Posts Tagged ‘Global Warming’

Indeck's Compact Clause Challenge

Written by Mike Pisauro on April 25th, 2009 in Clean Air, Federal, Global Warming, legislation | No Comments »

As I wrote recently, Indeck Corinth, L.P. has filed suit against the Governor of New York, the NY Department of Environmental Conservation and other agencies, challenging that state’s participation in the Regional Greenhouse Gas Initiative (RGGI). According to the complaint Indeck, a power generating company, alleges the state’s participation in RGGI is illegal for multiple reasons. The most interesting of these claims is that RGGI, itself, is “unconstitutional.” Indeck alleges that RGGI is an interstate compact that, under the Unites States Constitution, requires the consent and approval of Congress. Specifically under Art. 1, §10 Cl. 3 of the Constitution provides:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a Foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Indeck alleges RGGI is an interstate agreement or company but which has not been approved by Congress , is, in fact, illegal. The complaint also provides that:

Congress has the power to regulate emissions and establish interstate emission limits, which it has expressly chosen not to do. RGGI’s supplemental regulations are stricter than Federal regulations promulgated by the United States Environmental Protection Agency and thus, impermissibly encroach on Federal supremacy and interfere with the Federal interest in climate policy and Federal interest in regulating a national and international pollutant.”

One would think that after 200 plus years of having a constitution, one of the earliest portions of that constitution would have a clear and easy answer to this question. As with many things in law, however, there is no easy answer. Having said that, a review of the case law and commentary would seem to suggest that RGGI can operate legally – without obtaining Congress’ approval. In the last 100 years, caselaw dealing with this issue clearly demonstrates that that there are interstate compacts that require congressional approval and there are those that do not. The question seems to hinge on whether the interstate compact could/would have the potential to increase the political power of the states over the federal government.

The leading case in this area of the law is: United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978). In Multistate Tax Commission the Court indicated that, if read literally, the Compact clause would prevent any grouping of states from entering into any kind of agreement no matter how trivial and short in duration. The Court did not believe that this was the result the constitutional framers would have desired. The Court then reaffirmed the “test” from an earlier case that limited the need for Congressional approval to “formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.” The Court also looked to see how the compact acted against these four questions:

· did the compact give the states or the multistate agency powers it did not already have?

· did the States delegate their sovereign power to the agency?

· did the state’s have the freedom to reject or accept the model rules and?

· could the States withdraw if they wanted?

In Multistate Tax Commission, the plaintiffs were challenging the creation of a multistate agency by several states to deal with the taxation of businesses with locations in multiple member states. The Court ultimately rejected the challenge by United States Steel under the compact clause. One of the reasons the Court gave was that, by joining together, the States were not doing anything that they could not have done on their own. Therefore, the answer to the first question is “no,” The multistate compact did not give the States power they did not already have.

The situation with RGGI is very similar to Multistate Tax Commission. Each State has the power to regulate air pollution independently of one another (note that GHGs are considered air pollution and can be regulated under the Clean Air Act – but that is a topic for another post.) It is conceivable that each State could independently regulate GHG emissions and create their own auctions for allowances. Each power generator in each state would then have to buy allowances from that state. Multistate generators would have to buy allowances in each state in which they had power plants. The multistate generators would not be able to transfer a NJ allowance to NY if they need to emit additional GHGs in NY. This system would be inefficient and might even cause more leakage than what is already occurring. RGGI is only improving the efficiency of a cap and trade system - it is not increasing the state power or RGGI’s power and, therefore, should pass muster on this requirement.

As to the second question, the Memorandum of Understanding signed by the RGGI explicitly states that RGGI has no regulatory or enforcement authority and that authority is reserved to the States. Therefore, the answer to that question is clearly “no.”The States did not give up any of their sovereign authority to RGGI.

As to the third question, there is nothing in the MOU that explicitly requires a State to adopt all portions of the Model Rule. Also, if I recall correctly, the model rule provides for various options that the State could adopt.

Lastly, in regards to the fourth question, the MOU also provides that any State can withdraw from RGGI with 30 days notice.

Based on the Court’s test RGGI will likely prevail against Indeck’s challenge under the Compact Clause. There may be other constitutional challenges, for example under the Commerce Clause, which may be of concern. Also, proposed Federal law would supplant RGGI for several years. But for now RGGI will be with us.

EPA reconsidering its earlier denial of Ca. waiver

Written by Mike Pisauro on March 6th, 2009 in Clean Air, Federal, Global Warming | No Comments »

I read a very good blog post from the NRDC regarding the EPA’s reconsideration of California’s request for a waiver under the Clean Air Act so that California can implement stricter greenhouse gas emission regulations for automobiles.  The post is here. Once the waiver is granted, New Jersey’s regulations which adopt the California regulations will be effective.  These clean car regulations is part of New Jersey’s plan to address global warming gases under its Global Warming Response Act.

Administrator Jackson was the Commissioner of DEP at the time that DEP adopted the Ca. regulations and she was very involved in the passage of the Global Warming Response Act.  I believe that bodes well for her decision to grant the waiver.

More promises on NJ's open space

Written by Mike Pisauro on January 18th, 2009 in Clean Air, Clean Water, Global Warming, Highlands, legislation, Politics, Sustainability | 1 Comment »

During this year’s State of the State speech, Governor Corzine stood before both houses of the legislature and spoke about the State’s commitment to open space. He said:

A second topic of vital concern is “open space,” and it’s a tough one. Not because we don’t want it, but because it’s a tough financing issue. Open space preservation has always been one of New Jersey’s priorities and which should be today, and it must be addressed before June 30th. It is my preferred approach that we put in place a long-term funding solution.

That said we need, at a minimum, an interim-bonding question for November’s ballot to extend the financing the voters approved in 2007.

On the face of it this is good news for the State’s open space program as that program is out of money. Unfortunately, this is not the first time that the Governor committed himself to open space preservation. He has on multiple occasions spoke on his and the State’s commitment to preserving open space. He has not followed through with his commitment. In fact he has on occasion worked against open space funding. In 2007 the legislature was moving strongly on passing legislation that would have created, with voter approval, a long term funding solution for open space. The Governor’s office stopped it and gave us a temporary solution instead, P.L. 2007 Ch. 119. When he signed P.L. 2007 Ch. 119, he promised that he would work with the legislature, during the lame duck session, to put in place a permanent solution. There was no leadership from the Governor’s office and his promise that during Nov and December 2007 a solution would be worked out did not occur.

Then on Sept. 5, 2008, Gov. Corzine issued Executive Order 114 regarding the Highlands. That E.O. provides that:

WHEREAS, in enacting the Highlands Act, the Legislature found and declared that, as a matter of wise public policy and fairness to property owners, a strong and significant commitment by the State is necessary to fund the acquisition of exceptional natural resource value lands; and

WHEREAS, it is vital that the Garden State Preservation Trust be reauthorized and that a statewide transfer of development rights program be considered to meet the open space and agricultural preservation needs of the Highlands Region and the State, and, in part, to address landowner equity issues in the Highlands Region.

Since September there has not been any direction from the Governor’s office on open space funding.

At the beginning of December, the Department of Environmental Protection released its draft Global Warming Response Act Recommendation. The Plan calls for funding of GSPT and calls for the legislature to

Reauthorize the Garden State Preservation Trust, and provide for incentives, technical assistance, and project facilitation, to continue and enhance conservation of the State’s natural assets.

I hope that the cumulative weight of all these promises forces the Governor and the Legislature to act and put in place a permanent solution for open space funding. New Jersey needs to actively preserve open space. Preserving open space is vital to the State of New Jersey for multiple reasons.

Over the last several years, NJ has been loosing open space at a rate of 16,600 acres per year. As we continue to lose space we increase sprawl, increase the time it takes for people to travel from home to work and back again. This increases everyone’s commuter costs and increases the amount of air pollution, including greenhouse gases, we emmitt.

As we continue to develop and put impervious cover over our lands, we diminish our ability to recharge our aquifers. New Jersey relies heavily on aquifers for its drinking water, especially in South Jersey. It is also one of the most important tools for preserving the drinking water from the Highlands, which supplies water to over half of new jerseyans.

As we loose more and more open space, one of our tools to address global warming is lost. From a global warming perspective the “estimated 1.5 million acres –one third of New Jersey’s dry land mass” which has been preserved provides for “substantial amount of carbon storage.” Open space, especially forest, act as a carbon sink.

Open space preservation is also important from an economic perspective. The eco-tourism industry in New Jersey provides close to $3.9 billion in economic benefits. Our natural resources also provide about $19 billion in economic benefits. In a time when property values are decreasing, it has been found that properties in close proximately to open space have a higher value than properties further away. Our open space funds also go to preserving farmland. Open space funds can be used to get people out of the flood plains so that we do not have to rebuild homes that have been destroyed by floods on multiple occasions. Open space is a multifunction tool in our economic engine.

In short, the Governor and the Legislature must keep their promises to putting in place a permanent funding solution for open space. It is too important economically and environmentally for us to allow this promise to be broken again. For more information on the campaign for open space, you can visit the Keep It Green Campaign’s website.

Global Warming Action plan has been released.

Written by Mike Pisauro on December 18th, 2008 in Global Warming, Renewable Energy, Sustainability | 1 Comment »

Recently, the New Jersey Department of Environmental Protection released the State’s draft plan on addressing global warming.  (click here for a copy of the plan).  This plan behind schedule as the Global Warming Response Act required that the plan be presented to the Governor, legislators and the Treasurer no latter than June 30, 2008.  NJSA 26:2C-42(c).  At least part of the delay was the desire to utilize the State’ energy master plan which was released in October.

DEP will be holding several public hearings on portions of the plan in January with the intent of finalizing the plan.  This would also seem to me to indicate that DEP will not make the January 1, 2009 deadline for reporting how the State is doing with emissions, reduction of emissions and progress on the plan.

While I am reviewing the plan, here are a few highlights.  The Plan is broken down into sectors: Land Use, Transportation, Energy Efficiency, Renewable energy and provides many recommendations on how to proceed.  The Plan also points to three things the State has done while it was generating this plan:  The Energy Master Plan, RGGI and the State’s Low Emission Vehicle program.

I do not want to knock the State, but if these are the three major things the State has done to move its battle on global warming, I am somewhat disappointed.  First, we missed the first RGGI auction.  The second auction is scheduled for today and NJ is participating.  Second, the EMP was just finalized and many of its recommendations need legislative action.  Some of this Legislative action has been proposed for many months (if not a couple of years) and is not moving.  Lastly, the State’s adoption of the California low emission vehicle program is on hold and in litigation.  For California’s program to be in effect, EPA had to issue a waiver to California.  Once that waiver was issued the other states could follow.  EPA denied that waiver last year.   This denial has resulted in a lawsuit by California and a call for EPA to reconsider.  With the new administration and our new EPA administrator, Lisa Jackson, hopefully the waiver will be reconsidered and issued.

In short I still have to finish my review but I am glad that there is a plan and the State will be taking public comments on the plan.  I hope to have more information on the plan up shortly.

RGGI's first sale

Written by Mike Pisauro on September 30th, 2008 in Global Warming | No Comments »

On Thursday, Sept. 25th, the Regional Greenhouse Gas Initiative (RGGI) held their first sale of allowances.  RGGI is an interstate compact comprised of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Vermont.  RGGI is a cap and trade system for greenhouse gases.  Overtime, the amount of allowances available for purchase will be reduced so that ultimately start reducing emissions from certain power plants by 2.5 percent between 2014 to 2018.

On Thursday, 12,565,387 allowances (or tons of CO2) were sold at a price of $3.07 per ton.  Interestingly there were was demand for more allowances than there were allowances available.    There will be a second auction in December.  Also of interest was that New Jersey was not part of the auction.  I hope to explain those reasons in a later post.

Wait a minute environmental laws weren't meant to protect?

Written by Mike Pisauro on June 4th, 2008 in Clean Air, Endangered Species, Global Warming | No Comments »

Back in April, President Bush unveiled his climate change plan. I wrote about it here. In his press conference he mentioned his disdain for how our present environmental laws are being used. He said:

“Some courts are taking laws written more than 30 years ago — to primarily address local and regional environmental effects — and applying them to global climate changes. The Clean Air Act, the Endangered Species Act, and the National Environmental Policy Act were never meant to regulate climate. . . . If these laws are stretched beyond their original intent . . . .” President Bush’ announcement on April 16, 2008.

Additionally, the Secretary of Interior repeated the Decider’s position with the announcement of the polar bear listing that, “the ESA was never intended to regulate global climate change.” (here)

Well that just got me thinking, were they right? Are the laws that were designed to protect the environment thirty years ago not suitable for protecting the environment today? Are these laws not able to protect against one of the greatest threats we are likely to encounter? Are the Clean Air Act (CAA), the National Environmental Policy Act (NEPA), or the Endangered Species Act (EPA), being twisted beyond their reach. So I started to review the statutory language of these laws and this is what I found….

The Clean Air Act (CAA), in the form we know it, was originally enacted in 1970. The CAA starts of with:

“The Congress finds – (2) that the growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deterioration of property, and hazards to air and ground transportation.” 42 U.S.C.A. 7501.

The purpose of the CAA is: “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” Gee, doesn’t it seem like we could very well have been talking about global warming? Isn’t transportation the cause of about 30 to 40 percent of the greenhouse gas emissions in the country? Doesn’t global warming threaten to alter where and when agricultural products can grow? Isn’t the threat of rising sea levels, increased storm activity and increased intensity of storms a cause of damage and deterioration of property? Aren’t the increased temperatures and number of days above 100 degrees a cause for concern on a public health basis? All of these things are predicted to occur under most global warming scenarios.

At least in the realm of transportation, the CAA defines air pollutants as “any physical, chemical, . . . substance or matter which is emitted into or otherwise enters the ambient air.” 42 U.S.C. 7602. Again, at least when looking at motor vehicles contribution to global warming, it seems clear that a plain reading of the statute would indicate that the CAA has authority to regulate greenhouse gas emissions.

Now, looking at the National Environmental Policy Act (NEPA), the policies and goals of the statute provide, “The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, . . . the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, . . . to use all practicable means and measures, . . . to create and maintain conditions under which man and nature can exist.” 42 U.S.C.A. 4331(a).

NEPA, which is probably one of the shortest environmental statutes, requires that the government “include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible office on – (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented” 42 U.S.C.A. 4332.

Again, according to a plain reading of NEPA, it looks like the effects of global warming clearly represent an environmental impact that NEPA’s statutory language would encompass.

The ESA, which some consider to the be the strongest of the environmental laws, provides, “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;” 16 U.S.C.A. 1531(a). The purpose of the act is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” Id. at (b). It is the policy of the ESA for the Federal government, “to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter.” 16 U.S.C.A. 1531(c)(1).

The ESA additionally provides that a species should be listed when:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range; . . .

(D) the inadequacy of existing regulatory mechanisms; or(E) other natural or manmade factors affecting its continued existence. 16 U.S.C.A. 1533(a)(1).

It seems clear from the FWS’s listing, the polar bear is threatened with extinction as the result of the destruction or modification of its habitat. That habitat is being destroyed or modified as a result of global warming. It is also clear that our current regulatory scheme is failing to address global warming and that humanity is causing, or at the very least significantly contributing to, global warming. Three of the five factors for listing a species have been met. It again seems clear that a plain reading of the ESA reveals that it, in fact, is a tool that can be used to combat global warming in that it requires the government to address the causes of the endangerment of a species.

While I will have to probably agree with our Decider in Chief that most legislators in 70′s probably did not think about global warming when they wrote any of these statutes or voted for them, that does not mean the authority and responsibilities within these statutes do not encompass global warming. If we accept that these statutes are not authorized to address global warming that is somewhat like saying that someone who discharges a brand new chemical into a waters does not need a permit because the chemical did not exist when we wrote the clean water act; therefore the clean water act does not cover this new chemical. That is silly and so is the contention that NEPA, ESA and CAA do not and cannot be tools we have at our disposal to help address global warming.

New Federal Global Warming Bill

Written by Mike Pisauro on June 3rd, 2008 in Clean Air, Global Warming | No Comments »

Two weeks ago, Sen. Boxer (D) introduced a new bill to address global warming. The Bill S2555 would overturn the EPA decision to deny California’s petition for the ability to enforce enhanced emissions on motor vehicles. I believe this was the first time a California request for a waiver was ever denied.

The Clean Air Act preempts state regulation of motor vehicle emissions. Because California was experiencing some of the worst air pollution in the County, California was granted special rights to request a waiver of this federal preemption. Once California receives a waiver from EPA than other states may adopt the California regulations as their own. New Jersey, and several other states, have already put into place regulations adopting the California regulations pending California’s receipt of a federal waiver. For those of you interested in reading NJ’s proposal it can be found here.

Motor vehicles are responsible for approximately 34% of New Jersey’s emissions. Therefore, for New Jersey to reach the goals under the Global Warming Act, NJ is going to have to address the transportation’s impact on global warming. Sen. Boxer’s bill is one step in addressing motor vehicle’s contribution to the situation and undoes just another roadblock set up by the Bush administration.

Polar Bears left clinging to the ice.

Written by Mike Pisauro on May 14th, 2008 in Endangered Species, Global Warming, Uncategorized | No Comments »

Today the Federal Fish and Wildlife Service took a swing and missed the ball. While today the polar bear has been listed on the Federal Endangered Species list, that listing was as a threatened species and not an endangered species. Additionally, Secretary Kempthorne went out of his way to tell people that this listing will not have any impact on the United States’ climate change strategy. In fact in the press release (click here to read the release) he is quoted:

While the legal standards under the ESA compel me to list the polar bear as threatened, I want to make clear that this listing will not stop global climate changes . . . That is why I am taking administrative and regulatory action to make certain the ESA isn’t abused to make global warming policies.

The press release further made it very clear that this listing would not be used to prevent the exploitation of oil reserves in the arctic. This is clearly a miss on protecting the environment and on forward thinking on climate change. Unfortunately nothing better could have been expected from the current administration.

Once I have had a chance to read the actual proposal, I hope to provide more detail.  In the meantime the NRDC has some good information (click here).

Bush combats global warming with more hot air.

Written by Mike Pisauro on May 5th, 2008 in Global Warming | 1 Comment »

Recently our President made a major announcement. He announced his plan to address global warming and claimed that, “[o]ver the past seven years, my administration has taken a rational, balanced approach to these serious challenges.” What approach? Until recently, the Administration had denied that global warming was even occurring or that humans had any impact on it. Last year the U.S. Supreme Court told the EPA that it could not ignore global warming. The Supreme Court further found that greenhouse gas emissions were an air pollutant under the Clean Air Act and that the EPA had authority to regulate the emission. In the year since that ruling has the EPA, controlled by the Bush administration, issued regulations to begin controlling the emission of carbon dioxide? No.

The Plan that has been announced is so visionary that we can probably excuse his almost eight year silence on the subject. The Plan calls for us to stop the growth in emissions by 2025. Our president is not asking for a reduction in overall emissions – he is just asking that, by 2025, we not increase them. Bush is calling for greenhouse gas emissions from power plants to peak within the next 10 to 15 years. He not asking that they begin to reduce their emissions. While the New Jersey and other states are calling for a reduction of overall greenhouse gas emissions to 1990 levels by 2020, the Federal government is saying that increasing emission between now and 2025 is OK. Bush has touted the billions of dollars the Federal government is spending for next generation nuclear energy, but he has made no mention of any money for renewable energy. He does, however, talk about the investment in developing clean coal technologies.

In his pronouncement Bush went so far as to chide the U.S. Supreme Court for doing its job – reading the clear language of the laws enacted and applying those laws to the facts before it. According to the President, laws enacted thirty years ago, including the Clean Air Act, should not be used to combat air pollution. Bush told us that such decisions were not for the Courts to make but for the legislators. Well, if that is the case, the U.S. Congress and his administration have failed to do their jobs for many many years.

Bush told us that any solution to global warming must take into consideration “an honest assessment of the costs, benefits and feasibility of any proposed solution.” Well, what are the costs of global warming? As it pertains to New Jersey those costs can be great. Several insurers have decided not to renew or write new homeowner policies along the coast of New Jersey. According to the insurers, we are due to a big storm to hit and they do not want to foot the bill for rebuilding.

Our weather is going to change drastically over the next several decades. Depending on whether we actually do something about climate change or continue to have an overdue “honest assessment” that weighs costs and benefits , our climate here in New Jersey could resemble Virginia/North Carolina or Savannah, Georgia. Although winter precipitation could increase by 20 to 30 percent, most of that would be rain – we would lose any chance of actually having a white Christmas. Furthermore, we could lose somewhere between 1 to 3% of the total land area of the State due to sea level rise attributable to global warming. That could have a devastating affect not only on the lives of people living along the coast but on the NJ tourism industry (New Jersey’s number 2 industry). Atlantic City could be subject to complete flooding because of storms once every year to two. Flooding along all of our water ways could become more frequent and more severe.

Global warming will not only reshape the coast of New Jersey, but it will impact our economy as well. As noted above, tourism is the second largest industry in New Jersey but that could very well change what with Atlantic City perpetually under water and our beautiful shore gone. Our agriculture industry could also change from what we know. According to the Union of Concerned Scientists, cows will become less productive in producing milk as a result of the heat. Blueberries and cranberries may not be able to grow in the State. Apples also may no longer be able to grow in New Jersey because, like blueberries and cranberries, apple trees need a period of winter weather for optimum growth. The Garden State that we know may not be the one that exists in a few decades.

So while I am glad the President of the United States finally sees that we should be doing something, his plan is a step back from what New Jersey, California and others are already doing to address global warming. The economic, environmental and human costs of not seriously addressing global warming is too great for New Jersey. The Federal Government should follow the lead of these States and not try to drag down the progress that has been made.

Welcome to NJ Environmental Blog

Written by Mike Pisauro on January 7th, 2008 in Uncategorized | No Comments »

Welecome to my first blog. With this blog I will look at environmental issues affecting New Jersey. In upcoming entries I will be talking about global warming, RGGI, renewable energy, and coastal issues. If there is a topic you would like to read about, please let me know at Mike@fplegal.com

-Mike Pisauro