December 01, 2006

The Supreme Court appeared divided as it ventured for the first time on November 29, 2006, into a raft of legal questions surrounding the regulation of heat-trapping greenhouse gases. Justices spent most of the time during the Court’s one-hour oral arguments examining whether Massachusetts and 11 other states and environmental groups have legal standing under the Constitution to challenge a U.S. Environmental Protection Agency (EPA) decision not to regulate greenhouse-gas emissions from new cars and trucks.

Jim Milkey, an assistant attorney general for Massachusetts, urged the court to force EPA to reconsider its 2003 ruling not to regulate the gases. Milkey explained that climate change is causing ocean water expansion and sea-level rise, thereby harming coastal states.

“The injury doesn’t get any more particular than states losing 200 miles of coastline, both sovereign territory and property we actually own, to rising seas,” Milkey said.

But at least two members of the court — Chief Justice John Roberts and Justice Antonin Scalia — signaled they had doubts about Massachusetts’ ability to show it has standing in the case.

Legal analysts predict Justice Anthony Kennedy is poised to be the critical swing vote in the case. During oral arguments, the appointee of former President Reagan hinted that Massachusetts has room to advance its case.

Speaking at Georgetown University Law School, former EPA general counsel E. Donald Elliot said he expected Massachusetts to squeak by with a narrow victory on standing. Elliot, who served under former President George H.W. Bush, said the current Bush Administration may be forced into revisiting the climate issue before it leaves office in January 2009.

Legal experts agree that if a majority of the justices side with EPA instead, it could raise the bar much higher for environmental litigation involving global warming, where the harm from a changing climate is either in the future or only now emerging.

ESA’s President has issued comments on the case, available at: www.esa.org/pao/newsroom/pressReleases2006/11292006.php

A new Interior Department report finds that substantial volumes of oil and gas on energy-rich federal lands are off-limits to development — a conclusion that is likely to spur industry calls for wider domestic access.

The Bureau of Land Management (BLM) issued a congressionally mandated study of oil and gas on 99 million acres of federal lands. The report — a revision of a 2003 study — finds 51 percent of the oil and 27 percent of the gas on these lands are closed to leasing. Three percent of the oil and 13 percent of the gas are available under standard leasing terms. Forty-six percent of the oil and 60 percent of the gas are available but subject to various restrictions, such as seasonal drilling limits, according to BLM.

Areas in Alaska, the East and two Western regions — the Wyoming Thrust Belt and the Denver Basin — were not included in an earlier 2003 version of the study. A large amount of the oil listed as off-limits is found in the Arctic National Wildlife Refuge.

BLM Director Kathleen Clarke said, “This kind of nationwide comparison will help us plan for domestic oil and gas development on public lands in a way that protects the environment. Secure and affordable domestic energy, and healthy natural landscapes are important for the quality of life in this country.”

The 110th Congress should provide oversight for the Interior Department’s oil-and-gas royalty collections and a range of other energy-related issues, according to new Governmental Accountability Office (GAO) recommendations. GAO says “key topics” for the new Congress should include reliability of data on oil production volumes, prices and royalty rates. Others should include the financial impact of royalty waivers, called “royalty relief,” and the “extent to which royalty provisions reflect changing market conditions.”

Specific topics for oversight, according to GAO, should be: evaluating the “risks, benefits, and implications for national security of investments that deepen our ties to international energy markets (e.g. overseas refineries, oil imports); examining the Nuclear Regulatory Commission’s licensing process for new nuclear plants; the implications of the Energy Department’s research and development portfolio; development of renewable energy markets; and energy efficiency programs.

For the full report, see: http://www.gao.gov/new.items/d07235r.pdf

Public Employees for Environmental Responsibility (PEER) have claimed that the U.S. Environmental Protection Agency (EPA) is destroying and dispersing “vast troves of unique technical reports and analyses” from its chemical library collections. The Office of Prevention, Pollution and Toxic Substances’ library closed Oct. 20, as part of EPA budget cuts proposed by the Bush Administration. The White House wants to cut $2 million from EPA’s library budget, an 80 percent reduction yet to be approved by Congress that is forcing the closure of three of 10 regional libraries. The agency has announced broader plans to digitize the entire library system.

The Bush Administration has already closed EPA’s Washington library and regional libraries in Chicago, Dallas and Kansas City. And there have been reductions in operating hours and public access at regional libraries in Boston, New York, San Francisco and Seattle. Key congressional Democrats have chided EPA over the library closures and demanded that appropriators stop the shutdowns when they take up the agency’s Fiscal Year 2007 spending legislation. The Government Accountability Office also agreed to open its own investigation.

Democrats who will chair the Science, Energy and Commerce, Government Reform, and Transportation committees protested the library closures in a letter to EPA Administrator Stephen Johnson. Reps. Bart Gordon (TN), John Dingell (MI), Henry Waxman (CA) and James Oberstar (MN) said they have “serious concerns” about EPA’s library reorganization policy and urged the agency to preserve all materials pending a congressional investigation.

The National Marine Fisheries Service released a proposed recovery plan designed to assist orcas in Washington’s Puget Sound that are dying off because of a loss of habitat, exposure to toxic chemicals and a loss of primary food sources.

Highlights of the plan include calls for new research into environmental issues affecting the whales, better coordination between state and federal agencies and cleanup and improved monitoring of sites in the Sound contaminated with toxic chemicals. The plan will not protect some areas of the Sound environmentalists consider important to the survival of the whales such as the shoreline, the Hood Canal and the Pacific Coast.

Deep cuts in federal spending for state and local air pollution programs are hamstringing efforts to combat ground-level ozone and other air pollutants that contribute to public health problems, a new report has found. In a detailed analysis of 11 states, researchers from the Center for American Progress and The Center for Progressive Reform say inspections of point-source emitters such as industrial plants are woefully inadequate.

In Texas, for example, the Department of Environmental Quality employs one inspector for every 352 permitted emitters of ozone-forming pollutants, the report says. The inspector-to-permitted-facility ratio is lower in other states but still greater than 1 to 100 in four large states: California, New Jersey, Illinois and Georgia.

The report also questions the U.S. Environmental Protection Agency’s (EPA) 2001 guidance recommending that some permitted facilities be inspected for air quality compliance only once every five years, as opposed to annually or even twice per year.

The Forest Service must stop work on 284 oil and gas projects and an Idaho road project because they violate the Clinton-era roadless rule that was recently reinstated, a federal judge ruled. Magistrate Judge Elizabeth Laporte of the U.S. District Court in San Francisco sided with four state attorneys general and 20 environmental groups in blocking the projects approved over the past five years. In September, Laporte reinstated the Clinton-era Roadless Area Conservation Rule that limits roadbuilding, logging and other development in about 50 million acres of national forests.

Laporte’s injunction applies to roadbuilding associated with oil and gas drilling on inventoried roadless areas in 14 national forests, mostly in the Rocky Mountains. The Justice Department and the Forest Service argued Laporte’s ruling should not apply to previously approved projects and argue a further injunction is unnecessary because the Clinton roadless rule is already on the books.