States Should Think Twice Before Refusing Any Response to EPA’s Clean Power Rules

By Professor Dan Selmi

The complete article was originally published by Columbia Law School's Sabin Center for Climate Change Law, where Prof. Selmi is a Visiting Scholar.

Excerpt:

The Environmental Protection Agency’s (EPA’s) proposed rules for existing power plants play a central role in the Obama Administration’s plans for regulating greenhouse gas emissions to prevent climate change. The rules, technically known as the “Existing Source Performance Standards,” will require a major effort from many states to change their methods of producing electricity, disrupting the status quo in an area long the province of state public service commissions. Not surprisingly, the proposed rules generated an avalanche of comments to EPA ranging from full support to vehement opposition, with the commenters also staking out positions on various technical issues. Law firms are raising questions about the rules' validity and gearing up to take part in the inevitable litigation over them.

The high-profile debate has led some critics of the rules to argue that states should oppose them by simply opting out of the entire regulatory process and refusing any response to the rules. The movement has even acquired a slogan: “Just Say No.” While the slogan is borrowed from Nancy Reagan’s anti-drug message in the 1980s, it still has the same forceful ring to it. And “saying no” would give states the satisfaction of telling Washington off for its intrusive regulations.

Some states have begun to embrace the "Just Say No" idea by considering legislation that, to varying degrees, would hobble the adoption of state plans complying with the upcoming regulations. For example, Kentucky enacted a law requiring its environmental regulators to adopt separate state standards of performance for controlling carbon dioxide emissions from existing power plants that burn both coal and natural gas. The legislation might prohibit the state from adopting an approvable plan under the upcoming power plant regulations. South Carolina is considering a resolution that would “urge” the state’s environmental department not to prepare or submit a plan to EPA until the legality of the new rules is decided, while a similar bill proposed in Kansas would prohibit state agencies from drafting a response until all litigation is resolved.  The Colorado Senate passed a bill that would cut the state’s renewable energy requirement in half. Various other states are considering action.

The “Just Say No” slogan is pithy, and as an immediate political response, states may be tempted to follow its advice by taking legislative or executive action that prevents or hinders the state from responding to the upcoming rules. Before taking that step, however, states should carefully consider the consequences. If they do so objectively, it becomes apparent that opting out of the process at this point can result in significant disadvantages.

Read the full article.

Prof. Selmi on California Appellate Court's Rebuke of Sustainability Plan

By Professor Dan Selmi, Fritz B. Burns Chair in Real Property

This post originally appeared on the Climate Law Blog of the Center for Climate Change Law at Columbia Law School.

In an emphatic opinion, a state appellate court has invalidated the environmental impact report for the first “sustainable communities strategy” prepared by a regional council of government in California. In Cleveland National Forest Foundation v. San Diego Association of Governments, the court found that the impact report did not evaluate the plan’s consistency with an executive order setting reduction targets for greenhouse gas (GHG) emissions. The report also did not sufficiently analyze alternatives and mitigation measures. Unless the California Supreme Court hears the case, the opinion will ensure that sustainable community strategies, which integrate transportation planning with efforts to reduce GHGs, must undertake a long-range examination of how those plans will affect such reductions.

AB 32 is California’s most well-known law on climate protection. However, a second law, the Sustainable Communities and Climate Protection Act of 2008, directed the state’s Air Resources Board to develop regional GHG reduction targets for autos and light trucks by 2020 and 2035. It then required regional planning agencies to adopt “sustainable communities strategies” that would meet those reduction targets. The sustainable communities strategy would be a part of each planning agency’s long-term regional transportation plan. Additionally, an Executive Order issued by former Governor Arnold Schwarzenegger required reduction of GHG emissions to 1990 levels by 2020, and to 80 percent below 1990 levels by 2050.

Read the complete post.

The Second Battle of Blair Mountain

By Professor Daniel P. Selmi

The first paragraph of an appellate opinion is often bland, perhaps informing the reader generally about the legal issue involved and previewing the Court's ruling. It serves a functional purpose and is not intended to entertain. In contrast, the opening paragraph of Sierra Club v. Jewell,[1] a 2014 decision of the U.S. Court of Appeals for the District of Columbia Circuit, immediately grabs the reader's attention by launching into a brief description of a fascinating episode in American history:

The Battle of Blair Mountain is the largest armed labor conflict in our nation's history. In late August 1921, after years of tension between coal miners and coal companies, more than 5,000 West Virginia coal miners began a march to Logan and Mingo Counties, West Virginia. They aimed to unionize and liberate fellow miners living under martial law. When they reached Blair Mountain, a 1,600–acre area in Logan County, they encountered roughly 3,000 armed men. Those men, mostly hired by coal companies, manned a ten-mile defensive line across Spruce Fork Ridge, including Blair Mountain. They dug trenches, mounted machine guns, and dropped homemade bombs. The miners responded with gunfire of their own. The Battle endured for several days, causing numerous casualties. President Harding sent federal troops to quell the fighting, and the coal miners surrendered.[2]

This blog posting recounts the story of the litigation over the Battlefield, in which I was one of the lawyers representing the appellants, and the Court of Appeal's opinion.

The Climate Elephant in the Voting Booth

By Associate Professor Kathy Trisolini
In the immediate aftermath of "Superstorm" Sandy, a number of articles appeared in the mainstream press with pundits asking how Sandy might affect the election. Aside from practical questions about the logistics of early voting, most pundits focused on how the candidates' responses could affect their respective public images. "Who would 'look like' a leader?" they asked. Yet the presidential election is much more important than just another issue of People magazine, a fact obscured by the excessive focus on image and how it affects the horse race.

Sandy is just another example of a changing trend in extreme weather events. Last summer, excessive drought damaged crops and stranded boats on the Mississippi; each summer we are setting new heat records and Arctic ice falls to historic lows. Human-caused climate change is altering the stable environment upon which we have relied in choosing where to live and deciding how to build our homes, how to lay out our infrastructure and how to develop our economy. This should be an election issue of the first magnitude.

Apparently under sway of the woefully mistaken notion that environmental protection and economic health are competing goals, the national Republican Party has decided that it is in its interest to take an extreme anti-science position on climate change. In fact, as Sandy should be making clear, our economic health (not to mention our personal safety) is highly dependent on stable climactic conditions. The economy is not thriving when the nation's airports are shut down, Lower Manhattan is under water, and millions of people are without electricity.

Book Review: Private Empire: Exxon-Mobil and American Power by Steve Coll

By Professor Jeffery Atik

Steve Coll's Private Empire provides oil spill-to-oil spill coverage of the recent history of Exxon-Mobil, and in that course brings us Bush/Cheney adventures, climate change deniers, armed conflicts in lost and forgotten places, and the rise (and fall) of Russian oligarchs. In this complex work, Exxon-Mobil appears misunderstood and misunderstanding.

Coll begins his story with the 1989 crash of the Exxon Valdez, the moment that seared Exxon in the public consciousness as an environmentally reckless brute, pandering to America's oil addiction at the cost of America's soul. Exxon reacts from this crisis in both positive and negative ways. It becomes obsessed with safety -- though the company's pursuit of safety is not to assure accident avoidance as much as it is a premise for increasing demands for precision and attention from its workforce. The safety culture Exxon creates becomes, in a menacing way, grounds for enforcing discipline, regimentation and uniformity-of-voice throughout the enterprise.

The second formative moment Coll relates is the 1993 removal of Exxon's headquarters from New York City (Exxon was the former Standard Oil of New Jersey) to Irving, Texas. Neither bi-coastals nor Texans would be surprised by the resultant shift in company worldview.

Exxon CEO Lee Raymond dominates the first half of this book. It is he who responds to the Exxon Valdez affair, he who engineers the merger that forms Exxon Mobil, he who denies the science behind climate change. And he's one tough cookie. His message to an Exxon Mobil executive recovering in a hospital after a bicycle accident: "[T]his is your last injury as an employee of Exxon."

Raymond is depicted as a credible scientist who takes pride in Exxon-Mobil as a science-based organization. Yet he refused to abandon his skepticism about climate change despite the accumulation of scientific evidence. Raymond and Exxon-Mobil's public affairs department are in no small part responsible for the emergence of the contemporary denier culture in American politics -- the often successful strategy for blocking unwelcomed regulation by attacking the soundness of its underlying scientific premises.

ExxonMobil to 'decide' China-Vietnam dispute in South China Sea

By Professor Jeffery Atik

Later this month, the ASEAN foreign ministers will meet in Phnom Penh - and the continuing disputes over the South China Sea will occupy much of the attention of the attendees.

The intricate and intriguing conflicts between China and its various Southeast Asian neighbors - particularly Vietnam and the Philippines - over the development of oil and gas reserves in the South China Sea may be resolved, in part, by corporate decisions of multinational oil firms such as ExxonMobil.

At first blush, the South China Sea is yet another vexing territorial dispute, with competing states advancing arguments more designed to indulge the nationalistic impulses of domestic constituencies than to follow contemporary international law. China's claim to the South China Sea in its broadest form - the so-called 'nine-dash map' - is the most extravagant, and the flimsiest. To be fair, China merely references the nine-dash map; it avoids expressly claiming sovereignty over what is by far the greater part of the sea.

Two major developments have significantly aggravated these disputes. The first is the prospect of finding substantial reserves of oil and gas under the South China Sea. Control of these resources is of immense financial and strategic importance to the rival claimants. The second is the adoption of modern legal principles - fixed in the UN Convention on the Law of the Sea or UNCLOS - that motivate the states to make gestures that otherwise would seem incoherent. While the possibility of a hot conflict persists, the eventual resolution of the South China Sea disputes may result from commercial considerations - including decisions taken in corporate boardrooms.

Professor Dan Selmi Argues Successful Case in CA Supreme Court

Professor Dan Selmi, an advocate for environmental reform, was counsel in a case against paint manufacturers in a unanimous decision from the California Supreme Court. Selmi represented the South Coast Air Quality Management District which regulates pollution from sources other than vehicles. The new environmental standards require the development of new technology to prevent pollution.
[Read the full article from the Los Angeles Times here.]

American Electric Power Co. v. Connecticut;: Supreme Court Reaffirms EPA Authority to Regulate Greenhouse Gases

By Associate Professor Katherine Trisolini

This is another installment in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

Today the Supreme Court handed down its decision in American Electric Power Co. v. Connecticut. Justice Ginsburg's opinion holds that the Clean Air Act displaces federal common law claims against power companies for contributing to the public nuisance of global warming. The decision reverses a Second Circuit case holding that state, local, and nonprofit plaintiffs had succeeded in stating a claim against five fossil-fuel fired power companies under federal common law. The Second Circuit case included a lengthy discussion supporting plaintiffs' standing and rejecting the trial court's conclusion that climate change presented a nonjusticiable political question.

While several headlines have focused on the Supreme Court's "rejection" of Connecticut's challenge, such attention to the formal outcome misses the real import of the case. The opinion bolsters EPA's authority to tackle greenhouse gases.

The Obama Administration had gambled that the Court would decide the case on the relatively narrow grounds that EPA's Clean Air Act authority to regulate greenhouse gas emissions from power plants displaces federal common law nuisance actions (leaving those who seek to reduce power plant emissions via federal law to first petition EPA rather than the courts).

Given the Court's 5-4 split on standing to raise a climate change challenge in Massachusetts v. EPA (2007) and the retirement of that opinion's author, Justice Stevens, the current case seemed like potentially fertile ground for a retrenchment on standing. However, the Administration's gamble seems to have paid off; conservatives did not get enough votes to decide the case on standing grounds. (Nor did the defendants succeed in luring the Court into expanding the narrow political question doctrine into a jurisdictional bar to climate change litigation.) Having initially been on the Second Circuit panel, Justice Sotomayor did not participate in the Supreme Court decision, leaving eight members to split evenly on the issue of standing. The opinion notes without elaboration that the Court's four to four division on standing leaves intact the Second Circuit opinion on that issue (and its general exercise of jurisdiction).

Do states have human rights?

By Professor Cesare Romano

This is Professor Cesare Romano's second dispatch from the Conference of the Parties of the Climate Change Convention and Kyoto Protocol in Cancun. Romano reported from the conference last week.

Something that happened in Cancun, at the Conference of the Parties of the Climate Change Convention and Kyoto Protocol (COP/MOP), made me wonder whether and to what extent states enjoy the same human rights individuals do.

To cut a rather long story short, virtually all major modern multilateral environmental treaties are endowed with a body and a procedure to ensure states' compliance with their obligations under the agreement. These are the so-called "non-compliance procedures."

The UNFCCC and Kyoto Protocol have a non-compliance body, made of independent experts, and a procedure to handle cases of non-compliance. Recently, Croatia was found in violation of certain of its obligations by the Compliance Committee's Enforcement Branch. In Cancun, Croatia raised a very interesting question. Namely, it argued that it had a right to appeal the Enforcement Branch's report, asking the matter to be referred to the plenary COP/MOP.

Climate change conference: Will Cancun deliver?

By Professor Cesare Romano

Once a year the world gathers to discuss what we should do to stop catastrophic climate change, or, more realistically, how we can give ourselves enough time to adjust to its inevitable effects. This past weekend an estimated 15,000 people, representing 194 states, NGOs and media converged on Cancun, Mexico, for the annual ritual of the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC) and the Parties to the Kyoto Protocol.

The last conference of this size produced as much emissions as a 150,000-person Northern European town. However organizers claim as much as possible is being done to keep emissions down--including using solar and wind to generate electricity, reducing water use in hotels and providing hybrid cars for transport. We are all encouraged to calculate our carbon emissions at computers provided at the conference and offset the impact by supporting local projects. The Mexican Government will plant around 10,000 trees and bushes around Cancun. The dress code, usually very formal, has been relaxed. We have all been encouraged by the president of the conference to buy and wear a guayabera, the Mexican male holiday shirt, in lieu of wearing a tie and jacket.

The last meeting of the COP (Copenhagen, December 2010) created very high expectations but failed to deliver. The meeting was emphatically billed as "the last chance to save the planet," and world leaders including President Barack Obama turned up. However, nations, and in particular the two key players, the U.S. and China, failed to agree on a legally binding target to cut emissions. Instead, a weak 'Copenhagen Accord' was signed that allows countries to choose their own targets but has no power to force them to keep the promises.

Will Cancun be different? In comparison to Copenhagen, this meeting has been massively down played. World leaders are not even turning up this time, leaving it to their environment and foreign ministers. It is generally agreed that a global deal to cut emissions is unlikely, now and ever. However, supporters of the process, particularly environmental NGOs, are hopeful that the talks could make progress towards a deal by putting in place the 'functioning architecture'. Don't hold your breath because they have been trying to do that since Berlin in 1995, when truly yours was a young legal intern at the Convention's secretariat.

At a minimum, this time I will have a Guayabera to take home. Stay tuned for more reports from the water-filled trenches of climate change!

This is the first in a series of reports Professor Cesare Romano will file from the Cancun conference.