Following is my testimony submitted to the Washington State Department of Ecology in response to its draft Clean Air Rule to limit climate pollution. Comments are due by 5pm this Friday, July 22. They can be filed on line here,or emailed to AQComments@ecy.wa.gov. Please take a moment to ask Ecology for a stronger rule that meets the scientific requirements to restore climate stability. You can also sign a petition for a stronger rule here.
When Washington Gov. Jay
Inslee in 2015 ordered the state Department of Ecology to draft a rule limiting
greenhouse gas emissions, he set a precedent.
For the first time, a state government moved to cut climate pollution on
the authority of existing environmental legislation.
The groundwork for the rule
was the state Clean Air Act, which mandates state government to “(p)reserve, protect
and enhance the air quality for current and future generations.” On this basis, Ecology has drafted a rule
that is in a public comment phase ending this week.
Pollution
reductions called for under the rule fall substantially far short of what it
would take to actually meet the Clean Air Act mandate. The rule calls for annual 1.7% emissions cuts
from large polluters. It would eventually
cover two-thirds of state greenhouse gas (ghg) emissions. Thus the overall yearly pollution reduction
is more like 1%. That assumes that offsets, which polluters can purchase to
meet 100% of their obligations, will actually all generate the real emissions
reductions that are claimed. Many are
skeptical, and loopholes in the draft rule actually allow one unit of carbon
reduction to count for two units in some circumstances.
The
actual scientific requirement is closer to an 8% annual ghg cut, and this curve
is rapidly growing steeper. By next year
it will be around 9%. These numbers are
based on the target for recovery of climate stability, returning atmospheric
carbon dioxide concentrations to 350 parts per million by 2100. 350ppm is where the atmosphere stops trapping
solar heat, the basis of global warming.
The longer that CO2 levels are higher than 350ppm – they are now above
400ppm – the more heat the planet will absorb, and the more probable that
feedbacks will push global warming beyond human control – feedbacks including
loss of natural carbon sinks such as Arctic permafrost.
This
is based on science done by leading climatologist James Hansen and his team for
a series of lawsuits promoted by Our Children’s Trust. Youth lawsuits are being brought against a
number of state governments, the federal government and other national
governments. They argue, along the same
lines as the theory under which Gov. Inslee ordered the climate rulemaking,
that existing constitutional and statutory obligations to protect natural
resources are sufficient grounds regulate carbon and other ghgs.
In
one of the cases, eight youth have won a court order requiring Washington state
to limit climate pollution. King County
Superior Court Judge Hollis Hill said the state must issue a rule by the end of
the year. Though the state opted to
appeal the order, it nonetheless is the legal requirement under which the state
is now operating.
The
state claims it might need more time.
But truly, there is no more time for delay. NASA
just reported that the first six months of the year were the hottest on
record, 1.3°C warmer than the late 19th century. That is perilously close to the 1.5°C target
set by the recent Paris climate summit to avert the worst consequences of
climate disruption. Even more alarming
is the fact this is 0.3°C above any temperature high previously recorded – a
phenomenal spike indicating the planet may be moving into a new climate state.
NASA
also reported that Arctic sea ice was at record lows five of the year’s first
six months. During winter, Arctic sea icepack
typically peaks at 40% of its early 1980s extent. That drives growing heat. Ice sends 90% of
solar heat back to space, while blue water absorbs 90%. Global warming is already feeding global
warming in the Arctic, with a worldwide impact.
If
ever the climate crisis was upon us, it is upon us now. Yet the world continues to operate as if it
was business as usual – As if minor course corrections can possibly avert a
collision with the physical realities of an increasingly disrupted
climate. No, they can’t. This is why Ecology’s draft climate rule is
not an adequate response to the Clean Air Act mandate. It is not a climate
crisis rule. It is a business-as-usual
rule.
A fundamental problem is a contradiction in the rulemaking
process itself. When Gov. Inslee ordered
the rulemaking, it was done not only on the basis of the Clean Air Act, but also a 2008 law that
set ghg limits for the state: 1990 levels by 2020; 25% below 1990 levels by
2035, and 50% below 1990 levels by 2050.
There is wide agreement that these limits are too low, including from
Ecology. In a December 2014 update
required by law, the department said (on page
18):
“Washington
State’s existing statutory limits should be adjusted to better reflect the
current science. The limits need to be more aggressive in order for Washington
to do its part to address climate risks and to align our limits with other
jurisdictions that are taking responsibility to address these risks. . . Ecology
concludes that Washington’s existing statutory statewide reductions limits
under RCW 70.235.020, especially limits for 2035 and 2050, need to be updated
through changes to the statute.”
Critically,
Judge Hill also found those limits inadequate to meet Clean Air Act requirements.
In a November ruling she said, “. . . the emission standards currently adopted by
Ecology do not fulfill the mandate to ‘(p)reserve, protect and enhance the air
quality for current and future generations.’”
Ecology
is required under law to submit updates in the limits to the Legislature. In its 2014 report the department recommended
waiting until after the Paris summit. In
her most recent ruling in April the Judge ordered Ecology to fulfill this legal
mandate. That is also part of the ruling that has been appealed. At a July 14 public hearing on the rule in
Olympia an Ecology representative said the department is exploring an update
and hopes to make recommendations by the end of the year. Everyone understands
the 2008 limits are inadequate.
Thus, it is
clear that to base the rulemaking on both the Clean Air Act and the 2008 limits
sets up a contradiction. If Ecology holds within the 2008 limits, it cannot
meet the legal requirements of the Clean Air Act to protect the atmosphere for
present and future generations. It’s either one or the other.
To say the
rule proposed by Ecology even meets the 2008 standard would be a misnomer. In fact, parallel to its coverage of
polluters, the rule would only hit around two-thirds of the 2035 target. The remaining emissions reductions would have
to come from currently uncovered sectors.
One reason
state officials give for holding the rulemaking within the 2008 limits, making
them a ceiling rather than a floor, is because they believe it provides more
solid footing to fight off inevitable industry lawsuits than basing the process
on the Clean Air Act alone. They would
rather win a 1% annual pollution reduction than lose with a requirement closer
to scientific necessities. But just how
solid a groundwork the 2008 law actually provides is open to question. In 2015 State Sen. Doug Ericksen, the oil
industry’s best friend in Olympia, asked the state attorney general his opinion
on what the law actually required.
The AG
responded that it places no requirement on the Legislature. “There is no language in the statute
requiring the legislature to create a program to achieve greenhouse gas
emission reductions.” Neither does it
provide a legal ground to sue the state if it does not meet the limits. The law “does not expressly create a cause of
action for obtaining a court order requiring that the greenhouse gas emission
reductions identified in that statute be enforced.” Nor can anyone collect
damages for failure to reach the limits. “There is no language in RCW
70.235.020 that expressly creates a cause of action for damages against the
state for a failure to achieve the greenhouse gas emission reductions
identified in that statute.”
Certainly
any lawsuit brought by the oil industry and other interests will cite that AG
opinion to undermine the legal authority of the 2008 law in the
rulemaking. They will argue the law is
essentially toothless, and have a basis on which to make that case. The Clean Air Act authority is far more
solid, and really meeting its mandate would require much more than the business
as usual rule now proposed by Ecology.
These are
legal points, and they are important.
But beyond the legal, technical and bureaucratic framework in which this
rule is conceived, another force is at play.
It was evident in the July 14 Ecology hearing when person after person
placed the issue in the overriding moral context. Around 24 people had been fasting the three
days before, mostly parents and grandparents, to ask for a rule worthy of our
children. I was one of them. I concluded my testimony with this:
“The
ultimate test of any climate policy is what happens on this planet. What will the world look like in 44 years
when my 19-year-old daughter is my age?
I fear it will be a nightmare world in which civilization is breaking
down. The longer we delay acting in
proportion to the crisis, the more likely this catastrophic future becomes.
“I implore
you, as people I know are aware of these facts, and as concerned about them as
I am, to listen to your heart and enact a rule to save our children’s generation. It is up to us to act now in proportion to
the crisis we face.”
Once again,
I make that call to Ecology, and the governor.
This is no longer a business-as-usual world. We need a climate crisis
rule for a climate crisis world. Please
give us one.
KEYWORDS: CLIMATE, CLIMATE CHANGE, CLIMATE DISRUPTION, GLOBAL WARMING, WASHINGTON STATE, JAY INSLEE, CLEAN AIR RULE
KEYWORDS: CLIMATE, CLIMATE CHANGE, CLIMATE DISRUPTION, GLOBAL WARMING, WASHINGTON STATE, JAY INSLEE, CLEAN AIR RULE
Well said, Patrick. The NASA temperature figure is especially compelling. The possibility that we are entering a "climate crisis" situation is very real.
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