A House committee hearing in early December may indicate that the Republican-dominated lower chamber of Congress may plan an assault on the Endangered Species Act.
At the hearing, which was held Dec. 6, Natural Resources Committee chairman Doc Hastings, R-Washington, argued that the Endangered Species Act is not effectively working as a tool to recover vulnerable species to a sustainable population size because it allows concerned citizens and organizations too much access to the courts.
“The purpose of the ESA is to recover endangered species – yet this is where the current law is failing – and failing badly," Hastings said. "In my opinion, one of the greatest obstacles to the success of the ESA is the way in which it has become a tool for excessive litigation. Instead of focusing on recovering endangered species, there are groups that use the ESA as a way to bring lawsuits against the government and block job-creating projects.”
The Republican caucus in the House last tried to force through major changes to the ESA while the party had the majority in both chambers between 1995-2007. However, one of the party's leading advocates of weakening the law, Richard Pombo of California, was defeated in his 2006 reelection bid.
The committee indicated in a press release that the oversight hearing was the first in a planned series aimed at taking a "fair look at the ways in which the ESA is working well and areas where it could be improved and updated."
Sunday, January 1, 2012
DC Circuit blocks cross-state air pollution rule
An EPA regulation aimed at limiting emissions of sulfur dioxide and nitrogen oxide from power plants in 27 states was blocked Friday by a federal appeals court.
The transport rule, as the regulation is formally known, is the subject of at least three dozen lawsuits filed by electric utilities, other industrial interests, a labor union, and the state of Texas.
The petitioners main argument against the regulation is that it allows them too little time to comply with expensive requirements to come into compliance with pollution limits. They also argue that the cross-state pollution rule unlawfully permits EPA to impose emission limits before the states have had the opportunity to do so.
The latter argument is based on language in the Clean Air Act that seems to limit the use of a federal implementation plan (the acronym for a U.S. government program to limit air pollution with a particular state) to situations where a state has not come up with its own plan or the state's plan is inconsistent with the requirements of the federal air pollution law.
The rule would permit polluters to obtain allowances by purchasing them from competitors, but the opponents of the transport rule have urged the District of Columbia-based appeals court to find that the financial expense necessary to gain such permission to pollute would be too great of a harm to utilities.
Aimed at facilities that produce pollutants that travel in the atmosphere across state lines, the rule would likely force the closure of some older, coal-fired power plants. If implemented, it would force violators to switch to fuels that pollute less, such as natural gas, or install control technology.
“Petitioners have satisfied the standards required for a stay pending court review,” U.S. Court of Appeals for the District of Columbia Circuit judges Brett Kavanaugh, Thomas Griffith and Janice Rogers Brown said in a terse order.
The court's action does not permanently block implementation of the cross-state emissions rule. Instead, it prevents EPA from enforcing it until the compatibility of the rule with federal statutory law is determined.
Oral arguments on the petitions for review of the rule have not been scheduled, but the order released Friday indicates that the court may hear them by April.
Sulfur dioxide is a pollutant that leads to acid precipitation and harmful soot, while nitrogen oxide is a central component of smog and a large contributor to ground-level ozone.
EPA says that the cross-state pollution rule would help to prevent an estimated 13,000-34,000 premature deaths annually by 2014 and reduce hospital and emergency room visits by 19,000 per year.
Coal incineration for electricity production is the source of 98 percent of sulfur dioxide air pollution and 92 percent of nitrogen oxide air pollution released by power plants, according to EPA.
Among states, Texas is the largest consumer of electricity and most of that electricity is produced by burning coal. The state's per capital electricity use is also significantly higher than the national average.
Even if the challengers to the cross-state pollution rule prevail, and EPA is forced to re-draft the rule, power plant operators will likely face the necessity of investing in additional or improved pollution control technology due to a recently-finalized rule limiting emissions of mercury and other toxic air pollutants.
That regulation was finalized in December and will go into effect in 2015.
Brown, Griffith, and Kavanagh were appointed to the Washington, D.C.-based appeals court, which is often assigned by statute to hear challenges to the legality of federal regulations, by former President (and Texas governor) George W. Bush.
The case is EME Homer City Generation LP v. U.S. Environmental Protection Agency, No. 11-1302.
The transport rule, as the regulation is formally known, is the subject of at least three dozen lawsuits filed by electric utilities, other industrial interests, a labor union, and the state of Texas.
The petitioners main argument against the regulation is that it allows them too little time to comply with expensive requirements to come into compliance with pollution limits. They also argue that the cross-state pollution rule unlawfully permits EPA to impose emission limits before the states have had the opportunity to do so.
The latter argument is based on language in the Clean Air Act that seems to limit the use of a federal implementation plan (the acronym for a U.S. government program to limit air pollution with a particular state) to situations where a state has not come up with its own plan or the state's plan is inconsistent with the requirements of the federal air pollution law.
The rule would permit polluters to obtain allowances by purchasing them from competitors, but the opponents of the transport rule have urged the District of Columbia-based appeals court to find that the financial expense necessary to gain such permission to pollute would be too great of a harm to utilities.
Aimed at facilities that produce pollutants that travel in the atmosphere across state lines, the rule would likely force the closure of some older, coal-fired power plants. If implemented, it would force violators to switch to fuels that pollute less, such as natural gas, or install control technology.
“Petitioners have satisfied the standards required for a stay pending court review,” U.S. Court of Appeals for the District of Columbia Circuit judges Brett Kavanaugh, Thomas Griffith and Janice Rogers Brown said in a terse order.
The court's action does not permanently block implementation of the cross-state emissions rule. Instead, it prevents EPA from enforcing it until the compatibility of the rule with federal statutory law is determined.
Oral arguments on the petitions for review of the rule have not been scheduled, but the order released Friday indicates that the court may hear them by April.
Sulfur dioxide is a pollutant that leads to acid precipitation and harmful soot, while nitrogen oxide is a central component of smog and a large contributor to ground-level ozone.
EPA says that the cross-state pollution rule would help to prevent an estimated 13,000-34,000 premature deaths annually by 2014 and reduce hospital and emergency room visits by 19,000 per year.
Coal incineration for electricity production is the source of 98 percent of sulfur dioxide air pollution and 92 percent of nitrogen oxide air pollution released by power plants, according to EPA.
Among states, Texas is the largest consumer of electricity and most of that electricity is produced by burning coal. The state's per capital electricity use is also significantly higher than the national average.
Even if the challengers to the cross-state pollution rule prevail, and EPA is forced to re-draft the rule, power plant operators will likely face the necessity of investing in additional or improved pollution control technology due to a recently-finalized rule limiting emissions of mercury and other toxic air pollutants.
That regulation was finalized in December and will go into effect in 2015.
Brown, Griffith, and Kavanagh were appointed to the Washington, D.C.-based appeals court, which is often assigned by statute to hear challenges to the legality of federal regulations, by former President (and Texas governor) George W. Bush.
The case is EME Homer City Generation LP v. U.S. Environmental Protection Agency, No. 11-1302.
Federal judge blocks California greenhouse gas regulations
A federal judge in Fresno ruled Thursday that a California regulation aimed at forcing producers of gasoline and diesel fuel to lower the carbon dioxide pollution in those fuels over the next decade violates the U.S. Constitution.
Judge Lawrence O'Neill of the U.S. District Court for the Eastern District of California held that the Low Carbon Fuel Standard violates the commerce clause, which forbids states from discriminating against economic actors outside their borders or placing an excessive burden on entities engaged in interstate economic activity.
The regulation "discriminates against out-of-state corn-derived ethanol while favoring in-state corn ethanol and impermissibly regulates extraterritorial conduct," O'Neill wrote in granting a preliminary injunction preventing enforcement of the California Air Resources Board regulation.
O'Neill's opinion also indicated, but did not hold, that the regulation may be preempted by federal law.
This element of O'Neill's analysis has the potential to the most far-reaching. If adopted as part of a ruling on the merits by an appeals court, it would likely severely constrain the ability of California and other states to regulate emissions of greenhouse gases.
The particular federal laws O'Neill cited as occupying the legal field of regulating fuels are the Clean Air Act and the Energy Independence and Security Act of 2006.
Proponents of the regulation obtained permission to appeal the ruling immediately.
Judge Lawrence O'Neill of the U.S. District Court for the Eastern District of California held that the Low Carbon Fuel Standard violates the commerce clause, which forbids states from discriminating against economic actors outside their borders or placing an excessive burden on entities engaged in interstate economic activity.
The regulation "discriminates against out-of-state corn-derived ethanol while favoring in-state corn ethanol and impermissibly regulates extraterritorial conduct," O'Neill wrote in granting a preliminary injunction preventing enforcement of the California Air Resources Board regulation.
O'Neill's opinion also indicated, but did not hold, that the regulation may be preempted by federal law.
This element of O'Neill's analysis has the potential to the most far-reaching. If adopted as part of a ruling on the merits by an appeals court, it would likely severely constrain the ability of California and other states to regulate emissions of greenhouse gases.
The particular federal laws O'Neill cited as occupying the legal field of regulating fuels are the Clean Air Act and the Energy Independence and Security Act of 2006.
Proponents of the regulation obtained permission to appeal the ruling immediately.
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