U.S. GHG Regulations Take Effect, New Congress, Tea Party and Cancun "Astroturf", Beijing Auto Limits, Review of 2010 Developments (by Bob Percival)

Today (January 2) EPA regulations to control greenhouse gas (GHG) emissions from large new or modified sources (sources of more than 75,000 tons of carbon dioxide per year) take effect. The regulations are not horribly draconian -- they simply require these sources to use the best technology to control their emissions. Three weeks ago the U.S. Court of Appeals for the D.C. Circuit refused to stay the regulations, despite a legal challenge to them the court will hear. On December 30 Texas filed a new lawsuit against EPA in the D.C. Circuit challenging the agency’s decision to take over issuance of Clean Air Act permits in Texas response to the state’s refusal to implement the new GHG regulations. Texas previously had asked the U.S. Court of Appeals for the Fifth Circuit to block EPA’s takeover of permit-issuance authority in Texas, but the court denied the motion on December 29.

The new session of the U.S. Congress will convene this week with the Republicans taking control of the House of Representatives. In an op-ed on December 28, Congressman Fred Upton, the new chairman of the House Energy and Commerce Committee, decried EPA’s GHG regulations as “an unconstitutional power grad that will kill millions of jobs -- unless Congress steps in.” Fred Upton and Tim Phillips, How Congress Can Stop the EPA’s Power Grab, Wall St. J., Dec. 28, 2010. Upton proposes to have Congress “overturn” the regulations “outright,” but he recognizes that this will be politically difficult since the Republicans control only the House. His second best solution is “a sensible bipartisan compromise to mandate that the EPA delay its regulation until the courts complete” their review of them. Of course, as even Upton acknowledges, the regulations were issued by EPA in direct response to the Supreme Court’s decision in Massachusetts v. EPA, which makes his claim that they are “an unconstitutional power grab” ludicrous. I suspect that a major reason opponents of the EPA regulations are pressing for a stay is because the longer they remain in effect the harder it will be to ascribe to them the kind of dire consequences opponents currently are forecasting. When asked to predict what the biggest political surprise of 2011 will be, former Bush press secretary Dana Perino opined that Fred Upton will lead a successful charge to repeal the portion of the 2007 energy legislation he sponsored that mandates a phaseout of incandescent light bulbs by 2014.

For the second year in a row no new coal-fired powerplants commenced construction in the U.S. in 2010. While some environmentalists are hailing the death of coal as a source of new electric power generation in the U.S., coal-fired plants in Kansas, Illinois and Texas received permits last year and a project in Mississippi is about to begin construction. The nation’s largest generator of electric power, American Electric Power, has only one new coal-fired plant under construction, an “ultra supercritical” model that would meet the new EPA best technology standards. Steven Mufson, Coal’s Burnout, Washington Post, Jan. 2, 2010, at G1.

The co-author of Upton’s op-ed was Tim Phillips, president of Americans for Prosperity, an “astroturf” group founded by oil billionaire David Koch who helped spearhead the initiative to repeal California’s regulation of GHG emissions that California voters soundly defeated last November. On January 1 the Washington Post ran a profile of Ohio Tea Party activist Gena Bell who described how Americans for Prosperity gave her an all expense-paid trip to the Cancun climate summit last month. While Bell had looked forward to engaging in a genuine debate over climate change, she instead found herself “standing where she was told and smiling for the cameras” as a prop at rallies staged by the group. They gave her and other Tea Party activists they flew to Cancun t-shirts with the slogan “Bureaucrats Gone Wild” and had them hold a giant novelty check made out for $100 billion to mock proposals to help the developing world reduce GHG emissions. The article states that Bell found the experience “irritating” and doubted whether she would participate in similar events in the future. Amy Gardner, Tea Party at Turning Point as GOP Takes House Reins, Washington Post, Jan. 1, 2011, at A1.

With Republicans taking over the U.S. House of Representatives with many new Tea Party supporters, it would be nice for everyone to recall the issue that inspired the original Boston Tea Party: taxation without representation. If the Tea Party is true to these roots, its number one priority should be voting rights for the District of Columbia whose more than 601,000 residents have no voting representation in Congress. Wyoming, which has more than 18,000 fewer residents than D.C., is represented by two Senators and a Congressman. (Full disclosure: This issue particularly galls me since I have been a D.C. resident for more than 30 years since moving to Capitol Hill to clerk for Supreme Court Justice Byron White in 1979). Here’s a challenge: if Tea Party members want to demonstrate that they truly are not beholden to the Republican party and that they are loyal to the initial movement from which their name is taken, will a few brave souls step forward to champion D.C. voting rights, as Republican Senator Prescott Bush (father of one president and grandfather of another) and Republican President Eisenhower did to spur adoption of the Twenty-Third Amendment that at least gave D.C. electoral votes?

In an effort to combat horrendous traffic congestion, Beijing authorities have severely restricted the number of new automobiles they will license in 2011 to 240,000, about a third of the 750,000 licensed in 2010. Thus, instead of more than 2,000 new vehicles taking to the streets of China’s congested capital each day, only 657 will. The lucky licensees will be decided by lottery. During the first 11 hours of 2011 a total of 40,000 people applied for the lottery to receive new auto licenses. To deter Beijing residents from simply registering their cars elsewhere only cars licensed in Beijing will be allowed to enter the city center. China’s Administration of Taxation also increased the tax on small cars from 7.5% to 10%, eliminating a preferential low rate that had been designed to encourage the purchase of more fuel efficient vehicles.

With the arrival of 2011, it is time to look back on the top global environmental developments of 2010. Here is my list, in no particular order: (1) the BP oil spill in the Gulf of Mexico, (2) developments in transnational environmental tort litigation, including the continuing battle between Chevron and Ecuadoran plaintiffs, a Dutch court’s conviction of Trafigura, the Second Circuit’s Kiobel decision, and the Ninth Circuit’s Carijano decision permitting U.S. courts to hear a lawsuit against Occidental Petroleum for oil pollution in Peru; (3) the Chinese government’s more enlightened position on climate change and China’s push to become a global leader in green energy technology, (4) EPA’s development of GHG regulations and the failure of the U.S. Congress to enact climate change legislation, (5) the uneven, but determined European effort to transition to a greener energy infrastructure even as financial problems spurred cutbacks in renewable energy subsidies and France abandoned a planned carbon tax, (6) the Cancun conference building on Copenhagen’s recognition that a global, consensus multilateral agreement may no longer be a practical response to climate change, (7) burgeoning interest in the creation of specialized environmental courts in many countries, (8) the growing importance of sub-national environmental initiatives, including California’s program to reduce GHG emissions which is taking effect following voters’ overwhelming rejection of a referendum to repeal it, (9) surprising decisions in favor of environmental concerns in developing countries, such as the Costa Rican Administrative Litigation Court’s disapproval of Infinito Gold’s Crucitas gold mine, and (10) increased demands for transparency on the part of multinational corporations, particularly in extractive industries, as reflected in provisions in the Dodd-Frank legislation in the U.S. and Britain’s new Bribery Act.