COP18 Concludes, China Air Pollution Plan, Stormwater in the U.S. Supreme Court, Tesla S (By Bob Percival)

The 18th Conference of the Parties to the UN Framework Convention on Climate Change (COP18) held in Doha, Qatar concluded at the end of last week after a marathon 36-hour final session that ran long past its scheduled conclusion. A total of 37 countries, primarily from the European Union, agreed to extend their Kyoto Protocol commitments to control emissions of greenhouse gases (GHGs) through the year 2020. The existing Kyoto commitment period expires at the end of 2012. New Zealand, Canada, Russia and Japan decided to opt out of extending their Kyoto commitments. Thus, after 2012 the Protocol will only cover countries that are responsible for less than 15 percent of global emissions of GHGs. Australia, which initially had joined the U.S. in rejecting the Kyoto Protocol, but which subsequently ratified it, also agreed to the extension to 2020, citing a desire to participate in the EU carbon trading market.

A particularly contentious set of issues at Doha were negotiations over the fund to help developing countries deal with climate change. Citing current economic problems, the U.S. and the EU refused to set precise figures for contributions to the fund during the period from 2013-2020. At Copenhagen in 2009 developed countries had promised to establish a green fund and to fund it at $100 billion/year by 2020. Some observers viewed the shift in the tone of the discussion from using the fund to assist developing countries with mitigation and adaptation toward using it to compensate them for “loss and damage” caused by the developed world as setting the stage for more conflict in future climate talks. The Durban Platform for completing by 2015 a new agreement to control global GHG emissions by the year still is in place, but there is considerable skepticism as to whether this goal will be achieved. At COP18 Xia Zhenhua, head of the Chinese delegation, stated that China would be willing to discuss adopting binding GHG emissions limits that would be effective after 2020.

On December 5 China’s Ministry of Environmental Protection released a plan pledging to reduce air pollutants in 13 major areas covering 117 cities in China. The plan seeks to reduce PM2.5 intensity by 5 percent by 2015 and to reduce the intensity of PM10 and sulfur dioxide by 10 percent by 2015. It also pledges a 7 percent reduction in the intensity of nitrogen dioxide emissions. The plan includes a requirement that new sources of air pollution offset their pollution by obtaining larger reductions in the same kind of pollution from existing sources. Earlier this year China’s State Council enacted new air quality standards that include for the first time the smallest particulates (PM2.5) and ozone. These are to be met throughout the nation by January 1, 2016. It is estimated that 70 percent of China’s cities currently do not meet the revised standards.

Last week the U.S. Supreme Court heard oral argument in two cases involving the Clean Water Act. In both cases the U.S. Court of Appeals for the Ninth Circuit had ruled in favor of environmental interests. On Monday December 3 the Court heard argument in Decker v. Northwestern Environmental Defense Center, a case involving the question whether timber companies need Clean Water Act permits to control stormwater runoff from logging operations that flows through ditches and culverts along logging roads. Three days before the argument the U.S. Environmental Protection Agency (EPA) promulgated new regulations that purported to reverse the Ninth Circuit’s decision by clarifying that these were not the type of silvicultural operations that required a stormwater permit. Chief Justice Roberts expressed irritation that the Court had not been given more notice about the impending regulations, though the Solicitor General initially had advised the Court not to take the case because EPA would resolve the issue through regulations.

Professor Jeffrey Fisher, co-director of Stanford’s Supreme Court Litigation Clinic, argued that the Court should dismiss the cert petition as improvidently granted in light of the fact that the environmental groups would be challenging the new regulations as inconsistent with the Clean Water Act. Tim Bishop, arguing for the timber industry said the Court should prevent years of further litigation by reversing the Ninth Circuit and agreeing with EPA that permits are not needed. Following the argument students from my Environmental Law and Administrative Law classes came over to my house on Capital Hill for lunch and a post-mortem on the argument.

On Tuesday December 4 the Court heard Los Angeles County Flood Control District v. Natural Resources Defense Council. In this case the argument focused not on whether the stormwater discharges required a permit, but rather how to measure permit violations and who should be responsible for them. Under the District’s permit, monitoring stations have been placed where water flows within the storm sewer system rather than where it discharges to another body of water. Some observers thought the Court could use the case to clarify its prior Miccosukee decision where it indicated that water transfers within a single body of water were not discharges requiring a permit. I was unable to attend the argument, but the transcript of it suggests that it is not clear how the Court will rule.

On December 7 I finally took the plunge and placed my order for an all-electric Tesla Model S automobile. Last February the University of Maryland installed four electric vehicle charging stations at our parking garage, but they have been largely unused, except for a rare appearance by a Chevy Volt. My Prius will be seven years old next summer and have more than 100,000 miles on it and I was in the market for an electric car. Tesla opened a showroom in downtown DC not far from my home and last month its Model S won the award as Motor Trends “Car of the Year” for 2012. While some electric vehicle manufacturers are struggling, Tesla has produced a spectacular luxury vehicle that is now coming off its Fremont, California assembly line at the rate of 400 cars per week. The company reports that it recently turned cash flow positive for the first time. I am now in line for #15,443 of the Model S so it won’t be delivered to me until fall 2013, but what a car it is.