Waxman, Markey Go After EPA's Supreme Court Avoidance

Posted by Warming Law Wed, 12 Mar 2008 21:30:00 GMT

Tomorrow morning, the House Select Committee on Global Warming and Energy Independence will be holding a hearing on the implications of Massachusetts v. EPA nearly one year later. Chairman Edward Markey (D-MA) plans to question EPA Administrator Stephen Johnson on why he’s delayedaction on the EPA’s remand (which might result in another lawsuit). Committee members will also hear from a panel that includes Kansas Secretary of Health and the Environment Roderick Bremby, who made national headlines this fall by utilizing his legal authority under state law to deny permits for two new coal-fired power plants—citing the growing scientific consensus surrounding warming-related impacts and the Court’s ruling in Mass v. EPA to justify his landmark decision. 

The hearing WILL NOT be broadcast online (though it is being videotaped), but Warming Law will be in attendance and might be able to liveblog the proceedings, and will report back later regardless. We’ll be particularly noting whether any members decide to take up the "common sense questions" proposed today as talking points by the Heritage Foundation, which hyperbolically warns that an endangerment finding for CO2 would require the EPA [to] completely de-industrialize the United States." Heritage and the Competitive Enterprise Institute—which has similarly argued that an EPA global warming program would amount to "policy terrorism"—have actively taken credit for Johnson’s recent decision to suddenly halt work on an endangerment finding.

Amidst such boasts of outside influence on EPA, Markey’s counterpart on the House Oversight and Government Reform Committee, the indomitable Rep. Henry Waxman (D-CA), has started investigating the White House’s apparent interference in short-circuiting an endangerment finding. In a letter sent to Johnson today, Waxman notes on-the-record conversations with senior EPA officials that—combined with Johnson’s public statements up through the last couple of weeks—depict a process that was suddenly halted as it neared completion:

Multiple senior EPA officials [cited directly in this letter] have told the Committee on the record that after the Supreme Court’s landmark decision in Massachusetts v. EPA, you assembled a team of 60 to 70 EPA officials to determine whether carbon diioxide emissions endanger healt hand welfare and, if so, to develop regulations reducing CO2 emissions from motor vehicles. According to these officials, you agreed with your staff’s proposal that CO2 emissions from motor vehicles should be reduced and in Decemer forwarded an endangerment finding to the White House and a proposed motor vehicle regulation to the Department of Transportation…

The senior EPA officials who spoke with the Committee did not know what transpired inside the White House of the Department of Transportation or what directions the White House may have given to you. They do know, however, that since you sent the endangerment finding to the White House, "the work on vehicle efforts has stopped." They reported to the committee that the career officials assigned ot the issue have ceased their efforts and have been "awaiting direction" since December.

Waxman-Markey Bill to Halt Coal Plant Construction 3

Posted by Brad Johnson Wed, 12 Mar 2008 01:18:00 GMT

Rep. Henry Waxman (D-Calif.), chair of the Oversight Committee, and Rep. Ed Markey (D-Mass.), chair of the global warming committee, today jointly introduced the Moratorium on Uncontrolled Power Plants Act of 2008 (H.R. 5575).

The bill, if enacted, would require any new coal plant constructed before the U.S. implemented a strong greenhouse gas emissions reduction program to have state-of-the-art carbon-capture-and-sequestration (CCS) technology.

From the bill text, the CCS technology would have to capture “not less than 85 percent of the total carbon dioxide produced by the unit on an annual average basis and permanently sequesters that carbon dioxide” and the emissions reduction program would have to require requires “immediate and significant reductions in greenhouse gas emissions across the economy and increases the reductions over time to reduce greenhouse gas emissions to 80 percent below 1990 levels by 2050.”

This target is considerably more stringent than that of Lieberman-Warner (S. 2191), which calls for an approximately 60% reduction below 1990 levels by 2050, though at the minimum of the IPCC-recommended 80-95% reduction (Box 13.7 in the Fourth Assessment Report, p. 776).

Update: This bill would implement one of Al Gore’s legislative recommendations.

Enviros, Democrats Respond to Polar Bear Delay

Posted by Brad Johnson Wed, 12 Mar 2008 00:51:00 GMT

Sixty days have now passed since January 8, 2008, when the U.S. Department of the Interior failed to meet its legal deadline to determine whether the polar bear is endangered by global warming, triggering a joint lawsuit over this latest delay from the Center for Biological Diversity, NRDC, and Greenpeace, pursuant to the notice of intent filed in January.

In the intervening months, U.S. Fish and Wildlife director Dale Hall took responsibility for the delay, but two weeks ago he told House appropriators that the decision had been given to Dirk Kempthorne, Secretary of the Interior, for final review.

In addition, Rep. Ed Markey (D-Mass.), chair of the House global warming committee, today introduced legislation to block further activity in the lease sale area. This legislation, which does not yet have a bill number, is a revision of his proposed legislation from January, before the lease sale took place. The amended legislation would now prevent the Secretary of the Interior from authorizing any “related activity (including approving any seismic activity, offering any new lease, or approving any exploration or development plan)” until an ESA determination and critical habitat designation is made.

House Leadership Prepares Cap-and-Trade Legislation for April

Posted by Brad Johnson Mon, 10 Mar 2008 13:26:00 GMT

E&E News’s Darren Samuelson reports in a pair of stories that the House of Representatives is moving forward to introduce companion legislation to the Lieberman-Warner Climate Security Act (S. 2191), the cap-and-trade legislation wending its way through the Senate. Rep. John Dingell (D-Mich.), whose Energy and Commerce Committee has jurisdiction, told steel industry officials last week that he plans “to release one or more draft global warming bills for comment by mid-April.”

Samuelson also reported that Rep. Markey, chair of the Select Committee on Energy Independence and Global Warming and a strong ally of Speaker Pelosi, has been meeting with “alternative energy producers, labor groups, financial market officials and industry representatives” to craft legislation.
Rep. Markey is preparing to send a report directly to Pelosi with proposals to address climate change or offer amendments when the House Energy and Commerce Committee holds a markup on a major piece of climate legislation, sources on and off Capitol Hill said today.

Markey said: “I think you should do the best you can each year. I do. And we have a real chance this year. If there’s an epiphany that occurred at the White House, then there we are with a chance to make history.”

FWS Chief Admits Administration Budget Cuts Indefensible

Posted by Brad Johnson Wed, 05 Mar 2008 16:08:00 GMT

In last week’s budget hearing, U.S. Fish and Wildlife Service director Dale Hall was confronted by Rep. Ben Chandler (D-Ky.) in a revealing exchange:
Ben Chandler (D-Ky.) I know that you all have talked some about the alarming loss of common birds in our country. Alarming it is. I almost can’t believe it. The numbers that I’ve seen are absolutely atrocious. And one thing that I’d like to explore with you real quick, the Audubon Society has stated that the cause of the dramatic decline of birds is the outright loss of habitat due to poor land use, the clear-cutting of forests, the draining of wetlands and sprawl. Now, in light of such a stinging indictment as that, how does the administration justify a 70 percent cut in land acquisition?

Hall I don’t know.

The Audubon Society analysis found that many common U.S. birds species have collapsed in recent years, some by at least 80 percent. In addition, the Society has identified 218 U.S. bird species at risk “amid a convergence of environmental challenges, including habitat loss, invasive species and global warming”.

Former Deputy Interior Secretary Julie MacDonald interfered with the Endangered Species Act listings of several of those at-risk: the Greater Sage Grouse, Gunnison Sage Grouse, Southwestern bald eagle, Southwestern willow flycatcher, Sacramento splittail and the recovery plan of the Northern spotted owl

Senate Not Open to Oil-For-Renewable Package Reconciliation

Posted by Brad Johnson Wed, 05 Mar 2008 14:12:00 GMT

Despite earlier reports that the Senate was considering inclusion of the oil-for-renewable package (H.R. 5351) in its budget reconciliation, as the budget markup begins today, the filibuster-proof strategy has been taken off the table.

The National Journal reports:
While a Senate budget resolution is going to set aside $13.4 billion over five years for these renewable and efficiency credits – some of which expire this year – it merely signals that the issue is one of the priorities for Senate Democrats and does not forward debate over how to pay for those credits. . . a spokesman for Reid said he will not resurrect an energy tax debate until after lawmakers come back from the upcoming two-week Easter recess.

The Journal also reports that Sen. Maria Cantwell (D-Wash.) has been tasked by Majority Leader Reid to attempt to find further Republican votes to establish a veto-proof majority for the package.

CQ Politics points to Sen. Landrieu as objecting to using reconciliation:
Sen. Mary L. Landrieu , D-La., for example, is against using the process to pass renewable-energy tax breaks if they lead to tax hikes on oil and gas companies.

Sen. Landrieu cast a deciding vote against the oil-for-renewable tax package during the 2007 energy bill debate.

EPA Puts Off "Hard Decision" On CO2 Endangerment Finding, May Face New Lawsuit

Posted by Warming Law Tue, 04 Mar 2008 22:02:00 GMT

EPA Administrator Stephen Johnson seems unable to step foot on Capitol Hill to talk about his 2008 budget without getting a ton of questions about California’s waiver denial and EPA’s much-delayed response to Massachusetts v. EPA. Today’s NY Times carries an editorial explaining how the two are linked, citing and drawing out Georgetown Professor Lisa Heinzerling’s observation that EPA’s waiver denial may have inadvertently committed it to an endangerment finding) 

The barrage of questions continued yesterday, courtesy of Senator Dianne Feinstein (D-CA) and her Appropriations subcommittee. Hill Heat live-blogged the hearing and revealed that Johnson isn’t just personally overwhelmed by all the legal pressure and questioning—he’s explicitly citing it to justify his delayed reaction to the Supreme Court’s remand. To wit, Johnson repeated the claim—previously made when he announced to a House subcommittee that he’d be "taking a step back" from the enandgerment finding to weigh industry’s “concerns”—that his delay is partly justified by a series of petitions and appeals that California and environmental groups have filed in the last several months, seeking the regulation of CO2 emissions from ships, aircraft, off-road vehicles, and new coal-burning power plants under federal jurisdiction.

Each of these actions was largely motivated by EPA’s delay in making an endangerment ruling, and each covers areas that would be affected by such a determination. In other words, Johnson is claiming that in order to respond to legal maneuvers motivated by his hesitancy to act…he must delay action even longer. While this deflection doesn’t carry any legal consequences, another part of Johnson’s insistence that this decision requires an expansive amount of time—perhaps until the end of the Bush administration, as advised by the Heritage Foundation, which also takes credit for inspiring Johnson’s rationale—actually highlights the imminent possibility of yet another lawsuit against EPA.

At issue: Johnson flat-out refused to set a target date yesterday for completing the decision-making process, and would not answer whether any of his staff was even working on the enandgerment evaluation (as opposed to a "myriad of issues" that they are tackling). The latter answer led Senator Feinstein to argue, based on what she’d  evidently been hearing from other sources, that no one other than Johnson himself is weighing the issue.

The legal coalition responsible for initiating Mass. v. EPA will likely beg to differ with this exhaustive process, having notified the Administrator last month that it was prepared to sue over unreasonable delay if Johnson didn’t provide a firm target date by February 27—last Wednesday. Stay tuned…

Next Steps on Oil-for-Renewable Package

Posted by Brad Johnson Tue, 04 Mar 2008 17:02:00 GMT

Upon the House passage of the oft-stymied oil-for-renewable tax package as a standalone bill (H.R. 5351) last week, Ben Geman of E&E News reported on a possible mechanism for moving the bill through the Senate with a simple majority:
Senate Democrats are eyeing a filibuster-proof budget bill as a vehicle for energy tax provisions that have narrowly failed to win the 60 votes needed to cut off debate, several lawmakers said yesterday.

Energy taxes are a “candidate to be considered in [budget] reconciliation,” Budget Chairman Kent Conrad (D-N.D.) told reporters. “I think we have to look at things that reduce our dependence on energy.”

The oil-for-renewables package, which faces the threat of a Bush veto, received resounding support from a broad coalition of industry, investors, and environmental organizations in a press conference today on the first day of the Washington International Renewable Energy Conference. President Bush is scheduled to offer the keynote address to the convention tomorrow.

Interior Holding Back Polar Bear Decision; CBD Sues Over Penguins

Posted by Brad Johnson Mon, 03 Mar 2008 12:47:00 GMT

At last week’s House Appropriations hearing on the FY 2009 Fish and Wildlife Service budget, FWS chief Dale Hall was grilled on the service’s implementation of the Endangered Species Act. The Bush administration has listed dramatically fewer species than previous administrations after dramatically reinterpreting the Act under Secretary Gale Norton’s “New Environmentalism” initiative to limit its protections for critical habitats. Further, Deputy Secretary Julie MacDonald was found to have interfered with a series of listing decisions (such as the prairie dog and sage grouse) until her dismissal in 2006.

Hall stated that he finally submitted his decision on the endangerment of polar bears due to climate change to Dirk Kempthorne, the Secretary of the Interior, saying that he expected a final decision to come in a few weeks. Hall justified the further delay to reporters: “It needs to be reviewed and explained to Interior, it can take a while to understand.”

On February 27, the Center for Biological Diversity announced a lawsuit protesting the FWS’s illegal delay on considering the endangerment of ten species of penguins:
The legal deadline at issue in today’s suit was triggered by a scientific petition the Center filed in November 2006 seeking Endangered Species Act protection for many of the world’s most threatened penguin species, including the emperor penguin in Antarctica. In July 2007, the U.S. Fish and Wildlife Service took the first of the three steps in the listing process when it found that 10 penguin species may deserve protection and began status reviews for those species. The Fish and Wildlife Service’s finding for the 10 penguin species triggered the duty to decide by November 29, 2007, whether the penguins qualify for listing under the Endangered Species Act, and if so, to propose them for listing. That decision is now more than two months overdue.

EPA Releases California Waver Denial Justification

Posted by Brad Johnson Fri, 29 Feb 2008 18:03:00 GMT

As previewed by Warming Law yesterday, the EPA today released the formal justification for publication in the Federal Register to back up administrator Stephen L. Johnson’s December decision to deny California’s waiver request after months of delay. California requested the Clean Air Act waiver in 2005 to permit implementation of the state’s Global Warming Solutions Act (AB 32), which would regulate tailpipe greenhouse gas emissions.

Johnson withstood withering criticism in Wednesday’s EPW budget hearing the same day Sen. Boxer, chair of the Senate committee, released documents showing top EPA officials supported the waiver.

The formal decision document includes this thread of novel legal interpretation (supported by John Dingell (D-Mich.)):
I find that it is appropriate to review whether California needs its GHG standards to meet compelling and extraordinary conditions separately from the need for the remainder of California’s new motor vehicle program. I base this decision on the fact that California’s GHG standards are designed to address global climate change problems that are different from the local pollution problems that California has addressed previously in its new motor vehicle program. . . Given the different, and global, nature of the pollution at issue, it is reasonable to find that the conceptual basis underlying the practice of considering California’s motor vehicle program as a whole does not apply with respect to elevated atmospheric concentrations of GHGs. . . . While I find that the conditions related to global climate change in California are substantial, they are not sufficiently different from conditions in the nation as a whole to justify separate state standards.

Staff and outside assessments of this argument have consistently concluded it is not legally tenable. It was received with full condemnation by Sen. Boxer and Rep. Ed Markey (D-Mass.), Global Warming chair; Frank O’Donnell of Clean Air Watch writes that the decision “reads like something written up in the boardroom of General Motors or a law firm working for car companies.”

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