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The EnSys study comes on the heels of seven studies published earlier in August and prepared by CRA International describing the economic “hits” certain states (Colorado, Indiana, Tennessee, Ohio, North Carolina, New Mexico, and Texas) will take if the American Clean Energy and Security Act of 2009 (H.R. 2454, ACES) is adopted. API has published several statements since ACES was introduced in the House on May 15, 2009, regarding the Waxman-Markey Bill and its impact on the oil industry versus other sectors (alleging disproportionate burden on oil industry and certain consumers) and US economy, security, energy policy, and environment.

Table 1 below summarizes a couple of metrics produced by CRA’s modeling of economic impact of House of Representatives Climate Bill. A review of Table 1 shows that CRA estimated that the US would lose between 1.5 and 2.5 million jobs between 2015 and 2030, and each household would suffer an average impact to its purchasing power of $910 to $1,170 per year. Of the seven states analyzed Texas appears to take the biggest hit in terms of employment, household purchasing power, and lost tax receipts.

We have also included with CRA’s estimated impacts, the 2009 refining capacity metric from the Energy Information Administration for the US (total) and each state analyzed by CRA for the purposes or comparison. On this basis, it is interesting to note that there are several states not analyzed by CRA that have significant refining capacities of near or above 1 million barrels per day, including California (2,078,500); Illinois (956,300), Louisiana (3,101,705), and Pennsylvania (819,500) that likely will be significantly impacted by adoption of HR2454.

Given that the API studies were published during the month of August and Congress is out of session, it will be interesting to see how (if at all) the Senate addresses API’s and the oil industry’s concerns when it reconvenes in September. These projections will likely put increasing pressure on those legislators whose states face increasing unemployment and budget deficits.

In the interview, Maples declares the scientific debate about climate change “over” – relying on the Intergovernmental Panel on Climate Change‘s conclusion that the emission of greenhouse gases from human activities has resulted in a measurable increase in temperature, which in turn has significant local, national and global health and environmental effects. He asserts that this scientific certainty has driven a shift in litigation defense strategy away from the science to the standing/political question defense. According to Maples “that’s essentially what the ‘standing’ defense is about. It’s too great of an issue for the courts. It has to be handled by the political leaders.”

But as noted in other posts and articles, the regulatory and quasi-regulatory conclusions that climate change is influenced by human activities do not address the specific causation questions that must be addressed in a tort case like Comer, which seeks to hold corporations responsible for damage caused by climate change. The fact that those battles have not occurred in Comer may not represent a shift in defense strategy – those battles have simply been unnecessary because the complaint was dismissed for lack of standing (“the Court finds that Plaintiffs do not have standing to assert claims against Defendants and that Plaintiffs’ claims are non-justiciable pursuant to the political question doctrine”).

The interview cites Maples’ view on proximate cause as follows: “Proximate cause is not simply cause in fact. We know what the cause in fact is – the science has told us that. But proximate cause has to do more with who could have prevented it.” While this definition doesn’t track Black’s Law Dictionary – which uses phrases like “[t]he last negligent act contributory to an injury, without which such injury would not have resulted,” and “[t]he dominant, moving or producing cause” – it does identify clear causation hurdles that the Comer plaintiffs must overcome if the dismissal of their case is reversed. In establishing cause in fact, plaintiffs would have to establish that Hurricane Katrina would not have occurred without defendant’s emissions. In other words, if Comer is reversed, causation looms large as an obstacle to plaintiffs’ success on the merits.

Causation problems notwithstanding, Maples states that, if Comer is reversed, new work done by Oxford University will help make his case and spur “massive litigation”:

It’s been tracked with great precision, as far as what each corporation’s contribution is, and that can now be extrapolated – especially based on some of the work, the computer modelling that’s coming out of Oxford University – that can now be extrapolated to a percentage of fault. It’s fantastic work that’s been done. Apparently it’s even more sophisticated than the work out of the University of Colorado.

They now can model the effect of man-made carbon contributions to the atmosphere, and the contribution that it has to global weather events. A (newspaper) article was sent to me a few weeks ago - it’s worth a story in and of itself probably - because the comment made was that it was going to lead to massive litigation.

While it is not clear what computer modelling Maples refers to, it may be that he is commenting on a “summary report” stating “preliminary findings” of B. Müller, Ch. Ellermann, M. Friman, N. Höhne, and R. Verheyen, entitled Differentiating (Historic) Responsibilities for Climate Change, available on the website of a company called Oxford Climate Policy. This preliminary report does not appear to be the kind of peer reviewed analysis that might support specific causation claims and is in large part focused on the philosophical questions of how responsibility should be shared for addressing climate change on an ongoing basis (not on the question of apportioning liability, based on cause, for climate change in general or specific weather events). Indeed, the report states as much in its conclusion: “The aim of this Report was to put forward and discuss a methodology for the numerical differentiations of responsibilities for climate change as opposed to calculating causal contributions to climate change.”

Still, Maples predicts “massive litigation” in the future from “big farming interests” who suffer droughts, to “communities ravaged by wildfires,” to “ski resorts that have no snow.” Maples says that the strategic model for the litigation will be based on tobacco litigation: “What’s good about the approach that I’m taking is that the tobacco litigation – and before that the asbestos litigation – demonstrates that one case can cause a gigantic litigation problem for corporations. It’s pretty much accepted history that asbestos and tobacco are the role models for climate change litigation now.”

News of Paterson’s agreement to reexamine the rules has provoked a sharp response from environmental groups. Luis Martinez, energy attorney with the Natural Resources Defense Council, commented, “Reopening the rule for the Regional Greenhouse Gas Initiative to give power plant owners another bite at the apple is not only unnecessary to address their concerns, it takes us in the wrong direction. Governor Paterson should be fulfilling the needs of consumers, not making deals with industry behind closed doors.” IPPNY has disputed any suggestion that the decision to reopen the rules was the result of behind the scenes maneuvering, stating, “For several years, these concerns were communicated in IPPNY's comments to the Department of Environmental Conservation and to the press and public through multiple press releases during the RGGI rulemaking process. Both during the rulemaking process and after, IPPNY made those same concerns known to the Executive Branch in a manner that is available to every citizen and interest group in this state.”

Environmental groups have submitted Freedom of Information Act requests for Governor Paterson’s schedule and records of any communications with power generator groups and are calling on his administration to release the details of any agreement with energy producers.  

New York RGGI Implementing Regulations:

• DEC Adopted Part 242: CO₂ Budget Trading Regulations
• NYSERDA NYCRR Part 507 CO₂ Allowance Auction Program Regulations

The Presidential Memorandum regarding the California Waiver Request directed the new Administrator of EPA to assess whether EPA properly denied a waiver of federal preemption for California’s motor vehicle standards concerning greenhouse gas emissions. The Memorandum notes that “For decades, the EPA has granted the State of California such waivers.” The Memorandum directed the EPA Administrator to “assess whether the EPA's decision to deny a waiver based on California's application was appropriate in light of the Clean Air Act” and, “based on that assessment,” to “initiate any appropriate action.” The Memorandum comes on the heels of a January 21, 2009, letter from Mary Nichols, Chair of the California Air Resources Board (CARB), asking EPA to reconsider the denial of CARB’s waiver request.

Professor Heinzerling’s commentary encouraged the EPA to reverse course on the California waiver and return to its “decades-long policy, supported by explicit statutory language, of looking at California’s standards ‘in the aggregate’ when deciding whether the conditions for a waiver are met.”

Professor Heinzerling also offered a roadmap for administrative u-turns, noting that “an agency proposing a change in policy must explain its decision and draw a rational connection between the facts it has found and the decision it has made.” The Presidential Memorandum concerning EISA, in which the President encouraged the Administrator of NHTSA to speed the development of higher fuel economy standards, appears designed to develop support for a change of course. The Memorandum states:

(a) in order to comply with the EISA requirement that fuel economy increases begin with model year 2011, you take all measures consistent with law, and in coordination with the Environmental Protection Agency, to publish in the Federal Register by March 30, 2009, a final rule prescribing increased fuel economy for model year 2011;

(b) before promulgating a final rule concerning model years after model year 2011, you consider the appropriate legal factors under the EISA, the comments filed in response to the Notice of Proposed Rulemaking, the relevant technological and scientific considerations, and to the extent feasible, the forthcoming report by the National Academy of Sciences mandated under section 107 of EISA; and

(c) in adopting the final rules in paragraphs (a) and (b) above, you consider whether any provisions regarding preemption are consistent with the EISA, the Supreme Court's decision in Massachusetts v. EPA and other relevant provisions of law and the policies underlying them.

In deciding whether this a case of a prescient professor, or simply an administration that shares a similar focus on climate and the administrative path to new climate policies, consider that Professor Heinzerling doesn’t just write commentaries for a living. She was the lead author of Massachusetts’ and other petitioners’ winning briefs in Massachusetts v. EPA, in which the Supreme Court recognized that the Clean Air Act gives EPA the authority to regulate greenhouse gases.

AB32 was the first statewide effort to reduce greenhouse gas emissions and requires the state to cut its emissions to 1990 levels by the year 2020, and reducing them to 80% below 1990 levels by 2050.

CARB’s approval of the plan is a major step toward California’s implementation of AB32, though before the plan can go into effect, specific implementing regulations must still be drafted and approved. Much more remains to be done. (The plan has been compared to a menu for a meal, with the recipes still to be developed.) And, of course, the rules are likely to face stiff opposition from various industries and interest groups – particularly in light of California’s struggling economy – however, California Governor Arnold Schwarzenegger recently stated that California has “no intention of backing away from our historic commitment to the fight against global warming because the economy has slowed down.”

One of the plan’s central features is a carbon cap-and-trade program for businesses, in an attempt to provide financial incentives to businesses to reduce carbon emission, which will enable companies who need to use greater emissions in their operations to purchase emission credits from companies who are able to reduce emissions. Such a trading program would cover about 85 percent of the state's emissions, from sectors such as electricity production, transportation and industry, according to CARB’s press release announcing the plan. 

The Los Angeles Times reports that the plan “lays out targets for virtually every sector of the economy, from electrical plants and automobiles to landfills and city planning.” The broad regulatory scheme may serve as a blueprint for regulation at the national level, with President-elect Barack Obama promising national action to control emissions.

For additional background, see GlobalClimateLaw.com’s previous posts on the subject:

• AB 32 Final Implementation Plan issued by CARB (10/17/2008)
   
• CEQA and Senate Bill 97 will require agencies to consider greenhouse gas emissions in evaluating projects (10/10/2008)
   
• CARB announces draft plan for implementation of AB 32 (08/12/2008)

China’s establishment of these exchanges represents a small positive step forward for the country, which is now recognized as the world’s leading emitter of carbon dioxide, but setting up these exchanges may be considered a symbolic act rather than a practical measure designed to mitigate emissions. China’s 11th Five-Year Plan (2006-2010) calls for reducing “major pollutants” by 10 percent. Last year China also promulgated its National Climate Change Programme, setting forth the country’s positions and plans for dealing with climate change. In particular, China advocates the mitigation of greenhouse gases, “adaptation” to climate change, enhanced technology cooperation and transfer, full implementation of the United Nations Framework Convention on Climate Change, and regional cooperation on climate change.

Another fundamental position held by China is that developed countries should take the lead on the issue of climate change. As explained in a Congressional report released earlier this fall, “China has long believed that established industrial powers need to act first because they built their wealth largely by burning fossil fuels and adding to the atmosphere’s greenhouse gases.” This position was echoed last month by Vice-Minister Xie Zhenhua of China’s National Development and Reform Commission when China released a white paper entitled “China’s Policies and Actions on Climate Change.” Mr. Xie said that, “developed countries should, at least, contribute 0.7% of their GDP” to help developing countries combat climate change. The white paper itself did not announce any major policy changes, although there was the occasional startling admission regarding China’s ability to fight climate change: “[China’s] coal-dominated energy mix cannot be substantially changed in the near future, thus making the control of greenhouse gas emissions rather difficult.” If China were to establish a nationwide emissions trading system, that would certainly help make the task somewhat easier.

AB 32, in brief, provides that California is the source of substantial amounts of GHG emissions and establishes a state goal of reducing GHG emissions to 1990 levels by the year 2020 – a reduction of approximately 25% from predicted emission levels. (The law requires the California Air Resources Board to establish a program to track and report GHG emissions and to undertake numerous other regulatory actions and measures to ensure that the required reductions are implemented.)

In 2007, the California legislature passed a "companion" bill – Senate Bill 97 – to amend the CEQA statute to specifically establish that GHG emissions and their impacts are appropriate subjects for CEQA analysis. But the law does not address the evaluation and determination of "significance." The law simply directs the state's Office of Planning and Research ("OPR") to develop draft CEQA guidelines "for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions" by July 1, 2009 and directs the state Resources Agency to certify and adopt the CEQA guidelines by January 1, 2010. Until that time, the OPR has issued a Technical Advisory (“Addressing Climate Change through CEQA Review”) to help guide agencies through the process by providing suggested standards on calculating GHG emissions, determining potential significance, and implementing mitigation measures, if necessary and feasible.

Workshops are planned throughout the state to present details to the public and for CARB to take public comments. The Board is expected to adopt the plan in November 2008, subject to public comments. Public comment will be critical because the measures and policies outlined in the plan will not only guide the implementing regulations, but will form the basis for significant enforcement action against companies who do not meet these aggressive standards.

Among many others, key elements of the plan are:

• A cap and trade program covering 85 percent of the state's emissions. This program will be developed in conjunction with the Western Climate Initiative, composed of seven states and three Canadian provinces, to create a regional carbon market.

• A proposal that utilities produce a third of their energy from renewable sources such as wind, solar and geothermal.

• Implementation of the California Clean Car law to provide a wide range of lower emitting and more efficient cars and trucks.

• Strong enforcement mechanisms. 

Those seeking additional information and commentary on AB 32 and the draft plan may wish to review ClimateConnect’s “AB 32 101” page.

• A report submitted to the G8 by Tony Blair in advance of last week’s G8 summit (“Breaking the Deadlock: A Global Deal for our Low Carbon Future”) identified the significant hurdles in crafting national and international approaches to greenhouse gas emissions: “Given the complexity of the issues involved, the imprecision of much of the data, and the extraordinarily tricky interplay between the political, the technical and the organisational, answering the question of ‘how?’ is as difficult as any the international community has grappled with since the design of the post-war Bretton Woods economic institutions.”
  
   
• The same report later states: “When negotiators sit down in Copenhagen in December 2009, they will face one of the most formidable political challenges in recent history. They must build on the strengths, as well as address the weaknesses of the Kyoto Protocol, to create a successor treaty that will be agreed to, ratified, and enacted by 191 countries to take firm and decisive joint action on climate change. That is why this year’s G8, under the leadership of Japan, is so important.”
  
   
• Commentators noted that the G8’s announcement of a goal of a 50% reduction in Greenhouse Gases by 2050 leaves most of the tough questions unanswered, while developing countries rejected the G8 goal. In DOT EARTH, Andy Revkin posted an annotated analysis of the political machinations involved in the G8 climate declaration and the joint statement from established and emerging economies a day later.
  
   
• EPA’s Advanced Notice of Proposed Rulemaking, “Regulating Greenhouse Gas Emissions Under the Clean Air Act” (July 11, 2008), notes an active debate within the Executive and Legislative branches about how to regulate greenhouse gas emissions: “The implications of a decision to regulate GHGs under the Act are so far-reaching that a number of other federal agencies have offered critical comments and raised serious questions during interagency review of EPA’s ANPR. Rather than attempt to forge a consensus on matters of great complexity, controversy, and active legislative debate, the Administrator has decided to publish the views of other agencies and to seek comment on the full range of issues that they raise.”