Global Warming – Researching the U.S. Approach to the U.N. Framework Convention on Climate Change and the Kyoto Protocol

Heidi Frostestad Kuehl is the Law Library Director and Associate Professor of Law at the Northern Illinois University College of Law’s David C. Shapiro Memorial Law Library. She holds a Law degree from Valparaiso University School of Law with a specialization in International Trade and Development and a Master’s Degree in Library and Information Science from the University of Iowa.

Above: NASA Visible Earth

1. Introduction

There continue to be a number of significant climate-related events. Currently, the Twenty-fourth Conference of the Parties to the UNFCCC was held in Bonn and was completed successfully as of November 2017. News about the UNFCCC Conference of the Parties and the Kyoto Protocol is constantly expanding with current reports and recommendations. 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; in February 2007, the IPCC’s Fourth Assessment Report was released, which found it all but certain that human activities are responsible for climate change. Discussions of climate change were everywhere, and everyone was confident that U.S. hostility towards the Protocol would change with the administration. However, in early 2011 and more recently into 2014, years into the Obama Administration, there is no progress either on national climate change regulation or on a successor protocol that we might consider ratifying; if anything, the 2010 midterm elections seem to have brought environmental backsliding on a variety of fronts. Nevertheless, a story does emerge from all this, if a different one than we hoped it would be.

Approach & Sources: This is not a traditional research guide. It is a continuously updated narrative of the efforts of the U.S. government and 50 states to follow much of the rest of the world and enact greenhouse gas (GHG) emissions controls. However, the U.S. Congress can’t decide whether global warming is happening at all; if it is, whether it is a natural or an anthropogenic phenomenon; and if the latter, whether the consequences of maintaining the status quo will be sufficiently devastating to justify the effort and expense of change.

I use the terms “global warming” and “climate change” interchangeably, although in scientific literature the former often refers to surface temperature changes and the latter to the effects of excessive CO2 and other GHGs in the atmosphere. We briefly summarize the UNFCCC and the Kyoto Protocol; discuss the important work that U.S. states, cities and businesses have initiated to address climate change (and, hopefully, to compel federal action); and we are actively following the legislative and administrative repercussions of Massachusetts v. EPA. Overall comparisons to the E.U. and the rest of the world are also included throughout this guide.

My primary sources of electronic information are email alerts from the UNFCCC; Grist; the N.Y. Times (see below); the European Commission’s news and updates; and BBC News updates for climate change news from the E.U. and the E.C., all of which are freely available. The Center for Climate Change is useful for updates on global warming law suits following Mass. v. EPA and other litigation. Remember that articles from online publications may over time become unavailable, and titles of online and print articles often differ, making the switch from internet to database or paper access less than seamless. Congressional committee hearings are sometimes archived on committee web pages, but not always, and database access with a subscription may be necessary.

On Mar. 28, 2011, the N.Y. Times began charging for access to NYTimes.com. The first 20 items (articles, blogs, videos, whatever) viewed in a month are free; after that the fee is $15-35 per month, depending on mode of access. The digital subscriptions page says that although viewing links from search engines will count toward the limit, after you’ve used up your free items, you will have a new limit of 5 items from any given search engine. We assume that the existing links to the N.Y. Times will still work, and we will continue to add them as long as our own free access permits.

2. Background on the U.N. Framework Convention on Climate Change (UNFCCC)

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) “as an effort by the United Nations to provide the governments of the world with a clear scientific view of what is happening to the world’s climate” (see IPCC History); its role is “to assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic information relevant to understanding the scientific basis of risk of human-induced climate change, its potential impacts and options for adaptation and mitigation.” (See Principles Governing IPCC Work and its appendix). The panel’s First Assessment Report, released in 1990, [1] 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. See § 3.9.1. IPCC’s Assessment Reports.

After that, Europe in particular and other countries as well, began to call for action on climate change; in response, the UN, on Dec. 21, 1990, created the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change (INC). During the negotiation sessions, the U.S. often took strong positions, particularly against enforceable reduction targets and timetables, claiming scientific uncertainty and the adverse effect on the U.S. economy.

The United Nations Framework Convention on Climate Change (hereafter “UNFCCC”), U.N. Doc. A: AC237/18 (1992), 1771 U.N.T.S. 164, reprinted in 31 I.L.M. 851 (1992), 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. There are also UNFCCC rules of procedure that correlate with the Convention to assist with its implementation. Portugal was the 50th nation to ratify the treaty, enabling it to enter into force on March 21, 1994.[2] The UNFCCC has been ratified, accepted, or approved by a total of 196 countries.[3]

The UNFCCC was signed by the George H.W. Bush administration in Rio on June 12, 1992, and the U.S. Senate ratified it unanimously on Oct. 15, 1992.[4] The original, authentic Convention was deposited with the Secretary-General of the United Nations. (See UNFCCC art. 19 & art. 26.) Parties to the Convention agreed to consider climate change in such matters as agriculture, industry, energy, natural resources, and activities involving sea coasts, in an attempt to slow the process of global warming.

The Conference of the Parties (COP) is the “supreme body” of the Convention; it is the highest decision-making authority, an association of all the countries that are Parties to the Convention. The COP meets every year, unless the Parties decide otherwise, to review progress on the Convention. (See UNFCCC art. 7, 1771 U.N.T.S. at 176, reprinted in 31 I.L.M. at 860.)

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. The most recent notifications to parties and observers are also available through the UNFCCC portal. 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. (See UNFCCC art. 4 (2) (a) & (b), 1771 U.N.T.S. at 171-72, reprinted in 31 I.L.M. at 856-57.) However, the Convention did not impose binding limits on emissions.

Under the UNFCCC articles 4 and 12, all parties are required to “[d]evelop, periodically update, publish and make available to the Conference of the Parties, in accordance with Article 12, a national inventory of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol.” [Art. 4 (1) (a)] [5] The initial “progress reports” were to be communicated by Annex I Parties within six months of the entry into force of the Convention for that Party; within three years for non-Annex I parties; and at the discretion of the least developed countries. UNFCCC Art. 12(a) states that the inventories shall use “comparable methodologies to be promoted and agreed upon by the Conference of the Parties.” These national communications shall also include detailed descriptions of the policies and measures that each party has adopted to implement its commitment under the Convention.

The U.S.’s Climate Action Reports are our national communications required by the UNFCCC. The United States submitted the first U.S. Climate Action Report (USCAR) to the UNFCCC Secretariat in 1994, the second in 1997, and the third in 2002; they are available from depository libraries. The most recent U.S. Climate Action Reports are available electronically from the State Department.

Under Articles 4 and 12 of the Convention and various decisions of the COP, Annex 1 Parties are also required to submit to the secretariat annual inventories of anthropogenic GHG emissions not already controlled by the Montreal Protocol. There was a workshop on the implications of decisions 2/CMP.7 to 5/CMP.7 on the issues related to the Kyoto Protocol. The IPCC Guidelines for National Greenhouse Gas Inventories were first accepted in 1994, published in 1995, and revised in 1996. The Revised 1996 IPCC Guidelines were reaffirmed by COP-3 in Kyoto which stated that they “should be used as ‘methodologies for estimating anthropogenic emissions by sources and removals by sinks [6] of greenhouse gases in calculation of legally-binding targets during the first commitment period.” They were published in three volumes which are available on the Web: Volume 1 gives Reporting Instructions on how to prepare and transmit national inventory data consistently; volume 2 is the Workbook, with instructions to assist experts to start developing inventories if they do not have them already; and volume 3 is the Reference Manual, with methods to estimate emissions for a wider range of GHG and lists of source types for each. There is now a Good Practice Guidance and Uncertainty Management in National Greenhouse Gas Inventories (2001). Finally, the 2006 IPCC Guidelinesare now available from the IPCC website.

The over-500-page, 19th annual Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2014 (April 2016, U.S. EPA #430-R-16-002) is available from the EPA, which also has a web archive of earlier editions. It shows a drop in overall emissions of 2.9% from 2007 to 2008; however, emissions are still 13.5% higher than they were in 1990.

EPA began seeking public comment on the annual Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2014 draft report. The final report (U.S. EPA #430-R-16-002) was issued and showed a 6.1% decrease in emissions during 2009, although total emissions grew by more than 7.3% from 1990 to 2009, attributed to a decrease in fuel and electricity usage across all economic sectors; 2009 emissions represent the lowest total U.S. annual GHG emissions since 1995.

The UNFCCC also established two subsidiary bodies:

• The Subsidiary Body for Scientific and Technological Advice (SBSTA), which gives the COP timely advice on scientific, technological and methodological matters relating to climate change and its effects; established by UNFCCC art. 9.
• The Subsidiary Body for Implementation (SBI), which gives advice to the COP on implementation of the Convention; established by UNFCCC art. 10.

Both subsidiary bodies meet twice a year.

As the Convention did not contain binding emissions limits, the member countries almost immediately decided that the Convention’s commitments were not enough. In March/April of 1995, the Convention’s first Conference of the Parties in Berlin [7] adopted the “Berlin Mandate,” [8] 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. [9] The Parties also set up a new subsidiary body, the Ad Hoc Group on the Berlin Mandate (AGBM) at COP-1 to negotiate a protocol to the Convention; its first meeting was in the summer of 1995. A fourth subsidiary body, the Ad Hoc Group on Article 13 (AG13), was also established to explore options for conflict resolution. [10]

In July, 1996, at COP-2 in Geneva, the parties instructed the representatives “to accelerate negotiations on the text of a legally-binding protocol or another legal instrument to be completed in due time for adoption at the third session of the Conference of the Parties… [that] should fully encompass the remit of the Berlin Mandate,” especially the commitments for Annex I Parties. In the “Geneva Ministerial Declaration,” published in an Annex to the Report of the Conference of the Parties on page 71, members endorsed the Second Assessment Report of the Intergovernmental Panel on Climate Change as “currently the most comprehensive and authoritative assessment of the science of climate change, its impacts and response options now available.” Further, the members encouraged accelerated negotiations on the text of a protocol to be adopted at COP-3, in accordance with the Berlin Mandate.

3. Kyoto Protocol: Adopted at COP-3

3.1. Overview

After negotiations described as “tough, grueling and long” by the U.S. Senate (144 Cong. Rec. S196 (Jan. 29, 1998)), the Kyoto Protocol was adopted in Dec., 1997, at COP-3. [11] It was open for signature from the middle of March, 1998, to the middle of March, 1999. So far 192 parties (of the FCCC’s 194) have ratified, acceded to, approved of, or accepted it; see Status of Ratification. However, only Annex I Parties to the UNFCCC, 22 countries and the EU-15, are required to reduce their GHG emissions under it; their individual targets are found in the Protocol’s Annex B.

The COP to the Convention also serves as the Meeting of the Parties (MOP) to the Kyoto Protocol. (Kyoto Protocol art. 3, reprinted in 37 I.L.M. at 38.) Both bodies issue decisions and resolutions.

The Protocol set mandatory targets for GHG emissions for Annex I Parties, and specifically excluded developing country parties from any obligations. Annex A lists the greenhouse gases it covers: carbon dioxide, methane, nitrous oxide, hydro fluorocarbons, 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.” [12] However, article 3.8 allows any Annex I Party to use 1995 as a base year for the last 3 gases. [13] Also, a “degree of flexibility” was built into articles 3.5 & 3.6 for Annex I Parties in transition to a market economy regarding the base year they use, if 1990 is considered too strict.

The Secretariat:

Both the UNFCCC and the Kyoto Protocol are served by the Climate Change Secretariat. The mandate of the Secretariat is laid out in Article 8 of the Convention. Its main functions are:

• To make arrangements for sessions of the various Convention and Protocol bodies;
• To monitor implementation of commitments made by the Parties under these agreements;
• To assist the implementation of those commitments;
• To maintain registries of Parties’ emissions that are traded under emissions trading schemes; and
• To coordinate with the secretariats of other relevant international bodies and conventions.

The Secretariat has been located in Bonn, Germany, since August of 1996.

Entering into Force:

Article 25 of the Protocol provides two conditions that must be satisfied before the Protocol could enter into force: First, at least 55 Parties to the Convention must ratify, accept, approve, or accede to the Protocol; there must be enough Annex I Parties to account 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 do so. [14] However, Russia, responsible for 17% of 1990 GHG emissions, ratified on Nov. 18, 2004, and the Protocol came into effect on Feb. 16, 2005; the total percentage of Annex I Parties GHG emissions is 63.7%. The original, authentic Protocol was deposited with the Secretary-General of the United Nations. [15]

Compliance with the Protocol:

The Compliance Committee began operation in March 2006; it has two branches, enforcement and facilitative. If the enforcement branch determines that a Party is not in compliance with its obligations under the Protocol, it will “require the Party to make up the difference between its emissions and its assigned amount during the second commitment period, plus an additional deduction of 30%. In addition, it shall require the Party to submit a compliance action plan and suspend the eligibility of the Party to make transfers under emissions trading until the Party is reinstated.” The facilitative branch assists Parties in meeting their obligations under the Protocol.

COP-4 (held in Buenos Aires, Argentina), in 1998; COP-5 (held in Bonn, Germany), in 1999; COP-6 (held in The Hague, The Netherlands), in 2000; and COP-6b, the resumed session (held in Bonn, Germany), in July, 2001, all continued work on the details of the Protocol. Negotiations at the second Bonn conference resulted in a compromise that permitted the Protocol to go forward. The U.S. did not take part in the negotiations. Current meetings and associated documentation are available on the UNFCCC’s website. [16]

3.2. The Marrakesh Accords

The “Marrakesh Accords,” adopted in October/November, 2001, at COP-7, [17] in Marrakesh, Morocco, addressed the actual operation of the Protocol, including its three “flexibility,” or free-market mechanisms, [18] which were proposed by the U.S. delegation:

• the clean development mechanism
• joint implementation
• emissions trading.

Flexibility mechanisms enable countries that cannot meet their emissions reductions to purchase or acquire the right to emit from other countries. It was necessary to establish these mechanisms before the Kyoto Protocol could enter into force. Decisions of the COP/MOP on the Mechanisms are available online.

The Marrakesh Accords also established several expert groups:

• The Consultative Group of Experts (CGE) assists developing countries prepare reports on climate change.
• The Least Developed Country Expert Group (LEG) gives advice to undeveloped countries.
• The Expert Group on Technology Transfer (EGTT) works to share technology with less developed countries.

3.2.1. Kyoto’s Flexibility Mechanisms

The Clean Development Mechanism (CDM) under the Protocol’s article 12 allows developed nations to pay for projects that cut emissions in developing nations, for which efforts they receive credits that they can apply to meeting their own emissions targets.

The Joint Implementation Mechanism (JI) under the Protocol’s article 6 is similar to the CDM; it allows developed countries to receive “emissions reduction units” for financing projects to mitigate climate change in other developed countries that are “economies in transition,” that is, formerly Communist countries.

Emissions trading under the Protocol’s article 17 allows Annex I Parties to purchase the right to emit from other countries that have not used up their emission limits.

3.2.2. Land-Use Change and Forestry

COP-7 in Marrakesh also adopted Decision 11/CP.7, regarding the principles to govern Land-Use, Land-Use Change and Forestry (LULUCF). Decision 11/CP.7, among other things, recommended that draft decision -/CMP.1 on Land use, Land-use change and Forestry be adopted by the first session of the COP serving as the Meeting of the Parties of the Kyoto Protocol. (This was COP-11 in 2005, see infra; it did adopt the LULUCF decision.) The Decision also made various requests to the SBSTA in its section 2, and several “invitations” to the IPCC in its section 3. This work was based on a 2000 Special Report on Land Use, Land-Use Change & Forestry by the Intergovernmental Panel on Climate Change, [19] 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 [20] 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. [21]

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 roundly criticized by environmental groups that disagreed with the U.S.’s failure to ratify the Kyoto Protocol. [22]

COP-8 was held in New Delhi, India, in 2002; COP-9 was held in Milan, Italy, in 2003; and COP-10 was held in Buenos Aires, Argentina, in 2004. COP-11 was held in Montreal, Canada, from Nov. 28 to Dec. 9, 2005; it also marked the entry into force of the Kyoto Protocol and was the first COP that served as the Meeting of the Parties to the Protocol. Updated sessions are regularly reported on the UNFCCC website. Among other things, COP-11 established the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG). [23]

3.3. COP-12

In preparation for COP-12, the UN issued its annual report on Oct. 30, 2006, which was compiled from data that all 41 Annex I Parties to the UNFCCC submitted to the secretariat. Other subsequent meeting information is available on the UNFCCC website. The report, entitled Greenhouse Gas Emissions Data for 1990-2004 for Annex I Parties, showed that since 2000, emissions had increased slightly, in both EIT and non-EIT Parties; also, the number of Parties with emissions decreases had declined to seven nations (the UK, Monaco, Lithuania, Ireland, Iceland, Germany, and Czech Republic) from 23 of the 41 since 2000. One of the report’s conclusions was that “industrialized countries will need to intensify their efforts to reduce greenhouse gas emissions.” [24]

COP-12 was held from Nov. 6-17, 2006, in Nairobi, Kenya, in conjunction with the second meeting of the Parties to the Kyoto Protocol (COP-12/MOP-2). A press release issued the first day of the Conference was entitled: Nairobi United Nations Climate Change Conference opens with warning that climate change may be most serious threat ever to face humankind. One of the major goals of the Conference was to work on a global agreement for the time period after the Kyoto Protocol runs out in 2012. Another was to help poorer African countries adapt to climate change. [25] The UN released its Report on the African Regional Workshop on Adaptation just before the meeting opened.

Meetings of the subsidiary bodies and the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol were held in Bonn from May 7-18, 2007, in preparation for COP-13/ MOP-3 to be held in Bali in December 2007.[26]

The fourth session of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol and the fourth workshop under the dialogue on long-term cooperative action to address climate change by enhancing implementation of the Convention was held in Vienna, Austria, Aug. 27-31, 2007. About 1000 delegates agreed to set GHG emissions cuts between 25 and 40 percent below 1990 levels in the successor pact to the Kyoto Protocol. Upcoming schedules for future sessions (2017-2018) are set.

3.4. COP-13

COP 13 & the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol (CMP) 3, opened Dec. 3, 2007, in Nusa Dua, Bali, Indonesia. Before it opened, leaders from 150 global companies endorsed a legally binding framework to address climate change in The Bali Communiqué.[27] Signatories included Shell, Coca-Cola, Dupont, British Airways, Rolls Royce, and many more. Finally, a rough and vague Road Map was agreed to. The Bali Road Map includes the Bali Action Plan, which charts the course for a new negotiating process designed to tackle climate change, with the aim of completing this by 2009. The U.S. reluctantly agreed to the proposal. [28] 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.”[29]

Three months after the Bali conference, talks opened in Bangkok, Thailand, from March 31st to April 4th, 2008, in an attempt to advance the Bali Road Map. Sessions of the Ad hoc Working Group on Long-term Cooperative Action under the Convention (first session) and the Ad hoc Working Group on further Commitments for Annex I Parties under the Kyoto Protocol (first part of the fifth session) also took place. [30] Yvo de Boer, executive secretary of the UNFCCC, noted that only about a year and a half was left to forge a complex and controversial agreement.

Another meeting of 17 nations that account for 80% of global GHG emissions was held in Paris later in April, 2008, led by the U.S. Many delegates (as well as environmentalists, scientists and lawmakers) criticized President Bush’s speech on April 16th, where he called for U.S. 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. [31]

3.5. COP-14

COP-14 and the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol (CMP-4) took place in Poznań, Poland, on Dec. 1-12, 2008. It concluded with a clear commitment from governments to shift into full negotiating mode next year in order to shape an ambitious and effective international response to climate change, to be agreed in Copenhagen at the end of 2009. Parties agreed that the first draft of a concrete negotiating text would be available at a UNFCCC gathering in Bonn in June of 2009. President-elect Barack Obama did not attend, and he did not assume office until Jan. 20, 2009.

3.6. COP-15

3.6.1. Pre-COP-15

A prelude to COP-15, the World Business Summit on Climate Change was one of a series of meetings during 2009 designed to press governments to take the radical measures that will be needed in Copenhagen; it was held there from May 24th-26th. “The Copenhagen Call,” a powerful if concise statement (4 pages), sets out the six elements it believes are required to forge an effective new global climate treaty, was issued at its conclusion.

On Oct. 20, 2009, less than two months before COP-15 in Copenhagen, the N.Y. Times reported that hopes are not high that the major differences among the major GHG emitters will be resolved before the meeting or that it will produce a comprehensive new treaty. [32] The following day, Oct. 21, 2009, India and China signed a 5-year agreement to cooperate on climate issues. In Addressing the ‘Post-Kyoto’ Stress Disorder: Reflections on the Emerging Legal Architecture of the Climate Regime, 58 International and Comparative Law Quarterly 803 (Oct. 2009) by Lavanya Rajamani, she argues “that one of the most significant factors hindering substantive progress on a post-2012 climate agreement is what is characterized here as the ‘post-Kyoto stress disorder’, a lack of trust amongst some developing countries that industrialized countries will, given current and past form, honour their commitments, and/or take the lead in the new climate agreement.”

A final round of U.N.-sponsored climate change talks prior to Copenhagen was scheduled in Barcelona, Nov. 2-6, 2009. On Nov. 4, 2009, it was announced that key government and U.N. officials admitted that arriving at a successor protocol is probably unlikely but might happen next year if a legally binding framework, rather than a treaty, is agreed to in Copenhagen. [33]

The Council on Foreign Relations held a symposium on Nov. 10, 2009, in Washington, entitled: Countdown to Copenhagen: What’s Next for Climate Change?, but the panelists were not optimistic about Copenhagen’s outcome. The first secretary at the Chinese embassy in Washington stated that industrialized nations were responsible for getting the world in the condition it is in and should bear the majority of the costs that developing nations will have to spend to remedy it. Participants did not expect specific emissions limits to be set in Copenhagen. [34]

On Monday, Nov. 16, 2009, environment ministers from 44 countries (including Brazil, China, India, and the U.S.) met in Copenhagen for a two-day meeting to discuss the upcoming COP-15 and the difficult issues that have had the 192 UNFCCC members deadlocked for two years. Danish Climate Minister Connie Hedegaard presented a concise (5-8 page) draft proposal for a binding political agreement. [35]

COP-15 was held at the Bella Center outside of Copenhagen. A climate-friendly car was parked outside.

At the Asia-Pacific Economic Cooperation summit meeting in Singapore in mid-Nov. 2009, President Obama and other world leaders acknowledged that it was unrealistic to expect a legally binding new climate treaty to emerge at Copenhagen in December as originally intended, given the conflicts between the 192 nations involved. They decided that it made more sense to make the COP-15 goal a less specific “politically binding” agreement and to postpone the difficult issues until 2010. One of the major reasons was the lack of progress on U.S. climate legislation; see infra § 4.4.1. [36] An EU official said that “it had been clear for months that Copenhagen was not going to yield a breakthrough and that there was plenty of blame to go around.” [37] President Obama traveled to China after that meeting, and at the summit that followed with Hu Jintao the “United States and China announced … a package of cooperative agreements on clean energy and climate change that are remarkable in both breadth and ambition. The cluster of seven initiatives, partnerships, action plans, and research centers covers a range of low-carbon energy strategies from electric cars to energy efficiency technologies.” [38]

President Obama announced in November that he may attend the Copenhagen conference in Dec. 2009 if his being there would be helpful. He believed a satisfactory framework convention could be worked out, despite the fact that the Senate will probably not pass climate legislation before the meeting; see infra § 4.4.1.2. [39]

On Nov. 25, 2009, the president attended the COP-15 on his way to Oslo to receive his Nobel Prize. He delivered a speech in Copenhagen on Dec. 9th at the beginning of the conference, offering a tentative U.S. reduction of GHG emissions “in the range of 17 percent below 2005 levels by 2020,” according to the White House, and 80% by mid-century. [40] Thereafter, on Dec. 4th, 2009, the White House announced that the president would attend COP-15 on Dec. 18th, the final day of the conference and the “high-level segment of the negotiations,” to signal his commitment to pushing the negotiations forward. [41]

For academic commentary, see, e.g., David B. Hunter, International Climate Negotiations: Opportunities

and Challenges for the Obama Administration, 19 Duke Envtl. L. & Pol’y F. 247 (Spring, 2009).

3.6.2. COP-15 Outcome

COP-15 nearly collapsed on the last day and might have done so but for the intervention of President Obama; even so, it was not viewed as an unqualified success. The interim agreement, the Copenhagen Accord, FCCC/CP/2009/L.7 (Dec. 18, 2009), vaguely reiterated well-known “commitments;” among other things, funds for mitigation, adaptation and forest conservation were promised; a High Level Panel was established to study potential sources of revenue; the Copenhagen Green Climate Fund was established to support projects, policies and other activities in developing countries related to mitigation; a Technology Mechanism was established to accelerate technology development and transfer. Committed parties are required under the Accord to submit national action plans for emission reductions by the end of January, 2010; the plans must be consistent with the agreement’s stated goal of limiting global temperature increases from carbon pollution from increasing to more than 2 degrees Celsius (3.6 degrees Fahrenheit) over pre-industrial levels. [42]

Leaders from developing countries, including Brazil, South Africa, India, and China, with the personal encouragement of President Obama, participated in finalizing this agreement; it is the first-time developing nations have agreed to binding emissions reductions in an international agreement. Furthermore, the Accord “includes a compromise between the United States and China to verify pollution reductions according to rigorous and transparent guidelines depending on the source of financing for the reductions. All reductions are subject to ‘international consultation and analysis.’” [43]

According to the U.S. Climate Action Network, a total of 73 countries – 40 Annex I and 33 non-Annex I countries – have submitted targets to the Secretariat; of these, 64 were “associated” with the Accord. Thirty-five more, are “associated” with the Accord without having, so far at least, submitted targets. (That means a total of 99 countries are “associated.”) Thirteen more countries (including Brazil, China and India, despite their importance in finalizing the agreement) have expressed support for the Accord but are not “associated” with it, for a tentative total of 112 “associated” or “supportive” countries. [44]

For more detailed commentary on COP-15, see:

• James Hansen et al., Target Atmospheric CO2: Where Should Humanity Aim?, 2 Open Atmos. Sci. J. 217 (2008) & James Hansen, Never-give-up fighting spirit: lessons from a grandchild, GRIST, Dec. 1, 2009.
• Zia, Asim, Post-Kyoto Climate Governance: Confronting the Politics of Scale, Ideology, and Knowledge (Routledge Studies in Ecological Economics 2013).
• Stockholm Environment Institute & Potsdam Institute for Climate Impact Research, A Copenhagen Prognosis: Towards a Safe Climate Future: A Synthesis of the Science of Climate Change, Environment and Development (2009). (“This report presents a concise diagnosis of the state of the biosphere and observed trends and offers a treatment plan that is consistent with a 2°C warming threshold, equity and economic development.”)
• GRIST’s Copenhagen Hub Page has many useful links to understanding the conference.
• Joseph E. Aldy & Robert N. Stavins, Post-Kyoto International Climate Policy: Implementing Architectures for Agreement (Cambridge University Press, 2010).
• Joseph E. Aldy & Robert N. Stavins, Post-Kyoto International Climate Policy: Summary for Policymakers (Cambridge University Press, 2009).
• Opinion: Copenhagen Accord pledges are paltry: Current national emissions targets can’t limit global warming to 2 °C, calculate Joeri Rogelj, Malte Meinshausen and colleagues — they might even lock the world into exceeding 3 °C warming, 464 Nature 1126 (April 22, 2010) (“In the worst case the Copenhagen Accord pledges could permit emission allowances to exceed business-as-usual projections.” The report also suggested that many countries, including the EU and China, pledged lower reductions than they have already been achieving. [45])

3.6.3. Post-COP-15

On Jan. 7, 2010, the Congressional Research Service issued a report entitled Greenhouse Gas Emissions: Perspectives on the Top 20 Emitters and Developed Versus Developing Nations. It suggests a new, more flexible approach, after the inability to come up with a binding successor agreement in Copenhagen, that would focus on major emitters, which the 2005 data from the World Resources Institute says are China (19.1%), and the U.S. (18.3%): “no other country emits more than 6 percent of total emissions, the report said, although the European Union’s 27 collective nations accounted for 13.4 percent of world emissions.” The 1992 UNFCCC placed responsibilities on industrialized nations to reduce emissions, but the developing world now, almost 20 years later, emits more than industrialized nations. Now, the Congressional Research Service has published a more recent study on greenhouse gas emissions and a final environmental impact statement (March 7, 2014). The fate of climate change was also being discussed at the UN in New York City to determine nations’ involvement and commitments going forward. A large march on Wall Street was also organized to support climate change initiatives in conjunction with the UN Climate Change Summit.

By Jan. 20, 2010, Yvo de Boer had spoken to 15 or 20 countries after the conference about their intentions and concluded that there was no guarantee that a treaty would be concluded that year. He stated in a webcast press conference that these countries anticipated that they would “forge an agreement this December on how to tackle climate change and then discuss further how to ‘package that outcome’ as a treaty” in 2011. [46] On Feb. 18, 2010, two months after COP-15, Yvo de Boer, executive secretary of the U.N. Framework Convention on Climate Change, announced he would resign on July 1st. [47] Christiana Figueres, a Costa Rican diplomat, will replace him; she was selected on May 15th and approved on May 17, 2010. She will be the first UNFCCC director from the developing world. (Eric J. Lyman & Leora Falk, International Issues: Costa Rican Diplomat Chosen to Head U.N. Climate Secretariat, Succeeding de Boer, WCCR, May 17, 2010))

A report released by the U.N. Environment Program on Feb. 23, 2010, entitled Information Note: How Close Are We to the Two Degree Limit?, concluded that GHG reduction plans were insufficient to keep global temperatures from rising above 2 degrees Celsius (3.6 degrees Fahrenheit), as agreed at COP-15. For more current reports, see the UN Environment Programme’s initiatives and documentation. In addition, scholars should consult the Harvard Project on International Climate Agreements for research on policy architecture and key design elements of the post-2012 international climate policy regime.

The midyear sessions of the Subsidiary Bodies to the United Nations Framework Convention on Climate Change were held in Bonn from May 31 to June 9th, and the Ad-hoc Working Groups on the Kyoto Protocol and on Long-term Cooperative Action from June 1 to the 11th. They were the most important negotiations since COP-15, and the last under Yvo de Boer, see supra.

3.7. COP-16

COP-16 was held in Cancun, Mexico, Nov. 29th to Dec. 10th, 2010. At the Eighth Leaders’ Representative Meeting of the Major Economies Forum on Energy and Climate in New York in September, 2010, Todd Stern reiterated those warnings; he thinks it is unlikely that a climate treaty will be concluded in November.

The U.N. Climate Change Conference began Oct. 4, 2010, in Tianjin, China, and ended Oct. 9th. Attended by 3,100 delegates and observers from 177 countries, it was the last opportunity to make progress on a successor to the Kyoto Protocol before Cancun.

At an early COP-16 session, Japan announced that it would not sign on for a second commitment period for the Kyoto Protocol after the first expires in 2012 unless China and the U.S. join the agreement; without the latters’ cooperation the protocol can never hope to achieve meaningful carbon reductions. Several countries condemned Japan’s move, others applauded it, including Russia which made a similar declaration. Some developed nations hope to move to a system of voluntary, non-binding, reductions pledges in the future. (Andrew Light, Has Japan killed the Kyoto Protocol? Does it matter?, Climate Progress, Dec. 7, 2010.)

The Cancun Agreements give participating countries another year to decide whether to extend the Kyoto Protocol. They set up a new fund to assist poor countries adapt to climate change, create new mechanisms for sharing clean energy technology, provide compensation for the preservation of tropical forests, make Copenhagen’s emissions reduction pledges stronger, include ways for developing nations to report and verify their emissions reductions, which the U.S. has favored, and make progress on Reducing Emissions from Deforestation and Degradation (aka “REDD”). (See John M. Broder, Climate Talks End With Modest Deal on Emissions, N.Y. Times, Dec. 11, 2010; Dean Scott and Eric J. Lyman, Climate Change: Cancun Talks End With Agreement to Push For Greater Emissions Cuts, Verify Actions, Robert Stavins, What Happened (and Why): An Assessment of the Cancun Agreements, Belfer Center, J.F.K. School of Government, Harvard University, Dec, 13, 2010).

3.7.1. Post-COP-16

The Ninth Informal Meeting on Further Actions Against Climate Change took place in Tokyo in March, 2011. Japan does not want to extend the Kyoto Protocol, as it said at Cancun, supra, as the Protocol covers only 27 % of global emissions, but favors setting reduction targets for all major emitters, including the U.S. and China.

3.8. COP-17

COP-17 was held in Nov. 2011, in Durban, South Africa. It concluded on December 11th with a tentative agreement to work toward a new treaty that treats all countries equally, once Kyoto expires. China and India remain adamantly opposed, claiming a legally binding treaty that did so would stifle their economic growth. (See John M. Broder, U.N. Climate Talks End With Deal for New Emissions Treaty, N.Y. Times, Dec. 11, 2011.) The participants agreed to adopt a “universal legal agreement” on climate change no later than 2015. A new group, the Ad Hoc Working Group on the Durban Platform for Enhanced Action, was created to work on the agreement. Also, a second commitment period under the Kyoto Protocol will begin January 1, 2013. (PRESS RELEASE: Durban conference delivers breakthrough in international community’s response to climate change, Dec. 11, 2011.)

3.9. Finding Relevant Documents

The web page of the United Nations Framework Convention on Climate Change serves both the Convention and the Kyoto Protocol by transmitting official documents and reports and other related information. It provides the latest data and is an invaluable resource for anyone researching in this area. The interactive guide is in the Essential Background section, which provides a useful introduction to global climate change, information on how the international community is responding, and background on the UNFCCC and the Kyoto Protocol.

Reports from COP/MOP sessions back to 1997 can be found under Meetings/Meetings Archive or you can do an Advance Search in Documentation/Documents on the UNFCCC Web page.

3.9.1. IPCC’s Assessment Reports

The Intergovernmental Panel on Climate Change (IPCC) was “established by the WMO and the UNEP to assess scientific, technical and socio-economic information relevant for the understanding of climate change, its potential impacts and options for adaptation and mitigation.” In February 2011, the first 5 assessment reports, and other IPCC publications, were available online. The Fifth Assessment Report was released between September 2013 and November 2014.

IPCC Fourth Assessment Report: Climate Change 2007 (“AR4”):Working Group I’s contribution to the Fourth Assessment Report deals with the “Physical Science Basis” of climate change. The other three sections are from Working Group II, “Impacts, Adaptation and Vulnerability,” Working Group III, “Mitigation of Climate Change,” and the Synthesis Report. [48]

The report, in which 1200 scientists from over 100 countries participated, concluded that “global warming is ‘unequivocal’ and that human activity is the main driver….” The article pointed out that this is the first report “in which the group asserts with near certainty — more than 90 percent confidence — that carbon dioxide and other greenhouse gases from human activities” are responsible for the warming. (See Elisabeth Rosenthal & Andrew C. Revkin, Science Panel Says Global Warming Is ‘Unequivocal’, N.Y. Times, Feb. 3, 2007, A1; Richard Black, Humans Blamed for Climate Change, BBC News, Feb. 2, 2007).

At the conference in Paris where the report was released, the U.S. government favored developing technology to block sunlight or refract it away from the earth with giant orbiting mirrors and is on record as having wanted such a proposal included in the summary for policymakers. [49] See Geoengineering, infra § 9, Innovative Technologies to Reduce GHG.

AR4 states on page 12 that paleoclimate information supports the interpretation that the warmth of the last half-century is unusual in at least the previous 1300 years. The last time the polar regions were significantly warmer than present for an extended period (about 125,000 years ago), reductions in polar ice volume led to 4 to 6 metres of sea level rise.

The second part of AR4, entitled Impacts, Adaptation, and Vulnerability was released on Friday, April 6, 2007. [50] Although some areas in the northern hemispheres will temporarily benefit from global warming, poorer nations that are already at risk from climate changes are likely to suffer the most. [51]

The third section of AR4, entitled Mitigation of Climate Change was released on May 4, 2007, in Bangkok. The report showed that GHG emissions have increased 70% between 1970 and 2004. They will continue to grow unless consumption is seriously curtailed. However, the report concludes that emissions stabilization can be achieved at costs, projected at 3% global GDP, that do not disrupt the global economy. [52]

Sixth Assessment Report (AR5) is underway and will be finalized in 2021.

4. The United States

4.1. The Clinton Administration (1993-2001)

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.” [53] However, in the 1994 mid-term elections, the Democrats lost control of both houses of Congress for the first time in forty years, and after that the president was unable to persuade the Republican Congress to cooperate with his good intentions. [54] Our subsequent lack of national consensus on climate change was a disappointment to environmentalists. [55]

In 1995, COP-1 met in Berlin, adopted the Berlin Mandate as discussed supra § 2., and began negotiating a protocol that would set enforceable reductions in emissions, for Annex I parties only. The U.S. agreed to the Berlin Mandate, despite misgivings about the exclusion of developing country parties (the “non-Annex I” parties). [56]

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. 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.

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. [57]

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. [58] The appendix to the report, S. Rpt. 105-54, that accompanied Senate Resolution 98 contained the testimony given at those hearings. The primary reasons the Senate gave for the U.S. not to sign included the protocol’s exemption of all 129 developing country parties from any obligations under the protocol. The Senate considered that omission “inconsistent with the need for global action on climate change and … environmentally flawed.” Also, the Senate “strongly” believed that “serious harm to the United States economy…” could result if the U.S. did join. [59] Resolution 98 was passed by the Senate 95-0 on July 25, 1997. Senator Byrd, one of its co-authors, elaborated on those two reasons in the Congressional Record about six months later, referring to the Protocol several times as a “work in progress.” [60]

On Oct. 22, 1997, President Clinton spoke at the National Geographic Society where he outlined three elements of a comprehensive climate change framework: 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. [61]

As noted supra, the Kyoto Protocol was adopted on Dec. 11, 1997, at COP-3, after about 30 months of delicate negotiations. [62] In February of 1998, the Senate Committee on Foreign Relations held a hearing entitled Implications of the Kyoto Protocol on Climate Change. The testimony, on page 2, noted that the Protocol, as adopted the previous December, “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. [63]

In fact, U.S. Vice-President Gore did sign the Protocol on Nov. 12, 1998, and agreed to make greenhouse gas emission cuts of 7% below 1990 levels. [64] Overall, the signature was largely symbolic, as it was extremely unlikely, after the Byrd-Hagel Resolution passed so decisively, that the Senate would ratify it. [65]

4.1.1. The Former Clinton Administration: Subsequent Developments

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. [66] Mr. Clinton spoke anyway, and he called the Bush administration’s opposition to the Protocol on the basis that it would harm the U.S. economy “flat wrong.” [67]

In 2005, former President Clinton launched the Clinton Global Initiative (CGI), which “reflects his belief that governments need collaboration from the private sector, non-governmental organizations, and other global leaders to effectively confront the world’s most pressing problems.”

On Aug. 2, 2006, former President Clinton launched the Clinton Climate Initiative, as part of the William J. Clinton Foundation, in order to “make a difference in the fight against climate change in practical and measurable ways.” The Initiative joined with the Large Cities Climate Leadership Group (a group of 23 cities worldwide, formed in 2005 to reduce urban carbon emissions) to help large cities combat global warming; the group is now called C40 Cities. [68]

Since his defeat in the 2000 presidential election, former Vice-President Al Gore has made a name for himself as an environmentalist. His 2006 film, “An Inconvenient Truth,” devoted to the risks of global warming, debuted at the Sundance festival and was a critical success, even earning Academy Awards for best documentary feature and best original song, I Need to Wake Up, by Melissa Etheridge, in January 2007. [69]

4.2. The Bush Administration & Climate Change (2001-2006)

The Bush administration was known to have many connections with the oil industry, and Mr. Bush was not expected to favor environmental efforts. Indeed, President Bush made it clear on June 11, 2001, in his Remarks on Global Climate Change, I Public Papers of the President 634 (June 11, 2001), that he would not support the Kyoto Protocol, as it was “fatally flawed in fundamental ways,” that it unfairly exempted most of the world, and that it was not in the economic interests of the United States. [70] Former Vice-President Gore’s signature had little effect without ratification, but the signature did mean that the U.S. must not work against the Protocol or prevent other nations from ratifying.

In the course of writing the report, President Bush’s working group requested that the National Academy of Sciences write a review of the state of climate change science, in hopes that it would counterbalance the conclusions of the IPCC’s research. It was released in June of 2001, in time for the president to refer to it in his June 11, 2001 speech. However, the report largely agreed with the IPCC’s conclusions. (Naomi Oreskes, Beyond the Ivory Tower: The Scientific Consensus on Climate Change, 306 (5702) Science 1686, Dec. 3, 2004.) 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.: NAP, 2001).

The National Climate Change Technology Initiative (NCCTI) was also launched on June 11, 2001. The Climate Change Technology Program (CCTP), a multi-agency effort to develop climate change technology, was established in the Department of Energy to implement the NCCTI. CCTP was reviewed at workshops in 2005, and in May 2006 a report was issued, entitled Results of a Technical Review of the U.S. Climate Change Technology Program’s R&D Portfolio. The report concluded that the program is “doing very little in terms of novel, pushing-the-envelope technology development,” such as carbon sequestration, zero emission agricultural practices, more efficient power transmission and conducting, and “bio-inspired” fuels.

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, [71] sought to reduce GHG “intensity” by 18% by 2012 and was advertised as “a better alternative to the Kyoto Protocol.” According to some critics, 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.” [72] It has not been enacted.

4.2.1. The Senate Environment Committee

Sen. James Inhofe (R/OK), chairman (in December 2006) 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” [73] and an overly media-hyped issue.

Monday, Sept. 25, 2006, Senator Inhofe gave a speech debunking media coverage of global warming, entitled “Hot & Cold Media Spin Cycle: A Challenge To Journalists Who Cover Global Warming.” On Sept. 28, 2006, he gave a follow-up speech called “America Reacts to Speech Debunking Media Global Warming Alarmism” in which he discussed CNN’s criticism of his earlier speech.

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:

• S. 342, the Climate Stewardship Act of 2005: A subsequent incarnation of S. 139, the Climate Stewardship Act of 2003 (introduced by McCain and cosponsored by Lieberman, it was the first major climate bill in the Senate), S. 342 provided for a program of scientific research on abrupt climate change, to accelerate the reduction of greenhouse gas emissions in the United States by establishing a market-driven system of greenhouse gas tradable allowances, to limit greenhouse gas emissions in the United States and reduce dependence upon foreign oil, and ensure benefits to consumers from the trading in such allowances.
• S. 1151, the Climate Stewardship and Innovation Act of 2005, also known as the ‘McCain-Lieberman’ bill: S. 1151 provided for a program to accelerate the reduction of greenhouse gas emissions in the United States by establishing a market-driven system of greenhouse gas tradable allowances, to limit greenhouse gas emissions in the United States and reduce dependence upon foreign oil, to support the deployment of new climate change-related technologies, and ensure benefits to consumers.

The Climate Stewardship and Innovation Act of 2007 would have capped global-warming emissions from utilities, industry, and transport at 2004 levels by 2012 and then gradually decrease emissions to about 30 percent of 2004 levels by 2050. [74]

• S. 3698, the Global Warming Pollution Reduction Act: A bill to amend the Clean Air Act to reduce emissions of carbon dioxide and for other purposes.

On Feb. 14, 2002, President Bush launched his Clear Skies and Global Climate Change Initiatives; its goal was to reduce U.S. GHG “intensity” by 18% over the next 10 years. [75] 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. [76] One program, the Climate Leaders Program, is run by the U.S. Environmental Protection Agency; the other, Climate VISION (Voluntary Innovative Sector Initiatives: Opportunities Now), is run by the Department of Energy. However, a report published by the General Accounting Office in April of 2006, entitled Climate Change: EPA and DOE Should Do More to Encourage Progress Under Two Voluntary Programs, concluded that many of the U.S. companies participating in the programs have failed to set goals for reducing emissions.

4.2.2. Climate Change Science Program

Also in 2002, President G.W. Bush launched the U.S. Climate Change Science Program (USCCSP) to coordinate climate change research at 13 departments and agencies, including EPA, NOAA, and the DOE; it incorporates the U.S. Global Change Research Program (USGCRP), established under the Global Change Research Act of 1990, Pub. L. No. 101-606, 104 Stat. 3096, during the presidency of George H.W. Bush, and the Climate Change Research Initiative, established by President George W. Bush in 2001. An over-200-page report was issued in July 2003 by the Climate Change Science Program and the Subcommittee on Global Change Research, entitled The Strategic Plan for the U.S. Climate Change Science Program. Under the Global Change Research Act of 1990 (§ 107 of the original act), the USCCSP is required to submit an annual report to Congress. These reports, entitled Our Changing Planet, have been posted on the U.S. Global Change Research Information Office Web page since 2004.

The Climate Change Science Program also produces the National Assessment required by the Global Change Research Act of 1990; its § 106 states that at least every 4 years the U.S. Climate Change Science Program shall prepare and submit to the President and Congress an assessment to analyze the effects of climate change on the environment, the economy, human health and safety, and project major trends for the future. The first National Assessment, entitled: Climate Change Impacts on the United States: The Potential Consequences of Climate Variability and Change, was issued in October, 2000; the update to it was due in November, 2004. See Letter of April 14, 2005, from Senators John McCain and John F. Kerry, entitled Climate Change Assessment: Administration Did Not Meet Reporting Deadline. On Nov. 14, 2006, the Center for Biological Diversity, Greenpeace, and the Friends of the Earth sued the Bush administration, claiming it had violated the Global Change Research Act by refusing to produce the overdue 2004 National Assessment. The case, Center for Biological Diversity, et al. v. Dr. William Brennan, et al., No. 06-CV-7062 (SBA), was filed in U.S. District Court for the Northern District of California. [77] The case was decided in favor of the plaintiffs in an order filed on Aug. 21, 2007. 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. 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.” Finally, Global Climate Change Impacts in the United States was released in June 2009. [78] The National Assessment was a constant source of controversy for the Bush Administration. [79] See infra § 4.2.4., Political Interference with Climate Research and other Sciences, Hearings in the House of Representatives.

On May 10, 2007, EPA announced, at 72 (90) Fed. Reg. 26628-26629 (May 10, 2007), the formation of two committees to provide advice on two USCCSP programs. The committees are the Adaptation for Climate-Sensitive Ecosystems and Resources Advisory Committee, to work on a study entitled: “Preliminary Review of Adaptation Options for Climate-Sensitive Ecosystems and Resources,” and the Human Impacts of Climate Change Advisory Committee, to work on a study entitled: “Analyses of the Effects of Global Change on Human Health and Welfare and Human Systems” study.

On Nov. 5, 2007, Senators John Kerry (D-Mass.) and Olympia Snowe (R-Maine) introduced the Kerry-Snowe Global Change Research Improvement Act of 2007, S. 2307, to revise the USCCRP, which has not been significantly amended since 1990, to include consideration of state and local climate change issues. It was referred to the Senate Committee on Commerce, Science, and Transportation and reported out of committee on May 22, 2008, by Senator Inouye with amendments and written report S. Rep. No. 110-341. It was placed on the Senate Calendar but failed to pass.

4.2.3. The Feinstein-Snowe Resolution

On Feb. 16, 2005, the 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. 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” that has not. (The G8 includes Canada, France, Germany, Italy, Japan, the U.K. the U.S., and Russia, since 1997.) 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,” but it stopped short of recommending that the U.S. sign the Kyoto Protocol. Ms. Snowe made a statement in support at 151 CONG. REC. S1708 (Feb. 18, 2005), but no action was taken, and the resolution expired at the end of the 109th Congress.

The lead co-sponsor of the Resolution, Olympia J. Snowe (R/ME), was co-chairman of the International Climate Change Taskforce, which released a report entitled Meeting the Climate Challenge in January, 2005.

4.2.4. The Sense of the Senate on Climate Change

On June 22, 2005, Senator Jeff Bingaman introduced with 12 co-sponsors Senate Amendment 866 to H.R. 6, a bill to ensure jobs for our future with secure, affordable, and reliable energy. The Bingaman Sense of the Senate on Climate Change amendment, 151 CONG. REC. S7089 (June 22, 2005), 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.”

The measure was defeated by roll call vote of 44 to 53 on June 22, 2005. Senator James Inhofe, among others, spoke extensively against the measure, at 151 CONG. REC. S7034-35, S7037, emphasizing the uncertainty of climate science and the potential damage to the economy. H.R. 6 became the Energy Policy Act of 2005, Pub. L. No. 109-58.

4.2.5. Asia-Pacific Partnership on Clean Development & Climate

The Bush administration established the Asia-Pacific Partnership on Clean Development and Climate in July 2005. Member nations include Australia, Canada, China, India, Japan, the Republic of Korea, and the United States. [80]The APP was formed to “accelerate the development and deployment of clean energy technologies;” it “will be consistent with and contribute to Partners’ efforts under the UNFCCC and will complement, but not replace, the Kyoto Protocol.” The first meeting was held in Sydney, Australia, in January 2006. In April 2006, in Berkeley, California, Task Forces in the following major energy-intensive sectors in Partner economies met to begin developing task force plans. In a later meeting in October 2006, in Korea, nearly 100 individual projects aimed at reducing greenhouse gas emissions over the last few years were endorsed. [81]

4.2.6. 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. [82]Since then, the National Association of Evangelicals has agreed to collaborate.

On May 22, 2007, over 20 Christian, Jewish and Muslim groups, including the National Association of Evangelicals, sent a letter to President Bush and Congress urging action on climate change. The letter was published in two Capitol Hill newspapers, Politico and Roll Call. [83]

In an address to foreign ambassadors on Jan. 11, 2010, Pope Benedict said that he regretted that “economic and political resistance to combating the degradation of the environment” prevented a successful outcome at COP-15 in Copenhagen, and expressed his hope that this year would bring a comprehensive agreement on climate change. [84] Court decisions have found that to criticize evolution in the public schools is a violation of the separation of church and state. Opponents of evolution among evangelical Christians are getting around that by insisting that global warming be debated along with evolution, the origin of the universe and other allegedly controversial issues, thus encouraging academic freedom in general. States with either enacted or un-enacted legislation or pending bills to that effect include Texas, Kentucky, Oklahoma and South Dakota. [85]

Republican Sen. Lindsey Graham of South Carolina, who in late 2009 and early 2010 was working with Senators Kerry and Lieberman (both Democrats) on a climate change and energy bill (see infra § 4.4.1.2. GHG legislation: Senate), has been roundly criticized by conservatives for doing so. However, in March 2010, the Christian Coalition (with 2.5 million conservative Republican supporters) came out in support of Graham and climate change legislation. [86]For academic commentary, see, e.g., Stephen M. Johnson, Is Religion the Environment’s Last Best Hope? Targeting Change in Individual Behavior Through Personal Norm Activation, 24 Journal of Environmental Law and Litigation 119 (2009).

These issues continued over into the Obama administration. A symposium entitled “Evangelicals, Science, and Policy: Toward a Constructive Engagement” took place at the February 2011 annual meeting of the American Association for the Advancement of Science. (Sara Reardon, Can Science and Religion Get Along?, ScienceNOW, Feb. 19, 2011).

4.2.7. Post-Midterm Elections, 2006-2008

In November 2006, Democrats won a narrow majority in the House and the Senate, which meant that the chairmanships of important environmental and energy committees would change. [87] Nevertheless, on Nov. 29, 2006, the day of oral arguments on Mass. v. EPA, union representatives of over 10,000 EPA scientists, engineers, specialists and support staff members, filed a mass petition calling for Congress to take immediate action against global warming, and for an end to political interference with climate change scientists. See infra § 4.2.4. Political Interference with Climate Science.

At the 2007 World Economic Forum in Davos, Switzerland, British Prime Minister Tony Blair was optimistic that a major shift in the U.S. attitude toward climate change was pending. Senator John McCain spoke also, claiming that Congress would act soon on climate change legislation. [88] Surprisingly enough to Democrats, on Jan. 4, 2007, at the start of the 110th Congress, Senator Ted Stevens (a Republican from Alaska, and an ardent supporter of drilling in the Arctic National Wildlife Refuge) introduced S. 183, the Improved Passenger Automobile Fuel Economy Act of 2007, that would require passenger cars sold in the U.S. to get an average of 40 MPG by model year 2017. [89] 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.” [90] 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. [91] It did, however, eliminate the “SUV loophole” by not distinguishing between passenger cars and light trucks, and would be the first major revision of fuel economy standards since the 1970s. Environmentalists were not enthusiastic, though they admitted that it was at least a start, and auto manufacturers were even less so, calling the new standards “unattainable” and lamenting the loss of the SUV .[92] 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. [93]

Fuel economy is taken much more seriously in Europe, where 113 vehicle models get at least 40 mpg (combined city and country), an increase of 27 models from 2005. The U.S., on the other hand, which had 5 such models in 2005, had 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. [94]

Senator Boxer added two global warming subcommittees to Environment and Public Works. She chaired the Subcommittee on Public Sector Solutions to Global Warming, Oversight, and Children’s Health Protection [originally Public Sector Solutions to Global Warming, Oversight, Children’s Health Protection, and Nuclear Safety], and Sen. Joseph Lieberman (I-Conn.) headed the Subcommittee on Private Sector and Consumer Solutions to Global Warming and Wildlife Protection.

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. [95] 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.

Speaker Pelosi established a select House committee to gather scientific information to improve public awareness of climate change, called the House Select Committee on Energy Independence and Global Warming. [96] In the January 2007 press release announcing the new committee, supra, Speaker Pelosi said she hoped to have global warming legislation through committees with jurisdiction over energy, environment and technology policy by July 4th, 2007. In January 2007, the National Oceanographic and Atmospheric Administration (NOAA) acknowledged that human activities were contributing to warmer temperatures. [97]

On Jan. 12, 2007, Representative Nick J. Rahall, II, and 198 co-sponsors, introduced H.R. 6, the “Creating Long-Term Energy Alternatives for the Nation Act of 2007” or the “CLEAN Energy Act of 2007.” The bill (one of several major climate-related bills introduced in the new 110th Congress) would roll back tax and other forms of relief for the oil and gas industry, [98] and steer the resulting funds toward energy efficiency and renewable energy sources. [99] The related House Resolution 66, reported from the Rules Committee, providing for consideration of H.R. 6 with 3 hours of general debate, was passed on Jan. 18, and H.R. 6 was enacted as Pub. L. No. 110-140 on Dec. 19, 2007. (See infra for discussion of H.R. 2420, and Energy & CAFE standards in the 110th Congress.)

On Jan. 16, 2007, Senators Biden and Lugar reintroduced S. Res. 30, “[e]xpressing the sense of the Senate regarding the need for the United States to address global climate change through the negotiation of fair and effective international commitments.” See Byrd-Hagel Resolution, S. Res. 98, supra. It was approved by the Foreign Relations Committee on March 29th, reported back to the Senate without an amendment or a written report, and placed on the Senate Legislative Calendar under General Orders, Calendar No. 101; as of mid-April 2007, it was thought that S. Res. 30 might be considered by the Senate by Memorial Day, but it was not passed.

The 110th Congress began with several important 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, the Global Warming Pollution Reduction Act, to cut GHG 80% below 1990 levels by 2050
• S. 317, the Electric Utility Cap and Trade Act of 2007, which would cap GHG emissions from power plants at 2001 levels in 2015 and require a 1% additional reduction each year through 2020.
• To search for other legislation, go to Congress.gov or for legislative information go to the Government Printing Office (FDsys).

On Jan. 24, 2007, the day after his 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. [100]

On Feb. 8, 2007, the House Committee on Science and Technology held hearings entitled The State of Climate Change Science 2007, coordinated with the release of the IPPC’s Fourth Assessment Report. On March 20, 2007, the House Committee on Energy and Commerce held a hearing entitled Climate Change: Perspectives of Utility CEOs. The executives were not opposed to mandatory carbon emissions limits, but were predictably concerned about increased utility charges. [101] 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.

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, [102] and Bjørn Lomborg, adjunct professor, Copenhagen Consensus Center, Copenhagen Business School. Later that day, Mr. Gore also testified in front of the Senate Committee on Environment and Public Works. Predictably, Democrats received his proposals favorably, but only a few Republicans joined them, albeit cautiously.

On March 28, 2007, Senator Durbin (D-IL) and Senator Hagel (R-Neb) introduced the Global Climate Change Security Oversight Act, S. 1018, that would, if enacted, require federal intelligence agencies to collaborate on a National Intelligence Estimate to evaluate the effect of predicted climate-related disasters on U.S. national security. Shortly thereafter, on April 16th, a report entitled National Security and the Threat of Climate Change was released by the CNA Corporation’s Military Advisory Board, which consisted of 11 retired 3- and 4-star admirals and generals, a former NASA administrator, and other experts.General Gordon R. Sullivan, chairman of the MAB, stated that: “We found that climate instability will lead to instability in geopolitics and impact American military operations around the world.” He appeared before the House Select Committee on Energy Independence and Global Warming on April 18th. Three members of CNA’s Military Advisory Board testified again on May 9, 2007, before the Senate Foreign Relations Committee. 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.

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.” [103]

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. [104] In October of 2007, no legislation had been enacted, but Congress was still trying. See below. On Oct. 3d, the House of Representatives issued the first in a series of Climate Change Legislation Design White Papers, to “focus the discussion” in Congress as it attempts to enact a climate change bill; the first was entitled “Scope of a Cap-and-Trade Program.”

On Oct. 18, 2007, Senators Lieberman (chair of the Environment and Public Works Subcommittee on Private Sector and Consumer Solutions to Global Warming and Wildlife Protection) introduced the America’s Climate Security Act of 2007, S. 2191, aka the “Lieberman-Warner bill,” which would, in its section 9004, Retention of State Authority, refrain from preempting states from enacting GHG standards more stringent than the federal ones. A hearing on the bill was held on Wednesday, Oct. 24, 2007, before the Senate Committee on Environment and Public Works to which the bill was referred. Testimony was presented by Kevin Anton, President of Alcoa Materials Management; Frances Beinecke, President of Natural Resources Defense Council; Dr. William R. Moomaw, Director of Tufts University Institute for the Environment; Will Roehm, Vice President of the Montana Grain Growers Association; and Paul Cicio, Executive Director of Industrial Energy Consumers of America. On Nov. 1, 2007, after modifications that procured more support, 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.

On May 20th, Senator Boxer introduced a tougher climate bill, S. 3036, but later supported the earlier bill because it had more general support and a greater likelihood of passing. On June 6, 2008, the Lieberman-Warner Climate Security Act of 2008 (S. 3036) died in the Senate after failing to get the 60 votes needed to limit a filibuster, as Sen. Lieberman had hoped.

The Pew Center on Global Climate Change has a 2-page document on their Web site which neatly and clearly summarizes the major GHG proposals. Published on Nov. 26, 2007 and entitled Economy-wide Cap-and-Trade Proposals in the 110th Congress, it includes legislation introduced as of November 16th.

On July 9, 2008, Bush and other leaders of the G8 signed a “commitment” to cutting GHG emissions 50% by 2050, with no interim targets and no mechanism for achieving the goal. And on July 11, 2008, the administration said it would not use the Clean Air Act to regulate GHG emissions, the Supreme Court decision in Mass. v. EPA notwithstanding. See David Malakoff, Climate Change: Bush Takes a Final Swipe, and Salute, at CO2 Emission Curbs, 321 (5887) Science 324 (July 18, 2008).

4.2.8. Energy & CAFE standards in the 110th Congress (2007-2009)

On May 23, 2007, the House Foreign Affairs Committee approved H.R. 2420, the International Climate Cooperation Re-engagement Act of 2007, which would have required U.S. negotiators to launch talks aimed at securing U.S. participation in binding GHG reduction agreements that would also include Brazil, China and India, to prevent a gap in Kyoto Protocol requirements after 2012.

On Mar. 13, 2008, the American Energy Independence and Security Act of 2008, S. 2758,was introduced to open the Arctic National Wildlife Refuge to oil drilling if oil reaches $125 per gallon for 5 consecutive days; its sponsors were Alaska Senators Lisa Murkowski and Ted Stevens. However, few believed the bill to have significant support, and it did not emerge after referral to the Committee on Energy and Natural Resources. [105]

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.[106]

4.2.9. Political Interference with Climate Research & Other Sciences

Hearing transcripts are located on committee websites for a while but they are not archived there. I give the links to hearings when updating, but eventually they will not work. Later, some hearings will be on the FDsys website, from the 104th Congress (1995-96) to current, or on ProQuest Congressional (by subscription only). (Committee reports are here from the 104th Congress (1995-1996) to current. Bills are also; the Bill Text feature covers the 101st Congress (1989) to current; Bill Summary and Status covers the 93rd Congress (1973) to current.)

UCS & GAP Reports:

• On Jan. 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.
• 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. [107]
• In April 2008 the UCS released a report entitled Interference at the EPA: Science and Politics at the U.S. Environmental Protection Agency. The report showed that 889 of nearly 1,600 EPA staff scientists experienced political interference in their work over the previous five years.

Hearings in the House of Representatives:

Atmosphere of Pressure, supra, was presented on Tuesday, Jan. 30, 2007, at a hearing held by the House Committee on Oversight and Government Reform, chaired by Rep. Henry Waxman (D-CA), entitled Political Interference With Climate Change Science Under the Bush Administration, 110th Cong. (2007). Testifying were Francesca T. Grifo, Ph.D., from the Union of Concerned Scientists; Rick Piltz, from the Government Accountability Project; Dr. Drew T. Shindell, a climate researcher at NASA’s Goddard Center; and Roger A. Pielke, Jr., University of Colorado, Boulder. A transcript is no longer (on Dec. 3, 2009) on the committee Web site, as noted above; it is, however, available from govinfo.

House Hearings continued in the House Committee on Oversight and Government Reform entitled Allegations of Political Interference with Government Climate Change Science on Mar. 19, 2007. In his opening statement, Chairman Waxman stated that the documents produced since the earlier hearing on Jan. 30th suggested that “there may have been a concerted effort directed by the White House to mislead the public about the dangers of global climate change.” Testifying were Mr. Philip Cooney, former Chief of Staff, White House Council on Environmental Quality; Dr. James Hansen, Director, Goddard Institute for Space Studies, National Aeronautics and Space Administration; Mr. George Deutsch, former public affairs officer, National Aeronautics and Space Administration; Mr. James Connaughton, Chairman, White House Council on Environmental Quality; and Dr. Roy Spencer, University of Alabama in Huntsville. Mr. Cooney, who worked for the American Petroleum Institute before joining the CEQ in 2001, defended the 181 alterations he made to climate reports while working at CEQ. [108]

The House Committee on Natural Resources held a hearing entitled Endangered Species Act Implementation: Science or Politics? on May 9, 2007. One witness, Jamie Rappaport Clark, testified that the current administration has “undermined the scientific integrity of its [ESA] programs with political interference and slowly starved the program of needed resources.” The hearing was held the week after Julie MacDonald, former deputy assistant secretary for fish, wildlife and parks, resigned over allegations that she “bullied federal scientists,” among other things. [109]

Senate Hearing:The Senate Committee on Commerce, Science, and Transportation, chaired by Senator Daniel K. Inouye (D-Hawaii), held similar hearings, entitled Climate Change Research and Scientific Integrity, on Wednesday, Feb. 7, 2007.

Additional Examples:

• · In early 2006, the director of the NASA Institute for Space Studies 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.”[110]
• 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. [111]
• On Oct. 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. [112]
• In December 2007 (during the Bali Conference), the House Oversight and Government Reform Committee issued a report entitled Political Interference with Climate Change Science Under the Bush Administration, the result of 16 months of investigations. 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: “The White House exerted unusual control over the public statements of federal scientists on climate change issues. It was standard practice for media requests to speak with federal scientists on climate change matters to be sent to CEQ for White House approval. By controlling which government scientists could respond to media inquiries, the White House and agency political appointees suppressed dissemination of scientific views that could conflict with Administration policies. The White House and political appointees also edited congressional testimony regarding the science of climate change.” [at page 4.] “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.” [113] [at page ii.] The GOP response accused Democrats of “deep animus toward the Bush administration.” [114]
• 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. [115]
• 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.”[116] 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.”
• 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, S. 2555 which would require the president to approve California’s CAA waiver request (which the president apparently pressured EPA Administrator Johnson to deny); it did not pass, however. [117]

Commentary Includes:

• Robert F. Rich & Kelly R. Merrick, Use and Misuse of Science: Global Climate Change and the Bush Administration, 14 Virginia Journal of Social Policy & the Law 223 (2007).
• Seth Shulman, Undermining Science: Suppression and Distortion in the Bush Administration (Berkeley: University of California Press, 2006).
• Sidney A. Shapiro, “Political” Science: Regulatory Science After the Bush Administration, 4 Duke J. Const. Law & Pub. Pol’y 31 (2009).
• Michele Estrin Gilman, The President as Scientist-in Chief, in Symposium, Presidential Power in the 21st Century, 45 Willamette L. Rev. 565 (spring, 2009).

4.2.10. Arctic Animals Endangered by Global Warming

4.2.10.1. Polar Bears

In 2004, the Center for Biological Diversity’s Climate, Air, and Energy Program started a petition that was eventually filed on Feb. 16, 2005, to give polar bears Endangered Species Act protection as a result of climate change. When the Department of the Interior’s Fish and Wildlife Service failed to respond, the Center filed a law suit, Center for Biological Diversity et al. v. Norton, in December, 2005, in the U.S. District Court for the Northern District of California. On Dec. 21, 2005, the Interior Department released a 262-page report entitled Range-Wide Status Review of the Polar Bear (Ursus maritimus) on the effect of human activities on Arctic warming and the bears’ survival, despite the department’s having denied for months that it had analyzed human activities on polar bears. [118] On Dec. 27, 2006, in order to settle the suit, the Service proposed to list the polar bear as “threatened” under the ESA; the polar bear report was not cited in the listing. [119] Comments were accepted until April 9th, 2007, with a final decision on the listing required by Jan. 9, 2008. Kassie Siegel, climate director at the Center for Biological Diversity, stated: “As far as we can determine, it is the first admission by the administration in a legally meaningful context of the reality of global warming.” [120]

On Feb. 13, 2007, the Center for Biological Diversity and Pacific Environment sued the federal government in U.S. District Court for the Northern District of California in San Francisco, claiming that the Fish and Wildlife Service did not fully consider the effects of global warming and oil and gas exploration on polar bears and other marine mammals when it wrote the regulations in Title 50, part 18, subpart J, on page 43950, 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 (aka “the incidental take rules,” 71 Fed. Reg. 43926 (Aug. 2, 2006)); the plaintiffs claimed that the regulations violated the Marine Mammal Protection Act and NEPA. (Center for Biological Diversity v. Kempthorne, No. 08-35402 (Dec. 2, 2009)). The suit focused on the regulatory term “incidental taking.” [121] The District Court gave summary judgment to defendants, upholding the regulations, and plaintiffs appealed. On Dec. 2, 2009, Judge Jerome Ferris of the 9th Circuit Court of Appeals affirmed the district court.

Two companion bills were introduced in the first session of the 110th Congress: H.R. 2327, the Polar Bear Protection Act of 2007, on May 15, 2007, and S. 1406, by the same name, on May 16, 2007. Neither was reported back to Congress by the committees to which they had been referred.

On Sept. 7, 2007, the U.S. Geological Survey released New Polar Bear Finding, the results of 9 studies on the effects of climate change on polar bears. The studies were to determine whether the bears should be regulated under the Endangered Species Act. 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. [122]

Although a final decision on the listing was due on Jan. 9, 2008, the FWS postponed the decision for a few weeks on Jan. 7th. [123] Representative Edward Markey (D-MA) introduced H.R. 5058 on Jan. 17, 2008, “To prohibit the Secretary of the Interior from selling any oil and gas lease for any tract in the Lease Sale 193 Area of the Alaska Outer Continental Shelf Region until the Secretary determines whether to list the polar bear as a threatened species or an endangered species under the Endangered Species Act of 1973, and for other purposes.” [124] It was referred to the House Committee on Natural Resources, where it died.

On Jan. 17, 2008, the International Fund for Animal Welfare released a report entitled: On Thin Ice: The Precarious State of Arctic Marine Mammals in the United States Due to Global Warming, a comprehensive report commissioned to gauge the effects of unprecedented climate change on polar bears and other ice-dependent marine mammals within the United States.

On Mar. 10, 2008, NRDC, the Center for Biological Diversity, and Greenpeace sued the Bush administration for missing the January 2008 deadline for a final decision on whether to list the polar bear under the ESA. [125] 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.

A report published online on April 29, 2010, by Péter K. Molnár, Andrew E. Derocher, Gregory W. Thiemann & Mark A. Lewis, entitled: Predicting survival, reproduction and abundance of polar bears under climate change, in Biological Conservation, predicts that polar bear populations will plummet suddenly after reaching a “tipping point.” (Matt Walker, Polar bears face ‘tipping point’ due to climate change, BBC News, May 25, 2010.)

On Nov. 24, 2010, the FWS designated 187,157 square miles of “critical habitat” for polar bears living on Alaska’s disappearing sea ice, which could affect new oil and gas projects although it does not overtly bar them. (Final Rule, Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Polar Bear (Ursus maritimus) in the United States, 75 Fed. Reg. 76086 (Dec. 7, 2010).)

On Jan. 5, 2011, Mr. Young of Alaska introduced H.R. 39, the Polar Bear Delisting Act, to rescind the bears’ status as a threatened species. It has no co-sponsors.

“Polarbeargate”:A 2006 article, entitled: Observations of mortality associated with extended open-water swimming by polar bears in the Alaskan Beaufort Sea, by Charles Monnett and Jeffrey S. Gleason, 29 (8) Polar Biology 681 (July 2006), and cited by Al Gore in his 2006 book An Inconvenient Truth: The Planetary Emergency of Global Warming and What We Can Do About It (Rodale Press), became the focus of a February, 2011, investigation by the Interior Department, possibly into the lead author’s scientific misconduct, although the allegations have not been disclosed. Dr. Monnet was placed on administrative leave by his employer, BOEMRE, which is responsible for approving oil development in Alaska. (Sara Reardon, Suspended Polar Bear Researcher Defended by Advocates, ScienceInsider, July 29, 2011; Virginia Morell, Senator Inhofe Has Questions About Polar Bear Researcher Charles Monnett, ScienceInsider, Aug. 10, 2011; Kassie Siegel, Putting an Arctic Scientist on Ice, HuffingtonPost, Aug. 11, 2011; Editorial, A Polarizing Polar Bear Investigation, N.Y. Times, Aug. 12, 2011.))

4.2.10.2. Penguins

In Sept. 2008 the FWS settled a lawsuit by the Center for Biological Diversity after it failed to list twelve species of penguins under the ESA as requested in 2006; the agency proposed to list seven of the twelve as threatened or endangered by Dec. 19, 2009, which it did not do. On Mar. 9, 2010, the CBD and the Turtle Island Restoration Network filed in the District Court for the Northern District of California a lawsuit, Center for Biological Diversity et al v. Salazar et al., 3:10-cv-00992-SC, accusing the FWS of delaying the listing of the seven species.

4.2.11. Massachusetts v. EPA, 549 U.S. 497 (2007)

The long history of this case began in October, 1999, when 19 organizations filed a rulemaking petition asking EPA to regulate GHG emissions from new vehicles; that background and the agency’s rational for not doing so are discussed at 549 U.S. 510-14. 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 and denying its legal authority to regulate GHG emissions. The EPA also denied a four-year old petition for rulemaking [126] that requested that it regulate GHG emissions from new motor vehicles, as it was required to do under the CAA, Pub. L. No. 101-540, 104 Stat. 2399, 2473, § 202, codified at 42 U.S.C. § 7521. 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.[127] The case was consolidated as Massachusetts, et al. v. EPA, et al., the EPA being joined by 10 states and several auto industry associations. A three-judge panel of the D.C. Circuit issued three opinions, only one of which favored the petitioner states. On Aug. 29, 2005, AG Reilly unsuccessfully requested that the full court rehear the case. On Mar. 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 Nov. 29, 2006, at which the threshold issue was whether petitioner states had standing to sue at all. The Bush administration argued that the alleged damage suffered was too generalized to be addressed by a court. [128] But even if the case failed, after Democratic successes in the mid-term elections, it seemed reasonable to assume that legislative controls on carbon emissions were inevitable. [129]

The decision may have pushed Democrats in Congress to pass new legislation to curb or cap GHG emissions in the U.S., but it was considered inevitable that U.S. emissions will be regulated one way or the other. 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. [130] However, one academic commentator, speaking from his long experience dealing with the Clean Air Act, had no faith that EPA would do anything significant in the near term, at least not until legislation is enacted; he also distrusted Congress’s ability to make the tough choices necessary to deal with the problem. [131] Governor Schwarzenegger was confident that the EPA would 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. [132] See discussion infra of Cal. Code Regs. Tit. 13 § 1961.1, entitled Greenhouse Gas Exhaust Emission Standards and Test Procedures.

4.2.11.1. Federal Response to Mass. v. EPA, 2007-2008

EPA Administrator Stephen Johnson was questioned on April 24, 2007, at a hearing before the Senate Environment and Public Works Committee about EPA regulation of CO2 emissions now that it has the authority, but he 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 Johnson to resist the pressure. [133] 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 policy director of NRDC’s climate center; Peter Glaser; and Ann R. Klee, former General Counsel of the EPA. 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. The notice appeared on April 30, 2007, at 72 (82) Fed. Reg. 21260 and announced a public hearing, “Examining the Case for the California Waiver,” which was held on May 22, 2007, before the Senate EPW Committee. Testifying were the Honorable Edmund G. Brown Jr., Attorney General of the State of California; 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 NYS Department of Environmental Conservation.

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 Dec. 21, 2005, request for a waiver of federal preemption. If the EPA actually took 6 months, the waiver would have been pending for nearly 2 years. [134] 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.”

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. [135]

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. [136] 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. [137]

In August 2007, the Congressional Research Service released a report entitled: California’s Waiver Request to Control Greenhouse Gases Under the Clean Air Act; it concluded that California has a strong case that it has met the conditions for approval of its waiver request. [138]

On Nov. 5, 2007, California filed the 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 waiver, originally requested on Dec. 23, 2005.

In December 2007, the EPA declined, for the first time, 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.’”[139] In his Dec. 19, 2007 denial, Johnson rescinded his promise to issue proposed GHG regulations before the end of 2007 as they were not necessary after new energy legislation was enacted raising CAFE standards to 35 mpg by 2020. On Dec. 20, 2007, NRDC filed a FOIA request for documents relating to the waiver denial, and Rep. 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. [140] 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 Jan. 7th, and in letters sent to her Jan. 4 & Jan. 11, 2008, EPA claimed to be striving to collect the documents and to comply with the request but had not yet produced them. On Jan. 10th, Johnson did not appear at a field hearing about the waiver denial, and neither did any other EPA official. [141] On Jan. 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 Jan. 24th. If all of the documents are not forthcoming before that hearing, it will further demonstrate his contempt for Congress and the American people.” [142]

On Jan. 2, 2008, California and 15 other states sued to overturn the denial in U.S. Court of Appeals for the Ninth Circuit. The case is California v. EPA, 9th Cir., No. 08-70011. The case was dismissed on July 25, 2008, as the agency’s action was not held to be a reviewable final action of the Administrator under the Clean Air Act, and again in the D.C. Circuit on Oct. 8, 2008; however, the case was mooted by the agency’s granting of the state’s waiver on July 8, 2009. See supra, under the Obama Administration.

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 Jan. 24, 2008; EPA Administrator Johnson testified. 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. Altogether, those 19 states represent more than 152,000,000 Americans – a majority of the U.S. population.” 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. [143] 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. The attorneys general from 18 states threatened further legal action on Jan. 23d if the EPA did not issue the rulemaking by Feb. 27, 2008 as required by Mass. v. EPA, and as the agency promised to do by the end of 2007. [144] Senator Boxer, on Jan. 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. [145] 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. [146]

On Feb. 27, 2008, EPA refused to provide a timetable for compliance with Mass. v. EPA, but on the 29th it issued 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, published at 73 (45) Fed. Reg. 12156 on Mar. 6, 2008, explaining its rationale for denying the waiver request.

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.

For continuing developments re. EPA & GHG regulation in the Obama Administration, see infra § 4.4.2.

For academic commentary on Mass. v. EPA, see, e.g.:

• Jonathan H. Adler, Massachusetts v. EPA Heats Up Climate Policy No Less Than Administrative Law: A Comment on Professors Watts and Wildermuth, 102 Nw. U. L. Rev. Colloquy 32 (2007).
• Anne E. Carlson, Federalism, Preemption, and Greenhouse Gas Emissions, 37 U.C. Davis L. Rev. 281 (2003).
• Committee Report: Report of the Climate Change and Emissions Committee, 30 Energy L. J. 563 (2009), sec. II.A., California’s Waiver to Implement State-Level Vehicle GHG Standards.
• Lisa Heinzerling, Climate, Preemption, and the Executive Branches, in Symposium, Federalism and Climate Change: The Role of the States in a Future Federal Regime, 50 Ariz. L. Rev. 925 (2008).
• Lisa Heinzerling, Climate Change in the Supreme Court, 38 Environmental Law 1 (Winter, 2008). (Written by the lead author of the winning briefs in Mass. v. EPA, this article provides an insider’s perspective on the choices that went into bringing and briefing the case.)

4.3. The 2008 Presidential Campaign

Climate change was an issue for candidates of both parties in 2008. Al Gore’s winning the Nobel Peace Prize with the IPCC (see supra) in fall of 2007 gave Democrats a chance to highlight their attempts to raise CAFE standards and pass legislation to curtail GHG emissions. Rudolph Giuliani and Mitt Romney came out in favor of “clean coal” technology; John McCain has proposed legislation to establish a cap-and-trade program and raising CAFE standards; Mike Huckabee and Sam Brownback have tried to appeal to religious conservatives with a spiritual approach. All the Republican candidates were in favor of nuclear power. Fred Thompson suggested that we need more research in the area. [147]

John McCain choose first-term Alaska governor Sarah Palin as his running mate, described by Greenpeace’s Alaska Global Warming Campaigner, Melanie Duchin, as having “one of the most anti-environment records of any governor in the United States.”[148] See infra § 4.7.1. Alaska.

4.4. The Obama Administration

On Nov. 13, 2007, the Environmental Appeals Board ruled (In Re Deseret Power Electric Cooperative EPA EAB, PSD Appeal No. 07-03, 11/13/08) that the EPA must reconsider its refusal to impose limits on CO2 emissions when it granted a permit for a new coal-fired power plant in Utah. The Sierra Club applauded the decision, saying that it “gives the Obama Administration a clean slate” to regulate GHG emissions from such sources under the CAA after Mass. v. EPA.

President Obama referred to the importance of dealing with global climate change in his inaugural address on Jan. 20, 2009, as he was sworn in as 44th president of the United States, [149] and included a GHG cap-and-trade system in his Feb. 26 proposed budget summary. [150]

On Earth Day, April 22, 2009, President Obama and Interior Department Secretary Ken Salazar announced new guidelines clearing the way for major offshore wind projects. It represented “the biggest federal step forward to date for clean energy in the United States.” [151]

After Chancellor Merkel spoke to a joint session of Congress (see infra § 4.4.1.3.) on Nov. 3, 2009, President Obama hosted an E.U.-U.S. summit and told European Commission President Jose Manuel Barroso, E.U. foreign policy chief Xavier Solana, and Fredrik Reinfeldt, Prime Minister of Sweden and the current E.U. president, that it was “imperative for us to redouble our efforts in the weeks between now and the Copenhagen meeting to assure that we create a framework for progress in dealing with [a] potential ecological disaster.” [152]

4.4.1. GHG Legislation

The Center for Public Integrity’s web site, The Climate Change Lobby, reports that the number of climate change lobbyists in Washington has mushroomed from 2003 to 2008. They estimate an increase of more than 300 percent in the number of lobbyists on climate change in just five years, or about four climate lobbyists for every member of Congress.

For academic commentary on U.S. climate change legislation, see, e.g.,

• Victor B. Flatt, Taking the Legislative Temperature: Which Federal Climate Change Legislative Proposal Is “Best”?, 102 Nw. U. L. Rev. Colloquy 123 (Dec. 2007).
• Jonathan Hiskes, UN chief will pressure senators on climate bill, Grist (Oct. 26, 2009).

4.4.1.1. House of Representatives

On May 21, 2009, the House Energy and Commerce Committee approved H.R. 2454, Waxman-Markey’s American Clean Energy and Security Act (aka “ACES”) by a vote of 33 to 25. On June 26, 2009, the House of Representatives passed H.R. 2454 by a vote of 219-212. EDF stated that the bill: Establishes a cap-and-trade program to spur investment in clean energy technologies and new manufacturing jobs, sets a declining cap on greenhouse gas emissions at 17% below 2005 levels by 2020 and 83% by 2050, and costs only about a postage stamp a day for the average household, according to an analysis by the nonpartisan Congressional Budget Office. [153] However, it passed by just one vote more than the simple majority of 218 needed to pass legislation in the House. [154] It was placed on the Senate Legislative Calendar on July 7, 2009, as General Order 97. [155]

4.4.1.2. Senate

The American Clean Energy Leadership Act of 2009 was approved by the Senate Energy and Natural Resource Committee and reported out of committee on July 16, 2009; see S. Rep. No. 111-48.

On Sept. 30, 2009, S. 1733, The Clean Energy Jobs and American Power Act, aka the “Kerry-Boxer bill,” was introduced in the Senate. It would “require U.S. power plants and other operations to cut their greenhouse gas emissions 20 percent by 2020 from 2005 levels.” The Senate Environment and Public Works Committee marked up climate change legislation in November.

On Oct. 23, 2009, EPA’s Office of Atmospheric Programs released a comparative analysis of the two leading House & Senate bills, entitled Economic Impacts of S. 1733: The Clean Energy Jobs and American Power Act of 2009. EPA estimated that the impacts of S. 1733 would be similar to those for the House-passed climate bill, H.R. 2454.

Analysts from the Pew Center for Climate and Energy Solutions on Global Climate Change, now called the Center for Climate and Energy Solutions, warned at the end of October, that the lack of progress on S. 1733 will hamper the negotiations in Copenhagen in Dec. 2009, as the meeting’s success hinges on what the U.S. will offer by way of a commitment.

Three days of hearings began on Oct. 27, 2009, before the Senate Environment and Public Works Committee, entitled Legislative Hearing on S. 1733, Clean Energy Jobs and American Power Act. Senator James M. Inhofe of Oklahoma, ranking Republican on the committee and a global warming skeptic, and Senator Max Baucus, Democrat of Montana, expressed serious doubts about the costs of and potential benefits from the bill. [156] Climate legislation is running into serious opposition not only from Inhofe, but also Bob Stallman, President of the American Farm Bureau Federation, which is, according to Grist, probably the nation’s most potent agribusiness interest group. [157] On Oct. 30th, Senator Boxer revealed the version of the bill reported by the committee, the revised chairman’s mark. On Nov. 3, the committee began debate on S. 1733, although all seven Republican members boycotted the proceedings, claiming that they wanted EPA to finish a more detailed cost analysis, although the economics are nearly the same as for the House bill, Waxman-Markey, supra. [158] Senate Democrats reported the bill out of committee on an 11 to 1 vote on Nov. 5, 2009, a “modest step forward,” but progress nonetheless. [159]

On Nov. 17, 2009, Senate Majority Leader Harry Reid (D-Nev.) announced that the Senate will act in early 2010 on legislation to battle climate change; thus the U.S., as expected, will not have adopted climate legislation by the Copenhagen meeting in December 2009.[160]

Finally, on May 12, 2010, a discussion draft of the Kerry/Lieberman “American Power Act” was unveiled, promising generous free GHG emissions allowances to industry until 2016 and to manufacturers until 2026, as well as preemption of state and EPA GHG regulation. It also, in reaction to the Deepwater Horizon disaster at the end of April, see infra § 4.4.4.2., offered states the option to veto offshore drilling projects within 75 miles of their shorelines, if they could cause environmental damage.[161]

On Thursday, July 22, 2010, Senator Reid announced that there would in fact not be a climate bill this session. Instead there would be a measure focused on the Gulf oil disaster (see infra § 4.4.4.1.1.) to ensure, among other things, that BP pays for cleanup, and tightening energy standards. Carol Browner, director of the White House Office of Energy and Climate Change Policy, said “everyone was disappointed.” (Carl Hulse & David M. Herszenhorn, Democrats Call Off Climate Bill Effort, N.Y. Times, July 22, 2010; Jonathan Hiskes, The climate bill’s dead. Really dead, GRIST, July 22, 2010.)

The World Resources Institute released a new report the next day (Nicholas Bianco & Franz Litz, with Madeline Gottlieb & Thomas Damassa, Reducing Greenhouse Gas Emissions in the United States Using Existing Federal Authorities and State Action (July 2010)), on what states and localities can do in lieu of congressional action. (Jonathan Hiskes, State and EPA climate action become key as Senate gives up, GRIST, July 23, 2010.)

See Ryan Lizza, The Political Scene: As the World Burns: How the Senate and the White House missed their best chance to deal with climate change, The New Yorker, Oct. 11, 2010, for the inside scoop on the Kerry, Graham, and Lieberman climate change bill and its intersection with the Deepwater Horizon oil spill in April 2010, infra.

4.4.1.3. Congress as a Whole

Chancellor Angela Merkel spoke to a joint session of Congress on Nov. 3, 2009, the first German chancellor to do so since Konrad Adenauer in 1957, to mark the 20th anniversary of the fall of the Berlin wall. She received many standing ovations, except when she spoke in favor of a climate change agreement in Copenhagen, and then many Republicans remained seated. [162]

4.4.2. GHG regulations: EPA & Mass. v. EPA

4.4.2.1. California Waiver of Federal Preemption

On Wednesday, July 8, 2009, the EPA issued a decision “withdraw[ing] and replac[ing] the EPA’s prior denial of the CARB’s Dec. 21, 2005 waiver request, which was published in the Federal Register on Mar. 6, 2008.” The denial was published at 73 Fed. Reg. 12156-12169 (2008) and discussed infra, under Mass. v. EPA. The 91-page notice granting CARB’s waiver request, was entitled California State Motor Vehicle Pollution Control Standards; Notice of Decision Granting a Waiver of Clean Air Act Preemption for California’s 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles, and published at 74 Fed. Reg. 32744 on July 8, 2009.

4.4.2.2. Regulatory “End run” Around Congress: EPA’s Endangerment Finding

Under Mass. v. EPA, see infra § 4.6., EPA is required to determine whether emissions from cars and trucks endanger public health and welfare; an endangerment finding would require the agency to regulate those emissions.

On April 24, 2009, EPA proposed a finding that GHG emissions endanger public health and welfare, and that emissions from cars and light trucks cause or contribute to the endangerment, entitled Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act; the Agency reported receiving over 300,000 comments on the proposal.

Despite the “Climategate” controversy, see infra § 4.4.2.3., the endangerment finding was released on Dec. 7, 2009, at a news conference, the day COP-15 opened in Copenhagen, which enabled the president to show UN delegates there that the U.S. is finally moving aggressively to curb emissions. [163] The finding was published on Dec. 15, 2009, at 74 Fed. Reg. 66,496, with a Feb. 16th deadline for filing lawsuits challenging it (see infra § 4.4.2.5.). EPA took final action on GHG emissions from cars and light trucks on April 1, 2010, see infra.

4.4.2.2.1. Mobile Sources

On May 19, 2009, President Obama announced a new National Fuel Efficiency Policy intended to increase fuel economy and reduce GHG emissions for all new cars and trucks sold in the U.S. The policy “represents an unprecedented collaboration between the Department of Transportation (DOT), the Environmental Protection Agency (EPA), the world’s largest auto manufacturers, the United Auto Workers, leaders in the environmental community, the State of California, and other state governments.” EPA Administrator Jackson said: “A supposedly ‘unsolvable’ problem was solved by unprecedented partnerships.” [164]

A direct result of this policy was a notice of intent to conduct a joint rulemaking, jointly announced by DOT Secretary Ray LaHood and EPA Administrator Lisa P. Jackson; the details were elaborated on in September, and the Proposed Rulemaking To Establish Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards was published on Sept. 28, 2009.[165] This rule (expected to be finalized March 31, 2010 (see infra)) would be the first federal limitation on global warming pollution. It would cover model years 2012 through 2016 and would, in the words of Secretary LaHood, “[b]ring about a new era in automotive history.” Administrator Jackson stated, “[t]hrough that partnership [with American automakers], we’ve taken the historic step of proposing the nation’s first ever greenhouse gas emissions standards for vehicles, and moved substantially closer to an efficient, clean energy future.”[166] Senate Foreign Relations Chairman John Kerry approved the message the administration was sending to the international community slightly over 2 months before COP-15 in Copenhagen, where U.S. leadership will be critical in drafting a successor protocol to Kyoto.

On Oct. 30, 2009, EPA promulgated the Mandatory Reporting of Greenhouse Gases rule (74 Fed. Reg. 56,260; 40 C.F.R. Subpart 98), which required 31 industry sectors, covering 85% of total U.S. GHG emissions, to track and report their emissions to inform future policy decisions. Under the rule, suppliers of fossil fuels or industrial GHGs, manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of GHG emissions are required to submit annual reports to EPA. It is first such rule in the U.S. and had an effective date of Dec. 29, 2009.

The rule was promulgated under the fiscal year 2008 omnibus appropriations bill, Pub. L. No. 110-161, approved by Congress in Dec. 2007, which amended the CAA to establish a GHG reporting program at EPA.

The rule was challenged before the end of 2009 by the American Chemistry Council (American Chemistry Council v. EPA, D.C. Cir., No. 09-1325) and other groups (the Energy Recovery Council (No. 09-1326), the American Petroleum Institute and National Petroleum Refiners Association (No. 09-1328), the Fertilizer Institute (No. 09-1329), the American Public Gas Association (No. 09-1331), and Utility Air Regulatory Group (No. 09-1333)). The cases were consolidated, and EPA reached an agreement in July 2010 that was published in the Federal Register: Notice of Proposed Settlement Agreements; Request for Public Comment, 75 Fed. Reg. 42085 (July 20, 2010). Comments will be accepted until Aug. 19th. Two lawsuits filed Dec. 29, 2010, were not included in the settlement: Environmental Defense Fund v. EPA, D.C. Cir., No. 09-1334, and Kinder Morgan CO2 Co. LP, v. EPA, D.C. Cir., No. 09-1332. (Steven D. Cook, Climate Change: Settlement Announced in Industry Litigation Against Greenhouse Gas Reporting Rule, 137 BNA Daily Environment Report A-10 (July 20, 2010))

The historic joint final rule establishing light-duty vehicle GHG emission standards and corporate average fuel economy standards was announced on April 1, 2010, by EPA, acting under the Clean Air Act, and the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA), regulating Corporate Average Fuel Economy (CAFE) standards under the Energy Policy and Conservation Act. (See EPA’s Regulatory Impact Analysis for Air Pollution Regulations.) The official version was not published until May 7th, at 75 Fed. Reg. 25324–25728. Starting with 2012 model year vehicles, the rule requires automakers to improve fleet-wide fuel economy and reduce fleet-wide GHG emissions by approximately five percent every year. By 2016, new cars will have to get an average of 35.5 miles per gallon, from 26 mpg today, and will emit no more than 250 grams per mile of CO2. The rule will add about $1000-$1300 to the cost of a new car, but petrol savings are expected to more than cancel out those projected costs [167]:the rules could potentially save the average buyer of a 2016 model year car $3,000 over the life of the vehicle. Nationally, it will conserve about 1.8 billion barrels of oil, and reduce nearly a billion tons of GHG emissions over the lives of the vehicles covered. EPA Administrator Lisa Jackson described the final rule as “a win-win program for our economy and our environment,” [168] and stressed, again, that there would be no regulation of stationary sources this year; as the new auto emission standards will not formally “take effect” until the 2012 model year begins (that is, no earlier than Jan. 2, 2011), the introduction of power plant regulations will be delayed until early 2011. [169] The rule moves up the goals of a 2007 energy law requiring a 35-mpg standard after 2020. [170](Discussed supra, under Energy & CAFE standards in the 110th Congress; & infra, § 4.6 Other States’ Actions to Reduce GHG Emissions, Mass. v. EPA.)

In a speech at Andrews Air Force Base on Mar. 31, 2010, President Obama said: “[J]ust a few months after taking office, I also gathered the leaders of the world’s largest automakers, the heads of labor unions, environmental advocates, and public officials from California and across the country to reach a historic agreement to raise fuel economy standards in cars and trucks. And tomorrow [April 1, 2010], after decades in which we have done little to increase auto efficiency, those new standards will be finalized, which will reduce our dependence on oil while helping folks spend a little less at the pump.” [171]

A coalition of industry groups (which has already challenged EPA’s endangerment finding and GHG rules, see infra § 4.4.2.2.2.) challenged the light-duty vehicle GHG & CAFE standards in Coalition for Responsible Regulation v. EPA, D.C. Cir., No. 10-1092, filed on May 7th. Southeastern Legal Foundation v. EPA, D.C. Cir., No. 10-1094, filed May 11, 2010, joined this case, and on May 17, 2010, 14 House Republicans also joined the suit. The executive director of the SLF told BNA that the rules they challenged in their interrelated lawsuits are based upon science about which “strong doubts have been raised.”

These appear to be huge litigations; see infra, 4.4.2.2.2. Stationary Sources. Petitions, motions and filings are on Lexis, Westlaw and Pacer in Feb. 2011.

On May 21, 2010, President Obama instructed the NHTSA and EPA to begin developing first-ever standards for fuel economy and greenhouse gas emissions from medium- and heavy-duty trucks for model years 2014-2018, as well as new standards for cars and light trucks for model years 2017-2025, as the current standards recently promulgated, see supra, expire in 2016. (Memorandum of May 21, 2010, Improving Energy Security, American Competitiveness and Job Creation, and Environmental Protection Through a Transformation of Our Nation’s Fleet of Cars And Trucks, 75 Fed. Reg. 29399 (May 26, 2010); Steven D. Cook, Climate Change: Obama Orders EPA, Transportation Agency To Set Fuel, Emissions Rules for Trucks, Cars, 98 Daily Environment Report A-4 (May 24, 2010); Notice of intent to conduct a joint rulemaking, 2017 and Later Model Year Light Duty Vehicle GHG Emissions and CAFE Standards, 49 CFR Parts 531 and 533, RIN 2127–AK79, 75 Fed. Reg. 62739-62750 (Oct. 13, 2010)). See infra, Canada.

In Jan. 2011, EPA announced that EPA, DOT, and CARB would work together to promulgate standards for cars and light-duty trucks for model years 2017-2025 by Sept. 1, 2011, signifying continuing collaboration and a dedication to providing car manufacturers with the regulatory certainty they need. (News Release, EPA, DOT and California Align Timeframe for Proposing Standards for Next Generation of Clean Cars, EPA, Jan. 24, 2011.)

In July, the administration and car makers were still heavily debating what the standard should be. EPA is proposing that new cars and trucks should get as much as 56.2 m.p.g. by 2025 but industry questions whether consumers will accept having to spend only about half as much money on petrol as they do today. Currently the U.S. has “the world’s most lenient vehicle emissions and mileage standards, lagging as much as 10 m.p.g. behind the rest of the world.” (John M. Broder, Carmakers and White House Haggling Over Mileage Rules, N.Y. Times, July 3, 2011.)

Quite surprisingly, and to the delight of ENGOs, carmakers acquiesced to an increase nearly that high, 54.5 m.p.g. by 2025, or a 5% annual increase in fuel economy for cars from 2017-2025. However, the improvements are more modest for SUVs and light trucks: 3.5% a year through 2021, and then a 5% increase over the next four years. (Bill Vlasic, Carmakers Back Strict New Rules for Gas Mileage, N.Y. Times, July 28, 2011; News Release, President Obama Announces Historic 54.5 mpg Fuel Efficiency Standard: Consumers will save $1.7 trillion at the pump, $8K per vehicle by 2025, EPA, July 29, 2011; see also, Driving Efficiency: Cutting Costs for Families at the Pump and Slashing Dependence on Oil, July 29, 2011.)

4.4.2.2.2. Stationary Sources

On Oct. 27, 2009, EPA proposed a “tailoring rule” to limit prevention-of-significant-deterioration provisions to sources that emit more than 25,000 tons per year of carbon dioxide or other GHGs for 5 years, which would limit the number of sources potentially subject to the regulation, entitled: Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 74 Fed. Reg. 55292. However, states complained that many more sources would be covered by PSD under the 25,000 tons rule than previously thought, and in March 2010, Administrator Jackson offered to raise the threshold to 75,000 tons for the first 2 years. The final PSD & Title V Greenhouse Gas Tailoring Rule was announced on May 13, 2010, limiting (for the first 6 months of 2011), as promised, PSD requirements to sources that are already subject to them for other pollutants. The final rule was published on June 3, 2010, at 75 Fed. Reg. 31514, triggering a 60-day period for opponents to file legal challenges in the D.C. Circuit Court of Appeals. Starting in July 2011, the rule will apply to new sources that emit over 100,000 tons of C02/year, and to modified sources emitting over 75,000 tons/year. The PSD provisions in the CAA require new and modified sources of air pollution to use the best available control technology (BACT). A summary of the permitting burdens with and without the tailoring rule is available on EPA’s web site.

Vis-à-vis the 60-day opportunity to file challenges, on June 3d, the Southeastern Legal foundation (in its 4th challenge thus far in 2010 to EPA regulation of GHG under the CAA), 14 House Republicans, and 15 Georgia businesses and organizations challenged the tailoring rule and EPA’s ability under the CAA to exempt smaller sources from PSD emissions requirements. (Southeastern Legal Foundation v. EPA, D.C. Cir., No. 10-1131 (June 3, 2010).

On Monday, Mar. 29, 2010, EPA issued a final rule entitled Reconsideration of Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs, published at 75 Fed. Reg. 17004 (April 2, 2010) in which Administrator Jackson announced formally what she had suggested in her letter that large new or modified stationary GHG sources would not be required to obtain federal pollution permits before Jan. 2, 2011.

On April 2, 2010, the regulation (which postponed regulation of stationary sources to give industry more time to comply and which may apply only to sources emitting over 25,000 or more tons per year, when the tailoring rule is finalized, see supra) was challenged in the D.C. Circuit by mining and agricultural groups in Coalition for Responsible Regulation v. EPA, D.C. Cir., No. 10-1073. The petition for review questions EPA’s right to regulate GHG emissions from stationary sources under Mass. v. EPA and the CAA. The lawsuit was subsequently joined by another group, in Southeastern Legal Foundation v. EPA, D.C. Cir., No. 10-1083, filed April 15, 2010.

In contrast to the 13 lawsuits filed by industry groups challenging the April rule and EPA’s right to regulate GHG emissions under the CAA, see infra § 4.4.2.5., the Center for Biological Diversity filed a lawsuit, Center for Biological Diversity v. EPA, D.C. Cir., No. 10-1115, on May 28, 2010, to prevent EPA from delaying the regulation of stationary sources past Jan. 2, 2011. (Steven D. Cook, Climate Change: Environmental Group Sues EPA to Prevent Delays in Greenhouse Gas Emissions Limits, 104 BNA Daily Environment Report A-5 (June 2, 2010.))

After the worst mine disaster in 40 years at the Upper Big Branch mine in West Virginia killed 29 miners in early April 2010 (Ian Urbina, No Survivors Found After West Virginia Mine Disaster, N.Y. Times, April 9, 2010), coal mining executives testified at a hearing entitled The Role of Coal in a New Energy Age before the House Select Committee on Energy Independence and Global Warming on April 14th. Chairman Edward Markey (D-Mass.) urged industry representatives to end both their resistance to EPA regulation of GHG emissions from stationary sources and their challenges to climate science, but the leaders still maintained that EPA’s efforts constituted a “war on coal.”[172]

EPA proposed a confidential business information rule on July 7, 2010, at 75 Fed. Reg. 39,094, that said it would release all non-confidential emissions information to the public but would protect confidential business information. On Jan. 21, 2011, the agency sent the nearly final rule to the OMB for review.

Eighty-seven new Republican members of the House were sworn in on Jan. 5th as the 112th Congress convened, a few days after EPA’s official start to regulation of GHG from stationary sources on Sunday, Jan. 2, 2011. According to the N.Y. Times, Republican Representative Fred Upton, who will apparently be chairman of the House Energy and Commerce Committee, said “he was not convinced that greenhouse gases needed to be controlled or that the E.P.A. had the authority to do so,” and proposed a moratorium on all GHG regulations until the courts have settled whether it is legal for the government to do so. (John M. Broder, E.P.A. Limit on Gases to Pose Risk to Obama and Congress, N.Y. Times, Dec. 30, 2010.) (See infra § 4.4.2.4.)

4.4.2.3. “Climategate”

However, while the endangerment finding was in process in fall 2009, on Nov. 17, 2009, more than 1000 hacked emails dating back 13 years between climate scientists at the University of East Anglia’s Climatic Research Unit and their colleagues at other universities appeared on internet blogs, indicating that climate scientists were actively manipulating scientific data to fit their models. [173] Climate skeptics called for an inquiry and labeled the controversy “Climategate”; it was labeled “Swifthack” by proponents, referring to the attack on Senator Kerry in 2004. (Brian Walsh, Has ‘Climategate’ Been Overblown?, Time, Dec. 7, 2009.) Dr. Rajendra Pachauri, IPCC head, said the matter could not be ignored and will be investigated.[174] Professor Phil Jones, head of the CRU, stepped down during the inquiry.

This controversy affected the discussion in the U.S., as Senator Inhofe and other Republicans called on EPA Administrator Lisa Jackson to delay the proposed endangerment finding at a Dec. 2 hearing of the Environment and Public Works Committee (ostensibly about TSCA), as the emails called into question the science behind the finding. Jackson refused, saying the evidence is overwhelming.

A letter to Nature in the Jan. 7, 2010, issue, entitled Climate e-mails: man’s mark is clear in thermometer record, by Hans von Storch & Myles Allen, 463 Nature 25 (Jan. 7, 2010), explains that: “The thermometer record [since 1850] [as opposed to “proxy reconstructions of temperature over the past millennium, which are based on indirect evidence such as tree rings”] shows unequivocally that Earth is warming, and provides the main evidence that this is caused by human activity. This crucial record remains unchallenged.”

Senator Inhofe, not to be deterred, released an 84-page report on Feb. 23, 2010, entitled: ‘Consensus’ Exposed: The CRU Controversy, and a press release: Senate EPW Minority Releases Report on CRU Controversy: Shows Scientists Violated Ethics, Reveals Major Disagreements on Climate Science. Inhofe appears to be trying to find a way to criminalize the 17 key researchers involved with the IPCC Assessment Reports. The allegations came up at a full committee hearing entitled, “Hearing on the President’s Proposed EPA Budget for FY 2011.”

As a result of the scandal, IPCC chair Rajendra K. Pachauri announced on Feb. 27, 2010, that the IPCC would “establish an independent committee to review the procedures associated with drafting and assembling the panel’s assessment reports.”[175] On March 9th, Science reported that the InterAcademy Council, representing 15 nations’ national science academies and co-chaired by Robbert Dijkgraaf, a Dutch mathematical physicist, would appoint a panel of scientists to investigate the IPCC and the mistakes in the FAR; the report is expected to be complete by August 2010.[176]

Members of Parliament investigating climate scientists at the UEA’s CRU found no evidence in March 2010 that climate data had been manipulated or withheld, and the reputations of its scientists remain intact. It said that in future climate science must be “transparent and irreproachable.”[177]

Climategate is given as one of the reasons fewer Britons (26% down from 41%) now view anthropogenic climate change as an important social issue. In the U.S., 48% of those polled, up from 41% in 2009, think the issue has been exaggerated. (Elisabeth Rosenthal, Climate Fears Turn to Doubts Among Britons, N.Y. Times, May 25, 2010.)

On Wednesday, July 7, 2010, a British panel led by Muir Russell and commissioned by the University of East Anglia, exonerated scientists involved in the controversy, although it stopped short of a complete vindication; it criticized a perceived lack of openness in responses to requests for backup data. Phil Jones, see supra, was reinstated to a job similar to the one he had resigned from during the investigation of the CRU. It was the 5th review of the controversy to come to that conclusion, and the most comprehensive. The report stated that “we did not find any evidence of behavior that might undermine the conclusions of the I.P.C.C. assessments.” (Justin Gillis, British Panel Clears Climate Scientists, N.Y. Times, July 7, 2010). The previous week, Michael Mann was exonerated by two reviews by Pennsylvania State University. (Justin Gillis, Climate Scientist Cleared of Altering Data, N.Y. Times, July 1, 2010).

For additional information, see the following:

• Al Gore’s op-ed in the Feb. 27, 2010, N.Y. Times, We Can’t Wish Away Climate Change, discussing Climategate and “Himalayagate” (see infra); the heavy snowfalls in the Northeastern U.S. that global warming detractors have used to further discredit climate science and scientists; and the “political paralysis that is now so painfully evident in Washington [that] has thus far prevented action by the Senate — not only on climate and energy legislation, but also on health care reform, financial regulatory reform and a host of other pressing issues.”
• Australian author Clive Hamilton wrote several articles on “climate cyber-bullying” in February 2010: Bullying, lies and the rise of right-wing climate denial (2/22); Who is orchestrating the cyber-bullying? (2/23); and Manufacturing a scientific scandal (2/25).
• Douglas Fischer & The Daily Climate, Cyber Bullying Intensifies as Climate Data Questioned: Researchers must purge e-mail in-boxes daily of threatening correspondence, simply part of the job of being a climate scientist (Mar. 1, 2010).

4.4.2.4. Legislation Intended to Prevent the “End Run”

Months before EPA’s endangerment finding was issued, H.R. 391 was introduced by Rep. Marsha Blackburn and 152 cosponsors on Jan. 9, 2009, to provide that GHGs are not subject to the Clean Air Act. But EPA GHG regulations were considered inevitable after the release of its endangerment finding in Dec. 2009, which was a precondition to any such EPA regulation. However, with the Democrats’ loss of their filibuster-proof majority in the Senate, climate change legislation seemed increasingly unlikely in 2010, and for that matter, so does EPA regulations.

On Dec. 15, 2009, H. Res. 974 was introduced by Rep. Rodney Alexander urging EPA Administrator Jackson to reevaluate the endangerment finding, issued “under the pretense of the Supreme Court decision in Massachusetts v. EPA,” as it was “unacceptable” to the House of Representatives. A bill, H.R. 4396, was introduced the next day, Dec. 16, 2009, by Earl Pomeroy (D-N.D.), to block EPA from regulating GHG emissions by amending GHGs out of the Clean Air Act. It has 5 cosponsors. Also on Dec. 16th, H.J. Res. 66 was introduced by Rep. Jerry Moran, also disapproving the EPA endangerment finding.

Senator Lisa Murkowski (R-AK) said on Jan. 20, 2010, that she plans to introduce a resolution of disapproval to prevent the EPA’s regulation of GHG emissions, rather than make a floor amendment to a bill (H.J. Res. 45) to raise the federal debt limit. (Apparently it was learned that the Murkowski amendment was written in collaboration with several dirty energy lobbyists. [178]). On Jan. 21, 2010, the senator introduced the disapproval resolution to the Senate, ostensibly to avoid the “economic train wreck” she believes would result if EPA regulated GHG under the CAA. [179]On Feb. 23d the resolution (S. J. Res. 26) had 40 co-sponsors, of whom 37 are republicans and 3 (Landrieu from Louisiana, Lincoln from Arkansas, and Nelson from Nebraska) are democrats; it was referred to the Committee on Environment and Public Works on Jan. 21st. The resolution reads:

“Resolved by the Senate and House of Representatives …, That Congress disapproves the rule submitted by the Environmental Protection Agency relating to the endangerment finding and the cause or contribute findings for greenhouse gases under section 202(a) of the Clean Air Act (published at 74 Fed. Reg. 66496 (Dec. 15, 2009)), and such rule shall have no force or effect.”

On May 27, 2010, EDF reported that S. J. Res. 26 will move to a vote in the Senate on June 10th after Senator Murkowski reached a unanimous consent agreement with Senator Reid. (Robin Bravender, Sen. Murkowski’s EPA Resolution on Greenhouse Gases Slated for June 10 Vote, N.Y. Times, May 25, 2010.) On that date the Senate voted 47-53 (Record Vote Number: 184) against Senator Lisa Murkowski’s resolution. See the discussion at 156 Cong. Rec. S4788-4836 (June 10, 2010); a letter from 1800 scientists to the Senate urging senators to oppose efforts to overturn EPA’s endangerment finding is at p. S4793; Senator Kerry’s statement is at p. S4821-24; Senator Lieberman’s at p. S4824-25; letters from car manufacturers opposing the resolution because of its impact on the joint EPA/NHTSA regulation of GHG emissions from light-duty cars and trucks and fuel economy standards [discussed supra] are at p. S4833-34.

On Feb. 19th, eight U.S. Senators wrote a letter to EPA Administrator Jackson asking about the agency’s plans for regulating GHG in 2010 (known as the “Rockefeller Letter” (2010)) after Senate Commerce, Science, and Transportation Chairman Jay Rockefeller (D-W.Va.)).

On Mar. 2, 2010, House Energy and Commerce ranking Republican Joe Barton (Texas) introduced another joint resolution, H.J. Res. 77, also identical to Murkowski’s S. J. Res. 26 and disapproving the EPA endangerment finding. It had 105 co-sponsors, including House Minority Leader John A. Boehner (Ohio); Darrell Issa (Calif.), ranking Republican on the House Oversight and Government Reform Committee; and Frank Lucas (Okla.), ranking Republican on the House Agriculture Committee. [180]

On Mar. 4, 2010, Sen. Jay Rockefeller introduced S. 3072 (the Stationary Source Regulations Delay Act) which would suspend for 2 years “any Environmental Protection Agency action under the Clean Air Act with respect to carbon dioxide or methane pursuant to certain proceedings, other than with respect to motor vehicle emissions, and for other purposes.”

On July 26, 2010, a White House official announced that President Obama would veto any such postponement of EPA’s authority to regulate GHG emissions from new and modified stationary sources, which is set to begin Jan. 2, 2011; Senator Reid has promised a floor vote on S. 3072 before the August recess. That didn’t happen, and in September 2010 Senator Reid agreed to a floor vote on S. 3072 in the lame duck session, but Senator Rockefeller acknowledged that the bill was unlikely to pass. (Darren Samuelsohn, Jay Rockefeller: Anti-EPA climate bill won’t pass, POLITICO, Sept. 29, 2010.) On Dec. 17, 2010, Senator Rockefeller announced he was temporarily abandoning his attempt to bring the bill to the floor, but intends to reintroduce it in the 112th Congress, which opens in January 2011.

4.4.2.4.1. Legislation against GHG Regulation in the 112th Congress

Early in the 112th Congress (Jan. 5-6, 2011), several bills were introduced with the clear intention of preventing EPA from regulating GHG. See, e.g., H.R. 97, the Free Industry Act, by Rep. Blackburn (R-Tenn.) and 122 cosponsors; H.R. 153, the Ensuring Affordable Energy Act by Rep. Poe with 53 cosponsors, and H.R. 199, the Protect America’s Energy and Manufacturing Jobs Act of 2011 by Rep. Capito (R-WV) and 5 cosponsors, which would delay EPA regulation of GHG for 2 years. (John M. Broder, E.P.A. Faces First Volley From the House, N.Y. Times green, Jan. 6, 2011; Jean Chemnick, Congressional Review Act Might Not Be an Option to Fight EPA’s Greenhouse Gas Regs, N.Y. Times, Jan. 6, 2011.)

Senator Rockefeller, true to his word, introduced S. 231, the EPA Stationary Source Regulations Suspension Act on Jan. 31, 2011, with 6 cosponsors, which is nearly identical to S. 3072, supra, his earlier bill, which died in the 111th Congress. On the same day, Republican Senator Barrasso of Wyoming introduced S. 228, the Defending America’s Affordable Energy and Jobs Act, with 18 cosponsors, which would not only block EPA from regulating GHG under the CAA, but would prevent other federal agencies from considering climate change when they implement statutes such as the ESA or NEPA. (Ben Geman, Senate Republicans offer sweeping plan to block climate rules, E2 Wire, Jan. 31, 2011.) Both bills were referred to the Committee on Environment and Public Works. Another is S. 15, introduced Jan. 15, 2011, by Senator Vitter with no cosponsors, to prohibit the regulation of CO2 emissions by EPA or any other agency until China, India, and Russia implement similar reductions. H.R. 750 is the companion bill to S. 228, introduced Feb. 16th by Rep. Walberg with 6 cosponsors. According to the N.Y. Times, at least one of these bills would also weaken the EPA’s traditional ability to regulate ground-level air pollutants like soot and mercury. (Editorial: Clean Air Under Siege, N.Y. Times, Feb. 5, 2011.)

On Feb. 2, 2011, House Energy and Commerce Committee Chairman Upton (R-Mich.) released a discussion draft of the Energy Tax Prevention Act of 2011 which would amend the CAA to bar EPA from regulating GHG emissions. Cosponsors are Sen. Inhofe (R-Okla.), of the Senate Environment and Public Works Committee, and Rep. Whitfield (R-Ky.), chair of the House Energy and Commerce Subcommittee on Energy and Power, which will hold a hearing on Feb. 9th. (Press Release: Upton, Whitfield, Inhofe Unveil Energy Tax Prevention Act to Protect America’s Jobs & Families, Feb. 2, 2011.) Among other things, the draft bill would repeal the endangerment finding (74 Fed. Reg. 66496 (Dec. 15, 2009) (see § 4.4.2.2.)); the GHG Tailoring Rule (75 Fed. Reg. 31514 (June 3, 2010) (see § 4.4.2.2.2.)); or any federal action “under this Act [CAA] occurring before the date of enactment of this section that applies a stationary source permitting requirement or an emissions standard for a [GHG] due to concerns regarding possible climate change.” This draft is considered, in early Feb. 2011, to be the leader of the pack. Critics said Upton and Inhofe were siding with polluters over the environment and public health. (Darryl Fears, House GOP readies bill to prohibit EPA from regulating carbon emissions, Wash Post, Feb. 3, 2011.)

On Feb. 9, 2011, Administrator Jackson testified before the House Energy and Commerce Committee’s Subcommittee on Energy and Power about the Upton bill. (Her opening statement was on EPA’s web page on that date; re. the endangerment finding, she said: “Chairman Upton’s bill would, in its own words, repeal that scientific finding. Politicians overruling scientists on a scientific question—that would become part of this Committee’s legacy.”)

On Feb. 18, 2011, the House approved 2 amendments to H.R. 1, its proposed spending measure to fund the government through 2011. One would ban EPA from regulating GHG and was introduced by 3 Republican Representatives from Texas. It was approved 249–177 and fulfills a promise made by Republicans during the midterm elections (although 13 Democrats also voted for it); the other (§ 4014 on page 374 of H.R. 1) would restrict EPA’s Environmental Appeals Board permitting authority in Alaskan waters. If enacted, H.R. 1 would cut EPA financing by $3 billion, or 30%. (Climate rules bill flags ‘EPA bureaucrats’, UPI, Mar. 3, 2011.)

On Mar. 11th, Secretary Jackson testified before the House Energy and Commerce Committee’s Energy & Power and Environment & Economy Subcommittees on the President’s Fiscal Year 2012 budget proposal for EPA. She defended EPA’s 40+ year record and discussed Rep. Upton’s efforts to eliminate portions of the CAA. Regarding the joint EPA/DOT regulation of GHG from cars and trucks, and given the increase in oil prices as a result of unrest in Africa and the Middle East, she could not understand why Congress would want to massively increase our dependence on foreign oil. (EPA News Release, Mar. 11, 2011.)

On Mar. 3rd, 2011, identical bills (final versions of Upton’s Feb. 2nd draft, supra) were introduced—H.R. 910, with Upton as sponsor and Whitfield as one of 34 cosponsors, including several Democrats, was referred to the Energy & Commerce Committee; S. 482, with Inhofe as sponsor and 43 (so far only Republican) cosponsors, was referred to Environment & Public Works—to prevent EPA from regulating GHG under the CAA; it would nullify the endangerment finding and EPA’s mandatory GHG reporting regulations but leave the EPA/DOT vehicle standards in place.

On Mar. 8, 2011, a hearing was held before the Energy and Power Subcommittee on the Energy Tax Prevention Act of 2011. The committee chair, Mr. Whitfield, said in his opening statement: “H.R. 910 is not about global warming science, it is about stopping regulations certain to do more harm than good, regardless of how one interprets the science.”

The subcommittee was expected to approve the bill later in the week. (John M. Broder, At House E.P.A. Hearing, Both Sides Claim Science, N.Y. Times, Mar. 8, 2010.) It did so on Mar. 10th; the full Energy & Commerce Committee is expected to pass it early in the week of Mar. 14th and the House before the end of the month. Then the Senate will have its say, and then, should it pass, the President.

4.4.2.5. Lawsuits Challenging The EPA Endangerment Finding

As noted above, EPA’s Dec. 2009 endangerment filing had a deadline of Feb. 16, 2010, for filing lawsuits challenging it, and critics wasted no time, partly due to “climategate,” discussed supra. On Dec. 23, 2009, “a coalition of coal-mining companies and beef producers … challenged the endangerment finding in a petition filed with the D.C. Circuit Dec. 23. Sixteen states have moved to intervene in support of EPA in that case (Coalition for Responsible Regulation Inc., et al. v. EPA, D.C. Cir., No. 09-1322, motion to intervene filed Jan. 21, 2010).”

U.S. Chamber of Commerce v. EPA, D.C. Cir., No. 10-1030, was filed on Feb. 12, 2010; and on Feb. 16, 2010, more lawsuits were filed in the D.C. Cir., just meeting the deadline for challenging the endangerment finding: State of Texas, et al. v. EPA, No. 10-1041; American Iron and Steel Institute v. EPA, No. 10-1038; National Association of Manufacturers, et al. v. EPA, No. 10-1044. Other suits filed on the 16th alone in the D.C. Circuit, from PACER, are: Commonwealth of Virginia v. EPA, No. 10-1036; Gerdau Ameristeel Corp. v. EPA, No. 10-1037; State of Alabama v. EPA, No. 10-1039; Ohio Coal Association v. EPA, No. 10-1040; Utility Air Regulatory Group v. EPA, No. 10-1042; and Portland Cement Association v. EPA, No. 10-1046.

In addition to Texas, Virginia and Alabama, about 13 other states have also sued EPA in the D.C. Circuit challenging the endangerment finding; however, as the finding imposes no requirements in and of itself, petitioners may have a problem establishing standing to sue at all. [181] (TheVirginia Attorney General announced April 1, 2010, that it will also challenge the GHG emissions limits for cars and light trucks finalized on that date (see supra § 4.4.2.2.1.) in the same lawsuit, Virginia v. EPA, No. 10-1036, filed on Feb. 16th. [182])

According to Warming Law, four additional petitions for review were filed in the D.C. Circuit challenging the finding: National Mining Assoc. v. EPA, No. 10-1024; Peabody Energy Co. v. EPA, No. 10-1025; American Farm Bureau Fed. v. EPA, No. 10-1026; and Alliance for Natural Climate, et al. v. EPA, No 10-1049, for a total of 17, not including the state suits mentioned supra. On June 16th, a 3-judge panel of the D.C. Circuit put the cases on hold until 14 days after EPA’s decision on the (at least) 10 separate administrative petitions for reconsideration of the finding that have been filed directly with EPA, to allow the agency to complete its administrative review. (Industry Turning to Legal Action to Stop EPA Regulation of Greenhouse Gases, Inside Climate News, July 14, 2010.)

On April 15, 2010, attorneys general from Alabama and Virginia filed a motion in the D.C. Circuit to force EPA to reopen its endangerment finding and hold public hearings on the science it used; as the agency had relied on information from the University of East Anglia’s Climate Research Unit, which was involved in “Climategate,” see supra, the premise was that the endangerment finding was flawed and needed to be reexamined.

On July 30, 2010, EPA announced that it had rejected 10 petitions, including the one filed by the state of Texas, and on Sept. 7, 2010, the state of Texas challenged the EPA rejection. (Texas v. EPA, C.C. Cir., No. 10-1281.) It joined four other challenges to the rejection which were filed in August, including one by the U.S. Chamber of Commerce. The deadline for filing challenges is Oct. 12th.

4.4.2.6. EPA’s Defense of the Endangerment Finding & GHG Regulation

On April 28, 2010, Administrator Jackson spoke at a hearing before the House Energy and Environment Subcommittee of the Committee on Energy and Commerce entitled “Clean Energy Policies That Reduce Our Dependence on Oil.” In her remarks in defense of the Dec., 2009, endangerment finding and the April 1st joint rulemaking with the NHTSA, supra, she stated:

In response to motions to stay EPA’s GHG regulation filed by the state of Texas, the Coalition for Responsible Regulation, the National Association of Manufacturers, and other petitioners (in Coalition for Responsible Regulation v. EPA and Southeastern Legal Foundation v. EPA, nos. 09-1322, 10-1073, 10-1092, & 10-1131), a brief was filed on Oct. 28, 2010, by the EPA & the DOJ, in defense of climate change science, the endangerment finding, and EPA’s GHG regulation decisions.

On Dec. 10, 2010, the D.C. Circuit ruled that EPA’s endangerment finding and its climate rules promulgated after it (see supra § 4.4.2.2.) can be enforced despite the ongoing legal challenges to them. The ruling was in response to a request by plaintiffs in Coalition for Responsible Regulation Inc., et al. v. EPA, supra, that the rules be stayed pending court review. (Appeals Court gives green light to EPA carbon pollution standards, rejects claims of polluters and climate-science deniers, Climate Progress, Dec. 12, 2010; Leslie Kaufman, A Surge in Lawsuits Challenging E.P.A. on Climate, N.Y. Times green blog, Nov. 3, 2010).

On Feb. 18, 2010, two years after the initial request was made by the Sierra Club, NRDC and the International Center for Technology Assessment, the White House Council on Environmental Quality made an announcement to the effect that it saw “…no basis for excluding greenhouse gas emissions from…” agencies’ consideration of the environmental effects of their actions under NEPA. CEQ released on that date three draft guidance documents in conjunction with the 40th anniversary of NEPA in an attempt to modernize the act. The first was entitled: DRAFT NEPA GUIDANCE ON CONSIDERATION OF THE EFFECTS OF CLIMATE CHANGE AND GREENHOUSE GAS EMISSIONS, “for public consideration and comment on the ways in which Federal agencies can improve their consideration of the effects of greenhouse gas (GHG) emissions and climate change in their evaluation of proposals for Federal actions under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq.” This notice was published on Feb. 23rd at 75 Fed. Reg. 8046; comments are requested until May 24, 2010. The second was: Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act, published on Feb. 23rd at 75 Fed. Reg. 8045, with comments accepted until April 9th. The third was: DRAFT GUIDANCE FOR NEPA MITIGATION AND MONITORING, published Feb. 23rd at 75 Fed. Reg. 8046; comments accepted until May 24, 2010. The CEQ updated its NEPA web page to provide more information, and the documents are in fact on the New CEQ NEPA Guidance page. EPA also launched its Rulemaking Gateway on the same day, in order to provide greater transparency in its regulatory process.

Green Stimulus Spending: Passage of the Emergency Economic Stabilization Act of 2008, Division A of Pub. L. No. 110–343, aka the “Troubled Assets Relief Program” or TARP, and the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, which dedicated $112 billion to climate-related initiatives, or three times the budget these programs would have had without the stimulus. (See Breakdown of U.S. Green Stimulus (TARP and American Recovery Plan), World Resources Institute, EarthTrends Delivered, from HSBC, Building a green recovery: Governments allocate USD470bn – and counting…., May 2009.)

The ‘Green House’? Solar News: On Oct. 6, 2010, the administration announced that solar panels (and a solar hot water heater) will once again grace the White House roof, for the first time since the Reagan Administration removed the ones installed by Jimmy Carter. (Glenn Hurowitz, White House approves solar for roof and California desert, GRIST, Oct. 5, 2010).

4.4.2.7. Offshore Drilling

On Mar. 31, 2010, the Obama Administration announced that it will open the Atlantic, Gulf, and Alaskan coasts to offshore oil and natural gas drilling in what GRIST called “a stunning concession to fossil-fuel companies.” (Jonathan Hiskes, Obama will open large sections of Southeast and Alaskan coasts to offshore drilling, GRIST, Mar. 31, 2010.) The map below, brazenly, though respectfully and gratefully, copied from the N.Y. Times, compares the new areas of exploration and protection to existing areas of exploration (note the approximate location (at the red star) of the Deepwater Horizon disaster, infra). The actual amounts of fuel that might be found are not known, [183] and several states may object given the ecologically sensitive nature of their coastlines. The reason given for the move was the national security interest in reducing oil and gas imports. Inevitably, it drew criticism not only from environmentalists, but also from Republicans, who claim he did not go far enough, and some Democrats as well. [184]

4.4.2.8. The Deepwater Horizon Disaster

4.4.2.8.1. Overview

Less than a month after the announcement lifting the moratorium on offshore drilling, see supra § 4.4.3.1., the oil rig Deepwater Horizon exploded on April 20, 2010, about 50 miles off the coast of Louisiana in the Gulf of Mexico, killing 11 of its 126-member crew instantly, and sank two days later. The accident threatened to become the largest environmental disaster in American history and was referred to on May 12th as a “perfect ecological storm” by a research scientist at the Living Marine Resources Cooperative Science Center at NOAA. (Steven D. Cook, Oil Spills: Impact of Gulf Spill Could Last Decades, Witnesses Tell Senate Environment Panel, 90 BNA Daily Environment Report A-7 (May 12, 2010); Tom Philpott, Gulf of Mexico: from magnificent resource to industrial sacrifice zone, GRIST, April 30, 2010.) The rig was owned by Transocean Limited, the world’s largest offshore drilling contractor; leased by British Petroleum (BP); Halliburton performed “cementing” operations; Cameron International manufactured the blowout protector (the “BOP”, a critical backup device that failed to shut off the flow of oil on the Deepwater Horizon). On May 19th it was revealed that another company, Schlumberger Ltd., the world’s largest oilfield services company, had had a crew on the Deepwater Horizon that departed only hours before the rig exploded and sank; the crew had been performing “wireline services” for BP. (Braden Reddall, Schlumberger says its crew left Horizon day of fire, Reuters India, May 20, 2010.)

Transocean Ltd. owns about half of the about 50 deepwater drilling platforms in the world; it is currently the target of tax inquires in Norway, Brazil, and the U.S. (Barry Meier, Owner of Exploded Rig Is Known for Testing Rules, N.Y. Times, July 7, 2010.)

The Wall Street Journal reported on April 28, 2010, that the Deepwater Horizon lacked a $500,000 remote control shut-off switch, called an “acoustic trigger,” which is required by two other major oil-producing nations (Norway and Brazil, but not the UK where BP is based) as a last-resort protection against underwater spills; it did have a switch that should have cut off the flow automatically, but it failed to function. The U.S. has considered requiring “acoustic triggers,” but the industry questioned their cost and effectiveness. (Russell Gold, Ben Casselman, Guy Chazan & Jeff Fick, Leaking Oil Well Lacked Safeguard Device, WSJ, April 28, 2010.)

BP is responsible for the cleanup, or at least all “legitimate” compensation claims; there is a $75 million cap on compensation to claimants in the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701 et seq., which BP has said it will not consider a limit. BP and the Coast Guard have tried dumping chemical dispersants into the water in hopes that they will break up the oil into small droplets (Tom Philpott, What are we dumping into the Gulf to ‘fix’ the oil spill?, GRIST, May 3, 2010, at: Tom Philpott, Bad medicine: Chemical dispersants being used in Gulf clean-up are potentially toxic, GRIST, May 6, 2010), and igniting the oil on the surface.

A Website was created to consolidate the government’s efforts, entitled the Deepwater Horizon Response: The Official Site of the Deepwater Horizon Unified Command. Agencies and businesses included are: BP, Transocean, the Coast Guard, MMS, EPA, NOAA, DOI, Department of Homeland Security, Defense Department, Fish & Wildlife Service, National Park Service, State Department, U.S. Geological Survey, CDC & OSHA.

Information was also available on the White House’s website. NOAA’s IncidentNews page is available online. The BBC has an interactive guide on Stopping the Oil. The New York Times has a topic entitled Gulf of Mexico Oil Spill (2010).

See also:

• Jonathan L. Ramseur, Oil Spills in U.S. Coastal Waters: Background, Governance, and Issues for Congress, Congressional Research Service, April 30, 2010.
• Erin Aigner, Joe Burgess, Shan Carter, Joanne Nurse, Haeyoun Park, Amy Schoenfeld & Archie Tse, Tracking the Oil Spill in the Gulf (updated), N.Y. Times, Aug. 2, 2010.

On Saturday May 15th, EPA and the Coast Guard approved the use of underwater dispersants to prevent the oil from reaching the surface. (Press Release, Coast Guard and EPA approve use of dispersant subsea in further effort to prevent oil from reaching U.S. shoreline.)

On Sunday, May 16th, BP finally reported a modicum of success. They inserted a tube into the pipe from which most of the oil is escaping, and began to divert the oil to a tanker on the surface. This is only a temporary measure, however, as they still need to stop the flow altogether. (Shaila Dewan, BP Reports Some Success in Capturing Leaking Oil, N.Y. Times, May 16, 2010; US says BP move to curb oil leak ‘no solution’, BBC News, May 17, 2010.) BP’s claims as to how much oil is actually being siphoned off vary widely, from 3000 to 5000 barrels a day, from what was originally (and probably inaccurately, see supra) estimated as a 5000-barrel-per-day leak. (CNN Wire Staff, EPA tells BP to find new dispersant, CNN, May 20, 2010.)

BP decided to try to “kill” the well by May 22nd or 23rd. (Matthew L. Wald & Tom Zeller, Jr., Fishing Ban Is Expanded as Spill’s Impact Becomes More Evident, N.Y. Times, May 18, 2010.) On the 21th that attempt was postponed until at least the 25th ( BP delays attempt to plug leak with mud: White House taps Graham, Reilly to lead investigative panel, EPA Office of Public Affairs E-Clips, March 14, 2013) and postponed again until Wednesday the 26th. BP estimates “probability of success between 60 percent and 70 percent.” (Campbell Robertson, Clifford Krauss & John M. Broder, Oil Hits Home, Spreading Arc of Frustration, N.Y. Times, May 24, 2010; Clifford Krauss & Matthew L. Wald, BP Prepares for ‘Top Kill’ Procedure to Contain Spill, N.Y. Times, May 25, 2010.)

For a summary of the efforts to stop the oil, see Al Granberg, Mika Grondahl, Xaquin G.V., Haeyoun Park & Graham Roberts, Methods That Have Been Tried to Stop the Leaking Oil, N.Y. Times, June 4, 2010.

4.4.2.8.2. Congressional Response

On Tuesday, May 11th, leaders from BP America (chairman & president Lamar McKay), Swiss-based Transocean, Ltd. (Steven Newman, CEO), and Halliburton, Inc. (Tim Probert), testified before the Senate Energy and Natural Resources Committee at a hearing entitled “Offshore Oil Development and the Deepwater Horizon Accident”; another hearing before the Senate Environment and Public Works Committee was scheduled for later in the day, entitled “Economic and Environmental Impacts of the Recent Oil Spill in the Gulf of Mexico.” Unsurprisingly, each company blamed the others. (H. Josef Hebert, Oil spill testimony to Congress: Not our fault, AP, May 11, 2010; Lynn Garner, Oil Spills: Company Executives Unable to Explain Cause Of Drilling Rig Accident That Led to Gulf Spill, 90 BNA Daily Environment Report A-1 (May 12, 2010))

The following day, May 12th, the House of Representatives continued the interrogation before the Committee on Energy and Commerce’s Subcommittee on Oversight and Investigations in a hearing entitled “Inquiry into the Deepwater Horizon Gulf Coast Oil Spill.” In addition to the officers who testified on the 11th, Jack Moore, President and CEO of Houston-based Cameron International Corp., which manufactured the BOP, defended its equipment’s “solid track record” and “very long history of reliable performance”; however, questions have arisen about modifications to the BOP on the Deepwater Horizon (Tom Fowler, BP asks if blowout devices have been modified, Houston Chronicle, May 8, 2010; Lynn Garner, Oil Spills: Company Executives Unable to Explain Cause Of Drilling Rig Accident That Led to Gulf Spill, 90 BNA Daily Environment Report A-1 (May 12, 2010)), which Mr. Moore testified had been made to BP’s specifications. (Tresa Baldas, Oil Spill Defendants Continue to Play Blame Game, National Law Journal, May 13, 2010.) (The Wall Street Journal reported in 2005 (Jim Carlton, Alaska Probe Focuses on BP, Nabors; Workers Allege Companies Failed to Report Blowouts, Falsified Drilling Records, Feb. 3, 2005, at B-6), and the Huffington Post in May 2010, that at least as early as 2003 BP was aware that tests of its BOPs were being falsified in Alaska.)

On Tuesday May 18th, the Senate Environment and Public Works Committee had a second hearing entitled: “The Federal Response to the Recent Oil Spill in the Gulf of Mexico”; the Senate Energy and Natural Resources committee met “to receive testimony from the Administration on issues related to offshore oil and gas exploration including the accident involving the Deepwater Horizon in the Gulf of Mexico” and heard testimony from Ken Salazar, Secretary of the DOI, who acknowledged the corruption in the MMS. The House Committee on Natural Resources, which has primary jurisdiction over offshore oil and gas drilling, announced on May 18th a seven-part oversight hearing series to investigate the Deepwater Horizon oil rig explosion and examine the future of America’s offshore oil and gas policy, beginning on May 26th and continuing until June 29th. (House Panel to Hold Seven-Part Oversight Hearing Series on Deepwater Horizon Oil Rig Explosion, May 18, 2010.)

On May 18th Senate Republicans blocked for the second time efforts to raise the statutory limit on oil companies’ liability from $75 million to $10 billion. Some lawmakers (e.g., Harry Reid) are in favor of having no cap, but others (e.g., Inhofe, Murkowski) believe $10 billion would drive small companies who couldn’t afford the insurance premiums out of business. (Alexander Bolton & Ben Geman, Obama breaks with his party on issue of oil spill liability caps, The Hill, May 18, 2010; Lisa Murkowski Blocks Bill To Raise Oil Spill Liability Cap, Huffington Post, May 14, 2010.) Still others believe raising the cap and driving out small companies would be a victory for some of the larger players, such as BP. (Elizabeth Williamson, BP Aims to Avoid Fresh Restrictions on Drilling, WSJ, May 27, 2010.)

The House Subcommittee on Energy and the Environment held a hearing on Wednesday, May 19th, entitled: “Sizing up the BP Oil Spill: Science and Engineering Measuring Methods.” Rep. Edward J. Markey, D-Mass., chair of the subcommittee, sent a letter on May 19th to BP America’s CEO McKay requesting that BP make publicly available a live video stream from the leak site, in order to assist scientists and engineers to stop it; BP agreed. (Press release: Markey to Get Live Feed of BP Oil Spill on Website: BP Acquiesces to Markey’s Request, Will Release Video Stream Tonight to Chairman, May 19, 2010.)

Also on May 19th the House Transportation and Infrastructure Committee questioned BP America chairman Lamar McKay, among others, about the decision to use the dispersant Corexit 9500, which contains petroleum distillates, propylene glycol and a proprietary organic sulfonic salt and is considered “less effective and more toxic” than alternatives; on Thursday May 20th, EPA gave BP until midnight on the 20th to find another from a list of 18 EPA-approved dispersants, and 72 hours to stop using Corexit in the Gulf. (CNN Wire Staff, EPA tells BP to find new dispersant, May 20, 2010; Siobhan Hughes, Angel Gonzalez & Jeffrey Ball, BP Criticized for Inability to Assess Oil Flow: EPA Orders to Use of Milder Dispersant; Campbell Robertson & Elisabeth Rosenthal, Agency Orders Use of a Less Toxic Chemical in Gulf, N.Y. Times, May 20, 2010.) However, BP continued to use Corexit, disputing EPA’s method of estimating toxicity. (Nancy J. Moore & Linda Roeder, Oil Spills: BP Prepares for ‘Top Kill’ Procedure In Hopes of Shutting Down Gulf Oil Flow, 98 Daily Environment Report A-14 (May 24, 2010); Elisabeth Rosenthal & Anahad O’Connor, BP Kept Using Toxic Chemical in Gulf After E.P.A. Deadline, N.Y. Times, May 24, 2010; Elisabeth Rosenthal, In Standoff With Environmental Officials, BP Stays With an Oil Spill Dispersant, N.Y. Times, May 24, 2010.) Wright v. BP was filed on July 26, 2010, in the U.S. District Court for the Southern District of Alabama and is the first personal injury lawsuit involving Corexit 9500. See infra, Lawsuits.

On May 25th the Senate Energy and Natural Resources committee had its third hearing on the BP disaster, entitled Liability and Financial Responsibility Issues Related to Offshore Oil Production. Topics included the $75 million damage cap, which has not been revised in 20 years to account for inflation; civil and criminal penalties are likewise obsolete. See infra. (David Ingram, Senators Pressure DOJ to Take Action Against Oil Spill Companies, Law.com, May 25, 2010; Clifford Krauss & Matthew L. Wald, BP Prepares for ‘Top Kill’ Procedure to Contain Spill, N.Y. Times, May 25, 2010.)

Liability legislation in the 111th Congress (some, in March 2011, have been reintroduced into the 112th) includes:

• S. 3305, The Big Oil Bailout Prevention Liability Act of 2010, int. 5/4/2010
• S. 214, the Big Oil Bailout Prevention Unlimited Liability Act of 2011 was introduced into the 112th Congress on 1/27/2011
• S. 3306, The Big Oil Bailout Prevention Trust Fund Act of 2010, int. 5/4/2010
• S. 215 with the same title was introduced into the 112th Congress on 1/27/2011
• S. 3345, The Big Polluter Pays Act, int. 5/11/2010, to amend 46 U.S.C. to remove the cap on punitive damages established by the Supreme Court in Exxon Shipping Company et al. v. Baker et al., No. 07–219, 554 U.S. __, 128 S. Ct. 2605 (2008), which imposed a 1:1 ratio of punitive damages to compensatory damages in maritime cases.
• S. 3346, Outer Continental Shelf Lands Act Amendments Act of 2010, int. 5/11/2010
• H.R. 5214, The Big Oil Bailout Prevention Act of 2010, int. 5/5/2010
• H.R. 492, The Big Oil Bailout Prevention Act of 2011, was introduced into the 112th Congress on 1/26/2011
• H.R. 5355, To amend the Oil Pollution Act of 1990 to repeal the limitation of liability of a responsible party for a discharge or substantial threat of a discharge of oil from an offshore oil facility, int. 5/20/2010
• H.R. 5481, To give subpoena power to the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, int. 6/8/2010
• S. 3515, Department of Interior Research and Technologies for Oil Spill Prevention and Response Act, int. 6/21/2010
• S. 3516, Outer Continental Shelf Reform Act of 2010, int. 6/21/2010
• H.R. 5626, the Blowout Prevention Act of 2010, int. 6/29/2010
• H.R. 5629, the Oil Spill Accountability and Environmental Protection Act of 2010, int. 6/29/2010

On Thursday May 27th the House Judiciary Committee had a hearing entitled Liability Issues Surrounding the Gulf Coast Oil Disaster; officials from BP, Transocean, Cameron and Halliburton testified, as well as relatives of the deceased oil workers and survivors of the Deepwater Horizon, and others.

Also on May 27th members of the Senate Committee on Small Business and Entrepreneurship at a hearing entitled Impact of the Deepwater Horizon Oil Spill on Small Businesses, agreed that BP should be held responsible for small business losses as a result of the disaster, as well as communities’ losses and those of individuals. (Andy Medici, Oil Spills: Senate Small Business Committee Members Want BP Held Accountable to Gulf Companies, BNA State Environment Daily, May 28, 2010.)

In July, the House Committee on Natural Resources voted for a draft bill [H.R. 3534, see infra this section] to preclude oil companies with poor safety records from receiving offshore oil exploration permits. It defines such companies as those that experienced 10 or more deaths in the last 7 years; the Gulf disaster killed 11 workers. (BP faces 7-year offshore drilling ban: A US Congressional committee has agreed measures that would ban BP from new offshore drilling for seven years, BBC News, July 15, 2010.)

On Aug. 19, 2010, the House Committee on Energy and Commerce, Subcommittee on Energy and Environment, had a hearing entitled “The BP Oil Spill: Accounting for the Spilled Oil and Ensuring the Safety of Seafood from the Gulf.”

On Aug. 24th, the second day of the 4th session (running from Aug. 23-27) of a joint investigation by the U.S. Coast Guard and the new Bureau of Energy Management, co-chaired by David Dykes and Captain Hung Nguyen, Halliburton’s Jesse M. Gagliano testified that he had expressed concerns about BP’s planned closing of the well connected to the Deepwater Horizon and highlighted some of the risky decisions that were made. (Deepwater Horizon Joint Investigation Team Releases Final Report, Sept. 14, 2011)

On Sept. 2, 2010, the N.Y. Times reported that legislation passed by the House on July 30, 2010, H.R. 3534, the Consolidated Land, Energy, and Aquatic Resources Act of 2009 (aka the CLEAR Act) contains an amendment (written by California Representative George Miller) that, while not explicitly naming BP, bars any company with “more than 10 fatalities at its exploration, development, and production facilities and refineries as a result of violations of Federal or State health, safety, or environmental laws,” or that was penalized over $10 million under the CAA or the Clean Water Act, within seven years prior to the request date, from acquiring a lease to drill on the Outer Continental Shelf (see § 206 (Leases, easements, and rights-of-way), § (b) Environmental Diligence, which amends subsection 8 (d) of the Outer Continental Shelf Lands Act (43 U.S.C. 1337), entitled: Requirement for Certification of Responsible Stewardship, at pages 57-59 of the engrossed bill). BP warned Congress that if the CLEAR Act is enacted, and BP is thus denied new offshore drilling permits, it just might not have enough money to meet its obligations to repair damages in the Gulf from the Deepwater Horizon disaster. (Clifford Krauss & John M. Broder, BP Says Limits on Drilling Imperil Oil Spill Payouts, N.Y. Times, Sept. 2, 2010.) H.R. 3534 was placed on the Senate calendar Aug. 4, 2010, but it was not enacted and I can find no evidence in February 2011 that it has been reintroduced into the 112th Congress.

4.4.2.8.3. Liability

Transocean has cited the Limitation of Liability Act of 1851, 46 U.S.C. § 30501 et seq., for the proposition that a vessel owner is liable only for the post-accident value of the vessel and cargo except in cases of negligence, to limit its liability to $26.7 million. (Carrie Levine & David Ingram, Companies in Gulf Spill Tap Washington Help: Lawyers, lobbyists enter fray as Washington backlash grows, National Law Journal, June 1, 2010.) (Interesting definition of a typically stationary offshore drilling rig as a “vessel.” See David W. Robertson, How the Supreme Court’s New Definition of “Vessel” is Affecting Seaman Status, Admiralty Jurisdiction, and Other Areas of Maritime Law, 39 Journal of Maritime Law & Commerce 115 (2008)) This attempt caused such an outcry that one of Transocean’s attorneys told the House Judiciary Committee at the end of May that “the company filed under the [Limitation of Liability] act only at the insistence of its insurers, and that a ‘failure to do so could have resulted in the loss of insurance coverage to help pay claims.’” (Jad Mouawad & John Schwartz, Cleanup Costs and Lawsuits Rattle BP’s Investors, N.Y. Times, June 2, 1010.)

On June 1st, Attorney General Eric Holder announced in New Orleans that civil and criminal investigations had begun into the oil spill, although it was not clear whether subpoenas had been issued to any of the companies involved. The DOJ is looking into violations of the Clean Water Act, the Oil Pollution Act of 1990, the Migratory Bird Treaty Act and the Endangered Species Act. (Helene Cooper & Peter Baker, U.S. Opens Criminal Inquiry Into Oil Spill, N.Y. Times, June 1, 2010.)

BP’s Compensation Fund: In June, 2010, the administration announced that BP, a primarily responsible party, was required under the Oil Pollution Act of 1990 to set up a $20 billion oil spill escrow fund to compensate victims. (Press release: BP Establishes $20 Billion Claims Fund for Deepwater Horizon Spill and Outlines Dividend Decisions, June 16, 2010.) Kenneth R. Feinberg, who administered the federal 9/11 fund, was appointed independent administrator. The Gulf Coast Claims Facility became operational on Aug. 23, 2010 and was the official way for individuals and businesses to file claims with BP for damages as a result of the escaped oil from the Deepwater Horizon.

Reports commissioned by Mr. Feinberg estimated that the Gulf will recover faster than previously anticipated, by the end of 2012. The prediction seemed a bit self-serving, as it will influence the amount of payments to people whose livelihoods were devastated by the disaster. Many area residents are not pleased with the conclusions or the payment process. (John Schwartz & Mark Schrope, Report Foresees Quick Gulf of Mexico Recovery, N.Y. Times, Feb. 1, 2011.) Indeed, on Feb. 24, 2011, it was announced that so far only $3.5 billion had been paid to 168,000 claimants (although 490,000 people have filed claims, 80% of which Feinberg says do not have correct documentation); many complain about the slow pace and small amounts of the payouts. Furthermore, Feinberg’s law firm gets paid an astonishing $850,000 every month by BP to administer the fund, and anything left over reverts to BP, which quite understandably considers him too generous with payouts. (Debbie Elliott, On Gulf Coast, Frustration at BP Claims Process, NPR, Feb. 24, 2011.) U.S. District Judge Carl Barbier recently ruled that Mr. Feinberg is not truly independent and is working in BP’s interest. (Laurel Brubaker Calkins & Allen Johnson, Jr., BP Says Feinberg Fund ‘Exceeds’ Law Requiring Spill Payments, Business Insurance, Feb. 18, 2011; Climate Progress, Mar. 7, 2011).

BP’s Gulf of Mexico Research Initiative: On May 24, 2010, BP announced a commitment of up to $500 million to a research program to study the impact of the oil disaster on the environment and on public health. An alliance of 5 Gulf Coast states (Texas, Louisiana, Mississippi, Alabama, and Florida) will be in charge of dispensing funds from the Initiative over the next 10 years, BP announced on Sept. 29th; a board of scientists was selected to disperse the funds. (Press Release, BP and the Gulf of Mexico Alliance Announce Implementation of BP’s $500 Million Independent Research Initiative, Sept. 29, 2010.) Shortly after the spill BP gave several universities and research groups $50 million; however, the balance of the promised funds has not materialized as of Feb. 24, 2011. Scientists are frustrated by the lack of money, and the lack of focus and leadership in the research, especially as spring approaches. (Christopher Joyce, ‘Fog of Research’ Clouds Study of Oil’s Effects in Gulf, NPR, Feb. 24, 2011.)

On Tuesday, July 26, 2010, BP announced that it was replacing the widely criticized Tony Hayward with Robert Dudley, an American and first non-Brit CEO, in October. It also announced a record $17 billion 2Q loss after setting aside $32.2 billion, and planning to sell $30 billion in assets over the next 18 months to help pay for the cleanup. (Julia Werdigier, BP Envisions a Leaner Future Under Its New Chief Executive, N.Y. Times, July 27, 2010.)

As of August, 2010, 77 actions and over 200 other wrongful death and economic and environmental damage cases had been filed against BP, Transocean Ltd., Halliburton Co. and Cameron International Corp.

On Tuesday Aug. 10th, the U.S. Judicial Panel on Multidistrict Litigation consolidated the cases before U.S. District Judge Carl Barbier in the Eastern District of Louisiana; he has divested his financial holdings in 2 of the defendant companies, unlike his colleagues on the court. (Leigh Jones, BP oil spill cases consolidated before Judge Barbier in New Orleans, National Law Journal, Aug. 10, 2010.)

On Dec. 15, 2010, the Justice Department filed a lawsuit (United States v. BP Exploration and Production Inc. et al.) in the U.S. District Court for the E.D. of Louisiana for violations of the Oil Pollution Act of 1990 and the Clean Water Act. Transocean Holdings LLC, Transocean Offshore Deepwater Drilling Inc., and Transocean Deepwater Inc. were among the named defendants. The lawsuit seeks “unlimited removal costs and damages under the Oil Pollution Act of 1990.” Attorney General Holder says the Department is considering whether to file criminal charges separately. (Justice Department Sues BP, Others Over Gulf Spill, NPR, Dec. 15,2010.)

On Wednesday, April 20, 2011, the first anniversary of the explosion on the Deepwater Horizon and the deadline for all parties to file claims against each other, BP filed papers in federal court in New Orleans suing Cameron International which made the faulty BOP, Halliburton, the cement contractor, and the rig owner, Transocean Ltd., the latter for at least $40 billion (with a b) in damages. On the same day, Transocean filed papers against BP for $12.9 million and against Halliburton and other companies for $20 million. Cameron, not to be left out, filed cross claims, counterclaims, and indemnity claims. (John Schwartz, BP Sues 3 Companies Over Oil Spill, N.Y. Times, April 20, 2011; Campbell Robertson, Beyond the Oil Spill, the Tragedy of an Ailing Gulf, N.Y. Times, April 20, 2011.)

On Friday, March 2, 2012, BP reached a $7.8 billion dollar settlement agreement with businesses and individuals. BP has already paid out about $6.1 billion to compensate about 220,000 plaintiffs from the Gulf Coast Claims Facility, or GCCF, see supra. The 2012 agreement will be in addition to it. Kathy Finn, Andrew Longstreth & Tom Bergin, BP’s $7.8 billion deal may speed payments for U.S. spill, Chicago Tribune, March 3, 2012.

4.4.2.8.4. Executive Branch Response

President Obama, who visited the site on May 2nd, called it “a massive and potentially unprecedented environmental disaster. The oil that is still leaking from the well could seriously damage the economy and the environment of our Gulf States and it could extend for a long time. It could jeopardize the livelihoods of thousands of Americans who call this place home.” (Remarks in Venice, Louisiana, May 2, 2010, Daily Comp. Pres. Docs.; Steven D. Cook, Oil Spills: Impact of Gulf Spill Could Last Decades, Witnesses Tell Senate Environment Panel, 90 BNA Daily Environment Report A-7, May 12, 2010. On June 1st, President Obama referred to the Gulf oil spill as “the greatest environmental disaster of its kind in our history.” (Gulf oil spill: US begins criminal investigations, BBC News, June 2, 2010.)

National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling: Prior to the official announcement of the appointment of an independent commission to examine the BP disaster, Representatives Lois Capps (D-CA) and Edward Markey (D-MA), with 22 co-sponsors, introduced the “BP Deepwater Horizon Disaster Inquiry Commission Act of 2010,” H.R. 5241. Senator Sheldon Whitehouse (D-RI) introduced a companion proposal, S. 3344, with 3 cosponsors. (Ben Geman, Obama to create independent commission to review Gulf oil spill, The Hill, May 17, 2010; Daniel J. Weiss, Obama to establish presidential commission to investigate Gulf oil spill, GRIST, May 17, 2010.)

The announcement came on May 22nd in the president’s weekly address, and an executive order signed on the 24th (Exec. Order 13543 of May 21, 2010, National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, 75 Fed. Reg. 29397 (May 26, 2010)) officially created the commission. Former senator and governor Bob Graham and former EPA chief William Reilly, who was in office during the Exxon Valdez spill, will co-chair the bipartisan commission with five other members: Frances G. Beinecke, Donald Boesch, Terry D. Garcia, Cherry A. Murray and Frances Ulmer. (Richard Simon, Gulf oil spill: Obama names investigation panel, Greenspace, June 14, 2010.) Richard Lazarus is the Executive Director. (Nancy J. Moore & Linda Roeder, Oil Spills: BP Prepares for ‘Top Kill’ Procedure In Hopes of Shutting Down Gulf Oil Flow, 98 Daily Environment Report A-14 (May 24, 2010))

On Monday July 12th, Bob Graham said the panel would try to determine if BP was operating in a more risky way than the rest of the industry. The commission had 6 months to fulfill its mandate. (John M. Broder, U.S. Issues Revised Offshore Drilling Ban, N.Y. Times, July 12, 2010; Sarah Lyall, In BP’s Record, a History of Boldness and Costly Blunders, N.Y. Times, July 12, 2010.)

The commission released Staff Working Paper No. 3, entitled The Amount and Fate of the Oil on Wednesday, Oct. 6, 2010. The report blames the Obama administration for initially underestimating the amount of the oil, as well as for its conclusion in August and September that much of the oil had simply disappeared. The initial official estimate of the amount of oil escaping, given by a government scientist with little experience in the field, of 1000 barrels-a-day, was subsequently revised up to 5,000-barrels-a-day (see supra, Amount of Oil). Those estimates were discredited by Professor Wereley of Purdue University in May, to the chagrin of BP which will owe more money as a result. The statements by Carol Browner on the fate of the oil were also later revised when independent scientists refuted her theory. The Commission is expected to complete its work and submit a report to the president by Jan. 12, 2011. (Ari Shapiro, Panel Blasts Government On Gulf Oil Spill Response, NPR.org, Oct. 7, 2010; Alan Kovski, Oil Spills: Spill Commission Staff Raises Policy Options, Suggests Clearer Roles in Spill Responses, 193 BNA Daily Environment Report A-8 (Oct. 7, 2010)) Other papers were released by the Commission on the same day, including Staff Working Paper 4, The Use of Surface and Subsea Dispersants during the BP Deepwater Horizon Oil Spill. (Editorial, Hard Truths on the Spill, N.Y. Times, Oct. 7, 2010 (regarding the Commission’s release of the 4 preliminary staff reports.))

On Jan. 5, 2011, the Commission released its final findings, in advance of its final report due the week of Jan. 10th. It concluded that the oil spill was “an avoidable accident caused by a series of failures and blunders by the companies [that is, BP, Halliburton, Transocean, and several sub-contractors] involved in drilling the well and the government regulators assigned to police them….” The Commission also warned that if changes were not made, another such accident was likely to occur. Unsurprisingly, Halliburton and Transocean responded, to the effect that they had acted under BP’s explicit direction. The report also referred to the companies’ “lack of a culture of safety,” a “breakdown of communication,” and a failure of management. (John M. Broder, Blunders Abounded Before Gulf Spill, Panel Says, N.Y. Times, Jan. 5, 2011).

Other Studies of the Disaster: The National Academy of Engineering announced in July, 2010, that it would be forming an investigative committee at the request of Interior Secretary Ken Salazar and headed by former Secretary of the Navy Donald Winter, now an engineering professor at the University of Michigan. The committee is entitled Analysis of Causes of the Deepwater Horizon Explosion, Fire, and Oil Spill to Identify Measures to Prevent Similar Accidents in the Future. (National Academy of Engineering oil spill inquiry takes shape, NewsWatch: Energy, July 13, 2010.)

The National Institute of Environmental Health Sciences (NIEHS) announced Feb. 28, 2011, it was launching the Gulf Long-Term Follow-Up Study (GULF STUDY) of the health of 55,000 Gulf of Mexico residents who helped with the BP cleanup, and would follow the participants for at least 5 years. (Sara Reardon, NIH Begins Study of Oil Spill’s Impact on Residents, ScienceInsider, Feb. 28, 2011.)

For additional commentary, see:

• Arne Jernelöv, How to defend against future oil spills, 466 Nature 182 (July 8, 2010).
• Timothy J. Crone & Maya Tolstoy, Magnitude of the 2010 Gulf of Mexico Oil Leak, 330 (6004) Science 634 (Oct. 29, 2010) (“Assuming a constant flow rate and subtracting the 804,877 barrels of oil (127,965 m3) collected at the seafloor [], we estimated that the total oil released from the Deepwater Horizon leak was 4.4 × 106 ± 20% barrels (7.0 × 105 m3). … Despite the uncertainties, it is clear that this oil release exceeds the Exxon Valdez spill by about an order of magnitude, with flow rates at least one order of magnitude higher than initially reported.”)

The MMS: The Minerals Management Service in the Department of the Interior, which both oversees energy companies to be sure they are in compliance with federal safety and environmental laws, and collects about $13 billion annually in royalties for drilling leases (thus making it the largest federal government fundraiser after the IRS), will have these conflicting functions bifurcated, Interior Secretary Ken Salazar announced on May 12th, less than a month after the Macondo well blew up. (Juliet Eilperin & Ed O’Keefe, Offshore drilling agency to undergo radical overhaul, Salazar announces, Wash. Post, May 12, 2010.)

The existing agency has been criticized in the past for excessive coziness with the energy industry and various ethical lapses (Derek Kravitz & Mary Pat Flaherty, Report Says Oil Agency Ran Amok: Interior Dept. Inquiry Finds Sex, Corruption, Wash. Post, Sept. 11, 2008; Charlie Savage, Sex, Drug Use and Graft Cited in Interior Department, N.Y. Times, Sept. 10, 2008 (referring to “[a] culture of ethical failure” and “a culture of substance abuse and promiscuity” at the agency)), which have apparently continued unabated for years and which the current Secretary of DOI, Mr. Salazar, hopes to avoid in future. (Ari Natter, Drilling: Minerals Management Service to Establish Separate Environmental Enforcement Office, 90 BNA Daily Environment Report A-4, May 12, 2010.)

4.4.2.8.5. Environmental Effects

On May 18th NOAA closed nearly 46,000 square miles, or about 19% of federal waters, to fishing. (Melissa Nelson, Oil Spill Shuts down 19 Percent of Gulf fishing, AP; Matthew L. Wald & Tom Zeller, Jr., Fishing Ban Is Expanded as Spill’s Impact Becomes More Evident, N.Y. Times, May 18, 2010; Agence France-Presse, U.S. bans more Gulf fishing as oil fears grow for Florida, Center for Biological Diversity, 2010).

For commentary, see e.g., Eli Kintisch, A Post Mortem on the Gulf Oil Spill, Science, Feb. 19, 2011 (NOAA & DOI announced plans in February to quantify the extent of the damage to wildlife, as part of the process of developing a restoration plan mandated by the Oil Pollution Act of 1990); see also Federal Natural Resource Trustees Announce Next Step in BP Deepwater Horizon Spill Gulf Restoration Process: Following spill, Resource Trustees seeking multiple rounds of public input, Feb. 19, 2011; Notice of intent to begin restoration scoping and prepare a Programmatic Environmental Impact Statement (PEIS), 76 Fed. Reg. 9327 (Feb. 17, 2011); NOAA Gulf Spill Restoration; Natural Resource Damage Assessment and Restoration Program, Gulf Coast Oil Spill Work Plans, Feb. 28, 2011.)

In the meantime, until Congress approves the Recovery Council, EPA announced that in the near future the president will sign an executive order to establish the Gulf Coast Ecosystem Restoration Task Force; EPA Administrator Lisa P. Jackson will serve as task force chair. The task force “will be expected to coordinate with the Department of Health and Human Services on public health issues and with the Department of Commerce and other federal departments and agencies, as appropriate, on ways to improve the economic impact of ecosystem restoration.” (See Long-Term Gulf Coast Recovery Support Plan.) Exec. Order 13554, Establishing the Gulf Coast Ecosystem Restoration Task Force, was signed Oct. 5th and published at 75 Fed. Reg. 62313 (Oct. 8, 2010) and will eventually be published consecutively in Title 3 of the C.F.R.

4.4.3. Midterm Elections, 2010

A week before the election, it wasn’t looking good either for Democrats or for the possibility of any future climate change legislation. According to GRIST, much of the good work on clean-tech/renewable energy job creation at the state level is threatened by gubernatorial candidates who don’t see the point (or are receiving contributions from energy companies whose interests lie in retaining the status quo.) See infra, California’s Proposition 23. Twenty-two of the 37 Republicans running for governorships this fall (including Carl Paladino in New York) reject the science behind climate change. (Jonathan Hiskes, States have clean-energy momentum, but it’s under threat, GRIST, Oct. 25, 2010.)

With a few exceptions the results were in fact quite dismal for the environment – climate change specifically – and certainly for the upcoming Cancun conference, see supra, § 3.7. COP-16. ( See, e.g., Binding climate change deal is impossible after Barack Obama’s election defeat, says John Prescott: Barack Obama’s setback in the US mid-term elections has killed of [sic] any hope of securing a legally binding global climate change deal, John Prescott has said, The Telegraph, Nov. 4, 2010; Christopher Mims, Putting the midterm elections in the context of the latest climate science (and life as we know it), GRIST, Nov. 4, 2010.)

On Jan. 24, 2011, Carol Browner, a former EPA administrator who coordinated White House policy on climate change and energy during the first two years of the Obama administration, announced that she was leaving. It is still unclear whether her position will simply disappear, given the acknowledgment that global warming legislation is highly unlikely in the current political climate, or whether she will be replaced. (John M. Broder, Director of Policy on Climate Will Leave, Her Goal Unmet, N.Y. Times, Jan. 24, 2011.)

4.5. California: State, County & City Actions to Reduce GHG Emissions

For academic commentary, see, e.g.:

• Matthew Visick, If Not Now, When? The California Global Warming Solutions Act of 2006: California’s Final Steps toward Comprehensive Mandatory Greenhouse Gas Regulation, 13 Hastings W.-N.W. J. Env. L. & Pol’y 249 (2007).
• Joanna D. Malaczynski & Timothy P. Duane, Reducing Greenhouse Gas Emissions from Vehicle Miles Traveled: Integrating the California Environmental Quality Act with the California Global Warming Solutions Act, 36 Ecology L.Q. 71 (2009).

California’s Air Resources Board was in operation before the formation of the Environmental Protection Agency under the Clean Air Act of 1970, and California’s clean-air laws predated those of the federal government. Therefore, the 1970 Act re-authorized California’s authority to set its own, more stringent, air standards, after receiving a waiver of preemption from the EPA, “to foster California’s role as a laboratory for motor vehicle emission control, in order to continue the national benefits that might flow from allowing California to continue to act as a pioneer in this field.”[185] 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. [186] 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. [187]

California has been concerned about global warming since at least the year 2000, when Governor Gray Davis signed Senate Bill No. 1771, Chapter 1018, which created the California Climate Action Registry. A voluntary, non-profit registry for GHG emissions, the registry’s purpose is to help companies and organizations with operations in California establish emissions baselines and to record their emissions inventories.

In 2002, Governor Gray Davis signed Senate Bill No. 1078, Chapter 516, which established the California Renewables Portfolio Standard Program. It requires all “load serving entities,” that is, all firms responsible for buying electricity for end-users in California, to purchase at least 20% of their electricity from renewable sources by 2010.

California’s first Low Emission Vehicle (LEV) regulations were adopted in 1990; the updated regulations (LEV II) were adopted in 2000 and modified later that year. The EPA granted a waiver for the LEV II program in April 2003. [188] The standard is effective for 2004 model years and becomes increasingly more stringent for model years through 2010 and beyond. It ensures that only the cleanest vehicle models will be sold in California.

In 2002, Fran Pavley, a Democratic assemblywoman, introduced Assembly Bill No. 1493, Chapter 200, which would require about a 30% reduction in GHG emissions from cars and trucks sold in California by the 2016 model year. [189] The bill was passed by both houses and approved by the governor on July 22, 2002 [190] and directed the Air Resources Board to promulgate regulations no later than Jan. 1, 2005, to achieve the maximum feasible and cost-effective reduction of GHG emissions from motor vehicles.

The new addition to the LEV II regulations, Cal. Code Regs. Tit. 13 § 1961.1, entitled Greenhouse Gas Exhaust Emission Standards and Test Procedures –2009 and Subsequent Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles, was in fact filed on Sept. 15, 2005, to be effective Jan. 1, 2006. [191] 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. [192] The new standards will, in theory, allow the transportation sector to meet its 2020 emissions reduction target, as it will result in a near term (2009-12) reduction of about 22% in CO2 emissions as compared to 2002 cars, and the mid-term (2013-16) will result in about a 30% reduction. On Dec. 21, 2005, California requested a waiver of preemption for the new GHG regulations, [193] 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.[194] See infra under section 4.6. Other State Actions to Reduce GHG Emissions, Massachusetts v. EPA or Central Valley Chrysler-Jeep, Inc, et al. v. Witherspoon, No. CV-04-6663 (E.D. Cal. 2006). See infra.

On Sept. 29, 2005, Assembly Bill No. 1007, Chapter 371, required that not later than June 30, 2007, the state would develop a plan to increase the use of alternative fuels in California.

The landmark Global Warming Solutions Act of 2006(Assembly Bill No. 32, Chapter 488 (2006)), also authored by Fran Pavley and signed on Aug. 27, 2006, sets strict standards on greenhouse gas emissions from utilities, refineries and manufacturing plants, and aims to reduce emissions 25 percent, down to 1990 levels, by 2020. The law makes California the first state to place hard caps on GHG emissions from heavy industries. [195]

Over 80% of the campaign to suspend the GWSA in fall 2010 is being funded by the Koch brothers, the climate-change-denying Kansas oil and gas billionaires of Tea Party fame (or infamy), and out-of-state oil companies, including Valero and Tesoro. The ballot initiative, Proposition 23, would prevent the law from going into effect in 2012 as scheduled until state unemployment falls from its current 12.3% to 5.5% or lower for 4 consecutive quarters (which, according to the N.Y. Times, has only happened 3 times in the last 40 years). (Adam Nagourney, California Braces for Showdown on Emissions, N.Y. Times, Sept. 16, 2010; see also, Editorial: The Brothers Koch and AB 32, N.Y. Times, Sept. 20, 2010 (“Who wins if this law is repudiated? The Koch brothers, maybe, but the biggest winners will be the Chinese, who are already moving briskly ahead in the clean technology race.”))

Governor Schwarzenegger spoke about the effort in the context of the Navy’s pledge to run half its coal-fired fleet on renewable energy by 2020; he said “If the tradition-bound Navy can do this, it’s not radical environmentalism that we’re talking about here…” (Joyce E. Cutler, California: Schwarzenegger Says Climate Law Opponents Seeking to Impede Green Technology Future, 41 BNA Environment Reporter 2220 (Oct. 1, 2010))

According to GRIST, the opponents to Prop 23, who want AB 32 to go into effect as planned, are in the lead with campaign contributions, raising $5 million in the same period the proponents raised $10,000. (Todd Woody, No on Prop 23 campaign takes in $5 million to oil industry’s $10,000, GRIST, Oct. 4, 2010.) However, the oil industry is expected to pour millions of dollars into the Yes campaign in the last few weeks of the season. (Todd Woody, Silicon Valley enlists Steve Jobs’ wife, Elvis Costello in Prop 23 fight, GRIST, Oct. 15, 2010.) The week of October 18th the Obama Administration and Al Gore came out against Prop 23, and Bill Gates made a generous contribution to the opposition forces. (Todd Woody, Obama, Gates, and Gore come out against Prop 23 as No forces widen lead, GRIST, Oct. 21, 2010.)

Prop 23 was defeated on Nov. 2, 2010. The next day with nearly all the votes counted, 61.3% had rejected it. (Todd Woody, California exceptionalism or a rising green tide?, GRIST, Nov. 4, 2010.) Schwarzenegger addressed a crowd celebrating the measure’s defeat late Tuesday. Noting that the San Francisco Giants had just won the World Series and referring to the oil interests that had tried so hard to defeat AB 32, the outgoing governor remarked, “Today, literally less than 24 hours later, we are beating Texas again.” (Iris Kuo, On Heels of SF Giants Win, CA Prop 23 Notches Another Victory Over Texas, GreenCarReports.com, Nov. 3, 2010.)

An economic analysis of the effects of full implementation of A.B. 32 released in March 2010 and including a greenhouse gas emissions trading program, concluded that doing so will help lower energy costs and produce new jobs, and CARB Chairman Mary D. Nichols said that the report, Updated AB 32 Scoping Plan Economic Analysis, took the current economic downturn and slower growth into consideration. Business and industry groups, eager to postpone implementation of the A.B. 32 scoping plan, produced their own industry-funded economic analysis, entitled: An Estimate of the Economic Impact of A Cap-and-Trade Auction Tax On California which, perhaps unsurprisingly, told the opposite tale, of massive job losses and draconian costs to individuals and businesses alike.

Another California law, Senate Bill No. 107, Chapter 464, signed Sept. 26, 2006, requires investor-owned utilities to get at least 20 percent of their power from renewable sources by 2010. The law expands the state’s existing Renewable Electricity Standard, adopted in 2002. The Union of Concerned Scientists predicts that the new law will result in a reduction of CO2 emissions alone by 18.7 million metric tons, equivalent to taking 2.8 million cars off the road. [196] According to one source, as of Sept. 27, 2006, 22 states have adopted similar mandates for renewable energy. [197]

Yet another new California law, Senate Bill No. 1368, Chapter 598, signed on Sept. 29, 2006, prohibits large utilities and corporations from entering into long-term power contracts with suppliers whose electricity sources do not meet California’s GHG emission standards; that is, firms that buy electricity for end-users in California must buy that energy from low-carbon power plants. [198]

California v. General Motors [199] (No. 06-05755):The state of California sued the six largest American and Japanese automakers (General Motors, Ford Motor Co., Toyota Motor North America, DaimlerChrysler AG, Honda North America Inc., and Nissan North America Inc.) for contributing to global warming. The state’s then-attorney general, Bill Lockyer, filed the suit based on a ‘public nuisance’ argument, stating that greenhouse gases emitted by vehicles have cost California billions of dollars in damages to the state’s water supplies, coastline, forests, wildlife and public health.The case was filed on Sept. 20, 2006, in U.S. District Court for the Northern District of California in Oakland. [200]

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. In Sept. 2007 the case was dismissed in the Northern District on the ground that it raised non-justiciable political questions. The state appealed to the 9th Circuit Court of Appeals, and oral argument was scheduled for May 8, 2009; however, according to Warming Law, the state requested a 6-month continuance in April and in June filed a motion to dismiss. Reasons given pertained to admissions by the Obama administration that global warming constitutes endangerment to public health, as well as its adoption of the California standard for auto emissions. See supra § 4.4.2. GHG regulations: EPA & Mass. v. EPA.

4.5.1. Interstate and International Agreements

On July 31, 2006, California Governor Arnold Schwarzenegger[201] and British Prime Minister Tony Blair “sidestep[ped] the Bush administration”[202] and signed an agreement to work together to curb GHG emissions, promote cleaner fuels and work together on research to fight global warming.[203]

On Oct. 18, 2006, Governor Schwarzenegger signed Exec. Order S-20-06 that, among other things, directed the Air Resources Board to work with other state agencies to develop a market-based program to permit GHG emissions trading with the E.U., the Regional Greenhouse Gas Initiative; see infra, and other markets.

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.

In April 2007, a delegation of California officials met in London for 2 days with UK officials to work on the development of a low-carbon standard for transportation fuels, as required by Exec. Order S-01-07, discussed infra, see Low Carbon Fuel, 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.

On May 4, 2007, Governor Schwarzenegger signed another Memorandum of Understanding with the premier of the Australian state of Victoria. The two states agreed to collaborate in developing climate change policies and initiatives.

4.5.2. 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. [204] 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. [205] Executive Order S-01-07, related to AB 32 from Sept. 2006, supra, was in fact signed on Jan. 18, 2007. [206] 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 Jan. 1, 2010.”

4.5.3. Land Use Lawsuits

In June 2007, seven major California lawsuits 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. [207]

4.5.4. 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 Dec. 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.”[208] At the conclusion of the summit, 26 governors and regional leaders from 6 countries [209] agreed to work together to cut GHG emissions, clearly demonstrating that leaders were ready to work together in December. See supra § 3.5. COP-14.

In response to owing millions of dollars in federal fines for its high ozone levels, regulators in the San Joaquin Valley have proposed a $10-$24 surcharge on registration fees for car owners, beginning next year. It is the first time that consumers have been targeted, and not car or car parts manufacturers. Local industries have apparently done all they could to control emissions, and vehicles cause 4/5ths of the area’s pollution. (Felicity Barringer, New Tactic in California for Paying Pollution Bill, N.Y. Times, Oct. 17, 2010.)

4.6. Other States’ Actions to Reduce GHG Emissions

California is not alone in its efforts. [210] For commentary, see, e.g.:

• Jonathan H. Adler, When Is Two a Crowd? The Impact of Federal Action on State Environmental Regulation, 31 Harv. Envtl. L. Rev. 67 (2007)
• Governor Jim Doyle, Challenges and Opportunities for Regulating Greenhouse Gas Emissions at the State, Regional and Local Level, 27 UCLA J. Envtl. L. & Pol’y 213 (2009).
• Institute for Energy Research, Energy Regulation in the States: A Wake-up Call (an impressive discussion of GHG regulation by individual states and regions that appears to be from 2009 or 2010 but gives no publication information other than institutional author.)
• Hari M. Osofsky, Climate Change Litigation as Pluralist Legal Dialogue, 26A Stanford Environmental Law Journal 181 (2007) (noting international aspects and implications of California and other states’ climate change litigation).
• Eric de Place, Regional Cap and Trade Advances, Sightline Daily, Dec. 9, 2010.
• Richard B. Stewart, States and Cities as Actors in Global Climate Regulation: Unitary vs. Plural Architectures, in Symposium, Federalism and Climate Change: The Role of the States in a Future Federal Regime, 50 Ariz. L. Rev. 681 (2008).
• Symposium, Reducing Greenhouse Gases: State Initiatives and Market-Based Solutions, 17 Fordham Envtl. L. Rev. 101 (2006).

American Electric Power Co., Inc., et al. v. Connecticut, et al.: In this case (originally 2 cases, subsequently combined) similar to California v. General Motors, discussed supra § 4.5., Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin, the City of New York, and three private land trusts, sued American Electric Power Co., Xcel Energy Inc., Cinergy Corp., Southern Co., and the Tennessee Valley Authority in 2004, alleging that the CO2 emissions from power plants create a public nuisance by reducing water supplies, raising sea levels and exposing people to smog that can cause asthma. [211] 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.”[212] The case, No. 05-5104cv, was on appeal to the U.S. Court of Appeals for the Second Circuit since December 2005; oral arguments were heard in spring of 2006.

On Sept. 21, 2009, the 2nd Cir. (2-judge panel) overturned the district court in a 139-page opinion, holding that the plaintiffs could proceed in federal court and negating the defense of the political question doctrine (582 F.3d 309 (2d Cir. 2009)). (See also Comer v. Murphy Oil Co., decided in Oct. 2009.) Petitions for a rehearing were denied in March, 2010. A petition for a writ of certiorari was filed by AEP and 3 other electric utilities (Duke Energy Corp., Southern Co., and Xcel Energy Inc.) on Aug. 2nd requesting a full review by the Supreme Court; it claimed that setting GHG emissions standards is political and that they cannot be addressed by courts. In addition, “plaintiffs cannot show any harm to them from the defendants’ actions. Climate change is not traceable to the defendants and cannot be redressed by emission limits imposed on them.” (Climate Change: Electric Utilities Ask Court To Review Nuisance Decision, 19 BNA Environmental Due Diligence Guide Report 58 (Aug. 19, 2010); Steven D. Cook, Litigation: U. S. Supreme Court Asked to Intervene in Fifth Circuit Dismissal of Nuisance Lawsuit, WCCR, Sept. 2, 2010.) On Aug. 24, 2010, the TVA submitted a brief on the petition for a writ of certiorari requesting that the Court vacate the 2nd Circuit decision and direct the appellate court to reconsider whether plaintiffs have standing, and asking whether recent actions by EPA to regulate GHGs under the CAA displace common law nuisance claims. (BNA Environmental Due Diligence Guide Report, Sept. 1, 2010.) Certiorari was granted Dec. 6, 2010. (Stephen D. Cook, Climate Change: Supreme Court to Review Utilities’ Challenge to Greenhouse Gas Public Nuisance Lawsuit, 233 BNA Daily Environment Report A-2, Dec. 7, 2010.)

On Aug. 24th, the Acting Solicitor General Neal Katyal filed an amicus brief in support of AEP’s Aug. 2nd request for Supreme Court review of the 2nd Circuit case, agreeing that EPA’s new GHG regulations, finalized after the 2nd Circuit decision (see supra § 4.4.2.2.2.; the GHG rule was finalized on June 3, 2010), replaced common law nuisance as a cause of action. (AEP v. Connecticut, No. 10-174). If the Supreme Court Justices did reverse the decision, it would “effectively block common-law actions against specific emitters of greenhouse gases in federal courts.” Gabriel Nelson, Obama Admin Urges Supreme Court to Vacate Greenhouse Gas ‘Nuisance’ Ruling, N.Y. Times, Aug. 25, 2010). In a subsequent brief filed Jan. 31, 2011, on behalf of the TVA, Mr. Katyal asked that the Supremes overturn the 2nd Circuit because the plaintiffs lacked prudential standing. “‘Principles of prudential standing do not permit courts to adjudicate such generalized grievances absent statutory authorization, particularly because EPA, which is better-suited to addressing this global problem, has begun regulating greenhouse gases under the [Clean Air Act],’ the TVA brief said. ‘As a result, plaintiffs’ suits must be dismissed.’” Twenty-three amicus curiae briefs were filed for the utilities, and 9 for the states. (Tony Mauro, Justices give global warming case a chilly reception, National Law Journal, April 19, 2011.)

The Supreme Court heard oral arguments on Tuesday, April 19th, 2011, and a decision should come down before the end of the current term, in June 2011. A N.Y. Times editorial called the case a “blockbuster” and said that it “rightly” aimed to get major utilities to curb their GHG emissions through the federal common law of nuisance, given continued congressional inaction. (Editorial, The Court and Global Warming, N.Y. Times, April 18, 2011.)

Oral argument was extended to 80 minutes from the typical 60, and a larger-than-usual audience attended, according to the National Law Journal. The 8 justices (Sotomayor recused herself) were skeptical that the courts should decide remedies for climate change instead of Congress and EPA. The defendant utilities wanted the Court to dismiss the case on “prudential standing” grounds. (Tony Mauro, Justices give global warming case a chilly reception, National Law Journal, April 20, 2011; Eli Kintisch & Jennifer Carpenter, Can States Sue on Greenhouse Gas as a ‘Nuisance’? High Court Asks, ScienceInsider, April 19, 2011.). The text of the oral arguments was available online in PDF format since April 2011.

SCOTUS reversed the 2nd Circuit’s 2009 opinion, supra, unanimously (with the exception of Sonia Sotomayor, who recused herself) holding on June 20th, 2011, that environmental policy should be made by EPA, not the courts; the decision will definitely affect other nuisance suits. (David G. Savage, Justices Toss Out States’ Greenhouse Gas Lawsuit; Rules Must Come from EPA, Not Judges, High Court Decides, N.Y. Times, at 2A, June 21, 2011; the slip opinion is here.

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. [213] See supra. In addition, Washington State recently adopted the standard contingent on Oregon’s adopting it, which Oregon did in June 2006. [214] By March 2007 a dozen states had adopted the California standard. [215]

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. The bill was reported as amended by the House Oversight and Government Reform Committee on Aug. 3, 2007, and although it was not enacted on its own it was generally incorporated into H.R. 3221, Division A, the New Direction for Energy Independence, National Security, and Consumer Protection Act, see supra, and enacted the Energy Independence and Security Act of 2007, Pub. L. No. 110-140 (Dec. 19, 2007).

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. [216] 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.”[217] The case was heard by a 3-judge panel of the Ninth Circuit Court of Appeals on May 14, 2007. [218] On Nov. 15, 2007, a decision, later vacated and withdrawn, was published at 508 F. 3d 508. On Aug. 18, 2008, a new decision by the same 3 judges was issued, and published at 538 F.3d 1172. The court held that the NHTSA regulations were arbitrary and capricious for failing to consider the benefit of carbon emissions reduction; the fuel economy standards for light trucks were reversed and remanded to NHTSA to promulgate new standards and to prepare either a revised environmental assessment or an environmental impact statement.

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.”

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.” [219] Unsurprisingly, Texas has not joined, but California has. Most importantly, the data gathered will be verified by a third party. By Nov. 2007, the membership had grown to 39 states, D.C., 3 Canadian provinces, 3 tribes, and 1 Mexican state.

On Jan. 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.”[220] As of Sept. 24, 2009, the 13 Canadian provinces and territories, 41 U.S. states, the District of Columbia, six Mexican states and four Native Sovereign Nations were members, representing 85% of the North American population. [221]

Coke Oven Environmental Task Force v. Environmental Protection Agency: No. 03-1167, D.C. Cir.; since Sept. 13, 2006, the case is known as New York v. EPA, No. 06-1322, see infra this section under that name.

Comer v. Murphy Oil Co. & Native Village of Kivalina v. ExxonMobil Corp.:On Oct. 16, 2009, the Fifth Circuit (3-judge panel) overturned the District Court for the Southern District of Mississippi which had dismissed the complaint in August 2007, holding that climate change could not be litigated in federal court under the political question doctrine, and also for lack of standing. The 5th Circuit panel ruled that a group of thousands of private property owners in Mississippi could proceed with their global warming case (No. 07-60756), which alleges that the damage to their properties from Hurricane Katrina was exacerbated by man-made climate change. On Nov. 27, 2009, and Nov. 30, 2009, Xcel Energy Inc. and other defendants petitioned the court for a rehearing of the case by the full court of appeals. The Fifth Circuit issued an order Feb. 26, 2010, agreeing to an en banc rehearing, but on the same day agreed to a rehearing by the full court. However, on May 28, 2010, the 5th Circuit dismissed Comer v. Murphy Oil, citing a lack of a quorum on the court and letting stand the lower court’s dismissal on standing and political question grounds. One of the nine judges who had agreed to grant the en banc review had recused himself, leaving 8 qualifying judges, which is not a quorum for the 16-judge court; other judges recused themselves before the en banc review was granted. (According to the National Law Journal in July, the lack of quorum was due to the close ties many of the judges in the 5th Circuit have to the oil and gas industry. Tresa Baldas, 5th Circuit Judges in Drilling Moratorium Case Have Oil Ties, Report Says, National Law Journal, July 8, 2010.)

On Aug. 26, 2010, the property owners filed a petition for a writ of mandamus to the U.S. Supreme Court,

asking the Court to order a federal court to hear their appeal. Petitioners claimed that the lack of a quorum in the 5th Circuit deprived it of the authority to dismiss the appeal, and the 3-judge panel decision from October 2009 that allowed the case to go forward should be allowed to stand. (Steven D. Cook, Litigation: U. S. Supreme Court Asked to Intervene in Fifth Circuit Dismissal of Nuisance Lawsuit, WCCR, Sept. 2, 2010.)

Florida: In 1961 Florida passed its Beach and Shore Preservation Act to address beach erosion caused by hurricanes and rising sea levels, which have gotten worse over the years with global warming. Cities or property owners can apply and the state may agree to rebuild highly-eroded beach areas and then maintain the beaches to a fixed boundary called the “erosion control line;” thus the boundary between state land and private property shifts from the variable mean high tide mark to a fixed erosion control line. In 2003 the city of Destin requested such a project but a group of beachfront property owners challenged the change in property boundaries as a violation of state law, although most property owners were in favor of the project as it protected and enhanced the value of their properties. Failing to win their ridiculous case before the Florida Supreme Court, the property owners took their case to the U.S. Supreme Court where they also lost, although the question of “judicial takings” remains unanswered. According to Warming Law, the June 17, 2010, decision “supports Florida’s efforts to restore eroded beaches and preserves the ability of state and local governments to respond to changing environmental conditions. As the oil spill now ravaging our Nation’s coastlines vividly demonstrates, it is crucially important that government have the authority to step in to protect our beaches and coastal communities.” See Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection et al., No. 08–1151, 560 U.S. 702 (2010).

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 Aug. 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. On April 14, 2006, the merits of the case were heard in U.S. District Court for the Northern District of California. In Friends of the Earth, Inc. v. Mosbacher, 488 F. Supp. 2d 889 (N.D. Cal., March 30, 2007), plaintiffs’ motion for summary judgment was denied, and defendants’ cross motions were granted in part and denied in part. As of October 2009, the case had not been appealed.

Joint Action Framework on Climate Change: On Dec. 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. [222] The agreement was inspired by the West Coast Governors Global Warming Initiative discussed supra.

Kansas: On Oct. 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.

[223]

Massachusetts: In 2008, the state passed climate legislation that is among the strongest in the country, and at the end of 2010 it announced the target of reducing GHG emissions by 25% below 1990 levels over the next decade. (Felicity Barringer, Massachusetts Sets Targets to Slash Carbon Emissions, N.Y. Times, Dec. 29, 2010.)

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.”[224] However, little progress has been made; efforts slowed in anticipation of congressional action, which as of fall 2010 has not materialized, and now several of the signatory governors are involved in difficult re-election campaigns.

The New England Governors & Eastern Canadian Premiers signed a Climate Change Action Plan 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.

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. [225] 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. [226] Governor Spitzer had many innovative environmental ideas but by March of 2008 he was out of office[227]; his successor, David Paterson, also favors congestion pricing. [228] 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 lose “$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.” [229]

Mayor Bloomberg announced Sept. 30, 2010, that NYC’s 4th annual carbon inventory showed a 12.9% decline in GHG emissions from 2008 to 2009, which is enough to put the city on track to meet its goal of cutting GHG emissions by 30% from 2005 levels by 2030, set by the administration in 2007. (Climate Change:

New York City Greenhouse Gas Emissions Decline, 189 BNA Daily Environment Report A-16 (Oct. 1, 2010))

The Bloomberg administration announced the winner of the city’s Taxi of Tomorrow competition: by the end of the decade, the majority of the city’s 13,000 yellow cabs will be Nissan minivans, designed especially for use as taxis and (eventually) with electric-only engines. (Michael M. Grynbaum, City’s Next Taxi: A Nissan Van Short on Looks, Perhaps, but Full of Comforts, N.Y. Times, May 3, 2011.)

Traffic in Midtown Manhattan (and by extension, carbon emissions) will be controlled by a new management system called “Midtown in Motion.” It will use sensors, video cameras at 23 intersections, and other electronic technology to give city engineers a real-time view of the most congested streets.

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. [230]

New York v. EPA: No. 06-1322; filed in the U.S. Court of Appeals for the D.C. Circuit, 2006 U.S. App. LEXIS 23499, on Sept. 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 Mass. 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 2, 2007, 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. On Sept. 24, 2007, an unpublished per curiam decision was issued, remanding to EPA for further proceedings in light of Mass. v. EPA (see infra).

Settlement was reached on Dec. 23, 2010. EPA must propose the new GHG emission standards based on existing technologies for power plants by July 26, 2011 and finalize them by May 26, 2012; it must propose GHG emission standards for refineries by Dec. 2011, and finalize them in Nov. 2012. (Steven D. Cook, EPA to Announce Deal on Greenhouse Gases From Electric Power Plants, Refineries, BNA Daily Environment Report, Dec. 23, 2010; EPA to Hold Five Listening Sessions on Updating the Clean Air Act’s Pollution Standards for Power Plants, Refineries: Sessions seek input to design common-sense, cost-effective greenhouse gas standards for largest polluters, US EPA Air News Release, Jan. 28, 2011.)

RGGI: The Regional Greenhouse Gas Initiative is a regional approach by 10 northeastern states (Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont were the original members, but New Jersey will withdraw from the program by the end of 2011, see infra) to reduce GHG emissions by using a cap-and-trade program for power plant emissions.

On Monday, Oct. 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. [231]

On Jan. 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. [232]

In Dec. 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.

By May 2007, 10 states had joined RGGI. [233] On Oct. 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. However, at a Jan. 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. However, a study by the Environmental Integrity Project released on Mar. 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. The report is entitled: Running Out Of Time: New U.S. EPA Power Plant Data Shows Greenhouse Gases Rising Steadily. EIP’s 2011 report, Getting Warmer: US CO2 Emissions from Power Plants Emissions Rise 5.6% in 2010, showed the largest increase since EPA started keeping records in 1995; Texas still has the highest emissions.

The 9 RGGI auctions have “raised $729 million for a range of emissions-reduction and energy-efficiency programs — benefiting both homeowners and industrial users — as well as financing an occasional raid to balance a state’s general budget.” (Climate Progress, Governors 2010: Climate change deniers threaten the Northeast RGGI climate compact, Oct. 17, 2010, quoting Stateline’s Rob Gurwitt)

After the 2010 midterm elections, GRIST speculated that New Jersey’s new governor, Chris Christie, might consider leaving RGGI to prove himself to republican climate skeptics who might support him in a presidential bid in 2012. (Jonathan Hiskes, Christie finds the Right’s kingmakers demand orthodoxy on climate change, GRIST, Nov. 10, 2010.) And indeed, in May 2011, that’s exactly what he did, effective the end of this year, saying that the program was only effective at contributing to higher energy prices. Although the state made $113 million from the 11 RGGI auctions it participated in, money ostensibly for energy efficiency programs, $65 million was diverted by Governor Christie in FY 2011 to balance the state budget. It is not clear what effect NJ’s withdrawal (if conclusive, given probable legislative opposition and possible litigation) will have on other states’ RGGI participation; New Hampshire, infra, Maine, and Delaware have considered withdrawing from the program.

New York & RGGI: On Jan. 29, 2009, Indeck Energy, owner of the Indeck-Corinth Generating Station in Corinth, New York, filed a lawsuit in Saratoga County Supreme Court, Indeck Corinth v. Paterson, Index No. 369/2009, RJI No. 2009/0369, challenging the governor’s authority and that of the Department of Environmental Conservation and NYSERDA to impose a pollution control scheme under RGGI, without legislative or other basis; New York is the only state in RGGI to create its program by executive action only, without legislative action; the suit further asserted a Commerce Clause problem as the RGGI members entered into a multi-state agreement without an act of Congress. However, “broad language in state law gives regulators authority to implement rules and courts have routinely upheld that authority. The ‘no authority’ argument also runs contrary to the U.S. Supreme Court’s decision in [Mass. v. EPA], which gave regulators the responsibility to regulate carbon dioxide emissions even in the absence of a statute explicitly granting that authority.” [234]

The New York State Energy Research and Development Authority released a proposed 3-year spending plan on Feb. 25, 2009, for the proceeds from RGGI’s CO2 allowance auctions, which are expected to amount to $525 million. The plan will be subject to a public hearing in New York City on Mar. 6, 2009, and the final plan will be approved later this spring.

On May 19, 2009, amici Conservation Law Foundation, Environmental Advocates of New York, Environmental Defense Fund, Natural Resources Defense Council, and Pace Energy and Climate Center filed a brief requesting that the court dismiss Indeck’s petition and complaint.

The fourth RGGI auction took place in June, 2009, netting more than $100 million, nearly $40 million of which belonged to the state of New York; however, because of the Indeck Corinth suit, the funds could not be dispensed. If the state loses, it might have to return the proceeds. [235]

On Dec. 29, 2009, Indeck Corinth v. Paterson was settled. The consent decree, which is subject to a 30-day comment period, is available from the NY Office of the Attorney General and under its terms, “Con Edison will pay the cogeneration plants for costs they incur in purchasing carbon dioxide emissions allowances at RGGI auctions. The state, in turn, will essentially reimburse Con Edison by making about $2.6 million in annual investments in the company’s infrastructure and smart grid technologies.” Also, “the [Public Service Commission] has agreed to consider approval of a tariff amendment allowing Con Edison to pass through the costs of purchasing allowances to its ratepayers.

For scholarly analysis of RGGI and other regional programs, see William Funk, Constitutional Implications of Regional CO[2] Cap-and-Trade Programs: The Northeast Regional Greenhouse Gas Initiative as a Case in Point, 27 UCLA J. Envtl. L. & Pol’y 353 (2009).

State Suits Against the Department of Energy: During nearly six years of the 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. [236]

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. [237] 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. [238] NRDC will monitor the agency to be sure the new standards “maximize savings and protect consumers and the environment.”

U.S. Mayors Climate Protection Agreement:On Feb. 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 U.S. Conference of Mayors Climate Protection Agreement unanimously. As of Nov. 15, 2006, 330 mayors representing over 53.3 million Americans have accepted the challenge. By Jan. 10, 2007, the total was 358 mayors from 49 states, and by 2017, 1060 mayors were members, [239]representing a total over 87,783,318 citizens. [240]By 2017, 1,060 mayors are members. 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.

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.” [241]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. [242]

WCGGWI: 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) [243] 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. The group wants to cut GHG emissions to 15% below 2005 levels by 2020.

• As of July 2010, the program had still not been enacted. (Alan Durning, Winning on climate may require reforming the U.S. Senate, GRIST, July 6, 2010.)
• On July 6th, WCI released an analysis entitled: Updated Economic Analysis of the WCI Regional Cap-and-Trade Program, that indicated its GHG strategy “would save the states and Canadian provinces participating in the regional program about $100 billion in reduced energy costs by 2020” while significantly reducing GHG emissions.

Western Governors’ Association: In June 2006, the governors of 19 states and 3 US-Flag Pacific Islands [244] 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). The resolution called on states and cities to reduce greenhouse gas emissions caused by human activities. 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 2005-2014 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. [245]

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. 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. [246] On April 20, 2007, British Columbia’s Premier Gordon Campbell signed an addendum joining the Initiative. [247]

4.6.1. Auto Industry Suits vs. States That Adopted California’s GHG Standard

Association of International Automobile Manufacturers, et al. v. Sullivan, et al. (1st Cir., 09-1023)): This case, like the others in this section, was brought by a coalition of automobile manufacturers and dealers. A Rhode Island district court judge rejected the manufacturers’ preemption claim on the ground that it had already been decided against them, in Vermont and California. However, the judge allowed the auto dealers to continue their lawsuit in the district court. That case was on hold pending the results of the appeal by automakers to the U.S. Court of Appeals for the First Circuit, who filed a motion to dismiss on April 7, 2010, after the finalizing of the joint GHG regulation of cars and light trucks and the new CAFÉ standards by EPA and NHTSA, see supra. [248] I can only assume the district court case was also dismissed, as a Pacer search on April 20th failed to find evidence of it.

Central Valley Chrysler-Jeep, Inc, et al. v. Witherspoon, No. CV-04-6663 (E.D. Cal. 2006): Before the GHG emissions regulation had been finalized, on Dec. 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. On Oct. 20, 2005, motions to intervene filed by the Sierra Club, NRDC, Environmental Defense, Bluewater Network, Global Exchange, and Rainforest Action Network were granted. Nine states and one city (New York, Connecticut, Maine, New Jersey, Oregon, Rhode Island, Vermont, Washington, the Commonwealth of Massachusetts, and the City of New York) that had also adopted the California standard, filed amici briefs. In Sept. 2006, an order was issued at 456 F. Supp.2d 1160 (E.D. Cal. 2006) granting in part and denying in part defendants’ motion for judgment on the pleadings.

The case was appealed to the 9th Circuit (Central Valley Chrysler-Jeep v. Goldstene, 9th Cir., No. 08-17378).

Green Mountain Chrysler Plymouth Dodge Jeep v. Dalmasse, No. 2:05-cv-302 (D.Vt. Nov. 30, 2006): 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 claimed that the GHG regulations are either preempted by or violate the CAA and the Energy Policy and Conservation Act. [249] Opening arguments were held on April 10, 2007. [250] Vermont, joined by New York State and five environmental groups, argued that the manufacturers’ suits for declaratory and injunctive relief were not yet ripe for judicial action, as the EPA had not yet granted California’s waiver of federal preemption for its GHG regulations. 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?[251] The Supreme Court arguably resolved that issue in Mass. v. EPA, 549 U.S. 497 (2007), 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.”[252]

An article from summer 2008 [253] called Green Mountain an “illusory victory,” as EPA had denied California’s request for a waiver of federal preemption in Dec. 2007 (see infra, Mass. v. EPA); however, as discussed supra under the Obama Administration, California’s waiver was finally granted in July 2009. Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie was on hold in the 2d Circuit since that action in summer 2009, and was dismissed on April 7, 2010, shortly after EPA and the NHTSA finalized the joint GHG and CAFE regulation. See supra § 4.4.2.2.1. Mobile Sources. [254] The auto dealers’ case in the District Court was also dismissed on April 7th.

Lincoln-Dodge, Inc., et al. v. Sullivan, No. 1:06-CV-00070 (D. R.I. filed Feb. 13, 2006): Auto dealers and manufacturers challenged Rhode Island Department of Environment Management’s adoption of California’s GHG emissions regulations. The state moved to dismiss on the grounds that the claim was not ripe unless or until EPA issued the waiver. Judge Ernest C. Torres denied the state’s motion to dismiss on Dec. 21, 2007 (EPA rejected California’s waiver request on Dec. 19th), on the grounds that the claim was not ripe, given the possibility that EPA’s decision might be appealed after Mass. v. EPA. See 2007 WL 4577377 (D. R.I., Dec. 21, 2007). In November 2008, the district court ruled against automakers based on collateral estoppel (they were already suing in California and Vermont), but the dealers continued the suit at the district level. [255] EPA granted California’s waiver of federal preemption in July, 2009 (see supra Obama Administration: GHG regulations), and the case was dismissed on April 7, 2010, shortly after EPA and the NHTSA finalized the joint GHG and CAFE regulation. See supra § 4.4.2.2.1.

Mobile Sources. Zangara Dodge Inc. v. New Mexico Department of the Environment, D. N.M., No. CIV-07-1305 (April 25, 2008): New Mexico car dealers and the National Automobile Dealers Association sued to block the New Mexico Clean Car program; the case appears, as of early April 2010, to be proceeding. [256] (Auto dealers were not part of the auto manufacturers’ agreement with California and the Obama Administration, and did not promise to withdraw their lawsuits. [257])

4.7. State Actions That Will or Would Have Increased GHG Emissions

4.7.1. Alaska

Greenpeace’s Alaska Global Warming Campaigner, Melanie Duchin, described Sarah Palin, former Alaska governor and Republican John McCain’s choice for vice president in the 2008 election, as “one of the most anti-environment records of any governor in the United States. She has supported oil drilling in some of the most ecologically sensitive areas in Alaska, even when it meant sacrificing polar bears, beluga whales, and the Arctic National Wildlife Refuge. … Despite her advocacy for expanded oil and gas drilling, Palin has done almost nothing to promote the clean energy sources that can help solve global warming, which is already having major negative consequences in her state.” [258] After losing the national election, Palin resigned from her first term as Alaska governor on July 3, 2009. [259]

4.7.2. Arizona

On March 1, 2011, the Arizona Senate passed 2 pieces of legislation: S.B. 1393 says that the state legislature and not the federal government has the authority to regulate anthropogenic greenhouse gases and particulate matter; S.B. 1394 authorizes the Arizona governor to enter into interstate compacts to regulate GHGs. BNA says that both have an excellent chance of passing the lower chamber as well, as it also has a solid Republican majority. H.B. 2442, enacted in 2010, prevents state agencies such as the state Dept. of Environmental Quality from regulating GHGs without legislative approval. It is difficult to understand how, if enacted, these bills would not run afoul of the commerce clause, but in the current political climate anything is possible. GHG regulation seems a job for the federal government, to me; regional compacts such as RGGI are commendable starting places, but not much more. See Christine A. Klein, The Environmental Commerce Clause, 27 Harv. Envtl. L. Rev. 1 (2003).

4.7.3. Minnesota and South Dakota

The Big Stone II Project, an enormous coal-fired electric generating plant planned for northeastern South Dakota near the border with Minnesota that would have deposited about 4.7 million tons of CO2, or the equivalent of the pollution from roughly 670,000 cars into the atmosphere, was abandoned on Nov. 2, 2009, due to the efforts of the Sierra Club, local residents, and state and regional organizations, coupled with industry concern over the immanent passage of climate change legislation in Congress. [260]

4.7.4. New Mexico

A judge in New Mexico issued a preliminary injunction on April 13, 2010, in Leavell v. New Mexico Environmental Improvement Board, N.M. Dist. Ct., No. D-506-CV-201000050 (Jan. 13, 2010), which challenged the New Mexico Environmental Improvement Board’s authority to cap GHG emissions from in-state sources.

4.7.5. South Dakota

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.

4.7.6. Texas

Texas generated about 10% of the nation’s CO2 emissions, more than any other state, and had taken the position that government action, state or federal, is unnecessary. [261] Texas utility TXU Energyplanned to build 11 new coal-fired power plants in the near future, which will double its emissions of CO2; it had the support of the state’s former Republican governor, Rick Perry, who was fast-tracking the plants’ permitting process via an executive order, RP49, issued in October, 2005. [262] Although the company claimed it will invest in technology to limit carbon emissions, environmentalists were unconvinced. One group, Environmental Defense Fund, has a Stop TXU Web page [263]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 [264]; 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. [265] The Sierra Club joined the suit in December 2006. [266]

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. [267]

On Feb. 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. [268] 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.” [269] At this point it is not known whether shareholders will seek a higher price or look for other purchasers.

In October of 2009, Public Citizen sued the Texas Commission on Environmental Quality in Travis County District Court, claiming that the agency allows unlimited CO2 emissions in violation of the Texas Clean Air Act, and essentially “taking a page out of Massachusetts v. EPA.” [270]

See Environment America Research & Policy Center’s November, 2009, report, Too Much Pollution: State and National Trends in Global Warming Emissions from 1990 to 2007, prepared from an analysis of recent data from the U.S. Department of Energy, which found that Texas still leads the nation in emissions despite reducing emissions by 2% between 2004 and 2007.

4.8. Domestic/International Businesses & Climate Change

2007 Index of Silicon Valley: Produced by Joint Venture, a Valley-based research organization, the 2007 Index of Silicon Valley 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.”[271] 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….” [272] 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. This is clearly contrary to the Bush administration’s view that adapting to climate change will damage the U.S. economy.

Alcoa: In the late 1990s, Alcoa committed to reduce its GHG emissions by 25 percent from 1990 levels by 2010. The goal was met in 2003, but Alcoa continued to make improvements, and at the end of 2009 its emissions reduction totaled 43 percent from 1990 levels. According to William O’Rourke, vice president for sustainability and environment, Alcoa set new goals that commit it to cutting GHG emissions another 20 percent by 2020 and 30 percent by 2030. He suggested that significant carbon reductions could also be achieved if more aluminum were recycled: only 54% of aluminum cans are recycled in the U.S., compared to 98% in several European countries.

His and others’ remarks were made at an energy efficiency conference in Chicago April 7, 2010, sponsored by the Pew Center on Global Climate Change, now called the Center for Climate and Energy Solutions, which took the opportunity to release a report entitled: From Shop Floor to Top Floor: Best Business Practices in Energy Efficiency.

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. [273] 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.

American Electric Power: After containing CO2 emissions successfully in a pilot program for several years at a 31-year-old coal plant in West Virginia, AEP announced in 2011 that it was shelving the larger, $668 million project, the country’s most ambitious approach to containing emissions from existing electric plants and “one of the most advanced and successful in the world.” The political stalemate surrounding anthropogenic climate change, and the state of the economy, were cited as justifications for the decision. (Matthew L. Wald & John M. Broder, Utility Shelves Ambitious Plan to Limit Carbon, N.Y. Times, July 14, 2011.)

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.

From Risk to Opportunity: How Insurers Can Proactively and Profitably Manage Climate Change is another Ceres report from August 2006 discussing new insurance activities to tackle the causes of climate change and rising weather-related losses in the U.S. and globally.

Clean Edge, Inc.: Founded in 2000, Clean Edge “is the world’s first research and publishing firm devoted to the clean-tech sector.” It has published the annual report, Clean Energy Trends, since 2003, among others; they are available on the Web for free registration. The March 2010 report was moderately optimistic about clean energy and technology, despite the massive 2009 downturn in the U.S. economy, the lack of success at Copenhagen in 2009, and Congress’s failure thus far to pass climate change legislation.

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 2011. [274]

Climate Counts: Launched on June 19, 2007, nonprofit Climate Counts rates 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.

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.

Climate RESOLVE (Responsible Environmental Steps, Opportunities to Lead by Voluntary Efforts), a Business Roundtable initiative which encourages member companies to take voluntary action to control GHG emissions and reduce the GHG intensity of the U.S. economy, was 6 years old in 2010.

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. [275]

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 Jan. 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. The Swedish utility company Vattenfall AB coordinates the initiative. 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.

The Copenhagen Climate Council is a global collaboration between business and science founded by the leading independent think tank in Scandinavia, Monday Morning, based in Copenhagen. The members of the Copenhagen Climate Council came together to create global awareness of the importance of the U.N. Climate Change Conference, COP15, in Copenhagen, in December 2009, and to ensure support and assistance to global decision-makers when agreeing on a new climate treaty.

The EPA Green Power Partnership began in 2001 to recognize the growing number of companies and organizations that have voluntarily committed to green energy use. The “National Top 100” list, started in 2014, gives the 25 largest purchasers of renewable green power; the “Fortune 500® Partners List” was launched in late 2006 to acknowledge the green power purchases of Fortune 500 companies; and the “100% Green Power Users” list rates organizations that meet 100% of their electricity needs from green power.

Fiji Water: In early November, 2007, Fiji, 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 and alternative fuels, protect the local rainforest, and use less plastic and paper. [276] Its web site claimed it will have a 25% smaller carbon footprint in 2010 than it had in 2007.

See Jonathan Hiskes, ‘The Story of Bottled Water’ and Big Fun Learning About Water, GRIST, Mar. 22, 2010, and the video: The Story of Bottled Water: How “manufactured demand” pushes what we don’t need and destroys what we need most, with Annie Leonard.

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.[277] See also ASE supra this section; California; Australia.

GreenBiz.com: The State of Green Business Report was launched in 2008 to measure the environmental impacts of the growing green economy. The 2009 report (freely available for registration) was a bit less optimistic than the initial report. The 2010 report found that the difficult economic climate of 2009 actually proved to be a stimulus for green business; cutting operating costs to retain or regain competitiveness is now more appreciated by business people and shareholders alike. The results in the 2011 report were mixed but still somewhat optimistic, despite the negative effects of the continuing recession on social and political perceptions of the importance of environmental issues. This report, as the previous ones did, identified 10 key trends and examined the greening of the U.S. economy through 20 indicators. Mr. Makower sees green business moving forward, and he is encouraged.

Green Rankings 2010: Newsweek’s goal was “to cut through the green chatter and quantify the actual environmental footprints, policies, and reputations” of the 500 largest publicly held U.S. businesses and 100 of the largest global businesses. To do this, they teamed up with three leading environmental research organizations to create the most comprehensive rankings available. The site has a link to the 2009 rankings.

IKEA: In mid-September 2010 IKEA purchased six German wind farms from Spanish wind turbine firm Gamesa; the additional capacity will enable it to power 17 retail stores. It acquired 4 French wind farms in 2009 and with its other acquisitions can generate 10% of its electricity needs from wind power. It plans eventually to generate 100% of its power from renewable sources, specifically wind and solar. (IKEA starts to assemble European wind energy portfolio: Retail giant avoids self-assembly and acquires six German wind farms, BusinessGreen.com, Sept. 10, 2010.)

Institutional Investors Group on Climate Change (IIGCC): European-based, with 50 members, the group’s objective is to catalyze greater investment in a low carbon economy by bringing investors together to use their collective influence with companies, policymakers and investors.

Investor Group on Climate Change (IGCC): IGCC is a collaboration of Australian and New Zealand investors focusing on the impact that climate change has on the financial value of investments.

Investor Network on Climate Risk (INCR): INCR is a project of Ceres, supra, to provide tools for investors to manage the risks and capture the opportunities posed by climate change.

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. [278] The group was organized by Ceres, supra.

On Jan. 27, 2010 (effective Feb. 8th), the SEC published an interpretive release “to provide guidance to public companies regarding the Commission’s existing disclosure requirements as they apply to climate change matters” [Release Nos. 33-9106; 34-61469; FR-82, affecting 17 CFR PARTS 211, 231 and 241], an action 56 investment-industry leaders praised because it “will provide us with significantly improved information about the material risks and opportunities faced by our portfolio companies.” However, Sen. John Barrasso (R-WY) introduced legislation on February 24th (S. 3032, aka the Maintaining Agency Direction on Financial Fraud Act) “to prohibit the enforcement of a climate change interpretive guidance issued by the Securities and Exchange Commission, and for other purposes….”; there were no co-sponsors. The act’s name is an acronym for disgraced investment advisor Bernard Madoff, whose Ponzi scheme the SEC failed to catch; it was “clear”…to Mr. Barrasso “that the SEC should focus on its core mission of protecting American investors and maintaining fair markets. Instead, the SEC now wants to devote time and resources to climate change. This is absurd,” Barrasso said in a prepared statement.” [279]

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. [280] The new group includes four environmental groups (NRDC, Environmental Defense Fund, [281] World Resources Institute, and the Pew Center on Global Climate Change) as well as manufacturers (e.g., 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 [see supra, Deepwater Horizon oil spill], and Lehman Brothers. [282] Its January 2007 proposal was entitled A Call for Action: Consensus Principles and Recommendations from the U.S. Climate Action Partnership: A Business and NGO Partnership. On Monday, Jan. 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.”[283]

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.

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, Dec. 3, 2007, it announced that it would increase its target to 25% by 2012. [284]

See: Mark Muro, Jonathan Rothwell, & Devashree Saha, Sizing the Clean Economy: A National andRegional Green Jobs Assessment (Metropolitan Policy Program, Brookings Institute, 2011) (see also:Joanna M. Foster, ‘Green’ Economy Is Real but Needs a Push, Study Suggests, N.Y. Times, July 14, 2011.)

5. Online Scientific Resources Relating to Global Climate Change

5.1. General Web Sites & Blogs for Climate Change Resources and Programs

• 350.org: an international campaign that’s building a movement to unite the world around solutions to the climate crisis—the solutions that science and justice demand. The organization’s name refers to the number of parts per million of CO2. “If we can’t get below that, scientists say, the damage we’re already seeing form [sic] global warming will continue and accelerate.”
• American Association for the Advancement of Science has a Global Climate-Change Resources page, with links to reports, climate change news, events, recent relevant articles in Science, and more.
• Arctic Climate Impact Assessment (ACIA): A project of the Arctic Council, whose members are Canada, Denmark, Finland, Iceland, Norway, the Russian Federation, Sweden, and the United States, and the International Arctic Science Committee (IASC), a non-governmental organization that encourages and facilitates international cooperation in all areas of Arctic research. ACIA’s synthesis report is entitled Impacts of a Warming Arctic; its findings were released at the ACIA International Scientific Symposium in Reykjavik, Iceland, in 2004. ACIA also produced a 1042-page scientific report entitled Arctic Climate Impact Assessment in 2005
• BBC has a Climate Change page (last updated, Aug. 2008). See also its Quick guide: Carbon offsetting.
• The Breakthrough Institute is an environmental think tank. See Ted Nordhaus & Michael Shellenberger, Break Through: Why We Can’t Leave Saving the Planet to Environmentalists (Mariner Books; Reprint edition, March 10, 2009).
• CCIR-NYC:Climate Change Information Resources-New York Metropolitan Region (CCIR-NYC) is an information resource created for the use of policymakers, educators, and the public on how climate change will impact on the metropolitan area, and how residents can adapt to it. A project of the Center for International Earth Science Information Network (CEISIN) at Columbia University, under a grant from NOAA, and with the collaboration of the Goddard Institute for Space Studies and Hunter College. Last accessed in January 2011, the site has not been updated since March 29, 2005.
• The Carbon Mitigation Initiative “is a joint project of Princeton University, BP and the Ford Motor Company to find solutions to the greenhouse and global warming problem.”
• The Climate Analysis Indicators Tool (CAIT): provides a comprehensive and comparable database of greenhouse gases and other climate-relevant indicators. CAIT 7.0 features greenhouse gas data through 2006 for most countries of the world (as of spring 2010). Free registration required.
• Climate Central: A nonprofit, collaborative group of scientists and communicators, providing since 2008, a central authoritative source for climate change information.
• Climate Progress: Called “The indispensable blog” by Tom Friedman of the New York Times, “Climate Progress is dedicated to providing the progressive perspective on climate science, climate solutions, and climate politics.
• The DOE’s Energy Information Administration’s Official Energy Statistics from the U.S. Government page includes Voluntary Reporting of Greenhouse Gases Program, and Emissions of Greenhouse Gases Reports as well as U.S. GHG emissions data.
• The Earth System Science Partnership (ESSP) is comprised of four global environmental change research programs: the International Programme of Biodiversity Science (DIVERSITAS); the International Geosphere-Biosphere Programme (IGBP); the International Human Dimensions Programme on Global Environmental Change (IHDP); and the World Climate Research Programme (WCRP); they joined together in 2001 to form the ESSP in response to the Amsterdam Declaration on Global Change, which was signed at the first Global Change Open Science Conference. ESSP “is a Partnership for the integrated study of the Earth System, the changes that are occurring to the system and the implications of these changes for global sustainability.”
• The Earth Policy Institute is “dedicated to providing a vision of an environmentally sustainable economy… [and] a roadmap of how to get from here to there.”
• ECOLEX: A Gateway to Environmental Law is a database operated by FAO, IUCN and UNEP. It provides access to treaties, legislation from national jurisdictions and state/provincial levels around the world, court decisions, and literature. It claims to be “the most comprehensive, global source of information on environmental law.” ECOLEX is freely available, but be sure to read the User Agreement.
• An Economic View of the Environment by Robert N. Stavins is posted on Harvard’s Belfer Center web page. Professor Stavins is Albert Pratt Professor of Business and Government, Director of the Harvard Environmental Economics Program, and Chairman of the Environment and Natural Resources Faculty Group.
• European Commission has a Global Climate Change Alliance page.
• Friends of the Earth UK has a Climate Change page.
• The Global Carbon Project (GCP): Founded in 2001, as part of the ESSP, supra, the project aims to “develop a complete picture of the global carbon cycle, including both its biophysical and human dimensions together with the interactions and feedbacks between them.” Each year it publishes an updated carbon budget and trends. Other reports are available on their Web site, under Products. The GCP reported on Nov. 27, 2006, that carbon dioxide emissions are now rising at a rate of 2.5% per year, whereas up to the year 2000 they were rising by less than 1% annually. [285] The Carbon Budget 2008 was released on Nov. 17, 2009.
• Global Change Master Directory: Directory to Earth Science Data and Services, on NASA’s Goddard Space Flight Center Web site, lists data sets by topic.
• The Global Roundtable on Climate Change, a group of nearly 100 international corporations and institutions created in 2004 by the Earth Institute at Columbia University, released The Path to Climate Sustainability: A Joint Statement by the Global Roundtable on Climate Change on Feb. 20, 2007. The document calls on governments “to set scientifically informed targets for greenhouse gases and carbon dioxide (CO2) emissions.” [286]
• Greenpeace, USA, has a Fighting Global Warming page.
• The International Energy Agency has a Topics page. The IEA’s World Energy Outlook 2009 was released Nov. 10, 2009. Earlier editions are also available, from 1993.
• The National Academy of Sciences has a Global Change page. A 24-page report entitled Understanding and Responding to Climate Change: Highlights of National Academies Reports is available on that page. In May 2010, NAS released 3 new reports:
• • Advancing the Science of Climate Change
  • Limiting the Magnitude of Future Climate Change
  • Adapting to the Impacts of Climate Change
• The National Center for Atmospheric Research (NCAR), is operated by the University Corporation for Atmospheric Research and has a Climate & Global Dynamics page.
• NativeEnergy is a privately held Native American energy company. Its website has information on creating renewable energy projects, offsetting CO2 emissions from driving a car or air travel, and much more.
• The Natural Resources Defense Council has a Climate Change page.
• NOAA’s Earth System Research Laboratory Global Monitoring Division has a Carbon Tracker: “A system to keep track of carbon dioxide uptake and release at the Earth’s surface over time.”
• The Pew Center on Global Climate Change, now called Center for Climate and Energy Solutions, was established in 1998 and is supported by the Pew Charitable Trusts. It is “working to create a policy environment that leads to the adoption of mandatory federal limits on emissions that contribute to global warming.”
• Resources for the Future is a “nonprofit and nonpartisan” environmental think tank headquartered in Washington, D.C.
• The Sierra Club has an Initiative to Limit Total Greenhouse Emissions.
• Tyndall Centre for Climate Change Research in the UK “brings together scientists, economists, engineers and social scientists, who together are working to develop sustainable responses to climate change through trans-disciplinary research and dialogue on both a national and international level. ”
• The UNFCCC’s Methods and Science pages, contains issues that the Subsidiary Body for Scientific and Technological Advice (SBSTA) is working on.
• Warming Law: Changing the Climate in the Courts: A project of the Constitutional Accountability Center. Its archive goes back to March 2007.
• The Woods Hole Research Center has a document entitled Understanding a Climate Change: A Primer, available on the Web. The mission of the Center is “to understand the causes and consequences of environmental change as a basis for policy solutions for a better world, stabilizing climate and protecting the integrity of the global environment.”
• World Economic Forum: “The World Economic Forum is an independent international organization committed to improving the state of the world by engaging leaders in partnerships to shape global, regional and industry agendas. Incorporated as a foundation in 1971 and based in Geneva, Switzerland, the World Economic Forum is impartial and not-for-profit; it is tied to no political, partisan or national interests.”

The Global Information Technology Report 2009-2010, was published by the World Economic Forum in collaboration with INSEAD. It assesses the extent to which 133 economies leverage information and communication technologies for increased growth and development. Also, ENERGY VISION UPDATE 2010: Towards a More Energy Efficient World was produced by WEF and IHS Cambridge Energy Research Associates.

• World Glacier Monitoring Service: Glacier monitoring began in 1894 in Zurich, Switzerland. This group began in 1986 to maintain the collection of information, and studies 30 glaciers in all parts of the world. Shortly before the release of the Fourth Assessment Report by the IPCC in February 2007, the WGMS announced that due to climate change, glaciers are receding three times faster than they were in the 1980s. [287]
• The World Meteorological Organization (WMO): WMO is a Specialized Agency of the United Nations. It is “the UN system’s authoritative voice on the state and behavior of the Earth’s atmosphere, its interaction with the oceans, the climate it produces and the resulting distribution of water resources.” An intergovernmental organization, it has 187 Member States and Territories. Several of its programs and topics (in drop-down menus) address climate change.
• The World Wildlife Fund has a Climate Savers Program: Mobilizing Companies to cut carbon dioxide.

5.2. Scientific Materials

• The Asian Development Bank released a working paper on May 19, 2006, entitled Energy Efficiency and Climate Change: Considerations for On-Road Transport in Asia which finds that Asia’s levels of GHG emissions will likely triple over the next 25 years. [288]
• A conference entitled Avoiding Dangerous Climate Change was held in Exeter, England, from Feb. 1-3, 2005. It discussed the consequences of a predicted increase of 1.8 degrees Fahrenheit within 25 years, an increase of 3.6 degrees Fahrenheit before 2050, and an increase of 5.4 degrees Fahrenheit before 2070.
• The British Trust for Ornithology released a report in August 2005, by Robert A. Robinson, et al., entitled Climate Change and Migratory Species.
• The Department of Agriculture established the Federal Advisory Committee for the Expert Review of Synthesis and Assessment Product 4.3 (CERSAP), on March 16, 2007. [289] It will advise the Secretary on a study entitled The Effects of Climate Change on Agriculture, Land Resources, Water Resources, and Biodiversity in the United States.
• The Environmental Performance Index was produced by researchers at Yale and Columbia Universities; it ranked 149 countries over 6 categories: Environmental Health, Air Pollution, Water Resources, Biodiversity and Habitat, Productive Natural Resources, and Climate Change. The U.S. came in 39th, China, 104th, India, 120th, and Australia, 46th. Switzerland, Norway, Sweden and Finland took the top places, in that order.
• A study by David B. Lobell & Christopher B. Field entitled Global Scale Climate-Crop Yield Relationships and the Impacts of Recent Warming, published in 2 Environmental Research Letters 2 in March 2007, tied climate change to lower annual yields of wheat, rice, corn, soybeans, barley, and sorghum worldwide.
• The International Polar Year (IPY)began March 1, 2007, and will continue until March 1, 2009, with over 60 nations participating in the research activities.
• The Marine Environmental Change Network (MECN) is a collaboration between organizations in England, Scotland, Wales, the Isle of Man and Northern Ireland to collect climate change information. It is funded by DEFRA, the Department of the Environment, Food, and Rural Affairs. (Under construction, Feb. 2010.)
• The National Academy of Sciences, Engineering, and Medicine reports that brown clouds of air pollution over South Asia, as well as elevated levels of GHG, reduced rice production in the area. The report is entitled Rice Yields Decline With Higher Night Temperature From Global Warming. [290]
• Biennial science reports are available from the California Climate Change Portal.
• Scientific Expert Group Report on Climate Change and Sustainable Development (SEG), Confronting Climate Change: Avoiding the Unmanageable and Managing the Unavoidable (Feb. 2007). The report warns that “immediate global action is needed to cut greenhouse gas emissions and to prevent rising sea levels and other potentially drastic effects of climate change.”
• The United Nations Environment Programme (UNEP) and the Secretariat of the Convention on Migratory Species (CMS) released a report during the Nairobi COP-12/MOP-2 entitled Migratory Species and Climate Change: Impacts of a Changing Environment on Wild Animals on Nov. 16, 2007.

6. Innovative or Alternative Technologies

Algae and CO2: PBS’s Nightly Business Report, on Nov. 27, 2006, had a segment called Environmental Algae. When algae are pumped into tubes with emissions from power plants and exposed to sunlight, the algae, extremely fast-growing plants, eat the emissions in the same way trees absorb CO2. The resulting algae powder can be burned by the plant in the same way coal is, or sold as a liquid to make ethanol or bio-diesel, both of which are less polluting ways to power cars. The system also reduces nitrous oxide.

Algae as fuel: Businesses, as well as academic laboratories, are exploring ways to use genetic engineering to create biofuel from strains of algae, which has the potential to be 10 times more productive than corn or soybeans and would not compete with food production. (Andrew Pollack, Exploring Algae as Fuel, N.Y. Times, July 26, 2010.)

Carbon Sequestration: Capturing and storing CO2 emissions in the sea floor or in geological reservoirs in the earth’s upper crust is another innovative approach. An interdisciplinary study from MIT, released in March 2007 and entitled The Future of Coal, discussed carbon capture and sequestration in detail.

The Department of Energy released a report on March 27, 2007, that shows that the U.S. and Canada have a large capacity for storing CO2 and other greenhouse gases from power plants. The research was presented at a meeting of the Carbon Sequestration Leadership Forum where the U.S., Australia, India, China and other member countries reluctant to cut GHG emissions discussed sequestration as an alternative to cutting their energy use.

Two bills in the 110th Congress would accelerate development of carbon capture technology: S. 731, the National Carbon Dioxide Storage Capacity Assessment Act of 2007, and S. 962, the Department of Energy Carbon Capture and Storage Research, Development, and Demonstration Act of 2007. A hearing was held on April 16, 2007, on these bills before the Senate Committee on Energy & Natural Resources. These bills became Title III of S. 1321, the Energy Savings Act of 2007, which was reported from committee and generally incorporated in S. 1419, the Renewable Fuels, Consumer Protection, and Energy Efficiency Act of 2007, as reported from the Committee on Energy and Natural Resources, which as introduced was identical to S. Amdt. 1502, a subsequent Senate substitute amendment to H.R. 6, which was enacted as the Energy Independence and Security Act of 2007, Pub. L. No. 110-140, on Dec. 19, 2007.

On Oct. 4, 2007, the Carbon Dioxide Pipeline Study Act of 2007, S. 2144, was introduced in Senate by Senator Coleman and referred to the Committee on Energy and Natural Resources. Its purpose is “to require the Secretary of Energy to conduct a study of feasibility relating to the construction and operation of pipelines and carbon dioxide sequestration facilities, and for other purposes.” S. 2323, the Carbon Capture and Storage Technology Act of 2007, a bill “to provide for the conduct of carbon capture and storage technology research, development, and demonstration projects, and for other purposes” was introduced by Senator Kerry on Nov. 7, 2007, and referred to the same Senate committee, which held a hearing on Jan. 31, 2008, “[t]o receive testimony on carbon capture, transportation, and sequestration and related bills, S.2323 and S.2144.” Among the witnesses was Scott Anderson, an energy policy specialist in the Austin, Texas, office of Environmental Defense, which cautiously supports the technology.

On July 25, 2008, EPA published: Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells, at 73 Fed. Reg. 43492. The public comment period closed on Dec. 24, 2008; a proposal and notice were published at 74 Fed. Reg. 44802 in Aug. 2009, ending Oct. 15, 2009. The rule was finalized Dec. 10, 2010 and effective Jan. 10, 2011; see 75 Fed. Reg. 77230.

“On May 4, 2010, EPA and DOE Announced the First Public Meeting of the Interagency Task Force on Carbon Capture and Storage: The U.S. Environmental Protection Agency (EPA) and U.S. Department of Energy (DOE) today announced the first public meeting of the Interagency Task Force on Carbon Capture and Storage will take place on May 6, 2010, in Washington, D.C. The May 6th meeting will give members of the public the opportunity to provide ideas for moving forward with carbon capture and storage projects. Energy Secretary Steven Chu, Council on Environmental Quality Chair Nancy Sutley and EPA Deputy Administrator Bob Perciasepe will attend the meeting and deliver brief remarks. “The task force, co-chaired by DOE and EPA, is charged with proposing a plan to overcome the barriers to the widespread, cost-effective deployment of carbon capture and storage within 10 years, with a goal of bringing five to 10 commercial demonstration projects online by 2016. The task force is comprised of 14 executive departments and federal agencies and was established by a presidential memorandum on February 3, 2010. The task force’s plan is due to the president in August 2010. There is a video of the live webcast of the entire meeting on the White House’s website. [291]

· Christene Ehlig-Economides & Michael Economides, Sequestering carbon dioxide in a closed underground volume, 70 Journal of Petroleum Science and Engineering 123 (2010) (concluding “…that [CCS] is not a practical means to provide any substantive reduction in CO2 emissions, although it has been repeatedly presented as such by others.”)

Coal-to-Liquid Fuels: Converting coal to diesel fuel (aka “CTL”) has been mentioned as an innovative energy technology, but in fact, the Fischer-Tropsch process was developed by German researchers Franz Fischer and Hans Tropsch in 1923. Environmental groups point out that it is not a renewable fuel, and that it produces about twice as much CO2 as regular gasoline, aside from that produced when it is manufactured. Congressional leaders remain unconvinced, however, and are pushing for liquid coal to provide a substitute for foreign oil. [292]

In the first session of the 110th Congress, several relevant bills were introduced in the House of Representatives (H.R. 370, the Coal-to-Liquid Fuel Promotion Act of 2007, which was referred to the Subcommittee on Readiness), and the Senate (S. 133, the American Fuels Act of 2007, which was sponsored by Senator Barack Obama (D-IL), and referred to the Committee on Finance; S. 154, the Coal-to-Liquid Fuel Energy Act of 2007, referred to the Committee on Energy and Natural Resources; & S. 155, the Coal-to-Liquid Fuel Promotion Act of 2007, referred to the Committee on Finance), to promote coal-to-liquid activities. Senator Obama clarified his position in a statement on June 13, 2007, stating that he will not support the technology until it is “perfected,” that is, unless coal-to-liquid fuels “emit at least 20 percent less life-cycle carbon than conventional fuels.”[293]

Desertec Foundation: A string of giant solar power stations along the shores of northern Africa and the Middle East could produce billions of watts of power which could provide Europe with a sixth of its electricity needs, thereby slashing its carbon emissions. The proposal was presented to the European Parliament in December 2007by Prince Hassan bin Talal of Jordan. [294]

Electric Vehicles: Electric vehicles (EVs), hybrid-electric vehicles (HEVs), plug-in hybrid electric vehicles (PHEVs), and extended-range electric vehicles (EREVs) are now being produced by small and large car manufacturers alike. In combination with the Obama Administration’s new GHG emission regulations from April 2010, see supra, car manufacturers are working to improve fuel consumption and reduce GHG emissions.[295]

Tesla Motors, a manufacturer of electric cars based in Silicon Valley, was granted a waiver from state sales tax on $320 million worth of manufacturing equipment at the end of October 2009, which will prevent it from moving its production to New Mexico.

An all-electric car, the Audi A2, set the world’s record for miles driven (375) without recharging. The battery was created by DBM Energy, operates at 97% efficiency, and if plugged into a high-voltage, direct-energy source, can be fully charged in 6 minutes. The battery’s 27-year-old inventor, while vague about its price, is optimistic about going into large-scale production of German-made electric cars. (Stefan Nicola, German electric car sets world record, SpaceDaily, Oct. 26, 2010.)

Geoengineering: Ideas include: “giant artificial ‘trees’ that would filter carbon dioxide out of the air, a bizarre ‘solar shade’ created by a trillion flying saucers that lower Earth’s temperature, and a scheme that mimics a volcano by spewing light-reflecting sulfates high in the sky.” These options are costly and although viewed with suspicion by many scientists, are considered as a possible last resort. [296]

In Sept. 2009, the U.K.’s Royal Society published a significant report entitled: Geoengineering the climate: science, governance and uncertainty. Professor John Shepherd, Professorial Research Fellow in Earth System Science, University of Southampton, who chaired the working group that prepared the report, testified at the Nov. 2009 H.R. Committee hearing, infra.

Witnesses told the House Committee on Science, Space & Technology on Nov. 5, 2009, at a hearing (the first in a series) entitled Geoengineering: Assessing the Implications of Large-Scale Climate Intervention, that the government should research the possibilities of geoengineering, but should not actually attempt to engineer the climate given the uncertainties and potentially negative consequences of doing so; reducing carbon emissions is still the preferable approach, at least until those efforts are proven insufficient.

Then-Science-&-Technology-Committee-Chairman Bart Gordon said that the hearing was “part of a partnership with the United Kingdom House of Commons Science and Technology Committee. The two Committees will hold parallel hearings and share materials once they are publicly available.”[297]

An email from a Senior Committee Assistant on the House of Commons Science and Technology Committee said that the oral evidence session/s on the Committee’s geoengineering inquiry will probably be held sometime in Jan. 2010. They will be announced on the Committee’s home page once all the written evidence has been received (the deadline for written memoranda is Dec. 9, 2009).

Geothermal Energy: Renewable Energy Policy Project (REPP): REPP’s mission is to provide information, analysis, and strategies to support renewable energy technologies, such as water power, bioenergy, wind, solar and hydrogen power.

An 18-member panel at MIT released a nearly 400-page report in Jan. 2007, undertaken at the request of the Department of Energy and entitled: The Future of Geothermal Energy: Impact of Enhanced Geothermal Systems (EGS) on the United States in the 21st Century. [298] The report concluded that geothermal energy could supply much of the U.S.’s electricity with minimal environmental impact. It was the first study of geothermal energy in 30 years.

Nuclear Energy: Nuclear energy is familiar to most readers, and it continues to be the hope of our energy future to many, especially the French; however, it may have been dealt a blow by the disaster at Japan’s Fukushima Daiichi facility; see supra under Japan.

Ocean Fertilization: Oceans are a natural carbon sink primarily because phytoplanktons absorb CO2. Ocean fertilization is the process of increasing iron content in the water to feed phytoplankton and thus increase storage of CO2. Its success is questionable, according to a new report, Ocean Fertilization: A Scientific Study for PolicyMakers, published in Jan. 2011 by UNESCO.

Offshore Geothermal Energy: On April 21, 2011, the Italian Ministry of Energy announced that it was planning what it called the world’slargest offshore geothermal energy program, in the Tyrrhenian Sea about 125 miles north of Sicily, costingat least €130 million ($189 million). It will tap the energy of the submarine volcano Marsili and shouldproduce enough energy to supply the city of Palermo, the country’s 5th largest.

Salt Power: When salt and freshwater mix at the mouths of rivers they are warmed by about 1 degree Celsius; Dutch and Norwegian scientists believe that harnessing the power of estuaries could provide 20% of the world’s energy. Unfortunately, that goal will probably not make a significant contribution until 2030, although a test plant is under construction in Norway and a Dutch plant is being planned. Both systems “depend on membranes placed between the salt and fresh water, which are currently prohibitively expensive and highly energy-intensive to produce.” [299]

Solar Power: On Oct. 6, 2010, Interior Secretary Salazar announced that 2 solar energy plants will be built before the end of the year on public lands in California, funded by the American Recovery and Reinvestment Act of2009, Pub. L. No. 111-5. The Imperial Valley Solar Project and the smaller Lucerne Valley Solar Project could, together, provide power for between 225,500 and 565,500 homes. (Glenn Hurowitz, White House approves solar for roof and California desert, GRIST, Oct. 5, 2010; Ari Natter, Solar Power: Todd Woody, Just Deserts: Obama administration approves first big solar projects to be built on federal land, GRIST, Oct. 5, 2010; but see Matt Daily & Sarah McBride, Financing Dearth Holds Solar Back in U.S., N.Y. Times, Oct. 17, 2010.)

In December, 2010, Secretary Salazar approved construction of a 110-megawatt solar power plant on BLM land in Nevada that could power 75,000 homes. (William H. Carlile, Energy: Department of Interior Gives Green Light To Solar Facility on Public Land in Nevada, BNA State Environment Daily, Dec. 22, 2010.)

Space Solar Power (SSP): Solar panels attached to an orbiting satellite would convert the electricity generated into microwaves for transmission to Earth, and then into direct-current electricity. Studied for over 40 years, space solar arrays receive eight times more energy than terrestrial solar panels but are more expensive; the technology was the subject of a 75-page Pentagon study entitled Space-Based Solar Power As an Opportunity for Strategic Security (Report to the Director, National Security Space Office, Oct. 10, 2007).

Voluntary Carbon Offsets Market: Outlook 2007: ICF International, a consulting firm that studies environmental issues, released this report (not available for free download) on Nov. 30, 2006, that claims that voluntary trading is likely to grow dramatically by2010, especially among companies in countries like the U.S. that did not ratify the Kyoto Protocol. For example, H.R. 823 was introduced on Feb. 5, 2007, to authorize federal agencies and legislative branch offices to purchase greenhouse gas offsets and renewable energy credits. It was referred to the Committees on Oversight and Government Reform, House Administration, and Energy and Commerce.

Wind Power: The use of wind energy use in the U.S. more than quadrupled between 2000 and 2006, and yet state and federal guidance to assist communities in planning projects is minimal. A new congressionally mandated study by the National Academy of Sciences points out that although it may eventually provide as much as7% of the country’s electricity (currently less than 1%), wind power is not without negative effects, e.g., the effects on birds and bats. The report, Environmental Impacts of Wind-Energy Projects, may be purchased or read online. The plan to construct the country’s first offshore wind farm, Cape Wind, on Nantucket Sound has been opposed by prominent politicians and two Indian tribes and has been stalled since 2001. Europe has over 800 such facilities. (Tom Zeller, Jr., Cape Cod Project Is Crucial Step for U.S. Wind Industry, N.Y. Times, April 26, 2010).

See generally: S. C. Pryor1 & R. J. Barthelmie, Assessing climate change impacts on the near-term stability of the wind energy resource over the United States, Proceedings of the National Academy of Sciences (published online before print, May 2, 2011).

Zerofootprint Carbon Offsets: “Reduce your carbon footprint to Zero. Go as green as you can. Offset the rest.” A new interactive Web site that enables individuals to calculate their carbon footprint based on the car/s that they drive, the flights they take, and the amount they spend per month on home energy bills. The anonymous data will be collected for analysis by climate scientists. The new site was unveiled at the May 2007 C40 Large Cities Climate Summit, discussed supra.

Greenpeace concluded that alternative energy sources, such as solar, wind, geo-thermal, bio-energy and hydro, “could provide nearly 70% of the world’s electricity and 65% of global heat demand.” [300] The report strongly discourages the use of nuclear power, U.S. Dept. of Energy, National Renewable Energy Laboratory, Exec. Summary: Large-Scale Offshore Wind Power in the United States (NREL/TP-500-49229, Sept. 2010), estimating that the U.S. could generate 20% of its energy from wind power by 2030.

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[1] IPCC Assessment Reports 1990-present (FAR, SAR, TAR & AR4-5) are available online in .pdf.

[2] The date of entering into force was determined by the treaty’s Art. 23 (1), which stated it would do so on the 90th day after the date on which the 50th instrument of ratification, acceptance, approval or accession was deposited with the Secretary-General of the UN. See UNFCCC, 1771 U.N.T.S. 187, reprinted in 31 I.L.M. at 871 (1992), at page 21.

[3] See Status of Ratification of the Convention. Two other conventions – the Convention on Biological Diversity (CBD), and the UN Convention to Combat Desertification (UNCCD) – debuted at Rio. The secretariats of these conventions share information and coordinate activities through the Joint Liaison Group, established in 2001.

[4] Donald A. Brown, Climate Change, in Stumbling Toward Sustainability 276 (Washington, D.C.: ELI, 2002); Michael Grubb, The Kyoto Protocol: A Guide and Assessment 43 (London: Royal Institute of International Affairs, 1999).

[5] Referring to the Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, S. Treaty Doc. No. 100-10, 1522 U.N.T.S. 29, which entered into force Jan. 1, 1989. It was amended in 1990 in London, 30 I.L.M. 541 (1991); in 1992 in Copenhagen, 32 I.L.M. 874 (1993), in 1997 in Montreal, U.N. Doc. UNEP/OzL.Pro.9/12, and 1999 in Beijing, U.N. Doc. UNEP/OzL.Pro.11/10. The substances regulated are chlorofluorocarbons (CFCs), halons, carbon tetrachloride, and methyl chloroform. The Montreal Protocol was a modification to the Vienna Convention for the Protection of the Ozone Layer, March 22, 1985, T.I.A.S. No. 11,097, 1513 U.N.T.S. 293 (1985).

[6] According to the UNFCCC art. 1 (8), a sink is “any process, activity or mechanism which removes a greenhouse gas, an aerosol or a precursor of a greenhouse gas from the atmosphere.”

[7] 1995’s COP-1 is no longer available in the meetings archive, and COP-2 has no links to documents or agendas. Current conferences and meeting materials are available on the website, though.

[8] Report of the Conference of the Parties on its First Session, Held at Berlin from 28 March to 7 April 1995, Addendum: Part Two: Action Taken by the Conference of the Parties at its First Session, FCCC/CP/1995/7/Add.1 (June 6, 1995), Decision 1/CP.1.

[9] Amy Royden, U.S. Climate Change Policy Under President Clinton: A Look Back, in Symposium: Rio’s Decade: Reassessing the 1992 Earth Summit, 32 Golden Gate U.L. Rev. 415, 425 (2002).

[10] Decision 20/CP.1 at page 59 of FCCC/CP/1995/7/Add.1, 6 June 1995.

[11] See Report of the Conference of the Parties on its Third Session, Held at Kyoto from 1 to 11 December 1997, Decision 1/CP.3.

[12] Kyoto Protocol to the UNFCCC, art. 3, Dec. 10, 1997, UN Doc. FCCC/CP/1997/L.7/Add.1, reprinted in 37 I.L.M. 32, 33 (1998). Annexes are at 42, 43.

[13] Brendan P. McGivern, Introductory Note, 37 I.L.M. 22, 24 (1998).

[14] E.g., Ben Russell, Parliament: Environment – Tories Condemn ‘Inept’ Prescott’s Failure on Kyoto, The Independent (London), April 25, 2001, at 8. (“Jane Griffiths, the Labour MP for Reading East, said … ‘Will you join with me in hoping that the fool on Capitol Hill changes his ways before it is too late?’”); Bill Nichols, Protesters Interrupt Powell at Summit on Earth; Secretary of State Defends U.S. at End of 10-Day Meeting, USA Today, Sept. 5, 2002, at A05; James Dao, Protesters Interrupt Powell Speech as U.N. Talks End, N.Y. Times, Sept. 5, 2002, at A10.

[15] UNFCCC art. 19, May 9, 1992, 1771 U.N.T.S. 107, 185, reprinted in 31 I.L.M. 849 (1992); Kyoto Protocol art. 27, Dec. 10, 1997, UN Doc. FCCC/CP/1997/L.7/Add.1, reprinted in 37 I.L.M. 32, 42 (1998).

[16] Greg Kahn, The Fate of the Kyoto Protocol Under the Bush Administration, 21 Berkeley Journal of International Law 548 (2003).

[17] Report of the Conference of the Parties on its Seventh Session, Held at Marrakesh from 29 October to 10 November 2001, Addendum: Part Two: Action Taken by the Conference of the Parties, FCCC/CP/2001/13/Add.1.

[18] 144 CONG. REC. S196-97 (Jan. 29, 1998) (statement of Sen. Byrd, discussing flexibility mechanisms); II Public Papers of the President: William J. Clinton, Remarks at the National Geographic Society, Oct. 22, 1997, 1408-12 (1997).

[19] Robert T. Watson, Ian R. Noble, Bert Bolin, N. H. Ravindranath, David J. Verardo & David J. Dokken (eds.), IPCC Special Report: Land Use, Land-Use Change, and Forestry (Cambridge: Cambridge University Press, 2000).

[20] Afforestation is the process of planting trees on land not forested in at least 50 years; reforestation is replacing trees that have been removed by deforestation. See Annex A, Definitions, modalities, rules and guidelines relating to land use, land-use change and forestry activities under the Kyoto Protocol, FCCC/CP/2001/13/Add.1 at 58, after Decision 11/CP.7.

[21] At the Nairobi COP/MOP meeting, a delegate from Germany said that “although greenhouse gas emissions were higher among developed countries, deforestation in developing countries contributes 20 percent of global greenhouse gas emissions.” More on LULUCF is on the UN FCCC Web site.

[22] See World Summit on Sustainable Development Fails to Live Up to Expectations, Globalization101, Dec. 16, 2002.

[23] This was in accord with Article 3 (9) of the Kyoto Protocol, that required that the COP/MOP initiate consideration of commitments for subsequent periods at least 7 years before the end of the first commitment period, 2008 to 2012.

[24] Greenhouse Gas Emissions Data, at 2; Press Release, 2006 UNFCCC greenhouse gas data report points to rising emission trends.

[25] Richard Black, Africa Focus for Climate Summit, BBC News (Nov. 6, 2006).

[26] Tristana Moore, Experts Seek New Climate Strategy: Delegates to the United Nations Framework Convention on Climate Change and its Kyoto Protocol are meeting in the German city of Bonn, BBC News, May 7, 2007.

[27] Juliet Eilperin, 150 Global Firms Seek Mandatory Cuts in Greenhouse Gas Emissions, Wash. Post, Nov. 30, 2007.

[28] Charles Clover, US has ‘serious concerns’ about Bali deal, Daily Telegraph, Dec. 15, 2007.

[29] E.g., Jonathan Leake, Bali deal leaves greens in despair, TimesOnline, Dec. 16, 2007.

[30] Bangkok Climate Change Talks – 31 March to 4 April 2008.

[31] Sheryl Gay Stolberg, Bush Sets Greenhouse Gas Emissions Goal, N.Y. Times, April 17, 2008.

[32] John Broder, Hopes Fade for Comprehensive Climate Treaty(this article actually has a different title, but because I am limited to the amount of articles I can view online with Times, I am unable to get access to the article for more than 2 second, really strange. It is called: “As Time Runs Short for Global CLimte Treaty, Nations May Settle for Interim Steps.”), N.Y. Times, Oct. 20, 2009.

[33] Geoffrey Lean, Letter From Europe: Copenhagen reality check: Gov’ts concede new climate treaty unlikely until 2010, GRIST, Nov. 4, 2009; AFP, Obama urges climate action as Europe ups pressure on U.S., GRIST, Nov. 3, 2009.

[34] Robert P. Walzer, Energy & Environment: Forum Reflects Copenhagen Divisions, N.Y. Times, Nov. 11, 2009.

[35] AFP, Environment ministers meet to prepare climate summit [link goes to Kyoto Protocol-Targets for the first commitment period].

[36] Helene Cooper, Leaders Will Delay Deal on Climate Change], N.Y. Times, Nov. 14, 2009; Apec Leaders Drop Climate Target, BBC News, Nov. 15, 2009.

[37] John M. Broder, Obama Hobbled in Fight Against Global Warming, N.Y. Times, Nov. 15, 2009.

[38] Announcements of U.S.-China cooperation create a path to Copenhagen success, Climate Progress, Nov. 20, 2009.

[39] Barack Obama says he will go to Copenhagen climate change conference, Telegraph.co.uk, Nov. 10, 2009; Joseph Romm, Obama will go to Copenhagen—if he can seal a deal, GRIST, Nov. 10, 2009.

[40] John M. Broder & Jeff Zeleny, Obama Will Go to Copenhagen, N.Y. Times, Nov. 25, 2009.

[41] Dean Scott, International Issues: Obama to Arrive on Final Day of Talks to Signal Commitment to Copenhagen Deal, WCCR, Dec. 4, 2009.

[42] Robert Stavins wrote a detailed analysis of the Accord for GRIST; see A preliminary assessment of the Copenhagen Accord, Dec. 20, 2009.

[43] Andrew Light & Daniel J. Weiss, What you need to know following the Copenhagen climate summit, GRIST, Dec. 23, 2009.

[44] Jacob Werksman, “Associating” with the Copenhagen Accord: What Does It Mean?, WRI, Mar. 25, 2010.

[45] Richard Black, ‘Paltry’ Copenhagen carbon pledges point to 3C world, BBC News, April 22, 2010.

[46] AFP, No guarantee of warming treaty this year, says U.N. climate chief, GRIST, Jan. 20, 2010. See also Climate Summit 2014: Catalyzing Action](Sept. 23, 2014).

[47] AFP, Two months after Copenhagen summit, U.N. climate pointman to quit, Feb. 18, 2010.

[48] Andrew C. Revkin, New Warnings on Climate Change, N.Y. Times, Jan. 20, 2007; Angela Charlton, World Scientists Meet on Global Warming, Forbes, Jan. 29, 2007; James Kanter & Andrew C. Revkin, Scientists Gather to Finalize Climate Report, N.Y. Times, Jan. 29, 2007; James Kanter & Andrew C. Revkin, World Scientists Near Consensus on Warming [], N.Y. Times, Jan. 30, 2007, A13.

[49] David Adam, U.S. answer to global warming: smoke and giant space mirrors, The Guardian, Jan. 27, 2007.

[50] Alister Doyle, Tropical Losers, Northern Winners from Warming?, Scientific American.com, April 2, 2007; Andrew C. Revkin, Poorest Nations Will Bear Brunt as World Warms, N.Y. Times, April 1, 2007, at §1, p.1; Richard A. Kerr, Worse to Come From Global Warming, ScienceNOW Daily News, April 6, 2007.

[51] Billions face climate change risk, BBC News, April 6, 2007.

[52] Climate change ‘can be tackled’, BBC News, May 4, 2007.

[53] I Public Papers of the President: William J. Clinton, Remarks on Earth Day, April 21, 1993, at 468, 470 (1993).

[54] Amy Royden, Rio’s Decade: Reassessing the 1992 Earth Summit: Reassessing the 1992 Climate Change Agreement: U.S. Climate Change Policy Under President Clinton: A Look Back, 32 Golden Gate U.L. Rev. 415, 420-21 (Spring, 2002).

[55] Jerry Gray, The Budget Truce: The Details, N.Y. Times, April 26, 1996, A22.

[56] Veronique Bugnion & David M. Reiner, A Game of Climate Chicken: Can EPA Regulate Greenhouse Gases Before the U.S. Senate Ratifies the Kyoto Protocol?, 30 Envtl. L. 491, 497 (2000).

[57] Grubb, The Economics of the Kyoto Protocol at 64.

[58] Conditions Regarding U.N. Framework Convention on Climate Change: Hearing Before the Subcomm. on International Economic Policy, Export and Trade Promotion of the Senate Foreign Relations Committee, 105th Cong. (June 19 & 26, 1997).

[59] S. Res. 98 at 3, 105th Cong. (1997). The UNFCCC, which the U.S. signed and ratified, had specifically stated that “the developed country Parties should take the lead in combating climate change and the adverse effects thereof.” UNFCCC, art. 3 (1) at 4, 31 I.L.M. at 854.

[60] 144 Cong. Rec. S194-98 (Jan. 29, 1998) (statement of Sen. Byrd).

[61] II Public Papers of the President: William J. Clinton, Remarks at the National Geographic Society, Oct. 22, 1997, 1408, 1409-10 (1997).

[62] Grubb, The Economics of the Kyoto Protocolat 63.

[63] Implications of the Kyoto Protocol on Climate Change: Hearing Before the S. Comm. on Foreign Relations, S. Hrg. 105-457, at 2 (1998).

[64] “At the last moment, a final deal was struck when the United States agreed to commit to a 7% reduction below 1990 emission levels in turn for acceptance of much of its position on ‘flexibility mechanisms,’ particularly those relating to trading.” Donald A. Brown, Climate Change, in Stumbling Toward Sustainability 290 (Washington, D.C.: ELI, 2002). The Europeans agreed to reduce their emissions by 8% and the Japanese by 6%. See Kyoto Protocol, Annex B, 37 I.L.M. at 43 (1998). See also Patricia Thompson, The Third Conference of the Parties to the United Nations Framework Convention on Climate Change: The December 1997 Kyoto Protocol, 9 Colo. J. Int’l Envtl. L. & Pol’y, 1997 Yearbook 219, 221 (1998).

[65] See 144 Cong. Rec. S196 (Jan. 29, 1998) (statement of Sen. Byrd).

[66] Greg Sargent, Bush Threatens U.N. Over Clinton Climate Speech, New York Magazine, Dec. 9, 2005.

[67] Clinton Damns Bush Climate Policy, BBC News, Dec. 10, 2005.

[68] Steve Hymon, Clinton Unveils Global Warming Initiative; At UCLA, he outlines an approach for cities to reduce greenhouse gases over the next 10 years, L.A. Times, Aug. 2, 2006, B3; Press Release: President Clinton Launches Clinton Climate Initiative, Aug. 1, 2006; World Cities Partner with Clinton Climate Initiative To Combat Climate ChangeOn Dec. 4, 2006, Tokyo joined the Large Cities Climate Leadership Group.

[69] William Booth, Al Gore, Sundance’s Leading Man: ‘An Inconvenient Truth’ Documents His Efforts To Raise Alarm on Effects of Global Warming, Wash. Post, Jan. 26, 2006, A01. The official movie site is at Climate Crisis; Convenient truth: Gore ‘thrilled’ by nomination, Ex-VP’s film ‘An Inconvenient Truth’ gets nods for best documentary, song [link broken cannot find], AP, Jan. 23, 2007; David M. Halbfinger & Sharon Waxman, ‘The Departed’ Wins Best Picture, Scorsese Best Director, N.Y. Times, Feb. 26, 2007, E1.

[70] Letter to Members of the Senate on the Kyoto Protocol on Climate Change, Mar. 13, 2001, 37(11) Weekly Comp. of Presidential Documents 444 (Mar. 19, 2001). The President also retracted support for mandatory CO2 emissions reductions, claiming CO2 was not a “pollutant” under the CAA. Id.

[71] Clear Skies Acts of 2002, H.R. 5266 and S. 2815, 107th Cong. (2002); Clear Skies Acts of 2003, S. 1844, S. 485, and H.R. 999, 108th Cong (2003); and the Clear Skies Act of 2005, S. 131, 109th Cong. (2005). See also Remarks on Energy Independence, Feb. 6, 2003, 39 Weekly Compilation of Presidential Documents 161 (Feb. 10, 2003).

[72] Environment and Public Health Restoration Act of 2006, H.R. 5235, 109th Cong. § 2(b)(3)(A) (as introduced, April 27, 2006).

[73] Inhofe’s statement, Science of Climate Change, begins at 149 (113) Cong. Rec. S10012 (July 28, 2003).

[74] McCain on the Issues: A look at John McCain’s environmental platform and record, GRIST, Aug. 22, 2008.

[75] “Intensity” is the amount of GHG emitted per unit of economic activity. The president’s remarks are in I Public Papers of the Presidents 226, 228 (Feb. 14, 2002).

[76] Id. at 230.

[77] Bush Administration Refuses To Issue National Assessment of Climate Change Impacts on the U.S.: Still No Sign of Critical Report Due in 2004; Bush Administration Suppressed Global Warming Report, Conservation Groups File Suit, Nov. 14, 2006.

[78] Frances Beinecke, Climate Change Is a Scientific Reality, Not a Political Debate,Switchboard, Mar. 17, 2010.

[79] A former associate with the U.S. Climate Change Science Program, Rick Piltz, called the suppression of the 2000 assessment and the refusal to produce the 2004 update “the central climate science scandal of the Bush administration.” FOE, Bush Administration Suppressed Global Warming Report, Conservation Groups File Suit, Oct. 30, 2008.

[80] Of these 6 members of the APP, all signed and ratified the UNFCCC; Australia, Japan, and the U.S. are Annex IParties. Australia and the U.S. signed but did not ratify the Kyoto Protocol; China signed and approved the Protocol; India acceded to it; Japan signed and accepted it; and Korea signed and ratified it. India and China are not required to reduce carbon emissions under the present agreement.

[81] Asia-Pacific Partnership Plans 100 Projects Aimed at Cutting Greenhouse Gas Emissions, 37 (43) Environment Reporter 2233 (Nov. 3, 2006). For a contrarian view of the Asia-Pacific Partnership, see Amanda Griscom Little, New Asia-Pacific Climate Pact is Long on PR, Short on Substance, Grist, Aug. 4, 2005.

[82] Deborah Zabarenko, U.S. scientists, evangelicals join global warming fight, Reuters, Jan. 17, 2007.

[83] Religious Leaders Urge Action on Warming, Reuters, May 21, 2007.

[84] Eric J. Lyman, International Issues: Pope Calls for Comprehensive Accord to Address Climate Change Issues This Year, WCCR (Jan. 13, 2010).

[85] Leslie Kaufman, Darwin Foes Add Warming to Targets, N.Y. Times, Mar. 3, 2010.

[86] Samantha Thompson, Christian Coalition backs Sen. Graham on climate legislation is actual title and by Samantha McCann, GRIST, Mar. 17, 2010.

[87] Nick Miles, U.S. Democrats Mull Climate Change, BBC News, Dec. 2, 2006.

[88] Andrew Edgecliffe-Johnson, Blair Optimistic Over Climate Change Deal, [link broken] Financial Times, Jan. 27, 2007; Blair sees hope of climate deal, BBC News, Jan. 27, 2007.

[89] The text of S. 183 is at 153 Cong. Rec. S169 (Jan. 4, 2007).

[90] Id. at S168-69.

[91] Richard Simon, Senate panel OKs bill to boost fuel efficiency standard: High gas prices and global warming push members to approve MPG boost from 25 to 35 by 2020, [link broken]L.A. Times, May 9, 2007.

[92] Id.

[93] Edmund L. Andrews, Auto Chiefs Make Headway Against a Mileage Increase, N.Y. Times, June 7, 2007.

[94] Roland Jones, U.S. ‘stuck in reverse’ on fuel economy: Only two super-efficient cars available, down from five, study shows, msnbc, Feb. 28, 2007;.

[95] Susan Jones, Democrats Push Bill to ‘Stop Global Warming,’ CNSNews.com, July 26, 2006; Stokstad, Environmentalists See a Greener Congress, 314 Science 1061 (Nov. 17, 2006).

[96] Press Release: Pelosi Announces the Creation of Select Committee on Energy Independence and Global Warming, Jan. 18, 2007.

[97] See NOAA Reports 2006 Warmest Year on Record for U.S.: General Warming Trend, El Niño Contribute to Milder Winter Temps; Andrew C. Revkin, Agency Affirms Human Influence on Climate, N.Y. Times, Jan. 10, 2007, A16; Marc Kaufman, Climate Experts Worry as 2006 Is Hottest Year on Record in U.S., Wash. Post, Jan. 10, 2007, A01.

[98] Edmund L. Andrews, Lease Chief Was Aware of Oil Error, Report Asserts, N.Y. Times, Jan. 17, 2007, C1.

[99] Amanda Griscom Little, Energizer Money: Enviros Delighted with House Democrats’ Energy Bill, Grist, Jan. 17, 2007.

[100] Exec. Order 13423 of Jan. 24, 2007, 72 Fed. Reg. 3919 (Jan. 26, 2007).

[101] H. Josef Hebert, Utility Chiefs Wary of Emission Limits USA Today, Mar. 21, 2007.

[102] Mark Leibovich & Patrick Healy, Star in New Role, Gore Revisits Old Stage, N.Y. Times, Mar. 21, 2007, at A1, at: & Richard Simon, Capitol Hill warms up to Gore [not the title and it is from NY Times] N.Y. TIMES, Mar. 21, 2007.

[103] EO 13432 was published at 72 (94) Fed. Reg. 27715 (May 16, 2007); Steven Mufson & Michael A. Fletcher, Bush Calls For Cuts In Vehicle Emissions: Agencies Ordered To Draft New Rules, Wash. Post, May 15, 2007, D01; John Donnelly, Bush calls for rules to reduce emissions: In reversal, orders EPA to target climate change, Boston Globe, May 15, 2007.

[104] Steven Mufson, Democrats Push Coal-to-Liquids Energy Plan, Wash. Post, June 13, 2007, D01; Edmund L. Andrews, Democrats Propose Loan Plan for Coal Plants, N.Y. Times, June 13, 2007.

[105] Erika Bolstad, Senators launch new effort to open ANWR to drilling, Anchorage Daily News, Mar. 13, 2008, at:

[106] Juliet Eilperin, EPA Moves to Ease Air Rules for Parks: Regional Administrators Decry Decision, Wash. Post, Nov. 19, 2008.

[107] See Atmosphere of Pressure; Peter N. Spotts, Has the White House Interfered on Global Warming Reports?, Christian Science Monitor, Jan. 31, 2007; Zachary Coile, House, Senate Target Climate Change; White House Efforts To Alter Scientific Reports Draw Rebuke, S.F. Chronicle, Jan. 31, 2007.

[108] Andrew C. Revkin & Matthew L. Wald, Material Shows Weakening of Climate Change Reports, N.Y. Times, Mar. 20, 2007, A16; Thomas L. Friedman, Editorial Desk: How Many Scientists?, N.Y. Times, Mar. 28, 2007, A19.

[109] Matthew Daly, Dems Slam Interior Over Science Meddling , USA TODAY , May 9, 2007.

[110] A Science Adviser Unmuzzled: Q&A: NASA’s chief climate scientist, who charged that his views on global warming were being squelched, says we’re getting close to a tipping point, Time Mag., April 3, 2006; Too Hot To Handle; Recent Efforts To Censor Jim Hansen, NASA’s Top Climate Scientist, Are Only the Latest. As His Message Grows More Urgent, We Ignore Him At Our Peril, Boston Globe (Feb. 5, 2006), E1; Andrew C. Revkin, Climate Expert Says NASA Tried To Silence Him, N.Y. Times, Jan. 29, 2006, §1, 1; Antonio Regalado & Jim Carlton, Agency Retreats From Discounting Global Warming – Hurricane Dispute Becomes Flashpoint as Scientists Decry White House Policies, Wall St. Journal, Feb. 16, 2006, at A4. But see State of the Art: Censoring Scientists?: Lessons of the James Hansen Affair, 12 New Atlantis 109 (Spring, 2006).

[111] Brett Zongker, Smithsonian accused of altering exhibit, Wash. Post, May 21, 2007.

[112] Eli Kintisch, CDC Director’s Message on Risk Runs Afoul of White House Edits, 318 Science 726 (Nov. 2, 2007).

[113] H. Josef Hebert, Climate Science Manipulation Alleged, AP, Dec. 10, 2007.

[114] Klaus Marre, Waxman: White House censored climate scientists, The Hill, Dec. 10, 2007.

[115] Felicity Barringer, Whale Protection Caught in Agency Rivalry, Files Show, N.Y. Times, May 1, 2008, & Juliet Eilperin, White House Blocked Rule Issued to Shield Whales, Wash. Post, May 1, 2008, A03.

[116] Waxman: White House Involved in California Waiver Denial, May 19, 2008.

[117] Kate Sheppard, Bush, whacked: EPW approves legislation calling on Bush to overturn EPA decision he likely forced EPA to make, GRIST, May 21, 2008.

[118] Juliet Eilperin, Interior Reviewed Studies Weighing Risks to Polar Bear, Wash. Post, April 15, 2007, A06.

[119] Conservation Groups Advance Protections For Polar Bear from Global Warming, Press Release from CBD, Dec. 27, 2006; the proposed rule is at: 72 Fed. Reg. 1064 (Jan. 9, 2007).

[120] Flock of Siegel: Kassie Siegel of the Center for Biological Diversity answers questions, Grist, Jan. 15, 2007.

[121] Dan Joling, Groups Sue to Protect Marine Mammals, Napa Valley Register, Feb. 16, 2007; Suit Filed to Protect Polar Bears and Walrus From Oil Exploration and Global Warming, Center for Biological Diversity, Feb. 13, 2007. See also 50 C.F.R. 18.121-18.129 (Aug. 2, 2006). Authority for the regulations is the Marine Mammal Protection Act of 1972, 16 U.S.C. §§ 1361 et. seq.

[122] John H. Broder & Andrew C. Revkin, Warming May Wipe Out Most Polar Bears, Study Says, N.Y. Times, Sept. 8, 2007, A11.

[123] Dan Joling, Decision on Listing Polar Bear Postponed, USA Today, Jan. 7, 2008; Editorial, Regulatory Games and the Polar Bear, N.Y. Times, Jan. 15, 2008.

[124] See H.R. 5058; Amena H. Saiyid, Markey Bill Would Force Interior to Protect Polar Bears From Oil Drilling in Chukchi Sea, 12 BNA Daily Environment Reporter A-1 (Jan. 18, 2008).

[125] Press Release, Environmental Groups Sue Bush Administration to Force Polar Bear Protection: Faced with Overwhelming Scientific Evidence, Government Continues Delay on Endangered Species Act Listing Due to Global Warming, Mar. 10, 2008.

[126] EPA: Control of Emissions From New Highway Vehicles and Engines: Notice of denial of petition for rulemaking, 68 Fed. Reg. 52922, 52931, Sept. 8, 2003.

[127] States challenging the Bush administration’s GHG policy were: California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington; cities were: New York, Washington and Baltimore.

[128] Dean Scott, Climate Change: Focus on Standing Leads Observers to Ask If Justices Will Address Merits of EPA Case, 37 (47) BNA Environment Reporter 2430 (Dec. 1, 2006); Nina Totenberg, High Court to Hear Greenhouse-Gas Case, NPR, Nov. 29, 2006.

[129] “The Democrats should use their newly won congressional majorities to pass such legislation, and President Bush, following Nixon’s example, should sign it.” Elizabeth Kolbert, Comment: Hot and Cold, New Yorker, Dec. 11, 2006, 37, 38.

[130] Felicity Barringer & William Yardley, Bush Splits With Congress and States on Emissions, N.Y. Times, April 4, 2007.

[131] David Schoenbrod, What Next on Global Warming?, Wall St. Journal, 2014.

[132] Felicity Barringer, Ruling Undermines Lawsuits Opposing Emissions Controls, N.Y. Times, April 3, 2007, at A5.

[133] H. Josef Hebert, EPA Won’t Specify Global Warming Plans, Houston Chronicle, April 24, 2007. Now, there is a new vow by Obama to eliminate Carbon emissions. See Obama Unveils Plans to Cut Carbon Emissions from Power Plants by 30%.

[134] Press Release, Gov. Schwarzenegger Warns U.S. EPA of California’s Intent to Sue if Federal Government Fails to Act on Waiver to Reduce Emissions.

[135] EPA, NHTSA Heads and California, Massachusetts Attorneys General to Appear Before Select Committee; Hearing To Examine Bush Administration’s Response to Mass. v. EPA, June 6, 2007; Frank Davies, EPA chief puts off emissions issue until 2008, Contra Costa Times, June 9, 2007. See also for more recent developments: Robert Meltz, Federal Agency Actions Following the Supreme Court’s Climate Change Decision in Massachusetts v. EPA: A Chronology (CRS Report 2014).

[136] Richard Simon, EPA is getting heat over California’s tailpipe law, L.A. Times, July 27, 2007, at A 17.

[137] Dean Scott, Boxer Bill Would Set New Deadline for EPA To Decide California Vehicle Emissions Rules, 38 (29) BNA Environment Reporter 1562 (July 20, 2007); see S. 1785; Matthew Hay Brown, EPA gets push on emissions controls: Congressional backers of laws in Md., 11 states try to force agency to act, Baltimore Sun, Aug. 13, 2007.

[138] James E. McCarthy, California’s Waiver Request to Control Greenhouse Gases Under the Clean Air Act (CRS Report RL34099, Aug. 20, 2007).

[139] Frank D. Russo, Attorney General Brown and Governor Schwarzenegger to Sue Federal EPA Over Refusal to Allow California to Impose Greenhouse Gas Emission Limits on Vehicles: Waiver Denied to California and 16 Other States on Crucial Global Warming Initiative, California Progress Report, Dec. 19, 2007; EPA Denies California Vehicle GHG Waiver; State Will Sue to Overturn Decision, Green Car Congress, Dec. 19, 2007; John M. Broder & Felicity Barringer, E.P.A. Says 17 States Can’t Set Emission Rules, N.Y. Times, Dec. 20, 2007.

[140] Steven D. Cook, Waxman Opens Investigation Into EPA Denial Of California’s Greenhouse Gas Limit Waiver, 245 BNA Daily Environment Report A-8 (Dec. 21, 2007). See also Obama Might Actually Be the Environmental President, NY Mag. (5/2013).

[141] Senate EPW, Boxer Excoriates No-Show EPA at California Waiver Briefing, Jan. 10, 2008.

[142] Senate EPW, EPA Obstruction Continues: Agency Fails to Provide Documents on Waiver Denial, Jan. 11, 2008.

[143] Matthew L. Wald, E.P.A. Chief Defends His Decision on California, N.Y. Times, Jan. 25, 2008.

[144] Steven D. Cook, Massachusetts, 17 Other States Threaten To Sue if EPA Delays on Greenhouse Gases, 39 (4) BNA Environment Reporter 152 (Jan. 25, 2008).

[145] Reducing Global Warming Pollution from Vehicles Act of 2008, S. 2555, 110th Cong. 2d Sess., Jan. 24, 2008.

[146] Overruling EPA by Amending the Clean Air Act, Warming Law, Jan. 25, 2008.

[147] Marc Santora, Global Warming Starts To Divide G.O.P. Contenders, N.Y. Times, Oct. 17, 2007, A1.

[148] Matthew Mosk & Juliet Eilperin, Palin Not Convinced on Global Warming, The Trail, Aug. 29, 2008.

[149] “We will harness the sun and the winds and the soil to fuel our cars and run our factories.” Transcript, Barack Obama’s Inaugural Address, N.Y. Times, Jan. 20, 2009.

[150] “Starting in 2012, the budget proposes to invest $15 billion a year in clean energy….” AP, Obama 2010 budget highlights by agency,] S.F. Chronicle, Feb. 27, 2009; Leora Falk, Obama’s Call for Emissions Trading May Help Voluntary, Other Carbon Markets, Experts Say, BNA Int’l Environment Daily, Mar. 2, 2009.

[151] Pat Mitchell, Obama/Salazar Decision on Offshore Wind Hailed as “Biggest Federal Step Forward to Date for Clean Energy” in the U.S.: Administration’s Action Sets the Stage for Major Offshore Wind Projects Up and Down the East Coast, April 22, 2009.

[152] Agence France-Presse, pressure cooker: Obama urges climate action as Europe ups pressure on U.S., GRIST, Nov. 3, 2009; Deng Shasha, U.S., EU vow to promote comprehensive agreement on climate change, China View, Nov. 4, 2009.

[153] Key Features of the American Clean Energy and Security Act, posted: 21-May-2009; updated: 24-Jul-2009; The American Clean Energy Security Act: Summary of International Provisions.

[154] Grist has: How did your rep vote on the House climate and energy bill?, posted June 26th; see also Final Vote Results for Roll Call Vote 477.

[155] See the full text of H.R. 2454 placed on the Senate Calendar in July, 2009 (1428 pages). Grist has a special series, Counting Senate votes on climate and energy.

[156] David Stout, Administration Steps Up Efforts on Climate Bill, N.Y. Times, Oct. 27, 2009; Senator Inhofe was called “the last flat-Earther” by Dana Milbank in A senator in a hostile climate, Wash. Post, Oct. 28, 2009.

[157] Tyler Falk, Seeking sustainability, finding skeptics at the American Farm Bureau meeting, GRIST, Jan. 11, 2010.

[158] Lisa Leher, GOP senators to boycott climate hearing GRIST, Nov. 2, 2009; David Roberts, The big stories out of Tuesday’s Senate hearing on Kerry-Boxer, GRIST, Oct. 27, 2009.

[159] Juliet Eilperin, Senate Democrats disregard GOP boycott to pass greenhouse gas emissions bill, , Wash. Post, Nov. 5, 2009.

[160] Agence France-Presse, U.S. Senate puts off action on climate bill until 2010, NY TIMES, Nov. 17, 2009. ]

[161] Suzanne Goldenberg, We had a contingency plan for Louisiana spill, and it’s working, BP chief tells angry senators: But all three oil firms try to blame each other’s errors; hearing acknowledges regulatory oversight failed, guardian.co.uk, May 11, 2010; John M. Broder, Senate Gets a Climate and Energy Bill, Modified by a Gulf Spill That Still Grows, N.Y. Times, May 12, 2010.

[162] Michael von Bülow, Merkel urges climate action in U.S. speech, Nov. 4, 2009.

[163] John M. Broder, Energy & Environment: E.P.A. Sets Carbon Crackdown, N.Y. Times, Dec. 4, 2009.

[164] White House Press Secretary, President Obama Announces a National Fuel Efficiency Policy, May 19, 2009.

[165] The proposed rule was published at 74 Fed. Reg. 49454 (Sept. 28, 2009).

[166] EPA News Release, DOT Secretary Ray LaHood and EPA Administrator Lisa P. Jackson Propose National Program to Improve Fuel Economy and Reduce Greenhouse Gases / New Interagency Program to Address Climate Change and Energy Security, Sept. 15, 2009.

[167] EPA rules rope in new CO2 limits, Marketplace, April 1, 2010.

[168] Steven D. Cook, Motor Vehicles: EPA Announces Final Standard to Limit Greenhouse Gas Emissions From Vehicles, BNA Int’l Environment Reporter (April 5, 2010); Jonathan Hiskes, April Fuel: Everything you need to know about Obama’s new fuel-economy rules, GRIST, April 2, 2010.

[169] First, Motor Vehicles. Next, Power Plants., Warming Law, April 1, 2010.

[170] Ken Thomas, US to implement new fuel efficiency rules, Chattanooga Times Free Press, April 1, 2010.

[171] The White House, Office of the Press Secretary, Remarks by The President on Energy Security at Andrews Air Force Base, Mar. 31, 2010.

[172] Dean Scott, Energy: Markey Says Mining Industry Should Stop Questioning Climate Science, Regulation; Industry Says EPA Acting Too Quickly, WCCR (April 14, 2010); Bruce Nilles, Coal-fired criticism and denial : Coal execs get slammed in House hearing, GRIST, April 14, 2010.

[173] Eli Kintisch, Stolen E-mails Turn Up Heat on Climate Change Rhetoric, 326 (5958) Science 1329 (Dec. 4, 2009).

[174] UN body want prove of climate e-mail row, BBC News, Dec. 4, 2009.

[175] Statement of the IPCC Chairman on the establishment of an independent committee to review IPCC Procedures, Feb. 27, 2010.

[176] Eli Kintisch, Review of Climate Panel Aims for Summer Release, Science Insider, Mar. 10, 2010.

[177] Roger Harrabin, Climate science must be more open, say MPs, BBC News, Mar. 31, 2010.

[178] David Roberts, Hanging EPA regulations around Democrats’ necks, GRIST, Jan. 20, 2010.

[179] Press Release: Sen. Murkowski Offers Disapproval Resolution to Block EPA Endangerment of Economy: Legislative Veto of Agency Rule will Take Worst Option for Reducing Emissions off Table, Jan. 21, 2010.

[180] Darren Goode, ENERGY: House GOP Planning Emissions Resolution, Mar. 1, 2010.

[181] Jenna Greene, Car Emissions Rules Likely to Trigger Litigation, National Law Journal, April 2, 2010.

[182] Steven D. Cook, Virginia: Virginia Attorney General to Challenge EPA Over Vehicle Greenhouse Emissions Limits, BNA State Environment Daily (April 5, 2010); Cuccinelli’s Climate Denial Lawsuits Could Junk Auto Industry’s Recovery, ThinkProgress, April 7, 2010.

[183] John M. Broder & Clifford Krauss, Risk Is Clear in Drilling; Payoff Isn’t, N.Y. Times, Mar. 31, 2010.

[184] John M. Broder, Obama to Open Offshore Areas to Oil Drilling for First Time, N.Y. Times, Mar. 31, 2010.

[185] See Waiver of Federal Preemption: California Low-Emission Vehicle Standards, 58 Fed. Reg. 4166 (1993).

[186] In 1963, the California New Motor Vehicle Pollution Control Board adopted the nation’s first motor vehicle emission standard. See Proposed Action on Regulations, Notice of Public Hearing to Consider Adoption of Regulations to Control Greenhouse Gas Emissions from Motor Vehicles, 2004 Reg. LEXIS 36545 (Aug. 6, 2004). The CAA prohibits states from adopting vehicle emissions standards at CAA § 209 (a), codified at 42 U.S.C. 7543 (a); it allows California to issue such standards if it receives an EPA waiver. See CAA § 209 (b), codified at 42 U.S.C. 7543 (b).

[187] Marc Lifsher, Global Warming Plan Could Be Costly; Businesses can expect to make major changes and consumers may face higher bills, experts say, L.A. Times, Sep 1, 2006, at C.1.

[188] The California LEV II regulations are in 13 Code of Cal. Regs. § 1961. EPA’s waiver was granted at 68 Fed. Reg. 19811 (April 22, 2003).

[189] AB 1493 – Pavley Briefing Package: Global Warming and Greenhouse Gas Emissions from Motor Vehicles was codified at Cal. Health & Safety § 43018.5 (West 2006).

[190] AB 1493 was signed by Democratic Governor Gray Davis, but was supported by Governor Arnold Schwarzenegger, a Republican; Danny Hakim, Automakers Sue to Block Emissions Law In California, N.Y. Times, Dec. 8, 2004, at C1.

[191] See 13 Cal. Code Regs. § 1961.1.

[192] See Id., § 1961.1 (e)(4).

[193] Request for Waiver of Preemption Under Clean Air Act Section 209(b), Letter from Catherine Witherspoon, California Air Resources Board, to Stephen L. Johnson, Administrator, U.S. EPA, Dec. 21, 2005.

[194] Approval and Promulgation of Implementation Plans; New Jersey; Low Emission Vehicle Program, 72 Fed. Reg. 13228 (Mar. 21, 2007). (“On December 21, 2005, California requested that EPA grant a waiver of preemption under CAA section 209(b) for its greenhouse gas emission regulations. As of the date of this Notice, EPA has not taken action on California’s request.”)

[195] Marc Lifsher & Jordan Rau, State on Verge of Greenhouse Gas Restrictions; The Senate votes to slash emissions 25%, the first such action in the nation, L.A. Times, Aug. 31, 2006, at A1.

[196] Fact Sheet, SB 107 (Simitian/Perata): California Renewable Electricity Standard.

[197] Paul Rogers, Renewable Energy Bill Becomes Law: State Utilities’ Goal Is 20 Percent By 2010,San Jose Mercury News, Sept. 27, 2006, at 3B.

[198] XIV (28) State Net Capitol Journal (Oct. 2, 2006).

[199] Click for the complaint in California v. General Motors.

[200] Karen Gullo & Alan Ohnsman, California Sues GM, Ford, Toyota Over Global Warming, Bloomberg.com, Sept. 20, 2006; Nigel Williams, Climate-Change Battle Heats Up, 16 (20) Current Biology R857 (Oct. 24, 2006); Marc Lifsher, California Sues Over Vehicle Emissions; The state wants carmakers to pay for damage caused by greenhouse gases, L.A. Times, Sept. 21, 2006, at C1.

[201] “Arnold Schwarzenegger won re-election as California governor in a landslide last month [Nov. 2006] after distancing himself from President George W. Bush, a fellow Republican, and championing measures to cut the state’s greenhouse gas emissions.” Erik Kirschbaum, Climate Change Catching Voter Attention Around World, Dec. 13, 2006, Reuters.

[202] AP, UK, Calif. to Strike Global Warming Deal, USA Today, Aug. 1, 2006.

[203] Deborah Schoch & Janet Wilson, Governor, Blair Reach Environmental Accord; Schwarzenegger, saying the state `will not wait’ for federal government to act on global warming, signs pact with Britain’s prime minister,

L.A. Times, Aug. 1, 2006, at B3; Office of the Governor, Press Release: Gov. Schwarzenegger, British Prime Minister Tony Blair Sign Historic Agreement to Collaborate on Climate Change, Clean Energy, July 31, 2006. [Jerry Brown took over as CA governor in Jan. 2011; documents from the former administration are unavailable online since that date.]

[204] David Crane & Brian Prusnek, White Paper: The Role of a Low Carbon Fuel Standard in Reducing Greenhouse Gas Emissions and Protecting Our Economy, Jan. 8, 2007.

[205] Press Release: Gov. Schwarzennegger Issus Directive to Establish World’s First Low Carbon Standard for Transportation Fuels: World’s first Greenhouse Gas Standard for transportation fuels will spark research in alternatives to oil, boost clean technology industry in California and reduce greenhouse gas emissions, Office of the Governor, Jan. 9, 2007; Press Release: Governor Schwarzenegger Tackles California’s Challenges, Asks Legislature to Work Together Toward Bipartisan Solutions, Jan. 9, 2007; Greg Lucas, STATE OF THE STATE: Bold move on global warming, S.F. Chronicle, Jan. 10, 2007; Jennifer Steinhauer & Felicity Barringer, Schwarzenegger Orders Cuts in Emissions, N.Y. Times, Jan. 10, 2007, A20.

[206] The text of the EO and a press release entitled Gov. Schwarzenegger Signs Executive Order Establishing World’s First Low Carbon Standard for Transportation Fuels, are no longer available online after Jan. 2011.

[207] Cary Lowe, California steamin’; Sooner than you think, global warming is going to alter how and where we build and live, L.A. Times, June 10, 2007, at M7.

[208] Juliet Eilperin, A Surprise Video Message: Obama Addresses Climate Summit, Wash. Post, Nov. 19, 2008, A03.

[209] Press Release, 26 Global Leaders Sign Agreement to Partner on Climate Action: Declaration Will Inform and Advance Negotiations for Next Global Agreement on Climate Change, Nov. 19, 2008 [unavailable online after Jan. 2011].

[210] Jennifer Steinhauer, As States Innovate on Issues, Schwarzenegger Blurs Lines, N.Y. Times, Jan. 12, 2007; David Roberts, An interview with California environmental adviser Terry Tamminen, Grist, Jan. 5, 2007.

[211] 406 F. Supp. 2d 265 (S.D.N.Y. 2005); Matthew F. Pawa & Benjamin A. Krass, Global Warming as a Public Nuisance: Connecticut v. American Electric Power, 16 Fordham Environmental Law Review 407, 435 (2005).

[212] 406 F. Supp.2d 265, 274 (S.D.N.Y. 2005).

[213] 71 Fed. Reg. 17656, n.175 (April 6, 2006).

[214] Committee on State Practices in Setting Mobile Source Emissions Standards, National Research Council, State and Federal Standards for Mobile Source Emissions (2006), at 222; see Oregon’s New Oregon Low Emission Vehicle Regulation. Oregon’s regulation is Oregon Administrative Rules 340-257-0100 (2006), Fleet Average Greenhouse Gas Exhaust Emission Requirements, Reporting and Compliance.

[215] Felicity Barringer, The Court and Climate Change: News Analysis; Ruling Undermines Lawsuits Opposing Emissions Controls, N.Y. Times, April 3, 2007, at A5.

[216] The final rule (157 pages) setting the CAFE standards is at 71 Fed. Reg. 17566 (April 6, 2006). The case consolidated 6 cases filed in the 9th and 2nd Circuits.

[217] Kassie R. Siegel, California Challenges Bush Administration Low Gas Mileage Standards: Huge Impact on Global Warming Riding on Court Hearing Monday, California Progress Report, May 13, 2007.

[218] CBD, Ninth Circuit Court of Appeals to Decide Major Global Warming Lawsuit, May 14, 2007.

[219] Press Release: Dozens of States Join The Climate Registry To Track Greenhouse Gas Emissions, May 8, 2007.

[220] Dean Scott, Shell Oil, Duke Energy to Report Emissions Under Voluntary Climate Registry Initiative, 10 BNA Daily Environment Report A-1 (Jan. 16, 2008).

[221] Press Release, All Canadian provinces and territories now participating in leading North American greenhouse gas registry; Nunavut joins The Climate Registry’s Board of Directors, signaling support for consistent GHG reporting standards across North America, Sept. 24, 2009. However, in Jan. 2011 it would appear Nunavut is no longer a member.

[222] See the West Coast Public Utility Commissions’ Joint Action Framework on Climate Change.

[223] David Klepper, Western Kansas coal plant denied, Kansas City Star, Oct. 18, 2007.

[224] The Midwestern Greenhouse Gas Reduction Accord Advisory Group finalized their recommendations in 2008.

[225] Thomas J. Lueck, Bloomberg Draws a Blueprint for a Greener City, N.Y. Times, April 23, 2007. PlaNYC’s home page has links to NYC’s emissions inventories, 2007-2010, as of Jan. 2011.

[226] NY yellow taxicabs ‘to go green’, BBC News, May 22, 2007.

[227] New York Governor Eliot Spitzer resigns, leaving behind eco-legacy, GRIST, Mar. 12, 2008.

[228] Andrew Strickler, Paterson backs divisive congestion pricing plan, Newsday.com, Mar. 22, 2008.

[229] Nicholas Confessore, $8 Traffic Fee for Manhattan Gets Nowhere, N.Y. Times, April 8, 2008, at A1.

[230] Tom Fredrickson, Spitzer Outlines Aggressive Energy Plan, Crain’s New York Business, April 19, 2007.

[231] California May Join Emission Alliance; Under the plan to cut greenhouse gases, power plants can trade credits with Northeast facilities, L.A. Times, Oct. 17, 2006, at C3; Office of the Governor, Press Release: California, New York Agree to Explore Linking Greenhouse Gas Emission Credit Trading Markets; Gov. Schwarzenegger Tours Carbon Trading Floor, Oct. 16, 2006 (Gov. Schwarzenegger said: “I recently signed legislation giving California the most ambitious greenhouse gas reduction goal in the country. … So I am happy to announce today that … we will form a greenhouse gas trading partnership with RGGI, the multi-state greenhouse gas cooperative spearheaded by Gov. Pataki.” Id.)

[232] Scott Allen, Mass. power plants to pay emissions penalties: State rejoins a Northeast greenhouse gas initiative, Boston Globe, Jan. 19, 2007.

[233] Hannah Fairfield, When Carbon is Currency, N.Y. Times, May 6, 2007.

[234] Legal challenge unlikely to halt RGGI, Carbon Finance, Feb. 4, 2009.

[235] Dan Hendrick, Another Successful RGGI Auction, But Funds Still In Limbo, Eco Politics Daily, June 25, 2009.

[236] New York v. Abraham, 199 F. Supp. 2d 145 (S.D.N.Y. 2002), aff’med by 355 F.3d 179 (2d Cir. 2004).

[237] Energy Policy and Conservation Act of 1975, Pub. L. No. 94-163, 89 Stat. 871, as amended by the National Appliance Energy Conservation Act of 1987, Pub. L. No. 100-12, 101 Stat. 103, codified at 42 U.S.C. § 6201, et seq.

[238] NRDC Press Release, Energy Department Agrees to Accelerate Introduction of New, Improved Energy Savings Standards, Nov. 13, 2006; Editorial: Signs of Energy, N.Y. Times, Dec. 5, 2006.

[239] Every state but South Dakota has a city involved in the program. Lisa Stiffler, Cities’ vows to cut gas emissions questioned, Seattle Post-Intelligencer, Jan. 10, 2007.

[240] Amanda Little, An interview with Seattle Mayor Greg Nickels on his pro-Kyoto cities initiative, Grist, June 15, 2005.

[241] Testimony of Al Gore before the House Energy & Commerce Committee, Energy & Air Quality Subcommittee, Mar. 21, 2007.

[242] Rob Davis, How Cities’ Climate-Change Promise Became an Afterthought, Voice of San Diego, Jan. 10, 2008.

[243] West Coast Governors’ Global Warming Initiative, Staff Recommendations to the Governors, Nov. 2004. See page 4 for the chart of Largest Global Carbon Emitters.

[244] The states are: Alaska, Arizona, Colorado, Hawaii, Kansas, Nebraska, New Mexico, Oregon, Texas, Washington, California, Idaho, Montana, Nevada, North Dakota, Oklahoma, South Dakota, Utah, and Wyoming. The islands are the Northern Mariana Islands, American Samoa, and Guam.

[245] Dustin Bleizeffer, Western states develop energy, ask for help, Casper StarTribune.net, June 11, 2007, & Glen Warchol, Gov’s call for clean coal funding backed by his Western peers, Salt Lake Tribune, June 11, 2007, at 1.

[246] Five Western Governors Announce Regional Greenhouse Gas Reduction Agreement; Lisa Stiffler, Gregoire joins the West’s war on warming: 5 governors target pollution, Seattle Post-Intelligencer, Feb. 27, 2007.

[247] The B.C. Government’s News has more information; Carolyn Whetzel, British Columbia Joins Regional Initiative To Curb Greenhouse Gas Emissions, BNA Int’l Environment Daily, April 27, 2007.

[248] Update on California Auto Emissions Standards: Auto Industry Drops Some of Its Preemption Lawsuits. (Oh, and California Finally Gets Its Waiver), Warming Law, July 6, 2009.

[249] Green Mountain Chrysler Plymouth Dodge Jeep v. Dalmasse, Nos. 2:05-CV-302, 2:05-CV-304, 36 ELR 20243 (D. Vt. Nov. 30, 2006) (Sessions, C.J.). The EPCA is codified at 42 U.S.C. § 6291 et seq.

[250] Tony Perriello, Automakers Claim Federal Preemption Of State Law as Emissions Trial Opens, 38 (15) BNA Environment Reporter 889 (April 13, 2007); Clean Cars Campaign has more information and relevant court documents.

[251] Candace Page, All eyes on Vermont as auto-emissions case procedes [sic], Burlington Free Press, April 8, 2007.

[252] Slip opinion, Mass. v. EPA.

[253] Breanne Ardila, Green Mountain: A “Fleeting” Win for the States, 15 Mo. Envtl. L. & Pol’y Rev. 575 (summer 2008).

[254] Automakers Move to Dismiss California Preemption Lawsuit. Finally, Warming Law, April 7, 2010.

[255] One, Two, Three Strikes, You’re Out, Warming Law, Nov. 25, 2008.

[256] Automakers Move to Dismiss California Preemption Lawsuit. Finally., Warming Law, April 7, 2010; Steven D. Cook, Mobile Sources: Automobile Industry Drops Lawsuits Against States Adopting California Standards, 41 BNA Environment Reporter 778 (April 9, 2010).

[257] Update on California Auto Emissions Standards: Auto Industry Drops Some of Its Preemption Lawsuits. (Oh, and California Finally Gets Its Waiver), Warming Law, July 6, 2009.

[258] Matthew Mosk & Juliet Eilperin, Palin Not Convinced on Global Warming, The Trail, Aug. 29, 2009.

[259] Philip Rucker & Eli Saslow, Palin to Resign as Alaska Governor, Citing Probes, Family Needs, Wash. Post, July 4, 2009.

[260] Industry News: Big Stone II Coal Project Canceled, LCG Consulting, Nov. 4, 2009; Bruce Nilles & Mary Anne Hitt, Another coal plant bites the dust, GRIST, Nov. 6, 2009.

[261] Jim Marston, Marston: Texas Is on the Wrong Side of Global Warming, Austin American-Statesman, Aug. 22, 2006.

[262] That was Exec. Order RP49, Relating to an electric customer education choice campaign, electric conservation by state agencies, and diversity of energy supply, Oct. 27, 2005. The order reduces the approval process for a new power plant to 6 months. Environmental groups claim that it violates state law and the Texas Constitution.

[263] See Environmental Defense’s Texas Office.

[264] Environmental Defense, Inc. vs. Texas Commission on Environmental Quality, cause no. D-1-GN-06-003957.

[265] Kelley Shannon, Judge Blocks Perry’s Fast-Track Order Before Wednesday’s Hearing, Dallas Morning News, Feb. 21, 2007; Scott Streater, Judge Blocks Perry Order, Star-Telegram, Feb. 21, 2007.

[266] Jaime S. Jordan, Sierra Club Joins Coal Plant Lawsuit, Dallas Business Journal, Dec. 27, 2006; Aaron Brand, Groups sue over coal plant order: Texas environmental organizations say governor’s action illegal, unconstitutional, Texarkana Gazette, Jan. 21, 2007; petition in intervention filed by the Sierra Club, Dec. 27, 2006.

[267] Lisa Lee, Environmentalists Say 5 Banks Pass on TXU Project, Reuters, Dec. 29, 2006.

[268] Jessica Hall, TXU agrees to be acquired for $31.8 billion, Reuters, Feb. 26, 2007.

[269] Andrew Ross Sorkin, A Buyout Deal That Has Many Shades of Green, N.Y. Times, Feb. 26, 2007, at A1.

[270] Press release: Activists Urge Texas Court to Force State Air Agency to Regulate Global Warming Emissions, Public Citizen, Oct. 6, 2009; Call Me Mini-Mass v EPA: Texas Lawsuit Seeks to Compel State to Address CO2 Emissions, Warming Law, Oct. 14, 2009.

[271] Id., 2007 Index of Silicon Valley, at 14.

[272] Laurie J. Flynn, Silicon Valley Rebounds, Led by Green Technology, N.Y. Times, Jan. 29, 2007, at C8.

[273] Ronnie Kweller, Alliance Calls for Only Energy-Efficient Lighting in U.S. Market By 2016, Joins Coalition Dedicated to Achieving Goal, Mar. 14, 2007; Matthew L. Wald, A U.S. Alliance to Update the Light Bulb, N.Y. Times, Mar. 14, 2007.

[274] Todd Woody, Cleantech Open winners get it done quick and cheap, GRIST, Oct. 28, 2009.

[275] Laurie J. Flynn, Technology Group Seeks to Save Power, N.Y. Times, June 13, 2007; Mark Boslet, Google, Intel going green: Tech powers join push to save energy with more efficient computers, servers, San Jose Mercury News, June 13, 2007.

[276] Claudia H. Deutsch, For Fiji Water, a Big List of Green Goals, N.Y. Times, Nov. 7, 2007, at C3.

[277] Press Release,GE Announces Advancement in Incandescent Technology; New High-Efficiency Lamps Targeted for Market by 2010, Mar. 22, 2007.

[278] Edward Luce, US business lobbies for emissions cuts, Financial Times, Mar. 19, 2007 (free registration required).

[279] Ben Geman, Barrasso cites Madoff scandal in bid to block SEC on climate, The Hill, Feb. 24, 2010; Press Release: Barrasso Bill Blocks SEC Climate Change Regulations, Feb. 24, 2010.

[280] Felicity Barringer, A Coalition For Firm Limit On Emissions, N.Y. Times, Jan. 19, 2007, at C1; Amanda Little, Senate bills and corporate coalition push Washington toward climate action, Grist, Jan. 23, 2007.

[281] EDF, Blueprint Lays Out Clear Path for Climate Action, May 8, 2007.

[282] Felicity Barringer, A Coalition For Firm Limit On Emissions, N.Y. Times, Jan. 19, 2007, at C1.

[283] Duke CEO Urges Federal Emissions Legislation, Charlotte Business Journal, Jan. 22, 2007; Bush ‘must fight climate change’, BBC News, Jan. 23, 2007; Press Release, Major Businesses and Environmental Leaders Unite To Call for Swift Action on Global Climate Change, NRDC, Jan. 22, 2007.

[284] AP, Xerox announces gas emissions reductions saving the company millions, International Herald Tribune, Dec. 3, 2007.

[285] Richard Black, Carbon Emissions Show Sharp Rise, BBC News, Nov. 30. 2006.

[286] Pat Milton, Industry Leaders Fight Greenhouse Gases, Feb. 20, 2007, reprinted in ABC Money on Feb. 21st.

[287] Richard Black, Melting of Glaciers ‘Speeds Up’: Mountain glaciers are shrinking three times faster than they were in the 1980s, scientists have announced, BBC News, Jan. 29, 2007.

[288] Asia’s Greenhouse Gas ‘To Treble’: Asia’s greenhouse gas emissions will treble over the next 25 years, according to a report commissioned by the Asian Development Bank (ADB), BBC News, Dec. 14, 2006.

[289] 72 (51) Fed. Reg. 12590 (Mar. 16, 2007).

[290] Shaobing Peng, et al., Rice Yields Decline With Higher Night Temperature From Global Warming, 101 (27) Proceedings of the National Academy of Sciences 9971 (July 6, 2004).

[291] News release, EPA and DOE Announce First Public Meeting of Interagency Task Force on Carbon Capture and Storage, May 4, 2010.

[292] Edmund L. Andrews, Lawmakers Push for Big Subsidies for Coal Process, N.Y. Times, May 29, 2007.

[293] Peter Wallsten, Obama yields to a greener side: Under pressure from environmental groups, the Illinois Democrat hedges on his support of coal as an alternative fuel,L.A. Times, June 13, 2007.

[294] Robin McKie, How Africa’s desert sun can bring Europe power: A £5bn solar power plan, backed by a Jordanian prince, could provide the EU with a sixth of its electricity needs – and cut carbon emissions, The Observer, Dec. 2, 2007.

[295] Stephen Power, Baby Steps to Drive Auto Fuel Savings: Despite Washington’s New 35.5 MPG Standard, Low-Tech Changes Will Rule the Road in Near Term, Wall St. Journal, April 2, 2010.

[296] Seth Borenstein, Some Scientists Eye Odd Climate Fixes, Wash. Post, March 18, 2007.

[297] Press Release: Geoengineering Research Needed, Members Hear, Nov. 5, 2009; Lizzie Buchen, Geoengineering in the House, The Great Beyond, Nov. 06, 2009.

[298] MIT News Office, MIT-led panel backs ‘heat mining’ as key U.S. energy source, Jan. 22, 2007.

[299] Alister Doyle, Salt could shake up world energy supply, Reuters, Mar. 19, 2008.

[300] Energy Roadmap Backs Renewables: Half of the world’s energy needs in 2050 could be met by renewables and improved efficiency, a study claims, BBC News, Jan. 25, 2007.