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.”

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.   

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.

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.) 

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. 

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 . . .

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

I just spent the last few hours digging through the documents that are available for the ongoing negotiations in Doha on the UNFCCC website.  Transparency is great, of course, and the amount of available information for such negotiations is a night-and-day difference from just a decade ago.  But it also provides a deluge of information and documents that can bury some of the more significant documents and processes.  I always wonder how some of the smaller nation (or those with lesser resources to focus on international environmental negotiations) can possibly keep up with the mountain of paperwork and meetings. 

I came across the latest draft (dated December 1) of negotiation proposals (as prepared by the chair of that workgroup) for the continuation of the Kyoto Protocol, i.e. amendment of the the KP for a new commitment period (2013-2017 or 2020), emission reduction commitments, and related issues.  Here’s link:  http://unfccc.int/documentation/documents/advanced_search/items/6911.php?priref=600007231

Unfortunately, the document shows lots of unresolved issues — all of the major ones, essentially.  And of course, stark acknowledgment that Russia, Japan, and Canada are out for the next commitment period (and apparently also New Zealand). 

The 18th meeting of the Conference of the Parties (COP) to the UN Framework Convention on Climate Change started on Monday, Nov. 26. Undoubtedly, COP 18 is a key meeting since it is the last meeting before the expiration of the first commitment period on December 31, 2012 for the Kyoto Protocol’s Annex B emission reduction commitments. This meeting will hopefully lead to the adoption of amendments to the Kyoto Protocol allowing for the commencement of a second commitment period in January 2013.

The International Institute for Sustainable Development provides terrific daily meeting summaries, available at http://www.iisd.ca/climate/cop18/enb.  Among the key things that happened on Monday were not just the opening statements, which included mandatory posturing, but also the adoption of the meeting’s rules of procedure.  These rules are critical not only for the orderly conduct of the meeting but also for the adoption of decisions that become the official outcomes of this gathering of the COP (the governments that are parties to the treaty).

According to the Monday summary, the COP adopted the 1996 draft rules of procedure (FCCC/CP/1996/2), with the exception of draft rule 42.  (The draft rules can be found here: http://unfccc.int/resource/docs/cop2/02.pdf .)  The 1996 draft rules were first put forward for adoption by the COP at its second meeting in 1996.  In spite of UNFCCC Article 7.2(k), which requires that the COP “agree upon and adopt, by consensus, rules of procedure . . . for itself,” and Article 7.3, which requires that the COP adopt these rules of procecure at its first session, that has never occurred in the 20 year history of the UNFCCC.  Thus, as far as I can tell, at each COP meeting since then, the parties have used the draft rules provisionally with the exception of draft rule 42.

What is draft rule 42?  In essence draft rule 42 sets out the key voting requirement for COP “decisions on matters of substance,” i.e. anything that really matters.  Without draft rule 42, there is no explicit voting rule for the meeting.  However, that does not mean that there can be no binding votes.  Instead, the default rule in international law applies – decisions must be taken by consensus of all the parties.

Thus, if one ever wondered why it is so difficult to for the UNFCCC parties (and Kyoto Protocol parties, or for that matter many international environmental treaty organizations) to make controversial decisions, the inability to adopt a voting rule altering the consensus requirement should tell a lot.

Here’s a story by Dawn Reeves from today’s Inside EPA on Scott Fulton:

http://insideepa.com/Inside-EPA-General/Inside-EPA-Public-Content/epas-counsel-plans-to-retire-leaving-another-top-slot-open/menu-id-565.html