Cancun Agreement, EPA GHG Regulations, Supreme Court to Hear Climate Suit, Iran Killer Smog (by Bob Percival)

After all night talks on Friday December 10 and the last minute dismissal of objections from Bolivia by Mexican Foreign Minister Patricia Espinosa, who was chairing the conference, the nations participating in COP-16 adopted the Cancun Agreement. The agreement postpones until next year’s conference in South Africa a decision on whether to extend the Kyoto Protocol for a year. But it adopts 33 pages of text outlining a framework for further progress negotiating emission reductions, monitoring and verifying emissions, funding adaptation and forest protection, and facilitating technology transfer. The most remarkable achievement of the conference seems to be the willingness of all but one of the 194 nations to put aside their differences to reach agreement on a path forward. An advance, unedited copy of the agreement is available online at: http://unfccc.int/files/meetings/cop_16/application/pdf/cop16_lca.pdf

Last week there were two very significant developments in climate change litigation in the U.S. courts. On Friday December 10, the U.S. Court of Appeals for the D.C. Circuit refused to stay EPA regulations governing emissions of greenhouse gases (GHGs) that are scheduled to take effect on January 2, 2011. In a brief order the court stated that the plaintiffs had not met the standard for a stay because they “have not shown that the harms they allege are ‘certain,’ rather than speculative, or that the ‘alleged harm[s] will directly result from the action[s] which the movant[s] seeks to enjoin.’ Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam).” The court also ordered that the legal challenges to EPA’s endangerment finding, vehicle rule, timing rule and tailoring rule be heard by the same panel of the court on the same day. While these decisions do not address the merits of the litigation in which 35 petitioners are raising 80 challenges to four EPA rules, they will allow the rules to take effect for now.

On Monday December 6, the U.S. Supreme Court announced that it had agreed to review the Second Circuit’s September 2009 decision (see Sept. 27, 2009 blog post) to allow a public nuisance action by a group of states to go to trial against major electric utilities with coal-fired powerplants. Justice Sotomayor did not participate in the decision to review the case, probably because she initially was on the Second Circuit panel that heard oral argument in the case, even though she was not on the panel that decided it after she became a Supreme Court Justice. In the Supreme Court the case will be known as American Electric Power v. Connecticut (No. 10-174). The U.S. is supporting the utilities by claiming that EPA’s actions to regulate GHG emissions should preempt the lawsuit. The utilities would like a broader ruling that lawsuits involving climate change should not be heard by the courts because they are nonjusticiable political questions. Justice Kennedy’s vote may be critical to the outcome in the case. With Justice Sotomayor’s recusal, the best the states could do is likeluy to be a 4-4 split, if Kennedy, Ginsburg, Kagan and Breyer voted in their favor. This would affirm the decision below and allow the lawsuits, which seek an injunction ordering gradual reductions in GHG emissions and not damages, to go forward.

On Thursday I spoke at a conference held in Philadelphia on “Significant Legal Developments Affecting the Chemical Industry.” I discussed China’s new program for regulating new chemicals that is modeled in part on the EU’s REACH program. One of the other speakers, a lawyer who represents Exxon, presented a litany of the arguments used by climate change deniers and reported a “growing consensus” that climate change science “simply isn’t there.” He expressed hope that the Supreme Court’s ultimate decision in the AEP v. Connecticut lawsuit would bury climate change litigation that he claimed is being brought by greedy lawyers seeking contingency fees (an observation not applicable to the AEP v. Connecticut litigation which is being brought by government officials and does not seek damages).

Horrendous air pollution continued to afflict Iran this week, reportedly causing thousands of deaths. Iran’s minister of health said that emergency room admissions of people with respiratory problems increased 30% and an unofficial report put recent deaths from pollution at 2,500. Some Iranians are blaming the pollution on Western sanctions that have forced Iran to place greater reliance on domestic oil refineries to produce gasoline. Iranian gasoline reportedly has 10 times more particulates than imported gas. Farnaz Fassihi, Iranians Blame Smog on West’s Sanctions, Wall St. J., Dec. 11-12, 2010, at A8.

Now that classes are finished, I had a very busy week making presentations -- four in five days. On Monday December 6 I presented a paper promoting a petroleum price stabilization tax as a means for promoting investment in green energy technology at a meeting held in Berlin by the American Institute for Contemporary German Studies (AICGS). The meeting, part of AICGS’s Translatlantic Climate and Energy Dialogue, was held in the historic Haus Huth, the only building in Postdamer Platz that escaped World War II without significant damage. On Sunday afternoon I toured the Topography of Terror, an exhibit built on the site of Hitler’s bunker, that documents Hitler’s meticulous efforts to neutralize the legal system. I had hoped to fly back to D.C. Monday night, but mechanical troubles with the plane from Berlin to Frankfurt stranded me in Frankfurt for the night, so on Tuesday I flew from Frankfurt directly to New York where I joined my wife to attend a spectacular performance of “The Messiah” at the St. Thomas Church. On Wednesday I flew back to D.C. and spoke to a group of Rawlings Leadership Fellows in College Park at a seminar on environmental leadership. After the chemical industry conference in Philadelphia on Thursday, on Friday I gave a day-long workshop on forestry protection to a group of visiting Chinese officials from Hunan Province.