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First of all, I just want to let you know that if you weren't in the Marriott Ballroom J for the Climate Change Legislation and Regulation Session on Wednesday, you missed out - and though this post won't do the presentations justice, it will have to suffice.
To start off, an associate of Kelsey R. Coulter presented Monitoring and Measuring Iowa's Carbon Balance. The presentation began with an overview of the Carbon balance on our planet (who doesn't love a good mass balance!). The mass balance shows a net atmospheric increase of 4.1 Gigatons per year which, considering the current Carbon concentration in the atmosphere, is equivalent to a 0.5% per year increase. Using satellite images, it was shown that Iowa seems to sequester more Carbon into the soil than any other state. Carbon flux at the surface (positive or negative) is highly dependent on seasons. When corn and beans are growing in Iowa, the Carbon sequestration is highly visible. Additionally as a majority of corn and beans are exported to other states, the carbon release from those items is spread over the country.
Maybe it's just because I grew up in the Mecca of all things Political, but Arnold Reitze's Federal Control of Greenhouse Gas Emissions presentation was overwhelmingly informative and intriguing. Tempered with humor, Reitze systematically went through historical and contemporary actions (or lack thereof) for mitigating emissions. The slides were like a page torn out of this morning's Obituaries - a roll call of impotent global attempts and dead congressional acts. Reitze explained the politics, disagreements and other reasons for the failure of Kyoto to be ratified by the United States and the subsequent deadlock in the Copenhagen discussions. In the past two years Congress saw a proposal that included Cap-and Trade that passed in the House (H.R. 2454 Clean Energy and Security Act of 2009) but never went anywhere in the Senate. A few proposals came through the Senate (S. 1462 American Clean Energy Leadership Act of 2009, S. 1733 Clean Energy Jobs and the American Power Act) including provisions ranging from funds for energy efficiency and clean energy technology to specified percent reductions in CO2 and Cap and Trade. Of course, after the recent 2010 elections, it will be interesting to see what kind of proposals get introduced, and if they come to fruition.
Reitze and Mary Ellen Ternes of McAfee & Taft (Greenhouse Gas Legislation, Regulation and Litigation - Update Fall 2010) both spoke about how Litigation is becoming somewhat of an effective tool at enforcing EPA standards and the Clean Air Act while Congress squabbles over proposal particulars. The Clean Air Act became law in 1970 (this year is the 40th Anniversary) and gave air pollutants the broad definition of "any physical chemical substance." The difficulty with litigating under the Clean Air Act, according to Ternes, is proving as a plaintiff that you have "Standing," for which you need the following:
- Injury in fact (you have suffered identifiable harm because of the defendant's acts)
- Causal Relationship (connection between the defendant's acts and your injury)
- Likelihood that the injury will be redressed (fixed or due reparations)
In the pivotal case of Massachusetts v. Environmental Protection Agency (2007), the Supreme Court ruled that Greenhouse Gasses (GHGs) can be regulated by the EPA under the Clean Air Act. In 2009, the EPA published its Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) for the Clean Air Act which clearly stated the hazards of GHGs, and is, of course, being hotly litigated. More recently, New Source Review (NSR) and Prevention of Significant Air Quality Deterioration (PSD) permits have been proposed by the EPA which would, in theory, be enforced by the states.
In addition to the Clean Air Act, the public can bring common law allegations against companies on the grounds of public nuisance. In the 2009 case, Connecticut v. American Electric Power Co., the U.S. Court of Appeals for the Second Circuit overturned a lower court's rejection of the case (under political question exclusion) and sent it back to the District Court Level to review. In Comer v. Murphy Oil USA (2009), another public nuisance case, most of the judges had to recuse themselves because they owned stock in Murphy Oil or other industry defendants.
Perhaps our elected officials can't quite decide on how, when, who, why, etc. to get any kind of climate change legislation passed, so we are left with litigation as the only alternative. Yes, it's hard to establish Standing, but companies don't like having cases brought against them - it introduces risk. Not only do lawyers cost money, but bad press can be exceedingly damaging. Perhaps just the avoidance of legal issues will persuade companies to limit their GHG or other hazardous chemicals emissions - it seems to be the only option we have at the moment.
Something to keep an eye out for is California's Cap-and-Trade Program which will likely be decided sometime in December of this year. In November, California voted down Proposition 23 which would have suspended the onset of climate change regulations. It will be interesting to see what happens in California on these issues as California is often seen as a sandbox for political change.
To keep up on all of the climate litigation, check out www.climatechart.com. Check often - this is a very active time for climate litigation.
And to summarize the current situation concisely, I'll leave you with Reitze's closing remark:
"Confusion reigns. Chaos reigns. The environment gets worse and who knows what's going to happen."
