Peter Lehner's Blog: U.S. Law and Policy

The Clean Energy Bill Is No Place For Dirty Energy Attacks on Public Health

2010-05-14T21:42:38Z

There is much to commend in Senator Kerry’s and Senator Lieberman’s just-released comprehensive clean energy and climate legislation, beginning with solid core carbon pollution limits. These emission limits tighten every year and will drive investments in clean energy that create jobs, cut pollution, and end our addiction to oil from dangerous locations, both offshore and overseas.

Then there’s a nasty provision that will do none of those things.

The draft legislation creates a roving commission that gives power plant polluter lobbyists a platform to make unsupported claims about supposed conflicts between protecting health and cutting carbon pollution.

Specifically, the draft bill establishes a highly objectionable task force to examine utility industry calls for exemptions from federal environmental laws and regulations that utilities allege are impeding power plant retirements or transitions to cleaner energy. The provision’s language is suffused with utility industry complaints and rhetoric and pleas for payment, making clear the design for a biased exercise. Polluter lobbyists deliver a deregulatory wish list to Congress and federal agencies. The agencies then are authorized by this bill to propose regulatory changes to carry out those wishes.

Instead of leaving EPA to do its job to protect the American people, the draft bill would compel EPA and states and public health supporters to spend huge amounts of time fending off industry wish lists to weaken virtually every regulation that affects power plants.

The scope of the provision is so broad that it anoints this commission with the power to go after every health and environmental safeguard that has been adopted through decades of effort – from Clean Air Act protections against smog, soot and toxic pollution to the Clean Water Act to hazardous waste laws to the Endangered Species Act.

But the real target of utility industry fire is the Clean Air Act: current and upcoming EPA rules to cut deadly soot pollution, smog pollution, and toxic air pollution like mercury, arsenic and lead.

Power plant air pollution is responsible for an estimated 20,000-24,000 deaths annually. Each year this pollution is linked to tens of thousands of non-fatal heart attacks, hundreds of thousands of asthma attacks and other cardiac problems, and tens of thousands of emergency room visits, hospitalizations and lost work days.

More than half of coal-burning power plants today lack basic cleanup equipment called scrubbers that control deadly soot pollution, sulfur dioxide pollution and toxic air pollution like mercury and acid gases. As recently as 2006, only one-third of coal plants had these scrubbers.

But there have been nearly 90 scrubbers installed at power plants in just the last two years without causing any electricity reliability problems. And since 2006, dangerous sulfur dioxide emissions from power plants have dropped by a very impressive 3.5 million tons to just under 6 million tons each year, with 1.7 million tons cut in the past two years alone. During that period smog-forming nitrogen oxide emissions from power plants dropped from 3.5 million tons to nearly 2 million tons annually.

Upcoming EPA rules to cut smog, soot and toxic air pollution will require many more scrubbers, cutting power plant pollution by millions of tons more and saving many thousands of lives. Recent experience has shown that we can clean up these plants, protect public health and safety, provide affordable electricity, and power our transition to a clean energy economy.

These life-saving clean air rules are what the utility industry is targeting with this commission and its roving industry agenda.

The draft bill calls out by name three clean air programs for special attack and consideration for “exemption[s].” Not coincidentally, these safeguards long have been targeted by power sector lobbyists:

(1) New source review: a Clean Air Act permitting program for smog, soot and carbon pollution that power plant operators have violated for the past three decades. These violations prompted successful enforcement cases by the Clinton, Bush and Obama administrations, joined by state attorneys general, and generated many billions of dollars in injunctive relief requiring pollution control equipment. When I worked on these cases in the New York attorney general’s office, we saw how valuable this clean air law was to control dirty coal-burning power plants and just how much these plants endangered our health. The Bush administration tried repealing these new source review safeguards in its ultimately unsuccessful “Clear Skies” legislation, and now utility lobbyists are trying a new tactic to seek to weaken or eliminate these protections.

It’s worth emphasizing that the draft bill’s invited attack on the new source review program is a reach well beyond the idea of eliminating best available control technology for greenhouse gases. It’s an attack on applying best available control technology to other health-endangering pollutants, like sulfur dioxide and nitrogen oxides, that the Clean Air Act has covered for decades.

(2) New source performance standards: this clean air program establishes national performance standards for power plant pollution like smog and soot. EPA is expected to update these standards and propose standards for power plants’ carbon pollution next year.

(3) Air toxics standards: this clean air program establishes national performance standards for toxic air pollution like mercury, arsenic, lead, acid gases and heavy metals. Power plants have escaped meeting these standards for nearly two decades while other industries did their part and complied. During that period the Bush administration stalled the utility industry’s obligation for eight years by adopting thoroughly illegal rules that were struck down after NRDC and other environmental groups joined New York, New Jersey and other states to challenge the rules in court. EPA now must propose these crucially important standards next spring and finalize them next fall, some 21 years after these standards first were authorized in the 1990 Clean Air Act.

These important clean air rules finally will require many power plants to install cleanup equipment like scrubbers that they have escaped for decades due to violations of the law, or illegal delays and exemptions undertaken by EPA. Dirty power plants will need effective pollution controls by no later than 2015, but utility lobbyists argue that they should be allowed to escape those cleanup obligations if they were just given more time to shut down instead.

The draft legislation leaves an ominous blank for when any future shutdown date might be, but power plant lobbyists have been pushing for 2020 or 2025 or even later. Of course they don't want to clean up their toxic or smog or soot pollution during the period between now and 2020 or 2025 or later. Or if they did agree to better controls it would only be at the margins since they do not wish to install meaningful controls like scrubbers.

As a nation we have suffered the deadly consequences of this dangerous shell game for the past three decades. When the 1977 amendments to the Clean Air Act were adopted, dirty, decades-old power plants were grandfathered from strong cleanup requirements due in part to the prospect held out by the utility industry that waves of plants would shut down soon and it was not necessary to require them to incur the capital costs to clean up.

History has proven that prospect to be a fraud. The dirty old coal plants did not shut down and they did not clean up. Instead they continued to evade cleanup by going so far as to break the law themselves, then persuading the prior administration to break the law on their behalf.

There is a surefire way to cut all of this dangerous air pollution – smog, soot, toxins, carbon pollution – and that is to shutter these dirty old coal plants and replace them with cleaner resources. The American public should not be asked to offer their children's health as a bribe to shut these dirty plants. Congress should just set a schedule for these plants to clean up or shut down. But that schedule must not be one that allows these plants’ air pollution to continue sickening or even killing people, nor one that delays or weakens vitally important health safeguards.

Our friends at the American Lung Association have rightly noted that “[p]rovisions in this draft bill create an irresponsible process to roll back tools every community needs to protect its most vulnerable residents – children, seniors and those with chronic diseases – against dangerous air pollution.” The Association urges that these unnecessary and objectionable provisions be stripped from the bill.

We agree.

Clean energy legislation is the last place we need more damage from dirty energy.

High Speed Rail: $8 Billion Down Payment on Jobs, Security, and Sustainability

2010-01-28T18:45:57Z

Last night, I wrote that I was excited to hear President Obama lay out plans to recover the economy, enhance our energy security, and cut pollution by investing in an efficient, 21st-century high-speed rail network. But I had no idea how thrilled I’d be to actually see the Administration’s plans on paper.

Today, the president announced the first big steps toward a network of high speed rail corridors across the nation. The $8 billion in awards will touch 30 states in every region of the country, and are a down payment on a truly visionary transportation system.

Completed in 1992, our highway system is second to none in the world (though it is in dire need of repair and rehabilitation, which must be the focus of new highways investments). But in other areas, our transportation system is woefully behind our competitors in the global economy.

High speed rail has been up and running in Europe and Japan for years, and their systems continue to expand. China is investing tens of billions of dollars in their rail system, as are other Asian nations. Other emerging economies such as Brazil, Argentina, and South Africa all have major systems scheduled to come on line in the next decade.

As I said last night, President Obama’s commitment to high speed rail is a commitment to build the other half of the transportation system. Paired with new investments in local transit, commuter rail, and local pedestrian and cycling infrastructure, it is a key part of a rebalancing of our national transportation system. With $2.5 billion more from Congress on the way in 2010, and plans for major new investments proposed by House Transportation Chairman Jim Oberstar, this rebalancing starts now.

So what exactly does the president’s plan look like? Eventually, each of the major regions of the US will have high-speed rail connecting most major cities. Though this is a long term goal, today’s announcement will take a big step toward achieving it. The strategy is to invest in key corridors in a phased approach, building on our successes with each phase.

The first phase will concentrate funding in the West, Midwest, and Southeast.

West - $2,942,000,000
Midwest - $2,599,600,000
Southeast - $1,870,000,000
Northeast - $485,000,000

Grants fall into three categories: 1) true high-speed rail service, aimed a projects that will run at up to 150 miles per hour when completed; 2) emerging high-speed rail, which will bring existing passenger rail corridors up to speeds of 110 mph, with plans to increase speeds in the future; and 3) a series of projects to lay the groundwork for future high-speed rail corridors.

Largest awards

California High-Speed Rail: $2.25 billion
Tampa-Orlando Phase 1: $ 1.25 billion
Chicago-St. Louis Midwest: $1.1 billion
Madison-Milwaukee Midwest: $810 million
Seattle-Portland: $590 million
Charlotte-Richmond-Washington, DC: $520 million

The president’s rail initiative will have both an immediate and lasting impact on our country. Not only is this investment going to create tens of thousands of jobs and build our economy in the near term, it is going to continue to contribute to our economy in the long term.

When trains start running in each corridor, it is going to be a boon to both American businesses, which will benefit from better, more efficient mobility. Since rail is much more efficient than flying or driving, it will also help our energy security and our environment. A major study of transportation and climate change found that high-speed rail investments can help to save millions of tons of global warming pollution.

Fully building a national high speed rail system is something that will take time, stretching long beyond President Obama’s term of office. However, his vision extends beyond politics to the good of the country. The high-speed rail system that American begins building today will be a legacy ensuring that tomorrow, our country continues to have the best, most efficient transportation network in the world.

High-Speed Rail Tops Obama Plans for National Investments

2010-01-28T02:56:44Z

As I watched President Obama’s State of the Union speech tonight, I was excited to see the President connect the nation’s most pressing priorities with his vision of a modern high-speed rail network, following in the footsteps of President Dwight Eisenhower.

President Eisenhower told the nation in his 1955 State of the Union Address, “A modern highway system is essential to meet the needs of our growing population, our expanding economy, and our national security.” A year later, construction began on the largest infrastructure project America had ever attempted: the Dwight D. Eisenhower National System of Interstate and Defense Highways. Building the Interstate System would put Americans to work, help our nation’s businesses to prosper, and make the country more secure.

In tonight’s State of the Union Address, President Obama pledged economic recovery and national security through a similarly historic commitment to build the other half of America’s transportation system. The president will announce the first $8 billion of high-speed rail investments tomorrow, a down payment on a bigger plan to connect America with fast, efficient, modern trains. But I don’t need to hear his plan to understand how it will move this nation forward, because I know from experience.

I frequently travel between NRDC’s New York headquarters and our Washington office. My priority is getting there quickly, safely and with minimal impact on the environment. I choose high-speed rail whenever I can. It’s the quicker, easier, and cleaner than driving or flying. I don’t have to deal with airport delays and I am reducing pollution. The fact that these trains frequently sell out tell me many others agree. But too few Americans have this choice to begin with.

As much as America needs high-speed rail service, we will also see its benefits before a single high-speed train leaves the station. These investments will have an immediate impact on the U.S. economy, creating construction, manufacturing, and engineering jobs that can’t be outsourced. Last year, 32 rail manufacturers and suppliers pledged to expand or establish U.S.-based operations as a result of the Administration’s funding of high-speed rail.

High-speed investments will have a lasting impact on America as well. An efficient high-speed rail network will help us cut oil use in transportation, which will increase our energy independence and enhance our national security. It will help to improve the environment and avoid the impacts of climate change. It will also help America grow and prosper by improving mobility across the country, relieving gridlocked roads and crowded airports, which helps American commerce to thrive.

Eisenhower’s transportation vision helped America to prosper for 55 years. President Obama’s commitment to high-speed rail and a modern, efficient transportation system will put America on track to another century economic success.

A Great Environmental Steward

2009-11-05T21:05:44Z

President Obama and EPA Administrator Lisa Jackson today appointed Judith Enck as the head of EPA's key region two office, the office that handles environmental issues in New York, New Jersey, Puerto Rico, the US Virgin Islands and seven Tribal Nations.

I worked closely with Judith for eight years at the New York Attorney General's office, and I know from personal experience that she will bring exciting energy, skills, and strategy - and a wealth of experience -- to the EPA. There are few people more committed to protecting our communities and public health.

Judith, for example, has an uncanny ability to get things done. During the dark days of the Bush years, the states often found themselves challenging federal efforts to weaken environmental safeguards. We often formed coalitions of states and sued the federal government. Judith kept these coalitions together with her ability to talk to everyone, make sure the needs of the many states were met, and lead by example. And mostly we won.

During the eight years we worked together, Judith also showed herself to be out to be a top listener. She met with all sorts of people, groups, companies and organizations. She listened to their concerns about the environment - whether pro or con - and took them seriously. The solutions we tried to get in place reflected that broad input.

There are a number of tough environmental challenges we now face and we need to explore new ideas, as well as have the courage to stick to tried and true programs that work but that have been unfairly maligned. Judith is both creative and will be open to new ideas, and experienced, and knows what works and what doesn't.

She will be an excellent leader for EPA region 2. And we look forward to working with Judith to achieve meaningful results to protect New York and New Jersey's environment.

The Judiciary's Role in Protecting Clean Air

2009-10-05T20:45:00Z

It's been a good couple of weeks for the clean air advocates.

First the federal appeals court in New York decided that a group of states and others could bring a nuisance case seeking to require the country's largest global warming polluters to reduce their emissions. Soon after Environmental Protection Agency Administrator Lisa Jackson declared an end to "business as usual" as she announced the Obama administration plans to issue regulations to force large power plant and factory operators to track and report greenhouse gas emissions for the first time.

Taken together, these developments constitute important steps in the battle to reduce global warming pollution. Granted, neither victory is conclusive and major legal battles probably still lie ahead on both fronts. But both are signs of a shift in the debate.

The Sept. 22nd federal appeals court ruling is especially gratifying. In my former role as the head of the as Environmental Protection Bureau of the New York State Attorney General's Office, I was a lead litigator in the successful effort by eight states and several land trusts to sue American Electric Power Company and four other large electric power companies. These companies, which together own dozens of power plants throughout the United States, jointly emit 650 million tons of carbon dioxide pollution each year-as much as all of Canada emits.

The ruling that the states can, in fact, bring legal action against each company as a public nuisance is extremely important and upholds a long tradition of judicial protection for the environment.

In a 1906 ruling known as Missouri v. Illinois, for example, the Supreme Court -- long before Congress or state legislatures limited water pollution as they do now -- allowed Missouri to sue Illinois for dumping raw sewage into the Mississippi River, threatening the St. Louis drinking water supply. The Court held that, under our Constitution, "if the health and comfort of the inhabitants of a state are threatened ... it was to be expected that upon the [federal courts] would be devolved the duty of providing a remedy."

And one year later, Justice Oliver Wendell Holmes -- often held up as one of the lions of judicial conservativism -- not only allowed Georgia to sue polluters in Tennessee (Georgia v Tennessee Copper Co.) for "sulphurous fumes" wafting across the border, but imposed precise pollution limits on the upwind copper smelter.

He built upon one of the most profound principles of our Union: that states cannot wage economic or other war against other states. That core concept, which has pulled together the 50 states into one country for more than 200 years, came with the need for the federal government, including the courts, to solve inter-state disputes. "When the states by their union made the forcible abatement of outside nuisances impossible to each ... they did not renounce the possibility of making reasonable demands [to protect] their quasi-sovereign interests ... in this court."

As Justice Holmes recognized, peaceful resolution of disputes by the courts is not a radical or liberal notion; it is a core part of America.

In the American Electric Power case, the power companies argued that any court ruling would be tantamount to re-ordering all U.S. economic activity by imposing broad new limits on carbon dioxide.

Just as had courts before it, this appeals panel saw the difference: "Nowhere ... do Plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches. Instead they seek to limit emissions from six domestic coal-fired electricity plants."

The court closed by quoting a 1981 Supreme Court decision (City of Milwaukee v Illinois) that allowed Illinois to sue Milwaukee for dumping sewage into Lake Michigan and threatening its drinking water because no federal law clearly prohibited such pollution: "It may happen that new federal laws ... may in time pre-empt the field of the federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance" by pollution.

Last week, the federal court did its job -- moving forward to resolve the dispute before it peacefully. The court noted that it is Congress's job to develop a comprehensive solution to global warming. Rather than criticizing the courts for doing what the Constitution empowers and expects them to do, we should all work together to get Congress to do what the Constitution empowers and expect it to do -- enact a comprehensive solution to global warming.

Meeting the Enemy

2009-09-15T20:53:28Z

During eight years as chief of the Environmental Protection Bureau in the New York State Attorney General's Office, I had the political backing necessary to take on large corporate polluters.

Such support is crucial to enforce the hard-won standards contained in our environmental legislation. If there was any doubt, The New York Times ("Clean Water Laws Neglected, at a Cost") has laid bare just want happens when political will fails: polluters with deep pockets and millions-sometimes billions-of dollars at stake run roughshod over our country's cornerstone environmental laws.

Public records, government documents and even reports submitted by polluters themselves analyzed by the Times set out a stunning portrait of non-compliance across the country that includes over half a million violations of the 1972 Clean Water Act since 2004. Well over half of these were described as "significant non-compliance". Still, the Times' research found fewer than 3% of these Clean Water Act violations resulted in fines or other significant punishment.

For anyone in the business of enforcing environmental law, these figures merely provide unsettling detail for a broader picture they already know all too well. The numbers underscore a stark reality: our environmental laws have not failed us; we have failed our environmental laws. To quote the comic strip character Pogo, "We have met the enemy and he is us." Without enforcement, even the finest laws protect little.

Environmental regulation was rarely a Bush administration priority and the New York Times report has given a whiff of what that low priority has produced. Today, there is a new administration in Washington and the appointment of Lisa Jackson as head of the Environmental Protection Agency is encouraging. She told The Times that "strengthening water protections is "among her top priorities."

It will be important that she repeatedly shows her attention to water quality because political direction-and political will-flow from the top. If the EPA shows determination on enforcement, then state regulators will get tough, too. Success in just one high profile case can cause a ripple effect with a far broader impact.

While political will is crucial, it's not enough. Government regulators at both federal and state levels often lack the resources needed to enforce key provisions of the Clean Water Act and other environmental legislation. In New York state, for example, the number of regulated polluters has doubled over the past decade, yet the number of government inspectors has remained roughly the same, according to the Times. When the economic slowdowns force governments at all levels to tighten their belts, enforcement budgets are often among the first cut.

But beyond these staffing numbers there's also a more subtle-equally damaging-barrier to enforcement that has grown steadily over the past two decades: the ability of defendants to drag out enforcement cases to the point that the process itself becomes a deterrent to regulators. If they launch an enforcement case today, they know they are taking on a long and exhausting battle, one that could last years-while still dealing with everything else on their plate.

For example, it took the New York State Attorney General's office, working with EPA, the Department of Justice and other states and environmental organizations (including NRDC) ten years to win cases against major polluters who had violated the Clean Air Act's New Source Review Provisions.

It was an important case because the pollution was costing thousands of lives each year and although we won it, the very length of such a fight raises questions about the balance of public interests versus the interests of private polluters; between public health and private gain. To protect the public, the pace of these cases must go faster at both the administrative and judicial level. There needs to be greater presumptions favoring the public interest.

To achieve that, we have to ask ourselves how we feel as a people about environmental law, the value we place on it and the value we place on those who regulate it. All too often, the regulator's public image is a negative cliché: a bureaucrat interested mainly in disrupting business and endangering jobs. The truth is far different. The New York Times story provides a glimpse of what happens when regulators are unable to enforce environmental laws. Law enforcement is critical to leveling the playing field and ending the competitive advantage given to polluters. Consistent enforcement is also crucial to create the kind of predictability needed to justify for new investment. But the real evidence of under-enforcement is that, years after the deadlines imposed in key environmental legislation, we haven't yet met the goals set out in those laws and people still get sick from drinking water.

Rainstorm Couldn't Stop the Made in America Jobs Tour

2009-08-25T16:30:11Z

A ferocious storm provided an electrifying backdrop for the recent kick-off of the Made in America Jobs Tour, the first of 22 rallies across the country to promote the job creating potential of a new clean energy economy.

This tour offers an opportunity for people to tell a new story- and hit back on those "opponents of change" who are trying to block progress for America. Over the past several weeks, we have heard too much fear-mongering and misinformation sponsored by front groups of big oil and coal associations. Now, it's time for a new story about how we can create good-paying jobs through clean energy investments in Cleveland and across the country.

The quick moving storm did not dampen the enthusiasm of the rally near the Cleveland Science Center. As lightening bolts danced off Lake Erie, the rally shifted to the center's parking garage. Outside, the center's iconic 150 foot wind turbine provided a fitting image for a new clean energy future in the job hungry rust belt.

Speakers from all walks of the labor, business, education and environmental communities came forward to talk about how the clean energy economy can help American workers.

Speakers like United Steelworkers metal greaser Lee Geisse, who builds titanium hubs for wind turbines in Louisville, Ohio. Lee, wearing her union hard hat, said: "I'm lucky enough to have worked in a place that worked all through the downturn. My company had the foresight to invest in the clean energy economy."

I had a few minutes after the rally to talk with Lee. When I asked her about the response she gets when she talks to her colleagues about clean energy, she said my question is a fairly typical one from the "green" world. But she added that union members completely understand. "The workers know we need to move to clean energy," she said. "We're smarter than they think."

You can see Lee in short video clip, here:

Lee understands that clean energy policies can create good-paying jobs in Cleveland and across the country. According to the Political Economic Research Institute (PERI), we can create over a million and a half jobs across America by investing in clean energy. In the Cleveland metropolitan area, investment in clean energy would produce more than 10,000 jobs-and more than half of them would go to people with a high-school degrees or less.

Investing in clean energy will have additional benefits, like weatherizing homes so people in Cleveland save money -- up to 4 percent of their income-- on heating and cooling bills. And these investments will improve access to public transportation so that people can save money -- 1-4 percent of their income -- getting to work.

Tom Conway, the international Steelworker's Union vice president, was emphatic about the growth potential from clean energy technologies in Ohio, where turbines are being build in abandoned and converted steel mills. As he said: "When you think about green jobs, green jobs are just a lot of regular, traditional jobs that help reduce the carbon footprint and help our planet be cleaner...it's work that we know we can do, that Americans can do. This is the way to move forward and rebuild manufacturing that we need so importantly in this nation."

By the time the rally came to an end, the sun was peaking through the crowds, glinting off the powerful turbine blades nearby. Mother Nature had demonstrated that she is nothing to tamper with.

There's no doubt that people like Tom and Lee get it. And I know they are not alone. Across America people understand that we can make our air safer and our communities stronger by moving to clean energy. We don't have to choose between good jobs and the environment- we can have more good jobs and a safer environment.

The Made in America Jobs Tour, organized by the Alliance for Climate Protection and the Blue Green Alliance, including the Natural Resources Defense Council, will sponsor more than 50 events in 22 states, including St. Louis, Missouri; Detroit, Michigan; Gary, Indiana; and Pittsburgh, Pennsylvania. Check the website www.repoweramerica.org/tour for more information about when a rally will be coming to a community near you.

Secretary LaHood and Shifting the Way we Build

2009-06-20T15:30:27Z

President Obama reached across the political aisle when he selected Representative Ray LaHood, a Republican from Illinois, as his Transportation Secretary. The appointment was met by some skepticism: LaHood's resume on transportation issues was decried as very thin.

But Secretary LaHood earned special praise earlier this week when he joined the leaders of the Environmental Protection Agency and the Department of Housing and Urban Development in a new Partnership for Sustainable Communities, a landmark effort in recognizing the vital and logical but not always well understood relationship between housing, transportation and the environment.

The ambitious, collaborative approach these three agencies are taking will have a positive impact on the lives of millions of Americans and represents a shift in the way we build our country and protect our environment.

Considering that housing and transportation account for two of the largest slices of our emissions pie, the Partnership and its forthcoming work will be essential to America's continued prosperity in the 21st century.

In testimony before a Senate committee, Secretary LaHood noted the urgent need to reduce emissions, the health benefits of well-designed efficient communities and the savings associated with public transit. As my colleague Kaid Benfield noted in his blog, Secretary LaHood's testimony painted a clear picture for the future of transportation:

"Transportation can play an enhanced role in creating safer, healthier communities with the strong economies needed to support our families," he said.

"Integrating transportation planning with community development and expanding transportation options will not only improve connectivity and influence how people choose to travel, but also lower transportation costs, reduce dependence on foreign oil and decrease emissions," LaHood continued. "All segments of the population must have access to safe and convenient transportation options to get to work, housing, medical services, schools, shopping and other essential activities including recreation."

As EPA Administrator Lisa Jackson succinctly put it in her own testimony before the Senate Banking, Housing and Urban Affairs Committee, "where you live affects how you get around, and how you get around often affects where you live. Both decisions affect our environment."

Secretary LaHood's statement, which highlighted the economic and environmental importance of developing a new transportation network (and ethos) in the United States, showed strong vision in thinking outside the highway box. And the Partnership for Sustainable Communities is poised to do just that.

Making Smart Choices for America's Clean Energy Future

2009-06-18T21:36:25Z

According to an assessment by the International Energy Agency (IEA), the world is going to invest more than $16 trillion in energy by 2030.

There are two ways that we can invest this money: a smart way and a dumb way. If we invest wisely, we will move America to a new clean energy future that makes us a leader for the 21 century. But if we stumble and invest in an unwise way - focusing on old, dirty technologies and fossil fuels - we will end up being left behind.

As two new reports released today show, America can benefit greatly from significant energy investments in clean energy-if we are smart. If we are smart, we will create millions of new jobs, increase our energy independence, and protect the planet from global warming pollution. And these will be opportunities for people across all income and education levels - with even more opportunities for advancement.

If we are smart, we will use this investment to increase our energy efficiency - through weatherization and retrofits. This will save consumers on their utility bills.

If we are smart, we will increase people's access to public transportation thereby lowering people's living expenses.

For too long, we've looked at economic opportunity and protecting the environment as being in conflict with each other. But, this view is at odds with the growing body of evidence that demonstrates we can strengthen our economy and fight global warming. We can shift to clean energy, protect the planet and create new opportunities for families - and we can do this all at the same time.

Today, NRDC is helping to release two major reports from the Political Economy Research Institute at the University of Massachusetts, Amherst (PERI). One is co-authored by NRDC and Green For All. The other is a complementary report by PERI and the Center for American Progress (CAP).

The NRDC/Green For All report, called "Green Prosperity: How Clean-Energy Policies Can Fight Poverty and Raise Living Standards in the United States," shows that shifting from traditional fossil fuel to clean energy will improve the standard of living for millions of Americans across all skill and education levels, especially among lower-income families. Nearly half of the 1.7 million new jobs created by a $150 billion clean energy investment will be accessible to workers with relatively low levels of formal education. Of these, nearly 75 percent will have high potential for advancement. Plus, there will be additional opportunities to lower monthly energy and transportation costs.

The other report, "The Economic Benefits of Investing in Clean Energy" presents a broader view - showing how the combination of the American Recovery and Reinvestment Act (ARRA) and the American Clean Energy and Security Act (ACES) could serve as the foundation for bringing total clean-energy investments in the United States to approximately $150 billion per year, creating 1.7 million jobs. That kind of growth would create nearly a 1 percent drop in the national unemployment rate.

And what about the concerns that we sometimes hear that low-income Americans would be left behind if our nation addresses climate change?

It turns out that's just not true. The NRDC/Green For All report concludes that half of the net new jobs created by clean-energy investment will be accessible to workers with relatively low levels of formal education. (You can learn more about clean energy jobs at http://www.nrdc.org/energy/greenjobs/ .)

What's particularly significant about the types of jobs created by clean energy is that compared to fossil-fuel energy jobs there is a much greater opportunity for upward advancement. Three out of every four clean-energy jobs are accessible to people with just a high-school education are upwardly mobile jobs, meaning they provide the opportunity for advancement and higher income, giving people the power to lift themselves out of poverty.

Consider these additional findings:

Major investments in clean energy will mean significant improvements in energy efficiency in buildings and homes, lowering overall energy costs for consumers, especially for lower-income households. These savings could be as high as 4 percent of household incomes for some families.

New investments in clean energy will also boost public transportation, especially in urban areas with disproportionately-large populations of lower-income families. Increased investment in public transportation could lead to an average reduction in living costs of 1 to 4 percent per family.

Now we just have to sure to make the right choices to make those green jobs and other benefits for lower-income Americans happen. And America may soon have this opportunity with the clean energy and climate legislation currently moving trough Congress.

The American Clean Energy and Security Act (ACES), that is moving through the House, is likely to be an extremely important driver of the clean energy investments that American needs. While the bill is not perfect, we need to move forward with this legislation to ensure that we can shift to clean energy future that will deliver millions of new jobs, cut global warming pollution and create new opportunities.

Now is the time for leaders in Congress to move America in a new direction. Now is the time for leaders to make smart choices for all Americans.

Describing the Devastation of Mountaintop Mining

2009-01-29T14:00:55Z

As a lawyer, I've written about environmental harms quite often. Yet as I recently flew over several of the larger mountaintop mines in eastern Kentucky, I struggled to find the words to describe the devastation. The scars where trees, topsoil and many feet of unwanted rock have been ripped off, leaving barren rubble behind. The dams at the head of the valleys (known locally as "hollows") that fill the steep valleys with the rubble and other fill. Unnaturally colored ponds sitting behind the dams.

I visited eastern Kentucky at the invitation of Marianne, a friend from school, and her husband Jim. While there, we met many people engaged in fighting mountaintop removal and took an air tour of the mining sites. Appropriately enough, after our tour, we landed at Wendell Ford airport, the site of a former mountaintop mine now turned into a flat table where a steep mountain had once been. Greeting us at the airport were posters claiming that "coal is the future," with photos that can only be described as Orwellian:

Before: a mountain, looking barren and useless.
During: big trucks and bulldozers, implying jobs.
After: animals and grasses and specific claims that reclamation of mined areas "improves" the land.

The lie represented by those photos was seen clearly from the air where all we could see for miles was barren rock, not fertile productive farms. Rick, who has lived in the area his entire life, told us that there are no animals in mined areas. Animals, he explained, need nuts to last through the winter. Nuts obviously come from trees and the biggest piece missing from these lands are trees.

Truman, another life long resident of the area, put it simply: "Trees don't grow in rock rubble."

Another area resident showed us where coal companies, rushing to mine before the end of the Bush Administration, pushed over all the trees, further devastating the landscape without any regard for logging income and jobs that would be lost.

I asked our companions why so few people complain about the mines destroying their water supplies, covering their houses with toxic dust and cracking their foundations with blasting?

Carl, a third-generation miner now retired, says he's speaking out and many people tell him privately that they agree, but can't speak publicly because a family member has a job with a mine and would lose it if they did. "It's the only way to support their families now; that's why we need some wind farms and other energy sources around here," he said.

Yes, indeed. Renewable energy is part of the answer. So is energy efficiency - I did not see one compact fluorescent bulb in or on any of the houses or buildings in the hollows. We also need to cap carbon and make coal pay its true price so that clean energy can compete with it. NRDC will be working on all of that.

Oh, and we found out that the coal ash that caused the big spill in Tennessee at the TVA Kingston plant came from the very hollow - Montgomery Creek - that we visited. The coal destroyed one community when it was dug up and another when it was dumped.

Seems so last 18th century. I know that a 21st century technology and policy can do better. Working with the new Administration in Washington and the local communities that are literally being blown away, we will.

The photographs that accompany this post were taken by NRDC member J. Henry Fair. They were both taken at Kayford Mountain in Southern West Virginia in late 2005. Additional photographs by Henry can be found at http://www.jhenryfair.com and http://www.industrialscars.com

True Leadership Coming to the EPA

2009-01-14T16:00:59Z

My colleagues and I at NRDC were pleased at President-elect Obama's recent announcement that Lisa Jackson will head the Environmental Protection Agency. Lisa has been a strong, honest and knowledgeable voice for the environment as Commissioner of the New Jersey Department of Environmental Protection. Her vigorous advocacy for the Regional Greenhouse Gas Initiative (RGGI) showed true leadership. It is thus exciting news that the EPA will have her at the helm.

Jackson will have a tough job reversing many years of rollbacks and making up for lost time. In this blog post and the following two, I offer a few thoughts on some larger scale themes that might help a re-invigorated EPA. Others should also think hard and offer helpful suggestions as the task will require the support of all of us. (These ideas are taken from recent presentations I made at New York University Law School and Pace Law School.)

Right from the beginning, EPA needs to bring back the culture of enforcement, of making sure the laws on paper make a difference in the real world. Real enforcement has three components.

First we must be able to bring the cases. For years, access to the courts has been eroded by an ever-more constrained view of what is known as "standing," the shorthand term for who is entitled under law to bring cases to the courts. We must reexamine and find a way to restructure our understanding of public interest standing, so issues of broad concern, like many environmental matters, can be more easily heard by the courts. EPA should be sure to acknowledge the broad benefits of its actions so that such benefits can form the basis of their own and citizen enforcement actions. Also, the Department of Justice should re-visit and revise its policy of when to raise standing challenges in cases brought by public interest plaintiffs. (DOJ has often revised its policy on this issue in the past.)

Second we must actually bring the cases. Right now, frankly, most violations are ignored. In part, there just are not enough enforcement resources. For example, the Clean Air Act New Source Review (NSR) program mandates that upgraded power plants, refineries, and factories install state-of-the art pollution controls. These controls would avoid over 20,000 premature deaths each year and reduce hundreds of thousands of hospital visits every year. (Those are the EPA's numbers, not mine.) But the NSR program for years had been ignored or underutilized by the federal and state governments. Indeed, non-enforcement was such the norm that when the government at the end of the Clinton administration began enforcing the NSR program against power plants, industry squealed, even persuading the media and the incoming President Bush to take seriously the notion that aggressive law enforcement is unfair. When non-enforcement becomes a right, we have a sad state of affairs.

Third, we must insist making polluters pay the full penalties the law provides. Right now penalties are almost always cheaper than cleanup so it's almost always cheaper to wait to until caught. When scofflaws do this, the good companies that actually comply with the law have to compete in the market against the violators who have lower costs. That's not fair to those who follow the law.

Take another NSR example. After a decade-long battle, NRDC, EPA, New York and several other states and environmental organizations agreed to settle a lawsuit over American Electric Power's violations of NSR requirements. In the settlement, AEP agreed to install almost $4.5 billion of pollution controls that should have been installed a decade ago, to pay $15 million dollars in civil penalties, and to pay $60 million dollars in environmental mitigation projects. That's $75 million and that sounds like a lot. However, in the same year, AEP's revenues exceeded $13 billion. That's nearly 200 times the penalties and projects. More important however, AEP's violations allowed it to delay the installation of $4.5 billion of controls for a decade. That delay was worth hundreds of millions of dollars to AEP. Indeed, the penalty of $15 million is less than the time-value of that $4.5 billion for four weeks. (I'm not criticizing the lawyers who reached this settlement; over the years I've also been involved in many cases with penalties less than what they in theory should be. I was involved in the early stages of this AEP case. We cannot make the change we need in one case, but only through articulated policies and consistent practices supported from the top.)

Imposing real penalties -- that even when discounted by the risk of actually getting caught -- would exceed the benefits of polluting and would create financial incentives for compliance. It would shift the advantage to those who comply, creating a real "market-based" approach in the process.

Tomorrow I'll post the second part of this series on the changes we need in environmental law to ensure that the EPA, as well as independent advocacy groups like NRDC, can seek the levels of protection that are truly needed.

Independent Voices and Environmental Law

2008-12-23T22:45:37Z

The holiday season is typically a time when we all reflect on the people and groups who do good, and how we can all -- in our own small way -- make a difference. In the environmental sector, nonprofits like NRDC and our allies have historically played a significant role in creating such positive change. Over the past year, we've all witnessed how powerful the very concept of "change" has become.

Today, we're about a month away from the inauguration of a new Administration in Washington, an inauguration that is likely to bring far greater official interest in environmental well-being than we've seen in years. Many believe that the importance of independent environmental organizations will decrease in the upcoming administration. But, counterintuitive though it may seem, the work for nongovernmental organizations remains as critical -- perhaps even more so -- in steering and assisting what we hope will be an eager and willing administration toward the best decisions through our advocacy.

Imagine how different things would be right now if over the last eight years, we'd had independent organizations watch-dogging the government's oversight of financial markets. Imagine if we had had voices who pushed back at what has become an almost religious faith in unregulated markets; voices who asked loudly and persuasively whether some of the claims being made were not factually baseless, voices who were part of the negotiations when rules were being established to ensure there was transparency, fairness and accountability.

Unfortunately no organization with enough power in the financial arena has existed.

For environmental protection, however, we've had this type of oversight in the role of "public defenders" since the early 1970s. These nongovernmental organizations, as we're called around the world, played significant roles in crafting legislation like the Clean Air Act, the Clean Water Act and the National Environmental Policy Act.

Take this story from the last 48 hours before Congress adopted the 1990 Clean Air Act amendments. Three NRDC lawyers were keeping a close eye on the draft legislation as negotiations continued. It was 10 o'clock on a Friday night when the other side dropped what they called "technical amendments."

At first glance the amendments seemed to be highly-detailed and inconsequential editorial corrections. But David Hawkins, at the time NRDC's Director of Air and Energy, caught a new semi-colon that would have changed the meaning of a critical paragraph and expanded the ability of power plants to delay compliance with the new law. He called congressional allies and the new semi-colon disappeared. Imagine the level of commitment and understanding it takes to catch the importance of a seemingly innocuous semi-colon late on a Friday night.

Nongovernmental organizations like NRDC also give life to the words in laws by being some of their most aggressive defenders and enforcers. Almost 40 years ago, for example, a local group challenged the decision of the federal Department of Transportation to build a freeway through a public park in Memphis, arguing that Congress had intended to prohibit the government from putting the road through the park unless all other options were truly infeasible. The government brushed off this feasibility analysis. In a landmark decision, the Supreme Court reversed the government's decision and said that Congress meant what it said.

The following year, the Sierra Club challenged the Department of Interior's plans to build a ski resort in the Sierras. In another landmark Supreme Court ruling, Justice William O. Douglas noted the importance of independent voices: "[B]efore these priceless bits of Americana are forever lost ... the voice of the existing beneficiaries of these environmental wonders should be heard."

Similarly, when utilities figured out how to get around the regulations of the original Clean Air Act -- by building their smokestacks higher, thereby pushing the pollutants higher into the atmosphere and dispersing them but also creating acid rain -- it was nongovernmental organizations, not the EPA, that pushed back.

At one point, NRDC alone had more Clean Water Act enforcement cases than the entire Department of Justice. If you look at environmental case law history, almost all the cases have been brought by groups like NRDC and our allies.

Undoubtedly, even in this new phase of history we are about to enter, nongovernmental organizations with such a significant legacy of environmental law reform will remain strong and crucial voices.

NRDC and Utilities Agree: Efficiency Works

2008-12-20T16:05:17Z

On Friday, I took the train to DC to join a panel discussion on energy efficiency at the National Press Club. NRDC is working with a broad coalition of energy groups that are calling on Congress to use part of the $700 billion stimulus package to promote energy efficiency in our homes, schools, offices and businesses.

Our coalition includes NRDC, the Edison Electric Institute, representing investor-owned utilities, which comprise 70 percent of the U.S. electric power industry, and two energy advocacy organizations, the Alliance to Save Energy and the Energy Future Coalition. Together, we urged that Congress direct about $33 billion toward increasing the energy efficiency of America.

NRDC has long held that energy efficiency is the fastest, most cost-effective and cleanest energy resource, which will save consumers millions, cut global warming pollution, and reduce our dependence on old, dirty fossil fuels.

Yet commercial and residential buildings today account for approximately 40 percent of national energy consumption, 70 percent of electricity consumption, and the largest portion of global warming pollution in the United States.

Most of this energy is wasted -- our houses leak warmth, our lights emit more heat than light, and our appliances drain energy even when they are "off." It's like we have a hole in our pocket, and our money just keeps falling out.

But we have the opportunity to change this direction. We can move our country to a new more efficient approach to energy, an approach where we save energy, instead of wasting it. This will help to immediately create jobs, reduce consumer bills, cut carbon pollution and create the foundation for long-term improvements in all of these areas.

By making our buildings, homes and schools more efficient, we can create a half million green permanent jobs, reduce global warming emission by between 700 and 900 million tons of CO2 (according to a McKinsey analysis), and cut electricity demand enough to reduce the need for about 50 average-sized power plants.

Here's the kicker: by moving in this direction, consumers would save tremendous amounts of money.

The proposal we put together would invest approximately $33 billion for greater energy efficiency. This one-time investment would trigger private sector investments and government minimum efficiency standards that would ultimately save about the same amount -- more than $30 billion -- each year within a decade or two.

One of our primary recommendations is to make grants available to states and local governments giving them a huge incentive to increase efficiency. Under this program, states would provide funding under the grants program to entities such as utilities, cooperatives, energy service companies and school districts. The grants would fall into the following broad categories:

Home Energy Efficiency Retrofits. $3 billion for a home retrofit program with the goal of retrofitting 1.5 million homes within two years.

Retrofits of Public Buildings. $3 billion for energy audits, advanced metering and the co-funding of comprehensive energy efficiency retrofits for state and local government buildings, including buildings and facilities of state government agencies, public universities, municipalities, counties and vocational districts.

Commercial Building Efficiency Retrofits. $3 billion for a program that would provide an incentive to commercial building owners for efficiency improvements based on demonstrated energy savings.

Efficiency Programs Matching Fund. $3.5 billion for a federal match of state approved energy efficiency programs that are monitored and verified to ensure that energy efficiency measures are being implemented and are saving energy on a cost-effective basis.

Having worked in state and local governments for 17 years, I can attest to this approach being a very effective way to mobilize action on this front.

One of the key objectives of this plan is to increase retrofitting for buildings -- private, public and commercial. Retrofitting homes is a good example of how energy efficiency can help us to save money, cut global warming pollution and create new jobs.

According to our analysis, home retrofits will within 10 years :

Save consumers some $25 billion annually in utility and oil bills.

Cut carbon dioxide emissions by 140 million tones annually.

Create about 500,000 jobs, about half in the building construction trades and the rest from spending the money saved on utility bills on other goods and services.

Commercial retrofits will within 10 years:

Save businesses at about $13 billion annually and reduce everyone's bill by another $10 billion annually.

Cut carbon dioxide emissions by 90 million tonnes annually.

Create about 150,000 permanent jobs.

There were many other important issues that we discussed -- like the importance of decoupling our utility services, meaning that states begin regulatory reforms that include breaking the link between utility sales and revenue (this is critical to promoting efficiency because efficiency reduces utility sales), and improving building codes. All of which are vital to saving money and greening our planet.

But here's the take away: We know that efficiency works. We know that utility regulatory reforms to promote efficiency work. We know that Americans have the ingenuity and skills to get working with new, green jobs. By making these investments in energy efficiency, we can cut our waste and build the foundation for a new clean energy future.

Accountability and the Law

2008-12-16T16:39:00Z

NRDC recently won a case in federal court that held accountable a major utility that tried to snooker the American public. This decision upheld a core purpose of much of NRDC's litigation, vindicating, in turn, a core principle of our organization: Polluters should be held strictly to the limits imposed by law.

Before NRDC and the Southern Environmental Law Center sued, Duke Energy was ignoring a key Clean Air Act provision that protects the public against excess emissions of hazardous air pollutants, including mercury. Duke argued that the law's stringent limits -- requiring that emissions be no higher than the best of control technology allows -- did not apply because it received its construction permit -- and put the first shovel into the ground -- 10 days before a federal appeals court struck down the rule on which Duke was relying for its legal argument.

Duke knew or should have known all along that the rule on which it relied was invalid. The judges on the DC Circuit Court of Appeals indicated clearly a month before Duke received its permit that they would invalidate the rule. Duke's attorneys were in the courtroom and heard the same indications we did. So it would appear that Duke was trying to beat what it knew was going to be an adverse ruling and in doing so completely disregarded the public interest and the purpose as well as the letter of the Clean Air Act.

Through this litigation, we've also been able to hold accountable the state of North Carolina and its environmental officials who have been particularly weak in their watchdog role over Duke. The state officials should never have granted the construction permit without first requiring the stringent limits required by the Clean Air Act. They too knew the DC appeals court was about to nullify the rule on which Duke relied.

Duke now will be subject to the strict pollution control requirements required by law. We do not yet know what that will mean in terms of emission reductions because that depends, in part, on how North Carolina responds to the Court's decision. But it is at least possible, and maybe likely, that Duke's permit will soon contain much, much tighter emissions limits on extremely hazardous pollutants.

There are maybe a dozen other power plants that started construction before the federal appeals court overturned the EPA action. All of them will now be subject to the tighter requirements. And we hope that after January 20th, the Obama administration will notify all those plants that it intends to tighten emission limits. So through our litigation, pollution reductions will be magnified.

Justice is being served. A federal judge has said that neither Duke nor North Carolina is immune from the Clean Air Act. This was the first decision from a federal judge after the appeals court ruling. We're confident it will not be the last.

Giving Thanks This Season With The Peter Berle Environmental Integrity Award

2008-12-08T15:09:17Z

This holiday season, I'm celebrating by expressing my gratitude to one of the environmental movement's great trailblazers - Peter Berle. I encourage others to show their appreciation for great environmental leaders of today by nominating them for a new award in Peter's name.

Peter Berle was a pioneer and leader of the modern environmental movement locally, nationally and internationally. He appreciated more profoundly than most the importance of environmental safeguards in shaping our society. He led a law firm specializing in environmental protection decades before this was common; he led the New York State Department of Environmental Conservation; he led the Audubon Society. His advocacy for effective and tough health protections and the creation of the majestic Adirondack State Park continue to benefit all New Yorkers and others around the world. He was also a terrific person who lived with great passion; for a while he lived near me and whenever I saw him he seemed to radiate energy.

Peter passed away a year ago. We are grateful for his legacy and mindful of all that he did to our mutual goals. In his honor, the Century Foundation - in cooperation with the Natural Resources Defense Council, the National Audubon Society, the Environmental Defense Fund, the Environmental Law Section of the New York State Bar Association and former colleagues of Peter A. A. Berle - has established a new award intended to recognize environmental integrity demonstrated by public officials and private citizens in the United States.

The Peter A. A. Berle Environmental Integrity Award will be given annually to one or two U.S. citizens who, through action or scholarship, provide innovative leadership in helping the United States and the world confront the challenges of climate change, renewable energy, depletion of the oceans, species extinction, air, water and soil contamination, and the urban environment. The first award will be presented in the spring of 2009. The deadline for submissions is February 1, 2009, and it includes a prize of $2,000.

So join me and get into the holiday spirit this year by nominating the environmental leaders you are grateful for: http://www.nrdc.org/about/berle-award-application.asp.