Coastal Communities & Ecosystems
Gasping for Air: Climate Change in the Courts
The United Nations Intergovernmental Panel on Climate Change (IPCC) recently issued an assessment report on the causes and consequences of climate change. This is the fourth assessment by the IPCC since 1990 and the first time the group has asserted with more than 90 percent certainty that carbon dioxide and other heat-trapping greenhouse gases from human activities are the main causes of warming since 1950. The IPCC also states that stronger hurricanes and tropical cyclones since 1970 are “more likely than not” linked to global warming.
On February 7, Roger Williams University School of Law’s Marine Affairs Institute hosted a seminar on climate change. A discussion of scientific observations on global warming was led by Thompson Webb, Brown University professor emeritus of geological sciences. A paleoecologist and paleoclimatologist who studies climate dynamics, Webb discussed arguments in an amici curiae brief by climate scientists for Massachusetts v. EPA. Arguments in the brief include that the science of climate change indicates that it is virtually certain that greenhouse gas emissions from human activities cause global climate changes, endangering human health and welfare; the Environmental Protection Agency (EPA) and the Court of Appeals mischaracterized the science of climate change by making it appear more uncertain than it actually is; EPA did not apply the standard of scientific evidence set forth in the Clean Air Act; and Section 202 of the Clean Air Act requires reasonable anticipation of endangerment to public health or welfare, not absolute scientific certainty. Section 202(a)(1) of the Clean Air Act, 42 U.S.C. § 7521(a)(1), requires the administrator of the EPA to set emission standards for “any air pollutant” from motor vehicles or motor vehicle engines “which in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.”
Janet Freedman, R.I. Coastal Resources Management Council coastal geologist, presented her findings of “Impacts of Global Warming on Coastal Resources in Rhode Island.” Freedman concluded that sea level will continue to rise in response to global warming; the ice flow for the Greenland and Antarctic ice sheets could increase in the future; tropical and extra-tropical storms are likely to increase in the future; rising sea levels contribute to the net loss of shoreline and threaten both structures and infrastructure; increasing rates of sea-level rise in Rhode Island may result in wetland loss; and the oceans will continue to warm for centuries adding to sea-level rise and impacting ecosystems.
The attention being paid to global warming is due, in part, to recent litigation on both the state and federal level. Rhode Island was sued by automobile manufacturers on the grounds that the National Highway Traffic Safety Administration and Energy Policy and Conservation Act and Clean Air Act preempts Rhode Island’s ability to adopt California’s carbon dioxide vehicle emissions regulations. On November 29, 2006, the U.S. Supreme Court heard oral arguments in its first case directly related to global warming in Massachusetts v. EPA. Massachusetts and other petitioners, including Rhode Island, asked the court to set aside an EPA decision not to regulate greenhouse gases under the Clean Air Act. Massachusetts v. EPA is significant because despite the IPCC and other reports acknowledging that global warming poses serious dangers to our environment and health, the suit contended that the EPA did little to regulate greenhouse gas emissions.
James R. Milkey, assistant attorney general and chief of the Environmental Protection Division of the Massachusetts Office of the Attorney General, led the panel discussion by describing his experience arguing Massachusetts v. EPA before the justices of the U.S. Supreme Court. During oral arguments, Milkey was tasked with addressing questions such as whether the EPA administrator may decline to issue emission standards for motor vehicles based on policy considerations not enumerated in section 202(a)(1); whether the EPA administrator has authority to regulate carbon dioxide and other air pollutants associated with climate change under section 202(a)(1). The case originated in 1999 when various environmental groups filed an administrative rulemaking petition that formally requested that the EPA set motor vehicle emission standards for greenhouse gases. The court is expected to rule on this case within the next few months and should resolve whether the EPA can continue to claim that it lacks existing statutory authority to regulate such emissions and whether the EPA can ignore a congressional mandate that it shall regulate dangerous substances.
Tricia Jedele, special assistant attorney general and environmental advocate of the Rhode Island Office of the Attorney General, discussed the status of climate change litigation in Rhode Island as well as Vermont, California, and Connecticut. The litigation was prompted by the fact that California cannot regulate carbon dioxide emissions until EPA waives the Clean Air Act. States will not regulate even in the absence of federal regulations because EPA will not waive. Most recently, Jedele experienced a victory in the Second Circuit Court in Riverkeeper v. EPA. The case was a challenge to EPA's regulations regarding cooling water intake structures at existing power plants; an important issue because the power plants' use of the cooling water ends up killing large amounts of young fish and other creatures. The states, with Rhode Island serving as lead, challenged the regulations as being insufficiently protective and inconsistent with the requirements of the Clean Water Act.
Andrew Hodgkin, executive counsel to Gov. Donald L. Carcieri, led a discussion on the Regional Greenhouse Gas Initiative, a multi-state regional initiative to design and implement a flexible, market-based cap-and-trade program to reduce carbon dioxide emissions from power plants in the Northeast. The governor announced that Rhode Island has just signed on as a member. To address the need for further energy conservation statewide, Gov. Carcieri issued two Executive Orders in August of this year designed to protect Rhode Island’s environment and reduce energy needs by maintaining and increasing the energy efficiency of state buildings and the requiring all new state vehicles be powered by alternative fuels. Gov. Carcieri signed into law the Renewable Portfolio Standard that requires utilities to purchase an increasing percentage of renewable energy every year, ultimately reaching 16 percent by 2020. More recently, the governor set a goal by 2011 of providing 20 percent of the state’s electricity needs through renewable sources of energy, including wind, water, and solar power.
R.I. Coastal Resources Management Council Legal Training Sessions
The Rhode Island Sea Grant Legal Program has been asked to take part in sessions to
assist R.I. Coastal Resources Management Council staff in areas of administrative law, staff reports, writing skills, open meeting notices, and open record requests and responses.
A mock trial is scheduled for Thursday, March 29 with experienced practitioners and law students who will act as judges and question CRMC staff members about the Greenwich Bay Marina case, a proposal which consisted of an eastward expansion of the marina that added 161 new slips to the existing 312 for a total of 473 marina slips. The controversial project resulted in a 52 percent expansion in the available number of slips. The development area extended the existing marina perimeter approximately 270 feet eastward into Greenwich Bay, thus occupying approximately four additional acres of tidal waters.