[TheClimate.Vote] September 30, 2018 - Daily Global Warming News Digest

[Richard Pauli]

/September 30, 2018/

[it matters greatly]
*Kavanaugh Confirmation Fight Has Consequences for Climate Law 
<https://www.scientificamerican.com/article/kavanaugh-confirmation-fight-has-consequences-for-climate-law/>*
<https://www.scientificamerican.com/article/kavanaugh-confirmation-fight-has-consequences-for-climate-law/>The 
Supreme Court could hear cases related to the EPA's climate obligations 
and other environmental issues
By Mark K. Matthews, E&E News on September 27, 2018
If Senate Republicans plow ahead and confirm Brett Kavanaugh to the 
Supreme Court, the longtime jurist could have near-term impact on a slew 
of environmental cases.
Among the disputes the high court has agreed to hear this fall: a case 
that pits villagers from India against the World Bank in a fight over a 
coal plant. If the villagers prevail, it could have worldwide economic 
and political repercussions.
Several other climate-related issues have a decent shot, too, of getting 
a future date with the Supreme Court, including one closely watched 
fight--the "kids' climate case"--that makes the far-reaching argument 
that the government must take action on global warming so as not to 
imperil future generations.
- - - -
Kavanaugh--currently a judge on the U.S. Court of Appeals for the 
District of Columbia Circuit--would replace Justice Anthony Kennedy, who 
retired in July after three decades of service and dozens of landmark 
decisions...
- - - -
There's a lot at stake for domestic and international efforts to address 
climate change. Here are five brewing legal fights in which the future 
justice could play a role.
- - - - -
*KIDS WANT ACTION ON CLIMATE*

    When they filed their lawsuit in 2015, the plaintiffs behind what
    has become known as the "kids' climate case" picked the biggest
    target available: the U.S. government.

    Three years later, their case--Juliana v. United States--appears
    bound, tractor-beam-like, for the Supreme Court.

    The 21 plaintiffs, all children and young adults, argue that the
    federal government has chipped away for years at their
    constitutional right to live in a safe environment.

     From one administration to the next, the government allowed
    decades' worth of planet-warming emissions to accumulate, even
    though top researchers at national laboratories and around
    Washington knew of man-made climate change and its perils, they say.

    Through their case, the plaintiffs want a court to declare that
    their rights as U.S. citizens have been violated and to force the
    government to draft a plan to phase out fossil fuels.

    No matter the outcome of the case, which is slated for trial
    beginning in late October in a federal Oregon court, it will likely
    wind its way back to the Supreme Court.

    Justices in July rejected the Trump administration's attempt to halt
    the trial, though they hinted at concerns at the case's scope (E&E
    News PM, July 30).

    Julia Olson, counsel for the plaintiffs, said then, "This decision
    should give young people courage and hope that their third branch of
    government, all the way up to the Supreme Court, has given them the
    green light to go to trial in this critical case about their
    unalienable rights."

    A Justice Department spokesperson called the case "deeply misguided"
    and noted that the Obama administration had opposed the suit, too.

*VILLAGERS TAKE ON THE WORLD BANK*

    In January, a group of villagers from western India petitioned the
    Supreme Court to hear their case against the World Bank, and at Oct.
    31 oral arguments, the justices will listen.

    At issue is the liability of the International Finance Corp., the
    lending arm of the World Bank, which financed a coal plant in
    Gujarat, on India's western coast, home to the plaintiffs.

    The plaintiffs sued the IFC in 2015, accusing it of violating its
    own environmental policies when it extended $450 million in loans
    for the project to Tata Power Ltd., an energy conglomerate in the
    country.

    "Without the IFC's funding, the Tata Mundra Project could not have
    gone forward," they said (Climatewire, July 26, 2017).

    The plant spews coal dust, ash and other toxic debris, according to
    the plaintiffs, who say its existence has killed and scared off
    fish, which they rely on for income. But the D.C. Circuit ruled
    against the plaintiffs, who want a court to declare that the IFC is
    not immune to lawsuits like theirs.

    The IFC defends its actions, and in court papers, its lawyers argue
    that allowing this case to proceed would expose multinational
    entities such as the World Bank or the International Monetary Fund
    to a rash of similar suits from foreign nationals.

    In a brief filed Sept. 10, Donald Verrilli Jr., former solicitor
    general under President Obama, who is representing the IFC, stuck to
    the slippery-slope stance.

    A ruling against the IFC, the brief says, "would open U.S. courts to
    a flood of foreign-focused lawsuits that would require U.S. courts
    to second-guess international organizations' core policy judgments,
    and that have only the most tenuous connection to the United States."

*KAVANAUGH QUESTIONS EPA'S REACH*

    One big question before the high court is one that Kavanaugh already
    has dealt with--how far can EPA go to regulate hydrofluorocarbons, a
    class of potent greenhouse gases?

    Under Obama, EPA in 2015 barred the use of HFCs in four major
    economic sectors: aerosols, air conditioning for new cars, retail
    food refrigeration and foam blowing.

    Two foreign manufacturers sued in response to the rule with the
    claim that EPA had overstepped its authority under the Clean Air Act.

    Kavanaugh agreed, and in a 2017 majority opinion for the D.C.
    Circuit, he asserted that EPA had "tried to jam a square peg ...
    into a round hole."

    "The Supreme Court cases that have dealt with EPA's efforts to
    address climate change have taught us two lessons that are worth
    repeating here," he added.

    "First, EPA's well-intentioned policy objectives with respect to
    climate change do not on their own authorize the agency to
    regulate," Kavanaugh continued. And second, he wrote, "Congress'
    failure to enact general climate change legislation does not
    authorize EPA to act."

    The issue is now on the radar of the high court, which soon could
    decide whether it wants to weigh in. Justices are scheduled to
    consider petitions challenging the ruling at their Oct. 5 conference.

    If Kavanaugh is ultimately confirmed, his biggest impact likely
    could be his previous opinion, as it's typical for justices to
    recuse themselves from cases in which they already have played a part.

*WHAT HAPPENS TO TRUMP'S REPLACEMENT OF THE CLEAN POWER PLAN?*

    Even if justices reject the HFC case, EPA's authority to regulate
    greenhouse gases may still wind its way back up to the high court in
    the form of challenges to the Affordable Clean Energy rule, the
    Trump administration's proposed replacement for the Clean Power Plan.

    The ACE rule is aimed at cutting carbon dioxide emissions from power
    plants. If finalized, it's certain to face strong legal challenges
    from opponents who say the rule does not do enough to cut CO2 or
    protect public health.

    Because EPA is still developing the rule, it would likely take until
    2020, barring any major delays along the way, before the case could
    even get in front of justices, according to Joanne Spalding, deputy
    director of the Sierra Club's Environmental Law Program.

    EPA would first have to finalize the rule, and initial challenges
    would have to go through the D.C. Circuit.

    A faster way to the high court would be if the D.C. Circuit agreed
    with a recent request by states and environmental groups to decide
    on litigation on the Clean Power Plan. The case has been on hold as
    the agency has been drafting the ACE rule.

    If the court does decide the case--and Spalding suggested the D.C.
    Circuit could respond when the latest extended stay of litigation
    expires--parties would then be open to appeal to the Supreme Court.

*CLEAN CARS FIGHT RAISES 'INTERESTING' LEGAL ISSUES*

    The high court in years ahead could also look at the Trump
    administration's bid to roll back motor vehicle mileage and
    pollution rules.

    EPA and the National Highway Traffic Safety Administration are
    examining whether to freeze the standard at 30 mpg from 2020 through
    2026. The Obama administration wanted 36 mpg by 2026.

    The Trump agencies also proposed peeling back California's authority
    to set more stringent standards. That could kill the Golden State's
    programs aimed at getting more clean cars on the road.

    If a final rule revoked California's waiver, the state would likely
    sue. But California and other states could also separately sue over
    a final rule that froze mileage and emissions at 2020 levels. That
    case potentially would question EPA's ability to allow more tailpipe
    pollution, given the Supreme Court's decision in Massachusetts v. EPA.

    Ann Carlson, co-director of the Emmett Institute on Climate Change
    and the Environment at the University of California, Los Angeles,
    said the Supreme Court likely would be interested, especially in the
    California waiver question, because it's "novel."

    "It would raise questions that the justices would find interesting,"
    she said. "They've never weighed in on the power of California under
    the waiver."

    In terms of a case looking at vehicle mileage and pollution levels,
    Carlson said, the court has "tended to take up these big, meaty
    environmental issues," like regulations on mercury pollution and
    greenhouse gases.

    "It just seems like they have shown interest in weighing in on EPA
    authority and interpreting the Clean Air Act in particular," she said.

    If he's confirmed, Kavanaugh might urge his colleagues to look at a
    case dealing with EPA authority. "He's interested in questions of
    agency power and statutory power that these cases raise," Carlson said.

Reporters Benjamin Hulac, Niina Heikkinen and Anne C. Mulkern contributed.
https://www.scientificamerican.com/article/kavanaugh-confirmation-fight-has-consequences-for-climate-law/


[Financial Times report]
*BoE finds banks unprepared for climate change risks 
<https://www.ft.com/content/ce1d8ece-c19c-11e8-95b1-d36dfef1b89a>*
Only 10 per cent of lenders take long-term view of impact, survey shows
     The Bank of England is preparing new guidelines for how banks and 
insurers should manage climate change after it conducted a probe that 
found only 10 per cent of banks take a long-term view of such risks.
The BoE's Prudential Regulation Authority undertook its survey after 
Mark Carney, the central bank governor, warned of the "catastrophic 
impacts" of climate change and the possible destabilising impact it 
could have on the financial system.
https://www.ft.com/content/ce1d8ece-c19c-11e8-95b1-d36dfef1b89a
- - - --
[read it in the original PDF report 
<https://www.bankofengland.co.uk/-/media/boe/files/prudential-regulation/report/transition-in-thinking-the-impact-of-climate-change-on-the-uk-banking-sector.pdf>]
*Transition in thinking: The impact of climate change on the UK banking 
sector 
<https://www.bankofengland.co.uk/prudential-regulation/publication/2018/transition-in-thinking-the-impact-of-climate-change-on-the-uk-banking-sector>*
This PRA report examines the financial risks from climate change that 
impact UK banks, building societies and PRA-designated investment firms, 
assesses how banks are responding to these, and clarifies the PRA's 
supervisory approach
PDF paper: 
https://www.bankofengland.co.uk/-/media/boe/files/prudential-regulation/report/transition-in-thinking-the-impact-of-climate-change-on-the-uk-banking-sector.pdf
https://www.bankofengland.co.uk/prudential-regulation/publication/2018/transition-in-thinking-the-impact-of-climate-change-on-the-uk-banking-sector
- - - -
[IPCC report]
*Referenced - Findings from the IPCC 
<https://www.bankofengland.co.uk/-/media/boe/files/prudential-regulation/report/transition-in-thinking-the-impact-of-climate-change-on-the-uk-banking-sector.pdf>*
The IPCC's Fifth Assessment Report (AR5) provides a view of the state of 
scientific knowledge
relevant to climate change in 2014.10 A number of the conclusions from 
the Synthesis Report of AR5,
relevant to the PRA's review are below:

    (i) 'Warming of the climate system is unequivocal, and since the
    1950s, many of the observed
    changes are unprecedented over decades to millennia. The atmosphere
    and ocean have
    warmed, the amounts of snow and ice have diminished, and sea level
    has risen.'
    (ii) 'Anthropogenic greenhouse gas emissions have increased since
    the pre-industrial era, driven
    largely by economic and population growth, and are now higher than
    ever. This has led to
    atmospheric concentrations of carbon dioxide, methane and nitrous
    oxide that are
    unprecedented in at least the last 800,000 years. Their effects,
    together with those of other
    anthropogenic drivers, have been detected throughout the climate
    system and are extremely
    likely to have been the dominant cause of the observed warming since
    the mid-20th century.'
    (iii) 'Continued emission of greenhouse gases will cause further
    warming and long-lasting changes in
    all components of the climate system, increasing the likelihood of
    severe, pervasive and
    irreversible impacts for people and ecosystems. Limiting climate
    change would require
    substantial and sustained reductions in greenhouse gas emissions.

https://www.bankofengland.co.uk/-/media/boe/files/prudential-regulation/report/transition-in-thinking-the-impact-of-climate-change-on-the-uk-banking-sector.pdf


[Paul Beckwith video]
*Will Tornado Alley Shift Northward Into Canada? 
<https://youtu.be/O8qmaAMK4cM>*
Paul Beckwith
Published on Sep 28, 2018
Supercells are huge collections of stormclouds bunched together, with 
rotation. They often generate tornadoes, as happened recently in Ottawa, 
and a few days later, in Detroit. As rapid climate change proceeds, and 
the speed, waviness, location, and nature of jet streams changes, it is 
possible that "Tornado Alley" in the US will shift northward, and impact 
northern states and Canada greatly.
https://youtu.be/O8qmaAMK4cM


[worth repeating: deplorable in its nihilism]
*The Trump Administration Anticipates Catastrophic Global Warming by 
2100 
<http://nymag.com/daily/intelligencer/2018/09/trump-administration-expects-catastrophic-warming-by-2100.html>*
By Eric Levitz
Last month, the Trump administration released a report that predicted 
global temperatures will be four degrees higher by the end of this 
century, assuming current trends persist. World leaders have pledged to 
keep global temperatures from rising even two degrees (Celsius) above 
pre-industrial levels, with the understanding that warming beyond that 
could prove catastrophic...
...and a variety of extreme weather events will dramatically increase in 
frequency.
And the White House believes that this fact is an argument for loosening 
restrictions on carbon emissions...
- - - -
As the Washington Post revealed Friday, the administration uses its 
four-degree warming estimate to argue that eliminating 8 billion tons 
worth of emissions won't be enough to change the climate outlook, by 
itself, so the federal government shouldn't bother.
After all, the entire world would need to make enormous cuts in 
emissions to avert catastrophic warming -- and that "would require 
substantial increases in technology innovation and adoption compared to 
today's levels and would require the economy and the vehicle fleet to 
move away from the use of fossil fuels, which is not currently 
technologically feasible or economically feasible."

This argument is deplorable in its nihilism. But its core assumption is 
also patently absurd...
- - - -
That said, if one assumes that the entire leadership of the Republican 
Party has concluded that human civilization will not survive Barron 
Trump, then their governing agenda starts to make a lot more sense. 
Exacerbating inequality and subordinating the commons to short-term 
profit maximization isn't in the enlightened medium-term interests of 
the GOP donor class -- but in the medium-term, we'll all (apparently) be 
dead!
http://nymag.com/daily/intelligencer/2018/09/trump-administration-expects-catastrophic-warming-by-2100.html
- - - - -
[difficult to corroborate in this draft report]
*The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Year 
2021–2026 Passenger Cars and Light Trucks 
<https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/ld_cafe_my2021-26_deis_0.pdf>*
Draft Environmental Impact Statement
July 2018 - Docket No. NHTSA-2017-0069
https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/ld_cafe_my2021-26_deis_0.pdf


*This Day in Climate History - September 30, 2004 
<http://www.c-spanvideo.org/program/FullS> - from D.R. Tucker*
September 30, 2004: In his first debate with President Bush, Democratic 
challenger and Massachusetts Senator John Kerry incurs the wrath of the 
right wing by declaring:

    "The president always has the right, and always has had the right,
    for preemptive strike. That was a great doctrine throughout the Cold
    War. And it was always one of the things we argued about with
    respect to arms control. No president, though all of American
    history, has ever ceded, and nor would I, the right to preempt in
    any way necessary to protect the United States of America.

    "But if and when you do it, Jim [Lehrer], you have to do it in a way
    that passes the test, that passes the global test where your
    countrymen, your people understand fully why you're doing what
    you're doing and you can prove to the world that you did it for
    legitimate reasons. Here we have our own secretary of state who has
    had to apologize to the world for the presentation he made to the
    United Nations.

    "I mean, we can remember when President Kennedy in the Cuban missile
    crisis sent his secretary of state to Paris to meet with DeGaulle.
    And in the middle of the discussion, to tell them about the missiles
    in Cuba, he said, 'Here, let me show you the photos.' And DeGaulle
    waved them off and said, "No, no, no, no. The word of the president
    of the United States is good enough for me."

    "How many leaders in the world today would respond to us, as a
    result of what we've done, in that way? So what is at test here is
    the credibility of the United States of America and how we lead the
    world. And Iran and Iraq are now more dangerous -- Iran and North
    Korea are now more dangerous.

    "Now, whether preemption is ultimately what has to happen, I don't
    know yet. But I'll tell you this: As president, I'll never take my
    eye off that ball. I've been fighting for proliferation the entire
    time -- anti-proliferation the entire time I've been in the
    Congress. And we've watched this president actually turn away from
    some of the treaties that were on the table.

    "You don't help yourself with other nations when you turn away from
    the global warming treaty, for instance, or when you refuse to deal
    at length with the United Nations.

    "You have to earn that respect. And I think we have a lot of earning
    back to do."

(59:20--61:22) http://www.c-spanvideo.org/program/FullS


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