Recent industry legal action to prevent the regulation of greenhouse gas (GHG) emissions is an eye-opener suggesting a slash and burn strategy that threatens to undo years of successful regulation of air pollution under the Clean Air Act.  Various industry trade groups including the American Chemistry Council, National Association of Manufacturers and American Petroleum Institute are waging a full scale war to prevent regulation of GHG emissions and recently initiated a coordinated, broad and covert legal attack (with no press or public outreach) on EPA’s permitting authority.

On July 6, the coalition of industry groups filed 12 similar legal petitions challenging not only EPA’s authority to regulate GHGs, but also the fundamental underpinnings of EPA’s 30 year old permitting program for large emitting facilities.  These appeals present a clear and unequivocal message to EPA and the public: try to impose reductions in GHG emissions and we will attack the core of the greenhouse gas regulations adopted in response to the Supreme Court’s decision in MA v. EPA and EPA’s ability to regulate large emitters through its preconstruction (PSD) permitting program in the first instance.   With a key message like that—tone deaf to public awareness and concern about climate change—no wonder the industry trade group petitioners did not seek publicity.

Recent statements from Senator Murkowski suggest that she and her allied colleagues have been briefed and support this strategy.  According to Politico.com,

Key coal-state Democrats and nearly all Republicans are also unified in their bid to slow down the EPA via legislation – and they’re determined to force a series of votes on the issue before the next big suite of rules start kicking in next January.

“You attack it at all fronts,” Sen. Lisa Murkowski (R-Alaska), a leading advocate for stopping the EPA, told POLITICO. “You go the judicial route. You go the legislative route. I think this is important to make sure we are looking at all avenues.”

CLF is intervening (co-represented by attorneys from the Clean Air Task Force) along with other environmental groups in these recent challenges as well as several prior challenges to EPA’s authority to regulate GHGs. The vehemence of these positions, and the obvious coordination among a broad cross section of industries to prevent regulation of GHGs, unfortunately suggest that US policy on climate change will not be advanced through bottom up, traditional legislative initiatives in Congress.

As Bill McKibben asserted in Tomdispatch.com,

If we’re going to get any of this done, we’re going to need a movement, the one thing we haven’t had. For 20 years environmentalists have operated on the notion that we’d get action if we simply had scientists explain to politicians and CEOs that our current ways were ending the Holocene, the current geological epoch. That turns out, quite conclusively, not to work. We need to be able to explain that their current ways will end something they actually care about, i.e. their careers. And since we’ll never have the cash to compete with Exxon, we better work in the currencies we can muster: bodies, spirit, passion.

The time has come to knock the halo off of the heads of the obstacles to progress and quality of life.  While the old way of making power, combusting decomposed carbon–based life forms (i.e., fossil fuels) contributed to prosperity and improvement to quality of life through 20^th century industrialization; we are facing a much different earth and atmosphere.  Unchecked burning of fossil fuels and emissions of GHGs are detracting from our quality of life and will continue to do so for decades after they are emitted.   The coal-fired power plant near you is not your friend; its day to day activities are undercutting your health, environment, economy and well-being for no good reason except for its tenacity in resisting beneficial change.

Big announcement yesterday:

In an ongoing effort to protect the environment and the public from the hazards of dirty coal-fired power plants, Conservation Law Foundation (CLF) today filed a federal suit against Dominion Energy of New England for repeatedly exceeding smokestack emissions limits at its Salem Harbor Station facility in Salem, Massachusetts.  The suit holds Dominion Energy accountable for willful and ongoing violations of the federal Clean Air Act’s “opacity” requirements. The Clean Air Act sets limits on opacity – a measure of the density of smokestack emissions – to minimize the amount of soot that is released into the air.  Soot, which contains harmful chemicals, metals and ash, has been linked to severe health and environmental problems.

The suit would hold Dominion responsible for paying millions of dollars in penalties retroactively for violations of the smokestack emissions limits. The violations – 317 in a five year period – are documented in Dominion’s own quarterly reports of mandatory monitoring at the Salem Harbor Station power plant.

“Abiding by the Clean Air Act is not optional,” said Shanna Cleveland, CLF staff attorney. “According to its own reports, Salem Harbor Station is in continual violation of what the law has deemed necessary to safeguard public health. This casual disregard for the law and the people impacted by Dominion’s negligence must not go on unchecked.”

Recent studies have shown that even short-term exposure to soot has been linked to higher rates of hospitalization for heart and respiratory problems. Children and the elderly are the most vulnerable, experiencing health problems ranging from decreased lung function to premature death.

Martha Dansdill, executive director of the public health advocacy group HealthLink and a co-plaintiff in the suit, said, “Salem Harbor Station must not be allowed to continue to pollute with impunity. It is clear that Dominion is not operating in the best interest of the people who live nearby and must breathe in air dirtied by this particulate-laden, toxic plume. Dominion cannot continue its lax management at Salem Harbor Station which risks our health.”

For two decades, CLF, along with residents of Salem and neighboring communities, has fought to force Dominion, and before them the prior owners of the plant, to clean up or shut down Salem Harbor Station. The plant has a long history of violations related to its coal-burning operations, repeatedly exceeding legal limits on the discharge of known pollutants including, over time, mercury, coal ash and now, soot.

The Conservation Law Foundation (www.clf.org) works to solve the most significant environmental challenges facing New England.  CLF’s advocates use law, economics and science to create innovative strategies to conserve natural resources, protect public health and promote vital communities in our region.  Founded, in 1966, CLF is a nonprofit, member-supported organization with offices in Maine, Massachusetts, New Hampshire, Rhode Island and Vermont.

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NOTE: Photos of Salem Harbor Station’s plume are available at: http://www.flickr.com/photos/conservationlawfoundation/sets/72157623295027376/

The press is picking up the story – including the Boston Globe, the Boston Business Journal and the Salem News.

U.S. Supreme Court Justice John Paul Stevens’ announcement that he will retire from the United States Supreme Court will bring some much needed attention to the larger issue of judicial nominations under the Obama Administration. 

These days, it is hard to  find a good word to say about the ultraconservative majority of the United States Supreme Court that Justice Stevens has tried, with limited success, to counterbalance.  That’s especially true for those who care about clean water (query: because clean water is fundamental to human survival and prosperity, shouldn’t we all care about clean water?)  In a few short years, the Roberts’ Court’s rulings have managed to seriously undermine and restrict one of America’s most important and successful laws–the Clean Water Act. 

For example, the NewYork Times recently reported on the chaos one of the Court’s rulings has created:

Thousands of the nation’s largest water polluters are outside the Clean Water Act’s reach because the Supreme Court has left uncertain which waterways are protected by that law, according to interviews with regulators.   As a result, some businesses are declaring that the law no longer applies to them.  And pollution rates are rising.

A majority of these Justices seems intent on handing down a death sentence to the Clean Water Act

In another example from 2009, Coeur Alaska v. Southeast Alaska Conservation Corps., the Court badly misinterpreted the CLEAN WATER ACT to reach the conclusion that a gold mining operation was entitled to a permit allowing it to discharge “210,000 gallons per day of mining waste into Lower Slate Lake, a 23-acre subalpine lake in Tongass National Forest,” even though the ” ‘tailings slurry’ ” would “contain concentrations of aluminum, copper, lead, and mercury” and would “kill all of the lake’s fish and nearly all of its other aquatic life.” 

President Obama has an important opportunity, actually I would argue it’s a responsibility, to rebalance the federal judiciary after years of ultraconservative domination and transformation.  (If you want to understand how the judiciary was so effectively radicalized by the right, read Jeffrey Toobin’s book “The Nine: Inside the Secret World of the Supreme Court.”).  The administration’s slow pace and cautious character in nominating people to fill court vacancies has been drawing criticism since November of last year as evidenced by this New York Times editorial.  Unfortunately, recent reporting in the L.A. Times indicates that President Obama still hasn’t made much progress due to a combination of White House inattention and timidity and Republican obstructionism in the Senate.

Terrible judicial decisions, like those discussed above, are turning this country’s essential environmental protection laws on their heads and at the same time putting the public health and environmental sustainability of this country at great risk.  America has some excellent environmental laws.  To be sure, we need to make them stronger to deal more effectively with newly-understood challenges like global climate chaos.  But when we have judges who are ideologically unwilling to affirm the pollution-controlling principles set forth in the laws, we have no hope of achieving the level of environmental protection essential for our continued national prosperity.  

If we want to ensure that our environmental laws work to keep us healthy and happy, we must urge President Obama to follow the lead of Franklin Delano Roosevelt in appointing judges like the late Supreme Court Justice William O. Douglas. 

Former Supreme Court Justice William O. Douglas understood the purpose of our environmental laws and the values that motivated their enactment by bi-partisan majorities of Congress

Justice Douglas truly understood the values that informed Congress’ adoption of such successful laws as the Clean Water Act, the Clean Air Act, the National Environmental Policy Act, and the Wilderness Act.  In his 1961 memoir “My Wilderness; East to Katahdin,” Douglas expounded on the value of rivers as public resources:

“Rivers are choice national assests reserved for all the people.  Industry that pours its refuse into rivers and the other commercial interests that use these water highways do not have monopoly rights.  People have broader interests than moneymaking. Recreation, health, and enjoyment of aesthetic values are part of man’s liberty.  Rivers play an important role in keeping this idea of liberty alive.”

For this and all the other ideas of liberty that are threatened by a judiciary dominated by radical conservatives, we must take action.  Call or email the White House and ask president Obama to find us the men and women who will follow in the tradition of Justice Douglas, and help the president fight to get them appointed to the federal courts.

The average American spends 2 ½ hours a day in the car. That’s about 73,000 hours in a lifetime—and tons of havoc wreaked on the environment. The transportation sector is the fastest growing single source of greenhouse gas (GHG) emissions in the country, which pollute the air and contribute to global warming.

Tackling this challenge means both reducing the amount of driving by smarter development and building transit and reducing the pollution pouring out of each car. Four out of five of the New England states did the next best thing—reduced the amount that cars would be allowed to pollute in the first place.

Yesterday, the Obama Administration adopted those regulations nationwide, unveiling the first-ever federal clean cars standard that will limit the maximum level of GHGs that can be emitted by new cars and trucks. The new laws are expected to cut GHG emissions from new cars by 34 percent between models made in 2009 and those made in 2016—a change equivalent to taking 21.4 million of today’s cars off the road.

This decision is a major victory for CLF. When it comes to clean cars, we’ve been here since the beginning. For two decades CLF has fought for stronger limits on tailpipe emissions from cars.

Early national tailpipe emissions and fuel efficiency standards adopted in the 1960s and 70s improved the fuel economy of the average American vehicle from 13 miles per gallon in 1975 to 22.6 mpg in 1987 and began the process of reducing pollution from cars. Over the course of the 1980’s and 1990’s CLF worked in New England to ensure that our states in partnership with California would lead the nation in a journey towards lower emissions cars.

That journey took a new and interesting path in 2002 when the state of California adopted the Pavley standards, also known as the California Clean Car Standards, which set stringent emission standards for global warming pollutants  from cars.

CLF participated in the California process, urging that the standards be written in a manner that would allow them to be implemented in our states.  Once the standards were in place CLF then, working with allies in many states, launched a largely successful effort to get the standards adopted in the New England states.

It wasn’t easy. The automakers fought back by suing in both California and in New England. CLF served as “local counsel” to a coalition of environmental groups as we all worked with the states to achieved victory in two landmark cases in Vermont and Rhode Island in 2008, forcing automakers to comply with state emissions regulations and in effect implementing the “clean cars program” in every New England state except New Hampshire.

The momentum from the legal victories in Vermont and Rhode Island, as well as the parallel victory our allies achieved in court in California, provided key fuel for the effort that led to the adoption of those state standards on the national level.

But the work’s not done. Today, CLF is focused on pushing hard for the adoption and implementation of a Northeast/Mid-Atlantic Low Carbon Fuel Standard (LCFS) to gradually lower the carbon content of fuel. In 2008, CLF successfully worked with the governors of 11 northeast and mid-Atlantic states as they formulated and signed an agreement in which they pledged to develop an LCFS in the future.

CLF also continues to aggressively protect the right of the states to develop a statewide LCFS, and deter opponents who could threaten the longevity of those standards. CLF served as a third party legal counsel on behalf of the state of California in federal litigation challenging the state’s precedent-setting LCFS. Lastly, CLF is forcefully engaging with congressional staff, senators and representatives to fend off federal legislation that would thwart the ability of the states to continue to lead the LCFS effort and the next generation of car standards.

President Obama’s adoption of the California standards nationwide, ending a longtime battle between states and automakers, demonstrated to us at CLF that what happens here in New England really can serve as a model for other states, and that states have the power to create momentum for sweeping change that can influence policy on the federal level. CLF is proud that New England continues to lead the nation in taking action to identify and solve environmental problems and will continue to fight to ensure the states have, and use, the tools to provide a powerful model for national action.

CLF in the News:

New Federal Car Emissions Standards Hailed in Maine, Anne Mostue, MPBN
White House Follows Vermont’s Lead on Clean Cars, Paul Burns, vtdigger.org