Tennessee Valley Authority ordered by EPA to revise permit for coal-fired plant
The US Environmental Protection Agency has sided with environmental groups, including the Sierra Club and the Center for Biological Diversity, and ruled that a permit for a Tennessee Valley Authority coal-fired plant in Drakesboro, Kentucky failed to account for air pollution (specifically the greenhouse gas nitrogen oxide) in violation of the Clean Air Act. Parties have until October 9 to seek judicial review of the EPA’s order, or state regulators will have until October 27, 2009 to submit a revised permit in response.
In EPA Administrator Lisa P. Jackson’s order, she found that the permit issued by Kentucky’s Division for Air Quality for the 2,273 MW Paradise Fossil Fuel Plant failed to require pollution controls and monitoring for nitrogen oxide pollution. Specifically, in requiring the TVA to submit a revised permit application, Jackson said the current permit did not (1) include proper analysis for the plant's three boilers for NOX when making upgrades; (2) require adequate monitoring systems for opacity and NOX; or (3) provide adequate monitoring from soot emissions from the coal washing and handling.
However, on four other claims Jackson sided with Kentucky’s Division for Air Quality and TVA finding that the permit (1) should not require year-round operation of the selective catalytic reduction system and (2) should not include case-by-case determination of the maximum achievable pollution control technologies for several boilers.
According to TVA, the Paradise plant generates 14 billion kilowatt-hours of electricity a year, enough to supply more than 930,000 homes. By 2010, TVA estimates it will spend about $6 billion on emissions controls at its fossil-fuel plants to ensure that this power supply is generated as cleanly as possible, consistent with efficiency.
The Clean Air Act allows parties to seek judicial review of the order within 60 days of publication in the Federal Register. The notice of the final order was published in the Federal Register on August 10, 2009.
CBD lawsuit seeking ESA protection of sea turtles due to climate change the latest attempt at regulation through litigation
Co-authored with Amy Garber.
The failure of the US to define its climate change policy through legislation and rulemaking has once again resulted in an attempt by environmental groups to force global warming policy through litigation. Plaintiffs Center for Biological Diversity (CBD), Turtle Island Restoration Network and Oceana Inc., have filed a complaint alleging violations of the Endangered Species Act (ESA) and Administrative Procedure Act based upon allegations that the habitat of the leatherback and loggerhead sea turtles is being destroyed by climate change. The case, Center for Biological Diversity et al v. Locke et al, which is docketed in the Northern District of California, seeks declaratory and injunctive relief requiring the government to protect the turtles and their habitat from the effects of climate change.
In particular, plaintiffs allege that the government defendants failed to make a timely determination on petitions that the groups had filed in 2007 to designate certain areas as “critical habitats” and some sea turtle species as “endangered.” In September 2007, plaintiffs petitioned the Fisheries Service to designate the ocean waters of the California and Oregon coasts a “critical habitat” for the leatherback sea turtle. Further, the petition requested the Fisheries Service and Fish and Wildlife service to reclassify certain loggerhead populations as “endangered.” The government determined in December 2007, that the petition was warranted but failed to make a final determination within the ESA’s mandatory 12-month period.
The complaint makes sparse and vague allegations as to injurious effects of climate change on the sea turtles. Plaintiffs allege that global warming will cause sea levels to rise, thus destroying loggerhead nesting beaches. Further, they claim that ocean warming is likely to directly affect reproduction and other necessary survival activities of the loggerhead turtle. The Complaint also asserts that ocean acidification, which they allege is caused by increased greenhouse gas levels, will cause a decrease of the loggerhead’s food supply. As to the leatherback sea turtle, the Complaint also alleges in general terms that global warming is endangering the species.
This case is another example among many recent attempts to regulate climate change by litigation. Asserting injury due to global warming seems to be turning into an almost boilerplate assertion for complaints brought by environmental groups under federal environmental laws.
California court rules Wal-Mart's failure to consider greenhouse gas impact significant renders environmental impact report inadequate
Wal-Mart’s plans to build a “supercenter” near Joshua Tree National Park have been put on hold pending revisions of the Environmental Impact Report (EIR) submitted by the company. In a lawsuit filed by the Center for Biological Diversity (CBD), a California Superior Court Judge last week ruled that Wal-Mart’s EIR was inadequate because it failed to consider the greenhouse gases (GHGs) that the project will generate as a significant environmental impact. The ruling prevents Wal-Mart from proceeding with its plans unless and until the lead agency (the City Council of the Town of Yucca Valley, CA) revises the EIR to include a discussion of GHG impacts and mitigation measures.
The ruling is notable for several reasons:
First, it reflects a growing willingness of judges to consider the potential cumulative environmental impacts of building-related GHGs, even though such impacts are not localized and may have a time-lag of decades. As a result, courts are concluding that the potential for significant adverse impact on the environment must be addressed under laws, like CEQA, that require comprehensive environmental impact study by an agency with jurisdiction to approve project entitlements. The California Attorney General’s web site summarizes much of the political and regulatory activity in California about this movement.
Second, the ruling reflects increasingly active efforts by state attorneys general and public interest groups, such as the CBD to pressure local agencies to include mitigation of GHGs in the land-use permit process. In Ann Arbor, Michigan, for example, the mayor and city council were recently notified of a potential lawsuit by the Great Lakes Environmental Law Center and National Resources Defense Council (NRDC) challenging the city’s plans for an underground parking garage under the Michigan Environmental Policy Act (MEPA).
Third, it is further evidence that concerns about global climate change have become, and are becoming more and more mainstream in litigation.
Consultants, attorneys, and project sponsors should recognize that in more and more jurisdictions a proactive approach to GHG emissions and carbon footprint mitigation measures may be a critical factor in avoiding project delay. A project sponsor that is not prepared to address these issues may provide an attractive unifying issue for project opponents – and generate unnecessary bad publicity – even under current economic conditions.
It is ironic that Wal-Mart, which has been widely praised for being a leading proponent of the corporate sustainability movement, was tagged in this case for “ben[ding] over backwards to avoid incorporating cost-effective features like solar panels to reduce its carbon footprint,” according to the press release issued by the CBD. Project sponsors that are willing to address sustainability issues, including GHG impacts, at the outset of the entitlement process will have a greater likelihood of obtaining approvals without incurring the costs and delays associated with litigation.
CBD lawsuit challenges Obama's new fuel economy standards
The Obama administration recently announced new fuel economy standards, which would push average fuel economy requirements to 27.3 mpg for all vehicles. This represents only a 7% increase from 2010. Under the new regulations, passenger cars would have to reach 30.2 mpg and light trucks 24.1 mpg. This modest change was not enough for environmental group the Center for Biological Diversity (CBD), which has challenged the requirements by filing a lawsuit against the National Highway Traffic Safety Administration (NHTSA) and the Department of Transportation in federal court.
CBD has asked the Ninth Circuit to find that the administration violated the Energy Policy and Conservation Act which requires that miles-per-gallon standards be set at the maximum feasible level. The CBD alleges that the Obama rule is much lower than current standards in Europe, Japan, China, and other countries, and is thus clearly not at the maximum feasible level.
According to the CBD, the standards are actually weaker than those proposed in 2008 by the Bush Administration. The lawsuit alleges that Obama administration officials used the same mathematical formula as the Bush administration and minimized the cost of carbon emissions. As a result of this decision, the Department of Transportation found that increasing gas mileage, to the extent now technologically and economically practical, would not reduce global warming. The transportation sector currently accounts for about one third of US greenhouse gas emissions.
Kassie Siegel, the director of the organization’s climate law project, stated, “These low standards, which ignore greenhouse gas emissions and the climate crisis, are illogical, illegal, and very disappointing from a president who has promised to make the United States a leader in the fight against global warming.” Deborah Sivas, director of the Environmental Law Clinic at Stanford Law School, who is representing the Center in the case, further commented, “The Obama standards keep the US in last place when it comes to fuel economy. This lawsuit will force the administration to live up to its promise to lead the way in technological innovation and greenhouse gas reductions.”
The current lawsuit echoes one brought in 2007 by the CBD that challenged the Bush administration’s 2006 fuel economy standards. The group was victorious in that lawsuit, in which the Ninth Circuit held that the Bush administration's fuel standards were invalid for light trucks and SUVs for the 2008 through 2011 model years.
CBD seeks ESA protection of Kittlitz's murrelet
The Center for Biological Diversity has filed a scientific petition with the Alaska Department of Fish and Game to protect an Alaskan seabird under Alaska’s Endangered Species Act. The Center claims that the seabird, a species known as Kittlitz’s murrelet, faces extinction due to threats from global warming.
The Kittlitz’s murrelet is only the latest species that the Center has sought to add to the endangered species list due to perceived effects from global warming. Recently, the US Fish and Wildlife Service agreed to determine whether the American pika warrants protection from global warming effects under the Endangered Species Act by May, 2009, settling a lawsuit filed by the Center for the agency’s failure to make the determination in the required statutory period. Emboldened by its success, the Center vowed to commit even greater resources to similar climate litigation.
“Like the polar bear, the Kittlitz’s murrelet is being pushed toward extinction by rapid global warming in Alaska,” claims Shaye Wolf, a biologist with the Center. “If we are to save the Kittlitz’s murrelet, we must halt global warming to protect this species’ remaining habitat before it is too late.”
This is not the first time that the Center has sought protection of this seabird. In 2001, the Center sought federal endangered species protection of Kittlitz’s murrelets. However, in 2004 the US Fish and Wildlife Service determined that, while the species warranted protection, it was “precluded” from being listed due to other agency priorities. The seabird, however, is identified as a critically endangered species by the World Conservation Union.
The Kittlitz’s murrelet, named in commemoration of the German zoologist Heinrich von Kittlitz, is a small seabird that nests on open ground near the tops of the coastal mountains of Alaska and Siberia. The Kittlitz's murrelet feeds on larval fish, krill and small zooplankton close to the shore, particularly in the waters around tidewater glaciers. Activists from the Center claim that the Kittlitz’s murrelet’s dependence on these glacial waters makes it susceptible to any retreating or thinning of glaciers that may be caused by global warming.
Center for Biological Diversity to devote $17 million to climate litigation and advocacy over five years
The Center for Biological Diversity (CBD) today announced the launch of its San Francisco-based Climate Law Institute. The stated mission of the Institute is to bring a strong climate focus to the Center’s five program areas -- Biodiversity, Public Lands, Oceans, Urban Wildlands, and International – in what the Center calls a “coordinated strategy to protect species and ecosystems from the sweeping and potentially catastrophic effects of warming.” The Center states that it is “dedicating” $17 million to this effort over the next five years.
What does the Center mean by a “coordinated strategy”? Apparently more climate-based litigation, and more administrative and regulatory action designed to serve as bases for additional climate-based litigation. The Institute states it will accomplish its mission through: strategic, creative litigation; scientific petitions to protect species; administrative and policy advocacy; and public education and outreach.
This announcement leaves no doubt that litigation is the Institute’s primary focus. The Institute’s Advisory Board includes:
- Luke Cole, Director of the Center for Race Poverty and the Environment, who often represents plaintiffs in citizen-based environmental actions including the Kivalina Relocation Planning Committee in the Kivalina climate litigation;
- Patrick A. Parenteau, Professor of Law at Vermont Law School (where he teaches a course entitled Climate Litigation), and Senior Counsel at its Natural Resources Law Clinic; and
- Deborah Sivas, an environmental litigator and Professor of Law at Stanford where she directs Stanford’s Environmental Law Clinic.
Coal is a major target of the Institute, which lists as one of its goals: “Prevent the construction of new coal-fired power plants and coal mines while quickly phasing out existing coal-fired power plants.” The Institute also says it intends to “[p]revent the creation of an oil-shale or tar sands energy sector.”
Center for Biological Diversity follows ESA climate change rulemaking petition with litigation
*Co-authored with Amy Garber.
On January 15, 2009, the Center for Biological Diversity (“CBD”) filed a complaint in the US District Court for the District of Columbia against the US Environmental Protection Agency (EPA) and the Interior, Commerce, Agriculture, Transportation, and Defense Departments, seeking declaratory and injunctive relief. In its complaint, CBD claimed that those federal agencies had violated the Administrative Procedure Act by failing to make merits determinations within a “reasonable” amount of time in response to a petition filed by CBD on February 1, 2007. The petition, entitled “Endangered Species and Global Warming Initiative: An Administrative Procedure Act Petition to Enhance the Recovery of Endangered Species and Address the Growing Impacts of Global Warming on Imperiled Species,” proposed a series of specific modifications to federal regulations at 50 C.F.R. Parts 17, 402, and 424 to require analysis and mitigation of federal actions “that impact the relationship between global warming and endangered plants and animals.”
CBD filed its 2007 petition with the Administrator of the US EPA and the Secretaries for the US Departments of the Interior, Commerce, Agriculture, Transportation, Energy and Defense. In the petition, CBD noted that “Human-induced global warming is already playing a significant role in habitat loss and the spread of invasive species and has contributed to the extinction of numerous species.” To address this issue, the CBD-recommended modifications would broadly require, in part, that federal agencies:
- include global climate change analysis in all federal decision-making which could potentially affect endangered species recovery;
- enhance data support for recovery plans and specify all data gaps inhibiting recovery plan completion and adoption;
- adhere to a three-year time frame for recovery plan adoption following endangered species listings;
- adopt all backlogged recovery plans within ten years; and
- adopt a schedule for listing all species warranting Endangered Species Act protection.
CBD cited Massachusetts v. EPA in arguing that the US Supreme Court “recognized the urgent threat to human well-being and the environment as a result of climate change, and permitted advocacy groups to petition and sue federal agencies that do not dispense of their statutory duties as they relate to global warming.” CBD seeks, in part, a court order requiring the federal agencies to, within sixty days, either identify a time frame within which they would have to substantively respond to the petition or issue a denial.
The CBD complaint appears novel in at least one respect – it is “outcome-neutral.” CBD neither argues that the federal agencies’ collective failure to respond was a constructive denial nor that a denial of the petition would be unlawful. CBD’s omission of the Energy Department (the only agency which actually denied the petition) from the list of defendants demonstrates this outcome-neutral approach. In light of the complaint’s structure and relief requested, the lawsuit would end after the federal agencies respond, regardless of whether the agencies granted or denied the CBD Petition.
CBD’s outcome-neutral complaint is at least partially attributable to the prospect of Obama administration modifications to federal climate change policy. The CBD press release that accompanied the complaint contained the following statement:
We filed the [Petition] in 2007 to jump-start the reinvention of federal conservation policy. The Bush administration ignored the petition. With this lawsuit, we provide the Obama administration with a legal platform to develop integrated, government-wide policies to speed the recovery of endangered species and limit the impact of global warming. We look forward to working with the new administration to resolve the suit and begin the hard work of turning the ship of state … around after eight years of stalling.
An unnamed CBD attorney also stated to Inside EPA (“Activists May Defer Suits in Favor of Climate Talks with Obama EPA,” Vol. 30, No. 3, Jan. 23, 2009) that the lawsuit “allows us to formally ‘queue up’ and make sure, legally, that global warming impacts … are not forgotten or swept under the rug with the new administration.”
