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Weekly Update Volume 39, Issue 29

10/19/2009

LITIGATION

CLIMATE CHANGE, POLITICAL QUESTION DOCTRINE, STANDING:



The Fifth Circuit reversed a lower court decision dismissing Mississippi residents' class action lawsuit against several energy, fossil fuel, and chemical companies for their alleged contribution to climate change. The residents argued that the companies intentionally and unreasonably used their property so as to produce massive amounts of greenhouse gasses that caused an increase in global surface air and water temperatures that, in turn, caused a rise in sea levels and added to the ferocity of Hurricane Katrina. The residents sought compensatory and punitive damages for damage to private and public property based on Mississippi common law actions of nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. Contrary to the decision of the lower court, the residents have standing to assert their nuisance, trespass, and negligence claims. For purposes of Article III standing, an indirect causal relationship will suffice so long as there is "a fairly traceable connection between the alleged injury in fact and the alleged conduct of the defendant." The traceability requirement "need not be as close as the proximate causation needed to succeed on the merits of a tort claim." Here, the residents, relying on scientific reports, allege a chain of causation between the companies' substantial emissions and their injuries. While the residents will be required to support these assertions at later stages in the litigation, at this pleading stage the court must take these allegations as true. Moreover, the U.S. Supreme Court recognized in Massachusetts v. EPA, 549 U.S. 497, 37 ELR 20075 (2007), that injuries may be fairly traceable to actions that contribute to, rather than solely or materially cause, greenhouse gas emissions and global warming. In addition, none of these claims present nonjusticiable political questions. The claims do not present any specific question that is exclusively committed by law to the discretion of the legislative or executive branch. Until Congress, the president, or a federal agency enacts or adopts laws or regulations that comprehensively govern greenhouse gas emissions, the Mississippi common law tort claims posed in the instant case are justiciable, not political. However, the residents' unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims must be dismissed. The residents are essentially alleging a massive fraud on the political system resulting in the failure of environmental regulators to impose proper costs on the companies. Such a generalized grievance is better left to the representative branches. Hence, they lack standing on these claims. Comer v. Murphy Oil USA, No. 07-60756, 39 ELR 20237 (5th Cir. Oct. 16, 2009).


CLIMATE CHANGE, POLITICAL QUESTION DOCTRINE, STANDING:



A district court dismissed an Eskimo village's nuisance claim against 24 oil, energy, and utility companies for their alleged contribution to climate change. The village claimed that the companies are responsible for a substantial portion of the greenhouse gas emissions that are contributing to climate change. As a result, the Arctic sea ice that protects the village's coast from winter storms has diminished, and the resulting erosion and destruction will require the village's residents to relocate. The court, however, lacks jurisdiction under the political question doctrine. The indisputably international dimension of climate change does not render the instant controversy a non-justiciable one. However, resolving the claim will require the court to make policy determinations relating to the use of fossil fuels and other energy sources and to consider their value in relation to the environmental, economic, and social consequences of such use. It would require the court to make a policy judgment of a legislative nature rather than resolving the dispute through legal and factual analysis. Resolution of the nuisance claim requires balancing the social utility of the companies' conduct with the harm it inflicts, which, by definition, entails a determination of what would have been an acceptable limit on the level of greenhouse gases emitted by the companies. The case would also require the court to make a policy decision about who should bear the cost of global warming, as virtually everyone on Earth is responsible on some level for contributing to such emissions. The court also lacks guidance on how to resolve the case in any "reasoned" manner. In addition, the village lacks standing. It is unable to trace its alleged injuries to any particular company, and its claim for damages is dependent on a series of events far removed both in space and time from the companies' alleged discharge of greenhouse gases. Native Village of Kivalina v. ExxonMobil Corp., No. 08-1138, 39 ELR 20236 (N.D. Cal. Sept. 30, 2009) (Armstrong, J.).


TAKINGS, ZONING:



The Ninth Circuit held that a city's mobile home rent control ordinance, which effects a transfer of nearly 90 percent of the property value from mobile home park owners to mobile home tenants, constitutes a facial regulatory taking under Penn Central Transportation Co. v. New York City, 438 U.S. 104, 8 ELR 20528 (1978). The owners of a mobile home park brought a facial challenge to the ordinance as opposed to an as-applied challenge. Thus, the proper inquiry is not whether the owners can demonstrate that property has been taken, but whether the "mere enactment" of the regulation constitutes a taking. Applying the three factors set forth in Penn Central, the court found that a taking occurred. Although the owners purchased the park several years after the county passed the ordinance but five years before the city adopted it, the court decided that the issue of investment-backed expectations is not determinative but must be considered in tandem with the economic impact of the regulation on the park owners and the character of the governmental action. Here, the undisputed evidence shows that the ordinance has caused a significant economic loss for the park owners. The mobile home rent control ordinance causes a wealth transfer from the mobile home park owners to the incumbent mobile home tenants. This transfer is accomplished by the mere enactment of the ordinance. The "character of the governmental action" test also weighs in favor of the park owners. The park owners may own the property on which the mobile homes rest, but under the ordinance the tenants have the right to convey the home with the right to remain on the site at a much-reduced rent. This looks much more like a classic taking than a mere regulatory burden. Moreover, the ordinance applies only to mobile home park owners. In so doing, the city has singled out the park owners and imposed solely on them a burden to support affordable housing. The case, therefore, was reversed and remanded to the district court to determine what compensation is due. Guggenheim v. City of Goleta, No. 06-56306, 39 ELR 20234 (9th Cir. Sept. 28, 2009).


TRESPASS, RIVERS AND HARBORS ACT, CWA:



The Ninth Circuit held that waterfront homeowners who built shoreline defense structures on U.S. tideland property held in trust for a Native American tribe are liable for common law trespass and for violating the Rivers and Harbors Appropriations Act of 1899 (RHA). Between 1963 and 1988, the homeowners leased the tidelands from the tribe, giving them the right to erect shore defense structures on the tidelands. After the lease expired, the homeowners refused to remove the structures or enter into a new lease agreement. The United States then filed suit against the homeowners under common law trespass, the RHA, and the CWA. The homeowners argued that they cannot be liable for trespass, despite the movement of the tideland boundary, because their structures were lawfully built on the homeowners' property landward of the mean high water (MHW) line. But under the common law, the boundary between the tidelands and the uplands is ambulatory; that is, it changes when the water body shifts course or changes in volume. Because both the upland and tideland owners have a vested right to gains from the ambulation of the boundary, the homeowners cannot permanently fix the property boundary, thereby depriving the tribe of tidelands that they would otherwise gain. And although the structures may have been legal as they were initially erected, this is not a defense against the trespass action nor does it justify denying the tribe land that would otherwise accrue to them. The homeowners are also liable under the RHA because they have maintained at least part of their shore defense structures below the MHW line and because the structures alter the course, location, condition, or capacity of a navigable U.S. water. However, the homeowners are not liable under the CWA. It is unclear from the evidence whether the high tide line actually reached the area where the homeowners discharged fill material during their maintenance of the structures. The court noted that although the CWA's jurisdictional reach is generally broader than the RHA's, the RHA is concerned with preventing obstructions, whereas the CWA is focused on discharges into water. Since the two laws serve different purposes, their regulatory powers will diverge in some circumstances, as is the case here. United States v. Milner, Nos. 05-35802, -36126, 39 ELR 20232 (9th Cir. Oct. 9, 2009) (amicus curiae counsel included John Brisco of Briscoe Ivester & Bazel LLP in San Francisco, Cal.).


TAKINGS, COLLATERAL ESTOPPEL:



The Court of Federal Claims held that a livestock operator was collaterally estopped from litigating the issue of ownership to a right-of-way, thereby defeating its takings claim against the BLM for dismantling a water diversion structure on federal land and preventing the operator's access to the site. The Interior Board of Land Appeals (IBLA) previously concluded that there was no right-of-way authorizing the construction or maintenance of the diversion structure and that the builders of the structure--the operator's predecessors-in-interest--had trespassed. A district court affirmed the IBLA decision. Because the IBLA decision remains in full force and effect, the operator cannot relitigate the issue of ownership of the alleged right-of-way. And because the operator has not established a property interest in the right-of-way, its takings claim must fail. Underwood Livestock, Inc. v. United States, No. 05-0162L, 39 ELR 20235 (Fed. Cl. Oct. 7, 2009) (Williams, J.).


CONSTITUTIONAL LAW, FIRST AMENDMENT:



The Seventh Circuit affirmed a lower court decision dismissing a citizen group's 42 U.S.C. §1983 action against state park officials for refusing to include in the park's display racks pamphlets warning of asbestos in the park. A park is a traditional public forum, and thus the park authorities cannot impose unreasonable barriers to using open public space to convey ideas and opinions. But there has been no showing that they've tried to do this. Displaying the pamphlets may risk the appearance of endorsing an opinion that the officials do not believe. And if they were to display their own pamphlet countering the group's pamphlet, this would have the effect of giving it legitimacy, which the officials are not obligated to acknowledge. Further, the denial of rack space has not closed off the only good avenue that the group has for reaching the patrons of the state park with its message as no special permit or license is required to hand out pamphlets to park visitors. Illinois Dunesland Preservation Soc'y v. Illinois Department of Natural Resources, No. 09-1535, 39 ELR 20233 (7th Cir. Oct. 14, 2009).


Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).


AIR:



  • EPA issued its advanced notice of proposed rulemaking and seeks comments on its emissions factors program. 74 FR 52723 (10/14/09).

  • SIP Approvals: Arizona (particulate matter (PM) emissions and precursors for the Maricopa County Air Quality Department) 74 FR 52693 (10/14/09). California (volatile organic compound (VOC) emissions for the San Joaquin Valley air pollution control district) 74 FR 52894 (10/15/09); (VOC emissions for the San Diego air pollution control district) 74 FR 52427 (10/13/09). Indiana (carbon monoxide (CO) limited maintenance plan for Lake and Marion counties) 74 FR 52891 (10/15/09). Ohio (VOC emissions from portable fuel containers) 74 FR 52691 (10/14/09). South Carolina (Clean Air Interstate Rule (CAIR) requirements and Nitrogen Oxide (NOx) Budget Trading Program) 74 FR 53167 (10/16/09).

  • SIP Proposals: Arizona (PM emissions and precursors for the Maricopa County Air Quality Department; see above for direct final rule) 74 FR 52717 (10/14/09). California (VOC emissions for the San Diego air pollution control district; see above for direct final rule) 74 FR 52441 (10/13/09). Indiana (CO limited maintenance plan for Lake and Marion counties; see above for direct final rule) 74 FR 52942 (10/15/09); (VOC reasonably available control technology requirements) 74 FR 53193 (10/16/09). Ohio (VOC emissions from portable fuel containers; see above for direct final rule) 74 FR 52716 (10/14/09). South Carolina (CAIR requirements and NOx Budget Trading Program; see above for direct final rule) 74 FR 53198 (10/16/09). Tennessee (Clean Air Interstate Rule) 74 FR 52717 (10/14/09).

HAZARDOUS & SOLID WASTE:



  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling parties to pay $100,000 in past U.S. response costs incurred at the Le Roi Smelter site in Northport, Washington, to implement certain institutional controls, and to execute an option to sell the site to the town of Northport. 74 FR 52806 (10/14/09).

MINING:



  • OSM partially approved revisions to Wyoming's regulatory program under SMCRA concerning self-bonding requirements. 74 FR 52677 (10/14/09).

WILDLIFE:



  • FWS proposed to designate an additional 97,415 acres in Los Angeles, Orange, Riverside, San Bernardino, San Diego, Santa Barbara, and Ventura counties, California, as critical habitat for the arroyo toad. 74 FR 52612 (10/13/09).

DOJ NOTICE OF SETTLEMENT :



  • United States v. Town of Southington, No. 3:09cv1515 (D. Conn. Oct. 6, 2009). Under one of two related consent decrees, five settling CERCLA defendants must perform EPA's selected remedy for the Old Southington Landfill Superfund Site in Southington, Connecticut, must pay $500,000 in future EPA oversight costs, must pay $537,000 in natural resource damages, and must pay $2,750,000 in state natural resource damages; under the second decree, 86 de minimis PRPs must pay $4,248.450 into a trust account being managed by the five performing defendants. 74 FR 53297 (10/16/09).

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


THE CONGRESS

Citations below are to the Congressional Record (Cong. Rec.).


Chamber Action


  • H.R. 1593 (Wild and Scenic Rivers Act), which would amend the Wild and Scenic Rivers Act to designate a segment of Illabot Creek in Skagit County, Washington, as a component of the National Wild and Scenic Rivers System, was passed by the House. 155 Cong. Rec. H11177 (daily ed. Oct. 13, 2009).

  • H.R. 3433 (North American Wetlands Conservation Act), which would amend the North American Wetlands Conservation Act to establish requirements regarding payment of the non-federal share of the costs of wetlands conservation projects in Canada that are funded under that Act, was passed by the House. 155 Cong. Rec. H11178 (daily ed. Oct. 13, 2009).

  • H.R. 3476 (Delaware Water Gap National Recreation Area Citizen Advisory Commission), which would reauthorize the Delaware Water Gap National Recreation Area Citizen Advisory Commission, was passed by the House. 155 Cong. Rec. H11179, H11260 (daily ed. Oct. 13, 2009).

  • H.R. 3537 (Junior Duck Stamp Conservation and Design Program Reauthorization Act of 2009), which would amend and reauthorize the Junior Duck Stamp Conservation and Design Program Act of 1994, was passed by the House. 155 Cong. Rec. H11177 (daily ed. Oct. 13, 2009).

  • H. Res. 465 (Atlantic Intracoastal Waterway Association), which would recognize the Atlantic Intracoastal Waterway Association on the occasion of its 10th anniversary, was passed by the House. 155 Cong. Rec. H11354 (daily ed. Oct. 14, 2009).

Committee Action


  • H.R. 3433 (wetlands) was reported by the Committee on Natural Resources. H. Rep. No. 111-296, 155 Cong. Rec. H11173 (daily ed. Oct. 9, 2009). The bill would amend the North American Wetlands Conservation Act to establish requirements regarding payment of the non-federal share of the costs of wetlands conservation projects in Canada that are funded under that Act.

  • H.R. 3583 (energy) was reported by the Committee on Science and Technology. H. Rep. No. 11-302 H11456 (daily ed. Oct. 15, 2009). The bill would guide and provide for U.S. research, development, and demonstration of solar energy technologies.

  • H. Res. 830 (water) was reported by the Committee on Rules. H. Rep. No. 111-301, 155 Cong. Rec. H11383 (daily ed. Oct.14, 2009). The bill would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to expand the Bay Area Regional Water Recycling Program.

Bills Introduced


  • S. 1777 (Udall, D-Colo.) (mines) would facilitate the remediation of abandoned hardrock mines. 155 Cong. Rec. S10361 (daily ed. Oct. 13, 2009). The bill was referred to the Committee on Environment and Public Works.

  • S. 1783 (Franken, D-Minn.) (agriculture) would amend the Agricultural Marketing Act of 1946 to provide for country of origin labeling for dairy products. 155 Cong. Rec. S10434 (daily ed. Oct. 14, 2009). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.

  • S. 1787 (Bingaman, D-N.M.) (land) would reauthorize the Federal Land Transaction Facilitation Act. 155 Cong. Rec. S10434 (daily ed. Oct. 14, 2009). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 3794 (Cardoza, D-Cal.) (fisheries) would amend the Central Valley Project Improvement Act to assist in efforts to avoid losses of juvenile anadromous fish. 155 Cong. Rec. H11297 (daily ed. Oct. 13, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3804 (Tonko, D-N.Y.) (National Park Service) would make technical corrections to various Acts affecting the National Park Service to extend, amend, or establish certain National Park Service authorities. 155 Cong Rec. H11297 (daily ed. Oct. 13, 2009). The bill was referred to the Committees on Natural Resources, Transportation and Infrastructure, and Oversight and Government Reform.

  • H.R. 3805 (Wittman, R-Va.) (Electronic Duck Stamp Act) would amend the Electronic Duck Stamp Act of 2005 to extend by two years the period for the conduct of the electronic duck stamp pilot program under that Act. 155 Cong. Rec. H11298 (daily ed. Oct 13, 2009). The bill was referred to the Committee on Natural Resources.

  • H.R. 3820 (Wu, D-Ore.) (natural hazards) would reauthorize federal natural hazards reduction programs. 155 Cong. Rec. H11456 (daily ed. Oct. 15, 2009). The bill was referred to the Committees on Science and Technology, Natural Resources, and Transportation and Infrastructure.

  • H.R. 3836 (Israel, D-N.Y.) (energy) would authorize the Secretary of Energy to provide credit support to enhance the availability of private financing for clean energy technology deployment. 155 Cong. Rec. H11457 (daily ed. Oct. 15, 2009). The bill was referred to the Committee on Energy and Commerce.

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


IN THE STATES

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. To access material previously reported in 2009, visit our list of Cumulative State Developments. For state material reported prior to 2009, visit the ELR Archives.


The states below have updates this week:

















Missouri North Carolina Texas
Nevada Oklahoma Virginia
New Jersey Oregon Wisconsin
New Mexico    

MISSOURI


Air:



  • The Department of Natural Resources will hold a public hearing on proposed amendments to Mo. Code Regs. Ann. tit. 10 §10-6.390, Control of Nitrogen Oxide (NOx) Emissions From Large Stationary Internal Combustion Engines. This amendment would limit NOx emissions for both large stationary diesel and dual fuel internal combustion engines and add a NOx exemption limit. The hearing will be December 3, 2009. See http://www.sos.mo.gov/adrules/moreg/current/2009/v34n19/v34n19b.pdf (pp. 2145 - 46)

NEVADA


Air:



  • The State Environmental Commission adopted amendments to NAC 445B.460, relating to vehicle emissions. The amendment requires a test station and an approved inspector to obtain a license with a "D" rating to test the exhaust emissions of certain heavy-duty motor vehicles that are powered by diesel engines, requires the equipment for the measurement of smoke opacity from those motor vehicles to include a dynamometer and a smoke opacity meter, makes various other changes concerning the procedure for testing those motor vehicles, and specifies the standards for exhaust emissions that are applicable to a reconstructed vehicle and a tri-mobile. See http://www.leg.state.nv.us/register/2009Register/R130-09P.pdf

NEW JERSEY


Water:



  • The Department of Environmental Protection seeks public comment on the proposed readoption of N.J. Admin. Code §7:14-2 and 8, Water Pollution Control Act. Subchapter 2 establishes construction standards for wastewater treatment facilities and defines the roles and responsibilities of the owner, the owner's representative or engineer, and the construction contractor. Subchapter 8 establishes a uniform policy for the Department's assessment of civil administrative penalties, the rules governing standards for Individual Subsurface Sewage Disposal Systems, the Water Supply Allocation regulations, the Water Supply and Wastewater Operators' Licensing regulations, and the UST regulations. Subchapter 8 also includes grace period applicability and procedures that identify certain violations as minor and subject to a grace period. Comments are due December 4, 2009. See http://www.nj.gov/dep/rules/notices/100509a.html

NEW MEXICO


Air:



  • The New Mexico Environmental Improvement Board will hold a public hearing on proposed amendments to N.M. Code R. §20.2.50, Ozone Control Areas; and N.M. Code R. §20.2.51, Nitrogen Oxide Emissions from Engines in Ozone Control Areas. The proposed rules establish areas in which additional regulation of nitrogen oxides and volatile organic compounds is required due to ambient ozone concentrations in excess of 95% of the current federal ozone standard and impose new restrictions on emissions of nitrogen oxides from a substantial contributor of that pollutant in the San Juan County area, specifically, reciprocating engines used for natural gas compression. The hearing will be December 7, 2009. See http://www.nmcpr.state.nm.us/nmregister/xx/xx18/environotice.htm

  • The New Mexico Environmental Improvement Board adopted N.M. Code R. §20.11.49, Excess Emissions. The rule prohibits excess emissions for startup or shutdown unless they are the result of unavoidable and unforeseeable malfunctions. In addition, as part of the analysis for excess emissions events, the rule requires a "root cause analysis." This is a detailed technical analysis of excess emission events that determines the underlying reasons that the event occurred and all contributing factors to the malfunction, to the extent possible. The analysis also requires an evaluation of alternative measures (if any) that can be implemented to reduce the likelihood of a recurrence of an incident. See http://www.nmcpr.state.nm.us/nmregister/xx/xx18/20.11.49.htm

NORTH CAROLINA


Water:



  • The Department of Environment and Natural Resources seeks public comment on proposed amendments to 15A N.C. Admin. Code 02B.0248, Randleman Lake Water Supply Watershed: Nutrient Management Strategy. The proposed amendments make the Randleman buffer program easier to understand and implement. Comments are due December 14, 2009. See http://www.ncoah.com/rules/register/Volume24Issue08October152009.pdf (pp. 526-54)

OKLAHOMA


Hazardous & Solid Waste:



  • The Department of Environmental Quality adopted amendments to Okla. Admin. Code §252:20, Emergency Planning and Community Right-To-Know. The purpose of this rule amendment is to update the incorporation by reference of federal EPCRA rules from 2004 to 2009. See http://www.oar.state.ok.us/register/Volume-27_Issue-03.htm#a17435

OREGON


Hazardous & Solid Waste:



  • The Oregon Department of Environmental Quality (DEQ) proposed rules for the beneficial use of solid waste. The new rules would establish a process for DEQ review of proposals to use wastes beneficially as an alternative to disposal, and will authorize DEQ to issue beneficial use determinations rather than permits for appropriate uses. The hearings will be November 17, 2009. Comments are due November 24, 2009. See http://www.deq.state.or.us/lq/pubs/docs/sw/BURulemakingAnnouncement091013.pdf

TEXAS


Air:



  • The Commission on Environmental Quality will hold two public hearings on proposed amendments to 30 Tex. Admin. Code §101.1, General Air Quality Rules; 30 Tex. Admin. Code §§101.390-101.394, 101.396, and 101.399-101.401, Highly-Reactive Volatile Organic Compound Emission Cap and Trade Program; 30 Tex. Admin. Code §§101.350, 101.351, and 101.353, Mass Emissions Cap and Trade Program; and 30 Tex. Admin. Code §§115.440-115.443, 115.445, 115.446, and 115.449, Control of Air Pollution from Volatile Organic Compounds Offset Lithographic Printing. The hearings will be October 28 and 29, 2009. See http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#608

Water:



VIRGINIA


Air:



WISCONSIN


Air:



  • The Bureau of Air Management proposed amendments to Wis. Admin. Code NR §400, relating to the definition of the term "volatile organic compound." The purpose of the proposed rule revision is to add dimethyl carbonate and propylene carbonate to the list of excluded compounds. See http://www.legis.state.wi.us/rsb/code/register/reg646a.pdf (pp. 12-13)

  • The Bureau of Air Management proposed amendments to Wis. Admin. Code NR §488, Record Keeping Requirements. The amendments would require persons or facilities who perform refrigerant recovery services on equipment to be salvaged or dismantled and owned by another person to provide copies of records to the owner regarding their work with each piece of equipment serviced. The facility performing this service is already required to develop and keep these records. See http://www.legis.state.wi.us/rsb/code/register/reg646a.pdf (pp. 13-14)

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


INTERNATIONAL

SUPPORTERS SAY COPENHAGEN SUMMIT WON'T REACH CLIMATE DEAL


The United Nations Climate Change Conference in Copenhagen this December will fail to produce a deal, but more modest objectives can be achieved, supporters said last week at a forum sponsored by the Carnegie Endowment for International Peace. "I think it's impossible to really get to a binding international agreement" by mid-December in Copenhagen, said Eileen Claussen, president of the Pew Center on Global Climate Change. Claussen sketched out interim steps that could be taken, with the goal of wrapping up a comprehensive deal by mid-2010, instead of December this year. "We can get a strong political statement--an agreement to get to two degrees--and then a date certain to conclude the negotiations," Claussen added. Mohamed El-Ashry, an environmental expert and senior fellow at the U.N. Foundation, echoed Claussen's assessment, saying, "It has become obvious that a comprehensive deal ... is not going to be possible" in Copenhagen. Instead of focusing on sealing a pact that developed and developing countries would then try to ratify, some "ambitious but achievable goals" could be crafted in Copenhagen, El-Ashry said. Those could include energy-efficiency steps to reduce carbon emissions, without mandating the broader levels of pollution reduction by 2020 and 2050. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE59E31820091015?sp=true

ARCTIC SURVEY DATA TRIGGER WORLDWIDE WARNING


Within 20 years, the Arctic sea will be ice-free in the summer, shortening the global time frame on climate change by a decade, according to a new report released last week. Speaking at the Royal Society of Arts, Peter Wadhams, one of the world's leading authorities on sea-ice cover in the North Pole, said "man has taken the lid off the northern part of his planet." This so-called lid is the northern hemisphere's protective heat shield. The findings, reported in the Catlin Arctic Survey, are based on data of floating sea-ice thickness collected during a 73-day trek made by explorer Pen Hadow and his team earlier this year off the Canadian coast in the northern Beaufort Sea. The Arctic region is considered a bellwether of global climate change. Keith Allott, head of conservation group WWF UK's climate change team, said these data were "yet another compelling message from the scientific world that climate change is real" and had profound implications for the planet. For the full story, see http://www.ft.com/cms/s/0/7ad9f54e-b923-11de-98ee-00144feab49a.html?nclick_check=1

AIRLINE FLIES FIRST PASSENGER FLIGHT ON NATURAL GAS


The world's first commercial passenger flight powered by a fuel made from natural gas completed a six-hour journey last week from London to Qatar, one of the biggest producers of natural gas.   "Today's flight opens the door to an alternative to oil-based aviation fuel," Malcolm Brinded, Royal Dutch Shell's executive director upstream international, said in a statement.  Shell developed and produced the 50-50 blend of synthetic Gas to Liquids kerosene and conventional oil-based kerosene fuel used in Qatar Airways' Airbus A340-800 aircraft powered by a Rolls-Royce Trent 556 engine. "This is a major breakthrough which brings us closer to a world where fuels made from feedstocks such as wood-chip waste and other biomass is available for commercial aviation," Rainer Ohler, a spokesman for Airbus, said. For the full story, see http://www.reuters.com/article/GCA-GreenBusiness/idUSTRE59C1NJ20091013

Copyright© 2009, Environmental Law Institute, Washington, D.C. All rights reserved.


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