Weekly Climate Change Update - September 7, 2010

Article by Kyle Danish, Shelley Fidler, Kevin Gallagher, Megan Ceronsky and Tomás Carbonell

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Commentary

As Majority Leader Reid confirms that there will be no climate change legislation in 2010, the push and pull over action by the Environmental Protection Agency (EPA) begins. Three major NGOs – the Sierra Club, the Environmental Defense Fund, and the Natural Resources Defense Council – sent a letter to EPA requesting that the agency issue a plan by mid-month for promulgating New Source Performance Standards for new and existing sources of GHG emissions – starting with power plants. The NGOs expect a schedule by mid-September, or they will sue . . . The external review of the Intergovernmental Panel on Climate Change finds the IPCC generally sound, but in need of reforms and improvements in a number of areas.

Executive Branch

• Stern Not "Writing Off" Climate Legislation. Special Envoy for Climate Change Todd Stern reiterated the United States' commitment to achieve a 17% reduction in greenhouse gas (GHG) emissions relative to 2005 levels by 2020, as stated in the United States' submission associating itself with the Copenhagen Accord. Stern said that regulation by EPA would be an "important piece of the total equation" in meeting that goal. However, Stern said that he was not "writing off" the prospect of future legislation and predicted "there will be legislative progress."
• EPA and NHTSA Propose Vehicle CO₂ Labels. Responding to a mandate in the Energy Independence and Security Act of 2007, the Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) issued a joint proposed rulemaking to create a new combined fuel economy and environmental labeling system for new passenger vehicles. In addition to efficiency information, the proposed labels would offer data on the GHG emissions of every new vehicle. The agencies proposed two alternative designs for the labels, both of which are intended to enable comparisons among all classes and types of vehicles, including electric vehicles, plug-in hybrid electric vehicles, and natural gas vehicles. The agencies will take comment on the proposed labels for 60 days following their publication in the Federal Register. The proposed rule is available at http://www.epa.gov/fueleconomy/regulations.htm.
• EPA Publishes Proposed PSD Implementation Rules, Sets New Public Hearing Date. On September 2, EPA published two proposed rules in the Federal Register that would (a) find that 13 states lack authority under their State Implementation Plans (SIPs) to issue Prevention of Significant Deterioration (PSD) permits for GHG sources, and (b) establish a Federal Implementation Plan (FIP) that would allow the agency to directly issue PSD permits in those 13 states unless and until those states submit adequate SIPs to EPA. The proposed rulemakings raise the possibility that some states may lose authority to issue PSD permits for GHG sources during the interim between January 2, 2011 (the date that PSD permitting of GHG sources begins) and EPA's approval of revised SIPs. EPA will take public comment on the two proposed rules through October 4. In addition, the agency announced that it has revised the date of a public hearing on the two proposed rules; the hearing will now be held on September 14 in Arlington, VA. The proposed rules are available at http://edocket.access.gpo.gov/2010/pdf/2010-21706.pdf and http://edocket.access.gpo.gov/2010/pdf/2010-21701.pdf.

Congress

• Reid Says No Cap-and-Trade in 2010. Senate Majority Leader Harry Reid (D-NV) told reporters he intends to bring an energy bill to the floor for a vote this year (possibly during a lame duck session), but that "at this stage" he believed the bill would not include a cap on GHG emissions because the measure lacks "traction." Maj. Leader Reid said that a renewable energy standard (RES) could be included in the energy bill, and noted that two Republicans have expressed support for an RES.
• Murkowski Loses Primary. Senator Lisa Murkowski (R-AK), ranking member of the Energy and Natural Resource Committee, lost her primary election race against Joe Miller. Sen. Murkowski has sponsored legislation that would block or delay EPA regulation of GHG emissions under the Clean Air Act. She also, however, co-sponsored the Bingaman-Specter cap-and-trade bill in 2007; Miller—a climate change skeptic—highlighted this fact in their primary race. Sen. Murkowski's departure could put Sen. Richard Burr (R-NC) in line to be the senior Republican on the Energy and Natural Resources Committee, although committee assignments are not determined until after the elections.

Judicial

• Plaintiffs Seek Mandamus to Compel Fifth Circuit Decision in Climate Tort Suit. A group of Mississippi property owners have filed a petition requesting that the Supreme Court order the Fifth Circuit Court of Appeals to decide a rehearing of an earlier appellate panel decision in Comer v. Murphy Oil. Earlier this year, the Fifth Circuit determined that it could not issue an en banc decision in the case because the recusal of multiple judges deprived the court of the necessary quorum; however, the Fifth Circuit already had vacated the appellate panel's decision. As a result, the district court decision dismissing the plaintiffs' claims is in effect. The Comer case originated with a complaint filed in 2005 by victims of Hurricane Katrina against a variety of energy companies and energy-intensive manufacturers, alleging that the defendants' operations had exacerbated the destructive power of the hurricane. In 2007, the suit was dismissed in district court on the grounds that it presented a nonjusticiable "political question."
• Virginia Court Quashes Subpoena Investigating Former UVA Climate Scientist. A Virginia Circuit Court set aside a subpoena issued by Virginia Attorney General Ken Cuccinelli to investigate climate change research carried out by Michael Mann while he was teaching at the University of Virginia (UVA). In the subpoenas, Attorney General Cuccinelli alleged that Mann had potentially produced fraudulent research under five separate research grants. In setting aside the subpoenas, the court noted that four of the five grants were not eligible for investigation because they were issued by the federal government. As to the remaining state-funded grant, the court determined that the Attorney General had not adequately explained how Mann's work was fraudulent or misleading. Because the court's decision set aside the subpoena without prejudice, the Attorney General may choose to re-issue the subpoena. Mann is currently a professor and director of the Earth System Science Center at Pennsylvania State University.

Industry and NGOs

• Environmental Organizations Threaten Suit if EPA Does Not Issue NSPS for GHGs. The Sierra Club, the Environmental Defense Fund, and the Natural Resources Defense Council sent a joint letter to EPA, urging the agency to use its authority under Section 111 of the Clean Air Act to issue New Source Performance Standards (NSPS) regulating GHG emissions from new and existing stationary sources. The letter asks that the agency begin by including GHGs in new NSPS regulations for utility boilers. EPA has indicated that it will propose NSPS regulations for utility boilers by March 2011. Other categories of fossil fuel fired boilers, the letter argues, should be progressively covered by NSPS for GHGs on a "reasonable schedule" determined by the agency. The organizations threatened to sue EPA to compel action if the agency does not agree by September 15 to issue such standards; the letter noted that the D.C. Circuit issued a remand order in New York v. EPA (2007) directing the agency to consider including GHG emissions in revised NSPS for the utility sector.
• CAPCOA Issues Compendium of Local GHG Mitigation Measures. The California Air Pollution Control Officers Association (CAPCOA), an organization of municipal air quality officials, issued a 550-page report compiling dozens of policies and approaches for reducing GHG emissions at the local level. The report, which was developed in collaboration with the National Association of Clean Air Agencies and the Northeast States for Coordinated Air Management, also includes supporting technical data to assist communities in quantifying the emission reduction impact associated with each measure. Topics covered in the report include urban planning, transit-oriented development, reduction of traffic congestion, water conservation, and waste management.

Studies and Reports

• IEA Finds Electric Vehicles Could Boost Renewables. A working paper released by the International Energy Agency found that electric vehicles could provide distributed energy storage for the electricity grid and that such storage will be needed to address the variability in output of many renewable energy sources. According to the study, electric vehicles could play an important role both by "load shifting" (by drawing energy from the grid at times of non-peak demand, to smooth the peaks and valleys of demand) and by participating in "vehicle-to-grid" programs (in which cars would supply energy to the grid when energy demand from other sources ramps up). Under the scenarios explored in the paper, electric vehicles could reduce the need for increased energy storage capacity by 15 to 35 percent, assuming wind power utilization of 15 to 30 percent by 2050. The study also found that the storage capacity benefits were greater in Japan and Western Europe than in China and the United States, but that associated reductions in GHG emissions were significant in all four regions. The paper is available at http://iea.org/papers/2010/load_shifting.pdf.
• World Energy Stats Show Rise in Energy Use, Natural Gas. According to the International Energy Agency's report Key World Energy Statistics, total primary energy supply (production) nearly doubled between 1973 and 2008, increasing from 6,115 Mtoe (million tonnes of oil equivalent) to 12,267 Mtoe. During that time period, the report indicated that oil's share of total primary energy supply fell from 46.1 percent to 33.2 percent, gas' share increased from 16 percent to 21.1 percent, and nuclear's share increased from .9 percent to 5.8 percent. Similarly, the proportion of fossil fuel combustion CO₂ emissions from oil fell from 50.6 percent to 36.8 percent between 1973 and 2008; coal's share increased from 34.9 percent to 42.9 percent; and the proportion from natural gas increased from 14.4 percent to 19.9 percent. The report is available at http://iea.org/textbase/nppdf/free/2010/key_stats_2010.pdf.
• Poll Shows Sustained Support for GHG Regulation. Poll results released by the Benenson Strategy Group found that 60 percent of the likely voters polled support government regulation of GHG emissions from power plants and refineries to reduce global warming and 53 percent oppose legislation that would suspend EPA's power to regulate GHG emissions for two years (with 35 percent supporting such legislation). The poll was funded by the Natural Resources Defense Council Action Fund.
• NETL Finds Coal-to-Hydrogen Viable; Natural Gas-to-Hydrogen Cheaper Upfront. The National Energy Technology Laboratory (NETL) released two reports on generating hydrogen from fossil fuels to be used as a transportation fuel. The first study, which examined six different processes for producing hydrogen from gasified coal, concluded that domestic coal could be used as a feedstock for hydrogen, with costs in the range of $2.00 to $2.40 per kilogram hydrogen. The report notes that this price would be competitive with the production of hydrogen from natural gas when the natural gas price is between $6.20 and $7.30/MMBtu. The report also noted that with the use of oxygen-fired combustion, the plants' CO_2­ emissions would be zero, assuming that the separated CO₂ stream is captured and sequestered. The second study analyzed potential state-of-the-art plant configurations and the cost of producing hydrogen from natural gas and coal. The study found that the coal-to-hydrogen plants were significantly more capital intensive than the natural gas-to-hydrogen plants. The reports are available at http://www.netl.doe.gov/energy-analyses/pubs/H2fromcoaltech2010.pdf and http://www.netl.doe.gov/energy-analyses/pubs/H2_Prod_Vol1_2010.pdf.

International

• External Review of IPCC Process Finds Need For Stronger Management. The InterAcademy Council, an organization of national science academies, has completed its independent review of the Intergovernmental Panel on Climate Change's (IPCC) processes and procedures. Although it found that the IPCC's process for developing its periodic assessment reports to be generally successful, the review also determined that the IPCC needs to strengthen its management to handle the increasing complexity of the climate change assessments and the ever more intense public scrutiny to which the reports are subject. Conducted at the IPCC's request, the review contains a number of specific recommendations, including that the IPCC appoint an executive director to lead the panel's secretariat; allow non-IPCC members on the agency's executive committee; develop and implement a comprehensive conflict-of-interest policy; and change its leadership with each assessment round.

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