A Rising Tide Raises More Than Boats

The Washington Department of Ecology has released photographs depicting what a rising sea level might mean for waterfront properties in the future. The photos taken in early and mid-January 2010 during extreme high tides are a preview of what's to come even with a medium sea level rise of six inches by 2050. Seattle P-I.com also published photographs of some of the high tides at Bainbridge Island. A six inch rise in sea level would mean these extreme high tides might occur as many as 10 times a year instead of one or two times now. In addition, the higher sea level and higher extreme high tides would also make properties more susceptible to storm damage, such as what happened to some Camano Island property owners when strong winds accompanied the January high tides.

The next series of extreme high tides in Washington are February 1 through 3, and Ecology is requesting more photographs.

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.

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]