Land Trade and Airport Expansion Expected to Put Mammoth Mountain on "Must Ski" Map

Usually regarded as a local ski area for ski buffs in Northern and Southern California, to which it is readily accessible by car, Mammoth Mountain Ski Area (“MMSA”) is preparing to come into the 21st Century with a new lodge, updated lifts, and, perhaps most important to proponents of the development, an expanded airport.  The expected transformation will be accomplished by the December 12, 2014 passage of the National Defense Authorization Act to which was attached an amendment specifically targeted at the MMSA.  The amendment provides for a land trade of over 1,500 acres of public and private property in proximate counties, for approximately 21 acres of United States Forest Service (“USFS”) land surrounding Mammoth Mountain Inn, which is currently leasing that property as the center of ski operations of the MMSA.  In addition, the Bill allows for a “cash equalization option” to facilitate the exchange, by which MMSA can make up any deficiency in the value of the property conveyed to the USFS with a cash equivalent.  
 
Most important in MMSA’s view is the expansion of the airport.  
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High Court Goes a Second Round with Environmental Protection Agency Over Greenhouse Gas Emission Regulations

On Monday, February 24, the United States Supreme Court watched the Environmental Protection Agency (“EPA”), industry groups and sympathetic states take the ring over what the challengers call a “brazen power grab” by the Obama Administration and its environmental regulators, aimed at limited carbon emissions from new stationary sources such as power plants and factories. 

This is not the first time the same parties have squared off over greenhouse gas (“GHG”) regulation.  In 2008, the Obama Administration initiated rules governing mobile sources, requiring new motor vehicles to demonstrate better fuel efficiency and, thus, reduce carbon emissions.  The High Court effectively upheld those rules by refusing to hear the challenges against them.  The Administration this week announced plans to expand mobile source regulation by enacting new limits on carbon emissions for trucks and buses.  EPA has hit a brick wall, however, with its expansion of regulation to stationary sources, concerning which the High Court will now be hearing oral argument on six different appeals.  The upcoming legal battle, like so many others over environmental regulation, is fraught with political overtones, as well as a variety of legal issues. 
 

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Challenges to the Port of Los Angeles' Truck Pollution Limits to be Heard at the Supreme Court

Trucking industry challenges to the Port of Los Angeles’ pollution rules for trucks carrying cargo to and from the Port (“Clean Truck Program”) have hit the United States Supreme Court.  The Court has agreed to accept certiorari to decide whether the rules that require, among other things, that trucking firms enter into agreements with the Port Authority of Los Angeles (“Port Authority”) to govern regular maintenance of trucks, off-street parking, and posting of identifying information are an unconstitutional interference with interstate commerce.  Perhaps most contentious is the requirement that, ultimately, all truck operators must become employees of trucking companies, rather than acting as independent contractors. 

The American Trucking Association originally challenged the Clean Truck Program on the grounds of a Federal law deregulating and preempting local authority “related to a price, route, or service of any motor carrier.”  49 U.S.C. § 14501(c)(1).  Although the Port Authority has had surprising success in the lower courts thus far, the preemption provision relied upon by the trucking industry bears a substantial similarity, even identity, with the provisions in the Airline Deregulation Act, 49 U.S.C. § 40101, et seq. (“ADA”), which has rarely been successfully challenged.
 

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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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Local Land Use Restrictions on Hydraulic Fracturing Upheld in Pennsylvania

On July 26, 2012, the Commonwealth Court of Pennsylvania overturned a Pennsylvania statute preempting the right of local jurisdictions to impose land use restrictions on hydraulic fracturing, or “fracking,” within their boundaries.  Unlike courts in the States of Ohio and Colorado, the court in Robinson Township v. Commonwealth of Pennsylvania, et al., 2012 WL 3030277 (2012) held that the Pennsylvania statute violates the “basic precept that ‘land use restrictions designate districts in which only compatible uses are allowed and incompatible uses are excluded.’”  Id. at 15, quoting City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732-33 (1995).  Fracking involves the high pressure injection of water and sand carrying certain chemicals into rocks in which is concealed deposits of oil and gas.  Residents near fracking sites have complained of, among other things, pollution of the underground water supply, and increasing instability and subsidence of structures undermined by the process.  Supporters of the Pennsylvania law claimed that it provides the uniformity of regulation necessary for the successful continuation of Pennsylvania’s relatively new and profitable fracking industry.  Critics, however, take the position that removing local restrictions on the fracking would be to undermine decades of rational development, and open the door to the “pig in the parlor” to which the Supreme Court referred in upholding local zoning originally in Euclid v. Ambler, 272 U.S. 365 (1926).

The implication of these differences ranges far beyond Pennsylvania, because, among other reasons, the positions taken over local regulation of fracking do not differ notably from those taken with respect to local regulation of airport impacts.
 

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EPA Takes Its First Enforcement Action Under Marine Diesel Engine Air Rules

On March 28, 2012, the Environmental Protection Agency (“EPA”) and Department of Justice (“DOJ”) announced their first settlement of an enforcement action addressing Federal Clean Air Act (“CAA”) violations in the marine engine manufacturing and ship building industries.  Under that settlement, Coltec Industries, Inc. (“Coltec”) and National Steel and Shipbuilding Company (“National Steel”) have agreed to pay a civil penalty of $280,000 and spend approximately $500,000 on an environmental project to resolve alleged violations of the CAA and the EPA’s marine diesel engine air rules.  Coltec is a subsidiary of EnPro Industries, Inc. and operates Fairbank Morse Engines which supplies marine propulsion and ship service systems to the United States Navy and Coast Guard.  National Steel is a subsidiary of General Dynamics which designs and builds support ships, oil tankers and dry cargo carriers for the United States Navy and commercial markets.

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D.C. Circuit Court of Appeals Takes FAA to the Woodshed in Cape Cod Wind Farm Case

The proposed location of the first offshore wind farm, 130 wind turbines, each 440 feet tall, in a 25 square mile in Nantucket Sound, has been controversial from the start. The controversy has arisen partially because of Cape Cod’s high profile residents who would be visually impacted (such as the Kennedy family), and partly because of the proximity of the Town of Barnstable which is owner and operator of a municipal airport.

Now the courts have weighed into the controversy. In Town of Barnstable, Massachusetts v. Federal Aviation Administration, 2011 W.L. 5110119 (C.A.D.C.), decided on October 28, 2011, the D.C. Circuit Court of Appeals held that: (1) the petitioners in two consolidated cases, Barnstable and Alliance to Protect Nantucket Sound, had standing to challenge the Federal Aviation Administration’s (“FAA”) determination that the wind farm would not pose a hazard to air navigation under FAA regulation 14 C.F.R. Part 77; and (2) FAA’s finding of “no hazard” to air navigation under that section was a result of the agency’s failure to properly apply its own regulations and the guidance in its own Order JO 7400.2G (April 10, 2008) (“Handbook”).
 

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A New Technological Fix Hopes to Make Airport Noise a "Whisper"

Noise abatement procedures are only effective if they are used. Noise impacted communities are frequently heard to complain that, despite the complex, time consuming and expensive process needed to develop and implement noise abatement procedures at airports, either through the FAA’s Part 150 process, or through other airport specific processes, airlines seem to ignore them. The rationale often provided is that each airline is entitled to develop and implement its own flight procedures, some, but not all of which incorporate the specified noise abatement procedures. This situation was exacerbated in 1990 when the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq., took noise abatement policy making out of the hands of local airports and placed approval authority exclusively in the hands of the FAA.

A deceptively simple solution to this pervasive problem of airlines non-uniform observance of airport specific noise abatement policies has been developed by a small, new company in Truckee, California, Whispertrack.
 

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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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Don't Procrastinate: Make Your Comments on Environmental Analyses Early and Often

Recent appellate cases have once again brought to the fore the critical importance of the “exhaustion of administrative remedies” for any potential challenger to an agency action based on noncompliance with the California Environmental Quality Act (“CEQA”), the National Environmental Policy Act (“NEPA”) and other laws meant to protect the environment and public.

In California, as example, public projects such as road construction, airport development, and power facilities, as well as private projects such as shopping centers are challenged on the basis of the failure to exhaust administrative remedies, or to present the alleged grounds of noncompliance “to the public agency orally or in writing . . . during the public comment period provided by this division or prior to the close of the public hearing . . .” Cal. Pub. Res. Code § 21177.

All too often, individuals, environmental organizations and public agencies wait to make their decisions to challenge the analysis of a project’s environmental impacts until their frustration peaks, and the time for filing a legal challenge arrives. [The usual time for filing a CEQA challenge is very short – 30 days from the filing by the agency of its Notice of Determination (“NOD”) which marks the final agency action in the CEQA process. NEPA is normally 60 days from the signing of the Record of Decision (“ROD”).] By that time, however, it is too late, because “exhaustion of administrative remedies is a jurisdictional prerequisite to maintenance of a CEQA action.” Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184, 1199 (2004).
 

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The National Resources Defense Council Challenge to the Southern California Air Quality Management District Administration of Emissions Credits Rejected by Ninth Circuit Court of Appeals

In National Resources Defense Council v. Southern California Air Quality Management District, 2011 W.L. 2557246 (C.A. 9 (Cal.)), the National Resources Defense Council (“NRDC”) sought to call the Southern California Air Quality Management District (“SCAQMD”) to account for purportedly using invalid “offsets” for emissions increases resulting from new stationary sources. A panel of the Federal Ninth Circuit Court of Appeals found, however, that: (1) the District Court’s decision refusing to hold SCAQMD to a validity standard for its internal “offsets” for emissions increases was correct because such a validity standard is not required by the Clean Air Act (“CAA”), 42 U.S.C. section 7503(c) (“Section 173(c)”); and (2) ironically, the District Court lacked jurisdiction to reach that decision where original jurisdiction lies in the Courts of Appeals pursuant to CAA section 7607.

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California High-Speed Rail Project Could Be Derailed

Proponents of California’s proposed high-speed rail project envision a high-speed rail network connecting Sacramento, San Francisco, Central Valley, Los Angeles, Orange County, the Inland Empire and San Diego. However, there are many obstacles, real or imagined, that could delay or derail the project. First, the House Subcommittee on Transportation voted to fund only $1.4 billion for high-speed rail in FY 2011, compared to the $4 billion they approved last year. The project appears to be plagued by unreliable cost, ridership and revenue projections, uncertainty about private investment and, given the State of California’s finances, the possibility that taxpayers may have to subsidize the project if revenue projections are not met. A high-speed rail system would reduce revenues for Metrolink and Amtrak. A number of cities and communities along the proposed routes oppose the project. Finally, the proposed project will require environmental review. Environmental review will include at least two alternatives (in addition to the mandatory “no-action” alternative) – a “shared track” alternative and a “dedicated track” alternative. Both present problems.

 

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Forget His Investments - Judge Feldman is Wrong for All the Right Reasons

Much has been made by progressive bloggers and commentators of the 17 energy investments owned by Judge Martin Feldman of the Federal District Court in New Orleans. Judge Feldman recently granted a preliminary injunction to energy company challengers to the Obama Administration’s May 22, 2010 moratorium on deep water drilling in the Gulf of Mexico. Those commentators missed the point. While Judge Feldman may, or may not, have breached the Canon of Judicial Ethics by deciding a case in which he had a financial interest, it is Chevalier, Allen & Lichman’s view, based on extensive experience in litigation against government agencies in the Federal courts, that Judge Feldman made manifest errors of law by failing to grant deference to the Department of the Interior in its determination that further drilling without additional safety inspections would endanger the public safety, and by allowing the economic interests of drilling companies to carry the weight in the balance of harms.

 

 

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The California Supreme Court Clarifies Environmental Review Baselines Under the California Environmental Quality Act (CEQA)

The California Supreme Court recently weighed in on the critical issue of the proper baseline to be used in assessing the environmental impacts of a proposed project under the California Environmental Quality Act (CEQA). [Agencies must use a “baseline” from which to determine whether a project’s environmental effects will be “significant.”]  In Communities For a Better Environment v. South Coast Air Quality Management District, et al., 48 Cal. App. 4th 310 (2010), ConocoPhillips Company argued that the proper baseline for environmental analysis of a project at a petroleum refinery employing existing equipment should be the maximum permitted operating capacity of the equipment, even if the equipment is operating below those levels at the time the environmental analysis is commenced. The Court rejected that argument, holding that the baseline for CEQA analysis must be the “existing physical conditions in the effected area” (i.e., “real conditions on the ground”), rather than the level of development or activity that “could” or “should” have been present according to a plan or regulation. This confirms the California CEQA Guidelines requirement that the baseline consist of the physical environmental conditions in the vicinity of the project as they exist at the time the notice of preparation of the EIR is published or at the time the environmental analysis begins. 14 Cal. Code Regs. §15125(a).
 

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Ninth Circuit Rules on the Appropriate Economic Analysis Approach in Designating Critical Habitats Under the Endangered Species Act

The Ninth Circuit Court of Appeals recently clarified the proper approach to be applied in analyzing the economic impacts of designating critical habitats for endangered or threatened species under the Endangered Species Act (ESA). In Arizona Cattle Growers' Association v. Salazar, the Court found that the U.S. Fish and Wildlife Service (FWS) properly applied a "baseline" approach in designating approximately 8.6 million acres of Federal land as critical habitat for the Mexican Spotted Owl. The Court also found that the FSW properly interpreted “occupied” as including not only areas where owls are found, but areas where owls are likely to be present as well. See, previous blog dated June 21, 2010.

A decision to list a species as endangered or threatened is made without reference to the economic effects of the decision. In contrast, an agency must consider the economic impacts of designating critical habitat in any particular area. Under the baseline approach used by the FWS, any economic impacts of protecting a species that will occur regardless of the critical habitat designation, such the economic impacts imposed by listing the species, are treated as part of the regulatory “baseline” and are not factored into the economic analysis of effects of the critical habitat designation.

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Ninth Circuit Upholds U.S. Fish and Wildlife Service's Interpretation of "Occupied" Under the Endangered Species Act Critical Habitat Designation Provision

In a recent case, Arizona Cattle Growers Association v. Salazar, the Ninth Circuit Court of Appeals upheld a designation by the U.S. Fish and Wildlife Service of approximately 8.6 million acres of Federal land as critical habitat for the Mexican Spotted Owl, a threatened species under the Endangered Species Act (“ESA”). In making the designation, FWS interpreted the word “occupied” in the ESA’s critical habitat provision to include not only areas where owls are found, but areas where owls are likely to be present as well.

 

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Senate Narrowly Turns Down Sen. Murkowski's (R-AK) Attempt to Overrule EPA's Greenhouse Gas Rules

After all of the debate was over, both on the Senate floor and in the press, it boiled down to a party line vote - again, with six Democrats crossing over to vote for the other side. As Jim Abrams of The Associated Press reported:

The defeated resolution would have denied the Environmental Protection Agency the authority to move ahead with [its] rules [requiring permits for greenhouse gas emissions (“the tailoring rule”)], crafted under the federal Clean Air Act. With President Barack Obama’s broader clean energy legislation struggling to gain a foothold in the Senate, the vote took on greater significance as a signal of where lawmakers stand on dealing with climate change.
 

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Wind Farms and Agricultural Aviation

With the advent of wind energy development, much attention has been given in the aviation community to the impacts wind turbines located near airports might have on aviation safety. However, a not so readily apparent impact that has not been widely addressed is the impact of wind farms on an important segment of aviation, agricultural aviation. Because many of the country’s richest wind resources are located in agricultural areas, an increasing number of wind farms are being built on leased farmland property. Wind farm land leases provide farmland owners a continuing income source. However, in negotiating, preparing and entering into lease agreements, wind energy developers and landowners should consider other potential economic impacts wind farms might have on farming operations which extend beyond the boundaries of the leased property. Continue Reading...

Santa Monica and Logan Airport Health Studies are Targeting the Wrong Problem

Much has been made recently of the studies currently underway in areas around Boston Logan and Santa Monica Airports, aimed at determining the health impacts of those airports on surrounding populations.  While the aim is noble, and the information to be gained useful in structuring individual living choices, the result will have little or no impact on the operation of those airports. 

 

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Proposed Project to Close "710 Gap" Will Require Environmental Review

On Thursday, May 27th, the Los Angeles County Metropolitan Transportation Authority (MTA) will consider approving the preparation of a comprehensive State Route 710 corridor study, which will include alternatives and environmental impacts of a project that would close the 4 mile gap in the Long Beach (710) Freeway between Alhambra and Pasadena. Alternatives will include improvements to surface streets, construction of a surface freeway and a series of tunnels. The project would be subject to environmental review under the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA). The 710 Freeway Project would also have to comply with the Clear Air Act, Clean Water Act and Historic Preservation Act. The tunnels alternative[s] will present unique issues concerning groundwater, contaminated soils and active fault lines.

The 710 Freeway was originally planned to extend from Long Beach to Pasadena. The Long Beach to Valley Boulevard segment was opened in 1965. However, since that time the segment between Valley Boulevard and Pasadena has been stalled by public controversy and court actions, resulting in the “710 gap.” Opponents argued that completion of the Valley View to Pasadena segment would require destruction of hundreds of homes and some historic properties. Residents in other areas complained about noise and air pollution caused by heavier traffic on other freeways and surface streets because of 710 gap, and supported completion of the freeway. In 1999 a U.S District Court Judge ruled that the project, as then proposed, violated the Clear Air Act, NEPA and the Historic Preservation Act. Rather than remedy the violations, the Federal Highways Administration (FHWA) rescinded its Record of Decision (ROD) and the California Transportation Commission withdrew its Notice of Determination.

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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President Obama Calls for Review of Bush-Era Regulation Regarding Scientific Consultation on Endangered Species Act Concerns

President Obama took a huge step toward reversing the Bush Administration's recently promulgated regulation allowing Federal agencies to forego consultation with the Fish and Wildlife Service and the National Marine Fisheries Service with respect to whether the Federal agencies' activities will have an impact on the Endangered Species Act.  In his memo to "Heads of Executive Departments and Agencies," President Obama requests that the Departments of Interior and Commerce "to review the regulation issued on December 16, 2008, and to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA."

Since the Bush Administration rule was issued as a regulation, President Obama cannot through the use of an Executive Order rescind or overturn the regulation.  Thus, as an interim measure President Obama asked "the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS."

As a side note, it should be pointed out that the Senate is currently considering an Omnibus Appropriations Bill from the House that would allow the Obama Administration to rescind both the ESA rule and a rule issued in conjunction with last year's listing of the polar bear as threatened under the ESA.  That rule exempted greehouse gas emissions and oil devleopment from regulation under the ESA even if they harmed the bears and their melting habitat.

Full text of President Obama's Memorandum, as reported by the L.A. Times, follows on the next page.

Previous related Posts:

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The Camel's Nose of Self-Interest Under the Tent of Environmental Regulation

The California Environmental Quality Act (“CEQA”) is once again under attack.  Governor Arnold Schwarzenegger, in a letter to President-Elect Obama, has conditioned agreement to a budget reconciliation package on the suspension of CEQA compliance for 10 highway projects, ranging from carpool lanes on Routes 50 in Sacramento and 805 in San Diego, to road widenings in Fresno and San Joaquin, to a fourth bore in the Caldecott Tunnel in San Francisco.  The Governor’s initiative is already under siege from myriad environmental organizations including the Sierra Club, the Planning and Conservation League and the National Resources Defense Council.

The Governor partially justifies his actions on the grounds that most of the projects would have to comply with the Federal equivalent of CEQA, the National Environmental Policy Act (“NEPA”).  The well hidden flaw in the Governor’s argument is that he has requested that President-Elect Obama provide funding for the projects under various Federal statutes, and simultaneously suspend Federal environmental compliance standards as well.

The Governor’s proposal has far reaching implications.  First, and most obvious, are the potentially undocumented and unanalyzed, but nonetheless significant, noise and air quality implications of highway expansions.  Second, the decision as to what projects to exempt from environmental review would be made by a commission of executive appointees who would be charged with picking and choosing, without legislative oversight.  As we are all painfully aware, “power corrupts and absolute power corrupts absolutely.”

Finally, the Governor’s initiatives need not be limited to highways.  If the development and/or expansion of airports are granted the same reprieve from environmental regulations as that currently envisioned for highway projects, on the pretext that it is necessary to ensure California’s financial integrity, the sky is literally the limit for environmental impacts around dozens of airports including Los Angeles International Airport, San Diego International Airport and San Francisco International Airport.

CEQA has successfully fought of such attacks in the past.  It is critical, however, that those persons and entities that will be impacted by the proposed suspension of environmental regulations, either now or in the future, contact the Governor’s office at (916) 445-2841 or by sending him an e-mail, and/or their State Legislator, to register their firm opposition to such an opportunistic, but ultimately ineffective solution to California’s budget woes.
 

Skipping Consultations Regarding Endangered Species Okay with Bush Administration

On Thursday, December 11, 2008, the Bush Administration issued final regulations that will allow federal agencies to skip having to consult with either the U.S. Fish and Wildlife Service or the National Marine Fisheries Services before making a determination that no harm will come to an endangered species.  This change will have an impact on projects at airports that use federal funds.

In his prepared statement announcing the final regulations, Interior Secretary, Dirk Kempthorne emphasized that the responsibility to initiate consultation will still be with the federal agency undertaking the action.  The only difference, he stated, was when the federal agency determined that when:

  • an action is not anticipated to harass, harm, kill or otherwise “take” a listed species; and
  • The action has no effect what-so-ever on a listed species or critical habitat, such as replacing a culvert when the species is not present; or
  • The action is completely and totally beneficial, such as expanding the no hiking zone from 15 yards to 30 yards around nesting sites; or
  • The effects of the action are so insignificant that they can’t be detected or measured, such as when a federal project generates noise at such low levels that scientists can’t accurately detect its harm to a species; or
  • The effects of the action are the result of global processes that are too broad to measure.

This, however, is a marked change from the current rule where federal agencies first determine if their proposed action may affect a listed species or critical habitat.  If so, they must then proceed with either formal or informal consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service.

How will this affect airport planning?  Since compliance with the Endangered Species Act is part of NEPA requirements, all Environmental Impact Statements are required to state whether the FAA has consulted with the Fish and Wildlife Service or the National Marine Fisheries Service and indicate their response.  Under the new rule, the FAA can make its own determination that the proposed action (i.e., runway expansion, terminal project, etc.) will not harm any endangered species.  The question remains, however, whether federal agencies, like the FAA, have the resources to make such a determination.  Moreover, because the FAA is not an expert in the field of endangered species, it will, most likely, provide another avenue of attack for opponents to a particular proposed project.

An Interior Department spokesman, Chris Paolino, said that the regulations were an "attempt to refocus the resouces, time and manpower of both the U.S. Fish and Wildlife Service and National Marine Fisheries to focus on those projects that have a measurable, adverse impact on endangered species."

Needless to say, environmental groups were not too pleased that in the last hours of the Bush Administration

Andrew Wetzler, Director of the Natural Resources Defense Council's Endangered Species Program, commented on the NRDC's website:

This administration has rejected anything with a whiff of science -- so before sulking out the back door, they are going after rules that require Fish and Wildlife Service scientists to prevent harm to our last wild animals and places. Despite today’s feel-good statements, we remain convinced that these changes are illegal. We will look at the final language when it is published tomorrow, but I think we will see them in court.
Likewise, the National Wildlife Federation did not have anything good to say about the new regulations.  John Kostyack, Executive Director of Wildlife and Global Warming for the National Wildlife Federation, said:
This action eviscerates key protections that have helped safeguard and recover endangered fish, wildlife and plants for the past 35 years.
Our government is founded in a system of checks, balances and accountability.  President Bush has violated each of these principles by finalizing this rule in his waning days of power.
Word from the President-Elect's camp is that they will rok to reverse the changes, but since the regulations go into effect before the President-Elect takes office, his administration will have to reopen the rulemaking process.

FAA's 2009-2013 Flight Plan Includes 5 More Airports Due for an Airspace Redesign

On October 28, 2008, Acting FAA Administrator Bobby Sturgell rolled out the FAA's 2009-20013 "Flight Plan" at a speech in Oklahoma City, Oklahoma.  The "Flight Plan," in which FAA sets goals for itself, is "the strategic plan for the agency, the plan to help [the agency] prepare for the future."  In the past year, for example, as Acting Administrator Sturgell pointed out, the FAA "reached 25 out of 29 goals," with the remaining goals "probably" being achieved by November 20, 2008.  In other words, the goals set in the Flight Plan are projects and issues that the FAA has good reason to believe it can achieve over the stated planning horizon.

Priority one, according to the Flight Plan, is "dealing with congestion and delays . . . both in the air and on the ground.  Toward that end, the FAA plans to "identify and address capacity-constrained airports and metropolitan areas."  The FAA has identified Atlanta, Chicago Midway, Fort Lauderdale, John Wayne Orange County (CA), Las Vegas, Long Beach, Oakland, Phoenix, San Diego and San Francisco as being "capacity constrained" and provided these airports with a "toolbox" which includes "technological, procedural, and infrastructure improvements to be considered for implementation at airports based on additional capacity needs in the future."

In addition, in FY 2009, the FAA plans to "increase aviation capacity and reduce congestion in the 7 metro areas and corridors that most affect total system delay."  Those areas are:  San Francisco, Los Angeles, Las Vegas, Chicago, Charlotte, New York and Philadelphia.  Apart from continuing the controversial airspace redesign for the New York/New Jersey/Philadelphia Metropolitan area, and the slot auctions for JFK, Newark and LaGuardia, which all spawned lawsuits, the FAA plans on moving forward with the redesign of the airspace for the remaining 7 metro areas.

 

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California Air Resources Board Seeks Comments on Its Climate Change Proposed Scoping Plan

The Global Warming Solutions Act of 2006 (AB 32) designated the California Air Resources Board (CARB) as the lead agency for  its implementation.  The next milestone for CARB is developing a Scoping Plan outlining California's strategy to achieve the 2020 greenhouse gas (GHG) emissions limit.  So on October 15, 2008, CARB published its Climate Change Proposed Scoping Plan:  A Framework for Change.  The Scoping Plan contains the main strategies California will use to reduce the greenhouse gases that cause climate change. Since this plan has the potential to affect just about every sector of California, CARB is seeking the public's comments.  Comments on the Scoping Plan are due no later than December 10, 2008.  The Scoping Plan will be presented for approval at the CARB’s December 11, 2008, meeting

The Scoping Plan proposes a comprehensive set of actions designed to reduce overall greenhouse gas emissions in California.  Among the solutions it proposes are "improving our state's infrastructure, transitioning to cleaner and more secure sources of energy, and adopting 21st century land use planning and development practices."  Moreover, CARB lists as the key elements of its recommendations:

  • Establishing targets for transportation-related greenhouse gas emissions for regions throughout California, and pursuing policies and incentives to achieve those targets;
  • Developing a California cap-and-trade program that links with other Western Climate Initiative partner programs to create a regional market system; including California's clean car standards, goods and movement measures, and the Low Carbon Fuel Standard;
  • Adopting and implementing measures pursuant to existing State laws and policies,
  • Expanding and strengthening existing energy efficiency programs as well as building and appliance standards;
  • Achieving a statewide renewables energy mix of 33 percent; and
  • Creating targeted fees, including a public goods charge on water use, fees on high global warming potential gases, and a fee to fund the administrative costs of the State's long term commitment to AB 32 implementation.

Noticeably absent from the Scoping Plan is any mention of airports or aircraft.  This is due to the CARB's perceived inability  to do much about airports and aircraft due to FAA's pre-empting the field.  Indeed, about the only mention of airports and aircraft in the AB 32 materials comes in Appendix C of the Draft Scoping Plan:

Emissions from the fuel used in planes is an important consideration, however, the State does not have regulatory authority over aviation. ARB has not identified aviation specific measures; however, successful deployment of High Speed Rail could divert some air passengers to rail.

Draft Proposed Scoping Plan, Appendix C, p. C-21.  Nor does the Scoping Plan take the emissions of aircraft have while they are in air.

As a final note, there will be a public hearing on the Scoping Plan on November 20, 2008, in Sacramento, to consider the AB 32 Scoping Plan to reduce Greenhouse Gas emissions in California.  Click here for the Agenda.