Thursday, March 18, 2010

California Air Resources Board Withdraws Controversial Clearcutting Protocol

The California Air Resources Board (ARB), which administers California’s climate change efforts under the state’s Global Warming Solutions Act, recently decided to withdraw a controversial “forest project protocol” that would have allowed landowners, including timber companies, to earn carbon credits under California’s cap-and-trade regime for clear-cutting and other potentially harmful forestry practices. California’s statewide program is among the first in the nation, and it serves as a model for other states, regions, and the federal government as they consider similar climate change efforts and legislation. Importantly, California is expected to become part of the Western Climate Initiative, a regional cap-and-trade effort by several Western states and Canadian provinces. Thus, this change to the California model program that restricts the issuance of carbon credits could lead to environmental benefits in the West and across the nation as other similar programs come online.

The withdrawal of the controversial policy came in response to a formal letter sent by the Center for Biological Diversity (“the Center”) in November that accused the ARB’s carbon-crediting policy of violating the California Environmental Quality Act due to the ARB’s failure to consider the foreseeable environmental consequences of adopting the clear-cutting forestry crediting policy, as the law requires. In this case, according to the Center, the foreseeable environmental consequences were to incentivize clear-cutting and other environmentally destructive logging practices that do nothing to address climate change but do hurt the forest’s ability to continue to absorb carbon dioxide (CO2) from the atmosphere.

Environmentally, clear-cutting has several negative impacts, both on forests and on the broader surrounding ecology. Clear-cutting can lead to soil run-off, diminishing water quality. The practice also causes a greater disturbance to the local ecosystem than more sustainable forestry practices by destroying essential habitat, fragmenting the habitat that remains, and ultimately culminating in a loss local of biodiversity. Additionally, replanting to restore the forest and to recapture the carbon lost in the process of cutting will take years and even decades to accomplish—time that we may not have left to address climate change before atmospheric CO2 concentrations reach critical and even catastrophic levels.

By rescinding the policy, the ARB will effectively change the incentive structures around the state’s climate change cap-and-trade program. Since clear-cutting forestry programs will no longer be able to receive credits under the law, the effect is to incentivize better forestry practices overall, which in turn leads to healthier forests and greater CO2 sequestration—and, consequently, greater climate change mitigation—by those forests over time. While this one change alone, even if followed by every other cap-and-trade program, will not in itself halt climate change, it does increase the integrity of the program and the covered forests’ effectiveness at CO2 mitigation over time. So, while this policy change is not a silver bullet, it is a positive step in the right direction.

By Jeremey Dobbins, Legal Intern

Federalism Limits Clean Water Act Restoration

Recent U.S. Supreme Court precedent, most notably its 2006 decision in Rapanos v. United States, have placed enforcement of the Clean Water Act—and, consequently, the cleanliness of the nation’s drinking water—in jeopardy. Even worse, Rapanos had a split decision with two pluralities on the court endorsing two different standards for what ‘waters’ fall within the United States’ jurisdiction.

The results have been predictable (and many were predicted by the court’s dissenters): Polluters use new ambiguities in jurisdiction to slow the process down or make it too costly for the EPA to prosecute. Different federal district courts and circuit courts reach different results on similar jurisdictional facts. Some polluters even decide for themselves that they are no longer under the EPA’s Clean Water Act jurisdiction and stop filing the paperwork they had previously been required to file. Polluters now have an incentive to move to areas where the Clean Water Act doesn’t reach, increasing pollution levels locally and overall.

Some in congress have naturally responded to this abominable and deteriorating situation with efforts to change the Clean Water Act, to bring clarity and restore its former jurisdiction. To the extent they can clarify the Act, they should certainly be encouraged in the effort. Unfortunately, though, they may not be able to get very far in addressing the real problem here, as the limitations imposed on the Clean Water Act were imposed by the Supreme Court based on federalism concerns. The Clean Water Act itself was already presumed to cover every drop of the nation’s waters that federal power could constitutionally reach. In other words, the Act was already believed to cover and reach the outer limits of permissible federal jurisdiction. The very core of the decision in Rapanos was to try to demarcate just exactly what those jurisdictional limits on the federal regulatory power were. On the one side of the jurisdictional line was waters within the federal power to regulate under the Commerce Clause; on the other side, the waters would be within the jurisdiction of the individual states to regulate, if they so chose, but outside of federal jurisdiction.

Thus, congressional efforts to restore the Clean Water Act to its former clarity and broader jurisdiction would presumably be going further than the constitution would allow the federal government to go under the existing legal precedent established by Rapanos. So, when such a new law is challenged—as it certainly would be, assuming it ever gets passed—there would already be reason to believe that it would be struck down by the federal courts, assuming no change in the Supreme Court’s personnel or thinking on federal environmental jurisdictional questions and the reach of the Commerce Clause.

While congress may well be able to tweak around the edges of the Clean Water Act and provide some clarity, the core of the problem here is one of constitutional law, and a statute alone will not be able to untie that Gordian knot. Fixing that sort of problem requires a constitutional amendment or a change in Supreme Court precedent. Perhaps given the jurisdictional disaster left in the wake of Rapanos, the court will revisit the issue in upcoming cases—and, hopefully leave us with more clarity than before. Regardless, such jurisdictional limitations evidently cause a serious impairment to our nation’s ability to address environmental problems as holistically as possible (the best way for dealing with environmental problems)—and our environment and the health of our people will suffer for it. Thus, a constitutional amendment giving the federal government a broader, explicit environmental jurisdiction should not be out of consideration by those in congress who are serious about making sure our environment is preserved for future, healthy generations.

By Jeremey Dobbins, Legal Intern