In a show of the increasing influence of climate change concerns at the state level, the Kansas legislature failed yesterday to override Governor Kathleen Seblius’ veto of a bill that would have opened the door for expansion of Sunflower Electric Power Corp’s (“Sunflower”) coal-fired power plant in Holcomb, Kansas. Although the Kansas Senate easily approved the veto override by a vote of 32 to 7, the House fell four votes short.

Legislative leaders who supported the project told Sebelius last week to accept a compromise that would reduce the size of the project from 1,400 megawatts to 1,200 megawatts, or face a veto override. Sebelius, who had already vetoed the 1,400 megawatt power plant and proposed a single 660 megawatt facility, rejected the proposal, citing concerns over projected emissions of 11 million tons of carbon dioxide annually.

The showdown between Sebelius and the legislature resulted from a decision by Kansas Secretary of Health and Environment Rod Bremby last October to deny an air-quality permit for Sunflower on climate change grounds. Legislators argued that the decision to hold up the project would damage Kansas’ business climate and result in higher costs for electricity.

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Residents of a small Alaska village recently sued a group of large oil companies, electric utilities, and a coal company, alleging that the defendants’ greenhouse gas emissions are destroying the village.

The Inupiat village of Kivalina, home to roughly 400 people, is located “on the tip of a six-mile barrier reef located between the Chukchi Sea and the Kivalina and Wulik Rivers on the Northwest coast of Alaska, some seventy miles north of the Arctic Circle.” The suit contends that “[g]lobal warming is destroying Kivalina and the village thus must be relocated soon or be abandoned and cease to exist” as a result of the loss of arctic sea ice that protects the village from storms. The complaint estimates the cost of relocating the village to be from $95 million to $400 million.

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One year ago today, the Supreme Court issued a landmark decision in Massachusetts v. EPA, holding that “EPA has the statutory authority to regulate the emission of [greenhouse] gases from new motor vehicles.” The court ordered the agency to make a determination on whether greenhouse gases “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare” (quoting 42 U. S. C. §7521(a)(1)).

Since that decision, EPA has not issued its determination. As a result, Massachusetts - joined by a large group of states, cities, and environmental organizations - filed suit today against EPA in an attempt to force the agency to comply with the Supreme Court’s order.

The petition asks the Court of Appeals for the District of Columbia Circuit to issue a writ of mandamus “requiring EPA to issue within sixty days its determination on whether the air pollution to which greenhouse gas emissions from motor vehicles contribute ‘may reasonably be anticipated to endanger public health or welfare.” A writ of mandamus is “an extraordinary remedy reserved for extraordinary circumstances” but is argued to be appropriate here because the “agency’s unreasonable delay . . . signals the ‘breakdown of regulatory processes.’”

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Environmental groups have filed an administrative challenge to a state permit issued to Duke Energy Corporation for a proposed $2.4 billion expansion of its Cliffside, N.C., coal-fired power plant. The contested case petition, filed on March 27, alleges that the North Carolina Division of Air Quality’s (NCDAQ) permit violates state and federal clean air standards for a list of air pollutants, including carbon dioxide (CO2).

Southern Environmental Law Center (SELC), which brought the petition on behalf of a number of federal and regional environmental groups, argues that the Clean Air Act’s (CAA) Prevention of Significant Deterioration (PSD) provisions require NCDAQ to apply the Best Available Control Technology (BACT) for carbon dioxide. SELC grounds its argument in the premise that CO2 is “subject to regulation” under the CAA — a premise that is not accepted by the Environmental Protection Agency (EPA) and is currently being litigated before the EPA’s Environmental Appeals Board in the In re Deseret Power Electric Cooperative case.

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Last week, the National Highway Traffic Safety Administration (NHTSA) issued a Notice of Intent to Prepare an Environmental Impact Statement (EIS) for the Corporate Average Fuel Economy Standards (CAFE) for model years 2011 to 2015.

The new notice “initiates the NEPA scoping process to identify the environmental issues and reasonable alternatives to be examined in the EIS, and requests comments regarding those and others matters related to the scope of NHTSA’s NEPA analysis for the new standards.”

Specifically, “[t]he scoping process initiated by this notice seeks to determine ‘the range of actions, alternatives, and impacts to be considered’ in the EIS and to identify the most important issues for analysis involving the potential environmental impacts of NHTSA’s CAFE standards.”

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The DC Circuit Court held oral arguments yesterday in State of North Carolina v. EPA, (No. 05-1244), a case challenging the EPA’s Clean Air Interstate Rule (CAIR). The CAIR program modifies the Title IV Acid Rain Program for 28 Midwestern and eastern states, establishing a cap-and-trade program to achieve reductions in sulfur dioxide and nitrogen oxide emissions from power plants.

CAIR requires that states cut sulfur dioxide (SO₂) emissions by an amount greater than required under the acid rain program, which also uses a cap-and-trade system. A potential consequence of mandating deeper emissions cuts is that the emissions allowances could lose their value due to excess supply in the market. CAIR addresses this situation by requiring emitters to surrender allowances at an accelerated rate. For example, if a state chose to regulate only electric generating units (EGUs), the surrender ratio will initially be two Title IV credits per ton of SO₂ emissions. If a facility had a 10,000 ton Title IV allowance, the facility would then be authorized to emit only half that amount - 5,000 tons and would be required to surrender the other 5000 credit tons, thereby preserving the value of other allowances.

Petitioners representing several states and industry parties claimed that this portion of the CAIR program violated the Clean Air Act (CAA), and that EPA did not have authority to change the allocation and surrender procedures specified in Title IV. Petitioners argued that Section 404 of the CAA specifies the initial allowance allocations for individual power plants. The petitioners, led by South Carolina Electric and Gas Co., argued that because Congress was so specific in establishing the program, EPA had no authority to change the allocation and surrender program.

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Kansas Governor Kathleen Sebelius has vetoed legislation aimed at overturning her administration’s denial of an air quality permit for the $3.6 billion expansion of Sunflower Electric Power Corporation’s (”Sunflower”) Holcomb, Kansas, coal-fired power plant.

Kansas Department of Health and Environment (”DHE”) Rob Bremby denied the permit last October on grounds the new units would produce 11 million tons of carbon dioxide each year.

SB 327, which passed the Kansas Senate by a vote of 37-7 but failed to muster a veto-proof majority in the Kansas House of Representatives, would have allowed Sunflower to seek reconsideration of its permit denial while stripping DHE’s authority to deny an air quality permit if the standards imposed by the agency are stricter than those found in the federal Clean air Act.

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This post is the third installment in our ongoing coverage of Center for Biological Diversity v. National Highway Traffic Safety Administration.

Earlier this month, the Center for Biological Diversity (CBD) filed its response to National Highway Traffic Safety Administration (NHTSA’s) Petition for Rehearing en banc. NHTSA’s Petition for Rehearing focused on the 9th Circuit’s order that the agency prepare a complete Environmental Impact Statement (EIS) that accounts for the role that auto emissions play in global climate change; NHTSA argued that the circuit court lacks authority to order an EIS. CBD’s response argues that the 9th Circuit was well within its rights to order NHTSA to produce an EIS.

CBD argues that the courts have the authority to “both ‘set aside’ an unlawful finding of no significant impact and ‘compel’ an unlawfully withheld EIS.” So long as “substantial questions are raised as to whether a project” may have a significant impact on the environment, an agency must prepare an EIS. CBD argues that once this threshold is reached, the courts may compel the agency to produce the required EIS. CBD’s filing cites six cases within the 9th Circuit alone that have ordered a full or supplemental EIS, countering NHTSA’s argument that courts do not have this authority.

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We reported in January that three environmental groups had notified the Fish and Wildlife Service (FWS) of their intent to sue over the Service’s failure to act on a petition to list the polar bear as a threatened or endangered species. The original petition was filed in February 2005.

Under 16 U.S.C. § 1540(g)(2)(C), written notice must be given to the Secretary of the Interior at least 60 days before a citizen suit can be filed in federal district court. The 60 day period elapsed yesterday and the three groups — the Center for Biological Diversity, Greenpeace, and the Natural Resources Defense Council — filed suit to force FWS to act on the petition.

The Department of the Interior has indicated that it will respond to the suit “in a timely manner.”

The Center for Biological Diversity also recently sued the FWS to have ten species of penguins listed as a result of the effects of climate change. For many penguin species, including the emperor penguin, loss of habitat, caused by declines in Antarctic sea ice, poses a significant threat to survival.

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In our previous coverage of Center for Biological Diversity v. National Highway Traffic Safety Administration, Perry Rosen noted that one likely course of action was for NHTSA to petition for a rehearing en banc - before the full Ninth Circuit, rather than just the typical panel of three judges. NHTSA recently filed just such a petition before the Ninth Circuit.

In the original ruling, the judges found that the new CAFE (fuel economy) standards were arbitrary and capricious. In addition, the court held that the Environmental Assessment (EA) was inadequate, and ordered NHTSA to produce a full Environmental Impact Statement (EIS) that accounts for the effect of emissions on climate change. An EIS is required when an agency find that its proposed action will have a significant impact on the environment.

NHTSA’s petition focuses on the second aspect of the decision, and argues that the 9th Circuit does not have the authority to order a full EIS. Instead, NHTSA argues that it should be allowed, on remand, to address any deficiencies in the EA and potentially avoid the preparation of a full EIS.

NHTSA argues that administrative law “only allows a reviewing court to ‘hold unlawful and set aside’ agency action that if finds arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Citing a long string of Supreme Court cases, the agency writes that “when a reviewing court finds that an administrative agency has erred, the appropriate remedy is to remand the matter back to the agency for ‘further consideration.’” The court does not substitute its own judgment for that of the agency, but merely reviews the agency’s determinations.

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