Appellate Court Grants Wide Discretion to Newhall Land and Farming Project Proponents in the Determination of the Significance of Greenhouse Gas Emissions Under CEQA

The California Court of Appeal last week reversed a lower court decision that would have indefinitely delayed the development by Newhall Land and Farming Company of 21,308 residential units, 629 acres of mixed use development, 67 acres of commercial use, 249 acres of business park, and 1,014 acres of open space in northwestern Los Angeles County over the next 25-30 years (“Project”).  The lower court’s decision had originally granted the Petition for Writ of Mandate brought by, among others, the Center for Biological Diversity (“Respondents”), challenging, among other actions by the California Department of Fish and Wildlife (“DFW”) (“Appellant”), the revised Joint Federal/State Environmental Impact Statement/Environmental Impact Report (“EIS/EIR”) for the Project.

While the Appellate Court’s 112 page decision addressed numerous causes of action brought by Respondents in the trial court, one of the most unique and far reaching was its disposition of Respondents’ claim that the EIS/EIR’s baseline for assessing the cumulative impacts of the Project’s Greenhouse Gas (“GHG”) emissions is a procedural issue properly evaluated under the “failure to proceed in a manner required by law” standard, applicable to procedural actions, and that, employing the correct standard, the EIS/EIR’s analysis was predicated on an illusory baseline.  In a decision that is likely to be adopted in the adjudication of other California Environmental Quality Act (“CEQA”) actions challenging the evolving state and federal GHG standards, the Appellate Court firmly disagreed. 
 

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Public Strongly Favors "Cap and Trade" Carbon Emissions Program

A recent poll of registered voters in California concerning the new State “Cap and Trade” auction program, initiated Wednesday, November 14, 2012, and aimed at reducing greenhouse gas (“GHG”) emissions found strong public support for the program.  As set forth in more detail in the Aviation & Airport Development Law News blog of November 13, 2012, the Cap and Trade program assigns “caps” to carbon emissions (euphemistically called “allowances”) for various industries, including utilities and refineries.  It then allows those companies who have not used the full allotment of allowances to sell their unused allowances to companies that have expended their own allowances.  Effectively, the program would create industry-wide caps on emissions, with flexibility within industry groups as to the way in which to utilize the allowances within the constraint of the caps.  The political significance of the Cap and Trade program as one of the first of its kind in the nation goes well beyond the simplicity of its procedure. 

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"Cap and Trade" in Greenhouse Gas Emissions Launched in California

Once again taking a forefront position in innovative environmental programs, California, for good or ill, is poised to launch the first of its kind and scope in the nation greenhouse gas (“GHG”) emissions trading system (“Cap and Trade”). 

On November 14, 2012, the California Air Resources Board (“CARB”) will hold an auction mandated by California’s 2006 “Climate Change” law, AB32, in which pollution permits (“Allowances”) will be bartered to more than 350 businesses, including utilities and refineries.  The concept behind Cap and Trade is that polluters must either cut carbon emissions to the level of a specific emission cap placed on individual types of pollutants by AB32, or buy allowances for each metric ton of carbon discharged over cap limits from other companies whose emissions did not reach cap levels.  Through the Cap and Trade program, excess carbon polluters can achieve up to 8% of emissions reductions needed. 
 

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EPA's Proposed Carbon Pollution Standard for New Power Plants Creates Controversy

On March 27, 2012, the Environmental Protection Agency (“EPA”) proposed a Carbon Pollution Standard for New Power Plants (“Carbon Standard”), setting national limits on the amount of carbon pollution power plants built in the future can emit.  The rules are a reaction to the United States Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), in which, among other things, the Supreme Court held that greenhouse gases, including carbon dioxide (“CO2”) are air pollutants under the Clean Air Act.  EPA was charged by the court with issuing an “endangerment finding,” i.e., a determination that greenhouse gases threaten public health and welfare which was issued on December 15, 2009. 

Immediately upon their initial promulgation, the Carbon Standard generated more contention than power plants generate greenhouse gases.  The Wall Street Journal charged, in an article entitled “Killing Coal,” that “because the putative ‘regulatory impact’ would be zero, there are also no benefits.”  It went on to say that, because the rule would apply not only to new plants but also to every plant upgrade or modification in existing facilities; and because the technology required to meet the standard is still speculative, the EPA’s real goal must be to put a stop to the use of coal in electricity generating. 

The EPA immediately fired back, characterizing the critique of the Carbon Standard in, among others, the Wall Street Journal, as examples of “fact free assault.”  Assistant Administrator Gina McCarthy pointed to the “example” that, in fact, “this standard only applies to new sources – that is power plants that will be constructed in the future.  This standard would never apply to existing power plants.”  Moreover, again pointing to the Wall Street Journal editorial, she stated “the proposed rule explicitly does not apply to facilities making such modifications.  In fact, EPA did not propose a standard for any modifications.”

The proposed Carbon Standard speaks for itself. 

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"Cap-and-Trade" Caps California's Climate Change Regulations

On October 20, 2011, the California Air Resources Board (“CARB”) adopted a new set of rules, called “cap-and-trade,” implementing the requirements of AB32, California’s groundbreaking climate change law. Enacted in 2006, AB32 requires reduction in carbon emissions, usually credited as the cause of “global warming,” to 1990 levels by the year 2020. The new cap-and-trade regulations will be implemented in phases, with the State’s largest emitters required to meet the caps beginning in 2013; and remaining emitters, collectively about 85%, required to begin compliance in 2015.

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Preemption Rears its Head Again in Federal Common Law and Nuisance Climate Change Challenge

A Federal Court has recently thrown open the door to potential civil challenges to both private and governmental sources of greenhouse gas emissions, based on the Federal common law of nuisance. For those who believe the Environmental Protection Agency (EPA) has acted too slowly in promulgating greenhouse gas regulation, civil actions are now possible at least in the Second Circuit. However, the Supreme Court may now scrutinize the Second Circuit’s decision. Based on a recent Fourth Circuit decision on a similar issue, the “Nine” may be tempted to follow in Moses’ footsteps and pare down the Second Circuit decision to apply only to greenhouse gas emissions from Federal projects.

 

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Wind Farm Projects - Federal and Local Environmental and Legal Issues

In the midst of much debate as to whether a threat of “global warming” and “global climate change” actually exists and, if it does, further debate as to whether wind-generated energy would reduce carbon-dioxide emissions sufficiently to have a measurable impact on global temperatures, one thing is certain – wind farms are here, and more are planned. And, as with all forms of energy generation, the siting, construction and operation of wind farms present a number of Federal and local environmental and legal issues.

At the Federal level, wind farm projects may be subject to environmental review under the National Environmental Policy Act (NEPA). They may also be subject to challenge under the Clean Water Act, Endangered Species Act, Migratory Bird Treaty Act, Rivers and Harbors Act and the Outer Continental Shelf Lands Act. (The Mineral Management Services (MMS) has authority to regulate alternative energy projects on the Outer Continental Shelf.) Other regulatory issues include Bureau of Land Management (BLM) policies for wind energy projects proposed for land managed by BLM, and U.S. Forest Service (USFS) special use permit requirements for wind energy projects proposed on USFS managed land. Wind farm projects proposed near airports or military airfields must be evaluated by the Federal Aviation Administration (FAA) to determine if they would be an obstruction or hazard to air navigation or interfere with surveillance radar. Wind farm projects can sometimes impact tribal rights.

Potential state and local issues include state environmental review, project siting, permitting and licensing, zoning and surrounding land uses, land leases and easements, turbine noise, vibration (“aerodynamic modulation”), shadow flicker, visual impacts and aesthetic concerns, perceived health effects of wind turbines, interference with electromagnetic transmissions (radio, television and cell phone signals) and claims for declines in tourism and property values. There can also be issues concerning technical requirements, safety, insurance and liabilities on the part of developers, landowners and operators.

These and other wind farm related issues are being litigated, and will continue to be litigated in increasing numbers, in state and Federal courts. The litigation ranges from a case pending in a North Dakota District Court, in which the City of Wishek is seeking to force a homeowner to remove a single wind turbine from his yard, to the 130-turbine Cape Wind project, located in waters five miles off Cape Cod and recently approved by the FAA and the Department of Interior, which opponents have vowed will “be in litigation for years.”

CEQ's Steps to Modernize and Reinvigorate NEPA Includes Reporting on Climate Change Effects of Federal Actions

The Council on Environmental Quality, on February 18, 2010, proposed three substantive steps to “modernize and reinvigorate” the National Environmental Policy Act (NEPA). According to Nancy Sutley, the Chair of the White House-based CEQ, these measures “will assist Federal agencies to meet the goals of NEPA, enhance the quality of public involvement in governmental decisions relating to the environment, increase transparency and ease implementation.”

These three steps include when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions; clarifying appropriateness of “Findings of No Significant Impact” and specifying when there is a need to monitor environmental mitigation commitments; and clarifying use of categorical exclusions. The CEQ is requesting public comment on all three of the draft guidances.

The Effects of Climate Change and Greenhouse Gas Emissions Must be Considered in the NEPA Process

Perhaps the most critical element to this modernization of the NEPA process is the CEQ’s draft guidance on when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions. According to the CEQ:

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Greenhouse Gases Should Be Considered in All EISs and EAs

On 40th Anniversary of the National Environmental Policy Act (NEPA), Jim Tankersley of the Los Angeles Times wrote that

The White House is poised to order all federal agencies to evaluate any major actions they take, such as building highways or logging national forests, to determine how they would contribute to and be affected by climate change, a step long sought by environmentalists.

The Presidential Order would most likely issue from the Council on Environmental Quality, an organization set up by NEPA to oversee the NEPA process. Mr. Tankersley’s article goes on to report that that

The head of the White House Council on Environmental Quality, Nancy Sutley, said in an interview this week that federal agencies "should think about both the effect of greenhouse gas emissions, and the effects of climate change, on decisions they make."

She added that the administration's decision was not yet final.

The White House was originally petitioned in 2008 to formally recognize climate considerations under NEPA, but the White House has not taken any action since then.

However, federal agencies may already be required to include an analysis of climate in their Environmental Impact Statements (EISs) and Environmental Assessments (EAs). NEPA does not mention specific areas that federal agencies must analyze to complete EISs and EAs. Instead, it states that the federal agency shall analyze the effect the federal project will have on the environment, without specifically mentioning any particular areas that need to be examined. Thus, it could be argued that federal agencies should already be examining the effect of the federal project on climate change since that is an “environmental effect” within the purview of NEPA.

As Mr. Tankersley’s article points out, some federal agencies have already taken upon themselves to consider effects on climate. Moreover, there is a growing body of caselaw indicating that the courts are beginning to rule that federal agencies should consider the effect their projects will have on the environment. The U.S. Circuit Court of Appeals for the Ninth Circuit recently held in Center for Biological Diversity v. National Highway Transportation Safety Administration that the NHTSA was required to examine in its EIS the effect of greenhouse gas emissions from the federal project. In coming to that conclusion, the 9th Circuit summarized the following findings from International Panel on Climate Change reports and other sources:

Carbon dioxide concentrations increasing over the 21st century are virtually certain to be mainly due to fossil-fuel emissions;

The average earth surface temperature has increased by about 0.6 degrees;

There have been severe impacts in the Arctic due to warming, including sea ice decline;

Global warming will affect plants, animals, and ecosystems around the world. Some scientists predict that it will cause 15 to 37 percent of species in certain regions to be extinct;

Global warming will cause serious consequences for human health, including the spread of infections and respiratory diseases;

Climate change is associated with increasing variability and heightened intensity of storm such as hurricanes;

Climate change may be non-linear, meaning there are positive feedback mechanisms that may push global warming past a dangerous threshold (the“tipping point”).

Center for Biological Diversity v. NHTSA, 508 F.3d at 522-23. To the Court, these findings indicate that emission of greenhouse gases substantially contribute to climate change, and climate change is expected to result in widespread adverse environmental effects. Therefore, it should be mentioned in the EIS. See also, Friends of the Earth, Inc. v. Mosbacher, 488 F.Supp.2d 889 (N.D. Cal. 2007); Border Power Plant Working Group v. Department of Energy, 260 F.Supp.2d 997 (S.D. Cal. 2003); and Mid-States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003).

In addition, NEPA contains a provision that could be taken to require federal agencies to consider the impact of the greenhouse gas emissions created by the federal project. Section 102(F) of NEPA, 42 U.S.C. 4332(F) states that “all agencies of the Federal government shall:”

Recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment.

To be sure, an order from the White House would be beneficial in establishing a nationwide policy and prompt recalcitrant agencies to require consideration of climate change in their EISs and EAs. At least in the Ninth and Eighth Circuits, however, one could argue that the courts have taken the view that NEPA already requires exactly what the order would seek to implement.

What Does EPA's Finding that Greenhouse Gas Emissions Endanger Public Health and the Environment Mean to Business?

When the U.S. Environmental Protection Agency issued its final finding that emission of six greenhouse gases endangered the public’s health and the environment because of their effect on climate change, the business community wondered how it should respond to the news.  At first glance, there seems to be blinding maze of legal and policy issues that will affect business decisions.  Although far from clear, there is a way out of the maze – although businesses with significant greenhouse gas emissions should be prepared to tackle the important issues that the Endangerment Finding raises.

Businesses Need to Take a Deep Breath (Irony Intended)

The road to the endangerment finding began in 2007, when the U.S. Supreme Court decided in Massachusetts v. EPA that carbon dioxide and other greenhouse gases constituted “air pollutants” under the Clean Air Act.  To most savvy businessmen this was a clear signal to start planning how their businesses would cope with the establishment of limits on emission of greenhouse gases.  Although the Bush Administration EPA successfully sat on the issue, when the Obama Administration took office, most companies recognized that an endangerment finding would top the EPA’s list of major environmental actions.  Thus, EPA’s announcement this past April of its proposed finding and its announcement of the final endangerment finding should have come as no surprise to anyone who has been monitoring this issue.

The key thing for businesses to remember is that the endangerment finding by itself does not regulate the emission of greenhouse gases from any source, large or small.  That being said, it does have a direct impact on mobile sources (because of section 202(a) of the Clean Air Act), with the EPA planning on issuing its final “light-duty vehicle” greenhouse gas emissions rule some time in Spring 2010.

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Early Draft of Boxer-Kerry Climate Change Bill Released, Includes Aircraft Emission Provision, But Still Much Work to Be Done

Update 09/30/09 The Boxer-Kerry bill introduced at the press conference this morning - also known as Clean Energy Jobs and American Power Act - dropped the provision requiring the EPA Administrator to promulgate standards for aircraft and aircraft engines.  Instead, it includes a more general provision that

. . . the Administrator may establish provisions for averaging, banking, and trading of greenhouse gas emissions credits within or across classes or categories of motor vehicles and motor vehicle engines, nonroad vehicles and engines (including marine vessels), and aircraft and aircraft engines, to the extent the Administrator determines appropriate and considering the factors appropriate in setting standards under those sections.

In his article that appeared in the New York Times on September 28, 2009, Darren Samuelson stated that Sen. John Kerry (D-Mass) is attempting to move the discussion away from “cap-and-trade” and to focus on “pollution reduction:”

Kerry last week sought to change the vernacular surrounding the climate bill and sell its concepts more broadly, insisting it is not a "cap and trade" proposal but a "pollution reduction" bill. "I don't know what 'cap and trade' means. I don't think the average American does," Kerry said. "This is not a cap-and-trade bill, it's a pollution reduction bill"

The early discussion draft that was released on September 29, 2009, reveals that the “Boxer-Kerry” bill is similar to the HR 2454 (also known as “Waxman-Markey” or “American Climate and Energy Security Act”) which was passed by the House earlier this past summer, most notably, they both “contain the same longer-term emissions limits of 42 percent below 2005 levels by 2030 and an 83 percent cut for 2050.”   http://bit.ly/3TPuk   There are, however, a couple of notable differences.

  1. Boxer-Kerry “diverges from the House measure in its push for a 2020 emissions target of 20 percent, compared with the House's bill's 17 percent limit.” http://bit.ly/3TPuk
  2. In Subtitle D “Carbon Market Assurance,” oversight and assurance of carbon markets are given solely to the “Federal Commodities Trade Commission.”  § 431(b)(1). The working group established in § 431(c) will make its recommendations to the Commodity Futures Trading Commission (CFTC).
  3. There is a short Subtitle – “Nuclear and Advanced Technologies,” which covers “nuclear grants and programs,” but nothing else. Although the draft includes a section “Nuclear Waste Research and Development,” it is, for the time being, blank.  Subtitle D, “Nuclear and Advanced Technologies,” §§ 141 and 142.
  4. Boxer-Kerry includes a provision stating that the EPA Administrator shall promulgate greenhouse gas emission standards for aircraft and new aircraft engines. § 821(c).

The early draft also is different from the House Bill for what it does not contain, for example:

  1. Boxer-Kerry does not bar the EPA from considering greenhouse gas emissions from “international indirect land-use changes” when implementing the national biofuels mandate. http://bit.ly/3TPuk
  2. Unlike ACES, Boxer-Kerry does not contain a section that restricts the EPA’s ability to enact climate change regulations. http://bit.ly/3TPuk

Despite these differences, the bulk of the draft Senate bill contains many of the same provisions of ACES. Moreover, this is an early draft of the bill, the completed bill is expected to be released at a Wednesday, September 30, 2009, press conference. As Darren Samuelsohn stated in his New York Times article:

Already last week, several Democratic senators working outside of the Boxer-Kerry camp said their ideas would be melded into the legislation at a later date. "It's going to need a lot of work," said Sen. Sherrod Brown (D-Ohio).

Yes, indeed.

 

 

Why the Airports and the Aviation Industry Need to Be Concerned About Climate Change: Part One, Facts about Aviation and Climate Change

I.        Introduction

In the grand scheme of things, aviation may not represent a huge source of concern with respect to climate change. But neither should the aviation industry (airports included) ignore the fact that aviation does contribute to climate change not only through the emission of carbon dioxide (CO2) but also through the emission of nitrogen oxides (NOx), aerosols and their precursors (soot and sulfate), and increased cloudiness in the form of persistent linear contrails and induced-cirrus cloudiness. The intent of this series of articles is to examine the effect aviation has on climate change, outline the regulatory and legal framework that is developing, and to suggest avenues for the aviation industry to pursue in the future.  The first challenge is to clear up some misconceptions about aviation and climate change so that we can move forward with accurate and up-to-date information.

II.      Some Facts About Aviation and Climate Change

In Aviation and Climate Change: the Views of Aviation Industry Stakeholders, the aviation industry makes several claims regarding the impact aviation has on climate change. First, the industry claims that “over the past four decades, we have improved aircraft fuel efficiency by over 70 percent, resulting in tremendous savings.” As a result, the industry continues, “given the significance of fuel costs to the economic viability of our industry, our economic and environmental goals converge.” Second, the industry claims that “because of our aggressive pursuit of greater fuel efficiency, greenhouse gas (GHG) emissions from aviation constitute only a very small part of total U.S. GHGs, less than 3 percent.” However, in order to assist the industry in its obligation “to further limit aviation’s greenhouse gas footprint even as aviation grows to meet rising demand for transportation around the world,” those claims of progress need to come under a microscope.

        A.            Contribution of Aviation to Climate Change Remains Subject to Debate

First, how much aviation contributes to climate change is still up to debate. Several governmental and aviation industry organizations have been reporting a “less than 3%” number for quite some time while environmental groups, particularly in Europe, claim that the percentage is anywhere from 5 to 9%. In examining the claims and counterclaims concerning emissions of GHG, one has to be very careful about the language and the metrics used in determining the “impact” any given industry will have on “climate change.” Many reports and studies focus only on CO2, since the amount of CO2 produced both naturally and by humans is overwhelming. However, as just about everyone knows by now, there are other gases and anthropogenic actions that exacerbate climate change. For example, the U.S. EPA recently proposed regulations that would require major emitters of six “greenhouse gases” to report their emissions to the EPA on an annual basis. Those six greenhouse gases are: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6), hydrofluorocarbons (HFCs), perfluorochemicals (PFCs), and other fluorinated 20 gases (e.g., nitrogen trifluoride and hydrofluorinated ethers (HFEs)). It also should be kept in mind when discussing climate change, especially with respect to aviation, that water vapor is estimate contribute anywhere from 36% to 72% of the greenhouse effect. This is important because the radiative forcing effect of cirrus cloud formation from the aircraft is a significant contributor to the greenhouse effect. As pointed out above, it is generally accepted that for aviation the GHGs of concern are CO2, nitrogen oxides (NOx), aerosols and their precursors (soot and sulfate), and increased cloudiness in the form of persistent linear contrails and induced-cirrus cloudiness.

 

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Climate Change and Clean Energy Headline U.S. Senate Committee Hearing

John M. Broder, a columnist for the New York Times, writes that:

The changing global climate will pose profound strategic challenges to the United States in coming decades, raising the prospect of military intervention to deal with the effects of violent storms, drought, mass migration and pandemics, military and intelligence analysts say.

Such climate-induced crises could topple governments, feed terrorist movements or destabilize entire regions, say the analysts, experts at the Pentagon and intelligence agencies who for the first time are taking a serious look at the national security implications of climate change.

Against this backdrop, the U.S. Senate Committee on Environment and Public Works held hearing on Thursday, August 6, 2009, on the climate change bill currently under consideration by Senate after being passed by the House earlier this summer.  According to Chairman Barbara Boxer (D-Cal.),  "the hearing will focus "on ensuring that America leads the clean energy transformation as we address the threat posed by climate change.

The battlelines were drawn in the opening statements.  The Democrats emphasized the national security aspects of the failure of the United States to address climate change adequately.  Sen Lautenberg (D-N.J.) said in his opening remarks:

We have also heard from our military leaders that global warming is a serious threat to our national security.  As many as 800 million people are going to face water and cropland scarcity in the next 15 years, setting the stage for conflict and breeding the conditions for terrorism.

These sentiments were echoed by Sen. Cardin (D-Md.) who stated that addressing climate change was "important for national security."

The Republicans seemed to acknowledge the fact that movement on climate change is necessary, but that the energy policy of the United States should focus first and foremost on the economy.  This resulted in Sen. Bond (R-Mo.) calling for off-shore drilling for natural gas and oil, Sens. Voinovich (R-Ohio) and Alexander (R-Tenn.) calling for more nuclear energy, and all of them calling for "Clean Coal," describing the United States the "Saudia Arabia" of coal.  Nuclear energy, in particular because of its "no carbon emissions," is high on the Republican's agenda.

The basic issue between the two parties seems to be this:  the Republicans believe that the status quo should be protected, because the alternative proposed by the Democrats is too costly and uncertain.  The Democrats, on the other hand, believe that while the costs will be high in some sectors, other sectors will pick up the slack.  While Sen. Voinovich is correct that the economy must be protects, Sen. Whitehouse (D-R.I.) is also correct in stating that to

move the government's hands in a way that supports a better clean energy future is not a distrubance in the "state of nature" . . . it's actually making better decisions with the same power we use now.

Panel One:  Views From the Obama Administration

Putting aside for the moment the prepared testimony by the witnesses, the nuclear question was addressed through a question from Sen. Boxer to panel by stating "under the analysis of the House Bill, 161 new 1000 megawatt nuclear power plants would result from that bill."  The panelists confirmed that the cap-and-trade system sets up the market mechanisms that would allow the power and energy companies to move forward with the development of nuclear power plants in addition to solar and wind.

Sen. Inhofe attempted to move the discussion away from climate change and toward the issue of reliance on foreign oil.  His point was that we need to develop our oil reserves that we have here, presumably instead of developing solar, wind and nuclear resources.  Hon. Strickland, from the Interior Department, replied that the Interior Department is moving toward developing all of the natural resources of the United States in "responsible manner."  But that should not mean that we should not also develop "renewable" resources.

Panel Two:  Industry and Environmental Group Representatives

The second panel of the day concentrated a little more on reductions of carbon emissions.  Interestingly enough, Mr. Fehrman of the Mid-American Energy seemed to support a hard cap, without any trading of allowances.  His belief is that introducing market mechanisms only raise the costs for energy companies.  In addition, he believes that carbon capture and sequestration will be "commericially available" in 5 to 10 years. 

On the other hand, Mr. Krupp advocated in favor of cap-and-trade to achieve real emission reductions in the nation.  Mr. Krupp also noted that "carbon capture is ready to roll" - in Norway.  The reason why?  Because there is a price on carbon and the rechonology was developed as a result.

Shortly after the hearing was over, the Senate recessed for the rest of the month of August, leaving the big questions regarding climate change until the Fall.

The witness list and a link to the video webcast of the hearing after the jump.

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California's Proposal for Interim Significance Thresholds for Greenhouse Gases Will Affect Airport Planning

As part of the California Air Resources Board's (CARB) "Climate Change Proposed Scoping Plan," the Board, on October 24, 2008, released its Preliminary Draft Staff Proposal on recommended approaches for setting Interim significance thresholds for greenhouse gases under the California Environmental Quality Act (CEQA).  Since these thresholds of significance will affect the conduct of EIRs for projects subject to CEQA, such as airport development projects and Airport Land Use Compatibility Plans, participation in the setting of these standards is critical.

California law provides that climate change is an environmental effect subject to the CEQA.  Lead agencies, such as Airport Land Use Commissions, are therefore obligated to determine whether a project's climate change-related effects may be significant, thereby requiring preparation of an Environmental Impact Report and to impose feasible mitigation to substantially lessen any significant effects.

CARB is specifically requesting participation from the public stakeholders and local lead agencies.  The Preliminary Draft Staff Proposal suggests a "sector approach" due to the fact that "(1) some sectors contribute more substantially to the problem, and therefore should have a greater obligation for emissions reductions, and (2) looking forward, there are differing levels of emissions reductions expected from different sectors in or to meet California's climate objectives."

The PDSP includes flowcharts that address CARB's "threshold concepts" for industrial projects and for residential and commercial projects.  The PDSP also states that that the staff is working on a proposal for an interim approach for thresholds for transportation projects.  CARB proposes, for example, a significance threshold of 7,000 metric tons of CO2e/year.  For Projects that go over that amount, an EIR would have to be prepared and "all feasible GHG mitigation measures implemented."

CARB has identified a few questions to solicit public comment, but notes that the "list is not exhaustive."

  • Will the recommended approaches have any unintended consequences, for example, encouraging the piecemealing of projects?
  • As set out in the attachments to the Staff Proposal, staff proposes to define certain performance standards (e.g., for energy efficiency) by referencing or compiling lists from existing local, State or national standards.  For some sub-sources of GHG emissions (e.g., construction, transportation, waste), ARB staff has not identified reference standards.  How should the performance standards for these sub-sources be defined?
  • Are any of the industrial, residential, or commercial project types eligible for categorical exemptions likely to contribute more significantly to climate change than staff's preliminary analysis indicates?
  • For residential and commercial projects, staff has proposed that the GHG emissions of some projects that meet GHG performance standards might under some circumstances still be considered cumulatively considerable and therefore significant.  What types of projects might still have climate change-related impacts?

As noted above, since these thresholds of significance will affect the conduct of EIRs for projects subject to CEQA, such as airport development projects and Airport Land Use Compatibility Plans, participation in the setting of these standards is critical.