An article I completed in December, 2009, Signing the New Social Contract: Energy Efficient Light Bulbs Won’t Cut it Anymore - Exploring the Path Toward Officially Combating Global Climate Change was partially the inspiration for this blog. I wanted to continue the conversation. And as with everything "climate change", it is out of date before it is printed. This post will serve as an update to that article. The article made a general argument about human consumption, American culture and the need for stepping stones on the path to necessary, binding climate legislation. I separated the article into three sections: Executive (EPA), Judicial (public nuisance cases) and Legislative (the cap and trade bill) and I'll do the same here, providing a brief update on each (this is best read and understood in conjunction with the article).
EPA:
Our friends at the EPA are moving cautiously to apply the Endangerment Finding. They are facing a great deal of push back from Congress. Alaska Sen. Lisa Murkowski (R) continues to rail against the EPA and West Virginia Sen. John Rockefeller (D) has issued a plan that would suspend EPA action in order to give Congress more time to act on the climate and energy bill. The EPA is still methodically moving forward while maintaining their desire for a more complete solution from Congress. EPA Administrator Jackson issued a letter last month responding to inquiries from Sen. Rockefeller and followed up at the beginning of the month by clarifying what the new regulations will look like pursuant to the Endangerment Finding: Admn. Jackson stated, "If you're smaller than 75,000 tons for the next two years, you would not need a permit," and said her comments applied to the years 2011-2012. Two-thirds of the stationary-source emissions are from sources emitting more than 100,000 tons per year, she said. The EPA says it intends to pursue regulation of smaller sources after 2016. The hope, however, is that legislation will be in place before then that will make these regulation irrelevant.
Public Nuisance Cases:
Connecticut v. American Electric Power: The Court of Appeals for the Second Circuit rejected on March 5 requests both for rehearing by the original panel and for en banc review by the entire panel of circuit judges. The Second Circuit’s rehearing denial in American Electric Power started running a 90-day clock within which the defendants may petition for review by the U.S. Supreme Court.
Native Village of Kivalina v. ExxonMobil Corporation: This case is currently being briefed in the Ninth Circuit. The Native Village is asking the court to overturn a dismissal at the district court level.
Comer v. Murphy Oil: The Fifth Circuit vacated its original decision and agreed to rehear that matter en banc. In the October 2009 Comer decision, the Fifth Circuit allowed a putative class of Gulf Coast residents and property owners to proceed with a suit against energy, fossil fuel, and chemical companies for Hurricane Katrina damage.
Cap and Trade?:
Cap and trade is dead. This is the greatest change since my article was written. A new plan is going to be introduced in April. That plan, still being written, will include a cap on greenhouse gas emissions only for utilities, at least at first, with other industries phased in perhaps years later. It is also said to include a modest tax on gasoline, diesel fuel and aviation fuel, accompanied by new incentives for oil and gas drilling, nuclear power plant construction, carbon capture and storage, and renewable energy sources like wind and solar. But perhaps like health reform, we must start small to get somewhere big. The environmental laws passed in the 70's were a shadow of what they have become and we can only hope that the same will be true if this new bill makes its way through.
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