Global Climate Law Blog

USEPA GHG Finding Triggers Reviews and Reconsiderations of Global Warming Science

John Wyckoff — Wed, 17 Mar 2010 10:40:56 -0500

Over ten years have passed since EPA was petitioned, in October 1999, by 19 private organizations asking EPA to regulate greenhouse gas emissions from new motor vehicles. A decade later, the issue continues to be fraught with controversy. The 1999 petition culminated in the 2007 US Supreme Court closely decided decision (5 to 4) in Massachusetts v. EPA (549 U.S. 497 ERC 2057 (2007)) requiring the EPA to make a finding on whether greenhouse gas emissions endanger public health. On December 7, 2009, EPA signed its finding that greenhouse gas emissions do endanger public health and welfare, and that cars and light trucks cause or contribute to the emissions

Reviewing the majority and dissenting opinions associated with the Supreme Court Mass v. EPA case reveals that the court relied on much of the same information that EPA relied upon in its finding. However, the majority and dissenting opinions indicate that the justices in favor of requiring EPA to make a finding viewed the evidence for global warming quite differently than those that dissented. In Mass v. EPA, the majority “attached considerable significance to EPA’s espoused belief that global climate change must be addressed” and reviewed the study of the history of climate change from the late 1950s. Justice Stevens, who delivered the opinion of the court, highlighted the progress of the scientific understanding of climate change as reported by the Intergovernmental Panel on Climate Change (IPCC) in its “comprehensive reports” published in 1991 and 1995. The 1995 IPCC report concluded that there is a discernible human influence on global climate change. The court in its majority opinion asserted that, “The harms associated with climate change are serious and well recognized,” and referred to Michael MacCracken’s declaration and his statement that, “qualified scientific experts involved in climate change research have a ‘strong consensus’ that global warming threatens (among other things) a precipitate rise in sea level by the end of the century.”

In the court’s dissenting opinion, Chief Justice Roberts stated, “If petitioners’ particularized injury is loss of coastal land, it is also that injury that must be actual or imminent, not conjectural or hypothetical.” Chief Justice Roberts continued, “Thus, aside from a single conclusory statement, there is nothing in petitioner’s 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20^th century global sea level increases. It is pure conjecture.”

Since EPA published its finding in the Federal Register on December 15, 2009, the agency has come under fire from industry, public interest groups and legislators regarding the process and information EPA used to make its finding. This scrutiny has come under CAA section 307(b)(1), where various parties have requested a judicial review of the finding by filing a petition for review in the US Court of Appeals for the District of Columbia Circuit before February 16, 2010. (see earlier blog post re EPA endangerment finding and petition for review - the court battle over GHG regulation begins)

The Clean Air Act also provides a mechanism for a proceeding for reconsideration, stating, ‘‘ ‘If the person raising an objection can demonstrate to EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of this rule.

The petitions for reconsideration can be found here. By example, on February 11, 2010, seven petitioners (Coalition for Responsible Regulation, Inc., Industrial Minerals Association – North America, Great Northern Project Development, L.P., National Cattlemen’s Beef Association, Rosebud Mining Company, Massey Energy Company, and Alpha Natural Resources) filed a Petition for Reconsideration of the Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act. The petitioners argued that the University of East Anglia’s Climate Research Unit (CRU) in England fudged and fabricated temperature data, the IPCC’s peer review process was not independent, and that the IPCC assessments reflect the IPCC policy priorities. The petitioners stated that the CRU disclosures document fundamental flaws in the science and processes upon which EPA relied to make its finding. The petition for reconsideration presents evidence that the CRU fudged the data; created false temperature stations; cherry picked data to create a warming bias; and destroyed data so that it cannot be recreated. The petition for reconsideration stated that, “Consistent with its responsibilities under the Clean Air Act, EPA must make its own independent assessment and scientific judgment." Review of the other petitions for reconsiderations reveals that the petitioners believe that EPA abdicated its responsibility by relying on the IPC summary reports. The petitions also provide the petitioners’ extensive analysis of the reported global warming claims by the IPCC and certain climatologists.

Green Patents: International Trade Commission terminates investigation into allegations of infringement of wind turbine technology patents

Brian A. Rosenthal — Fri, 19 Feb 2010 09:14:14 -0500

Co-authored with Cyrus Frelinghuysen.

On January 8, 2010, the US International Trade Commission (ITC) issued a notice of its decision to terminate a Section 337 investigation into whether Mitsubishi Heavy Industries Ltd. and two of its subsidiaries had infringed three General Electric (GE) patents related to wind turbine technology. GE plans to appeal the ITC’s decision to the U.S. Court of Appeals for the Federal Circuit. The investigation stemmed from a February 2008 GE complaint with the ITC. GE claimed that wind turbines imported by Mitsubishi infringed GE’s U.S. Patent Nos. 5,083,039; 7,321,221; and 6,921,985.

On August 7, 2009, the administrative law judge assigned to the investigation issued an initial determination finding a violation of Section 337. On review, however, the ITC commissioners reversed that determination. In its opinion, the ITC found that all three of GE’s patents were valid but that there was no infringement. In addition, the ITC concluded that GE had not shown the existence of a protectable domestic industry with respect to one of the patents. GE is planning to appeal the ITC’s decision to the Federal Circuit. In addition, GE recently filed a complaint against Mitsubishi in the US District Court for the Northern District of Texas alleging infringement of two more of GE’s 148 patents relating to wind turbine technology.

These cases involve two major players in the rapidly expanding wind turbine industry. According to a June 2009 report issued by the ITC, from 2003 to 2008, imports of wind-powered generating sets increased more than 600 percent to $2.5 billion annually, and GE’s domestic wind turbine sales rose by over 300 percent during the same period. In 2008, GE was the leading wind turbine manufacturer in the United States, with a 43 percent market share, while Mitsubishi was ranked seventh. Globally, GE was the world’s second largest supplier of wind turbines, with a 16.7 percent market share, while Mitsubishi was ranked eleventh, with a 2.6 percent market share.

The ITC investigation attracted considerable attention from lawmakers, in part because of the US government’s desire to promote the development of clean energy technology and the use of renewable energy. Seventeen members of Congress wrote to the ITC prior to the issuance of its final determination. Senators Blanche Lincoln and Mark Pryor of Arkansas, where Mitsubishi plans to construct a $100 million wind turbine manufacturing facility, wrote a letter stating, “[p]romoting a diversity of technologies in the wind energy sector will be essential if the nation is to achieve the Administration’s goal of developing 20 percent of our electricity from wind by 2030.” President Obama has made reference to achieving such a goal, which was the subject of a July 2008 US Department of Energy report entitled 20% Wind Energy by 2030: Increasing Wind Energy’s Contribution to U.S. Electricity Supply. Meanwhile, Senators Charles Schumer and Kirsten Gillibrand of New York, where GE recently opened its $45 million Renewable Energy Global Headquarters, wrote a letter warning that: “Any efforts that weaken intellectual property right protections relating to clean technology pose a substantial competitive risk to U.S. businesses and workers and inhibit the creation of new green jobs and the transition to a green economy.”

The ITC’s investigation is another example of what appears to be a steady increase in litigation over clean energy patents. Last year we reported on a lawsuit between Paice LLC and Toyota Motor Company over patents related to hybrid electric vehicles. Paice has since filed a complaint with the ITC alleging that Toyota has violated Section 337 by importing hybrid electric vehicles and components that infringe Paice’s U.S. Patent No. 5,343,970. The investigation is Certain Hybrid Electric Vehicles and Components Thereof, Inv. No. 337-TA-688.

SEC Issues Climate Change Disclosure Guidance - Not a Statement Regarding Climate Change "Facts"

John Wyckoff — Tue, 02 Feb 2010 09:19:54 -0500

On January 27, 2010 the Security Exchange Commission (SEC) announced it had voted approval to issue “interpretative guidance” on the existing disclosure requirements as they apply to business and legal developments relating to climate change. The SEC stressed in its announcement that: 1) the interpretive guidance is meant to provide clarity and enhance disclosure consistency; 2) the commission is not making any statement regarding the facts relating to climate change, global warming, pace of warming, or causes; and that 3) it is not changing reporting, and materiality rules. That said, the Commission’s vote was split along “party lines” among the agency's republican and democratic commissioners. Kathleen Casey reportedly criticized the SEC vote as "transparently political and such a breathtaking waste of the commission's resources."

The origin of the Commission’s guidance goes back to September 18, 2007, when a coalition that included state officials having regulatory, enforcement, and fiscal management responsibilities, alongside institutional and asset management firms and conservation groups, petitioned the Commission for the guidance. In its petition, the coalition reviewed current law for disclosure of climate risks, the climate-related risks faced by publicly traded companies, the importance of disclosure to investors, the inadequacy of current SEC filings and voluntary disclosures, and the reasons why the Commission should clarify corporate disclosure obligations. The coalition subsequently supplemented its petition filing on June 28, 2008, informing the Commission of events including: the passage of the Energy Independence and Security Act (2007); the passage of the Consolidated Appropriations Act which funded USEPA to develop a rule requiring reporting of GHG emissions above certain thresholds; proposed legislation (Lieberman Warner Climate Security Act of 2007); the initiation of various state and regional actions, and the increase in climate-related litigation cases among others. In light of these developments, the coalition requested the Commission to expedite the issuance of the guidance.

With the SEC’s announcement, it stated that the guidance provides examples where companies should make climate change related disclosure based on the impact of: 1) pending and promulgated US legislation and regulation; 2) passage of international accords and treaties; 3) identification of risks and opportunities resulting from legal, technological, political and scientific developments; and 4) climate-related environmental impacts (e.g. sea-level rise, increase storm and flooding etc.) on their business. As of this blog post, the Commission has not posted the guidance on its website and stated that it will be posted “as soon as possible.” Stay tuned.

California requires greenhouse gas emissions to be part of environmental impact calculus

Amy Garber — Fri, 15 Jan 2010 11:26:25 -0500

Greenhouse gas emissions are officially factors to be considered in determining the environmental impact of local projects in California. On December 30, 2009, the California Natural Resources Agency adopted amended guidelines to aid public agencies and developers in complying with the California Environmental Quality Act (CEQA). The guidelines expressly provide that greenhouse gas emissions are included in the environmental impact calculus under CEQA.

CEQA is the California equivalent to the federal National Environmental Policy Act (NEPA). Like NEPA, CEQA requires state and local agencies to conduct environmental reviews before undertaking certain projects. However, CEQA has unique procedural and substantive requirements. The new guidelines are therefore essential to ensuring that state and local agencies are familiar with the state requirements.

The California legislature began the path to including greenhouse gas emissions in CEQA after passing the Global Warming Solutions Act of 2006 (AB 32). AB 32, inter alia, mandates a reduction in greenhouse gas emissions by 2020. Soon after the passage of AB 32, many lawsuits against public agencies and developers arose based on greenhouse gas emissions issues. In response, the California legislature adopted SB 97, which required the CRA to amend the guidelines to aid public agencies and developers in complying with AB 32. After the submission of amendments, the CRA had until January 1, 2010 to adopt the new guidelines. Accordingly, the new guidelines expressly provide for the consideration of greenhouse gas emissions. For example, one section describes how to determine the “significance” of potential greenhouse gas emissions.

The guidelines also describe how to create a plan for reducing greenhouse gas emissions. The “Environmental Checklist Form” for new projects now includes categories for the project’s effect on greenhouse gas emissions. In the CRA’s Final Statement of Reasons, the CRA emphasizes that the amended guidelines will not adversely affect businesses. The CRA asserts that the guidelines will provide greater certainty to CEQA analysis, thereby reducing the costs of environmental analyses and litigation.

Greenhouse gas emissions are also becoming a concern on the national scale, as the White House Council on Environmental Quality is completing draft guidance to federal agencies in considering greenhouse gas emissions under NEPA.

EPA endangerment finding and petition for review - the court battle over GHG regulation begins

John Wyckoff — Thu, 14 Jan 2010 14:00:18 -0500

On December 23, 2009, a Petition for Review was filed in the U.S. Court of Appeals for the D.C. Circuit challenging the US Environmental Protection Agency’s (USEPA) final action and its December 7, 2009 findings that: 1) new motor vehicles and engines cause or contribute to greenhouse gases; and 2) greenhouse gases in the atmosphere threaten public health and welfare of current and future generations. (Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act).

Many of the same companies that filed the Petition are part of a coalition of companies and trade associations that submitted over 133 pages of comments in late June 2009 challenging the Proposed Rule for USEPA’s findings. The coalition questioned the process USEPA used to support its Findings. In addition the coalition asserted that USEPA relied primarily on synthesis reports published by the Intergovernmental Panel on Climate Change (IPCC) and U.S. Climate Change Program – not on underlying science and data. The coalition believes the synthesis reports are insufficient, uncertain, and inadequate to support the findings regarding manmade greenhouse gases and global warming. The coalition also asserted that USEPA did not consider evidence from scientists that disagree that all or most of the climate change that has occurred in the last few centuries is due to human causes.

The timing of the Coalition’s June comments and Petition For Review is worth noting in light of the fact that the USEPA findings came out just before the United Nations Climate Change Conference in Copenhagen (held on December 7^th through the 18^th), just after the November 23 disclosure that data had been taken from the Climatic Research Unit (CRU) of University of East Anglia and the October 2009 petition filing by the Competitive Enterprise Institute (CEI) to reopen the proceedings for the EPA’s Proposed Findings because the CEI was concerned about evidence concerning the destruction of data at the CRU. Lastly while the USEPA denied the CEI’s request, the CRU is now in the process of doing an internal review and expects results of its review in Spring 2010. CRU stated that the purpose of the review is to determine whether there is any evidence of the manipulation or suppression of data, which is at odds with acceptable scientific practice and may therefore call into question any of the research outcomes.

Given all of the above, it is likely that the comments by coalition of companies mentioned above, the CEI, and others (including OMB) will likely be a road map of the issues that will be addressed in the Petition motions to be filed in February 2010. Clearly, the battle in the courts over how to regulate greenhouse gases is just beginning.

Regional Greenhouse Gas Initiative (RGGI) litigation settled

Gil Keteltas — Wed, 06 Jan 2010 13:57:20 -0500

The New York State Energy Research and Development Authority (NYSERDA), New York State Department of Environmental Conservation (DEC) and New York State Public Service Commission have announced a settlement of Indeck Energy’s challenge to the legality of the RGGI. Indeck and others contended that the RGGI system of auctioning emission allowances puts companies who are locked into long term contracts at a serious disadvantage and challenged New York’s authority to implement RGGI. This litigation and settlement highlight the kinds of issues likely to arise as companies face the prospect and costs of current and future regulatory programs focused on long-term reduction of greenhouse gas emissions.

On December 23^rd, a consent decree, approved by all parties to the Indeck litigation, was lodged with the court in which the lawsuit was pending. The New York Attorney General’s Office will receive public comments on the decree until January 29, 2010. After consideration of the public comments, New York will decide whether to move for judicial entry of the consent decree.

Under the decree, Con Edison would pay the cost of additional allowances that Indeck and other parties would need through the end of their long term contracts. DEC “committed in the Consent Decree to maintain the LTC set-aside account under the DEC Rule at 1.5 million allowances annually through 2016.” In addition, the Public Service Commission “agreed to consider approval of a tariff amendment allowing Con Edison to pass through the costs of purchasing allowances [estimated at $2.6 million a year] to its ratepayers.” The settlement announcement suggests the pass through will ultimately be rate neutral because “NYSERDA has agreed in the Consent Decree to use a portion of the RGGI proceeds to fund energy efficiency programs in Con Edison’s rate territory, which such funds will be commensurate with the costs associated with Con Edison’s payment of allowance costs. . .”

U.S. PTO launches Green Technology Pilot Program to fast track processing of green patents

Brian A. Rosenthal — Mon, 14 Dec 2009 09:26:33 -0500

Co-authored with Cyrus Frelinghuysen.

On December 7th, just hours before the United Nations Climate Change Conference was set to begin in Copenhagen, the U.S. Patent and Trademark Office (PTO) announced the launch of its Green Technology Pilot Program to speed the processing of green patents. The Program is initially set to run for only twelve months. At the end of that period, the PTO will determine whether to extend the program based both on the efficacy of the program and on feedback from participants. In addition, under the program, the PTO will accept a maximum of 3000 applications, but will reevaluate the resources needed to extend the program should the PTO receive more than 3000 applications.

The announcement was made at a joint event held by the Department of Commerce and the Department of Energy. At the event, Department of Energy Secretary Steven Chu also announced that $100 million in funding from the American Recovery and Reinvestment Act, which President Obama signed into law in February, will be made available to accelerate innovation in green technology, increase America’s competitiveness, and create jobs.

Regarding the new Green Technology Pilot Program, U.S. Commerce Secretary Gary Locke explained that, “American competitiveness depends on innovation, and innovation depends on creative Americans developing new technology. By ensuring that many new products will receive patent protection more quickly, we can encourage our brightest innovators to invest needed resources in developing new technologies and help bring those technologies to market more quickly.” Echoing that view, PTO Director David Kappos declared, “Every day an important green tech innovation is hindered from coming to market is another day we harm our planet and another day lost in creating green businesses and green jobs. Applications in this pilot program will see a significant savings in pendency, which will help bring green innovations to market more quickly.”

Ordinarily, the PTO processes patent applications in the order the applications are received. Under the new Green Technology Pilot Program, however, applications related to “green technologies,” i.e., applications pertaining to environmental quality, energy conservation, development of renewable energy resources, or greenhouse gas emission reduction, will be granted accelerated examination, provided those applications meet the program’s requirements. Secretary Locke told reporters that the goal of the program is to reduce the time it takes to review an application from 40 months to 12 months, allowing inventors to secure funding and launch businesses more quickly.

Reaction to the launch of the Green Technology Pilot Program has been generally positive. Carl Horton, Chief Intellectual Property Counsel of General Electric, said, “We hail this initiative as an excellent incentive to fuel further innovation of clean technology and a terrific mechanism to speed the dissemination of these patented technologies throughout the world.” In Q3 of 2009, General Electric was granted four fuel cell and four wind technology patents, according the to the latest CEPGI report.

According to the most recent Clean Energy Patent Growth Index (CEPGI) report, the PTO granted 271 green patents in Q3 of 2009, bringing the total number of green patents issued in 2009 to 788.

EPA makes endangerment finding for greenhouse gases

Christopher Marraro — Mon, 07 Dec 2009 16:05:57 -0500

In a bold move that attempts to force the Senate’s hand on climate change legislation, the U.S. EPA today announced a final rule that regulates greenhouse gases as an air “pollutant” under the federal Clean Air Act. In announcing the rule, Administrator Lisa Jackson justified the rule by stating that there is an overwhelming amount of scientific studies and evidence showing that greenhouse gas emissions are “deteriorating the natural balance in our atmosphere and hurting our climate.” EPA's decision to regulate greenhouse gases as a pollutant, however, has the potential to spin out of control, triggering other areas of the Clean Air Act, such as Prevention of Significant Deterioration and New Source Review standards, which could delay thousands of new construction projects nationally by imposing time-consuming and stringent permit requirements at a time of near historic unemployment.

In its 284-page final rule, EPA made the much disputed “endangerment” finding that current and projected concentrations of the mix of six key greenhouse gases -- carbon dioxide (CO₂), methane (CH₄), nitrous oxide (N₂O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF₆) -- in the atmosphere threaten the public health and welfare of current and future generations. EPA also finalized its “cause or contribute” determination under the Clean Air Act for greenhouse gases from new motor vehicles and motor vehicle engines by finding that these sources contribute to the atmospheric concentrations of greenhouse gases and hence to the threat of climate change. The final rule may be challenged in the U.S. Court of Appeals for the District of Columbia within 60 days of publication in the Federal Register.

EPA’s final rule is certain to pressure the Senate to act on climate-change legislation. The House of Representatives already passed the American Clean Energy and Security Act ("ACES," H.R. 2454, Waxman-Markey) bill by a very narrow margin in June, but the outcome in the Senate is uncertain with a number of Democrats and Republicans from key energy states opposed.

Friends of the Earth challenges Federal Government of Canada's failure to act on climate law

Susanne Calabrese — Tue, 01 Dec 2009 09:58:42 -0500

Friends of the Earth Canada, represented by Ecojustice and Paliare Roland Barristers, recently argued before the Canadian Federal Court of Appeal that the federal government is in violation of a Canadian law that requires Canada to take action to meet their international commitments to combat climate change.

On June 22, 2007 the Canadian legislature passed the Kyoto Protocol Implementation Act (KPIA). KPIA states that its purpose is “to ensure that Canada takes effective and timely action to meet its obligations under the Kyoto Protocol and help address the problem of global climate change.” Within 60 days of coming into force and not later than May 31 of every year thereafter until 2013, KPIA mandated that the Minister of the Environment had to prepare a “Climate Change Plan” and release it publicly. KPIA set out a specific list of guidelines for the Climate Change Plan to ensure that Canada met its international obligations.

Friends of the Earth Canada filed suit in 2007 after the Minister of the Environment released the first of three “Climate Change Plans for the Purposes of KPIA.” The environmental group claims that none of the three plans issued by the Canada’s Minister of the Environment comply with the requirements of KPIA because none of the plans comply with the Kyoto Protocol. Climate change plans were released on August 21, 2007, May 31, 2008, and May 30, 2009.

In the action, the Friends of the Earth Canada seeks a declaration finding that the Canadian federal government did not comply with its legal obligation under KPIA and a court order requiring the Minister of the Environment to do so.

The issue was on appeal after a lower Canadian federal court held that KPIA itself was not justiciable, meaning that it was not an issue that the courts could resolve. The court held that Parliament should resolve the issue.

This lawsuit was filed less than a month before the Government of Canada indicated its intention to quit participating in the Kyoto Protocol when it expires in 2012. Canada may plan instead to join the Asia-Pacific Partnership, which does not set any rigid requirements for GHG reductions. Friends of the Earth Canada states these plans were announced at the UN Special Session on Climate Change in New York on October 5, 2007.

AES resolves investigation by NY Attorney General Cuomo with agreement to disclose climate-change risks to investors

John Horan — Mon, 23 Nov 2009 12:25:20 -0500

In his latest use of New York's Martin Act as an environmental enforcement tool, on November 19, 2009, New York Attorney General Andrew M. Cuomo announced an agreement with The AES Corporation requiring AES to disclose material risks associated with climate change in its annual report to the Securities and Exchange Commission. The agreement resolves an investigation that began with Mr. Cuomo’s September 14, 2007 letters and accompanying subpoenas to AES and four other energy companies.

Under the terms of the November 19, 2009 Assurance of Discontinuance Pursuant to Executive Law § 63(15), AES’ disclosures will include an analysis of material financial risks associated with current and probable future greenhouse gas legislation and regulations, as well as material financial risks to the company from the physical impacts of climate change, including “the impact of an increase in sea level and changes in weather conditions.” In addition, AES has agreed to a broad litigation disclosure in which the company will describe any climate-change-related litigation involving AES,

the outcome of which will likely have a material financial effect on the Company and any climate change-related decisions issued by the United States Supreme Court, any United States Court of Appeals, or any court in any jurisdiction in which the Company operates that the Company concludes are likely to have a material financial effect on its business.

The Attorney General previously reached similar agreements with Xcel (see August 26, 2008 Xcel settlement) and Dynegy (see October 23, 2008 Dynegy settlement).

Environmental advocates challenge permit for Centralia coal plant

Amy Garber — Thu, 19 Nov 2009 10:34:06 -0500

On November 2, EarthJustice filed a petition asking the EPA to block the renewal of an air pollution permit for TransAlta Corporation’s coal-burning power plant in Centralia, Washington. The Southwest Clean Air Agency (“SWCAA”) had renewed the permit on September 17, and on September 28, the Sierra Club and other likeminded groups appealed the renewal. The November 2 petition alleges violations of the federal Clean Air Act and state pollution laws. In particular, the petitioners oppose the permit because it does not contain emissions limits for greenhouse gases or mercury, and because it does not require the best controls for regional haze-pollution.

TransAlta Corporation bought the Centralia coal-burning plant in 2000. In efforts to reduce emissions, TransAlta invested in $200 million worth of “scrubbers.” However, the plant continued to offend environmental groups, as it was a primary source of carbon dioxide, mercury, and nitrogen oxide emissions. The petition claims that these emissions constitute air contaminants that are detrimental to human health and welfare, property, and business. In particular, the petitioners contend that the SWCAA has failed to provide for the control of carbon dioxide and mercury emissions, failed to provide for adequate control of nitrogen oxide emissions, and failed to require Reasonably Available Control Technology to control carbon dioxide and mercury emissions. The petitioners also claim that the permit does not adequately protect against haze-pollution over Mount Rainier, the Olympic and North Cascades National Parks, and other forest, wilderness, and recreational areas. These areas are designated Class I areas under the Clean Air Act.

The petitioners, which include the Sierra Club, National Parks Conservation Association, and Northwest Environmental Defense Center, also object to the permit because it does not integrate the terms of a settlement agreement reached in September 2009 between TransAlta and the Washington Department of Ecology. The agreement is a result of mediation over air quality disputes between the two entities. The key points of the agreement are TransAlta’s goals of: 1) decreasing nitrous oxide emissions by 20%; and 2) implementing technology to control and monitor mercury emissions. Although the petitioners would like this agreement to be part of the renewed permit, they also claim that the agreement itself is inadequate. On November 9, the last day of the public comment period on the agreement, they filed a letter seeking heightened restrictions, including a 90% (rather than 50%) reduction in mercury emissions.

Coal-fired plants are becoming an increasingly salient issue in climate law. The EPA has recently sided with environmental groups to block permits that fail to adequately address greenhouse gas emissions, but it remains to be seen whether this will become a common outcome in court.

SEC's Division of Corporate Finance revises guidelines for shareholder proposals covering climate risks

John Horan — Tue, 10 Nov 2009 11:47:54 -0500

On October 27, 2009, the SEC’s Division of Corporate Finance revised its guidelines regarding the grounds on which a public company can exclude from its proxy materials shareholder proposals relating to environmental, financial or health risks, including those seeking disclosure of climate-related risks. Issued as part of Staff Legal Bulletin No. 14E (CF) (“SLB 14E”), the revised guidance seeks to address the Division’s concern that the existing analytical framework may have led to the “unwarranted exclusion” of proposals related to an evaluation of risk – formerly seen as an aspect of ordinary business operations and therefore excludable under Rule 14a-8(i)(7) – but which focus on “significant policy issues.”

Going forward, the Division will examine the “nexus” between the nature of the proposal and the company and whether the proposal’s underlying subject matter “transcends the day-to-day business matters of the company and raises policy issues so significant that it would be appropriate for a shareholder vote.” Where the nexus is sufficient and the proposal raises such policy issues, the proposal generally will not be excludable under Rule 14a-8(i)(7). The Division also highlighted the board of directors’ oversight of corporate risk management, noting that a proposal focusing on the board’s role in overseeing a company’s management of risk may also “transcend the day-to-day business matters” and raise significant policy issues meriting a shareholder vote.

Rule 14a-8 under the Securities Exchange Act of 1934 permits shareholders to submit proposals for inclusion in a public company’s proxy statement, and also describes categories of proposals that a company may exclude from its proxy statement. Rule 14a-8(i)(7), for example, permits a company to exclude a proposal that “deals with a matter relating to the company’s ordinary business operations.” Under the prior guidelines, established in Staff Legal Bulletin No. 14C (CF) (June 28, 2005), where a proposal focused on a company undertaking an internal assessment of risks and liabilities arising from its operations, the Division permitted the company to exclude the proposal under Rule 14a-8(i)(7) as relating to an evaluation of risk, which the Division viewed as relating to the company’s ordinary business operations. Companies were not permitted to exclude proposals, on the other hand, focused on minimizing or eliminating operations that could adversely affect the environment or the public’s health.

Shareholder and environmental activists have hailed the new guidelines as a victory. Mindy Lubber, president of Ceres, a coalition of institutional investors and environmentalists, praised the guidelines for “strik[ing] the right balance of ensuring that resolutions about critical matters reach company shareowners, without opening the floodgates to proposals of more questionable significance.” Ceres and the Ceres-coordinated Investor Network on Climate Risk (“INCR”) have actively campaigned for the guideline change announced in SLB 14E; in a June 14, 2006 letter to then-SEC Chairman Christopher Cox, for example, INCR renewed earlier requests by INCR investors that SEC staff revise its interpretation of Rule 14a-8’s “ordinary business” exclusion to require inclusion of proposals seeking disclosure of financial risks due to climate change.

EPA rejects permit for BP Whiting refinery

Kimberly Graber — Mon, 02 Nov 2009 14:07:33 -0500

On October 16, responding to a petition filed by environmental groups, US Environmental Protection Agency (EPA) Administrator Lisa Jackson objected to the operating permit issued by the Indiana Department of Environmental Management (IDEM) for BP North America's refinery in Whiting, Indiana. BP is expanding the refinery, which is twenty miles south of Chicago on Lake Michigan, to handle high sulfur Canadian crude oil. The EPA had previously approved an air permit for the project, concluding that the increase in refining capacity would not lead to an emissions increase sufficient to reach the “major modification” threshold. Under that determination, BP was not required to install additional pollution control devices or take other steps to reduce emissions and meet Clean Air Act requirements. However, environmental groups predict that the expansion will create approximately as much new global warming pollution as a new 300-400 megawatt coal plant, about a 40 percent increase from current refinery levels.

The petition, filed by the Environmental Law and Policy Center, Natural Resources Defense Council, Hoosier Environmental Council, Save the Dunes and Sierra Club, alleged that the permit omitted certain emissions and the IDEM did not adequately respond to public comments regarding that issue. The environmental groups raised concerns regarding emissions from flares, residual emissions from vessel depressurization, increased emissions from coking and coke drum depressurization, fugitive emissions from reduced sulfur compounds and emission factors to account for higher-sulfur crude.

EPA rejected some of the petitioners' grounds for objection, but agreed that some emissions may have been omitted and that IDEM did not adequately respond to public comment, resulting in an objection to the permit. EPA’s action requires IDEM to conduct a new emissions analysis which potentially could result in a determination that BP’s refinery expansion is a “major modification.”

IDEM spokesman Robert Elstro said the agency will use the next three months "to evaluate the available options and consider the appropriate response to the order."

The refinery expansion, estimated to cost about 3.8 billion dollars, will boost its production of gasoline, diesel fuel and jet fuel 15 percent to about 4.7 billion gallons a year and is expected to be complete by 2012.

Scott Dean, BP spokesman for refining and marketing in Chicago, said BP was “surprised and frankly disappointed,” by the EPA objection to the permit, but plant construction is continuing.

US Chamber of Commerce, National Automobile Dealers Association Seek Review of EPA Decision Allowing States to Regulate Emissions

Kimberly Graber — Thu, 22 Oct 2009 17:53:26 -0500

The US Chamber of Commerce and National Automobile Dealers Association (NADA) have filed a petition seeking review of the EPA’s decision to allow states to regulate automobile emissions. In a Nonbinding Statement of Issues filed Oct. 13, 2009, the two groups outlined the questions to be addressed by the United States Court of Appeals for the District of Columbia Circuit in their lawsuit challenging the EPA’s decision to grant California’s request for a waiver of federal Clean Air Act preemption. The waiver allows California to regulate vehicle emissions and other states to adopt those regulations. A decision adverse to the EPA would limit the ability of individual states to regulate greenhouse gas emissions but does not implicate EPA’s efforts to set national emissions standards. However, some industry watchers predict that this is just the beginning of a “hurricane of lawsuits” challenging climate-related regulations. New York and 16 other states have recently filed a motion to intervene on the side of the EPA.

Chamber of Commerce and NADA Challenge
In its challenge to the EPA decision to grant the waiver to California, the Chamber and the NADA raised six issues for the Court to decide:

Whether the EPA erred in reconsidering and reversing the denial of California’s request to waive preemption for its greenhouse gas emission standards under Section 209(b);
Whether the EPA erred in concluding that the California determination that its own gas emissions standards satisfy the Clean Air Act’s “protectiveness” standard was not arbitrary and capricious;
Whether the EPA erred in not denying California’s waiver request because California did not meet the requirement of showing that its standards were needed to meet compelling and extraordinary conditions;
Whether the EPA erred in not denying California’s waiver request because it was inconsistent with Section 202(a) of the Clean Air Act [which addresses “Emission standards for new motor vehicles or new motor vehicle engines”];
Whether the EPA complied with procedural requirements of the Clean Air Act and Administrative Procedure Act in reversing its earlier decision; and
Whether California is precluded from obtaining a preemption waiver for its greenhouse gas emission standards under the Energy Policy and Conservation Act of 1975.

States, Environmental Groups Intervene in Support of EPA
Seventeen states, led by New York, have moved to intervene in the lawsuit on the side of EPA. The other states are Arizona, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, Florida, and Pennsylvania. The South Coast Air Quality Management District (California) also filed a separate motion to intervene in support of EPA and Administrator Jackson, as did the environmental organizations Environmental Defense Fund, Natural Resources Defense Council, the Sierra Club, and Environment California.

There has been no substantive briefing, but the EPA has filed a motion seeking an extension from the usual 30 days to respond to 90 days due to the complexity of the issues. The EPA previously stated that the decision to grant the waiver followed the law and was based on a comprehensive analysis of the science and that it is confident the courts will uphold the decision.

National Regulations
Earlier this year, the Obama administration reached consensus with the big three American automobile manufacturers on national regulation of greenhouse gas emissions from vehicles. On May 19, 2009, at a Rose Garden ceremony filled with representatives of major automobile manufacturers worldwide, President Obama announced that the EPA and National Highway Traffic Safety Administration will propose greenhouse gas emissions limits for cars and light trucks for model years 2012-16. The only way to reduce certain emissions is to increase fuel efficiency. Accordingly, the Administration’s proposal will require an average fuel economy standard of 35.5 mpg by 2016.

Then, on June 30, 2009, the EPA announced that it was reversing its decision under the Bush administration to deny California’s request for a waiver under the Clean Air Act. By reversing its decision and granting the waiver, the EPA is permitting California to enforce its own emission regulations. Fifteen states have already adopted the California plan. After 2011, compliance with the anticipated national regulations would satisfy the California standards, so assuming the national regulations are finalized in time, the waiver effectively allows states to impose regulations applicable to the model years 2009-2011. However, California could also impose more stringent restrictions after 2016.

The Chamber opposes such regulation because of the heavy burden it predicts will be placed on US businesses, and has previously attempted to slow or derail EPA regulation of greenhouse gas emissions under the Clean Air Act. The Chamber sought a hearing regarding the EPA’s decision to regulate GHGs under the CAA, and stirred controversy by characterizing the proposed hearing as a “Scopes monkey trial” on climate science. Some members have canceled their membership in the Chamber because of disagreement with the Chamber’s position on regulation of greenhouse gases. Meanwhile, advocates of increased regulation of greenhouse gas emissions have also excoriated the Chamber’s position on EPA regulations. Whatever their position, stakeholders on all sides of the issue will be closely watching the outcome of this lawsuit.

Fifth Circuit reverses Comer, joins Second Circuit in approving tort-based climate litigation

Gil Keteltas — Mon, 19 Oct 2009 10:54:13 -0500

In a long-awaited appellate decision in Comer v Murphy Oil, the United States Court of Appeals for the Fifth Circuit on Friday found that tort-based global warming litigation against insurance, oil, coal and chemical companies presents justiciable claims. The Fifth Circuit reversed the district court’s ruling from the bench that plaintiffs lacked Article III standing to bring such claims, and that the tort claims presented non-justiciable political questions. The Fifth Circuit only reversed in part, however, agreeing that plaintiffs’ “unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims must be dismissed for prudential standing reasons.”

On Article III standing, the Fifth Circuit ruled that – for standing purposes – plaintiffs alleged an injury that was sufficiently traceable to alleged conduct of the defendants. The Court noted that Article III traceability is a liberal standard that does not equate to proximate causation (“an indirect causal relationship will suffice”). That distinction is important, because the court’s description of plaintiffs’ claim highlights the significant causation issues that loom on the merits:

“The plaintiffs allege that defendants’ operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ private property, as well as public property useful to them.”

The high hurdle that remains on causation was clear from Judge Davis’s special concurrence:

"The defendants argued an alternative basis for dismissal to the district court – that the plaintiffs failed to state a claim under common law. Specifically, the defendants argued to the district court that the plaintiffs failed to allege facts that could establish that the defendant’s actions were a proximate cause of the plaintiffs’ alleged injuries. If it were up to me, I would affirm the district court on this alternative ground."

On the political question doctrine, the Fifth Circuit reversed the district court, finding that “defendants have failed to articulate how any material issue is exclusively committed by the Constitution or federal laws to the federal political branches.” The court effectively treated “exclusive commitment” as a threshold issue, rendering application of the remaining Baker v. Carr standards for identifying non-justiciable political questions unnecessary. Following that conclusion, the court, in a conclusory paragraph, stated that the remaining Baker “formulations do not make the defendants’ arguments for nonjusticiability any more persuasive.”

But the Fifth Circuit’s spare discussion of the remaining Baker factors raises questions given the language of Baker, which does not treat exclusive commitment to the political branches as a threshold factor, just one of many that should be considered. The Kivalina court described the Baker factors as “six independent factors,” and the language of Baker appears to support that analysis (emphasis added):

"It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence.

For trend-watchers, note that every district court that has considered claims like those in Comer has dismissed those claims as non-justiciable. See Connecticut v. AEP (recently reversed), California v. General Motors (appeal withdrawn), and, most recently, Native Village of Kivalina v. ExxonMobil et al.. The two appellate decisions have reversed. In essence, the judges who would resolve tort-based climate cases do not believe there are judicially manageable standards to reach principled and rational decisions concerning the purported historical duties to emit lower amounts of unregulated greenhouse gases. Yet two appellate courts are saying – without much in the way of specifics – that these claims are judicially manageable.

In Kivalina, the district court directly responded to the Second Circuit ruling in AEP:

"Despite the admitted and significant distinctions between a nuisance claim based on water or air pollution and one, such as the present, based on global warming, neither Plaintiffs nor AEP offers any guidance as to precisely what judicially discoverable and manageable standards are to be employed in resolving the claims at issue. Although federal courts undoubtedly are well suited to resolve new and complex issues and cases, the Court is not persuaded that this is such a case. Plaintiffs’ global warming nuisance claim seeks to impose liability and damages on a scale unlike any prior environmental pollution case cited by Plaintiffs. Those cases do not provide guidance that would enable the Court to reach a resolution of this case in any “reasoned” manner."

We now await the next steps in AEP and Comer and a likely appeal to the Ninth Circuit in Kivalina.

Kivalina global warming litigation dismissed on political question grounds

Gil Keteltas — Fri, 16 Oct 2009 15:34:14 -0500

In a carefully watched case in the Northern District of California, Judge Saundra Brown Armstrong has issued a ruling dismissing the Kivalina climate change lawsuit on grounds that: (1) it raises a non-justiciable political question, and (2) plaintiffs lack Article III standing. In so doing, Judge Brown rejected the recent Second Circuit analysis in Connecticut v. American Electric Power Co., which held that the political question doctrine did not bar nuisance claims against major greenhouse gas emitters.

In the Kivalina case, the Native Village of Kivalina, Alaska filed suit against two dozen energy companies, attempting to recover at least $400 million in damages for public nuisance related to emissions of greenhouse gases that Plaintiffs alleged contributed to global warming and caused the sea level to rise, destroying parts of the village. In addition to the public nuisance claim, Plaintiffs also included novel conspiracy allegations, claiming that the defendants conspired to mislead the public about the causes and effects of global warming through industry-sponsored trade groups.

The Village of Kivalina, located in northwest Alaska, comprises about 1.9 miles and has approximately 399 residents. In this lawsuit, the villagers alleged that global warming caused the melting of Arctic sea ice which formerly protected the village from winter storms, and that the increased pace of the melting ice has caused erosion. The plaintiffs contend that, "if the entire village is not relocated soon, the village will be destroyed." Their complaint alleged that 24 oil, gas and power companies substantially caused this global warming and the resulting damage to the village. Plaintiffs sought hundreds of millions of dollars in damages to compensate the villagers and relocate the village.

On the political question issue, the Court considered the Second Circuit’s recent decision in AEP, which reversed a district court opinion dismissing a similar climate change suit on political grounds. The Second Circuit concluded that political question doctrine did not bar nuisance-based climate change litigation, given the judiciary’s history of dealing with “new and complex problems.” In the Kivalina decision, Judge Armstrong bluntly responded: “This court is not so sanguine. While such principles may provide sufficient guidance in some novel cases, this is not one of them.”

The Kivalina Court went carefully through each of the factors set forth in Baker v Carr, 369 U.S. 186 (1962), which establishes the standard for determining when an issue presents a non-justiciable “political question” that is best left to the executive and/or legislative branches of government.

The Court noted that the cases relied on to support plaintiffs’ claims involved a “discrete number of ‘polluters’ that were identified as causing a specific injury to a specific area.” In contrast, the Kivalina “global warming claim is based on the emission of greenhouse gases from innumerable sources located throughout the world and affecting the entire planet and its atmosphere.” (Emphasis in original.)

The Court also distinguished global warming claims from other nuisance claims based on the long chain of disconnected events from emission to alleged harm (a chain of events that would pose a significant hurdle for plaintiffs on causation where, as in AEP, the initial claims survive a motion to dismiss):

“[T]he harm from global warming involves a series of events disconnected from the discharge itself. In a global warming scenario, emitted greenhouse gases combine with other gases in the atmosphere which in turn results in the planet retaining heat, which in turn causes the ice caps to melt and the oceans to rise, which in turn causes the Arctic sea ice to melt, which in turn allegedly renders Kivalina vulnerable to erosion and deterioration resulting from winter storms.”

At bottom, the Court was unable to discern “judicially discoverable and manageable standards” to apply to plaintiffs’ claims, and noted that AEP, despite its holding, provided no guidance in this area. The Court concluded that “the allocation of fault—and cost—of global warming is a matter appropriately left for determination by the executive or legislative branch in the first instance.”

The Court separately found that plaintiffs lacked Article III standing given the “attenuated sequence of events” alleged in the complaint, and the inability to trace harm to a particular defendant’s emissions. The Court reasoned that, in this context, a discharge standing alone is insufficient to create a fairly traceable injury for Article III purposes.

The decision will likely be appealed to the Ninth Circuit Court of Appeals. Meanwhile, we still await a Fifth Circuit ruling in the appeal of the dismissal on justiciability grounds in Comer v. Murphy Oil, as well as the next steps in the AEP case following the Second Circuit’s reversal.

New York Green Building Construction Act shifts responsibility for setting green building standards

Amy Garber — Wed, 14 Oct 2009 09:33:42 -0500

New York Governor David Paterson recently signed into legislation the State Green Building Construction Act. The Act amends previous green building legislation by affording the Office of General Services (“OGS”) the responsibility of promulgating rules and regulations that comply with green building standards. The bill had passed unanimously in the New York Assembly on June 10 and by a large margin of 55-2 in the state Senate on July 10. The Act requires new construction and substantial renovations of state facilities to comply with green building standards.

Previously, the onus was on the Department of Environmental Conservation to develop compliant regulations. Now, while the OGS may consult other entities such as the Department of Environmental Conservation, the ultimate compliance responsibility remains with the OGS. OGS Commissioner John Egan said in a recent press release, “We are pleased that this new law will enable the agency to continue to collaborate with state agencies and authorities to construct green buildings that lower energy costs, improve air quality, reduce waste and curb greenhouse gases. We look forward to aggressively pursuing this new responsibility.”

The stated purpose of the bill is to “more effectively promote the development of high performance and green sustainable buildings.” Proponents believe that green building will save the state money in maintenance costs. The hope is that ultimately, the creation of sustainable buildings will lead to new developments in green technologies. State agencies and the OGS have ample time to bring themselves into compliance with the Act, because many provisions of the Act will not be effective for another year. The amendment was not unexpected: Governor Paterson had recommended these measures when he signed the initial legislation in September 2008.

Public Citizen lawsuit seeks to require Texas Commission on Environmental Quality to regulate greenhouse gases

Wendy Coats — Thu, 08 Oct 2009 19:40:26 -0500

On Tuesday, the environmental group Public Citizen filed a lawsuit against the Texas Commission on Environmental Quality (“TCEQ”) seeking to require it to regulate carbon dioxide and other greenhouse gases. The lawsuit is believed to be the broadest attempt so far to force a state to control greenhouse gases through the permits granted by a state for power plants, refineries, factors, and similar industrial facilities. Public Citizen’s filing is most likely timed to coincide with Congress’ consideration of landmark climate change legislation and the December 2009 United Nations Climate Change Conference in Copenhagen.

Public Citizen’s complaint contains arguments similar to those successfully advanced in the 2007 Supreme Court decision Massachusetts v. EPA, in which the Court found that greenhouse gases, including carbon dioxide are air pollutants covered by the Clean Air Act and that the Administrator was required to determine whether emissions of greenhouse gases cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. The Public Citizen complaint makes additional arguments based on Texas law. For example, while the Texas Clean Air Act says the TCEQ shall regulate contaminants that threaten public health, safety and welfare “by all practical and economically feasible methods,” Public Citizen alleges that during permit disputes Texas rules bar any discussion of carbon dioxide or global warming and “block the collection of information about CO2 emissions in Texas – which are immense, increasing, and dangerous.”

Texas was poised as a prime target for Public Citizen as it apparently tops the list of states in man-made greenhouse gas emissions and would rank seventh in the world, if it were a separate country. Additionally, Texas Governor Rick Perry has hotly opposed regulating CO2 or other greenhouse gases either at the state or national level.

A ruling requiring regulation of carbon dioxide and other greenhouse gases would likely immediately impact ongoing disputes over new coal-burning power plants, the largest industrial source of CO2 in Texas.

According to Public Citizen, opponents to new coal-burning power plants in Texas have repeatedly been barred from raising legal arguments about the proposed plants’ CO2 emissions, with state administrative judges citing the lack of state or federal regulations. “The time has come for the TCEQ to take its head out of the sand and begin the process to regulate CO2 emissions from Texas sources. Because the agency will not do so on its own, we are seeking to have a Texas court order it to do so,” said Tom “Smitty” Smith, director of Public Citizen’s Texas office.

Petition asks EPA to regulate GHG emissions from "factory farms" under Clean Air Act

Lucy Wheatley — Thu, 01 Oct 2009 10:19:06 -0500

The Humane Society and a coalition of other environmental groups have filed a petition with the Environmental Protection Agency (EPA) that seeks to classify factory farms as a source of greenhouse gases and regulate them accordingly under the Clean Air Act. Petitioners allege that concentrated animal feeding operations (CAFOs) emit excessive amounts of methane and nitrous oxide, both greenhouse gases. According to the petitioners, these emissions are the result of farm animals being raised in small spaces in increasingly large numbers at a few facilities.

The environmental groups allege that reducing emissions of major pollutants from these CAFOs can improve human health, reduce suffering of farm animals, protect habitat for wildlife, and reduce the effects of climate change and other environmental problems. The petition contends that regulating air pollution from CAFOs will create an incentive for new CAFOs to reduce emissions through alternate means of production. A report by the Food and Agriculture Organization of the United Nations (FAO) found that animal farms were responsible for contributing 18 percent of all greenhouse gas emissions—more than even the transport sector.

Currently the EPA does not require that CAFOs meet any emissions standards under the Clean Air Act. However, some scientific surveys, including the US Inventory Report adopted by the EPA, establish that CAFOs meet the standards for regulation under section 111 of the Clean Air Act as a source that causes or contributes significantly to air pollution. Despite this evidence, agriculture maintains a strong constituency in Congress, including House Agriculture Chairman Collin Peterson (D-Minn.), who has been vocal about the need to exempt farms from new climate change legislation.

In addition the the Humane Society, petitioners include the Association of Irritated Residents; Center on Race, Poverty and the Environment; Clean Air Task Force; Dairy Education Alliance; El Comité para el Bienestar de Earlimart; Environmental Integrity Project; Friends of the Earth; and Waterkeeper Alliance.

US State Department sued over permit approval for "Alberta Clipper" tar sands oil pipeline

Susanne Calabrese — Thu, 24 Sep 2009 16:23:44 -0500

Four environmental and Native American advocacy groups have filed suit challenging the US State Department’s August approval of Enbridge Energy’s plans to build the Alberta Clipper tar sands pipeline. The pipeline would pump 450,000 barrels of tar sands oil per day from northern Alberta to Superior, Wisconsin for refining. In their complaint, the plaintiff groups claim that the State Department and the U.S. Army Corps of Engineers violated the US National Environmental Policy Act (NEPA) by failing to adequately analyze the indirect and cumulative impacts of the proposed pipeline. They further argue that the State Department’s approval was unconstitutional because Congress has not fully delegated its authority to regulate pipelines to the Executive Branch. Plaintiffs have requested preliminary and permanent injunctions to halt the construction of the pipeline.

The Alberta Clipper pipeline is planned to stretch 384 miles in the United States, running through Minnesota’s Chippewa National Forest and its Leech Lake tribal lands. Plaintiffs allege that the construction would impact over 200 water bodies and would destroy more than 1,200 acres of upland forested lands, more than 650 acres of open lands, and more than 1,300 acres of wetlands.

By approving the pipeline, the plaintiff groups allege that the State Department is overlooking the serious environmental, climate, and human health impacts of tar sands oil, the production of which results in three times more greenhouse gas emissions than that of conventional crude oil. Tar sands oil also contains eleven times more sulfur and nickel, six times more nitrogen, and five times more lead than conventional oil. Plaintiffs claim the approval decision is a departure from the Obama administration’s commitment to clean energy.

"This project will lock our nation into a dirty energy infrastructure for decades to come," said Sierra Club Executive Director Carl Pope. "Instead of increasing our reliance on oil and piping in pollution, the State Department should support clean, American energy and the jobs that come with it."

The complaint was filed on September 3, 2009 in the US District Court for Northern California. The suit names Secretary of State Hillary Clinton, Deputy Secretary James Steinberg and the US Army Corps of Engineers as Defendants. The plaintiff groups are The Indigenous Environmental Network, Minnesota Center for Environmental Advocacy, National Wildlife Federation and the Sierra Club. Plaintiffs are represented by the non-profit law firm Earthjustice.