Posts Tagged ‘Climate Change’

On March 1, 2013, the D.C. Circuit Court of Appeals upheld the listing of the polar bear as a threatened species under the federal Endangered Species Act.

The U.S. Fish and Wildlife Service listed the polar bear as threatened in 2008 because of shrinking sea-ice habitat. Industry groups challenged the listing determination under the Administrative Procedure Act’s “arbitrary and capricious” standard, arguing that the agency failed to establish a foreseeable extinction risk.  Environmental groups challenged the listing as insufficiently protective, arguing that the polar bear should be listed as endangered.

The District Court rejected all challenges on summary judgment, finding that the claims “amount to nothing more than competing views about policy and science” and therefore the agency receives deference.

The Court of Appeals emphasized that “a court is not to substitute its judgment for that of the agency”. The Court further noted, “The Listing Rule is the product of FWS’s careful and comprehensive study and analysis. Its scientific conclusions are amply supported by data and well within the mainstream on climate science and polar bear biology.”

The opinion is a win for both federal and state agencies that routinely base administrative decisions on scientific modeling and other complex data.

On November 13, 2012, the California Chamber of Commerce filed a petition seeking to block the California Air Resources Board (CARB) from auctioning carbon allowances. The complaint, filed in a Sacramento state court, asserts that CARB lacks the authority under AB 32 to raise money beyond what is needed to cover its administrative costs of implementing a state emissions regulatory program.

The Chamber argues that the California Legislature never authorized CARB to raise fees or taxes through an auction mechanism. Therefore, the program constitutes an unauthorized and unconstitutional tax according to the Chamber. The Chamber cites the California Constitution, which requires a two-thirds vote of the Legislature to raise taxes. In prepared statements regarding the suit, the Chamber states the current CARB proposal “is the most costly way to implement AB 32” and that it will “hurt consumers, the job climate, and the ability of business to expand” in California. The Chamber argues other states will decline to follow California’s AB 32 as a model if it is not designed to be the most cost effective way of reducing carbon emissions.

In the suit, the Chamber did not seek a court order blocking the first auction set for November 14, 2012, and state officials indicated the sale would proceed as scheduled. An affiliate of the Chamber indicated that the organization is trying to eliminate future auctions, which are set for regular intervals over the next eight years. Tim O’Conner, director of the Environmental Defense Fund’s California Climate and Energy Initiative noted that the Chamber’s filing of the suit on the eve of the first auction “seems quite unsavory” and could dampen California’s comprehensive program to curb greenhouse gases. The Chamber insisted the suit was not filed in relation to the specific auction scheduled for November 14, 2012.

CARB spokesperson Stanley Young indicated that the agency is confident the cap-and-trade program will withstand any court challenge. CARB believes the market-based approach to cutting greenhouse emissions gives California business flexibility to best decide now to reduce emissions.

The court must decide whether the auction should be viewed as a tax and whether AB 32 granted CARB discretion to design a mechanism, such as cap and trade, to curb the state’s greenhouse gas emissions. Considering that the Legislature passed legislation directing the State’s Department of Finance and CARB to develop a plan to invest auction proceeds and to set up an account for the deposit of auction funds, it seems the Chamber may have a difficult time convincing a court that the Legislature intended to limit CARB’s discretion in a way that would prohibit the auction of allowances for a cap-and-trade program designed under AB 32.

On November 14, 2012, the California Air Resources Board will conduct its first quarterly auction for greenhouse gas allowances under the cap-and-trade program, which is identified in the Assembly Bill 32 Scoping Plan as one of the strategies California will employ to reduce the greenhouse gas emissions that cause climate change.

In 2006, the Legislature passed and Governor Schwarzenegger signed AB 32, the Global Warming Solutions Act of 2006, which requires California to reduce greenhouse gas emissions to 1990 levels by 2020. In complying with AB 32, CARB prepared a Scoping Plan identifying a cap-and-trade program as one of the strategies California will use to reduce the GHG emissions that cause climate change. The cap-and-trade program places a limit on the GHG emissions allowed from pollution producers like refineries and cement manufacturers, and directs all entities subject to the cap (covered entities) to surrender “compliance instruments” equivalent to their GHG emissions to CARB. Compliance instruments include both allowances, which are allocated by CARB or obtained from auctions or secondary markets, and offset credits, which represent GHG emissions reductions achieved in sectors that are not subject to the cap.

This year, the cap-and-trade program covers about 350 industrial businesses operating a total of 600 facilities throughout the state. They include cement plants, steel mills, food processors, electric utilities, and refineries. Starting in 2015, the program will also cover distributors of natural gas and other fuels. For the first two years of the cap-and-trade program, covered entities will receive 90 percent of their allowances for free, with the free amount and the cap declining over time. Covered entities must either cut their GHG production to that level or buy credits to make up the difference. Companies that have more credits than they need can sell them at the auction, and CARB will sell additional credits as well. The proceeds from CARB’s sale of allowances sold at auction will be deposited in CARB’s Air Pollution Control Fund, awaiting appropriation by the Legislature.

The November 14, 2012, auction is the first, major step for CARB in implementing the cap-and-trade program. Though there remains strong opposition to the program from those businesses required to participate in it, CARB’s completion of this first auction signifies its commitment and readiness to enforce compliance with the cap-and-trade program when it comes online in January 2013.

On June 26, 2012, in Coalition for Responsible Regulation, Inc., et al., v. Environmental Protection Agency, No. 09-1322 (D.C. Cir. June 26, 2012), the D.C. Circuit Court of Appeals upheld the Environmental Protection Agency’s Endangerment Finding and Tailpipe Rule regarding greenhouse gases. The court also upheld the agency’s interpretation of the Clean Air Act (CAA) requiring major stationary sources of greenhouses gases to obtain construction and operating permits. Opponents of these rules disputed the Endangerment Findings and EPA’s authority to regulate GHG emissions under the CAA based upon the finding.

Background and Procedure

The EPA promulgated the disputed rules following the Supreme Court’s holding in Massachusetts v. EPA that GHGs may be regulated as an air pollutant under the CAA. In response to this holding, the EPA first issued its Endangerment Finding for GHGs. The Finding was based “on a considerable body of scientific evidence,” and EPA concluded that emissions of specified GHGs “contribute to the total greenhouse gas air pollution, and thus to the climate change problem, which is reasonably anticipated to endanger public health and welfare.” Based on this finding, the EPA was required under the CAA to establish motor-vehicle emission standards for GHGs. The ensuing Tailpipe Rule set GHG emission standards for cars and light trucks as part of a joint rule-making with fuel economy standards issued by the National Highway Traffic Safety Administration.

Due to EPA’s standing interpretation of the CAA, the Tailpipe Rule automatically triggered regulation of stationary GHG emitters under the Prevention of Significant Deterioration of Air Quality (PSD) program and Title V. The PSD program requires state-issued construction permits for stationary sources producing either 100 tons per year (tpy) or 250 tpy of any air pollutant. Title V requires state-issued operating permits for stationary sources that have the potential to emit at least 100 tpy of any air pollutant. EPA then issued two rules phasing in stationary source GHG regulation. First, in the Timing Rule, EPA concluded that an air pollutant becomes subject to regulation under the CAA (and therefore to PSD and Title V) only once a regulation requiring control of that pollutant takes effect. Therefore, EPA determined major stationary emitters of GHGs would be subject to PSD and Title V permitting requirements on the date the Tailpipe Rule became effective—or the date when GHGs first became regulated under the CAA. Following the Timing Rule, EPA promulgated the Tailoring Rule, providing that only the largest sources of GHG emissions, those exceeding 75,000 or 100,000 tpy CO2e, would initially be subject to the GHG permitting. This rule was adopted after the EPA determined requiring permitting for all sources would be overwhelmingly burdensome for both permitting authorities and stationary sources.

A number of states and regulated industries filed petitions for review of these new GHG regulations, arguing the EPA misinterpreted the CAA or otherwise acted arbitrarily and capriciously.

Challenges to the Endangerment Finding.

Petitioners challenged EPA’s Endangerment Finding on numerous substantive and procedural grounds. All challenges were rejected by the court.

1. EPA’s interpretation of CAA section 202(a)(1).

Petitioners argued that the EPA improperly interpreted CAA § 202(a)(1) as restricting the finding to a science-based judgment without considerations of policy concerns and regulatory consequences. Petitioners believed the EPA was required to consider the benefits of activities emitting GHGs, the effectiveness of emissions regulation, and the potential for societal adaptation to or mitigation of climate change. Petitioners argued that, by not considering these factors, EPA acted arbitrarily and capriciously.

The Court determined the plain language of CAA § 202(a)(1) was contrary to these arguments. The language of the section requires only that the endangerment evaluation relate to whether an air pollutant causes or contributes to air pollution which may reasonably be anticipated to endanger the public health or welfare. The court held that the evaluation process required “scientific judgment”—not policy discussions—about the potential risks of GHGs. The court also held that CAA § 202(a)(1) does not allow the EPA to consider, as part of the endangerment inquiry, the implications or impacts of regulations that might result from a positive endangerment finding.

2. The Scientific Record

Petitioners also challenged the adequacy of the scientific record underlying the endangerment findings. Petitioners initially challenged the EPA’s reliance on publications issued by the Intergovernmental Panel on Climate Change (IPCC), the U.S. Global Climate Research Program, and the National Research Council.  The court summarily rejected this argument, noting the scientific literature was peer-reviewed and consisted of thousands of individual studies on GHGs and climate change. The court also rejected, as “little more than a semantic trick,” that EPA delegated its authority by relying on these studies. The EPA relied on the reports not as substitutes for its own judgment but as evidence upon which it relied to make its ultimate judgment. The court noted that EPA is not required to re-prove “the existence of the atom every time it approaches a scientific question.”

Finally, in their challenge to the adequacy of the scientific record, Petitioners argued EPA erred in reaching the Endangerment Finding due to scientific uncertainty surrounding climate change. The court responded by noting the “substantial” body of scientific evidence supporting the Endangerment Finding. The court held the existence of some uncertainty does not, without more, warrant invalidation of an endangerment finding. The statute itself is designed to be precautionary in nature and to protect the public health. Further, the Supreme Court itself ruled in Massachusetts v. EPA that the agency may make an endangerment finding despite lingering uncertainty. The court held that the EPA’s decision was supported by substantial evidence and that the agency had relied on the scientific record “in a rational manner.” The court noted that it was not its role to reweigh the evidence before it and reach its own conclusion.

3. Lack of a quantitative threshold

Petitioners contended that the Endangerment Finding was arbitrary and capricious because the EPA did not define, measure or quantify either the atmospheric concentration at which GHGs endanger the public health or welfare, the rate or type of climate change anticipated to endanger the public welfare, or the risk or impacts of climate change. The court, again relying on the plain language of CAA § 202(a)(1), held that EPA is not required to establish a precise numerical value as part of its endangerment findings. Instead, section 202(a)(1) allows for a qualitative approach that allows the EPA to make case-by-case determinations based on the potential severity of harm in relation to the probability that the harm will occur.

4. EPA’s definition of “air pollutant”

EPA defined the GHG “air pollution” and “air pollutant” subject to the Endangerment Finding as an aggregate of six GHGs, which the EPA called “well mixed greenhouse gases”: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons (PFCs), and sulfur hexafluoride (SF₆). Industry Petitioners argued EPA’s decision to include PFCs and SF₆ was arbitrary and capricious because motor vehicles do not emit these pollutants. The court responded that no petitioner established standing to make this argument, as no petitioner could demonstrate an injury-in-fact resulting from EPA’s decision to include PFCs and SF₆ in the Endangerment Finding.

5. Failure to submit Endangerment Finding for review by Science Advisory Board

Petitioners claimed that the EPA’s failure to submit the Endangerment Finding to the Science Advisory Board (SAB) violates its mandate to “make available” to the SAB “any proposed criteria document, standard, limitation, or regulation under the Clean Air Act” at the time it provides the same “to any other Federal agency for formal review and comment.” The court noted that it wasn’t clear this obligation was even triggered because it wasn’t clear that the EPA provided the Endangerment Finding to any Federal agency for formal review and comment—it had only been submitted to the Office of Information and Regulatory Affairs pursuant to Executive Order 12,866 for informal review. The court found that even if the EPA violated its mandate by failing to submit the Endangerment Finding to the SAB, Petitioners did not show this error was prejudicial to the rulemaking.

6. Denial of petitions seeking reconsideration of Endangerment Finding

In the final challenge, Petitioners argued the EPA erred by denying all ten petitions for reconsideration of the finding. Petitioners asserted that internal documents and emails obtained from the University of East Anglia’s Climate Research Unit undermined the scientific evidence upon which the EPA relied. When determining whether to commence reconsideration of a rule, EPA considers an objection to be of “central relevance to the outcome” of that rule “if it provides substantial support for the argument that the regulation should be revised.” Additionally, the party raising the objection must demonstrate that it was impracticable to raise the objection during the public comment period.

The court rejected Petitioners’ assertion, finding that they failed to provide substantial support for their arguments that the Endangerment Findings should have been revised. The assessment had relied on over 18,000 peer-reviewed studies, and two errors identified in IPCC reports were harmless because EPA did not actually rely on such errors to reach the positive Endangerment Finding. Isolated errors identified by Petitioners did not rise to the level of substantial evidence required to support their arguments to overturn the Endangerment Findings.

Challenges to the Tailpipe Rule

Petitioners did not directly challenge the vehicle emission standards set by the Tailpipe Rule, and instead argued the EPA acted arbitrarily and capriciously by failing to consider and justify the costs of its conclusion that the Rule triggers stationary-source regulation under the PSD Program and Title V. The court rejected this argument and held that once EPA made the Endangerment Finding, the language of section 202(a)(1) created a non-discretionary duty that the EPA adopt regulation applicable to vehicle GHG emissions. The court noted this interpretation was supported by the Supreme Court’s decision in Massachusetts v. EPA.

Petitioners also advanced a claim under the Administrative Procedures Act, alleging that EPA failed to show that the proposed standards “would meaningfully mitigate the alleged endangerment.” The court rejected this argument, indicating that petitioner misread earlier D.C. Circuit decisions on EPA air regulations. EPA was under no requirement to establish a particular level of mitigation that the regulation had to achieve. Instead, EPA was only required to show that the Tailpipe Rule would contribute to “meaningful mitigation of greenhouse gas emissions.”

Finally, the court rejected an argument made by Petitioners that EPA should have considered the cost of stationary source permitting that would follow adoption of the Tailoring Rule. The D.C. Circuit had previously held that section 202(a)(2) reference only compliance costs to the motor vehicle industry and does not mandate consideration of costs to other entities not directly subject to the proposed tailpipe emission standards.

Challenges to EPA’s interpretation of PSD Permitting, Timing and Tailoring Rules

Petitioners challenged EPA’s longstanding interpretation of the scope of the permitting requirements for construction and modification of major emitting facilities under the CAA. Since 1978, EPA has defined “major stationary source” as a source that emits major amounts of “any air pollutant regulated under the [CAA].” This interpretation held through EPA’s PSD regulations adopted in 1980 and 2002. “Any pollutant” was interpreted by the EPA to include both criteria pollutants for the National Ambient Air Quality Standards (NAAQS) and non-criteria pollutants. As a result, when EPA determined that GHGs would become a regulated pollutant, emissions of more than 100 or 250 tpy of GHGs would trigger a PSD permitting requirement. Petitioners challenged this interpretation and argued that EPA could and should have avoided extending the PSD permitting program to major GHG emitters. The court adopted a plain meaning of section 169(1), which requires PSD permits for stationary sources emitting major amounts of “any air pollutant.” Both the EPA and the Supreme Court in Massachusetts v. EPA clearly established that GHGs are air pollutants. As a result, the court rejected Petitioners’ arguments that EPA should not have extended the PSD permitting program to major GHG emitters. The court rejected the Petitioners’ alternative interpretations of the PSD permitting triggers, as none cast doubt on the unambiguous nature of the statute.

Petitioners also challenged the Tailoring and Timing Rules established by EPA to facilitate initial regulations of GHGs. The court determined Petitioners lacked standing to challenge these two Rules because none had suffered an injury-in-fact as a result of the rules. Instead, the court found the Timing and Tailoring Rules actually mitigated Petitioners’ purported injuries, as many would be subject to PSD and Title V permitting requirements at an earlier time absent the rules.

On June 18, 2012, in Association of Irritated Residents v. California Air Resources Board (2012) ___ Cal.App.4th ___ (No. A132165), the First District Court of Appeal upheld the California Air Resources Board’s (“ARB’s”)  2009 Climate Change Scoping Plan, finding it complies with the requirements of California’s Global Warming Solutions Act of (2006) (“AB 32”) and that ARB’s adoption of the plan was not arbitrary or capricious. Read the rest of this entry »

Ballona Wetlands Land Trust v. City of Los Angeles
(2011) 201 Cal.App.4th 455

The Second District Court of Appeal upheld a revised EIR for the Playa Vista phase two project, prepared after a previous peremptory writ had been issued. The project opponents challenged the revised EIR with respect to the project description, the analysis of archaeological resources, the analysis of sea level rise resulting from global climate change, and the finding of no significant impact on land use consistency. The court concluded that the EIR adequately discussed preservation in place of archaeological resources and sea level rise. The court also concluded that newly-asserted challenges to the project description and the findings on consistency were beyond the trial court’s jurisdiction in these proceedings after issuance of the peremptory writ.

CEQA Guidelines section 15126.4, subdivision (b)(3) states that preservation in place is the preferred manner to mitigate impacts on historic archaeological resources and expressly requires a discussion of preservation in place in an EIR involving a historical archaeological site. The revised EIR stated that preservation in place is the preferred manner of mitigating impacts to archaeological sites, but explained the infeasibility of preservation in place. The revised EIR therefore concluded that data recovery and curation are appropriate mitigation measures, and described other mitigation measures that had already occurred and that would continue to occur. The court held that this analysis satisfied the requirements of CEQA Guidelines section 15126.4, subdivision (b)(3).

The court then addressed whether the revised EIR was required to analyze the effects of sea level rise on the project. The court explained that “the purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effects of the environment on the project.” In doing so, the court cited CEQA Guidelines section 15126.2, subdivision (a), which states in part that: “The EIR shall also analyze any significant environmental effects the project might cause by bringing development and people into the area affected. For example, an EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there. Similarly, the EIR should evaluate any potentially significant impacts of locating development in other areas susceptible to hazardous conditions (e.g., floodplains, coastlines, wildfire risk areas) as identified in authoritative hazard maps, risk assessments or in land use plans addressing such hazards.”

The court explained: “We believe that identifying the environmental effects of attracting development and people to an area is consistent with CEQA’s legislative purpose and statutory requirements, but identifying the effects on the project and its users of locating the project in a particular environmental setting is neither consistent with CEQA’s legislative purpose nor required by the CEQA statutes.” The court thus held that “[c]ontrary to Guidelines section 15162.2 subdivision (a). . . an EIR need not identify or analyze such effects.”

Regarding sea level rise, the revised EIR briefly noted that global warming could result in sea level rise and the inundation of coastal areas, but provided no specific analysis of the impact on the phase two project site. It also explained in responses to comments that according to estimates by the Intergovernmental Panel on Climate Change that the project was not expected to be subjected to inundation as a result of sea level rise resulting from climate change. The court had rejected the opponents request for judicial notice of a flood hazard map prepared by the city prior to approval of the project because the map was not included in the administrative record and the opponents had shown no extraordinary circumstances to justify consideration of the extra-record evidence. The court held the revised EIR’s discussion of sea level rise was adequate.

In previous litigation, the court had held that the previous EIR’s analysis of land use impacts was inadequate, and therefore a peremptory writ was issued. In their challenge to the return to the writ and in their supplemental petition challenging the revised EIR, the project opponents asserted new challenges related to the project description, land use impacts, and the city’s findings regarding these issues. The court held that these challenges had to be raised prior to the judgment in the previous round of litigation, and therefore rejected them.

In conjunction with this year’s 40th anniversary celebration of the National Environmental Policy Act (NEPA), the Council on Environmental Quality (CEQ) published two new draft NEPA guidance documents in the form of memoranda on February 18, 2010, addressing issues of global climate change. The NEPA process seeks to inform federal agency decision-makers and the public about major federal actions by making “advice and information useful in restoring, maintaining, and enhancing the quality of the environment[.]” (42 U.S.C. § 4332(2)(G).) The memoranda discuss the consideration of the effects of climate change and greenhouse gas emissions as well as mitigation and monitoring under NEPA.

A third memorandum, which did not address climate change, was also released on February 18, 2010. This memorandum provides guidance on establishing new categorical exclusions as well as applying and revising existing categorical exclusions under NEPA. Comments on draft NEPA guidance regarding categorical exclusions are due on April 9, 2010.

Consideration of the Effects of Climate Change and Greenhouse Gas Emissions

CEQ notes that climate change issues arise in two instances. First, climate change issues arise during the consideration of the effects of greenhouse gas emissions from a proposed action and alternatives. Second, these issues arise during the consideration of the effects of climate change on a proposed action or alternatives. CEQ advises federal agencies to consider opportunities to reduce greenhouse gas emissions caused by federal actions.

Where a proposed federal action may emit greenhouse gas emissions “in quantities that the agency finds may be meaningful,” the agency may quantify and disclose its estimate of the annual direct and indirect emissions in its NEPA documentation. In particular, the guidance proposes a reference point of 25,000 metric tons per year of direct greenhouse gas emissions as a “useful indicator” of when agencies should evaluate climate change impacts in their NEPA documents. CEQ notes that this reference point is not an absolute standard or threshold to trigger the discussion of climate change impacts. When a proposed federal action meets an applicable threshold for quantification and reporting of greenhouse gas emissions, the draft guidance proposes the agency should consider mitigation measures and reasonable alternatives to reduce emissions. Additionally, when an agency evaluates mitigation measures to address greenhouse gas emissions, the agency should carefully evaluate the quality of the mitigation measures for their ability to reduce or mitigate emissions.

CEQ also proposes that federal agencies should determine the impacts of climate change on the environment of the proposed action. The proposed guidance recognizes that climate change can affect the integrity of a proposed action by exposing it to a greater risk of flood, storm surges, or higher temperatures. To address the impacts of climate change, CEQ proposes that an agency’s NEPA analysis should focus on aspects of the environment that are affected by the proposed action and the significance of climate change for those aspects of the affected environment.

Where there is significant uncertainty about the effects of climate change, CEQ states that agencies may consider the effects of a proposed action or its alternatives against a baseline of “reasonably foreseeable future conditions[.]” CEQ also recognizes the limitations and variability of climate change models to reliably project potential impacts. Thus, agencies should disclose these limitations when explaining the extent to which they rely on particular studies or projections.

The draft guidance does not apply to land and resource management actions, and no federal protocols have been established. However, in its draft guidance, CEQ requests public comments on how NEPA documents regarding land and resource management actions should assess greenhouse gas and climate change impacts, and what should be included in NEPA guidance for these actions.

Mitigation and Monitoring

Through a separate memorandum, CEQ proposes three goals to help improve agency mitigation and monitoring: 1) consider proposed mitigation throughout the NEPA process; 2) create a strong monitoring program to ensure mitigation measures are implemented and effective; and 3) make mitigation and monitoring reports readily available to the public to support public participation and accountability. When an agency identifies mitigation in a NEPA document, including mitigation to address greenhouse gas emissions, and commits to implement that mitigation, the agency should ensure that the mitigation is actually adopted and implemented. CEQ clarifies that agencies may use mitigation measures to reduce potentially significant impacts to support a finding of no significance. CEQ proposes that if mitigation is not performed or does not mitigate the effects to achieve the desired result, the agency should consider whether supplementary action is necessary.

Conclusion

CEQ proposes that its draft guidance will “modernize and reinvigorate NEPA.” At the same time, however, CEQ’s guidance may also give project opponents another basis on which to challenge a federally proposed action. Regardless of the final form of these guidelines, federal agencies will be required to address issues of climate change and greenhouse gas emissions in their NEPA documents. Significantly, federal agencies would be required to review previous mitigation measures for their effectiveness and would place the onus on these agencies to consider additional actions to reduce impacts. Comments on the memoranda are due on May 24, 2010. For the full text of CEQ’s draft NEPA guidance, please visit www.nepa.gov.