October 2009

My weekend is starting out fine, thanks to this happy news.

Peter Glaser, an environmental attorney with Troutman Sanders, just sent around his analysis. Here it is:

California Federal Court Dismisses Global Warming Common Law Nuisance Lawsuit

In another chapter in the continuing saga of whether energy companies can be sued under tort law for emitting greenhouse gases (GHGs), a federal district court in California yesterday dismissed a lawsuit brought by the Kivalina Alaska Native Village and others against a large number of energy companies.  The Court became the fourth federal district court to find, in essence, that there is no common law nuisance tort of global warming.  One of those district court decisions, however, was recently reversed by the United States Court of Appeals for the Second Circuit in the Connecticut v. AEP case, which we reported on extensively in a previous client alert available at the link provided below. 

The lawsuit dismissed yesterday alleged that the defendants’ GHG emissions contribute to global warming that has diminished the Artic sea ice that protects the Kivalina coastline.  As a result, the plaintiffs argued that their protection from winter storms has diminished, resulting in erosion and destruction of the land which will require that Kivalina’s residents be relocated.  Plaintiffs sought monetary damages for these impacts, which they estimated in a range of $95-400 million.

The United States District Court for the Northern District of California dismissed the lawsuit on the ground that the case involved a political question more properly decided by the legislative and executive branches.  The court also concluded that the plaintiffs lacked standing.  On the political question issue, the Court ruled that:

Regardless of the relief sought, the resolution of Plaintiff’s nuisance claim requires balancing the social utility of Defendants’ conduct with the harm it inflicts.  That process, by definition, entails a determination of what would have been an acceptable limit on the level of greenhouse gases emitted by Defendants….the allocation of fault – and cost of global warming is a matter appropriately left for determination by the executive and legislative branch in the first instance.

On standing, the court ruled that “[i]n view of the undifferentiated nature of greenhouse gas emissions from all global sources and their worldwide accumulation over long periods of time, the pleadings make clear that there is no realistic possibility of tracing any particular alleged effect of global warming to any particular emissions by any specific person, entity, group at any particular point in time.”

The decision will undoubtedly be appealed to the United States Court of Appeals for the Ninth Circuit, a court known for its liberal outlook.  At the same time, one of the other lawsuits, involving allegations that energy companies’ emissions contributed to Hurricane Katrina, is now pending and awaiting decision in the United States Court of Appeals for the Fifth Circuit.  Defendants in the Second Circuit Connecticut v. AEP case are currently considering whether to seek rehearing.  Ultimately, this issue may end up in the Supreme Court.

See our discussion of the Second Circuit Connecticut v. AEP case and the issues these global warming tort lawsuits raise.

* * *

P.S., I also blogged on the Second Circuit case here.

The Carnegie Endowment for International Peace held a useful discussion on “Can a Deal Be Reached at Copenhagen?” in Washington on Wednesday. Carnegie’s President, Jessica Mathews, moderated the panel, and the discussants were: Margot Wallstrom, Vice President of the European Commission and former Commissioner for the Environment; Eileen Claussen, President of the Pew Center on Global Climate Change and former Assistant Secretary of State in charge of negotiating the Kyoto Protocol; and Mohamed El-Ashry, Senior Fellow of the United Nations Foundation and former Chairman of the Global Environment Facility.

Mathews began by saying that since it now seemed highly unlikely that the fifteenth Conference of the Parties to the U. N. Framework Convention on Climate Change (to be held in Copenhagen in December) would reach a deal on a new agreement to succeed the Kyoto Protocol, the question that they should discuss was what can we still hope to get out of Copenhagen. Margot Wallstrom disagreed. She said that she still believes Copenhagen will succeed because we cannot afford to fail. The new treaty must include broad mandatory cuts in emissions and a financing mechanism by which rich countries would pay poor countries to cut their emissions. Wallstrom later said that President Obama must go to Copenhagen and that many world leaders needed to go and “must tie themselves to the mast”. By attending, heads of state would not be able to accept failure as the outcome.

Eileen Claussen was astute, candid, and realistic. She said that there were three main obstacles to a new treaty going into the recent negotiations in Bangkok and that a fourth major obstacle had arisen at Bangkok. First, President Obama cannot say what the U. S. is committed to until, at a minimum, the Senate passes a bill. Claussen thinks that Waxman-Markey is a good bill even though flawed, but that what the Senate might produce was still in doubt. The Environment and Public Works Committee would undoubtedly pass out the Kerry-Boxer bill, but the committee membership’s was not representative of the Senate as a whole. She later added that by her count, there were forty definite Democratic votes for Kerry-Boxer, three and three-quarters Republican votes as a result of Senator Lindsey Graham’s (R-SC) op-ed with Senator John Kerry (which remark drew a laugh, but which she didn’t explain). Although support from a number of additional Democrats was likely, Claussen said that legislation could not pass without more Republican votes. And she added that no energy-rationing bill would get the sixty votes required without a significant nuclear component.

The second obstacle according to Claussen is that the developing countries won’t commit to anything until they know what commitments the U. S. will make. Third, the question of the financing mechanism by which rich countries would pay for emissions reductions in poor countries was entirely unresolved. The fourth obstacle that had arisen in Bangkok was procedural, but very serious, according to Claussen. The problem is whether the new treaty continues the Kyoto Protocol or dumps Kyoto and starts afresh. Given all these issues to be resolved, Claussen concluded that the best that could be hoped for in Copenhagen was a strong statement that they would conclude a new treaty in the near future—say by next summer.

Mohamed El-Ashry said that the negotiators in Copenhagen needed to go back to the Bali Action Plan and achieve step one in that plan. This would mean agreeing on the immediate steps that were necessary to meet the 2020 target for emissions reductions. These would include energy efficiency measures, more renewable energy, and forest sequestration. According to a report by McKinsey and Company, these measures combined could achieve 75% of the reductions necessary by 2020 at a net economic benefit of $14 billion. Achieving step one would build confidence, which would help negotiators in future years to achieve step two—binding emissions targets.

There were a number of interesting questions from the audience and several quite revealing answers from the panelists. Quite a bit of discussion swirled around the topic of who would be to blame if Copenhagen failed. Claussen replied to one question that she was trying hard to think of some way that the COP can end up not blaming the U. S. for everything. Wallstrom observed that expectations were running high in the European Union that a deal would be reached and added that she couldn’t guarantee that the European Union wouldn’t blame the U. S. if Copenhagen failed. (This is odd given the fact that George W. Bush is no longer President.)

In reply to a question about what lessons for the future could be learned from the failure of the Kyoto Protocol in the Senate, Claussen said that she feared that not much had been learned, but what the Obama Administration took away from it was that the Senate must go first before the U. S. makes definite international commitments. Wallstrom replied to a question about whether policies already in place would be dropped if Copenhagen failed by saying that the European Union would not abandon any of its climate policies because they gave the EU a competitive advantage. They make the EU less dependent on Russia, create lots of green jobs, and save money through greater energy efficiency. That of course is the EU’s line, but I think the scary thing is that Wallstrom actually believes it.

The Socialist International’s Commission for a Sustainable World Society has sent an interesting account of their recent meeting and release of their report, “From a high carbon economy to a low carbon society.” As revealed by Steve Milloy earlier this year, Carol Browner, former Administrator of the Environmental Protection Agency during the Clinton Administration and now President Barack Obama’s “climate czar,” is a long-time member of Socialist International . Here’s what Socialist International said about their meeting held at the UN in September:

“Holding its second yearly meeting in conjunction with the opening of the general debate of the General Assembly at the United Nations, the Presidium of the Socialist International, together with a number of Heads of State and Government, Heads of international institutions, and the members of the SI Commission for a Sustainable World Society and the SI Commission on Global Financial Issues, met at the United Nations Headquarters in New York on September 23 to address two of the major issues on the international agenda today: Climate Change and The Global Financial Crisis.

“Amongst the Heads of State or Government and Ministers joining Presidium members at the meeting were Tarja Halonen, President of Finland; Jalal Talabani, President of Iraq; Toomas H. Ilves, President of Estonia; Alvaro Colom, President of Guatemala; Boris Tadic, President of Serbia; Navim Ramgoolam, Prime Minister of Mauritius; Laurent Gbagbo, President of Cote d’Ivoire; Nkosazana Dlamini Zuma, Home Affairs Minister of South Africa, Mohamed El Yazghi, Minister of State from Morocco; Maged George, Environment Minister of Egypt; Marco Hausiku, Foreign Minister of Namibia and Abdelwaheb Abdallah, Foreign Minister of Tunisia.

“Also taking part, as guests, were Juan Somavía, Director-General of the International Labour Organisation (ILO); Helen Clark, Administrator of the United Nations Development Programme (UNDP); José Miguel Insulza, Secretary General of the Organisation of American States (OAS) and Alicia Bárcena, Director of the UN’s Economic Commission for Latin America and the Caribbean (ECLAC)….

“…[The] Report was introduced by Commission Co-Chair Ricardo Lagos, Special Envoy of the UN Secretary-General on Climate Change and former President of Chile. Commission members Sergei Mironov, Chairman of the Council of the Russian Federation and Chair of the Just Russia Party; Nkosazana Dlamini Zuma, South Africa’s Home Affairs Minister; Beatriz Paredes, President of the Institutional Revolutionary Party of Mexico, and Mohamed El Yazghi, Moroccan Minister of State, added to the presentation of the Report….”

I guess Browner was too busy implementing many of the report’s recommendations to make it to the meeting.

Updated 10/16/09

Today [Oct. 15, 2009], Rep. Darrell Isa (R-CA), ranking member of the House Committee on Oversight and Government Reform, and Rep. James Sensenbrenner, ranking member of the House Select Committee on Energy Independence and Global Warming, released a joint minority staff report titled, The Politics of EPA’s Endangerment Finding.

I’ll say more about the report after reading the 146-page document. Key findings include:

• EPA prejudged the outcome of its endangerment finding to advance the Obama administration’s policy agenda.
• EPA’s effort to control greenhouse gas emissions will give the Agency authority over the entire U.S. economy. 
• EPA did not conduct its own analysis. Instead, the Agency deferred to the judgment of two external literature surveys — the IPCC reports and the U.S. National Assessment of Climate Change. 
• EPA erected internal barriers to stifle dissent within the Agency.
• EPA apparently refused to read the thousands of comments submitted in response to the previous administration’s Advance Notice of Proposed Rulemaking.
• EPA punished and demoted whistleblower/skeptic Alan Carlin and retaliated against the office in which he works.
• Energy and Environment Czar Carol Browner may have violated the Presidential Records Act during fuel-economy negotiations between EPA, the Department of Energy, the State of California, and the auto industry.

These points seem spot on to me. The report, however, contains details I have not seen elsewhere. As aforesaid, I’ll blog about this later.

Update

Having read the Issa-Sensenbrenner report, I’d like to share a few details.

Non-responsiveness to congressional inquiries

• In a letter of March 12, 2009, Rep. Issa asked EPA Administrator Lisa Jackson for various information relating to public comment on the Agency’s Advanced Notice of Proposed Rulemaking (ANPR), such as how many comments EPA received, how many of those were in favor of an endangerment finding, how did the Agency determine which comments were “key” and required a response. Ms. Jackson’s letter of May 18 was completely non-reponsive to these queries. Issa and Sensenbrenner justifiably conclude that EPA may not have read most of the comments on the ANPR. 
• Jackson’s May 18 letter was also non-responsive to Mr. Issa’s question as to whether EPA had ever before found a pollutant to “endanger human health” solely on the basis of indirect effects on weather and climate, and to his request for a list of precedents on which EPA relied to classify CO2 emissions as a health hazard due to their supposed indirect effects.
• All her letter says on this matter is: “EPA’s notice of the proposed endangerment finding identifies the precedents the agency relied on its making the proposal.” If so, then why not quote the relevant passage, or cite the pertinent pages? The public health discussion (pp. 18901-18902) in EPA’s endangerment proposal discusses no precedents and lists no previous examples of pollutants deemed health hazards by virtue of their indirect effects.

Bad-mouthing SBA

• On April 24, 2009, EPA posted an OMB-coordinated inter-agency review of its proposed endangerment finding. The review warned of “serious economic consequences” for small business, noted that EPA had not “undertaken a systematic risk analysis or cost-benefit analysis,” and said that EPA seemed to “stretch the precautionary principle” in making the case for endangerment.
• Obama officials dismissed these criticisms as irrelevant, claiming the author was “a Bush holdover.” In fact, the so-called holdover was a career civil servant originally hired by the Small Business Administration during the Clinton Administration. Her previous job was as an aid to a Democratic Member of Congress.
• OMB also disclosed the name of the “Bush holdover,” violating its own protocol designed to protect professional staff from political retaliation. OMB claimed it divulged the analyst’s identity to “correct inaccurate and misleading media reports.” However, the reports simply quoted the OMB document. OMB never clarified what “inaccuracies” its breach of protocol corrected.

Mistreatment of Dr. Alan Carlin

• Dr. Carlin, a 37-year EPA analyst, wrote a comment critical of the science on which EPA proposed to base its endangerment finding. Al McGartland, director of EPA’s National Center for Environmental Economics (NCEE), the office in which Carlin works, refused to transmit Carlin’s comment to EPA’s Office of Air and Radiation, told Carlin not to discuss the endangerment proceeding with anyone outside of NCEE, ordered Carlin to discontinue all work on climate change, removed him from NCEE’s Climate Workgroup, and cut him from the group’s email list.
• In addition, McGartland reassigned Carlin to tasks (updating a grants database and an economic incentives report) previously performed by a junior staffer and an outside contractor.
• McGartland’s behavior appears to have been motivated by fear of reprisal from Agency higher-ups. His email to Carlin of March 17 states: “The Administrator and the administration has [sic] decided to move forward on endangerment, and your comments do not help the legal or policy case for this decision . . . I can only see one impact of your comments given where we are in the process, and that would be a very negative impact on our office.”

EPA efforts to discredit Dr. Carlin

• To discredit Carlin’s comment, EPA initially stated that Carlin was “not a scientist” and “not part of the working group dealing with the issue.”
• However, Carlin holds a degree in physics from the California Institute of Technology, was a member of NCEE’s Climate Workgroup, and is listed as an author of the original (2007) endangerment finding Technical Support Document (TSD).
• In response to a July 17 letter from Rep. Joe Barton (R-TX), EPA confirmed that “Dr. Carlin was one of several members of the NCEE workgroup that reviewed the [2009] draft TSD for EPA’s proposed endangerment finding for greenhouse gases.”

On July 8, 2009, EPA finally included Dr. Carlin’s comment in its endangerment docket — almost one month after the comment period closed. Alan Carlin still has a job — although he no longer works on climate issues. NCEE has not been defunded, despite concerns expressed by Carlin’s colleague John Davidson (and hinted at in McGartland’s March 17 email) that Agency brass could punish NCEE for committing climate heresy.

Public outcry over the treatment of Alan Carlin and the ongoing investigations by Reps. Issa, Sensenbrenner, and Barton have not produced an atmosphere of open and free intellectual discourse at EPA. Nonetheless, the outcry and the investigations can only help deter future acts of retaliation against climate skeptics.

For further discussion of these issues, see my blog post, John Broder’s spin job on Alan Carlin.

Updated 10/16/09

Over the weekend, Sens. John Kerry (D-MA) and Lindsey Graham (R-SC) co-authored an oped in the New York Times titled, “Yes We Can (Pass Climate Change Legislation).”

On Tuesday, my colleague Myron Ebell responded with “Yes We Can (Raise Your Energy Prices and Send Jobs Abroad).”

On Wednesday, the Washington Examiner  scorned “Lindsay Graham’s costly collegiality.”

Thursday, on MasterResource.Org, the free-market energy blog, I posted “Sen. Lindsey Graham’s Me-Too Kyotoism (will he snatch defeat from the jaws of victory?)”

In the Washington Examiner, Mark Tapscott concludes that “Lindsey Graham is the Senate’s densest Republican.”

Timothy H. Lee of the Center for Individual Freedom says Lindsay Graham Desperately Tries to Become Cool with Global Warming.

On November 4, California regulators may vote to ban big-screen televisions. The large sets use more energy than they would prefer.

Commissioner Julia Levin claims the ban “will actually save consumers money and help the California economy grow and create new clean, sustainable jobs.”

It is easy to imagine the ban costing tv manufacturing jobs; less so the jobs that would take their place.

Fortunately, the ban isn’t terribly enforceable. Consumers can just drive to Arizona, Nevada, or Oregon to get the kind of tv they want.

A final point on semantics: what does “sustainable” even mean, anyway? It is a meaningless buzz term, right up there with “synergy” and “paradigm.” This decade’s equivalent of “social justice.”

If anything, use of the word “sustainable” signals that a person knows not of what they speak. If you’re unable to defend a proposal on the merits, just use fashionable buzz words that poll well.