Is it Possible to Avoid Wind Turbine Litigation?

One of the top renewable energy legal decisions in 2009 has to be the injunction issued on December 8 by U.S. District Judge Roger Titus in Animal Welfare Institute v. Beech Ridge Energy LLC. The ruling halted the construction of a 122-turbine wind project in West Virginia due to the failure to study adequately the impacts of the turbines on the endangered Indiana bat. The case highlights the importance of heeding the formal advisories of agencies, such as the U.S. Fish and Wildlife Service (USFWS), in the pre-construction evaluation of a project's impacts on local fauna.

Beech Ridge Project

The project obtained its siting certificate in 2006 with the West Virginia Public Service Commission concluding that the evidence before it did not support a conclusion that Indiana bats lived near the project. Following a trial in October 2009, the U.S. District Court in Maryland concluded otherwise and criticized the project's consultant for disregarding the repeated formal advisories of USFWS to conduct multi-year studies using a variety of tools (radar, thermal imaging, acoustical studies, mist-netting and other appropriate sampling techniques) during spring and fall to determine the presence and risks to endangered Indiana bats. The consultants primarily relied on surveys using mist-nets (small-screen fine-mesh nets) conducted during two summer seasons, and only incidental, and apparently unintended, collection of acoustical data.

This did not sit well with the judge, who said that the mist nets, which did not capture any Indiana bats, at best could only establish that the bats were not present in large numbers during the summer, but did not establish absence of the bats at other times of the year.

The acoustic data, which apparently a field technician collected on his own, did not get evaluated until trial and arguably indicated that some Indiana bats might be present. The court relied heavily on this disputed acoustic data to confirm "to a virtual certainty" the presence of Indiana bats and to conclude it is "a virtual certainty that Indiana bats would be harmed, wounded or killed" by the wind project in violation of the Endangered Species Act.

The court reluctantly issued an injunction halting the Beech Ridge project and chided the developer for "disregard[ing] not only repeated advice from the [US]FWS but also fail[ing] to take advantage of a specific mechanism, the [incidental take permit] process, established by federal law to allow their project to proceed in harmony with the goal of avoidance of harm to endangered species."

Had the Beech Ridge project followed the USFWS suggestions and combined acoustic data with the mist net surveys the developer might have been in a position to make a case for an incidental take permit under the Endangered Species Act and to have better evidence to oppose a court challenge. The cautionary tale in all this is that the injunction effectively halted the project, which at the time had poured foundations for the initial 67 turbines, taken delivery on turbines and strung transmission lines.

Wind Turbine Guidelines Advisory Committee

In the meantime, the USFWS Wind Turbine Guidelines Advisory Committee (Advisory Committee)is preparing a set of recommended measures to reduce or minimize impacts to wildlife and their habitats related to land-based wind energy facilities. The American Wind Energy Association (AWEA) lists completion of the Advisory Committee work among its wind power trends for 2010, and the Beech Ridge decision suggests that such draft guidelines, if followed, might be helpful to avoid the harsh results of the case.

The sixth draft issued by a workgroup of the Advisory Committee in late October 2009 proposes a five-tiered approach to wildlife assessment and siting decisions that includes pre-construction evaluation of avian and bat impacts.

The draft guidelines specifically recommend against using mist-netting to assess the presence of bats and birds, in part because it is not feasible at the heights of the rotor-swept zone, and captures below that zone may not adequately reflect risk of fatality. If mist-netting is used, the draft guidelines recommend using it in combination with acoustic monitoring.

Litigation Likely

The Beech Ridge court's critique of the methodologies used in that case lends some credence to the Advisory Committee's draft recommendations. Even, however, as that process works toward final guidelines for approval by Interior Secretary Ken Salazar, they may not prove to be a hallmark event in wind power development for 2010 because of the strong likelihood of a court challenge.

Indeed, the attorney who represented the plaintiffs in the Beech Ridge case wrote a letter earlier in 2009 asking Secretary Salazar to disband the Advisory Committee because its draft recommendations "contain little but vague bromides and generic pronouncements" and "read more as an unabashed endorsement of wind power than a rigorous effort to address the harmful — and ever growing — effects of poorly sited and constructed wind power projects on wildlife." While that letter was written well before the current draft guidelines, it indicates that the final recommendations could well face litigation.

In the absence of implimentation of the guidelines, the Beech Ridge case provides a strong signal that it does not pay to ignore or minimize an agency's formal advisories in the pre-construction evaluation of a project.

Adventures in Houston

Houston may be home to urban sprawl that would make L.A. blush, but amid the giant office towers (even in residential neighborhoods thanks to minimal zoning) you can find a real true diner. Although Avalon Diner happens to be located in a Houston strip mall, its the real deal. Last Friday, my colleague and I were driving down Westheimer Road looking for a place to have lunch before we flew back to Seattle. In the River Oaks area we happened on Avalon Diner and decided to check it out. The diner, which opened in 1938 across from its present location, is not one of those kitschy, after-the-fact recreations. Except for the styrofoam cups that the ice tea comes in you'd think you were back in the Fifties.

We sat at the counter and had the pleasure to meet Velma, whose apron said she had been working at Avalon since 1975. After 34 years on her feet, it's no wonder Velma sat down next to me to take our order, but she apparently is one of the newbies. Her co-workers Cassie and Sarah have worked at the Avalon since 1966 and 1968! The photo at the top is the trio, with Velma in the middle, and the year they started proudly embroidered on their aprons.

I was so intrigued that I wrote down their names and years they started, which Velma noticed and asked what I was doing. I think she might have been worried I was some inspector or something, but I told her I was going to write a blog about Avalon and she graciously agreed to let me take her picture with her co-workers.

We ordered the meatloaf with red sauce, mashed potatoes and warm corn bread muffins. It was fast and it was great. What a wonderful find in a time where "history" seems seems mean what happened ten years ago. Thank you to Velma, Cassie and Sarah for making Avalon a true gem and thanks for your dedication.

Now on an even lighter side, here's a photo I took at the Galleria before we found the Avalon. I couldn't resist the juxtaposition. In fairness, the school buses actually were parked at the Dillards (not pictured, but also nearby), but their proximity to Zone d'Erotica was irresistable and perhaps a lesson in situational awareness. So long Houston!

Climate Change Regulation Before Legislation in U.S.

Sen. John Kerry's announcement on Nov. 16 that the Senate's version of climate change legislation, the Clean Energy & American Power Act (S. 1733), probably won't be considered until "early spring" 2010 now makes it more likely that the first move by the U.S. will come from the Environmental Protection Agency rather than Congress.

Sen. Kerry made the announcement after meeting with Senate Majority Leader Harry Reid and committee chairs. Its no secret that rounding up 60 votes to beat an expected filibuster is going to be difficult. Coal-state senators are wanting to make sure their constituencies aren't hurt by the bill. Sen. James Webb (D-VA) signaled his opposition to cap and trade, calling it "enormously complex," and joined with Sen. Lamar Alexander (D-TN) to propose a bill that would provide $20-billion to expand nuclear energy and fund alternative energy sources. Sen. Webb says his proposal addresses areas that are "achievable."

That leaves pretty much an open field for the EPA to issue its long-awaited endangerment finding, which the agency sent to the White House Office of Management and Budget on Nov. 9. OMB has up to 90 days to consider it, but the EPA is hoping for a shorter review. The endangerment finding, together with EPA's mandatory carbon reporting rules, means that, for now, the climate action is on the regulatory side rather than legislative.

Court Greenlights GHG Nuisance Claims Against Power Companies

The U.S. Second Circuit Court of Appeals handed down a ruling on Monday in Connecticut v. American Electric Power Co. resurrecting lawsuits brought by eight states, New York City and three land trusts against several power companies over carbon dioxide emissions. In doing so, the court took a big step towards opening the courthouse doors to lawsuits over climate change.

The district court originally had dismissed the cases on the grounds that there was no recognized federal common law basis for abating greenhouse gas (GHG) emissions that allegedly contribute to global warming, separation of powers precluded the court from adjudicating the issues, and Congress had displaced any federal common law to address global warming issues. According to the district court, the elected branches of government must make an initial policy determine regarding global warming before the courts could adjudicate a nuisance claim over global warming. In addition, the district court had ruled that the plaintiff states, city and trusts did not have standing to sue on account of global warming and the absence of a justiciable claim deprived the court of jurisdiction.

The Second Circuit's 139-page decision overruled the district court on each of these grounds, but the significant portion concerns the "political question" basis for the dismissal. The political question doctrine has been used by other district courts to dismiss climate change litigation in Comer v. Murphy Oil Co. and California v. General Motors.

Under long-standing Supreme Court case law, separation of powers is intended to restrain the judiciary from inappropriate inteference in the business of the other branches of government. Thus, in the words of Chief Justice John Marshall in the 1803 Marbury v. Madison case: "Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." The Supreme Court in other cases has outlined a number of attributes of a "political question," but three are primary: (1) whether there is a textually demonstrable Constitutional committment of the issue to a coordinate political department; (2) whether there is a lack of judicially-discoverable and manageable standards for resolving the case; and (3) whether it is impossible to decide the case without an initial policy determination of a kind clearly for nonjudicial discretion.

The court in Connecticut v. AEP said that there was no provision in the Constitution that granted the legislative or executive branches responsibility for resolving issues concerning carbon dioxide emissions or other forms of alleged nuisance. Indeed, the court said if any branch had been conferred with the responsibility it is the judiciary. Furthermore, the court said that federal courts have successfully adjudicated complex common law public nuisance claims for more than a century, including cases involving air pollution.

Finally, the court that the absence of legislative or executive action on global warming, if anything, highlighted the need for the courts to act. For example, if existing statutes governing water pollution do not cover a plaintiff's claims and provide a remedy, a plaintiff still is free to bring a claim under the federal common law of nuisance and is not required to await a comprehensive legislative approach to domestic water pollution.

The decision covers several other issues, but the political question portion of the decision may have the widest repercussions. The two other lawsuits also dismissed on political question grounds are on appeal as well -- Comer v. Murphy Oil Co., in the 5th Circuit, is a class action alleging that various oil, chemical and power companies' GHG emissions contributed to climate change and worsened the effects of severe storms, such as Hurricaine Katrina; and California v. General Motors, in the 9th Circuit where the automakers are being sued for creating and contributing to a public nuisance, i.e. climate change. No doubt both courts will look at the Connecticut decision very carefully and weigh its rationale in their own cases.

Another significant aspect of this decision is the fact that the court took the political question issue head on. The court in the Connecticut case could have easily affirmed the dismissal on the political question basis in recognition of the EPA's much-anticipated endangerment finding and Congress' on-going efforts to craft climate change legislation. When a court as influential as the Second Circuit takes on an issue such as this, it sends a very strong signal that the judiciary will play a significant role in the climate change debate in the months to come.

California Renewable Energy Goals -- Real or Moving Goalposts?

California's legislative Assembly is supposed to vote this week on a measure to increase the state's renewable energy target to 33% by 2020, a goal the utilities commission calls "highly ambitious." Two bills, SB 14 and AB 64, would raise the existing target of 20% by 2010. Backers say that passage of the measures will demonstrate that California is serious about reducing greenhouse gases. Indeed, it would have to be since the projected cost is upwards of $115 billion.

While the basic goal has widespread support, its the details that are causing the most heartburn. One issue is that the three investor-owned utilities (IOUs), Southern California Edison, Pacific Gas & Electric and San Diego Gas & Electric, aren't likely to meet the current 20% by 2010 goal. The last quarterly status report indicated that renewables accounted for 13% of all IOU electric retail sales in 2008 and probably won't reach the 20% goal until 2013 or 2014. Moving the goalposts out to 33% by 2020 would require nearly tripling the amount of renewable energy sources from what existed at the end of 2007, and its hard to imagine the IOUs being able to meet that target as well. The bills propose building in some pad for missing the 2020 deadline, but even that may not be enough.

Other problems include all the new transmission lines needed to carry the additional power, how much of the renewable power will be generated in state, and what to do about other sources that might not be considered "renewable" and yet are highly efficient.

A draft implementation analysis by the California Public Utilities Commission (CPUC) said that achieving the 33% target by the year 2020 "is highly ambitious, given the magnitude of the infrastructure buildout required." As it is, meeting the 20% by 2010 target will require four major new transmission lines costing $4 billion total, although three of those lines already are underway. But reaching the higher goal by 2020 will require seven additional lines at a total cost of $12 billion. SB 14 and AB 64 both have mechanisms for speeding up approval of new transmission lines, but are not expected to substantially shorten the current 18-month average because of built in delays, such as requiring data for all four seasons necessary for project review under the California Enviromental Quality Act.

Certainly the 33% mandate could be a boon for California job creation, but California alone probably can't build enough wind, solar, geothermal or biomass projects to meet the target, so it will have to turn to outside sources. At issue in the two measures is whether there should be limits on how much renewable energy IOUs can buy out of state, or even out of the country. States like Oregon and Washington have been building wind farms in anticipation that some of the generation will go to help California IOUs meet the renewable goals, and British Columbia is hoping to sell some of its hydro power. However, Oregon and Washington have their own renewable energy targets and will want assurances that projects built in their state primarily benefit their states' consumers. SB 14 and AB 64 also would require that out-of-state projects meet California environmental management standards, and there is some question whether, for example, a hydro project in Canada would qualify.

Finally, and this is something that doesn't get a lot of attention in the popular press, is whether the emphasis should be on a "renewable" portfolio or broadened to energy efficiency resource standards so that technologies such as combined heat and power (CHP) could be included. CHP, which also is known as co-generation, takes a single fuel source and simultaneously produces electricity and heat, resulting in much higher efficiencies than do separate heat and light systems. Right now California doesn't include CHP, even a biomass fuel source CHP, in the mix of eligible renewable energy sources. While the IOUs in California have never been big fans of CHP (having had CHP power forced on them by the federal Public Utility Regulatory Policies Act of 1978), inclusion of CHP might actually help the IOUs meet the 33% target. Exclusion of CHP, however, would increase regulatory barriers to the detriment of an existing technology that reduces air pollutants, including greenhouse gases, has lower operating costs and high reliability.

Consequently, it may be one thing to change the goals, but an entirely different matter of making the goals happen. How California deals with all this is sure to have impacts not just within the state, but throughout the West.

British Columbia's First Wind Project Comes On Line

British Columbia's first wind power project began generating electricity to the grid on July 23, 2009, when the first two turbines of the Bear Mountain Wind Park came on line. The project is located near Dawson Creek, BC, in the Peace Region of the province, a jumping-off point for the Alaska Highway. The 34-turbine, 102-megawatt park is expected to be fully operational by November 2009.

What's remarkable about this project is that its the first utility-scale wind park in a province that has identified as many as 69 projects with an installed capacity of nine GW as "readily available," meaning there are sufficient winds, proximity to existing transmission and appropriate terrain. When it comes to wind, however, B.C. seems to be lagging behind not only its U.S. neighbors to the south (for example, Washington has 1575 MW and Oregon 1406 MW of installed wind generating capacity), but also its fellow provinces.

So what's the deal? First, BC has had an abundant supply of water for hydroelectric generation. Indeed, the Crown-owned utility, BC Hydro, serves approximately 95% of the province's customers by generating all but 10% of its power from hydroelectric sources. Second, BC also has large reserves of natural gas and, being next door to Alberta, another large source of natural gas, makes investing in wind less attractive.

Third, a 2002 provincial Energy Plan barred BC Hydro from developing wind and other new generation. While it created various incentives for private interests to build and operate wind farms and other renewable sources -- giving wind developers a strong incentive to bid on the type of long-term Energy Purchase Agreements that make a project viable -- the provincial utility regulator cast a cloud on the most recent round of bids when it rejected BC Hydro's long-term acquisition plan that called for purchase of up to 3,000 GWh/year from renewable sources. Apparently the utility will go back to the drawing board and re-submit its plan, but that doesn't help wind developers who were waiting for approval of the plan to move forward on contracts. Paradoxically, in the same decision the utilities commissioner approved BC Hydro's plan to spend CDN $140M to upgrade a natural-gas fired plant near Fort Nelson and CDN $1.6M to ensure the reliability of the Burrard Thermal Generation gas-fired plant at Port Moody, near Vancouver, B.C.

Consequently, with such mixed signals, its no wonder that wind power generation hasn't taken hold in B.C. and the forecast looks like continued strong headwinds.

Who Knew Iowa Is #2 in U.S. Wind Power?

After seven days riding into frequent headwinds as part of the 37th edition of the Register's Annual Bike Ride Across Iowa (RAGBRAI) and not seeing any wind turbines, it came as a surprise to see these turbines along I-80 east of Des Moines. All along the 442-mile southern Iowa route for RAGBRAI I had been wondering (among other things) why no wind power out here? There was plenty of corn, making ethanol a huge deal there, but it turns out that Iowa also is a major player in wind generated electricity.

According to the American Wind Energy Association, Iowa actually ranks second in the nation in wind generation capacity, ahead of California, Minnesota, Washington (my home state), Oregon, New York and Colorado. (Texas is first by more than double Iowa's capacity.) Indeed, Iowa leapfrogged from 4th to 2nd in the space of just two years.

The jump in wind generation is partially attributable to a state mandate that the two investor-owned utilities, MidAmerican and Alliant Energy Interstate Power & Light, obtain a combined total of 105 MW of renewable energy. In addition, the governor in 2001 established a secondary voluntary goal of 1000 MW of wind by 2010. Clearly those goals have been exceeded.

Iowa seems ideal for wind power. Not only is there frequent wind (and seemingly constant if you're on a bicycle), but the state also is close to major load centers -- Chicago is 300 miles and St. Louis 270 miles from Des Moines. Apparently some developers are offering higher lease rates for turbine locations, giving landowners a powerful economic incentive to site turbines on their property.

But, of course, wind power isn't without its pitfalls, as this article last year describes. The Adair project had its detractors, but it appears that Iowa already is thinking big when it comes to generating power from the wind.

N.J. Blogger Shield Law Case

The New Jersey court decision denying shield law coverage for blogger Shellee Hale is getting a lot of attention in the blogosphere, but if you dig just below the surface you'll find its not actually a blogger case, but is a more garden-variety message board commenter case. Consequently, its hard to expect a court to expand the shield law to cover a commenter, even if they happen also to be a blogger. Nor should bloggers want this case to go up on appeal because its not at all certain that it would be flipped.

According to Mary Ann Spoto in the Star-Ledger article, http://bit.ly/DEO9N, the lawsuit involved posts Ms. Hale made on a message board. The court apparently analogized Ms. Hale's comments to those that appear at the end of an online article rather than actual reporting and I think that's a better analogy than to a blog post.

There is a wide range of reactions, none of which point out what I see as the crucial distinction between a message board post and a blog. TechDirt focused on what it viewed as the judge's lack of understanding about the Internet, http://bit.ly/PIqaG; while on law.com's LegalBlogWatch, Carolyn Elefant commented: "It seemed as if Hale filed irresponsible comments and invoked the shield law to defend against a defamation claim. It did not seem from the description that she was operating as a journalist under any sense of the word." http://bit.ly/1HX7L. Law and More, http://bit.ly/JBIbh, described the decision as one reflecting the the need for the law to catch up with the technology. Wendy Post in the Daily Online Examiner commented that the case should be appealed to "fix the ruling and make sure that news reporting is news reporting." http://bit.ly/IREjG.

My take on this (based on 12 years as a t.v. reporter and now 21 years as a lawyer who stays in touch with defamation issues) is that this really isn't reporting. An online comment to an article, like a message board posting, is usually brief and without citation to any independent facts. Where is the reporting in that? It seems that proponents of shield law coverage for bloggers are focusing more on Ms. Hale's status as a blogger,whether or not the posts at issue occurred in a blog. I'm not arguing that bloggers aren't journalists; in many situations these days they do act as reporters and one need only look at dailykos, talking points memo, or more locally horsesass.com, to see real reporting going on. But you also don't have to look too deep in the message boards to see that what's happening there is more commentary and opinion than actual reporting.

Bad facts often make bad law and I'm not sure that bloggers want this case to go beyond the trial court level. Right now, its not precedential for anyone but the parties. But take this up to an appellate court with these facts and a reported opinion, even by an intermediate appeals court, might not come out the way bloggers want. As any good appellate lawyer will tell you the best way to win on appeal is to represent the respondent, i.e. the party that isn't bringing the appeal.

House Passes Climate Change, Energy Bill

Some drama and a little bit of theatre of the absurd during the lenghty House floor debate on the American Clean Energy and Security Act of 2009 ("ACES"), all of which C-SPAN helpfully streamed on-line. The Twitterverse also proved to be a good tool for staying on top of the minute-by-minute proceedings. When it was over the bill passed by a narrow margin of 219-212. http://bit.ly/1ajUjX. Eight Republicans, including my own Congressman, Dave Reichert, voted in favor; while 42 Democrats voted against.

At 1500-pages the extremely complex ACES will make for good bedtime reading for anyone with insomnia. A short summary is here: http://bit.ly/2O9py. ACES now goes to the Senate where it will take 60 votes to pass. Given the narrowness of the vote in the House there's no guarantee the measure will make it to President Obama's desk.

Waxman-Markley Bill Vote Coming Up

Word that the Waxman-Markley climate change bill, also known as American Clean Energy and Security Act of 2009 (ACES), will come up for a vote on the House floor this Friday certainly has made my Tweetdeck and e-mail a lot more full as the cyberspace lobbying effort heats up, so to speak. I won't even attempt to go into all the Tweets about the subject, although a quick search on #ACES should give you an idea of the volume of traffic there. And in the e-mail arena, so far just in the space of an hour this afternoon I've gotten a message from the Pew Center for Climate Change advocating for ACES and one from the Associated General Contractors opposing the bill.

AGC sent out an Issue Alert saying the bill will increase the cost of construction and make U.S. investments in manufacturing and industrial facilities less economically attractive and, by regulating smaller emitters the market for commercial construction could be adversely impacted by these regulatory regimes. AGC cites the American Petroleum Institute critique that the bill would increase the cost of a gallon of gas by an estimated 77 cents over the next ten years through additional refinery costs and that those increased costs would likely crowd out efforts to raise the motor fuels tax to fund infrastructure that could reduce congestion and save fuel. AGC also says the bill adds new and onerous "planning" requirements for states and metropolitan regions that will further slow an already comprehensive and arduous federally-mandated transportation planning process. Finally, AGC says the new requirements would create disincentives to state and local planners to include new highway and bridge capacity in their transportation plans.

Meanwhile, Pew's e-mail contains a letter from its president to members of Congress urging passage, and a link to a webpage that lists and refutes eight myths about ACES, http://www.pewclimate.org/acesa/eight-myths/June2009. I won't go into all of them here, but among the issues that Pew addresses is the claim about the projected per gallon increase in gas, citing an EPA study that ACES would result in only 25 cents per gallon over the next 20 years.

So my e-mail box probably is a micro-microcosm of what must be a fairly intense back-and-forth on ACES that members of Congress are encountering. We'll see what happens on Friday.

LEED for Existing Buildings -- A Whole New Ballgame

A requirement of the U.S. Government for renewing its lease of the EPA's Region 10 office in downtown Seattle is that the building obtain the U.S. Green Building Council's Leadership in Environment and Energy Design (LEED) Silver* certification for existing buildings (LEED-EB). According to the Puget Sound Business Journal, http://bit.ly/QItPb, the owners of 1200 Sixth Avenue in Seattle are planning to go two better and seek LEED-EB Platinum, which would make it the first such LEED-EB in Seattle with that designation and only the 14th in the world.

This is an important step since buildings account for nearly 40% of the greenhouse gas emissions in the U.S. While most of the attention on the LEED rating system has focused on new construction, bringing LEED concepts to the five million existing commercial buildings in the U.S. represents a much bigger carbon footprint reduction bang for the buck, although one that comes with its own challenges. Some of those issues were addressed by last year's revisions to the LEED-EB criteria to make them fit better with existing buildings. This article from an issue of "Greener Buildings" provides a good summary of the changes. http://bit.ly/ujGqv.

Other issues remain, not the least of which are the frozen credit markets and stalled commercial leasing that make it difficult for building owners to consider the expense of upgrading to LEED-EB when their bigger problem right now is hanging on to tenants who can pay the current rent. When the economy improves, however, the LEED-EB path could prove to be a whole new opportunity for both commercial real estate and the environment.

*[6/9 update -- Correcting the lease requirement for LEED Silver, not Gold]

Hey I Know, How About If I Ride Across Iowa Just for Kicks?

The clock for RAGBRAI (Register's Annual Great Bicycle Ride Across Iowa) is counting down inexorably...less than 50 days to get ready for my first attempt at the largest, multi-day ride/rolling party in the country. http://ragbrai.com. And, no boys and girls, Iowa is not flat. Its rolling hills and the course this year reportedly is one of the hillier in the ride's 37-year history. While no one will ever describe my training grounds around the Puget Sound area as "flat," I still need some quality miles and strategic callouses to be ready do 442-miles over 7 days in July. This ain't no Seattle-to-Portland (STP) jaunt that I can knock off 200-miles in a day just so I don't have to get back on the bike a second day -- in fact She-Who-Must-Be-Obeyed even suggested I do STP in TWO days just for the experience! Well, that isn't going to happen, but I hope to get more mileage and seat time this weekend between Little League playoff games, the Seattle Country Day Crazy Carnival, and combat weeding. Keep on spinning!

Climate Change Convergence

An interesting convergence of climate change issues on Thursday. May 21st started in Washington, D.C., with the U.S. House Energy and Commerce Committee entering its fourth day of markup on HR 2454, the American Clean Energy & Security Act, while in the other Washington (Seattle) the Environmental Protection Agency held the second of its two public hearings on the proposed CO2 endangerment ruling.

I had hoped to tweet from the EPA hearing (@USClimateLaw), unfortunately my Blackberry apparently didn't have T-Mobile coverage...at Pier 66 in downtown Seattle! Don't know whether it was operator-error (highly possible) or a lame network, but I did attend Gov. Gregoire's post-testimony press conference where she signed Executive Order 09-05, "Washington's Leadership on Climate Change" and then issued a Lane Powell Hot Sheet on the Executive Order, http://www.lanepowell.com/5267/washington-climate-change-executive-order-signed.

Given that the recession-driven budget constraints that doomed the Washington state cap-and-trade bill are continuing, its hard to see how much real impact the executive order can have, but it is an effort to move policy forward. The Governor characterized the Executive Order as the "next best thing" to the cap-and-trade bill that failed in the last legislative session and it does set up the state to implement whatever cap-and-trade ultimately gets adopted, whether by the feds or the Washington legislature in a later session.

Meanwhile back at the EPA public hearing in Seattle, 185 witnesses signed up to testify for three minutes each. While there was a ritualized feel to the process (which I have to confess may be due more to my perceptions from covering countless public hearings in my previous life as a t.v. reporter), the hearing was well-organized and people expressed their positions in well-articulated concise statements. Not surprising for an environmental hearing in Seattle, the vast majority of speakers favored action by EPA even as Congress considers legislation that could preempt the agency's action. Indeed, the consensus seemed to be that since nothing is guaranteed in the legislative process its important for the EPA to continue with the rulemaking, if for no other reason than to keep pressure on Congress.

Watching Day Four of the C-SPAN stream of the House Energy and Commerce markup of HR 2454 brought to mind Otto Von Bismark's adage: "Laws are like sausages, it is better not to see them being made." Republican committee members had filed some 400 amendments, but only about 56 of them were considered and most rejected. Notwithstanding the 36 hours of debate on a 900+ page bill and the palpable desire of committee members to get out of town for the Memorial Day recess, as the waning moments of the markup went past 8 pm EDT, there seemed to be less partisanship and vituperation than might be expected and more of a sense of resignation by the minority. The bill passed by a 33-25 margin, mostly on a party line vote. The New York Times describes the future for the bill as "a tortuous path" through several more House committees before it can come to a floor vote and then an even more doubtful fate in the Senate. http://tinyurl.com/r9f7ty.

As the day wore down there was a sense that the history and convergence between the two Washingtons was not to be missed.

Ocean Acidification & CO2

The Center for Biological Diversity on May 14 filed a lawsuit against the federal Environmental Protection Agency in U.S. District Court in Seattle claiming the agency should have included ocean waters off the Washington coast on a list of impaired waters due to carbon-dioxide caused acidification. Here's the CBD press release on the lawsuit: http://www.biologicaldiversity.org/news/press_releases/2009/ocean-acidification-05-14-2009.html.

The lawsuit was brought under the federal Clean Water Act, which requires states to list bodies of water that fail to meet quality standards. The CBD lawsuit claims that carbon dioxide in Washington's ocean waters has caused the pH level of those waters to decline (become more acidic) than permissible under CWA standards and, therefore, should have been listed as impaired.

Washington was one of several states that the CBD in 2007 requested to make "impairment" listings. The CBD also requested listings for Oregon, Alaska, Hawaii, Florida, New York, and New Jersey. In addition, the CBD had filed petitions with various California Regional Water Quality Boards regarding ocean waters in California. http://www.californiagreensolutions.com/cgi-bin/gt/tpl.h,content=235.

Using the Clean Water Act to regulate carbon dioxide emissions from industrial sources such as power plants, refineries, cement kilns and factories is a novel approach since the bulk of climate change attention has been on air emissions. But as a parallel track to the EPA's proposed rulemaking under the Clean Air Act that CO2endangers human health and the environment, the CWA lawsuit and petitions could end up being a significant one-two punch.

Good AP piece in the Daily Olympian about the recently adjourned Washington legislative session that failed to adopt the Governor's requested bill to implement the state's part of the Western Climate Initiative cap-and-trade program. http://www.theolympian.com/northwest/story/844204.html. The combination of a very tough economy (a $9 billion budget hole to fill) and the potential for federal cap and trade (although that looks like a tough sell too http://blogs.desmoinesregister.com/dmr/index.php/2009/05/06/key-dem-blasts-administration-on-fuels-climate-policy/) probably doomed Washington's cap-and-trade measure.
Oregon has a similar Governor-requested measure, SB 80, which also is undergoing a "slimming down" when committee action last week took out the cap and trade provisions.
So, where does that leave the Western Climate Initiative? Its probably not dead, but the momentum of a few months ago definitely has stalled. As the economy picks up and if the feds don't adopt cap-and-trade the "climate" may improve for state action. Even so, it means the ambitious deadlines of WCI probably will end up getting moved out at least a couple of years.