Hill Heat

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.

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.”

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

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 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…

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.

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.

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.”

The coal-industry lobbying entity Americans for Better Energy Choices has launched a full campaign in the primary battleground state of Ohio as part of its $40 million-plus election-year PR effort, castigated by a recent NBC report for “trying to cloak itself in green”.

The Ohio effort includes a series of print and radio advertisements, one of which asks:

It’s no secret – access to affordable energy is one of the leading reasons why businesses come to Ohio. In fact, a recent university study shows that there are more than 700,000 jobs here in Ohio because of access to affordable, reliable electricity produced by coal. . . Green collar jobs might sound good to some people, but what does that mean for Ohio jobs … what does it mean for your job?

The “recent university study” is one paid for by ABEC’s parent organization, the industry trade group Center for Energy and Economic Development.

Green Energy Ohio has a series of studies and reports that attempt to answer that very question, looking at both the present and the future impact of the renewable energy/energy efficiency (RE/EE) industry in Ohio.

ABEC Ohio outreach also includes on-site visits to campaign rallies where they give out promotional material and the targeted URL EnergyForOhio.org. A WHOIS review shows that ABEC registered the “EnergyFor” domains for all fifty states in November 2007. DeSmogBlog has posted ABEC’s call for public relations work in Pennsylvania, another significant coal state whose primary is April 22.

The “America’s Power” website (which includes an Ask the Experts section and the “Behind the Plug” blog) lists the ABEC tour locations and the radio spot run in Ohio. Full text of the “jobs” ad, a transcript of the radio spot, and the tour locations are listed after the jump.

Reporting yesterday on this week’s developments in the California clean cars saga, the Wall Street Journal’s Stephen Power revealed that "the EPA is expected to fire back this week by publishing data and research to support Mr. Johnson’s decision." Today’s Philadelphia Inquirer confirmed that such a document should "be released by tomorrow" via Johnson’s response to grilling on the waiver decision during a Senate hearing on EPA’s budget. (Regular readers may recall that his December announcement of the waiver denial was notably brief, resulting in much speculation since as to whether Johnson had fully determined his legal rationale before he made his mind up.)

We’ve been anticipating EPA’s belated justification, which is expected to be placed in the Federal Register, for some time now—both in terms of Johnson’s public promises and as a legal strategy in fighting California’s lawsuit. In a move that is probably not coincidental, EPA filed a motion last week asking the 9th Circuit to dismiss the existing case. Warming Law is still working to obtain EPA’s motion, but we’ve written previously on both its likely rationale, and on the unprecedented legal argument that Johnson will likely make to claim his actions can be justified under the Clean Air Act.

If Johnson goes this route, the legal effect would be one of giving the Administrator’s judgment extremely strong deference under Section 209 of the Clean Air Act. He would be interpreting the law in a way that his staff told him is legally impossible even if they accepted the auto industry’s criteria for judging waiver requests, and doing so based on the arguments that he:

1) Is legally empowered to break with agency precedent regarding what constitutes "compelling and extraordinary" conditions—instead adopting the "exclusive and unique" argument that Tuesday’s document release shows was first advanced in March 2006 by Bill Wehrum, a political appointee with prior ties to the auto industry (Wehrum has since left the EPA, and was recently spotted testifying in favor of a pair of coal-fired plants that Kansas regulators shot down last year based on global warming concerns).

Former EPA Administrator William Riley, who served under President Bush’s father, highlighted the historic scope of Johnson’s actions when he revealed yesterday that he was the receipient of impassioned talking points that agency staff prepared for him to press with Johnson. In his conversations with Johnson, Reilly focused on the argument that legal text, congressional intent and longstanding precedent all point to extreme deference for California’s wishes, and noted that the administrator need not agree with the state in order to let it move forward (emphasis added):