Climate Bill, Alaska Decision, Koh Confirmation, Cheney/Rumsfeld Reunion

On Friday the U.S. House of Representatives approved the American Clean Energy and Security Act, legislation to control U.S. emissions of greenhouse gases (GHGs). The vote was 219-212. The bill, which adopts a cap-and-trade program, is supposed to reduce U.S. GHG emissions by 17% below 2005 levels by the year 2020, and by 83% by 2050. It reportedly was 1,021 pages long before a 300-page amendment was added to it at 3AM on the morning of the final vote. Many compromises were made in order to win passage of the bill, including distributing 85% of the emissions allowances for free to various groups, including electric utilities, and giving the Department of Agriculture, instead of EPA, responsibility for certifying emissions offsets. Listening to the debate on the House floor, with some opponents characterizing climate change as a scientific hoax and the bill as an effort to destroy the economy, I was reminded of the dire predictions made by the opponents of the 1990 Clean Air Act Amendments. A group of Nobel prize-winning economists forecast drastic economic consequences, but the Amendments have proven to be one of the most valuable investments the U.S. has ever made in reducing air pollution. A difficult fight awaits the climate legislation in the U.S. Senate where it will be necessary to win 60 votes to block a Republican filibuster. Australia also is having a hard time winning parliamentary approval for its cap-and-trade program to control GHG emissions.

This week EU environment ministers approved a sweeping plan to reduce emissions of sulfur dioxide and other industrial pollutants by nearly a third by the year 2020. It is estimated that the reductions, which will need to be approved by the European Parliament, will provide $38 billion in annual health benefits. The European Commission also announced this week that it will contribute 50 million euros to help China build a pilot carbon capture and storage facility.

Legislation that will impose short-term costs for long-term benefits is always a difficult political sell. This may explain why Congress sometimes has exempted existing sources from compliance with new pollution controls and why many environmental laws were adopted only after highly publicized environmental disasters. To address concerns that countries that do not act to control GHG emissions may gain a competitive advantage over U.S. industries, the bill allows for emission allowance rebates to industries that face such competition. In a report issued on Friday, the World Trade Organization (WTO) and the UN Environment Programme (UNEP) suggested that carbon tariffs may be acceptable under existing WTO rules to level the playing field between domestic industries that have to control their GHG emissions and foreign competitors who do not. A copy of the report, WTO & UNEP, Trade and Climate Change (2009), is available at http://www.wto.org/english/res_e/booksp_e/trade_climate_change_e.pdf.

On Monday the U.S. Supreme Court decided its final environmental case of the year, ruling 6-3 that a gold mine in Alaska could dump its tailings into a lake as “fill” material, rather than complying with an effluent standard that forbids similar gold mines from discharging tailings into surface waters. The decision means that the environment went 0 for 5 in the Supreme Court this Term, losing to the military, the timber industry, an electric utility, a railroad, and a mining company. The Supreme Court will conclude its current Term on Monday.

On Wednesday I took Harold Koh, former dean of Yale Law School who President Obama nominated to be the State Department’s Legal Adviser, to see the Washington Nationals play the Boston Red Sox at National Stadium in D.C. Harold is a passionate Red Sox fan and a friend of Larry Lucchino, President and CEO of the Red Sox. While we had planned to sit in my seats behind the Red Sox dugout, we ended up watching the game from visiting owners box with Lucchino and some of his other guests. Harold was in high spirits because that afternoon 65 Senators had voted cloture on the hold that had been put on floor consideration of his nomination. As a result a floor vote on his confirmation was held on Thursday afternoon and he was confirmed by a vote of 62-35.

On Thursday afternoon I said goodbye to Zhang Jingjing, one of China’s top public interest environmental lawyers who has been spending the last year in the U.S. as a Yale World Fellow. We met for tea at the Tea Cellar at the Park Hyatt Hotel. After returning to Beijing on Tuesday, Jingjing will become the China country director for the Public Interest Law Institute. On Thursday night I took Vermont Law School Professor Jason Czarnezki to the Nats/Red Sox game. Jason was in D.C. for the orientation program for Fulbright scholars going to China for the next academic year. Jason and his family will be living in Guangzhou while he teaches at Sun Yat-sen University School of Law.

I spent the weekend visiting my in-laws on the Eastern Shore of Maryland. Last night we went to dinner at a wonderful restaurant in the tiny town of Trappe (population 1,146). Shortly after we were seated I looked up and saw, coming back from the restroom, former Vice President Dick Cheney. He and his wife Lynne were dining a few tables away from us with former Defense Secretary Donald Rumsfeld. They both own homes in St. Michaels, Maryland, 19 miles away. They were accompanied by a security detail, which we learned observed from the kitchen the preparation of their food.