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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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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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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