Climate Compass Blog

The Federal Courts Once Again Weigh in on Climate Change

What have the courts figured out that Congress hasn’t yet gotten its arms around?

In a potentially far reaching decision by the United States Court of Appeals for the Second Circuit, the federal courts have once again stepped into the breach and ruled that states and private landowners can sue the five largest electric utilities for climate-related damages they contend were caused by the utilities’ carbon dioxide pollution  (Connecticut v. American Electric Power Corp. et al. 2nd Circuit 2009). The appeals court overturned a district court opinion that dismissed the case on the basis that it presented a “political question” that should be decided by another branch of government (Congress or the Executive Branch).  The Appeals Court held that until Congressional or regulatory action occurred, common law protections against damage from greenhouse gas pollution are a legitimate basis for a court suit.  The case was sent back to the District Court for further proceedings. 

Together with the landmark 2007 Supreme Court decision (Mass. v EPA), that has set EPA down the path of regulating greenhouse gas emissions, these court cases underscore a growing recognition by federal courts that the threat of greenhouse gas emissions represent a genuine threat and warrant legal review.

From a practical standpoint, this case cranks up the pressure on both Congress and EPA to act.  Case-by case litigation would be disruptive, expensive and problematic given the scope of the challenges we face.  The Court’s decision recognizes that these common law public nuisance cases may be preempted by Congressional or executive branch action.  It should be increasingly clear to all that the best way forward would be for Congress to pass comprehensive climate legislation.

Climate Change Legislation: On to the Senate

Regardless of how enthusiastic one is about the Waxman-Markey climate and energy bill passed by the House of Representatives in June, passing the bill in six months through a body that had never before wrestled with climate action was a major accomplishment.  (For the record, the Pew Center was enthusiastic about the achievement, while seeing some room for improvement in the bill itself.)  This week, Senators Barbara Boxer and John Kerry introduced their climate bill.  It takes nothing from the House’s accomplishment to recognize that passing a bill through the Senate will be a steeper climb. 

First, there’s the math.  House passage requires a simple majority, which Waxman-Markey just managed, at 219 – 212.  Passage through the Senate will essentially require a supermajority of 60 votes, because of the filibuster.  (If you aren’t familiar with the filibuster, you don’t really need to be.  Just trust me, it takes 60.)

Second, the rules of the House give the Speaker a great deal more control over the chamber’s agenda than the Senate gives its leader.  Speaker Nancy Pelosi very adroitly defined the process by which her chamber hammered out a workable balance of competing objectives.  Senate Majority Leader Harry Reid will be herding cats.

We can get climate change legislation through the Senate, but it’s going to be a completely different animal.  I’ll explore the hows and whys in future posts.

The Right Place for EPA to Start

EPA has proposed what many are calling the Agency’s first major step down the road to regulating greenhouse gas emissions from stationary sources. The newly proposed “tailoring” rule applies to requirements for major new or expanded sources and to permits for stationary sources, but does so in a carefully targeted manner.  It’s the right place for EPA to start.

It’s critical to understand both what the proposal does and doesn’t do, and why EPA needed to begin here.

Contrary to some press accounts, the proposed rule does not impose new control requirements on all large stationary sources.  Best available control technologies would be required only of new stationary sources that emit over 25,000 tons per year or major modifications to existing sources that increase emissions by 10,000-25,000 tons per year – a range EPA sought comment on. If yours is not one of the estimated 400 major new or modified facilities each year, you do not face any (new or old) control requirements limiting greenhouse gas emissions.

The proposal also requires that EPA (and states) include greenhouse gas emissions in the permits of roughly 14,000 facilities that emit more than 25,000 tons per year of these pollutants. These permits do not impose any new controls on any source; they simply incorporate into a permit EPA’s new mandatory reporting requirements.    

Georgia’s Climate Rollercoaster Illustrates Consequences of Global Warming

It’s been difficult for average citizens to imagine what global warming means for them. After all, a few degrees of increase in the global mean temperature doesn’t seem too bad. But one consequence that has already been documented is an increase in intense downpours with longer dry periods in between. A recent report from the U.S. Global Change Research Program said,

“Changes in the geographical distribution of droughts and flooding have been complex. In some regions, there have been increases in the occurrences of both droughts and floods.” (p. 18) “The widespread trend toward more heavy downpours is expected to continue, with precipitation becoming less frequent but more intense.” (p. 24)

The historic drought that gripped the Southeast for the better part of two years and the severe flooding that hit the same region last week illustrate this pattern all too graphically.

The U.S. is Hardly Alone

BANGKOK -- It’s no surprise, in the pre-Copenhagen posturing, that the United States is once again seen by many as the single greatest obstacle to an effective global climate effort.  The truth, though, is that the U.S. is hardly alone.  On all the key issues – emission targets, developing country commitments, and finance – other key players aren’t ready to strike a final deal either.

In his address last week to a high-level UN climate summit, President Obama offered an impressive list of early accomplishments.  Yet as was painfully evident, absent comprehensive legislation from Congress, the administration comes to the negotiating table with loads of good intention, but not yet prepared to take on binding international commitments.

Other countries, meanwhile, appear to be showing some movement. 

Both China and India, long viewed as the other principal barriers to agreement, are signaling a new willingness to act - at least domestically.  President Hu Jintao told the UN summit that China will set a goal to reduce its carbon intensity by a “notable margin.”  India’s government is talking about setting domestic goals to limit its greenhouse gas emissions.  These steps are encouraging, and may help inoculate the two countries against blame in the event Copenhagen is a failure.  But in neither case has the government offered specific numbers or said it is prepared to translate its actions into international commitments.

Yukio Hatoyama of Japan did come to the summit with a number.  Two weeks earlier, fresh from his landmark election victory, the new prime minister had set aside the previous government’s goal of reducing emissions 15 percent below 2005 levels by 2020, a target roughly in line with the numbers being debated in Washington.  In its place, he declared a far more ambitious goal of 25 percent below 1990 levels – provided other major economies pony up their fair share.