EPA Administrator Jackson to Resign after State of Union Address

I guess this was not unexpected, given the rumors and reports by the Washington Post.  This is rather sad. 



Here’s an excerpt from the NY Times story on her resignation, which encapsulates some of the challenges she have faced during her time:

“After Republicans seized control of the House in 2010, Ms. Jackson became a favored target of the new Republican majority’s aversion to what it termed “job-killing regulations.” One coal industry official accused her of waging “regulatory jihad,” and she was summoned to testify before hostile House committees dozens of times in 2011. She was frequently subjected to harsh questioning that at times bordered on the disrespectful.
Ms. Jackson, the first African-American to head the E.P.A., brushed off that treatment as part of the territory and a reflection of the new partisan reality in Washington. More difficult for her was the lack of support she received at times from environmental groups, who saw every compromise as a betrayal, and from the White House, which was trying to balance worries about the economy and the president’s re-election campaign against the perceived costs of tough environmental policies.”

Links for Leaked IPCC AR 5 and IPCC response

For links to the leaked Fifth Assessment Report of the IPCCC, posted by the leaker himself, climate skeptic Alec Rawls, see here:  http://stopgreensuicide.com/

UCLA’s Cara Horowitz posted a blog entry on Berkeley’s Legal Planet a few days ago, just as the news of the leaked report had broken, together with a link to the IPCC response is at:  http://legalplanet.wordpress.com/2012/12/14/lastest-ipcc-assessment-of-future-climate-changes-leaked-in-draft-form/

At that time, the IPCC press office also sent out the response by email to a listserv that I am on.  Here’s the text:

Dear Climate – L readers
The Second Order Draft of the Working Group I contribution to the Intergovernmental Panel on Climate Change (IPCC) Fifth Assessment Report Climate Change 2013: The Physical Science Basis (WGI AR5) has been made available online. The IPCC regrets his unauthorized posting which interferes with the process of assessment and review. We will continue not to comment on the contents of draft reports, as they are works in progress.

The Expert and Government Review of the WGI AR5 was held for an 8-week period ending on 30 November 2012. A total of 31,422 comments was submitted by 800 experts and 26 governments on the Second Order Draft of the Chapters and the First Order Draft of the Summary for Policymakers and Technical Summary. The author teams together with the Review Editors are now considering these comments and will meet at the Working Group I Fourth Lead Author Meeting on 13-19 January 2013 in Hobart, Tasmania, to respond to all the comments received during the Expert and Government Review.

The IPCC is committed to an open and transparent process that delivers a robust assessment. That is why IPCC reports go through multiple rounds of review and the Working Groups encourage reviews from as broad a range of experts as possible, based on a self-declaration of expertise. All comments submitted in the review period are considered by the authors in preparing the next draft and a response is made to every comment. After a report is finalized, all drafts submitted for formal review, the review comments, and the responses by authors to the comments are made available on the IPCC and Working Group websites along with the final report. These procedures were decided by the IPCC’s member governments.

The unauthorized and premature posting of the drafts of the WGI AR5, which are works in progress, may lead to confusion because the text will necessarily change in some respects once all the review comments have been addressed. It should also be noted that the cut-off date for peer-reviewed published literature to be included and assessed in the final draft lies in the future (15 March 2013). The text that has been posted is thus not the final report.

This is why the IPCC drafts are not made public before the final document is approved. These drafts were provided in confidence to reviewers and are not for distribution. It is regrettable that one out of many hundreds of reviewers broke the terms of the review and posted the drafts of the WGI AR5. Each page of the draft makes it clear that drafts are not to be cited, quoted or distributed and we would ask for this to continue to be respected.

For more information:
IPCC Press Office, Email: ipcc-media@wmo.int
Jonathan Lynn, + 41 22 730 8066 or Werani Zabula, + 41 22 730 8120


Unfortunate Distraction – Investigation of EPA Email Accounts?

For people outside of the Washington Beltway, the following headline would sound totally ridiculous:  “EPA IG audits administrator’s private e-mail account,” from the Washington Post. (http://www.washingtonpost.com/national/health-science/epa-ig-audits-administrators-private-e-mail-account/2012/12/18/7348ea56-494e-11e2-ad54-580638ede391_story.html )

The story is about the request by House Republicans to the EPA Inspector General to investigate the use by EPA Administrator Lisa Jackson of an email account that is not named in accordance with standard EPA email naming convention.  The question is whether the email alias is somehow inappropriate or even illegal.  There is one statement in the article that speaks for itself.  According to a letter sent to Congress related to this issue, “EPA Associate Administrator Arvin Ganesan wrote that for ‘nearly two decades EPA administrators have managed the agency with two email accounts’ because one is publicly listed on the agency’s Web site. Jackson received more than 1.5 million e-mails on her primary account in fiscal 2012, he added.”

Senator Daniel Inouye Passes Away

After all of the sad events of the Newtown shooting, Senator Daniel Inouye, the senior senator from Hawaii, passed away on Monday.  Within the Asian American community, he was a towering figure both because of his senior role in the Senate but also because of his service during World War II in the legendary 442 infantry regiment (made up of Japanese Americans), a time when Americans of Japanese descent on the West Coast were forced into the World War II internment camps.   

Environmental Justice/Title VI Personnel Change at EPA

Inside EPA reported on Thursday that Rafael DeLeon, currently the director of the Office of Civil Rights, is leaving his current position and taking a new job as director of the Office of Site Remediation Enforcement within the Office of Enforcement and Compliance Assurance (OECA), led by Assistant Administrator Cynthia Giles.  I am rather sad to see Rafael move on.  It will also mean some transition and delay in Office of Civil Rights’ important Title VI work.  (For those readers unfamiliar, EPA work under Title VI of the Civil Rights Act has been quite controversial; even though much progress has been made under Administrator Jackson on these issues, Title VI advocates have also continued to push hard for more and faster agency action.)

According to the Inside EPA article, the announcement of Rafael’s departure (an email from Cynthia Giles, whom I incidentally saw at a workshop last week) did not come with a statement who would head up the Office of Civil Rights in the interim, while a search for a permanent replacement for Rafael is ongoing.  But it seems likely that Helena Wooden-Aguilar, currently the Assistant Director of that office (if I recall her title correctly) and who is most directly responsible for the Agency’s external civil rights work, especially external compliance by state and local governemnt recipients of EPA funds with Title VI requirements, is likely to take on more responsibility in this regard.  She’ll be terrific, I know (not only because I worked with her previously and had her as a student at Vermont Law School).  Nevertheless, when I spoke to one lawyer from the Title VI advocacy community about this personnel change, he expressed concern about the likely disruption this might mean for progress on Title VI.

Best Places to Work in Federal Government, Lubchenco Departure

And this recently came in from the 2012 Rankings of The Best Places to Work in the Federal Government:   In the category of Agency subcomponents, i.e. distinct offices/divisions within agencies that are headed by a Senate-confirmed political appointee (usually at the level of an Assistant Secretary):  . . . . drum-roll . . . .

#3.  Office of General Counsel of the EPA
#4.  Environment and Natural Resources Division of the US Department of Justice

These are 2 entities within the federal government that employ a very large number of very talented and highly motivated environmental lawyers and provide a great deal of very interesting work.  Both are places that I have worked at and that in my own estimation fully deserve those high rankings.

EPA OGC reports a workplace satisfaction/commitment index score of 81.6.  DOJ’s Environment Division reports an index score of 80.9.  According to the survey’s explanation, “the index score measures the performance of agencies and agency subcomponents related to employee satisfaction and commitment.”  So there you have it  . . .  environmental lawyers are pretty happy with their jobs in the federal government.   Could it also mean that environmental lawyers working for the federal government are happier than their private sector counterparts? That you’ll have to decide for yourself.

But wait . . .  there is, strangely, the low ranking of the Office of the Solicitor in the Department of Interior, the counterpart to the EPA Office of General Counsel.  (If it’s not understood by readers, the Department of Interior handles most of the federal government’s natural resources, lands, and wildlife-related legal work, while EPA focuses on the pollution issues.)  According to the 2012 Rankings, the DOI Solicitor’s Office unfortunately ranks at 204 with a 58.9 index number.  What a shocker!  I am not sure what accounts for that low number since DOI’s work should also be very interesting for environmental lawyers.

Anyway, EPA OGC’s high ranking may not be surprising in light of the overall high ranking of EPA as a federal agency.  Among all large federal agencies, EPA ranks 5th, with an agency-wide index # of 67.6. 

So . . .  hoorray for EPA, EPA-OGC, and DOJ-ENRD.   Great kudos to Administrator Lisa Jackson and General Counsel Scott Fulton for keeping their staff motivated and satisfied with their work and mission.

For a link to that 2012 Ranking, see here:  http://bestplacestowork.org/BPTW/rankings/overall/sub

Also, a few days ago, Professor Holly Doremus wrote on Berkeley’s LegalPlanet blog about the recent announcement that Jane Lubchenco, Administrator of the National Oceanographic and Atmospheric Administration, will leave her position at the end of February. Link here:  http://legalplanet.wordpress.com/2012/12/13/jane-lubchenco-to-leave-noaa/
It will be a loss for NOAA, but it seems in line with other departure announcements or speculations about senior Obama Administration officials.  Of course, there has been plenty of speculation about EPA Administrator Lisa Jackson’s status by the Washington Post.  I have no more specific information, though I did ask her when she was at Santa Clara University back in late October and when she met with some of our law students.  (Santa Clara Law’s student newspaper ran a story on Administrator Jackson’s visit, which I’ll post separately.) 

Doha finally concluded

Wow – AP and Reuters just reported that Doha finally came to an agreement to extend the Kyoto Protocol to 2020.  Here’s a link to the pre-final decision document:  http://www3.unog.ch/dohaclimatechange/sites/default/files/FCCCKPCMP2012L9.pdf

It’s really impossible for me to tell whether any parts of this draft document were changed before being adopted.  Decisions about financial assistance were apparently postponed.  As expected, only European Union and a couple of other states are part of the emissions limit extension deal, covering just a fraction of global emissions. 

Global GHG Emission Coverage of Second Kyoto Commitment Period?

Based on the current state of likely participation in the second Kyoto commitment period, and using 2008 GHG emission data from the World Resources Institute (which exclude land use/bunker fuels), the global coverage of the second Kyoto commitment period looks rather bleak.  (Link for WRI data is here:  http://www.wri.org/tools/cait/ )

As is currently understood, Russia, Canada, Japan, New Zealand, and the US are not likely/will not be taking on QELROs (quantitative emission limit/reduction obligations) in the second commitment period.  With the exception of Kazakhstan and Belarus, other current non-Annex B countries (i.e. the developing countries/emerging economies) will not be taking on QELROs either.  (That is being put off to the negotiation for a future agreement that would start in 2020 .)

Based on that, here are some interesting numbers:

1.  World Total GHG Emissions in 2008:  29986 MMT (million metric tons)

2.  Emissions of top 10 countries in 2008: 20166 MMT (67.25% of world total)
3.  Emission of next 15 countries in 2008:   5219 MMT (17.40% of world total)
4.  Next 14 countries (100-200 MMT/year): 2021 MMT (6.74%)
5.  Next 56 countries (10-100 MMT/year): 2255 MMT (7.5%)
6.  Next 55 countries (1-10 MMT/year):  248 MMT (0.8%)
7.  Bottom 35 (0-1 MMT/year):  13 MMT (0.04%)

Russia, Canada, Japan, and US: 9022 MMT (30% of world total)

17 of the top 25 emitters (lines 2&3) will not have binding QELROs either because they were not originally part of Annex B (i.e. developing countries/emerging economies) or they chose not to take on new QELROs for second commmitment period.  These 17 countries will make up 74% of global emissions. 

The remaining 8 (of the top 25) emitters make up 11.13% of global emissions.

A rough/ballpark guess at the likely second period Annex B parties (which will be primarily the EU and some of the economies in transition/former Soviet block countries) is that they will make up about 15% of global emissions.

So this is where things seem to be headed:

1.  The second commitment period will only cover about 15% of the global GHG emissions
2.  Non-participation by 4 (Russia, Canada, Japan, US) of the 6 largest GHG emitters among developed economies drops 30% from participation in the second commitment period.
3.   Combined with non-participation by developing/emerging economies, 17 of the top 25 emitters will not participate in the second commitment period – making up 74% of global emissions. 
4.  The remaining 8 states of the top 25 emitters will make up about 11% of global emissions.

Thus, the non-participation decision by Russia, Canada, Japan, and US reduce the effective scope of emission coverage by about 3/4 of Annex B.

One final thought:  IF the top 25 emitters (both industrialized and developing/emerging economies) were to get together and negotiate an agreement just among themselves, they would be able to address about 85% of global emissions.  These 25 countries would also make up about 65% (4.5 billion people) of world population.

Now think about that and discuss amongst yourselves . . .

December 5 Status of Kyoto Protocol Second Commitment Period

The latest set of options that the parties appear to be considering, per a draft decision document by the chair of the Kyoto Protocol amendment working group, include provisions regarding provisional application of the amendment, carry-over with various limitations of AAUs and CERs (original Annex B credits from their first commitment period as well as CDM credits), and three versions of a new Annex B.  The paper is dated Dec. 5, so it appears to be the latest.  See here:  http://unfccc.int/resource/docs/2012/awg17/eng/crp03.pdf