ClimateIntel.com

EPA released a draft document prepared by its National Center for Environmental Assessment entitled, “Climate Change Vulnerability Assessment: Four Case Studies of Water Utility Practices.” In a Federal Register Notice dated August 23, 2010, EPA announced a 45-day comment period, ending October 7, 2010. 

The draft vulnerability assessment describes approaches taken to review the vulnerability of water utilities to future climate change.  The assessment discusses different types of models, analyses and climate change information being developed by four major water utilities that are leaders in climate change adaption. The utilities selected for the case studies are-

• East Bay Municipal Utility District (Contra Costa and Alameda Counties, CA)
• New York City Department of Environmental Protection (New York, NY)
• Seattle Public Utilities (Seattle, WA)
• Spartanburg Water (Spartanburg, SC)

Each utility used different research techniques based on their location, population, and seasonal weather patterns and reached different outcomes.  Nevertheless, the study highlighted many similarities related to the utilities’ vulnerability to climate change. Key climate change risks included reduction in water supplies, change in timing of runoffs, changes in sea level and sewer overflows and increases in droughts.

Some of the more notable observations NCEA made from the four case studies include-

• Conducting the assessment increased climate change risk awareness, informed decisions within the utility and provided support for adaptive measures to be taken;
• Different models may be used to better understand not only the future of climate change, but also managing and understanding the dynamics of the utilities’ systems;
• Each utility expressed an interest in receiving further information on the future of climate change and requested that their needs be reflected in future;
• Notwithstanding the uncertainty of climate change, these utilities better understand the risks they may face in the future and their capabilities to prevent problems.

Click here read more about the findings and readings of these four case studies and to read how each individual utility conducted their research finding. Also for more information on how to submit a comment with EPA on this draft, click here.

Sometimes, even with a scorecard, “you can’t tell the players.”

The saga of the Obama administration’s moratorium on Gulf of Mexico drillings operations took another strange turn yesterday.  The U.S. Court of Appeals for the Fifth Circuit entered a “LIMITED REMAND” to the U.S. District Court for the Eastern District of Louisiana for the purpose of holding a hearing, “calling witnesses if necessary” and issuing findings of fact and conclusions of law with respect to three specific questions.  Hornbeck Offshore Services LLC v. Salazar, No. 10-30585, slip op. at 2-3 (5th Cir. August 16, 2010)(capitalization in original).  

The court reasoned that it did not have before it a sufficient record on which to determine whether the second moratorium rendered moot the injunction the District Court had entered with respect to the first moratorium.  The three issues on which it ordered the District Court to rule are:

• Whether Secretary Salazar has the authority to terminate the original moratorium filed on May 28^th due to original decisions held by both the District Court and the U.S. Court of Appeals under the Outer Continental Shelf Lands Act and the Administrative Procedures Act;
• Whether the evidence provided for the July 12^th revision of the moratorium was available or unavailable for Secretary Salazar at the time he originally filed the May 28^th moratorium; and
• Describing the differences, if any, between the May 28^th and the July 12^th moratorium memoranda, what circumstances may have changed since the two were made, and if the issuance of the July 12^th moratorium rendered the May 28^th moratorium moot.

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On August 16, 2010, the White House Council on Environmental Quality (CEQ) released a report on the National Environmental Policy Act (NEPA) procedures for environmental reviews conducted by the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEM), the successor agency to the Minerals Management Service (MMS).  BOEM is the bureau in the Department of the Interior that regulates oil and gas exploration and production activities in the outer continental shelf (OCS).  Predictably, CEQ is recommending that BOEM undertake more extensive NEPA reviews before issuing permits.

As previously discussed on Akin Gump’s climate change blog, ClimateIntel.com, the Obama administration’s initiatives to “reinvigorate” NEPA have resulted in unnecessary and redundant obstacles to project development.  In analyzing CEQ’s “Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions,” issued February 18, 2010, in which the Council expressed the view that NEPA requirements apply to GHGs and climate change impacts, ClimateIntel recommended that CEQ promulgate categorical exclusions and seek necessary amendments to the statute to minimize redundancies in the modern environmental regulatory system.

In the August 16 report , CEQ does precisely the opposite.  Under the guise of “promot[ing] more robust and transparent implementation of NEPA practices, procedures and policies,” the administration announced a ban on the use of “categorical exemptions” for deepwater drilling activities.  The administration also announced that shallow water drilling activities would be subject to enhanced environmental review.  While the current moratorium on deepwater drilling renders these actions “academic,” as the moratorium is lifted, the oil and gas industry will face increased costs and further delays in obtaining regulatory approvals.

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It is the final week for Congress to push for last-minute bills before the August recess, but all seems quiet on the climate change and energy fronts. After passing a last-minute bill on Friday to reorganize federal agencies that oversee offshore drilling, add safety standards and impose new ethics regarding offshore drilling, nothing further is scheduled in the House. The Senate is still trying to schedule a vote on Majority Leader Reid’s “energy and oil-spill response” bill, but may not find time due to a confirmation vote hearing on Supreme Court nominee Elena Kagan. One oversight hearing is scheduled on the dispersants for the Gulf Oil spill but it seems many topics will be pushed back until after summer recess.

Wednesday, August 4, 2010

The Senate Committee on Environment and Public Works will hold a hearing entitled, “Oversight Hearing on the Use of Oil Dispersants in the Deepwater Horizon Oil Spill.” The issues raised regarding 1.8 million gallons of dispersant used to break up oil from the Gulf leak have already started to drive new scientific research and debate. The hearing will be held at 10:00 a.m. in Room 406 of the Dirksen Senate Office Building. Witnesses include Paul Anastas, assistant administrator in U.S. EPA’s Office of Research and Development; David Westerholm, director of the National Oceanic and Atmospheric Administration’s Office of Response and Restoration; Ronald Kendall, professor of environmental toxicology and director of the Institute of Environmental and Human Health at Texas Tech University; David Smith, oceanography professor and associate dean of the Graduate School of Oceanography at the University of Rhode Island; Edward Overton, professor emeritus in the environmental science department at Louisiana State University; and Jackie Savitz, senior scientist and pollution campaign director at Oceana.

On July 12, the U.S. Environmental Protection Agency (EPA) announced its proposal for 2011 standards for the four fuels categories under its Renewable Fuel Standard Program (RFS2).  The proposed 2011 standards are:

• Biomass-Based Diesel (0.80 billion gallons; 0.68 percent)
• Advanced Biofuels (1.35 billion gallons; 0.77 percent)
• Cellulosic Biofuels (5-17.1 million gallons; 0.004-0.015 percent)
• Total Renewable Fuels (13.95 billion gallons; 7.95 percent)

These standards derive from the Energy Independence and Security Act of 2007 (EISA), which established annual renewable fuel volume goals designed to ultimately reach an overall level of 36 billion gallons in 2022.  EPA calculated the proposed percentages to achieve the target volume for 2011.  As a result, all those involved in the production of commercial transportation fuel must ensure that such fuel contains the requisite minimum volume of renewable fuel. 

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Both the Senate and the House are making one last effort to pass tailored energy industry reform before the end of the session.  While the new strategy may increase the chance for something to pass, climate legislation will not be part of the package.

After abandoning plans for comprehensive energy and cap-and-trade climate legislation on July 22, 2010, Majority Leader Reid (D-NV) introduced a scaled-down alternative bill the following week, marrying various drilling and oil spill response reforms and a limited package of energy proposals addressing energy efficiency, natural gas vehicle and infrastructure incentives, and conservation.  Though less ambitious than prior iterations, the proposed “Clean Energy Jobs and Oil Company Accountability Act of 2010” still covers considerable ground, including provisions to:

• Remove the liability caps for owners and operators of offshore facilities;
• Establish procedures for processing damage claims;
• Strengthen emergency response planning obligations on regulated industries and establish expedited damage claim procedures;
• Expand and direct funding to oil spill prevention and response research, as well a funding to support land and water conservation projects and programs;
• Reorganize federal oversight of offshore drilling to separate leasing, environmental and safety oversight, and royalty collection efforts;
• Increase criminal penalties for violations of oil spill prevention requirements;
• Override recent case law limiting punitive damages under maritime law; and
• Upgrade federal capabilities to respond to future spills, as well as the ongoing Gulf Spill cleanup;
• Allow states to require, with some limitations, disclosure of substances used in hydraulic fracturing efforts associated with natural gas recovery.

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This is a relatively quiet-some might say anti-climactic-week in the Congress with respect to energy and climate change issues.  There is not much happening in any of the Senate or House committees, save for a hearing on the “Clean Energy Economy” on Tuesday in the Joint Economic Committee.  But it is what is not happening on the floor of the Senate that has most observers interested: this week, the Senate is expected to take up-and probably pass-an energy bill that doesn’t contain any language that directly addresses the regulation of greenhouse gases. 

Sens. Kerry and Lieberman originally introduced legislation that would create an economy-wide cap and trade regime.  That got pared down to a proposal to cap and trade the emissions from utilities only, but when 60 votes could not be found for even that proposal, its inclusion into an energy bill was nixed altogether.  Also jettisoned was a proposal to have a renewable energy standard mandated for utilities.  That leaves a less ambitious energy bill that contains incentives for renewables, the removal of the cap on oil spill liability, incentives for natural gas vehicles, the HomeStar program, and reforms of the on outer-continental shelf drilling.  This effectively kills climate change legislation for this year.  Keep an eye on the debate over the Rockefeller Amendment, which would delay any new EPA greenhouse gas regulations for two years in hopes that the stick of impending regulations would provide Congress with the incentive to create its own legislation.

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The Administration is betting that nanotechnology can advance the competitiveness of the US cleantech industry.  Since 2009, DOE’s Advanced Research Projects Agency - Energy (ARPA-E), an Agency focusing “exclusively on high risk, high payoff concepts - technologies promising genuine transformation in the ways we generate, store and utilize energy,” has identified and funded a wide range of potential game-changing clean-energy technologies, from energy storage and waste-heat recovery to carbon capture, utilizing nanotechnologies.  Earlier this year, the Administration announced a new $50 million “signature initiative” in the 2011 budget to support nanotechnology research into solar energy and conversion, with a particular focus on using nanotechnology to improve photovoltaic solar electricity generation, solar thermal energy generation and conversion, and solar-to-fuel conversions.   These investments, combined with millions of dollars of private sector investment flowing into nanotechnology research, could change the science and economics of renewable and low-carbon energy production in the next few years. 

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On April 28, 2010, Secretary of the Interior Ken Salazar approved “Cape Wind,” a $1 billion, 130-turbine wind farm south of Cape Cod.  The announcement came nine years after the developer filed an initial permit application, and Secretary Salazar promised that in the future the “layers of review upon layers of review” responsible for the delay would be streamlined into a more “rational and orderly process.” It also came eight days after the Deepwater Horizon drilling rig accident in the Gulf of Mexico, and as the scale of that spill became apparent, clean energy advocates greeted this first federal approval of offshore wind as a positive, but belated, first step.

Opponents, however, simply vowed to keep fighting. On June 25, 2010 a coalition of six environmental groups and three individuals filed suit alleging that the Secretary’s approval violated the Endangered Species Act, Migratory Bird Treaty Act, National Environmental Policy Act, and Administrative Procedure Act, through various inadequacies in its consideration of project impacts on the roseate tern, piping plover and right whale. Officials have dismissed the suit as groundless, and the project’s developers have attacked the plaintiffs and their motives. Rancor and rhetoric have been abundant enough throughout the saga that Cape Wind has yielded both an acclaimed book and a soon-to-be-released feature film.

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All eyes are on the Senate this week as supporters of efforts to cap carbon emissions are desperately trying to secure inclusion of modest provisions for a cap in an expected Senate energy bill.  The legislation, being written by Senator Bingaman in the Energy and Natural Resources Committee will include measures on renewable energy, “green-tech” jobs, Gulf oil spill liability provisions, a tax incentive title, advanced automotive technology, and possibly language that caps greenhouse gas emissions from power plants.  This last provision is all that remains from an ambitious economy-wide bill that was proposed by Sens. Lieberman and Kerry earlier this year.  The debate is set to begin next Tuesday, so an agreement between Sens. Kerry-Lieberman, and the interested stakeholders (utilities and environmental groups) would likely have to occur this week.  Without an agreement, there probably will not be any serious proposals to cap greenhouse gas emissions until next year, leaving regulation by EPA under the Clean Air Act as the primary driver of emissions reductions.

Much of the Committees’ focus will continue to be on the efforts in the Gulf.  The Senate Commerce Committee will hold back-to-back hearings on the subject, first on the status of clean up efforts, followed by a mark-up of legislation on Thursday to reform federal oil spill response authorities.  The House Energy and Commerce Committee will hold a hearing on Tuesday to examine the Department of Interior’s role in regulating deep water wells, a hearing that could highlight partisan differences, as former Secretary Gail Norton and current Secretary Ken Salazar share the witness panel.  Finally, on an unrelated topic, the House Oversight and Government Reform Committee will hold a Wednesday hearing on Federal green building guidelines.

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