6/26/12

The U.S. Court of Appeals for the D.C. Circuit — in a unanimous decision — handed the U.S. EPA a sweeping victory in upholding across the board four separate components of the agency’s rules to regulate greenhouse gas emissions.  The opinion can be found here.

A little background is in order here.  The U.S. Supreme Court’s decision in Massachusetts v. EPA directed the Environmental Protection Agency to decide whether greenhouse gases are pollutants that must be regulated under the federal Clean Air Act.  The Bush Administration had refused to make such a finding despite petitions from states and environmental groups asking that emissions be regulated.  The rules that are subject to today’s ruling — the case is called Coalition for Responsible Regulation v. EPA — are the direct result of the Supreme Court’s Mass v. EPA decision.

EPA’s first decision was to find — as required under the Clean Air Act as interpreted in Mass v EPA — that greenhouse gases endanger public health and welfare.  The D.C. Circuit  found that the EPA did not act arbitrarily and capriciously when it made its endangerment finding.

EPA’s next decision was to issue what is known as the “tailpipe rule.”  The tailpipe rule establishes greenhouse gas emissions standards for automobiles under Section 202 of the Clean Air Act.  What is somewhat odd about the challenge to the tailpipe rule in the new Coalition for Responsible Regulation case is that the challengers to the rule are not auto companies but are instead largely made up of businesses that operate what are known as “stationary sources,” — factories that emit pollutants.  They argued that the EPA should not have issued the tailpipe rule regulating greenhouse gases from cars because if the agency did so, the next obvious step under separate provisions of the Clean Air Act would be that the agency would have to regulate greenhouse gas emissions from stationary sources.  That’s because once pollutants are regulated under one provision of the act the new regulation triggers other provisions of the act.  Industry argued that the cost implications of regulating greenhouse gas emissions from stationary sources were so large that the EPA should not have regulated tailpipe emissions. The court rejected this argument, holding instead that the EPA lacked any discretion at all in setting tailpipe emissions once it found that that greenhouse gases endanger public health and welfare.  In other words, the Clean Air Act required the EPA to regulate greenhouse gas tailpipe emissions – the agency had no choice.

The third and fourth rules that are at issue in today’s case are called the “timing” and “tailoring” rules.  These rules together work roughly as follows:  regulation of greenhouse gases for automobiles automatically triggers a different section of the Clean Air Act, what is known as the prevention of significant deterioration section (PSD). That section basically requires the EPA to regulate the emissions of any “major” source of a “regulated” pollutant.  ”Major” is defined in the Clean Air Act to regulate any source that emits 100 tons per year of a regulated pollutant.  The problem for the EPA is that the 100 tons per year amount would subject very, very small sources (a single home, perhaps, certainly apartment buildings and small businesses) to the permitting provisions of the Clean Air Act, something that those small sources have never had to comply with and that would be extremely expensive and administratively burdensome.  So in the “tailoring” rule, the EPA only subjected large sources — new sources emitting 100,000 tons per year or more and existing sources making modifications that would increase emissions by 75,000 tons per year or more — to its greenhouse gas rules.  Industry challenged both the application of the Clean Air Act to stationary sources and the tailoring rule as an impermissive interpretation of the Clean Air Act.  In today’s ruling, the court found that the EPA is legally justified — indeed required — to regulate greenhouse gas emissions from stationary sources under the PSD provisions of the act.  But it also found that none of the plaintiffs in the case — which included industry groups and states like Texas that oppose the regulations —  have standing to challenge the rules.  That means that the plaintiffs do not meet constitutional requirements to bring a case in court.  More specifically, the court found, the plaintiffs have not been injured by a rule that exempts small sources from regulation even if the larger businesses themselves will be subject to regulation.  This finding is somewhat ironic because industry for years has challenged the standing of environmental plaintiffs to challenge various government rules and the Supreme Court has tightened standing rules over the years.  Those tighter rules were used today to limit industry’s ability to challenge rules that don’t directly apply to them.

It seems safe to predict that the legal battles over the greenhouse gas rules are far from over.  Expect plaintiffs to petition the U.S. Supreme Court for review.  If the high court agrees to take the case, my bet is that the standing portion of the case is the most vulnerable:  if the Supreme Court finds that industry and states have standing to sue, then the whole question of the legality of the timing and tailoring rules will be back in front of the D.C Circuit to decide on their merits.   But for today, this is a huge victory for the Environmental Protection Agency.

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6/26/12

Morro Bay has received national recognition for its efforts to preserve its historic fishing industry.

The city is one of four coastal governments to receive the 2012 Walter B. Jones Memorial Award for Excellence in Coastal and Ocean Management. The awards are given every two years by the National Oceanic and Atmospheric Administration to honor noteworthy contributions to protecting and improving coasts and coastal communities.

Specifically, Morro Bay is recognized for its innovative work with commercial fishermen, The Nature Conservancy and other coastal communities to rebuild the town’s fishing industry in a more sustainable fashion after many of the West Coast’s fisheries collapsed a decade ago.

“In a time when fisheries quotas are being consolidated and landings funneled to larger ports, it is important to keep Morro Bay a viable working waterfront,” said Andrea Lueker, Morro Bay city manager.

Steps taken by the city and its partners to revitalize the fishing industry include diversifying gear types, experimenting with new gear designs to minimize environmental impacts and forming a Morro Bay Community Quota Fund to set and maintain groundfish quotas on the Central Coast. As a result of these efforts, the value of catches landed in Morro Bay has doubled.

One of the more controversial aspects of the effort was partnering with environmental group The Nature Conservancy, which bought all of Morro Bay’s trawl fishing fleet and permits. Many fishermen were reluctant to work with the group.

“This work has not been easy,” said Michael Bell, marine project director for The Nature Conservancy. “These leaders have faced huge obstacles in their effort to try a new model.”

The city was nominated for the award by Adrienne Harris, executive director of the Morro Bay National Estuary Program. No awards ceremony is planned as a cost-saving measure, Harris said.

Other governments to receive the national honor this year are the Port of Anacortes, Wash.; Naples, Fla.; and Plymouth, N.C.

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6/24/12

Eliminating the railroad tracks around Humboldt Bay to create a trail will be one of the topics of discus­sion Tuesday at the Hum­boldt County Board of Supervisors meeting.



At 9:30 a.m., the board will discuss whether it wants to ask the North Coast Railroad Authority — a group formed by the state Legislature in 1989 to protect rail infra­structure — to support form­ing a committee to examine the possibility of creating a trail around Humboldt Bay to replace the railroad tracks.



Second District Supervisor Clif Clendenen, who serves as a director on the North Coast Railroad Authority, is bring­ing the item before the board for discussion on behalf of a citizen group interested in the project. Clendenen said the idea of creating a trail where the rail lines run from Eureka to Arcata and Samoa is an idea that has been around for years.



“It’s a good time to have a good, larger discussion,” Clendenen said. “The rail isn’t being used right now.” According to supporters, the rail lines in Humboldt haven’t been used since 1997. As a way to both protect the rail corridor and make use of it, supporters are proposing to “railbank” the land. Con­gress created the term “rail­banking” in 1983 when it amended the National Trails System Act. When a railroad corridor is railbanked, the land is allowed to be convert­ed into a trail.



What’s special about rail­banking, Clendenen said, is that it preserves the railroad’s right-of-way, meaning the trail can be converted back to a railroad in the future.



“Were there ever to be a need for rail again, that rever­sion would be possible,” Clen­denen said.



Supporters are suggesting the right-of-way, which is owned by the North Coast Railroad Authority, be trans­formed into a paved, multi­modal path that could be part of the California Coastal Trail — an under-construction network of public trails stretching along the 1,200­mile California coast.



As part of the plan, sup­porters are also in favor of restoring the rail line from Arcata to Samoa/Fairhaven so a tourist train can be oper­ated on the existing tracks. The idea is that the attraction would support the Timber Heritage Association’s pro­posed Redwood Heritage Museum in Samoa. The non­profit association collects equipment and other items pertaining to the North Coast’s logging industry. Some artifacts are currently on display at the Samoa Roundhouse and nearby harbor shops.

Funding for such a plan has yet to be identified, and at this stage the citizen group — comprised of Dennis Rael, Rees Hughes, Judy Hodgson and Don Banducci — is look­ing to form a committee to figure out how to proceed.

Humboldt County Associa­tion of Governments Execu­tive Director Marcella Clem said the citizen group sought support from the HCAOG board Thursday to move for­ward with the committee idea. The HCAOG board is largely responsible for county transportation projects.

“Our board would like that the individual cities look at it first,” Clem said.

There are concerns about the proposed idea, including any potential impact to the wetlands surrounding the railroad tracks. If this moves forward, Clendenen said, the plan needs to include an alter­nate plan that addresses what happens to the trail if it reverts to a railroad. If this happens, it needs to be deter­mined whether the trail will simply disappear or be relo­cated next to the tracks — creating concerns about the need for wetland mitigation.

In addition to discussing future rail plans, the supervi­sors will likely adopt the final fiscal year 2012-2013 budget.

According to a county staff report, the total county budg­et up for adoption totals approximately $281.1 mil­lion. After the budget hear­ings June 11, the board direct­ed county staff to add an additional part-time position to the district attorney’s office.

The county administrative office worked with the DA’s office to unfreeze two office assistant positions by utilizing extra-help funding and sup­plemental funding, according to a staff report. Staff also dis­covered that a lieutenant position in the sheriff’s department should have been unfrozen but wasn’t. As a result, the final budget is about $420,000 more than the proposed budget.

Changes in grant funding and building maintenance needs contributed to the increase.

For the complete board of supervisors meeting agenda and supporting documents, go online to www.co. humboldt.ca.us/board/ agenda/questys/.

For more information about the Humboldt Bay rail and trail group, go online to www.baytrailplan.org.

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6/20/12

Senate Democrats blocked a Republican-backed move Wednesday to scrap EPA regulations on mercury and toxic chemical emissions from coal power plants, not swayed by the contention that the rules are killing jobs, not saving lives.

The measure, sponsored by Sen.James M. Inhofe(R-Okla.), failed, 53 to 46.

Picking an election-year fight over the wisdom of instituting new environmental regulations in a weak economy, Republicans argued that the rules would force older power plants to close, putting people out of work, and would drive up the cost of electricity.

Inhofe warned senators that by voting against his measure "you are effectively killing coal in America."

Opponents of the measure said the regulations were needed because of the hundreds of thousands of Americans made ill by toxic chemicals spewed by coal-fired plants.

The Environmental Protection Agency estimates that the rules will prevent 11,000 premature deaths a year.

Environmental groups praised the regulations when they were announced in December as a historic step that was more than two decades in the making.

Congress ordered the EPA to regulate the chemicals as part of the 1990 Clean Air Act, but delays and aGeorge W. Bushadministration U-turn meant mercury and other toxic chemicals from coal plants were not controlled until the rules were announced last year.

There was little chance that the Mercury and Air Toxics Standards would be repealed. Even if Congress had passed Inhofe's measure, the White House had threatened to veto it. But the vote allowed senators to attempt to capitalize on the issue ahead of this fall's election.

Some Democrats from energy-producing states voted for the measure. But New England Republicans, whose states do not use much coal and are in the path of airborne chemicals from Midwestern plants, voted against it.

Sen. Joe Manchin III (D-W.Va.) said the regulations would harm miners in his state, which is a major coal producer. "These people are scared to death because all they hear every day is they're going to lose their jobs," he said.

But West Virginia's other Democratic senator,John D. Rockefeller IV, argued that the rules would help clean up the coal industry, giving it a viable future.

Manchin is up for reelection in November; Rockefeller is not.

Power companies have four years to meet the rules, which the EPA estimates will cost the industry almost $10 billion a year. But the agency also estimates that the regulations will save between three and nine times that amount as a result of better health. The EPA also estimates that although some jobs could be lost as plants closed, others will be created to install the required equipment.

The rules require all coal plants to meet the same standards as the cleanest coal plants now operating. The EPA estimates the regulations will cut mercury emissions by 90% and acid gases by 88%.

Power plants are responsible for 50% of mercury emissions in the United States. Mercury gets into water, where it is turned into a highly toxic chemical by microorganisms and accumulates in fish.

Mercury can cause developmental problems in children who eat contaminated fish. Other chemicals emitted by coal plants are linked to cancer and respiratory illnesses.

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