Howard Rich's Blog

May 13, 2009

Memo exposes global warming dispute

From the Washington Times

A memo released Tuesday shows an agency within the Obama administration objected to a landmark Environmental Protection Agency ruling on global warming, arguing that it was not based on sound science and could prove costly to businesses.

The dispute concerns the EPA’s so-called “endangerment finding,” in which the agency has tentatively found carbon dioxide is dangerous enough as a greenhouse gas to warrant regulation under the Clean Air Act – a ruling that could force federal action to address climate change even if Congress fails to act.

Critics, including some within the administration, argue that the Clean Air Act is not an appropriate vehicle to deal with climate change and say the finding sets the stage for harmful regulations on businesses and industry.

Republicans seized upon the memo as evidence that President Obama has broken his pledge to follow science rather than politics in making policy. But an administration official said the objection came from a single office that is headed by a Bush administration holdover.

Sen. John Barrasso, Wyoming Republican, revealed the memo at a Senate hearing where he waving a copy at EPA Administrator Lisa P. Jackson. “It’s here, nine pages. This is a smoking gun,” he said.

The memo has comments from several federal agencies that reviewed the EPA’s decision. It includes a complaint that the EPA’s finding “rests heavily on the precautionary principle, but the amount of acknowledged lack of understanding about basic facts surrounding [greenhouse gases] seem to stretch the precautionary principle to providing for regulation in the face of unprecedented uncertainty.”

The White House defended the science EPA used and denied there was a policy split within the administration. The comments were compiled by the White House Office of Management and Budget as part of a standard interagency review process, and OMB Director Peter R. Orszag said that OMB agreed with EPA’s initial finding.

“The bottom line is that OMB would have not concluded [the] review, which allows the finding to move forward, if we had concerns about whether EPA’s finding was consistent with either the law or the underlying science,” he wrote.

An administration official, speaking on the condition of anonymity to discuss the internal review process, said the comments challenging the science came from a single office, the Small Business Administration’s Office of Advocacy.

The office, an independent arm of the administration whose current chief was named by President George W. Bush, is charged with looking out for small-business interests as the federal government writes rules and regulations.

Still, Republicans said the memo exposed a rift inside the administration.

“The disclosure of this OMB memo suggests that a political decision was made to put special interests ahead of middle-class families and small businesses struggling in this recession,” said House Minority Leader John A. Boehner, Ohio Republican.

“It is unacceptable that this critical information was withheld and the regulatory process was abused in this fashion.”

At the hearing, before the Senate Environment and Public Works Committee, Mrs. Jackson disputed Mr. Barrasso’s characterizations, saying the EPA finding had been drafted under the Bush administration but held under lock and key until Mr. Obama took the White House. She said she reviewed and approved the finding.

She also said the finding doesn’t guarantee carbon dioxide would be capped under the Clean Air Act.

“It does not mean regulation,” Mrs. Jackson said. “I have said over and over, as has the president, that we do understand that there are costs to the economy of addressing global warming emissions and the best way to address them is through a gradual move to a market-based program like cap-and-trade.”

The cap-and-trade proposal would set an overall ceiling for greenhouse-gas emissions and allow businesses and other polluters to trade emission permits under the cap.

An EPA spokeswoman said Mrs. Jackson would consider the dissenting views from within the administration when drafting a final “endangerment finding.”

“As we do with any proposed rule, EPA takes these interagency comments under advisement,” said EPA spokeswoman Adora Andy.

In making the initial finding, EPA acted in accordance with a court order, which said the agency must determine whether carbon dioxide was dangerous enough to deserve regulation under the Clean Air Act.

The Obama administration has walked a fine line with the finding – playing down its potential for regulating carbon dioxide while supporters have heralded it as a backup plan should climate legislation fail. Mr. Obama’s team has consistently said EPA regulations would be a dull tool and prefers that Congress come up with a solution.

House lawmakers are weighing a plan to address climate change through the “cap-and-trade” system, but the proposal is facing early opposition in a House committee.

The memo was first reported by Dow Jones Newswire, and the intra-administration dispute could give opponents ammunition for a legal challenge to EPA’s finding.

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April 10, 2009

Climate bill could trigger lawsuit landslide

Politicians are trying to pull a crafty move by allowing people to sue companies for “damages” caused by emissions. Only thing would come of this if it passed, would be congress would then have legal obligations for more regulation. This is ridiculous and should not be allowed.

From the Washington Times:

Self-proclaimed victims of global warming or those who “expect to suffer” from it – from beachfront property owners to asthmatics – for the first time would be able to sue the federal government or private businesses over greenhouse gas emissions under a little-noticed provision slipped into the House climate bill.

Environmentalists say the measure was narrowly crafted to give citizens the unusual standing to sue the U.S. government as a way to force action on curbing emissions. But the U.S. Chamber of Commerce sees a new cottage industry for lawyers.

“You could be spawning lawsuits at almost any place [climate-change modeling] computers place at harm’s risk,” said Bill Kovacs, energy lobbyist for the U.S. Chamber of Commerce.

The bill was written by House Energy and Commerce Committee Chairman Henry A. Waxman, California Democrat, and Rep. Edward J. Markey, Massachusetts Democrat. Both lawmakers declined repeated requests for comment.

The Waxman-Markey blueprint, including the lawsuit provision, has just been released, and the Senate is drafting its own energy bill. But Mr. Waxman has set an accelerated schedule for passing the bill through his committee by Memorial Day and President Obama lists an energy overhaul bill as one of his top priorities.

David Doniger, senior counsel with the Natural Resources Defense Council, said the measure is similar to a landmark environmental ruling from the Supreme Court allowing states to sue the federal government for damages from climate change – largely on the basis of lost shorelines from rising sea levels – but did not set grounds for people to file lawsuits.

“The [Chamber of Commerce] is trying to say the global-warming legislation is scarier than global warming itself,” Mr. Doniger said. “It’s part of a menu of scare tactics they are compiling.”

Under the House bill, if a judge rules against the government, new rules would have to be drafted to alleviate the problems associated with climate change. If a judge rules against a company, the company would have to purchase additional “carbon emission allowances” through a cap-and-trade program that is to be created by Congress.

The measure sets grounds for anyone “who has suffered, or reasonably expects to suffer, a harm attributable, in whole or in part,” to government inaction to file a “citizen suit.” The term “harm” is broadly defined as “any effect of air pollution (including climate change), currently occurring or at risk of occurring.”

It would allow citizens to seek up to $75,000 in damages from the government each year, but would cap the total amount paid out each year at $1.5 million, committee staff said. It is unclear whether the provision would actually cap damages at $75,000 per person, because the U.S. law referenced does not establish payouts by the government.

The $1.5 million cap reflects a compromise reached with House Republicans in a 2007 version of the measure introduced by Mr. Waxman, committee staff said. Mr. Waxman and Mr. Markey wrote the measure into a broader climate plan introduced last week, although it was left out of a bill summary that committee staff provided at the time.

Republican committee staff said the measure has the potential to muddle the judicial system.

“Perhaps a more accurate title of the bill would be ‘The Lawyer Full-Employment and As-Seen-on-TV Global Warming Act of 2009,’ ” said Larry Neal, deputy Republican staff director for the House committee.

Democratic staffers said the measure provides guidance to the courts on how to apply existing Clean Air Act provisions. Private citizens can sue the government based on harm caused by pollutants currently regulated under the Clean Air Act – including nitrogen oxide and sulfur oxide – but they lack standing to sue for damages resulting from climate change.

Regulating carbon dioxide has been a hard slog for environmentalists, and some energy analysts say that the Waxman-Markey bill and parallel efforts by the Obama administration constitute a multifaceted attempt to achieve the goal by regulation if legislative attempts fail.

The “citizen suit” would allow people to force government action on climate change, seemingly a redundancy in a bill that would achieve that goal if passed. But environmentalists have been cautious in their tack, arguing that many environmental protections on the books were not vigorously enforced under the Bush administration.

Environmental lawyers played down the significance of the provision.

The measure would not guarantee payouts from the government or successful lawsuits, Mr. Doniger said, but would set the bar for people seeking to force the government to act on climate change.

He likened the measure to tort laws regarding cigarette smoke or cancer-causing chemicals, in which the harmful effects are not seen for decades.

“If this pollution isn’t curbed, it isn’t just today or tomorrow you have problems, it’s also 20 to 30 years from now,” Mr. Doniger said.

Expansion of the Clean Air Act to allow “citizen suits” on climate change has been a goal among environmental groups and moderate to liberal Democrats for many years – although the measure has never succeeded.

But amending the Clean Air Act is “potentially a big gamble” because it opens other sections of the act to modification during the bill-drafting process, said a Democratic energy lobbyist, who spoke on the condition of anonymity because of ties to committee members.

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