Friday, April 17, 2015
Comments due by April 25, 2015
WASHINGTON — A panel of federal judges appeared inclined on Thursday to dismiss the first legal challenge to President Obama’s most far-reaching regulation to slow climate change.
But in the arguments before the United States Court of Appeals for the District of Columbia Circuit, lawyers for the nation’s two largest coal companies, more than two dozen states and the Environmental Protection Agency offered a preview of what is expected to be a protracted battle over a regulation Mr. Obama hopes to leave as his signature environmental achievement.
At stake is the environmental agency’s proposed rule, issued under the authority of the Clean Air Act, to curb planet-warming carbon pollution from coal-fired power plants. The rule, which would require all states to draft plans to restructure their electricity sectors and would push them to transition from coal power to cleaner forms of energy, could ultimately shut down hundreds of coal plants.
The plaintiffs in two cases before the court, Murray Energy Corporation v.E.P.A. and West Virginia v. E.P.A., say that as states prepare to meet the requirements, their moves are already wreaking economic havoc. They also say that once finalized, the rule will not stand up to additional legal challenges.
These plaintiffs — 14 states and the coal companies — contend that the agency lacks the authority to issue the regulation. In a highly unusual move, they have petitioned the court to block it from finalizing the proposed rule.
Two of the three judges on the panel, Thomas B. Griffith and Brett M. Kavanaugh, appeared highly skeptical of the coal companies’ efforts to stop the regulation before it was final, noting that there was no legal precedent for such an effort.
“Do you know of any case in which we’ve halted a proposed rule-making?” Judge Griffith asked. “Why in the world would we resort to extraordinary writ, which we’ve never used before?”
He added: “It’s a proposed rule. We could guess what the final rule will be. But we’re not in the business of guessing. We typically wait to see what the final rule will be.”
Elbert Lin, the solicitor general of West Virginia, responded that states and utilities were being hurt as they began to restructure their energy systems in anticipation of the rule. “I don’t think we’ve ever seen a program like this,” he said. “This is about fundamentally reordering the way we use energy, from plant to plug.”
He added, “There are ongoing harms incurred by the states which cannot be adequately addressed.”
Judge Kavanaugh, noting that the E.P.A. has said it intends to revise the rule before releasing a final version, said: “Maybe they’ll still tweak it. For us to get in the middle of it before it happens seems highly unusual.”
Judge Kavanaugh also appeared skeptical of the argument that preparations could harm states in the handful of months before the rule is expected to be finalized this summer. “It could take as much time for us to write this opinion as it will for E.P.A. to release the final rule,” he said.
Among the lawyers arguing on behalf of the coal companies was Laurence H. Tribe, a well-known Harvard scholar of constitutional law who was a mentor to Mr. Obama when he attended law school. Republicans who oppose the rule have cheered Mr. Tribe’s role in the case.
In court on Thursday, Mr. Tribe laid out a broad, sweeping argument against the rule as unconstitutional, echoing spirited arguments that he has been making for months in legal briefs, congressional testimony and an opinion article in The Wall Street Journal.
By requiring states to enact new policies to change their energy economies, Mr. Tribe told the court, “the E.P.A. is coloring outside the lines. They’re trying to make law, not execute law. They are commandeering the states.”
“States are not to be treated as puppets,” he added.
Mr. Tribe also engaged in the narrow legal argument over two ambiguously worded amendments to the 1990 Clean Air Act that is at the heart of the dispute between the E.P.A. and the coal companies.
Under those amendments, legal experts say, it is not clear whether the agency has the authority to use one section of the Clean Air Act to regulate greenhouse gas pollution from power plants when it has already used a different section of the law to regulate other kinds of pollutants from the plants.
When the law was passed, the House version appeared to prohibit such “double regulation,” experts say, but the Senate version appeared to allow it. The final version of the legislation left the matter unclear.
In arguing that it has the authority to regulate different pollutants from the same sources, the E.P.A. points to the Senate language. In arguing that the agency lacks the authority, the coal companies point to the House language.
Mr. Tribe argued that a constitutional reading of the law would not give weight to the language that appears to allow double regulation.
“They’ve tried to create the illusion that there are two different provisions you have to reconcile,” Mr. Tribe said. That reading, he said, “would upturn the entire constitutional system.”
Amanda Berman, representing the E.P.A., told the judges, “I think he’s flat-out wrong.” She cited legal precedent in which, if there is ambiguity in a law, the agency enacting the law is given deference to interpret it.
“E.P.A. should be given the chance to reconcile these amendments,” Ms. Berman said.
The third judge on the panel, Karen L. Henderson, who said she held a different view from her colleagues, appeared less inclined to wait for the final regulation. She noted that the E.P.A. administrator, Gina McCarthy, had frequently said that she intended to finalize the rule much as it stands now.
“I see a closed mind as far as the legal issue,” Judge Henderson said. “They’ve already stated their position on the legality, unless a court says they’re wrong.”
It was less clear where the three judges, who were all appointed by Republican presidents, stood on the merits of the rule itself. If the panel dismisses the case because the regulation is not yet finalized, the petitioners are expected to return to the court once the final version is released.
While those broader questions of constitutionality were not at issue in Thursday’s case, they are almost certain to re-emerge.
Thirteen states and the District of Columbia are backing the Obama administration’s proposal.NYT 4/17/2015
Saturday, April 11, 2015
Saturday, April 04, 2015
Comments due by April 10, 2015
Does the need to mitigate the effects of man-made climate change override the need to protect nature?
Climate change is with us, and is one of nine reasons why scientists are now concerned that the rate of environmental degradation is a threat to the future of human life on Earth. The loss of biodiversity, dubbed the Sixth Green Extinction by some, is another threat to humanity, with nearly half of the world’s amphibians and a fifth of its plants at risk of extinction.
We do not have the luxury of choosing which of these nine challenges to tackle; they are all critical to our survival.
Yet last week, here in West Dorset, the council unanimously approved the development of a 25MW solar farm on a Site of Special Scientific Interest (SSSI). Rampisham Down was designated as a SSSI because it is nationally important for wildlife. There are 70ha of heathland and nature-rich grassland, known as lowland acid grassland at Rampisham.
Natural England estimate that there is only 5000ha of this lowland acid grassland type left in England. Rampisham is in the top ten largest surviving fragments in England. It is especially rich in grassland fungi, for which Britain has an international responsibility. It is also highly unusual in that the underlying chalk influences the plant communities, creating areas of the extremely rare habitat known as “chalk heath”.
Rampisham Down escaped the “green revolution” that wiped away most other nature in England, because it was a wartime and cold-war radio transmitting station, a piece of strategic infrastructure. West Dorset residents have lived with the “Rampisham Masts” for 70 years, and these radio masts have dominated the West Dorset landscape, with many feeling they are an eyesore and wishing them away.
After the radio station closed in 2011 it was acquired by a solar farm developer.
British Solar Renewables (BSR) and its supporters have continually claimed that the grassland at Rampisham is of little or no value and by building a solar farm they will actually enhance the environment. To counter the concerns that erecting over 100,000 solar panels across over half of the area of Rampisham Down would damage the grasslands, BSR instituted an experiment, involving a few solar panels, some with “windows” in them, to let more light through.
The results of their own experiment has showed that under the panels, even with windows, the grass was darker, damper and cooler. Natural England’s view is that this would be enough to change the plant community from the valuable one for which the site was protected, to a more common community akin to what might be found growing along a hedgerow.
The West Dorset planning committee met last weeky to decide whether to give the Solar Farm planning permission. They listened to the evidence against it from Natural England and Dorset Wildlife Trust, and for it, from the developers, their witnesses and local councillors. They discounted the nature value of the Down, viewed it as brownfield land which would benefit from being developed, and decided that the production of renewable energy and the small number of jobs the development would bring were of greater benefit to society than protecting the wildlife.
The National Planning Policy Framework is clear that SSSIs should not be destroyed, unless the benefit outweighs the harm. This is a classic cost-benefit analysis approach, which wilfully ignores all the intangible benefits nature provides us. Even so, as the Planning Officer laid out in his analysis, the costs of developing Rampisham Down far outweigh the benefits. And in any case, there is a perfectly good location for a slightly smaller solar farm on arable land adjacent to the SSSI, where BSR has already applied for planning permission.
Another large SSSI is also under threat from development – Lodge Hill, in Kent. There are many parallels between the two sites: they are both ex-strategic infrastructure, publicly-owned land that has been sold off for development; they were both notified as SSSI on account of their nationally important wildlife; and in both cases local authority planning committee have unanimously approved their development.
Both Lodge Hill and Rampisham Down are tests of the National Planning Policy Framework and whether it is capable of protecting nature from development. But there is a bigger challenge, to society. Protecting nature is no more an option, than tackling climate change – both are necessary and one cannot outweigh the other.