A Siegel has raised the issue of Bush's desire to now control the climate change debate with his faux concern about global warming. While FISA affects our privacy rights, democracy and justice, if Bush changes our environmental laws, it will impact whether we live, our health, where we live, our quality of life, whether we have animals and the nature of our environment. If Bush changes our environmental laws, we will have measures enacted that will undermine sincere efforts to find and implement real change so that corporations may continue to reap profits from raping our environment. Correcting Bush's laws will not be easy. The public will be conned that there is no need for further legislation so that any climate change proposals will be taken off the table. Finally, if Bush changes our laws, he will eliminate what has been an effective tool for environmental groups to force Bush to comply with our laws and these lawsuits have been a necessity particularly given our very feckless Congress.
Bushie's primary concern is what he calls the "Regulatory Train Wreck." As stated by Bush, he appears fed up with those damn pesky judges who insist on following the mandates of our laws:
As we approach this challenge, we face a growing problem here at home. Some courts are taking laws written more than 30 years ago to primarily address local and regional environmental effects, and applying them to global climate change. The Clean Air Act, the Endangered Species Act, and the National Environmental Policy Act were never meant to regulate global climate change. For example, under a Supreme Court decision last year, the Clean Air Act could be applied to regulate greenhouse gas emissions from vehicles.
In Bush's strict constructionist view, if these federal laws did not use the words "climate change" or "global warming," then the laws were not intended to address these issues. However, all these laws focus on environmental impacts, without specifically naming each environmental impact that could possibly ever occur. Moreover, air quality is the focus of CAA, and is an environmental impact regularly required to be reviewed under NEPA. Bush uses this view to argue that our environmental laws need to be reformed, just like he recently succeeded in "clarifying" the Clean Water Act (CWA) by changing the structure of the law to legalize the disastrous environmental impacts of mountaintop removal mining that previously were not legal under the CWA.
The problem is that Bush is losing in the courts and so he wants to change the laws. One reason Bush is losing in the courts is because his actions and policies are contrary to existing laws. Another reason is that we now have a new legal practice area called "climate change." The primary laws governing this practice, coincidentally, are the 3 laws Bush wants to change: The Clean Air Act (CAA), The Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). Environmental groups, states and citizens have filed lawsuits under these laws and won in the courts.
Bushie is upset with a major US Supreme Court decision interpreting the CAA: The impact of Massachusetts v. EPA (2007) is that "barring congressional intervention, this decision will cause the EPA to regulate the emission of greenhouse gases from new motor vehicles, as well as from other sources." If Congress does nothing, then Bush loses big time in his fight to impede action to regulate greenhouse gases.
In Massachusetts v. EPA (2007), the US Supreme Court stated what most everyone knew, CO2 is a pollutant under federal law, and the court directed the EPA to "determine whether CO2's link to climate change endangers public health or welfare. If it does, it must be regulated, said the court." Having lost before his buddies on the Supreme Court, the EPA has since apparently obediently maintained a familiar Bushie strategy of delaying compliance with the law.
The only way that the EPA can avoid regulating CO2 is to prove that CO2 can not "reasonably be anticipated to endanger public health or welfare":
Section 202 of the Clean Air Act provides that the EPA "shall" set emission standards for new vehicles for "any air pollutant" the Administrator concludes causes or contributes to air pollution "which may reasonably be anticipated to endanger public health or welfare." Once it is established that greenhouse gases are air pollutants for the purpose of this provision, the EPA has little choice to regulate unless it is prepared to argue that the accumulation of greenhouse gases in the atmosphere cannot "reasonably be anticipated to endanger public health or welfare."
However, "the court further ruled that the agency could not sidestep its authority to regulate the greenhouse gases that contribute to global climate change unless it could provide a scientific basis for its refusal." The majority of the court was persuaded by the "existing evidence of the impact of automobile emissions on the environment," and the fact that the EPA did "not dispute the existence of a causal connection between man-made gas emissions and global warming." Moreover, when the EPA denied a petition to regulate greenhouse gases under Section 202, the EPA stated Bush's position that the federal government "must address" climate change, but this administration had already "undertaken other policies to 'reduce the risk' of global climate change." Thus, the EPA did not deny that greenhouse gases contributed to climate change, or that such emissions could affect health or welfare, but argued that the problem of climate change required a "different policy approach." The problem is that the Congress did not give the EPA the discretion to make policy judgments under Section 202 of CAA as to which policy would better address pollution.
So, Bush and the EPA are in a pickle because even the right-leaning Supremes could not twist the law to favor Bush. The problem for the Bushies is that once the endangerment finding is issued, then the EPA has to regulate CO2 emissions from new motor vehicles. However, the endangerment finding can then create a snowballing effect to require regulation from other sources as well, such as stationary sources (coal-burning power plants and industrial facilities) as well as cities:
Once the EPA makes the required endangerment finding under Section 202, it will be child’s play to force greenhouse gas emission regulation under other Clean Air Act provisions.
If the greenhouse gases satisfy the Section 202 endangerment standard, then it is likely similar standards in the CAA will also be satisfied.
The Bushies may have been delaying EPA compliance with this court directive in hopes that Congress will enact a law regulating greenhouse gases that is more acceptable to Bushie and his pals. Congress is currently considering enacting the first federal laws to expressly regulate greenhouse gases, which could mean that the EPA would be "relieved of regulating greenhouse gases under Section 202 and other provisions of the Act."
Bushie is also not pleased that another court directed the Interior Dept. to determine whether the polar bear should be classified as an endangered species under ESA due to sea ice melting, which is blamed on global warming. In late December 2006, the Interior Dept. proposed to designate polar bears as a threatened species under ESA because biologists believe that the accelerating loss of Artic ice, which bears use in order to hunt, will cause a decline in the population of the polar bears. A proposal is a preliminary step in the listing process and not a final designation of protected species status.
The Bushies did not voluntarily decide to propose polar bears be listed. In 2005, environmental groups sued the Interior Dept. to compel adding polar bears to the list of threatened species protected by ESA and the court mandated a deadline for the Bushies to reach a decision on the polar bear listing. The Dept. then agreed to propose the polar bear for "listing after it was required to do so under a settlement agreement."
The reason that the ice is melting is global warming. However, the Bushies will only admit that the ice is melting, and will not state why the ice is melting because they don't want the ESA to regulate climate change. As Interior Secretary Dirk Kempthorne stated: "That whole aspect of climate change is beyond the scope of the Endangered Species Act."
However, Kempthorne knows that global warming is the culprit based upon government studies which concluded that "greenhouse gas emissions are affecting the Arctic, and [stated] how cuts in carbon dioxide could slow the pace of warming there." These studies were completed before Kempthorne prepared the preliminary proposal to list polar bears as threatened but the information was conveniently omitted from the proposal which the public would read in order to provide comments on the proposal before a final decision is made. In fact, Interior Dept. officials maintained for months that they "did not analyze how human activities were affecting Arctic warming and endangering polar bears' survival."
The Interior Dept. then had 1 year to respond to comments of this proposed listing before making a final decision on listing the polar bear as protected species. Here is the reason for the delay: "It must also work out a recovery plan to control and reduce harmful impacts to the species, usually by controlling the activities that cause harm." Thus, whether the Bushies want to or not, determining the reason for the melting ice is crucial to finding a solution to reduce harmful impacts so that the population can recover, which is one of the main purposes of ESA.
The Bushies have delayed listing the polar bears because a large portion of their worldwide population lives in the "Chukchi Sea off northwestern Alaska, the Northern Beaufort Sea and the Southern Beaufort Sea off the North Slope of Alaska." While this listing decision is delayed, the federal government has been opening sections of the Chukchi and Beaufort seas to oil and gas drilling and coercing scientists to approve the projects. If the polar bear is not listed, then no requirements can be imposed on the oil and gas industry to avoid harm to polar bears or their habitat, a fact admitted by the Interior Dept. in internal emails:
The Interior Department has shunned urgent pleas from its own scientists for greater safeguards to protect polar bears from oil spills and other threats entailed in Arctic Ocean drilling plans, according to internal e-mails released today by Public Employees for Environmental Responsibility (PEER). Interior cited the delay in listing the polar bear under the Endangered Species Act as the reason it would not impose "requirements" on oil companies to minimize risks for polar bear populations.
3 years later, no decision on the polar bear listing has been made and Kempthorne this year refused to appear before a US Senate committee to explain why. Rather, Kempthorne has informed Congress that he will testify before the committee AFTER he ever reaches a decision on the polar bears. Sen. Barbara Boxer responded that Kempthorne was already in violation of the law:
As Secretary of Interior, you have a responsibility to the people to answer questions before the oversight committee on this serious breach of the Department’s duty to follow the law and protect the magnificent polar bear from the threat of extinction.
LOL, the Dems have been so feckless with oversight, and now think that the Bushies will acknowledge Congressional oversight powers that even the Dems have let slide into a bottomless pit of unexercised powers.
There are many ESA thorns for Bushie. Thanks to environmental groups filing lawsuits, the courts are requiring the federal agencies to consider the effect of climate change when they review whether a proposed project will have impacts on listed species or place them in jeopardy. While Bushie maintains that the courts are improperly adding climate change as a factor in ESA, the reality is that ESA mandates consideration of impacts in general to species provided protection by their inclusion as a listed threatened or endangered species. Some of the parameters for environmental analysis are affected by state laws. For example, California law requires a water supply analysis to show the availability of water supplies for 20 years for large residential and commercial projects. However, the state has been in an extreme climate drought since 1999, and snowpack fields in the mountains are decreased. In fact, scientists at the US Geological Survey concluded that this could be the biggest drought in 500 years, even worse than the Dust Bowl Years. This means that project proponents must show that there is an adequate water supply for both human consumption and instream environmental needs, such as fish protected by ESA. Thus, courts are requiring the agencies to consider global climate change evidence and studies and how global warming may impact water resources, which may adversely impact the life or habitat of the protected species. The courts have been forced to mandate such considerations because the federal agencies have assumed that the hydrology of the water bodies affected by the project would be the same in the next 20 years as the past historical patterns. This assumption was contrary to the best scientific evidence that global climate change is happening now and will impact western water sources.
NEPA is a federal law which requires federal agencies to analyze the environmental impacts of projects for which a permit or other governmental approval is required. NEPA requires federal agencies to prepare an environmental impact statement (EIS) for all "major Federal actions significantly affecting the quality of the human environment." The EIS is a detailed document with data and studies because the agencies must analyze all the reasonably foreseeable environmental impacts of a proposed project, including direct, indirect and cumulative effects. Environmental analysis will examine air quality impacts, habitat impacts, water supply impacts, etc. In terms of cumulative impacts, a project may not have significant environmental impacts by itself, but the question of cumulative impacts addresses not just the current project, but the existing impacts in the area. The nice aspect of NEPA is that the EIS is a public document because the law intended that the government decision makers would have detailed information to assist making decisions AND that the public play a role by submitting comments to the EIS which the agency must answer.
The scope of actions subject to NEPA is broad:
NEPA applies to all discretionary actions subject to federal control and responsibility. These include projects and programs financed, assisted, conducted, regulated or approved by federal agencies, new or revised agency rules, regulations, plans, policies, procedures and legislative proposals. Thus, the issue of global climate change under NEPA can have significant implications for a broad range of projects, including those initiated by private interests and for which federal approval or funding is required.
Thus, actions subject to NEPA include "federal permitting decisions, federal rulemaking, including CAFE standard-setting, federally approved construction projects, federal leases and the federal financing of projects."
The federal courts have required federal agencies to evaluate greenhouse gas emissions under NEPA since 1990. However, the courts have generally deferred to the agencies' own climate change assessments. In the past, courts accepted the argument that climate change was too speculative to be analyzed in an EIS. However, the Supremes stated in 2007 (Massachusetts v. EPA (2007)) that "harms associated with climate change are serious and well recognized." Now, more courts are holding that NEPA requires agencies and project proponents to analyze greenhouse gas emissions in an EIS, which requires specific data, studies, not generalities.
As noted above, the types of federal actions which may trigger NEPA review include projects that are "entirely or partly financed... by federal agencies." Environmental groups have been filing lawsuits to stop a variety of projects unless the environmental analysis is conducted. For example, lawsuits have been filed to "stop the federal government from lending billions of dollars to private developers and utilities across the country to build new coal-fired power plants without fully analyzing the global warming impacts of their projects."
This is a very general overview of the types of actions that Bush may wish to stop because he has not yet provided any specific proposals. These are some of the subject areas where Bush is losing in court under the three federal laws he did mention. The impact of changes in any of these laws would extend beyond the few issues discussed here. The question is whether the people have yet had enough of Bush changing laws to our detriment to finally stand up.