U.S. Midterm Elections Deepen the Divide, Collapse of U.S. Carbon Trading, EPA Nabs Most Wanted Suspect, Teaching the BP Spill (by Bob Percival)

On Tuesday November 2, the U.S. electorate went to the polls for the 2010 midterm election. As a result of the election, Republicans seized control of the U.S. House of Representatives with a net gain of at least 60 seats. Republicans also gained 6 seats in the Senate, leaving the Democrats with a 53-47 majority. Citing figures compiled by Daily Kos blogger R.L. Miller and Think Progress, the Washington Post reported that at least 35 of the 85 new Republican members of the House are climate change deniers as are 5 of the 6 new Republican senators. This makes it virtually certain that the U.S. Congress will not pass legislation to control emissions of greenhouse gases (GHGs), leaving the task of regulation entirely to EPA which may face fierce opposition from Republicans in Congress. Since the Republicans control only the House many of these battles may be fought over the power of the purse with the House refusing to approve appropriations for EPA activities in an effort to force concessions. One wonders whether too much effort was put into cutting deals with large corporations to win their support for cap-and-trade legislation and not enough effort to educate the grassroots about the importance of actions to control GHG emissions. In a post-election press conference President Obama acknowledged a need to shift strategy, perhaps by emphasizing clean energy and green jobs legislation. Juliet Eilperin & Steven Mufson, Obama SHifting Climate Strategy After GOP Gains, Washington Post, Nov. 5, 2010, at A3.

Even as the U.S. Congress was tilting decidedly against environmental interests, Californians decisively defeated Proposition 23, which would have suspended AB 32, the state’s ambitious program to control GHG emissions. The initiative received less than 40 percent of the vote, losing by a margin of 21 percentage points, the largest defeat of any of the voter initiatives on the ballot, despite an expensive campaign in its favor funded by Texas oil companies. Maryland reelected its Democratic governor Martin O’Malley by a large margin (56 to 42%), spurning the effort by former Republican governor Bob Ehrlich to reclaim the office. While Ehrlich had reasonably decent environmental credentials, even he felt compelled to become a climate “skeptic,” using the flimsy excuse that the “East Anglia emails” had changed his mind.

The failure of Congress to adopt legislation to control GHG emissions will lead to the demise of carbon trading markets in the U.S. Intercontinental Exchange (ICE), which owns the Chicago Climate Exchange and the Chicago Climate Futures Exchange, announced last week that after the end of the year it no longer will process voluntary carbon trades in the U.S. in the absence of legislation that makes such trades valuable. ICE remains bullish on European carbon trading markets where it is earning robust profits. Hal Weitzman, End Looms for Carbon Trading in U.S., Financial Times, November 2, 2010, at 20.

On Friday November 5 a panel of the United Nations released a report proposing to raise $100 billion annually to help developing countries combat climate change through measures to price carbon emissions at $20-25 per ton as well as fees on international aviation and shipping and a tax on foreign exchange transactions. Rejecting a “one size fits all” approach, the panel left it to individual governments to choose the measures they would adopt to meet the financials goals. Fiona Harvey, UN Wants Taxes to Fund Climate Change Fight, Financial Times, Nov. 6-7, 2010, at 3.

A fugitive who was on the U.S. Environmental Protection Agency’s list of most wanted criminal suspects was arrested last week. Albania Deleon, who had disappeared prior to sentencing for environmental crimes in connection with running a fraudulent asbestos training institute, was arrested in Santo Domingo, Dominican Republic. EPA has maintained a list of most wanted suspects for environmental crimes for the last two years. Ms. Deleon is the first woman to be on the list. Leslie Kaufman, Woman Wanted by E.P.A. Is Arrested, N.Y. Times, Nov. 2, 2010.

On Wednesday November 3, the day after the election, my former student Neal Kemkar who is a special assistant to the counselor to the Secretary of Interior came to my Environmental Law class to help us conduct a session on the BP oil spill. Prior to the class we distributed to the students copies of the October 1, 2010 memo that Michael Bromwich, director of the Bureau of Ocean Energy Management, Regulation and Enforcement, had prepared for Secretary Salazar concerning options for lifting the moratorium on offshore drilling. We asked the students to choose from among the five options in the memo and to defend their choice. Then we gave them copies of Secretary Salazar’s memo explaining the option that he selected. I have been trying to integrate aspects of the BP oil spill throughout my environmental law class. When we studied NEPA we examined the Council of Environmental Quality’s August 16, 2010 “Report Regarding the Minerals Management Service’s National Environmental Policy Act Policies, Practices, and Procedures as They Relate to Outer Continental Shelf Oil and Gas Exploration and Development.” The students considered whether the spill could have been prevented if additional environmental assessment had been conducted, an issue that generated considerable skepticism given the gross inadequacies of some of the assumptions in the environmental reviews that were conducted.