Class Assignment:

Read the assigned text chapters and be prepared to be examined on session 10 on any or all of the environmental terms, concepts and cases below found therein. Also, in preparation for the exam, familiarize yourself with the three court decisions and the "Clear Skies Act" below.

• Lead Industries Association v. EPA (See page 124f of Michael Schmidt's article "Delegation & Discretion.")

• American Trucking Associations v. EPA

• Union Electric Company v. EPA

• Clear Skies Act

Your homework assignment for this week involves answering the "Questions to Consider" in Chapter 14 of The Environmental Case.

Class Topics:

The Clean Air Act (CAA)

1. Overview: You can familiarize yourself with the Clean Air Act at the following web site: "Overview of the  Clean Air Act."

2. Regulating Toxins: The CAA is most concerned with ozone, nitrogen oxides, sulfur dioxide, carbon monoxide, lead, volatile organic compounds (VOCs) and fine particulates. For an overview of what the CAA regulates, how and where it regulates air pollution and  the manner in which regulations are applied, you might want to review the U.S. EPA web site "The Plain English Guide To The Clean Air Act."

3. History: Also, if you are interested in revisiting the historical enactment of the CAA you might want to go to the EPA site "EPA History."

4. Criteria Pollutants: The CAA is built around a set of criteria pollutants that are included in what is called the National Ambient Air Quality Standards (NAAQS) You will want to be familiar with how the criteria were arrived at and in particular, understand what is meant by the term "adequate margin of safety."

5. Standards: You should be able to distinguish between the "primary" and "secondary" standards of NAAQS, which have been criticized as being "one-size-fits-all" standards.

6. New Source Review: Also familiarize yourself with the concept of "New Source Review" (NSR) that has become associated with CAA.

7. State Implementation Plans (SIPs): SIPs include:

   1. State regulations that USEPA has approved

   2. State-issued, USEPA-approved orders requiring pollution control at individual companies

   3. In rare cases, federally promulgated regulations, designated as "FIP" (federal implementation plan)

   4. Planning documents such as area-specific compilations of emissions estimates and computer simulations (modeling analyses) demonstrating that the regulatory limits assure that the air will meet air quality standards.

   You can find an excellent overview of SIPs at a State of Minnesota web site, which helps clarify how SIPs are organized (as area-specific plans or as state rules or programs) to attain NAAQS. It also spells out how attainment and nonattainment areas are designated under the CAA. The EPA designates nonattainment areas at its "Green Book" web site.

   You can find an excellent overview of SIPs at a State of Minnesota web site, which helps clarify how SIPs are organized (as area-specific plans or as state rules or programs) to attain NAAQS. It also spells out how attainment and nonattainment areas are designated under the CAA. The EPA designates nonattainment areas at its "Green Book" web site.

8. Developmental Timeline: In the interest of gaining an historical perspective on the CAA you might want to review the timeline of how this legislation has evolved to the present. 

9. New Source Performance Standards: You will want to become familiar with New Source Performance Standards (NSPS), Prevention of Significant Deterioration (PSD), NSPS Grandfathered Sources, Mobile Sources, and Technology-Forcing.

10. EPA's emission trading program under the CAA can be illustrated by this article relating to mercury releases.

11. Emission reduction credits (ERCs) are given to recognize actions taken to reduce pollution. The amount of the credit corresponds to the amount and type of emission reduction. Credits can typically be sold, traded, or banked for future use."During the 1970s, four economic mechanisms were adopted to increase polluters' flexibility in meeting the various requirements of the Clean Air Act. These mechanisms were offsets, bubbling, banking, and netting.

    1. Offsets. The pending failure of many regions to meet the 1977 deadline for the National Ambient Air Quality Standards for ozone presented EPA with the prospect of imposing construction bans on new sources in the non-complying areas. In 1976, EPA proposed to permit new pollution generating facilities that installed Best Available Control Technology to be sited in non-attainment areas if their emissions were offset with reductions from existing sources so that aggregate emissions in the area declined. Emission offsets occur whenever a company offsets its own emissions by causing a reduction or sequestration of emissions outside its operations. Similarly, consumers and businesses can "offset" the pollution caused by their energy use by buying and retiring the emission reduction credits created by someone else.

    2. Bubbling. In 1979, EPA proposed a bubbling program for existing polluting sources only. A bubbling program permits a facility with multiple pollution sources to treat them as a single source rather than individually. As long as the aggregate emissions of the specific pollutant meet the standard, the facility is in compliance.

    3. Banking. In 1979, as an adjunct to their offset and bubbling schemes, EPA promulgated regulations which included banking. Banking permits a facility to save any excess reductions it achieves for future use or sale. In this way, banking facilitates use of offsets and bubbles.

    4. Netting. The oldest (1974) mechanism is also the most successful. Netting permits an existing source under the Act to undergo a major modification without triggering the New Source Performance Standards provided the modification results in no aggregate increase in emissions."

12. Acid Rain: Acid rain is produced when moisture condenses in the presence of sulfur and nitrogen oxides in the air to form weak acids that, when coming in contact with the soil and water, can negatively impact plant and animal life. In response EPA has formulated its acid rain program which includes allowance trading, annual reconciliation, an allowance tracking system, allowance auctions and direct sales, and an "opt-in program."

13. Prevention of Significant Deterioration (PSD) "provisions, as they apply to new or modified major sources, are designed to keep an attainment area in continued compliance with the NAAQS. A new source proposing to emit a "significant increase" of a specific criteria air pollutant in an attainment area will be subject to the PSD provisions. The basic goals of the PSD program are:

    • To ensure that clean air resources are preserved during economic growth;

    • To protect human health and welfare from adverse affects of air pollution; and

    • To preserve, protect, and enhance air quality in especially sensitive areas such as national parks or wilderness."

Ozone Depletion

Ozone Depletion has been documented since the mid fifties, and has continued to be a major international environmental concern. The link to the "Beyond Discovery" timeline illustrates the efforts that have been undertaken to deal with the problem of ozone pollution and ozone depletion. You will want to familiarize yourself with the ozone depletion phenomenon as well as EPA's ozone depletion website, where information on the science of ozone depletion is presented, as well as the regulatory approach to this problem that the EPA is taking. Please become familiar with substances like CFCs, UVB radiation, halons, and methyl bromide.

International Ozone Control: The major international efforts worth knowing about are summarized in the Congressional Research Service Report "International Environment: Current Major Global Treaties," by Susan R. Fletcher. The summary from that report outlines the two major international ozone protection agreements (each is also linked to the original treaty).

1. Vienna Convention for the Protection of the Ozone Layer: This is the 1985 framework convention to protect the stratospheric ozone layer from depletion by manmade chemicals. The ozone layer protects the surface of the Earth from ultraviolet radiation, and depletion can have adverse effects such as increased skin cancer in people and reduced crop yields. This treaty focuses on research, cooperation, and development of policies to control, limit or prevent activities that may be found to have adverse effects on the ozone layer. It was expected that subsequent protocols would be adopted for specific measures.

2. Montreal Protocol on Substances that Deplete the Ozone Layer: This 1987 protocol was developed by Parties to the Vienna Convention, and includes extensive binding provisions to freeze levels of consumption and production of controlled chemical substances such as chlorofluorocarbons (CFCs) at 1986 levels, with scheduled decreases beginning in 1993. It was amended in 1992 to require complete phase-out of production and consumption of these chemicals by industrialized countries by 1996, and complete phase-out by all countries by the year 2010. It recognizes the special situation of developing countries: allows delays for them in certain circumstances, and encourages technical assistance. (For more details, see CRS Report 96-702 ENR: Stratospheric Ozone Depletion: A Chronology of Assessment and Decision, July 10, 1996).

For a good comparison of these two important international treaties, go to UNEP's link for the Information Unit on Climate Change (IUCC) and its fact sheet on climate change. Note that the Montreal Protocol chose lumps together a number of agents (such as CFCs, halons, carbon tetrachloride, etc.) and calls them "greenhouse gases." You might also want to go to the UNIDO site and learn a bit more about the context of the Montreal Protocol, especially the function of Article 5 of that protocol.

Ozone depletion in developing countries has been a major focus of the United Nations since the passage of the Montreal Protocol. This is perhaps illustrated by the outcome of a major international conference consisting of delegates at the Seventh Meeting of the Conference of the Parties to the Vienna Convention for the Protection of the Ozone Layer and the 17th Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer. One of the major focuses of this conference was how to work with developing countries (or so-called "emerging economies") to reduce or eliminate the use of ozone depleting agents. The United Nations Environment Programme reported that at the conclusion of this conferences that "The Montreal Protocol Technology and Economic Assessment Panel (TEAP) are recommending that developed countries provide approximately $439m over the next three years to support the developing country phase-out. This funding would constitute the fifth replenishment of the Multilateral Fund, an innovative institution that has promoted the transfer of ozone-friendly technologies and know-how to virtually every developing country in the world. This has enabled these countries to surpass their phase-out goals and reduce their consumption of ozone-depleting substances by over 60%.

Remaining Challenges: According to the United Nations Environment Programme's Ozone Secretariat, the remaining challenges confronting ozone depletion on an international scale include the following: incomplete ratification of ozone treaties, difficulties in complying with the Montreal Protocol, illegal trade of CFCs, many countries are still using methyl bromide (despite it being outlawed in the 1992 Copenhagen Amendment), halon concentrations are still increasing, and many developing countries are experiencing difficulties in completely phasing out CFCs.

Lessons Learned: You will want to review the text to see what "lessons learned" are cited there. Additionally, you might want to take a look at how yet another reviewer has judged the success of the Montreal Protocol. Ben Lieberman of the Competitive Enterprise Institute in Washington, D.C. cites three marked failures of the Protocol that are noteworthy:

• "the threat posed by ozone depletion was far less serious and imminent than originally stated, thus the benefits of the Montreal Protocol are considerably lower;

• the costs of implementing the Protocol’s provisions have been, and continue to be, substantial;

• global compliance has been inconsistent."

Climate Change

The Science of Climate Change (Citing Evidence for Significant Human Contribution to Global Warming): This "science" is a point of significant controversy relative to the true extent that human activities are influencing potentially catastrophic climate change, versus the natural history of climate change fluctuations on the planet. In the interest of understanding the extent to which different groups have different "takes" on this body of scientific evidence, you should take a few moments and peruse how different groups present this information. Undoubtedly, many organizations who take the position that anthropogenic activity is significantly contributing to global warming, do so on the basis of the Third Assessment Report of Working Group I of the Intergovernmental Panel on Climate Change (IPCC). The IPCC, created in 1988 by the World Meteorological Organization (WMO) and the United Nations Environment Programme (UNEP), has published its findings in several volumes. For the sake of this course you ought to peruse the Summary found in the volume Climate Change, 2001: The Scientific Basis. The remaining volumes of this report are entitled Climate Change, 2001: Impacts, Adaptation and Vulnerability; Climate Change, 2001: Mitigation; and Climate Change, 2001: Synthesis Report. 

Additionally, you might want to take a look at how a Canadian agency looks at this issue and compare it to the position on global warming taken by the Pew Foundation, by the U.S. National Academies of Science, (the full text of the report on climate change as well as a brief summary can be found at the National Academies Press website). Thereafter, you might wish to compare their position to the guidelines on reporting on climate change provided by the Environmental Health Center of the National Safety Council NSC. Note that most of these position statements on climate change and global warming are very dependent upon the IPCC report. You can find a set of web links provided by North Carolina State University that take you to a host of agencies dealing with this issue. 

The Science of Climate Change (Citing Evidence Against Significant Human Contribution to Global Warming): To experience the position of those critical of these scientific reports, look at James Glassman's article in Capitalism Magazine, publications from the National Center for Policy Analysis such as those authored by Dennis Avery and Sterling Burnett, Kent Jeffery's report on "Why Worry about Global Warming," and a series of articles, reports and books produced by the Cato Institute and by the Heritage Foundation, such as the article by Richard Lindzen of MIT, a report on climate change by Patrick Michaels of the University of Virginia and a book by Patrick Michaels and Robert Balling (where Balling teaches at Arizona State University). Researchers at the Heritage Foundation are also critical of the scientific evidence for global warming, as evidenced by the work of Sallie Baliunas of the Marshall Institute, and Ben Lieberman, Senior Policy Analyst at the Heritage Foundation.

The Science of Climate Change (Citing Evidence Against Significant Human Contribution to Global Warming): To experience the position of those critical of these scientific reports, look at James Glassman's article in Capitalism Magazine, publications from the National Center for Policy Analysis such as those authored by Dennis Avery and Sterling Burnett, Kent Jeffery's report on "Why Worry about Global Warming," and a series of articles, reports and books produced by the Cato Institute and by the Heritage Foundation, such as the article by Richard Lindzen of MIT, a report on climate change by Patrick Michaels of the University of Virginia and a book by Patrick Michaels and Robert Balling (where Balling teaches at Arizona State University). Researchers at the Heritage Foundation are also critical of the scientific evidence for global warming, as evidenced by the work of Sallie Baliunas of the Marshall Institute, and Ben Lieberman, Senior Policy Analyst at the Heritage Foundation.

The Hockey Stick Analogy: You should become familiar with the analogy of the increase in global warming as represented by the graphic image of a "hockey stick" which was introduced by Michael Mann, Ray Bradley and Malcolm Hughes (Nature, 1998; Geophysical Research Letters, 1999). Likewise, you should be aware of the criticism that was subsequently directed toward this model, as in the article "Breaking the Hockey" Stick by David Legates of the National Center for Policy Analysis in Washington, D.C.

More Terms and Treaties: Be familiar with terms like "anthropogenic greenhouse gases," "carbon dioxide sinks," and be familiar with The Climate Change Convention,  The Kyoto Protocol, and the Earth Summit.

QELROs: In considering the Kyoto Protocol, be aware that some of the most strident controversy surrounds the so-called Quantified Emission Limitations and Reduction Objectives (QELRO) that have been established for industrialized countries. To understand how these limits are assigned to different nations, you need to also need to understand the different "annex levels" to which each nation is assigned. The Powerpoint slide presentation provided by Joseline Goco, Head of the IACC Secreatariat provides a very thorough introduction to the Kyoto Protocol and how QELROs are applied to different nations and groups of nations.

President George W. Bush and Kyoto: President Bush refused to sign the Kyoto Protocol and triggered what some have referred to as "Climate-Gate." To more fully understand the current administration's position on global warming, you need to become familiar with the U.S. Climate Action Report, produced by the U.S. Department of State, in May 2002 which represents the third national communication on climate as mandated by the United Nations Framework Convention on Climate Change (UNFCCC), also known as the Earth Summit in Rio De Janeiro (1992). For this class, familiarizing yourself with the introduction and overview of this 2002 report should prove sufficient. While President Bush has received much criticism internationally and within the U.S. for this decision, there are those who find support for his decision. 

For instance, look at the policy analysis memo entitled "Climate-Gate" that was written by Michael Catanzaro, a staff member of the U.S. Senate Environment and Public Works Committee, and distributed by e-mail on June 20, 2003. This memo is impressive not only in terms of the information that it presents, but also in terms of other documents that also call for the U.S. to not sign the Kyoto Protocol. 

Significant among these other sources is the so-called Oregon Petition presented by Frederick Seitz Past President, National Academy of Sciences,  and President Emeritus of Rockefeller University that included more than 17,000 verified signatures from scientists around the nation and the world. This petition was based, in part, upon research published by Arthur Robinson, Sallie Balinuas, Willie Soon and Zachary W. Robinson of the Oregon Institute of Science and Medicine and the George C. Marshall Institute entitled "Environmental Effects of Increased Atmospheric Carbon Dioxide" (1998). Catanzaro also refers to a  study  funded by NASA, the Air Force Office of Scientific Research, the National Oceanic and Atmospheric Administration, and the American Petroleum Institute conducted by Willie Soon and Sallie Baliunas of the Smithsonian Institute entitled "Lessons & Limits of Climate History: Was the 20th Century Climate Unusual?"(2003). This is a very important paper that provides significant insight into President's Bush's decision on Kyoto. 

Kyoto Mechanisms: The three Kyoto mechanisms are:

1. "Joint implementation (JI) under Article 6 provides for Annex I Parties to implement projects that reduce emissions, or remove carbon from the atmosphere, in other Annex I Parties, in return for emission reduction units (ERUs). An Article 6 Supervisory Committee is to be established by COP/MOP 1 and this is expected to supervise JI in relation to many JI projects.

2. The clean development mechanism (CDM) defined in Article 12 provides for Annex I Parties to implement projects that reduce emissions in non-Annex I Parties, or absorb carbon through afforestation or reforestation activities, in return for certified emission reductions (CERs, tCERs and lCERs) and assist the host Parties in achieving sustainable development and contributing to the ultimate objective of the Convention. The CDM is supervised by the CDM Executive Board.

3. Emissions trading, as set out in Article 17, provides for Annex I Parties to acquire units from other Annex I Parties. These units may be in the form of AAUs, removal units (RMUs), ERUs, CERs, tCERs and lCERs"

Kyoto Terms: Some additional Kyoto related terms that you will want to be familiar with are Designated Operational Entity (DOE), Designated National Authorities (DNA), "clean development mechanisms," "conference of the parties (COP)," "entry into force," G77/China, "Subsidiary Body for Implementation (SBI)," and "Subsidiary Body for Scientific and Technological Advice (SBSTA)."          

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