March 26, 2010

In This Issue


Senator Tom Carper (D-DE) said this week that he expects a mid-April markup of legislation to curb power plant pollution in the full Environment and Public Works (EPW) Committee. Carper, who chairs the Clean Air Subcommittee, and Lamar Alexander (R-TN) unveiled a bill (S. 2995) last month that seeks steep cuts in electric utilities’ emissions. The measure aims to cut power plants’ soot-forming sulfur dioxide (SO2) by 80 percent by 2018, smog-forming nitrogen dioxide (NOx) by 50 percent by 2015 and mercury by 90 percent by 2015.

Several Republicans on the EPW Committee signaled last month that while they support the goals of the bill, they had concerns about some of the details.  EPW Committee ranking member James Inhofe (R-OK) said last month that the bill imposes fairly strict emissions reductions over a short time frame, while Sen. George Voinovich (R-OH) cautioned that the reductions would require fuel switching and significant increases in electric rates.

Carper has said he would like to add his three-pollutant measure to comprehensive climate and energy legislation pending in the Senate, but he and Alexander stressed the importance of moving forward independently on a multi-pollutant bill.

Carper also said he would be on the lookout for sponsors of former House bills on the subject of power plant pollution — including carbon dioxide — to step up and offer companion legislation.

The Obama administration earlier this month signaled its support for the measure. Environmental Protection Agency air chief Gina McCarthy told the EPW Committee that the bill can “align very well” with pending agency regulations.

EPA is working to draft replacements for two George W. Bush administration rules to cut power plant pollution that were tossed out by a federal appeals court.

The U.S. Circuit Court of Appeals for the District of Columbia in 2008 vacated the cap-and-trade Clean Air Mercury Rule (CAMR), finding that EPA had unlawfully allowed trading of the toxic pollutant. Also in 2008, the same court struck down the Clean Air Interstate Rule (CAIR), a cap-and-trade program aimed at cutting NOx and SO2 pollution in the eastern United States. The court temporarily reinstated the CAIR program to give EPA time to craft a replacement.

EPA officials have said they plan to issue a draft CAIR replacement by April and a final rule in early 2011. The agency is under a court deadline to issue a proposed mercury rule by March 2011 and a final rule no later than November 2011.


The Supreme Court has for the second time denied a request to temporarily close Chicago-area waterways as the justices weigh whether to wade into the interstate lawsuit over invasive Asian carp.

Michigan’s request, submitted in February 2010 after new test results detected Asian carp in Lake Michigan for the first time, was a last-ditch effort to force the closure of the locks after the Obama administration declined to take that action. In an Asian carp response framework released last month, the administration pledged to spend $78.5 million to prevent the fish from entering the Great Lakes but did not commit to lock closures, which have been fiercely opposed by Illinois’ shipping industry.

Supporters of the lock closures say the structures would provide the most effective additional protection against the short-term spread of Asian Carp, which could threaten the fishing and recreation industries in the Great Lakes if they manage to establish a permanent population.

The U.S. Army Corps of Engineers is studying short-term options for the Chicago-area waterways and will determine by April 30 whether it will close the locks on a specific timetable or not close them at all.


As giant, Southeast Asian pythons continue to flourish in the Florida Everglades, Democrats are pushing several bills aimed at preventing the spread of invasive snakes.  An estimated population of more than 20,000 Burmese pythons patrols the Everglades. The population is believed to have originated from escaped or illegally released pets but is now self-sustaining.

H.R. 2811 and S. 373 would prohibit the import and interstate transportation of pythons while H.R. 669, would require importers to demonstrate an animal did not pose an ecological threat before being allowed to bring it into the country.

The Obama administration proposed enacting similar regulations through a federal rule in January.  The Interior Department proposal would preclude breeders from selling snakes outside their home states. It would also prevent pet owners who move across state lines from taking their snakes with them.

The proposed snake restrictions have drawn fire from the animal import industry and pet owners. The Pet Joint Advisory Council claims that requiring importers to demonstrate their species will not cause harm anywhere in the United States is overly burdensome and would virtually shut down the $2.7 billion wildlife import industry. 


Senate appropriators this week raised concerns about Obama administration proposals for a major restructuring of the Forest Service budget.  Senate Interior Appropriations Subcommittee Chairwoman Dianne Feinstein (D-CA) raised questions about a proposal to combine what have been three separate habitat, watershed and forest product programs into one “integrated resource restoration” budget line that would receive $694 million.

Creating “one huge new account” could reduce transparency and accountability, Feinstein said. She also raised specific questions about how the money would be allocated.

Forest Service Chief Tom Tidwell said the new budget line will promote an integrated approach and “align our budget structure with the restoration work that needs to be done on the landscape.” He acknowledged some analysis was “missing” from the budget request and promised to provide the committee specifics about what the change will accomplish, such as how many watersheds would be improved and how wildlife would be affected.

Questioned by ranking member Lamar Alexander (R-TN) about locating wind turbines near national forests, Tidwell said the FS is in the process of finalizing regulations on wind energy that will help forest supervisors address applications. But he said the agency has received “just a few” applications for wind turbines.

At a similar hearing of the House Interior Appropriations Subcommittee last month, lawmakers raised concerns over the plans for the new budget line as well as a proposed drop in funding for forest roads and research.


Sen. Lindsey Graham (R-SC) tried to defuse tensions this week over competing climate change bills that threaten to upend the global warming debate before it can even reach the floor.

In an interview, Graham said he welcomes legislation from Sens. Maria Cantwell (D-WA) and Susan Collins (R-ME) that takes an alternative approach for setting up a pricing system on industrial releases of greenhouse gases. Cantwell and Collins have criticized Graham and Sens. John Kerry (D-MA) and Joe Lieberman (I-CT) for taking some of their ideas and also for spending months in closed-door talks on the issue but not yet producing any official legislative text.

“This is the way to do it,” Graham said. “And what will happen is, hopefully, we’ll get the best of their ideas and the best of other people’s ideas to basically come up with a new way forward. I don’t see them as the enemy. I see them as two senators trying to do the same thing I’m doing: price carbon in a consumer-, business-friendly way.”

Cantwell and Collins introduced their bill (S. 2877), known as the “CLEAR Act”, last December. It would forgo the widespread trading of carbon allowances and instead require energy producers to bid in monthly auctions for carbon shares. It also would direct 75 percent of the resulting auction revenue as a refund to help compensate the public for increased energy costs, with the remaining 25 percent going toward clean energy research and development.  A primary driver on their legislation is to avoid creating a multitrillion-dollar trading platform susceptible to market manipulation and price volatility — something they fear will cause a public backlash under the Kerry-Graham-Lieberman proposal.

Kerry, Graham and Lieberman are aiming to release their draft legislation next month, after lawmakers return from their spring break, with a floor debate still the goal for May or June.

Graham said the group plans to follow the same philosophical approach as Cantwell-Collins when it comes to distributing auction revenue back to consumers.  The trio also plans to take ideas on carbon market regulation crafted by Cantwell and Collins.

Collins has said she does not like the idea of seeing her proposals co-opted into the Kerry-Graham-Lieberman proposal. “I think the bill we came up with is the right approach,” Collins said. “Rather than seeing parts of our bill cannibalized and put into another bill, I think they should take a look at coming onto our legislation.”

Cantwell and Collins also questioned the seemingly slow pace behind the Kerry-Graham-Lieberman effort that has yet to lead to any bill text. But Graham shrugged off the criticism.

“I’ve been in a bunch of these deals,” he said. “Everyone wants to rush. The best thing you can do is get people on board. But the day you do come out, that visual image of who’s surrounding you says more than the substance of the bill.”


As Georgia wages a legal war against Florida and Alabama over its access to a federal reservoir, its politicians are trying to spur a national water-rights debate by spotlighting a list of 40 Army Corps of Engineers’ projects being tapped by utilities in 14 states without direct approval from Washington.

As it stands, authority to tap federal reservoirs comes largely from the Water Supply Act of 1958. The law allows the Army Corps to release water for purposes not originally authorized as long as the original uses of the project — hydropower or navigation, for example — are not “seriously” affected. But Congress has never weighed in on how to set that standard for seriousness.

When U.S. District Court Judge Paul Magnuson last October gave Georgia three years to win congressional approval for its use of Lake Lanier, which provides water to more than 3 million Atlanta residents, he warned that the Army Corps could face future disputes over its discretionary reallocations of supply.

“The problems faced” by the states battling over Lanier, Magnuson wrote, “will continue to be repeated throughout this country as the population grows and more undeveloped land is developed.”

The Army Corps drew up its list of 40 reservoirs with questionable federal authorization at the request of Georgia’s U.S. Senate delegation, Republicans Saxby Chambliss and Johnny Isakson, in hopes of spurring congressional debate on such arrangements.  But several officials whose utilities draw water from reservoirs operating under the 1958 law claim they have valid deals with the Army Corps. Army Corps spokesman Eugene Pawlik echoed those assurances in a statement.

“Local water authorities which have purchased storage in Corps of Engineers reservoirs may continue to withdraw water in accordance with the terms of their water storage agreements,” Pawlik said via e-mail. “No additional federal permission is needed.”

But when told that other states considered their discretionary water agreements with the Army Corps inviolable, a spokesman for Georgia Gov. Sonny Perdue (R) replied, “So did we.”

Perdue aide Bert Brantley described his state as “a cautionary tale that just having a contract with the corps doesn’t mean a judge is going to take that as authorization.” Now that the public knows how many areas lack explicit federal approval for their water supply, Brantley said, the governor hopes the uncertainty will no longer be seen as “a Georgia problem.”

Perdue’s office is not alone in predicting more conflict over rights to federal reservoirs. George Sherk, a professor at the Colorado School of Mines and former Department of Justice water-law attorney, said “We’ve got multiple federal statutes, multiple agency mandates, and no way to reconcile them.  The way to reconcile them is to take them to Congress, but I’m not sure Congress could reconcile to go to lunch right now.”

Water-law professor Robert Abrams of Florida A&M University agreed that lawmakers lack the political will to enact broader reform of the process.

Still, Abrams said, “everything’s going to become more controversial, rather than less, because of climate-change effects. It’s not necessarily that we’re going to have less rain, but the timing … and concentration is going to be different. The corps is going to be whipsawed.”


The Convention on International Trade in Endangered Species (CITES) met earlier this month in Doha, Qatar, with mixed outcomes.  A U.S.-Sweden proposal to limit trade of 31 species of red and pink coral used in jewelry, decorations, and homeopathic medicine was voted down, as was a proposed ban on export of the Atlantic bluefin tuna.

 “Corals are the building blocks of many ocean ecosystems, and the science is clear: They are at great risk,” said Dawn Martin, president of SeaWeb. “And now, since action was not taken at CITES, red and pink coral populations will continue to decline at an alarming rate.”

In addition, proposals to protect hammerhead and oceanic whitetip sharks were rejected after opposition from Asian nations.  However, delegates did agree to ban international trade of Kaiser’s spotted newt, a rare Iranian salamander that is frequently sought as a pet. It is estimated that 1,000 of the animals remain alive, with some 200 traded each year.


At its upcoming June meeting, the 88-country International Whaling Commission (IWC) will consider a compromise that would legitimize commercial whaling in exchange for several conservation measures and Japan abandoning its block on a proposed sanctuary in the South Atlantic.

The deal would set a “sustainable” quota for whaling over the next decade, effectively legalizing whaling efforts by Japan, Iceland and Norway that now take place in defiance of the IWC’s 1986 moratorium on commercial whaling. No exact numbers have been set, though they will purportedly be under current harvest.

The United States has not taken a formal position on the draft compromise, but National Oceanic and Atmospheric Administration officials say that the U.S. continues to support an absolute ban. In light of this stance, Senator John Kerry (D-MA) has introduced a bill (S 3116) that would instruct the Commerce Department to oppose any proposal that would “weaken the moratorium on commercial whaling, create any new categories of whaling, condone lethal scientific whaling, or otherwise weaken whale conservation and protection.” It also includes:

  • A requirement for Commerce to identify nations that violate CITES by trading whale parts illegally, and would allow the U.S. to penalize countries that are in violation for consecutive years.
  • A requirement that Commerce work with Canada toward a North Atlantic Whale Conservation agreement, which would establish a cooperative plan to preserve the North Atlantic right whale.
  • A competitive grant program to fund new whale research.
  • Measures to reduce ocean noise.
  • The expansion and enhancement of domestic and international whale sanctuaries.

Meanwhile, supporters of the compromise say that it would allow the IWC to regulate whaling and track kills, while allowing the commission to support conservation efforts and sanctuaries previously blocked by whaling nations. Opponents argue that there are no whalers in the South Atlantic and that establishing a sanctuary there, while allowing hunting in the South Pacific would do little to protect whales.

Sources: ClimateWire, Environment and Energy Daily, and Greenwire