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Sen. Murkowski says that she doesn’t want a “gun to the Senate’s head” and claims that choosing between Waxman-Markey or Kerry-Boxer bills and EPA regulation is a “false choice.”  While she acknowledges the science of climate change and notes the impacts in Alaska, the senator’s stated intent is to ensure that EPA regulations don’t come into place prior to Congress finishing its deliberations because she fears significant economic hardship from an EPA approach to the climate challenge.

The senator emphasizes that Congress must pass a bill to reduce greenhouse gas emissions — she’s on record as being in favor of passing legislation to reduce emissions.  Her position that the Senate needs to pass legislation based on sound policy that takes into account environmental integrity, economic impacts and job creation is absolutely appropriate.

What is lacking, however, from Sen. Murkowski’s foray into the fire, are a sense of urgency and a positive solution.  Urgency is a scientific and economic necessity.  Peer-reviewed science notes that the Intergovernmental Panel on Climate Change’s worst-case scenario forecasts are increasingly likely without immediate action, which is why so many are eager to see the EPA move forward.

The Senate is tied up in its predictably partisan politics all with an eye toward mid-term elections.  Meanwhile, EPA is following its mandate and the law, and is trying to urgently tackle the problem.  As logical as Sen. Murkowski may be in her desire to find a congressional solution to climate change, so is EPA Administrator Lisa Jackson in her intent to urgently solve a problem that economist Sir Nicholas Stern has called “the greatest market failure the world has ever seen.”

The senator from Alaska has made her point and has everyone’s attention.  But now is the moment for real leadership and putting forward a concise legislative option that places a science-based cap on greenhouse gas emissions.  Otherwise, Sen. Murkowski is open to critiques of just playing politics.

Washington

Published in The Hill (January 19, 2010).

India and China continue to oppose 'targets' for emissions reductions.  Indeed, the Chief Negotiator for the G-77 walked out amid developing countries frustrations.  At this point, one possibility openly discussed is a political agreement among most developed countries only.  The divide between developed and developing countries continues to center on funding, defined emissions reductions targets, and the transfer of technologies.  Unfortunately, even in closed door sessions, posturing dominates over any actual concessions.  Indeed, there was so little consensus that even the stream of competing drafts dwindled to a trickle.

The Conference had a frenetic atmosphere as an avalanche of people converged on the Bella Center.  Already, Conference organizers have started to consider new volume control measures as worries mount that the facility will reach capacity beginning early next week.  Enhanced security amidst expected protests and the arrival of world leaders have complicated the capacity issue.

1. Aggressive Emission Reduction Goals

Developed countries will need to agree upon on ambitious greenhouse gas (GHG) emission reduction targets.  The IPCC suggests that this implies a mid-term goal for 25-40 percent GHG cuts by 2020 based on a 1990 level baseline and 80 percent by 2050.  Collective action will need to be supplemented by individual national commitments such as those put forward by the United States and United Kingdom in recent days.  Likewise, developing countries will need to agree to taking GHG mitigation actions that are appropriate in their national development contexts ranging from shifting to low carbon power strategies to reducing rates of deforestation.  Some observers see a collective goal that recognizes the scientific view that the increase in global average temperature above pre-industrial levels should not exceed two degrees Celsius as a more politically feasible outcome than the target cuts noted above.

2. Climate Finance Commitments

Countries need to agree upon climate finance mechanisms that will provide “fast start” funds of approximately $10-$12 to developing countries from 2010 to 2012.  This is viewed as a down payment of good faith towards future actions by developing countries.  The architecture for longer-term, predictable funding for climate adaptation and mitigation – including forestry and technology support will also need to be put into place.  However, it is less feasible for specific dollar amounts, governance regimes and sources of funding to be agreed upon in Copenhagen with respect to longer-term climate finance.

3. Accountability for Commitments

Measurable, Reportable and Verifiable (MRV) national commitments and actions agreed at Copenhagen are a lynchpin of success.  If a global agreement will be more than rhetoric, there simply needs to be a standardized methodology to “trust but verify” with a view to equitable burden sharing in the transformation to a global low carbon economy.  Countries need to establish common international methodologies to track and report emissions and subsequent measures to reduce emissions.

4. Signals for a Global Carbon Market

Private capital needs to see signals that a process of linking nations in post-Kyoto Protocol market-mechanism efforts that reduce emissions will continue.  In order for private capital to continue the evolution of a liquid, cost-effective mitigation market begun under the Clean Development Mechanism and Emissions Trading systems, political signals of this approach must be provided in Copenhagen.  This will allow the evolution of so-called flexible mechanisms towards at scale reductions in the most cost-effective manner possible.

5. Political Agreement With a View to Legal Agreement

There is broad consensus that a political agreement is the likely outcome from Copenhagen but ultimately enforcement requires a legal agreement.  Towards this goal, it is anticipated the countries will politically commit to finalizing a more legally binding agreement in 2010.  In the US context, this approach allows the Obama Administration to sequence working collaboratively with the Senate on a final energy and climate legislative package prior to promising what cannot be delivered at the international level.

Today, EPA Administrator Lisa Jackson announced a finalized endangerment finding on GHG emissions pursuant to Section 202(a) of the Clean Air Act (CAA).  This endangerment finding includes two parts.  First, EPA found that elevated concentrations of carbon dioxide (CO₂), methane (CH₄), nitrous oxide (N₂O), hyrdofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulfur hexafluoride (SF₆) endanger both public health and the public welfare.  Additionally, EPA found that combined emissions of GHGs from new motor vehicle and new motor vehicle engines contribute to GHG air pollution, which endangers both public health and welfare. 

These findings do not themselves impose any requirements on industry or other entities.  However, this action is a prerequisite to finalizing the EPA’s proposed GHG emissions standards for light-duty vehicles, jointly proposed by EPA and the Department of Transportation’s National Highway Safety Administration on September 15, 2009.  This endangerment finding also serves as a prerequisite for a proposed EPA rule to regulate stationary sources that emit 25,000 tons per year or more of CO₂ or CO₂ equivalent under the Prevention of Significant Deterioration (PSD) program of the CAA.  EPA is expected to finalize both the tailpipe emission standards for light-duty trucks and the PSD regulations by March 2010. 

The timing is not coincidence, but rather part of a well-coordinated strategy to send international signals of US resolve.  The Obama Administration hopes that this finding will buoy efforts to reach a political agreement at U.N. negotiations irrespective of Senate inaction on reducing emissions.

Here are a few gems from their "Science" web page:

• "CO₂ is not a pollutant."  In support of this assertion, the group claims:  "As humans emit CO₂ when we breathe, it is illogical to assert that CO₂ is a direct health hazard." Nobody claims that CO₂ is a direct health hazard; rather it is the propensity of CO₂ and other greenhouse gases to absorb and emit infrared radiation -- the so-called greenhouse effect -- that is hazardous.
   
• "Eliminate CO₂ and human life ceases to exist."  This is of course true.  Plants take in CO₂ and respire oxygen, which is essential to human life.  That said, nobody in Congress is trying to "eliminate" CO₂.  Rather, the goal of Congressional action is to lower the atmospheric concentration of CO₂ and thereby reduce the heating of the planet caused by the greenhouse effect.  (Duh!)

And who is behind "CO₂ is Green"?  Leighton Steward.  No, Mr. Steward is not a meteorologist, nor climate scientist, nor is he even a long-time student of climate change.  He has simply decided that he understands climatology better than those who have made the subject their life's work.  According to a September 25, 2009 report in the Washington Post, Steward - a former oil industry executive - has joined forces with Corbin J. Robertson, Jr., a Houston-based owner of coal resources that lets other companies mine his property in exchange for royalties.  Robertson and Steward have formed two interest groups, "Plants Need CO₂" and "CO₂ is Green," with Robertson providing about $1 million in funding.

You will search in vain for actual science as references for the many astounding quotes that litter CO₂isgreen.com.  Mostly, you will find cross-references to the companion website for "PlantsNeedCO₂.com."  Although the internet is filled with similarly baseless opinions of climate deniers, few have the resources to broadcast their hokum on network television.  This stuff is going mainstream.  I wonder what George Will thought when he saw the ad.

Senator Evan Bayh (D-Indiana).  Indiana is among the highest energy consumption per capita States and is responsible for approximately 5 percent of US annual GHG emissions.  Almost all of Indiana’s electricity generation comes from coal.  As one of the nation’s top corn-producing States, Indiana has significant ethanol production potential, and the state has immense wind energy opportunities.  Energy and steel industries are among Mr. Bayh’s top campaign contributors and he is facing a tight re-election campaign in the fall of 2010.  The BP Products refinery in Whiting has the largest processing capacity of any refinery outside of the Gulf Coast region.  Senator Bayh is weighing these considerations deliberatively.  A suite of cost-containment provisions for regulated industries, clean energy incentives for emerging technologies and international competitiveness protections that have direct benefit to Indiana are considerations, as are political prospects in a conservative State.

Senator George Voinovich (R-Ohio).  Energy consumption in Ohio’s industrial sector ranks among the highest in the Nation.  Ohioans are still haunted by a 2003 transmission failure that led to the largest blackout in North American history, affecting over 50 million people.  Coal fuels about nine-tenths of net electricity generation in Ohio.  Senator Voinovich is set to retire in 2010.  On climate change, Voinovich has stated, “There is a lot of work to be done, but it’s still open…I think there is a possibility in getting something done that is meaningful.”  In the past few years, Voinovich has introduced and supports energy bills that focus on incentives for clean energy technology deployment both domestically and internationally including the "Incentives-Based Climate Policy Act," and the “21st Century Energy Technology Deployment Act.”  He is on record saying that there is “too much crap” in the House-passed “American Clean Energy Security Act” (Waxman-Markey), his main concern being the 2020 greenhouse reduction targets under the bill are too ambitious. 

Ohio’s current unemployment rate (11.1%) is higher than the national average (9.7%) as of July 2009.  There is significant angst in the State of losing jobs overseas due to issues such as lower labor and environmental standards.  Accordingly, one can anticipate Voinovich desiring price controls on the cost of carbon and protections against overseas industries that don’t take sectoral or economy-wide carbon cap.

Senator Arlen Specter (D-PA).  Pennsylvania ranks second in the Nation in nuclear power generating capacity, is a major coal production State and sells approximately 50 percent of its coal to other States.  Pennsylvania is also the leading petroleum refining State in the Northeast.  At an August meeting of Netroots Nation, Senator Specter hinted that he “expected” to vote for cloture on a climate bill and stated that he joined the Senate Environment & Public Works Committee after switching to the Democratic Party with a view to shaping the climate legislation and he “expects a strong bill.”  In the past Specter co-sponsored with Sen. Jeff Bingaman, the “Low-Carbon Economy Act,” which had weaker GHG emission targets than Waxman-Markey and established so-called “automatic off ramps” allowing the US to weaken its targets if key developing countries don’t adopt their own caps.

Therein lies the conundrum of getting a robust climate change bill through the Senate and signed into law.  The route to political success relies upon GHG targets that may not match the level of ambition required by science, a further expansion of allowances to regulated entities, and trade protectionist measures as a stick for developing country commitments.  Such provisions are a long way from the Obama Administration goals of science driving policy, 100 percent auction of allowances and emphasizing bilateral clean tech cooperation with China.  Yet, it appears to be the only pathway to move the issue forward in the Senate this political season. 

While this step is important, far more difficult ones lie ahead. This week’s action simply required the Obama Administration to push a draft rule that had languished under its predecessor’s watch.

Now comes the hard part. The Administration must sell its larger vision for legislating carbon regulation in the halls of Congress and in the court of public opinion.

And the last week hasn’t been so encouraging.

Late last week Senator Jeff Bingaman, who chairs the Energy and Natural Resources Committee, called Obama’s vision of a 100 percent auction model (where a regulated party must purchase all allowances required to cover its GHG emissions, as opposed to initially receiving some allowances free under grandfathering provisions) “unlikely.”

This week, investor Warren Buffet, an Obama economic advisor, reiterated his concerns about embracing a cap-and-trade system at all. And finally, carbon tax advocates have not yet surrendered. Rep. John Larson (D-CT) is said to be close to introducing carbon tax legislation. The House Ways & Means Committee Chairman, Rep. Charles Rangel (D-NY) is also expected to push for a carbon tax.

Cap-and-trade proponents should savor the coming of the national GHG registry. It may be the best news they have for a while.

Greenhouse gas reporting is a crucial step in setting a price on carbon emissions, since it would be very hard to implement a cap-and-trade system or even a carbon tax effectively without some transparency about how much carbon is being emitted from where. For the first time, large emitters across the economy will have to conduct greenhouse gas inventories and report them to the federal government.

The Bush administration missed a preliminary September deadline submitting rules, putting it in danger of missing a final deadline of this coming June. With the Obama administration, this rulemaking appears to be a priority and there’s reason to believe the agency can complete its work this spring in time to start collecting data in 2010.

According to a source quoted by InsideEPA.com (subscription required) the proposed rule would mandate reporting for any facility releasing 25,000 tons of CO₂e on an annual basis.

The impacts of an altered climate – coastal erosion and inundation, health effects, drought, and extreme weather events – are expected to be more severe in developing countries. The choice of means to provide climate adaptation assistance to developing countries is fraught with the greatest policy ramifications. Should aid be provided through technical expertise, direct grants, loans, or combinations of these?

As members of the community of nations, wealthier countries historically have had no problem stepping forward to help correct global disparities in economic development, public health, and human rights protection. But to be told that their greenhouse emissions have caused massive harms for which billions in reparations are now due causes many developed nations to question how to proceed. Yet, the debate over direct aid grants vs. adaptation loans has now taken on precisely this dimension. International reparations payments for aggression and injustice have a long and tangled history.

If adaptation assistance is provided to right past wrongs, then some may argue that a developed nation's generous adaptation assistance can be taken as an admission of wrongdoing, a basis for civil liability. The same facts, the same analyses, stand behind both the climate-justice rationale for legislative aid to counter climate impacts (S. 3036 SEC. 4801-4804) as underpin the several suits now making their way through the courts seeking damages for “climate torts.”

If loans are provided instead of direct grants, does this evade the difficulty? Perhaps, but the concept of loans to be paid off with interest does not sit well with advocates for adaptation and “climate resiliency” aid to the developing world. The UK has offered $1.56 billion to be incorporated in a World Bank adaptation fund, but the UK has indicated that the fund is for loans, not grants. Advocates say debt-stressed developing nations should not be loaned, but given, the aid that is owed for the damage greenhouse emissions have caused over time.

Also, advocates are questioning the pivotal role the World Bank group is angling to play in deciding where and how any funds are to be invested. They want a role in deciding how the pie will be sliced, not unlike stakeholders in the US debate over the revenues from cap-and-trade want a say in any federal revenues will be distributed.

Where does this issue stand in the US today? Because the US is not a Kyoto signatory and has not offered funds, the adaptation debate in the US is just beginning. Each of the concerns addressed above will figure into the US's legislative debate in the coming months. What is almost certain is that some of the huge revenues of the Lieberman-Warner bill's cap-and-trade provisions will be earmarked for adaptation assistance. Other legislative proposals are also in the wings. Watch this space.

With all the publicity aircraft greenhouse emissions are receiving, one might conclude that they rank right up there with electrical utilities, vehicle emissions, and other prominent categories in terms of greenhouse threats. In fact, US aircraft operations account for 10 - 12 percent of greenhouse emissions from the transportation sector and for only about three percent of total US greenhouse emissions, which is also about the total percentage contribution to greenhouse gases from aviation worldwide. The difficulty is, controlling aircraft carbon emissions is a particularly intractable problem, and the problem is going to become much worse over the next few years as demand for air travel and transport doubles or even triples by 2025. The issue is exacerbated by scientific uncertainty about just how much more potent at high altitudes aircraft emissions are in causing the greenhouse effect as compared to emissions on the Earth’s surface.

The airline industry has done a great deal already, however, to increase its efficiency and lower the rate of increase in greenhouse emissions per air mile traveled. The industry claims that improvements in operational efficiency over the past 30 years have reduced carbon dioxide emissions 70 percent in the course of improving fuel efficiency 110 percent. The most promising pathways at present to further reduce the carbon footprint of aviation involve improved air traffic control systems, on-ground aircraft operations management, lighter engines and more aerodynamically designed aircraft, and flight altitude and speed adjustments. Still, attempts to improve jet fuel composition and performance have received the lion’s share of attention in recent months.

Finding less climate-challenging fuels for today’s jet fleet is proving to be a particularly challenging and controversial topic. Some promising experiments in fueling aircraft reminds one of a trip to a botanical garden, to a marsh, or to the supermarket, or of the early days of flight at Kitty Hawk. Recent forays include biofuels derived from babassu nuts, coconut oil, algae, or the central American plant, jatropha (a relation of castor oil). A very light, albatross-like solar-powered aircraft is under development in Germany, while Boeing has actually flown – for twenty minutes at 60 miles an hour – a manned aircraft powered by hydrogen fuel cells and lithium battery-stored electricity. But the major battle over alternative aircraft fuel is taking place over fuel liquids derived from coal or oil (tar) sands.

Coal-to-liquids (CTL), whether for aircraft or for other consumption as a fuel, is hardly new. Germany pioneered the process in the Second World War, and for the past nine years South African Airways has flown its jets on a 50-50 mixture of CTL synthetic and ordinary commercial fuel. The US Air Force has completed a test program very much like the South African fuel mix, using 50 percent Fischer-Tropsch synthetic fuel and 50 percent commercial fuel. Even B-52s can safely burn the fuel.

The Air Force and members of the Senate and House from coal-producing states, not to mention proponents of tapping the vast reserves of oil sands in Canada, are pushing strongly for development and use of CTL aviation fuels. The difficulty is, among other things, that a lifecycle analysis conducted by the US EPA found that CTL fuel releases 118.5 percent more greenhouse gases than conventional fuel (EPA, 2007). Perhaps carbon capture and sequestration technology, were it to be developed, could be used to overcome this large carbon deficit? No, said EPA, even after going to the difficult and expensive effort of capturing and sequestering CTL carbon compounds, emissions would still be 3.7 percent greater than for conventional petroleum. The Defense Department has already asked MIT to study the lifecycle carbon profile of CTL production and use, and Senator Lautenberg intends to re-insert in the Federal Aviation Administration funding re-authorization bill making its way through Congress a provision requiring the National Academy of Sciences to organize a study committee to address the question. While these studies are pending it may be correct to say that the jury is still out on the climate implications of CTL and other alternative aviation fuels, but it is clear that widespread adoption of CTL and oil sands to liquids fuels would be accompanied by major environmental challenges.

The Air Force is particularly partial to CTL as a source of aviation fuel and is aggressively pursuing its development. However, a major study done by the Defense Science Board Task Force on DoD Energy Strategy at the request of the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics, titled “More Fight – Less Fuel,” has concluded that domestically produced synthetic fuel will not contribute to the DoD’s most critical fuel problem – delivering fuel to deployed forces. The Task Force, co-chaired by James Schlesinger and retired General Michael Cairns, wrote that full carbon life-cycle analysis should be performed and that synthetic fuels should have a carbon footprint less than conventional petroleum fuels before they are adopted.

This last remark may be directed at a DoD-commissioned legal analysis attempting to show that in the Energy Policy Act of 2005, Congress did not intend for the military services to be considered as “federal agencies.” Why? Because section 526 of the 2005 law bans federal agencies from purchasing any fuels that produce higher levels of greenhouse gases than conventional jet fuels. (This provision is kicking up sand in many quarters and may not survive the political pressure that is being brought to bear.)

The EPA plans to join with the FAA in considering regulation of aviation greenhouse emissions in the course of the climate “town hall” comment period that EPA has called for to gather thoughts about using the Clean Air Act to broadly regulate greenhouse gas emissions, a topic we have covered in an earlier blog. The European Union first tried to ignore aircraft greenhouse emissions in its first round of actions under its climate authority (the issue, is, as we said above, a very difficult one), but it is now considering requiring airlines to participate in the emissions trading system.

The debate over how the US will attempt to come to grips with the difficult issue of direct aircraft engine emissions of greenhouse gases is just getting started.

Less than a decade has passed since the accepted wisdom was that the US would enact a greenhouse gas control regime to implement the framework climate treaty and the Kyoto Protocol, which the Senate would have ratified after much debate. Yet today it appears that our national climate strategies are going off in unanticipated directions that would have astonished the climate pundits of ten years ago.

Last December, Congress enacted a fuel, vehicle mileage, and overall energy efficiency law that will clearly help lower carbon emissions. The Senate will vote on a comprehensive climate bill in June, if the sponsors have their way, but that bill is a far cry from implementing legislation for Kyoto. The states may soon have blanketed a large part of the nation with regional and state climate initiatives that will be so pervasive that they will set the bar for the key components of over-arching federal legislation – and preserve a major role for state and local governments. There is even talk of bilateral climate agreements with India and China, and also a totally new international approach that would target greenhouse gas emissions sector-by-sector across the economies of the developed nations.

Furthermore, while all this is taking place, it appears that the Environmental Protection Agency and the environmental community have discovered – with the help of the Supreme Court – that the US has had a greenhouse gas regulation law in place for decades, well before Kyoto. By ruling a year ago that greenhouse gases are “air pollutants” under the motor vehicle emissions control provision of the Clean Air Act, the Court made the entire Act a little pregnant with the potential for federal regulation of all manner of greenhouse gas sources – the thousands of sources controlled under state implementation plans to achieve federal ambient standards, new and modified stationary sources, emitters of air toxics, sources in clear-air areas of the country, and others regulated under the Act. The particular trigger for new motor vehicle emissions regulation is a statutory determination that greenhouse emissions may reasonably be found to endanger public health or welfare, but other Clean Air Act provisions contain the same or a similar trigger for greenhouse “air pollutants” as well.

The key Clean Air Act provisions involved were rather elegantly analyzed for a House subcommittee on April 10, 2008 by the EPA’s air program administrator Robert Meyers in 19 pages of testimony, which he prefaced by saying that a full explanation “could easily fill a text book.” The relevant sections, most of which are covered in the seven petitions states and private organizations have filed, are an alphabet soup of the Clean Air Act specialists favorite programs: NAAQS, SIPs, PSD BACT, Non-attainment RACT, NSPS, HAPS MACT, aircraft, ship, and locomotive emissions provisions, and the welter of road and non-road vehicle and equipment engine and fuel emissions requirements that the Act authorizes.

To plunge into the greenhouse ramifications of any one of these programs is to plunge deep. Our Ports and Harbors Practice, for example, is considering the myriad of greenhouse gas controls that may be relevant to shippers, port authorities, transportation networks, and others on, or on the way to or from, the nation’s ports and harbors.

The EPA has tried to put off the reckoning, but the Clean Air Act has been held to be applicable to greenhouse emissions. The question is, can we live with it – can we make it work as a climate statute? States and environmental groups appear at first to be saying yes, we can, but the EPA is skeptical and has initiated a national head-scratching over the issue. The groups are pressing for a court order for EPA to come clean and issue the endangerment finding, which the groups say they have conclusive evidence that the Agency has already made. The EPA has come to the brink of making the endangerment finding more than once, only to recoil from taking the first fateful step toward conscripting the Clean Air Act into the federal climate arsenal.

Recently, the Agency has contrived to prolong its agony. It announced that it would issue an advanced notice of proposed rule making this spring inviting the public to offer its comments on climate science (endangerment) and “the broader ramifications” to “many relevant sections of the Clean Air Act” of using it as the primary policy tool for controlling greenhouse emissions. These comments would then help the Agency issue a second proposed rule that would set forth the Agency’s views on how to comply with last year’s Court decision.

The environmental plaintiffs are pressing hard for a court order requiring EPA to make the endangerment finding. They argue that the Supreme Court’s decision leaves no room for the EPA to organize a national town hall meeting on the advantages and disadvantages of using the Clean Air Act to control greenhouse gases. They reason that the Court required the agency to make an endangerment finding or give cogent scientific reasons why it could not. No other paths lie open, they say. 

The Agency’s invitation for public comment seems designed to resurrect its view, rejected by the Court, that the Act would provide only an “inefficient, piecemeal approach” to controlling emissions and that a regulatory scheme that included “all significant sources and sinks” would be best. Perhaps. But an agency rule making is not the place for this legislative debate, one which Congress has already initiated and seems inclined to bring to a conclusion in a time frame that may turn out to be less protracted than EPA’s two-step rule-making process is likely to be.

In fairness to EPA, regulating greenhouse emissions through the Clean Air Act is likely to be a bit like opening Pandora’s Box to find a Trojan Horse inside. The statute may reach greenhouse “air pollutants,” but just barely, and its extensive implementing provisions were not designed with climate protection in the front of the congressional mind. The Agency appears to have concluded, we think correctly, that if it regulates motor vehicle greenhouse emissions as the states and environmental groups demand, they have to act favorably on petitions that the groups have also already filed to regulate the greenhouse emissions from a full Mother Hubbard’s cupboard of emitter bones and snacks already alluded to – airplanes, ocean vessels, off-road and recreational vehicles, sources in mining, agriculture, and  construction, outdoor power equipment, and the like. This may not be the systematic, finely tuned, and comprehensive solution the nation deserves to the climate challenge, but such is the logic of  the situation in which US climate policy is now mired. 

It may well be that the states and environmental plaintiffs are forcing the issue on the Clean Air Act, not actually expecting or even wanting to remake it as a climate protection statute. Their purpose may be to force Congress to reach the same conclusion EPA has reached and thus pressure Congress into enacting a comprehensive climate law before the courts turn the Clean Air Act into a greenhouse gas nightmare. Chairman John Dingell appears to have fallen hard for the strategy, recently calling for federal cap-and-trade legislation to correct the “hideous mistake” the Supreme Court made. But in the meantime, the EPA is obliged to try to reconcile existing law with demands for piecemeal greenhouse regulation under the welter of Clean Air Act provisions that various groups have lined up like dominoes, ready to ask the courts to tip over.

EPA’s strategy has been dismissed by state and environmental groups as one of delay until the Administration comes to an end January 20, 2009. Listening to the skillful but beleaguered EPA Administrator at press conferences on the President’s program lends some support to this view. But Administrator Johnson does make a point that while the Clean Air Act Endangerment Stew is simmering, Congress has enacted – in important part with Administration endorsement – a law that actually may lower vehicle and other carbon emissions below the steep upward trajectory they were on only a couple of years ago. The Energy Independence and Security Act (EISA) of 2007 specifies a national mandatory fuel economy standard, a “CAFE standard,”  of 35 miles per gallon by 2020, which should, the White House says, increase vehicle efficiency by 40 percent. The new law also hikes the renewable fuels mandate passed in 2005 to 36 billion gallons by the year 2022 (although plenty of pundits have begun to point out the climate and air quality downside of corn ethanol.)  The new Act includes a lighting efficiency requirement for phasing out incandescent bulbs by 2014 and lighting efficiency improvements of up to 70 percent by 2020. There are also significant appliance and federal operations energy efficiency requirements in the legislation.

Based on the President’s “20 in 10” program set out in his 2007 State of the Union message (20 percent reduction in gasoline use by 2010), the Administration’s other energy savings and “green” source programs, and the EISA, the EPA has argued, somewhat logically, that all these measures are more effective than – or at the least the functional equivalent of – the command-and-control regulations that may in time be served up from the Clean Air Endangerment Stew. In fact, EPA has suggested in the past that these steps comply legally with the Supreme Court’s decision in Massachusetts v. EPA. This is what the national town hall advanced notice of proposed rule making is all about. It is also the current version of the rule making that EPA once wanted to launch, i.e., a multi-departmental rule that would involve several statutes (including the Clean Air Act) and implement the President’s 20-in-10 agenda.

More fundamentally, the Clean Air Endangerment Stew has now locked the courts, the EPA, and Congress in a struggle over how tripartite constitutional government should approach climate policy, a classic separation of powers issue that only lacks the states to make this a battle over federalism as well. As we move forward on climate in Congress, it might be wise to heed the admonition of Chancellor Bismarck. “Do not ask how legislation and sausages are made.”

Most recent climate-oriented discussions of water supply and quality have focused on the potential for altered precipitation, stream flows, groundwater recharge, and other impacts of regional climate change. These impacts are more likely than not to be severe in some locales, and thought is being given to the development of new infrastructure to address these changes (see related item on climate adaptation). But in addition to these obvious impacts on water supply and quality, it is now apparent that "non-trivial" greenhouse gas emissions are associated with the treatment of drinking water and sewage.

Nitrogen oxide and methane emissions from drinking water and wastewater facilities almost certainly will be regulated under federal climate legislation. These facilities, which are most often publicly owned, are a perhaps unexpected addition to the list of economic sectors economically impacted by climate legislation, although our climate practice has failed to identify a single sector that is not affected in one way or another, including banking, insurance, and entertainment. Thus it is not too early for states, municipalities, local water districts, and the companies that work for them in drinking water and sewage treatment businesses to consider what their obligations may be under pending climate legislation. 

As a target of climate regulation, water and sewage treatment facility operators need, beginning now, to develop their strategies to address the advantages and disadvantages of early action, cap-and-trade, legislatively allocated emissions rights, reverse auction benefits, and the like. Complaining of "unfunded mandates" imposed on state and local governments due to federal requirements may achieve some traction; however, much more can be achieved by thoughtful attention to the upside as well as the downside of the legislative debate over GHG control legislation.

Consider for a moment what a proactive water supplier or sewage treatment operator might achieve by up-front, prompt investment in infrastructure to reduce GHG emissions for the express purpose of generating marketable GHG reduction credits. The economics are critical, but it might be possible for the operator to sell these emissions rights into the voluntary emissions reductions (VER) market that exists in the U.S. today. It could then go on, importantly, to use the reductions later in any legal cap-and-trade scheme. Proceeds could be used to partially offset capital  investment. The reputational gain with the public of undertaking such a program right now should also be considered.

A water supplier or sewage treatment operator would need to create the program expressly for the GHG reduction purpose, to avoid the problem of "additionality," i.e., the infrastructure investment would not have been made anyway for some other purpose so that the GHG reductions would have happened as a byproduct of some other objective.

We mentioned the economics of such a plan. Trifling returns on huge investment would scuttle the project. But keep in mind that the global warming potential (GWP) of methane and nitrogen oxides are much higher than that for carbon dioxide, the runaway GHG of usual interest.  Methane is already captured and burned at some water utilities, but it still is a GHG of some interest  because there is so much of it, and because its GWP is 56 to 72  times that of CO₂ in a twenty year time horizon (the factor varies depending on what residence period, conditions, and source one cites). Nitrous oxide's GWP for twenty years is 310 times that for CO₂, again subject to the caveat. (To refine the GWP that would apply requires some technical work, but the rough-and-ready conclusion is that whatever VER price carbon dioxide would command, methane and NOX VER prices would be a high multiple.)

Also keep in mind that unlike some GHG credit generation efforts, culinary water and sewage treatment facilities would keep on producing credits year after year. Production of VERs would keep pace with the quantity of drinking and waste water treated. By contrast, biomass VER generation, e.g., planting trees, only gives a one-time collection of VERs, although if the trees are sustainably harvested, some additional credits might accumulate for the wood used in building and furniture that sequestered the carbon semi-permanently.

Water managers have their hands full with tight budgets, other federal mandates, and, in some areas, drought, destructive invasive species like quagga mussels, endangered species protection, new contaminants like pharmaceuticals and disinfection byproducts (all benefits that also create risks, and the usual metals and minerals contamination). But the climate threat must be faced down by water and sewage utilities, not only doing their part, but finding opportunities to do so in the most beneficial and cost-effective manner. 

Economists sometimes bear the brunt of criticism for pointing out what the rest of us don't like to hear. They seem determined to ruin the party, by pointing out that costs accompany benefits and that there is no free ride in the economy. Theirs, it has been said, is the dismal science, and it was for good reason that Malthus said of his own work that it had a “melancholy hue.”

For over a half-century, the Washington-based economics think tank Resources for the Future has tried to overcome some of the melancholy aspects of federal policy-making by proposing realistic, more efficient solutions to the economic burdens that environmental regulation imposes. Economists at RfF helped pioneer the emissions trading schemes that are now enshrined in the Clean Air Act's sulfur and nitrogen oxide schemes that are the models for the cap-and-trade provisions included in current climate bills. Now, RfF's realistic economists are turning to another aspect of the changing climate – the likelihood that national and global greenhouse gas emissions (GHG) reductions will not be enough in time to keep regional climate from changing significantly.

A new two-year RfF project, “Adapting to Climate Change,” has as its purpose developing an array of on-the-ground measures to allow our institutions to mitigate the effects of climate change, when and if it occurs. True to the tradition of RfF to seek effective and efficient solutions, the project looks to draw upon the natural sciences and engineering communities to identify climate impacts and the strategies we can employ to mitigate the severity of those impacts.

The effort will look systematically at freshwater resources, coastal and marine ecosystems, public health, agriculture, public infrastructure and land use, and terrestrial ecosystems and biodiversity. The World Health Organization, for example, drew attention to the severe potential health impacts of climate change on the occasion of World Health Day, April 7^th. With limited resources to meet the challenge, the project will try to establish principles to inform the choice among options, a means of ranking the threats and solutions, selection of the appropriate levels of governmental response, and means of financing adaptation measures that are sure to be quite expensive. The final product of the project may be a “Climate Adaptation Response Policy” that can help guide the nation's efforts when and if climate adaptation becomes a necessary part of the national response.

The project is guided by a broadly-selected interdisciplinary Steering Committee. Its members include McKenna's Fred Anderson, who has a long relationship with RfF in a number of areas.

Malthus’ view had a melancholy hue, but fortunately his speculations about human birth rates and population outrunning available resources and causing a dire overload of the earth's ability to cope were, to put it in the most generous light, premature. Perhaps predications of catastrophic climate change will also prove unfounded, either because nations manage to control GHG releases in time, or the science of climate change proves to be more forgiving than currently anticipated. But RfF deserves to be commended for taking one of the few meaningful steps to address the likelihood of significant impacts from global warming trend and to encourage clear-headed thinking about what can be done to adjust to the changes in weather pattern and severity, freshwater availability, irrigated agriculture, and the many other sectors likely to experience major change if the climate threat materializes.