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Coalition of 30 Groups Submits First-100-Days Agenda for Obama

New York Law Journal

December 26, 2008
by Stephen L. Kass and Jean McCarroll

On Dec. 16, a coalition of 30 environmental organizations, most of which rarely work together, submitted to President-elect Barack Obama a report proposing a comprehensive environmental agenda for the new U.S. administration.[1]

Evidently learning from the way in which the Heritage Foundation and other conservative groups set the agenda for the Bush administration following the 2000 election, the environmental coalition included specific legislative recommendations and budgetary estimates and proposed first-100-day actions for the Council on Environmental Quality (CEQ), the Environmental Protection Agency (EPA), the Office of Management and Budget (OMB), the Office of Science and Technology, the National Oceanic and Atmospheric Administration and the departments of Defense, Agriculture, Education, Energy, Health and Human Services, Homeland Security, Interior, Justice, State, Transportation and Treasury.

The report also identifies the key subcabinet and agency positions to be filled by President Obama that would be critical in carrying out its recommendations.

The overall agenda is a daunting one, both at home and abroad, and the sponsoring organizations have done an important service both in setting it forth comprehensively and in adjusting their individual priorities to fashion a single set of recommendations. While the great bulk of the recommendations concern domestic policy and actions, one of the report's unifying themes - climate change - necessarily requires international action, and the remaining recommendations for international action are timely and often overlooked.

The report includes an executive summary that fails, in our view, to do justice to the coalition's substantive recommendations but does link social and environmental justice, a connection that we hope the coalition members keep in their sights in shaping their own program priorities in coming years.

Priority Actions

In an effort to pull together its vast agenda, the report suggests four "guiding principles" and four types of "priority actions" for the Obama administration. That the seemingly self-evident principles (clean energy, environmental justice, the role of science in sound environmental regulation and the expectation of official integrity in carrying out environmental laws) are necessary only to emphasize how far the Bush administration strayed from its mission of protecting the environment in accordance with law, as this column has repeatedly noted.

The coalition's priority actions therefore include selecting qualified appointees not only for the administration's most senior environmental positions (a task already accomplished by Mr. Obama), but for the myriad second- and third-tier positions where most decisions are made and policies implemented. The report calls on Mr. Obama and his senior appointees to exercise personal leadership in making clean energy and climate change the nation's top environmental priority and in using the forthcoming economic stimulus program both to advance those goals and to address the nation's urgent needs for clean water, improved transit, restored national parks and "green infrastructure." 

In addition to these priority actions, the report calls out a number of "crosscutting issues" involving a range of federal departments and agencies. In addition to climate and energy, these include protection of Arctic ecosystems (both within U.S. territorial limits and beyond) and greatly increased funding for the Land and Water Conservation Fund, which provides funds for parks, open space, wilderness, wetlands and wildlife habitats at both the state and federal levels and has been progressively underfunded in recent years.

The Arctic recommendations involve a broad range of federal actors and call for a comprehensive Arctic conservation and energy plan to be developed by June 2010, a "precautionary" approach to industrial activities such as oil and gas leasing (including a halt of current leasing proposals pending comprehensive environmental impact reviews), and a new international ecosystem management convention among the United States and the six other nations sharing the polar region.

The coalition's climate change and energy proposals are sprinkled throughout the report, reflecting both the far-reaching implications of global warming for the environment and the political utility of bringing other needed environmental investments under the climate change umbrella. The principal "crosscutting" recommendations, of course, relate to the reduction of greenhouse gas (GHG) emissions from power plants, motor vehicles and buildings. The coalition's goal is to limit further warming to 2 degrees Fahrenheit, a goal that will almost certainly require, as the coalition urges, a reduction in current U.S. GHG emissions of 35 percent by 2020 and at least 80 percent by 2050. To achieve the 2020 goal, the report urges the Obama administration to adopt a "cap and auction" program for GHG emissions, invest the auction proceeds in clean (that is, carbon-free) energy sources and transportation infrastructure and a modern electric grid that loses less energy during transmission and accommodates local renewable energy sources such as wind and solar power.

The coalition also urges the new administration to grant the necessary statutory waiver to permit California and 13 other states to impose higher fuel efficiency rates for auto fleets than currently required under the Clean Air Act and to lead a worldwide effort to finance clean energy facilities, conservation of tropical and other forests (the destruction of which represents 20 percent of global GHG emissions) and the ability of developing countries to adapt to the now inevitable effects of climate change. Interestingly, and disappointingly, the report does not call for a carbon tax, as favored by Al Gore, many economists and likely some members of the coalition as well.

Other climate change recommendations are discussed below under individual departments and agencies.

Executive Departments

Office of the President: The report recommends an increased role for the CEQ and a sharp reduction in the role of the OMB in reviewing the substance of proposed agency regulations, a practice that the Bush administration used to curb agency initiatives that were regarded as inconsistent with that administration's market orientation. Similarly, the report endorses Mr. Obama's commitment to require the Office and Science and Technology to respect both independent science and scientists in the development of environmental policy.

EPA: The EPA section of the report focuses on protecting clean water supplies, reducing the most dangerous forms of air pollution (fine particulates, smog and air toxics such as mercury), eliminating chemicals that threaten people's health and safety, reducing GHG emissions "quickly and deeply enough to avoid the worst effects of global warming," and reaffirming environmental justice policies to "protect vulnerable and overburdened communities from toxic pollution."

Some of the most important recommendations to the new EPA, of course, address climate change. They include: (1) working with Congress to develop and enact comprehensive global warming legislation; (2) complying immediately with the Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007), by issuing a determination that carbon dioxide and other GHGs endanger human health and welfare; (3) granting the California waiver under the Clean Air Act; (4) issuing new national standards to reduce GHG emissions from all new cars and trucks; and (5) ensuring that renewable fuels are derived from nonfood crops and are subjected to standards that assess GHG emissions from their full life cycle.

Other important recommendations are: (1) preventing coal mining companies from filling rivers with waste from mountaintop removal; (2) protecting sources of drinking water, including headwater streams; (3) proposing new rules requiring power plants to reduce their emissions of SO2, NOx and all hazardous air pollutants, including mercury; (4) proposing new rules requiring rebuilt heavy-duty diesel truck and bus engines to incorporate best available pollution controls; (5) controlling diesel emissions from ships within 200 miles of U.S. coastlines; and (6) restoring funding for Clean Air Act enforcement.

Agriculture: The report urges Agriculture's Animal and Plant Health Inspection Service to prohibit open air testing of food crops for use in pharmaceutical products and to strengthen its regulatory oversight of genetically engineered crops, which have been used to develop "superweeds" requiring increased use of toxic herbicides like paraquat and 2,4D (2,4-Dichlorophenoxyacetic acid).

The U.S. Forest Service should reform land management policies that encourage the conversion of old-growth forests to agricultural use and should instead defend the "roadless area conservation rule" and use a portion of revenues from GHG emissions auctions to conserve both forests and other habitat of wildlife threatened by climate change. The department should also expand research in animal feedstocks and production processes with the potential to lower GHG emissions over their entire life cycle and without compromising food supplies.

These recommendations stop short, however, of calling for an end to corn-based ethanol subsidies and do not begin to address the far broader call for agricultural reform from advocates like Michael Pollan and the Rodale Foundation, who call for a fundamental change in the way food is currently produced by large monoculture farms in the United States

Defense: Two urgent issues facing the Army Corps of Engineers, says the report, are the issuance of revised Corps guidance, with EPA advice, for the protection of wetlands following the Supreme Court decision in Rapanos v. United States, 547 U.S. 715 (2006), and the rescission of the Bush administration's re-interpretation of the Clean Water Act to permit mining companies to discharge solid waste into the nation's waterbodies.

A third essential task is the development of a comprehensive plan to protect all U.S. waters that takes into account the effects of climate change. Beyond its Corps activities, the Defense Department should expedite its remediation of contaminated sites and explore ways in which its existing base operations can become laboratories for advanced energy and fuel-efficient vehicles, buildings and power sources.

Energy: The report focuses on the need to improve energy efficiency (through, for example, model building codes and appliance standards that reflect climate-change savings) as the least expensive way to reduce GHG emissions, followed by expanded wind, solar, geothermal, hydro and biomass energy sources, as well as more efficient long-distance electrical transmission lines.

The report proposes abandoning research into fuel cell vehicles and concentrating instead on near-term deployment of plug-in hybrids and electric vehicles. The report also calls for canceling costly taxpayer-financed research into fossil and nuclear fuel projects, an end to loan guarantees for new nuclear and coal plants and dropping the Bush administration's vision of a "global nuclear energy partnership" in which the United States and other developed countries would reprocess and store spent fuel from other countries.

While there can be little disagreement with the report's contention that new nuclear and fossil fuel plants should compete on an equal footing with renewable fuel sources, some would argue that nuclear facilities can contribute significantly to reducing global GHG emissions if the long-term disposal of spent fuel can be safely assured and that it is better (as the International Atomic Energy Agency has urged) for the United States to develop such facilities than to permit less reliable countries to do so. Similarly, since China and others (possibly including the United States) will inevitably seek to exploit their abundant coal resources, many would argue that the United States should explore commercially viable processes for carbon capture and sequestration, which is essential to permit coal facilities to operate in a carbon-limited environment. Although the coalition report is not explicit on this, its message to Mr. Obama appears to reject those research avenues.

Homeland Security: Although Homeland Security has not been central to the Bush administration's environmental record, the report notes two important areas in which the Obama administration can expect that department to improve its environmental performance: first, by rescinding its waiver (authorized by existing legislation) of all environmental laws at the United States-Mexican border, where both the United States and Mexico share an awful record of failing to clean up severe soil, air and water contamination and where the new border walls being constructed by the department are exacerbating these problems; and, second, by directing the Coast Guard (which is now part of Homeland Security) to enforce the requirements of both the International Convention for the Prevention of Pollution from Ships and applicable access and pollution requirements of the International Maritime Organization.

Interior: The 75 pages of recommendations included in the report for rehabilitation of this department after the Bush administration's onslaught can only be summarized briefly. Among other things, these proposals call for: (1) restoration of balance to the Bureau of Land Management oil and gas program by insisting that mineral extracts be carried out in an environmentally safe manner; (2) reversal of former Secretary Gail Norton's wilderness settlement with the state of Utah and reassertion of the Clinton Administration's "Babbitt policy" for Alaska wilderness; (3) a bipartisan water commission to recommend changes to a national water policy; (4) vigorous enforcement of the Endangered Species Act (ESA), including consideration of the potential impacts of climate change; (5) restriction of oil and gas withdrawals, on an interim basis, from offshore leasing areas pending a review by the National Academy of Sciences of the long-term impacts of such leasing on ocean ecosystems; (6) recovery of windfall profits from oil and gas companies enjoying royalty relief under sweetheart leases approved by the Clinton administration in the Gulf of Mexico; (7) restoration of the neglected national parks through increased funding and a new National Parks Service Corps; and (8) U.S. Geological Survey support for state-of-the-birds reports as indicators of overall environmental health.

Justice: The section on the Department of Justice (DOJ) recommends reducing procedural challenges, such as on standing, in environmental litigation, thus allowing claims to be heard on the merits in most cases, and focusing on integrity and legal excellence, rather than politics, in hiring and other personnel decisions. Both recommendations are obviously appropriate.

On substantive matters, the report recommends that the new DOJ review and reconsider the positions taken in a number of cases currently in the courts, for example on the Bush administration's denial of the California waiver under the Clean Air Act, its opposition to the national Roadless Area Conservation Rule and its support of allowing more snowmobiles in Yellowstone National Park. It also urges that DOJ in the Obama administration revitalize affirmative enforcement efforts to protect public health and the environment by, for example, renewed enforcement of the ESA and of limitations on emissions of hazardous air pollutants, as well as initiation of enforcement efforts to retard climate change using public trust and nuisance claims against sources of GHGs.

Transportation: In addition to the crosscutting and priority actions described above, the report urges the department to form a low-carbon aviation initiative to accelerate the use of fuel-efficient aircraft and air traffic controls, to encourage low-carbon modes like rail and bus rapid transit, to tie any bailout of U.S. auto manufacturers to increased fuel economy standards, to require "truth in testing" for vehicle mileage claims and to encourage expanded coastal shipping with clean ship technologies. New highways should be avoided in favor of low-carbon infrastructure and repair of existing bridges and roadways, and states should be encouraged to explore pay-by-mile insurance to drive down vehicle miles traveled.

State and Treasury: The report's recommendations to the State Department and the Treasury envisage a major change, long overdue in our judgment, in the United States' relationship with other nations and the global environment. In addition to "restoring" U.S. leadership in climate change negotiations leading to the Copenhagen conference in 2009, the report urges U.S. ratification of a broad range of multilateral conventions, including the conventions on the Law of the Sea; Biological Diversity; Non-Navigational Uses of International Watercourses; Conservation of Migratory Species; Management of Ships Ballast Water; Access to Information and Public Participation; and Annex IV to the MARPOL Convention.

The report also urges the United States to devote significant resources to limiting deforestation, helping developing nations adapt to sea level rise, drought and other impacts of climate change, and increasing aid for remedying human rights violations exacerbated by environmental stress, including potable water and sanitation shortages. The Treasury is urged to open a "sustainable trade" dialogue with China and to use U.S. leverage with multilateral development banks to, among other things, improve those institutions' environmental performance and require multinational corporations to account for the environmental and social impact of their operations.

Conclusion

As the coalition report suggests, the international environmental agenda is daunting, requiring efforts at least comparable to the comprehensive domestic agenda set forth in the report. In order to discuss these challenges in the depths they require, we will in the future devote our columns to international environmental issues and pass on to our colleagues Christine Fazio and Ethan Strell responsibility for commenting on domestic U.S. environmental issues.

and Jean M. McCarroll direct the environmental practice group at Carter Ledyard & Milburn.

Reprinted with permission from the December 26, 2008 edition of The New York Law Journal  © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

Endnote


[1] The coalition's report is: "Transition to Green - Leading the way to a healthy environment, a green economy and a sustainable future" (November 2008) and can be found at http://docs.nrdc.org/legislation/leg_08112401.asp, or http://docs.nrdc.org/legislation/files/leg_08112401a.pdf, which are on the Web site of the Natural Resources Defense Council.


Stephen L. Kass


Stephen L. Kass

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