emissions by 18% since 2002 when it set a reduction target of 10%; in the process it saved the company $18 million last year. On Monday, December 3, 2007, it announced that it would increase its target to 25% by 2012.[578]
Yahoo!: In April 2007, Yahoo! announced plans to be fully carbon neutral by the end of the year. Co-founder and Chief David Filo said that “Yahoo! going carbon neutral is equivalent to shutting off the electricity in all San Francisco homes for a month, or, pulling nearly 25,000 cars off the road for a year."[579]
Climate change became an issue for candidates of both parties. It was only 1997 that the Republican-dominated Senate (see supra) voted unanimously to oppose the Kyoto Protocol. 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.[580] The New York Times in October, 2007, offered a Web page entitled The Presidential Candidates on Climate Change; the major candidates on both sides discussed their views on global warming and what their administrations would do about it.[581]
On November 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.[582]
The European Economic Community[583] signed the UNFCCC on June 13, 1992 and ratified it on December 12, 1993.[584] It entered into force March 21, 1994. The EEC is an Annex I Party to the Convention.[585]
When the Kyoto Protocol was signed in New York on April 29, 1998, the EC stated that it and its Member States would fulfill their respective commitments under the Protocol’s article 3(1) jointly, in accordance with its article 4.[586]
In June, 2000, the European Commission launched the European Climate Change Programme (ECCP) to develop a strategy to enable the EU to implement the Kyoto Protocol.[587] The first ECCP, which ran from 2000 to 2001, established several working groups which then reported to the EC the 42 possible approaches they saw for reducing GHG emissions by about double the reduction required for the EU during the Protocol’s first commitment period. The EC in turn published a report on the findings in June, 2001,[588] and later that year, in October, 2001, the Commission proposed three additional steps: first, an Action Plan for the ECCP was presented in a Communication from The Commission on the Implementation of the First Phase of the European Climate Change Programme (COM(2001)580)[589]; secondly, a proposal for a Council Decision concerning the approval of the Kyoto Protocol[590]; thirdly, the Commission proposed a GHG emissions trading scheme to assist the private sector to find the most cost-effective ways to reduce carbon dioxide emissions.[591]
On April 25, 2002, Council Decision 2002/358/EC, was published; it approved the Kyoto Protocol on behalf of the EC and its member states, who ratified it on May 31, 2002.[592] The Protocol entered into force February 16, 2005.
Under the Protocol, the “EC 15” (that is, the 15 states who were Members at that time, and who are listed in Annex III of the Protocol, see 2002 O.J. (L130), at 20) are committed to cutting greenhouse gas emissions to 8% below 1990 levels by 2008-2012.[593] Most of the 10 new Member States, who joined in 2004 and who are also Annex-I Parties to the UNFCCC, have the same target. Romania and Bulgaria joined the EU in January of 2007, making a total of 27 states. The latter chose to accept 1988 levels of GHG emissions as a baseline, instead of 1990. Both Romania and Bulgaria are considered to be transitioning to market economies, but are listed in Annex I of the Convention.
The official Web site of the European Union, Europa, contains EUR-Lex, the largest documentary source for treaties, legislation, case law, the Official Journal, and more.[594]
The European Commission has an environment site.[595] The Commission launched the European Climate Change Program (ECCP) in June 2000, to develop the necessary elements of the EU’s strategy to comply with the Kyoto Protocol.[596] The brochure, The European Climate Change Programme: EU Action Against Climate Change, January 2006, outlines the EU’s current and projected policies on climate change.[597]
The European Environment Agency has a Climate Change “theme” page for indicators, reports, links and data.[598]
EU reports, required under the UNFCCC and the Kyoto Protocol, are available online from the EEA’s Reports about Europe’s environment page from 1995 to 2007.
The EU’s Committee of the Regions must be consulted on environmental matters (inter alia, as such matters have repercussions at regional or local levels), and issues opinions on proposed legislation.[599]
The European Trading Scheme is the largest of its kind, and the only mandatory one in the world. It sets industries a quota of permits to emit GHGs; if companies do not use up their quotas, they can sell those rights to other higher-emitting companies.[600] Currently the ETS covers carbon dioxide emissions from power stations and industries such as steel, cement, paper and oil refining throughout the EU. Phase I of the EU’s Greenhouse Gas Emissions Trading Scheme began January 1, 2005, and ran until the end of December 2007. Phase II will run from 2008 until 2012. It was established by Directive 2003/87/EC of the European Parliament and of the Council, October 13, 2003, as amended by Directive 2004/101/EC.[601] The hope is that the scheme will enable EU member states to meet their commitment under the Kyoto Protocol to cut emissions by 8% from 1990 levels by the first commitment period, 2008-12. More information is available from Europa’s European Climate Change Program page,[602] and on DEFRA’s (the UK’s Department for Environment, Food and Rural Affairs) EU ETS page.[603]
On November 13, 2006, the EC published a report on modifying the EU’s Emissions Trading Scheme, entitled Building a Global Carbon Market—Report Pursuant to Article 30 of Directive 2003/87/EC.[604] The report concentrates on expanding the scheme to other gases, compliance and monitoring procedures, and adding countries to the ETS or linking to other schemes.[605]
On November 29, 2006, the European Commission set more stringent carbon limits for the ETS’s second phase, cutting member states’ carbon permits by an average of 7% below the emissions proposed by the national allocation plans, and 7% below 2005 emissions from 2008-2012.[606] The plans apply to Germany, Greece, Ireland, Latvia, Lithuania, Luxembourg, Malta, Slovakia, Sweden and the United Kingdom.[607] The EU Environment Commissioner Stavros Dimas said that the decisions sent “a strong signal that Europe is fully committed to achieving the Kyoto target and making the ETS a success.”[608] Predictably, several countries (especially Germany and Lithuania, according to the BBC) were upset by the decisions.
On November 29, 2006, the EC also approved emissions-trading plans for the above-listed 10 members, provided that allowable emissions are lowered by 7%. Five countries (Austria, the Czech Republic, Hungary, Italy, and Spain) have only submitted draft allocation plans; Denmark has not even done that. The deadline was June 30, 2006.[609]
In December 2006, the Institute for Public Policy Research (IPPR) published a report entitled Trading Up: Reforming the European Union’s Emissions Trading Scheme, by Tim Gibbs and Simon Retallack.[610] The report considers the pros and cons of expanding the ETS to include the aviation, maritime, and road transport industries.
The European Commission has recently proposed to include airline flights within the EU in the ETS starting in 2011, which would mean that airlines would have to pay to emit more than their GHG permits would allow.[611] The proposal would cap aviation emissions at 2004-06 levels, and in 2012, external flights would be included. The Institute for Public Policy Research (IPPR) and the World Wildlife Fund believe that including airplane emissions in the ETS could benefit airlines financially, if the costs of compliance are passed on to consumers via ticket prices.[612] Prior to December 20, 2006, airlines, which are responsible for 3% of the EU’s CO2 emissions (more than refineries or steel plants) and which emit nitrogen oxides as well, were exempt from the ETS.
However, environmental groups were not pleased, claiming that it is a mistake to regulate only CO2 when airplanes emit other GHGs. They did not agree with airlines receiving their GHG permits for free, and they thought the program could be implemented sooner.[613] The U.S. is not pleased, claiming that to include airlines in the ETS would be a violation of international law, specifically the Chicago Convention.[614] The airlines, unsurprisingly, are not happy either.[615] Tony Blair said “he would not give up flying, doubted any politician would tell people not to fly, and questioned the impact of UK-only climate action.”[616] In any case, the process of approval by member states and the European Parliament is likely to take years.[617] See infra, Individual Member States & Climate Change, United Kingdom.
On May 6, 2008, a hearing entitled “Aviation and the Environment: Emissions” was held before the Aviation Subcommittee of the House Transportation and Infrastructure Committee to discuss the EC’s Dec. 20, 2006, proposed directive to include civil aviation in the ETS.[618] Despite U.S. disapproval, an EU lawmaker was optimistic that a deal to include aviation in the ETS could be concluded by summer 2008, as a result of opposition fading in the last days of the Bush administration.[619]
On March 26, 2007, the Senate Energy and Natural Resources Committee held a “roundtable discussion” (described by Chairman Bingaman as being much less formal than a hearing) on using the ETS as a possible model for a U.S. cap-and-trade program. One expert, a senior lecturer at MIT, said that as the U.S. federal government exerts greater authority over the states, it could avoid some of the problems the EU had experienced in enforcing the system across its 27 member countries.[620]
In May 2007 the World Bank issued a report entitled State and Trends of the Carbon Market 2007 that showed that the EU’s ETS accounted for $24.4 billion of the global carbon market’s $30.1 billion in credits – double the amount issued in 2005.[621] See also, Symposium: The European Union Emissions Trading Scheme, 1 (1) Review of Environmental Economics and Policy 66 (Winter 2007).[622]
In May 2008 the updated report State and Trends of the Carbon Market 2008 was released, showing that the world carbon market in 2007 was now $64 billion, primarily as a result of the EU’s ETS, but also due to increases in other carbon markets.[623]
The EU is planning for a common European energy policy. The proposals include cutting CO2 emissions by at least 20% by 2020, and improving the EU’s energy efficiency by 20%, making it the “most energy-efficient region in the world.”[624] On March 8, 2006, the European Commission published a Green Paper entitled A European Strategy for Sustainable, Competitive and Secure Energy, which laid out three main objectives for a European strategy: sustainability, competitiveness, and security of supply.[625]
In line with those plans, EU Environment Commissioner Stavros Dimas wants to impose mandatory efficiency standards on all new vehicles sold in Europe, which would cause the cost of inefficient cars to soar in the next 5 years. Auto manufacturers have “infuriated” the Commission by missing their voluntary targets by “almost 50%.”[626] On October 31, 2006, a 303-page final report entitled Review and Analysis of the Reduction Potential and Costs of Technological and Other Measures To Reduce CO2-Emissions from Passenger Cars was released and posted on Europa’s Automotive Industry/Environment page.[627]
The European Commission’s January 10, 2007, Communication to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, entitled Towards a European Strategic Energy Technology Plan,[628] reiterates the goal mentioned above, of reducing GHG emissions by at least 20% compared to 1990 levels by 2020,[629] and further states that by 2050, global GHG emissions must be lower by 50% from 1990 levels, which would mean, in industrialized countries, reductions of 60 to 80%.[630] On the same day, the Commission released a Communication to the European Council and Parliament entitled An Energy Policy for Europe that itemized EU international energy policy priorities in its Annex I. It stated the Commission’s intention to put forward a new Strategic Energy Review every two years, and a European Strategic Energy Technology Plan in 2007.[631]
At the March 2007 meeting of the European Council in Brussels, a firm target of a 20% reduction of GHG by 2020 was set, and leaders agreed that the Council was willing to raise the goal to 30% if the U.S., China and India made similar commitments. An overall goal of 20% for renewable energy sources by 2020[632] was set, up from the current 6.5%.[633] The Council also decided to phase out incandescent light bulbs in favor of more efficient compact fluorescents over the next two years.[634]
EU member states anticipated pushing the U.S. in a draft declaration on climate change being prepared for the EU-U.S. summit on April 30, 2007, in Washington, D.C. Scandinavian countries expressed concern that the declaration was not strongly worded enough.[635]
On January 23, 2008, the European Commission released its proposals to reduce GHG emissions, including the goal above of reducing emissions 20% below 1990 levels by 2020; 20% of energy from renewable sources; emissions permits for utilities and other polluting industries would not be allocated as they are now, but purchase of all permits would gradually be phased in by 2013. The EU might require importers to purchase the same allowances that European manufacturers would have to buy, to protect their markets from lower-priced products. As the EU had cut emissions by 6% from 1990 levels and got 8.5% of its energy from renewable sources by 2005, the goals are considered reasonable, even if some
environmental groups find them not sufficiently stringent.[636] It might take 2 years for the plans to be approved by Member governments and the European Parliament. Additionally, the EC wants as many as 12 CCS (carbon capture and sequestration) plants operating in the EU by 2015, without which it considers that GHG emissions cuts will be futile, but acknowledges that such technology is enormously expensive and outside of the EU budget. The CCS future regulatory framework is in a proposal for a directive (COM/2008/18) that must be incorporated in each member state’s legal code.[637]
See Quirin Schiermeier, News: Europe spells out action plan for emissions targets, 451 (7178) Nature 504 (January 31, 2008) and Editorial: Towards falling emissions:
Although Europe’s new energy plans may be too prescriptive on the means of achieving the goals, they offer the world an encouraging way forward, 451 (7178) Nature 499 (January 31, 2008).[638]
At a 2-day summit in Brussels in March 2008, leaders called for a deeper cut in emissions, to 30% from 1990 levels by 2020, and a 50% cut in global emissions by 2050.[639] Germany was reluctant, but Stavros Dimas said on the 21st that EU leaders were still committed to the 30% cut.[640]
In late October 2006, just in advance of the Nairobi COP-12 meeting, two EU bodies issued complementary reports on GHGs. The European Commission issued its fourth annual progress report entitled Progress Towards Achieving the Kyoto Objectives.[641] Although the report claims that seven member states (Austria, Belgium, Denmark, Ireland, Italy, Portugal and Spain) will exceed their Kyoto Protocol emission limits and will have to find additional methods to reduce emissions, the reports conclude that the EU will meet its targets if all goes as planned.[642]
The report entitled Greenhouse gas emission trends and projections in Europe 2006 was produced by the European Environment Agency and is available on the Web.[643] It concludes that the EU-15 will meet its Kyoto Protocol target,[644] and that the 10 newest members are on track to meet theirs despite rising emissions.
On January 30, 2007, the European Parliament’s Committee on the Environment, Public Health and Food Safety adopted a resolution stating that India and China should be subject to mandatory limits on GHG emissions for the Kyoto Protocol’s second phase, which begins after 2012.[645]
The European Parliament Environment Committee’s draft resolution on climate change, PE 654.321v01-00, is available online.[646] Amendment 19, paragraph 9, states that “…non-Annex I countries have to be further involved in the process, as effective global emissions reduction can be carried out only with China and India also participating with emissions reduction measures; further recognizes that the developing countries cannot be treated as one block as countries like China or India are … more industrialized than African countries for instance; proposes, therefore, to differentiate between emerging countries and developing countries, especially least developed countries;…”
In February 2007, the EC proposed a new directive that would have all EU member states criminalize serious environmental offenses and impose sanctions for violations.[647]
On April 25, 2007, the European Parliament approved a new temporary committee on climate change policy that will act as a liaison with the U.S. Congress’s new Select Committee on Energy Independence and Global Warming, see supra.[648] The 60-member committee will have a one-year mandate: to make proposals on EU policy on climate change, to analyze and evaluate the state of climate change for the benefit of Parliament, to study the impacts of recent advances in combating climate change, and to interact with Member State governments, the governments of third countries, and the members of scientific and business communities.[649] Guido Sacconi was chosen to head the committee on May 22, 2007; he said on that occasion that establishing relations with the new Congressional committee was an “immediate priority.”[650]
On May 7, 2007, the EEA reported that emissions of the EU-15 (members before the 2004 EU enlargement) declined by 0.8% in 2005 from 2004 levels, making their emissions only 1.5% lower than the 1990 base year, whereas their goal is an 8% reduction. However, taking all current 27 member countries’ emissions into account, 2005 emissions were already 8% lower than 1990 levels.[651]
France: Leading French oil companies, car manufacturers, and agricultural groups established goals to increase usage in 2007 of a new fuel called E-85, containing 85% ethanol and 15% gasoline, thereby reducing GHG emissions. Car makers agreed to offer at least one flex-fuel model from 2007 forward at competitive prices. Gas distributors offered E-85 at 500-600 in 2007 and tripled that in 2008.[652]
The day after the February 2007 release of the IPCC’s Fourth Assessment Report in Paris, French President Jacques Chirac in his ‘Paris Call for Action’ called for the establishment of a new, more powerful UN environmental body to be called the U.N. Environment Organization (UNEO), that will be aimed at slowing climate change.[653] It may also have the power to punish violators, as the current U.N. Environment Programme is criticized for being too weak. The US, China, Russia and India were not among the 45 nations that responded to his request.[654]
Germany: In January 2007, German Chancellor Angela Merkel spoke out against an EC proposal for a legally binding emissions limit of 120 grams of CO2 per kilometer by 2012 for all cars manufactured or imported into the EU. Germany is home to some of Europe’s biggest car manufacturers, including Volkswagen AG, BMW, DaimlerChrysler AG and Porsche AG, who worry that the limits would cause them to cut jobs.[655] The European Union's Environment Commissioner, Stavros Dimas, has threatened to replace his own Mercedes sedan and the EU’s fleet of vehicles as well with Japanese hybrids such as the Toyota Prius or a Lexus hybrid.[656] In February 2007, Dimas backed down and proposed a 130 gram-per-km limit, which amounts to an 18% cut from 2005 levels, disappointing environmental groups.[657] The legislation was drafted later in 2007, and then brought to member states and the European Parliament for approval.
German automakers agreed in March 2007 to research technologies that could reduce CO2 emissions by 10 grams per kilometer by 2012.[658]
A new report issued April 25th questions the claim that nuclear energy is either less expensive or more environmentally friendly than other power sources. The Environment Minister, Sigmar Gabirel, concluded that Germany should focus on renewable energy sources and continue with its plan to close down nuclear reactors.[659]
Inspire: EU member states have agreed to share data such as satellite images, temperature records, and rainfall data for environmental decision-making. Formal adoption of the Inspire program was expected by early 2007, giving members 2 years to adopt it into their national legal codes.[660]
Italy: A report entitled Do Some Like it Hot? Italy Amidst a Changing Climate found that as a result of climate change, 16 new diseases have appeared in Italy over the last 10 years, migrating north from Africa, and that diseases typically found in the south of Italy are spreading north.[661]
The Italian Agency for New Technology, Energy, and the Environment, the ENEA, reports that Italy’s GHG emissions will decrease by over half over the next 13 years as a result of increased energy efficiency and steps to curb energy use.[662]
Norway: Norway announced in January 2007, that it will “purchase emissions quotas to offset the pollution its bureaucrats create jetting around the world, joining Britain in a government effort to reduce so-called greenhouse gases.”[663]
Since 1996, Statoil, Norway’s largest oil company, has been injecting compressed CO2 emissions from the Sleipner platform in the North Sea to sequester it in the porous sandstone about 2600 feet below the sea floor. Experts believe that the North Sea aquifer could hold all the CO2 emitted by Europe’s power plants for the next 600 years, and that the U.S. coastline could store emissions for thousands of years. However, critics worry that the companies will use the $53 million Norwegian tax dollars they save on CO2 emissions every year to boost production of fossil fuels, and that leaks might occur if the sequestered gas forms an acid that eats away at the confining rocks.[664]
In April 2007 Norway announced plans to reduce its GHG emissions to zero by 2050.[665] In January 2008 it revised those plans and moved the date back to 2030.[666]
In January 2007, Norway replaced its system of taxing vehicles based on engine capacity with a tax based on carbon dioxide emissions. It is part of a larger scheme of incentives to encourage people to purchase lower-emitting cars.[667]
United Kingdom: On October 30, 2006, just before COP-12 began, the British government released a major report on the economics of climate change. The lead author of the Stern Review on the Economics of Climate Change was Sir Nicholas Stern, Head of the Government Economics Service, Adviser to the Government on the economics of climate change and development, and former World Bank chief economist.[668] The report warned that if global warming is not curbed, it could cost the world 5 to 20 percent of economic output,[669] and result in “economic downturns on a scale associated with the 20th century’s world wars and the 1930s Depression.”[670] However, the author believes that there is time to avoid the worst effects if governments make “strong, deliberate policy choices.”[671] In response, the UK Treasury proposed expansion of the current EU Emissions Trading Scheme to other sectors and gases, and expansion of the Kyoto Protocol’s Clean Development Mechanism. The UK’s Environment Secretary announced that new climate change legislation would be introduced shortly and would form a strategic part of the UK’s approach to fulfilling its goals and responsibilities.[672]
On November 8, 2006, a leading environmental economist, Professor Michael Grubb, said that the Stern Review’s recommendations required an entirely new set of more stringent emissions targets. Although such targets were under discussion at the Nairobi meeting, no one was particularly optimistic that a breakthrough would occur, primarily because the United States and Australia will not accept targets, as they opted out of the Kyoto Protocol.[673]
And indeed, on November 15th, the United Kingdom proposed legislation to formalize existing long-term targets for reducing carbon dioxide emissions by 60 percent by 2050, and to address the issues raised in the Stern Review.[674]
In January 2007, the Chief Economist of Chrysler, Van Jolissaint, attacked European attitudes toward global warming (desc