But a single case seems to be the focus when it comes to Judge Sonia Sotomayor: Riverkeeper v. EPA.  Everyone is reading this case for a glimpse of her approach to our major environmental rules.

What should you know about it?  Well, it’s not a simple case, and it takes some parsing.  But the upshot is this: in the Clean Water Act, Congress required that power plants use the “best technology available” to protect wildlife in rivers when they siphon off water to cool off their boilers.  The EPA (under the Bush Administration) read that language loosely, and let power plants make cost-benefit arguments against technology upgrades.  Judge Sotomayor said no to that — according to her interpretation, Congress wanted the law to force technology development, and cost-benefit analyses went against that intent.

It’s not an ideological ruling.  It’s pretty legalistic.  But it’s in one of those gray areas (“what counts as a reasonable interpretation of Congress’s language?”) that you can answer in lots of ways.

More nitty-gritty analysis of the case after the jump!

At issue is the EPA’s decision to apply a cost-benefit analysis to measures that would protect fish.  Power plants along rivers pull in huge gobs of water, which use to cool down a big container of steam so the steam condenses back into liquid water.  The internal water gets boiled again by the coal or gas, and the river-water gets pumped back out to the river.

But the river water comes out hot.  Fish in that water come out cooked. It adds up to billions of fish, shellfish, and other critters per year, and that’s just for a single plant.

The law on this issue is the Clean Water Act, which got amended by Congress in 1972 with a requirement that power facilities use the “best technology available” to reduce that kill rate. That technology could address anything — the “location, design, construction or capacity” of water intake systems.  All those elements were on the table.

But wait – what does “best technology available” mean?  The best feasible technology?  The best affordable technology?  Or just plain the best, no matter how impractical or expensive?

The answer is somewhere in between the extremes, according to Obama’s nominee.  But on what basis?  Is this just hand-waving?  Is there any legal rigor to this, or did we just pin the tail somewhere in the middle of the donkey?

It turns out she didn’t just split down the middle out of a vague sense of compromise.  She looked around the Clean Water Act, and noticed that in other sections, Congress set looser standards.  In some places, they mandated the use of the “best available technology economically achievable,” and in others,” the “best practicable control technology currently available.”  Notice the wiggle words — a power plant could avoid having to use the “best” technology if that option turned out to be too expensive or too difficult to apply, or just not available on the market.

But Congress left no such wiggle room for companies in the fish-protection section — it said you gotta use the “best technology available.”  Period.  Now, you might say that was sloppy writing, and you could argue that Congress meant to limit it to economically or practically feasible options, but regardless, Congress didn’t do that.  Whether by accident or on purpose, Congress created a separate, tougher standard for companies to meet when protecting wildlife from cooling systems.

So the EPA had to decide what the standard actually meant (that’s its job – agencies write the real rules that connect legislative language to the real world).  It kinda dodged the issue, and didn’t pick a technology.  Instead, it set a standard for damage reduction and let companies use whatever method they wanted as long as they met that standard.  Environmentalists didn’t like that because it allows for a lot of cheating.  For example, killing a billion fish and then re-stocking the river with a half-billion you got from somewhere else (maybe even up-river from the same water source) is technically a response to the damage, but it doesn’t reduce the impact.  After all, you still killed a billion fish.

Restocking got shot down by Sotomayor in Riverkeepers I. Why?  Because remember that the technology had to deal with the “location, design, construction or capacity” of cooling systems.  Restocking doesn’t have to do with those categories, so the EPA was outside the law by approving it.

But that case only looked at the rule that applies to brand-new power plants.  In Riverkeepers II — More Legal Mumbo Jumbo, Judge Sotomayor looked at the EPA’s sister rule, which applied to retrofit requirements for existing power plants.  The EPA rule here was long and wordy, but in the end it came down to this: a plant could do any of a number of things that would show that it met a set of national performance standards.  Again, no specific technology, and again, restocking wildlife was an option, if the company could show it was more cost-effective than mitigating the damage.

Also, the regs created escape clauses — if a company could show that its costs of compliance would be higher than the EPA expected, the EPA would accept a lower standard.  If a company could show a cost-benefit gap, the EPA would again accept a lower standard.

Again, environmentalists lawyered up.  “It says ‘Best Technology Available!’”  they cried.  There’s no “except if it’s expensive” language, they protested. They argued that the EPA should have picked a specific technology, called closed-cycle cooling (it runs water around and around the system, instead of just once and then right back to the river).

The question now is a) did the EPA reasonably interpret an ambiguous piece of legislation, and 2) did the EPA follow the procedures required in doing so?

Judge Sotomayor said the EPA broke the rules.  She said that the law is meant to force technological changes, and that Congress made the cost-benefit decision already by legislating the technology without referring to cost.  Therefore the EPA was contradicting Congress by reconsidering the cost-benefit relationship.

So is the judge a green crusader?  Like a lot of others, I’d say that if she is, this case doesn’t show it.  This is a pretty procedural case, and applies a pretty tight approach to statutory interpretation.  It’s certainly no Miranda v. Arizona, where the Supreme Court boldly outlined the implications of the Fifth Amendment and created the miranda-rights warnings.  Sotomayor didn’t do anything sweeping here.

But what about burning garbage?  Or animal manure?  Old tires?  Captured methane from a cattle-feeding operation?  Or using the recaptured heat from a power plant?

We all have an idea of what “renewable” means, but the law is made by politics, so what gets included in that definition is up to our honorable legislators.

Renewable isn’t the same as eco-friendly.  We learned that with biofuels.  Should we reward coal mines with a tax credit when they capture the methane they emit and supply it as energy?  On one hand, it’s better to burn it and emit CO2 than to just let it escape.  On the other hand, it makes coal-mining yet more central to our energy supply, and more profitable too.  Using waste for energy is a kind of conservation, but that’s often a very dirty way to run the lights.  Burning tires rather than dumping them?  That’s two bad choices, environmentally.  Remember that some people have done well making old tires into super-efficient walls of houses.

Why is this happening?

• states have RES’s (renewable energy portfolio standards) that gradually increase the minimum percentage of total electricity supply that comes from “renewables”.
• There are tons of tax breaks for renewables — tax credits for wind and solar but other credits for renewables production.

So it’s all about getting the government to draw the “renewable” line around your energy source.  House republicans tried to put nuclear power into the renewables basket when Waxman Markey was in committee.  (Nuclear waste is obviously a problem, but I’d prefer that to burning tires and trash.)

But burning pretty much anything, whether it’s trash and crop waste or coal and oil, puts out some kind of emissions, and if we burn the amount we need to power our society, pretty much any burned fuel is likely to be too carbon-intensive to be considered part of the climate-change solution.  Also, consider that when you burn all sorts of stuff, you get all sorts of pollution — sulfur oxides, particulate matter, all sorts of carcinogens.  With some of these toss-it-in-the-fire solutions, we don’t know the dangers or the eventual costs.

The problem with building an infrastructure around trash and tires is that we create a requirement for trash and tires.  This undercuts conservation efforts that would ideally result in less trash being produced, and fewer tires heading to landfills.  What happens to Reduce Reuse Recycle when trash keeps the air conditioner running?

Ohio’s renewable energy standard is set at 25×25 (25% renewable by 2025), and specifically requires that half of that 25% come from “core” renewable sources (wind and solar, I assume?) but allows the other half to come from chemically treated coal or other future-tech clean coal sources.

California is upping its standard to 33×20, which is ambitious enough that it may require some fudging of the definition to meet the standard.

here’s the article: http://www.nytimes.com/2009/05/25/business/energy-environment/25renew.html?ref=earth

1) Impose fuel efficiency standards

2) Impose limits on GHGs from cars and trucks

3) Set a single standard for cars and light trucks, reaching 35.5 mpg by 2016.

Interesting.  Usually global-warming advocates just go for efficiency standards and then expect those to be de facto limitations on GHGs.  My first question is, what limits?  Would it be a total cap on auto emissions every year, regardless of fleet size or total VMT/miles driven?  Or would it be a per-vehicle-per-mile cap, a sort of emissions efficiency akin to fuel efficiency?

The point the article makes is that this announcement represented a deal: the automakers accepted aggressive efficiency standards, and a tighter deadline than the one imposed in the Energy bill of 2007 (2016 vs. 2020), and in return they get a single standard — no more different California standards.

The automakers would never have taken such a deal in the past — they would have dug in their heels and said no to any changes in the standard.  But now, as they subsist on government support to get through the downturn, and without an important ally in John Dingell (who served as their watchdog for so long at the top of the House Energy and Commerce committee), they have a weaker position.

An additional playing card in Obama’s hand was that the Bush administration had refused California’s waiver request, and the Obama EPA is now considering whether or not to grant that request.  California’s standards would have been similarly stringent, and automakers would have had to produce a significant “clean” fleet for that state.

I wrote:

“I’m tempted to disagree with you David, but when I look down the line of GM’s makes and models, the road to viability becomes harder to see. GM has decided to bail on Saturn, Saab, Pontiac (partially) and Hummer. Hummer was a good cut, but the other three?

Saturn makes affordable cars, and could be for GM what Scion or the Toyota Matrix are for Toyota — reliable entry-level cars that earn lifetime customer loyalty. Saab makes (or made until GM got their paws on it) cool cars that had a euro cache. Marketed well, Saab could take upscale buyers away from makes like Volvo, Volkswagen, and even BMW and Mercedes Benz.

Saab doesn’t cannibalize other GM lines, which are very American, and provides high-margin sales. But a Saab provides no rush of recognition to GM execs birthed in the back seats of Tempests and Delta 88′s, and so it got the axe.

Pontiac makes cheap cars that at least cost what cheap cars should cost, and could have been a distinctive brand that targeted the fun-car buyer. It’s alive for now but if its history, and that of Saturn, are any indication, it’ll get de-prioritized, starved of resources, and maybe sold off.

Now look at the lines GM has kept around: Cadillac, Buick, GMC, and Chevrolet.

Chevrolet, with the solid, well-priced Malibu, is otherwise loaded down with low-end uncompetitive cars (the HHR, anyone? How about an Aveo?) and still top-heavy with SUVs. Pickups are no savior now that a) the construction biz is dead, and b) the Ridgeline and the Tundra are competitive. This brand shoots for low-end buyers and hopes to make its money back selling Avalanches.

GMC makes expensive SUVs (all over $30,000), and pickups. Retooling the plants and rebranding GMC are out of the question right now, so keeping GMC is a big bet on rest of 2009 looking exactly like 2004. Not a smart bet.

Cadillac is like a flashback to 1986. Except for the Escalade, which will probably benefit from Hummer’s demise. As for the rest, you can almost see Reagan/Bush stickers on the bumpers. In addition to being out of touch, it is also unable to decide what it is. Is it aggressive, for the hotshot, or classy, for the hard worker who made it up the ladder and deserves the right car? Is it Sinatra, U2, or Jay Z? When I see a car marketed as a luxury sedan that goes 0 to 60 in 4 seconds, I only think, “why?” Rescue Pontiac and put that 0-to-60 in the new Firebird. Then go back and tell your design team not to let another Caddy look like a Knight-Rider update.

Finally, Buick. What’s to like? Expensive, uninteresting, compromise-laden vehicles. The midsize sedans aren’t Camrys, the crossover fails to inspire, and the big car is for your granddad. Buick is a triumph of dedication to the past. It should have gone to run and play with Oldsmobile.

So after cutting three and a half brands, they’re still overloaded with SUVs that cost too much, substandard car options that can’t compete, and pickups that face unprecedented competition in a market (driven by construction) that probably won’t rebound for at least 18 months.

Consumer demand has to show up for GM to rebound. Where is the product that can be as popular as the Camry, the Accord, the Jetta, or even the Prius? Saving GM is going to take a) a culture transplant, and b) at least six years of external support.

Thoughts?

The results are utter waste: the papers go right into the trash usually, the land cleared of forests will take decades to recover if it does at all, and most of the words printed are never even graced by a pair of eyeballs.

Oh no they’re not printing — but what’s the loss?  I can look at it online anyway.

Am I wrong?  Is print taking with it the investigative journalists who keep government honest?  Are the payrolls of reporters dying with their old-fashioned medium?  Is the fall of the press really tied to the material, or is it tied to the short attention spans of readers?  Or is it really tied to the investor demand for quicker profits than an old-fashioned newspaper company can provide?

Seattle’s presses stopped for good today; Denver’s did a few weeks back.  Detroit circulates only three days a week now.  Indianapolis shut down its afternoon paper a few years back.  Others are in bankruptcy.

Celebrate!  Consider: if the average newspaper eats up a whole tree for every 1000-to-1500 copies, then the Seattle PI (circulation 117,000 on a weekday) was eating up about 450 trees a week just from the weekday editions.  That fat Sunday paper is far worse, of course, because it’s bigger and because all the glossy stuff is much more paper-intensive and energy-intensive.

So cancel your subscription.  Sure, you can counter that their servers use energy to host the website, so there’s still a carbon footprint to the news biz.  True, but those will run anyway, whether or not you click.  It’s like the bus — it’s already running, so you aren’t adding to the problem by riding it.

But like so many of our dbad environmental habits, we shed them here only to watch them go like gangbusters in China, India, Brazil, etc.  They lurve the newspapers over there.

And they’re gonna keep at it.  Sigh.

The pitch goes like this: cutting carbon from electricity use depends on a couple of important steps: switching to clean energy (wind solar tidal hydro etc.) and fixing up the ratty old grid we have out in the garage.  Doing either one means building lots of big stuff — power stations, turbines, new transmission lines, solar arrays, you name it.  That takes parts, which you gotta buy from people who make them, and labor, which you gotta get by hiring people who need jobs.

They even have a whole website thingy about it: www.lesscarbonmorejobs.com

There were also company reps there talking up their own efforts on tidal energy, solar energy, waste heat, and the green-ness of Wal-mart.

Here’s some bullets to take home with you:

• Those big mammajamma wind turbines have 8,000 to 12,000 parts.
• EDF’s site shows where all those parts get made, or could get made, in the US of A.
• Solar panels come in flexy sheets, like 18-foot-long Fruit Roll-ups.  All you gotta do is peel and stick, really.  Well, not really.
• Big heavy industry plants, that do things like pour liquid metal, etc., spew tons of waste energy.  They also buy tons of power.  Capturing that waste heat reduce their power needs, and can take a lot of dirty generation off line.
• The tidal-energy guy wishes that his tax credit was as big as the solar and wind tax credits are.
• Wal-Mart says a lot of stuff, and I don’t know how much to believe, because they are quite evil, and capitalist imperialist pig-dogs.  But they seem sincere about selling lots of stuff, and they seem sincere about cutting their costs.  To the extent the stuff they sell is green, and the costs they cut are energy costs, then hey it’s a win-win, right?  And they’re not totally insincere; EDF has two staffers based in Wal-Mart’s Arkansas HQ, and why would they bother doing that if Wal-Mart wasn’t playing ball?
• Like always, green issues intertwine with others: new tech needs skills, so we need to educate or import the brainpower.

All this work wouldn’t last for ever — at some point you eventually get done building all this energy stuff, and then what?  But for a decade or more, it would likely be a job-creating stimulus.

The panel generally agreed on two things: 1) it sucks that we’re not leading on green tech, because we’re losing economic activity, and 2) the way to get this jump-started is to put a fat sticker price on carbon emissions.

The panel generally ignored the whole embedded-carbon question — how much carbon emissions go into making all these low-carbon improvements?  Are we just cranking the coal-fired powerplants up to eleven in our enthusiasm to build green stuff?

My takeaway is that there are regulations that drive good economic trends, either by redistributing money to where it creates more economic activity, or by putting burdens where they’re most efficiently met (the minimum wage, social security, product safety regs, stuff like that) and then there are bogeyman regs that just slow things down and gum up the works to avoid a particular problem.

The name of the Green game right now is to prove that clean energy regs are in the first category — they can be designed in ways that drive, rather than suppress, economic activity.  That means showing that over time, the payoff in economic activity will be at least on the same scale as the cost imposed.

My other takeaway is that there’s not much room for all us softy social-science majors in this.  The green turnaround is going to be in the hands of the MBAs who run businesses, skilled blue-collar folks who can build stuff, and ridiculously smart people who know stuff like fluid dynamics and meteorology.  Concerned lefties with their BAs in Emotional Typology or Hobbes and Locke are in the bleachers for this very important game.

Outside Atlanta, a Utopia Rises

And here’s their own site:

Serenbe

This is green living for the cotillion set.  They do a lot of good greenie things, but they sure do remain class-exclusive in the process.  They got no sidewalks (I call an eco foul), because come on, these people ain’t walkin’.  And their little roads with no shoulders mean they don’t want anybody who’s gotta walk.  So the green efforts are good, but this community’s no example you’d want to use as a prototype.

I like how the NYT got a travel guy to go report on a community that’s trying to be green.  So while the planners are doing work on community design, sustainability, and protecting open space, this Park-Slope-snubbing ascoted Fauntleroy is too busy swooning over the gourmet grocer and the “red velvet cupcakes” to notice.  They couldn’t have sent Kevin Sack to some vineyard somewhere, and sent their green crew to cover this place more seriously?

Update: Eh; maybe I’m too hard on ol’ K-Sack.  After all, it’s a victory to get urbanite foodies to think of their hobby in an enviro context, rather than just as a fancy commodity.  Since this guy mentions zoning more often than terroir, let’s call this a victory.

And I guess I gotta take back the “ascoted Fauntleroy” swipe.  Unless it was true, in which case, I totally called it.

Update 2: Sack, it turns out, won like thirty Pulitzers for racism and stuff (sorry, for stories on racism and stuff) and apparently knows a lot about everything.  So I guess I totally did not call it.  My bad.  Sack’s a heavyweight, it turns out.  But still: how does such a guy descend to fawning over a row of cute doodad-shops?

The Democrats failed to attract any defectors, and the energy bill died a quick death — at least in its current form.

Look out for an anemic, flimsy alternative to happen, or for nothing at all.

When it comes to the environment, or to the war in Iraq, Democrats are basically Republicans, just with a bit of angst about it.

And not a moment too soon! In addition to jacking up the mpg, the bill would also make some other big changes:

• It would require the electric companies to use more and more renewable generating capacity, to the point where 15% of all electricity comes from renewables (solar, wind, geothermal, i.e. NOT coal)
• It would levy $21B in taxes on oil companies. They currently get such lavish tax breaks that they practically paid no taxes at all in recent years, despite crazy record profits

But will any of this get past the insurmountable hurdle that is the Democratic Senate? After all, if there’s one thing the Dems have trouble doing, it’s doing anything at all.

Think about it: Have they beaten a filibuster, even once? Come up with the magical 60 votes for something important, even once?

The Republicans never had 60 votes in the Senate but they regularly found a few defectors to vote with them. But the Democrats, despite facing a demoralized, regrouping opposition that is politically and psychologically weak (as well as suffering under big election losses and endless hypocrisy-highlighting scandal), can’t move a bill. And even when they do, as with the kids’-health-insurance bill, they get beat with the veto and then simply accept defeat.

Given that track record, it is naive at this point to expect the bill to survive. That’s so sad, because even though it sounds like a dramatic world-changing law, the truth is that this energy bill is really only catching up to the situation on the ground.

• Lots of states (and our little ‘burgh, Washington DC) are already taking on California’s car rules, which will eventually push up MPG requirements even without the federal government’s say-so.
• Lots of utility regulators (like our hometown again) are setting higher requirements for renewable energy in their electricity supply. Many are aiming higher than 15%.
• Lots of cars get better than 35 MPG already — all the hybrid sedans (Prius, Camry Hybrid, Civic Hybrid), which add up to several hundred thousand cars on the road already. They’re 20+ years ahead of this bill, if this bill even passes this year.

In retrospect, this was the wrong story to write about — Congress’s likely-meaningless charades aside, the real story is happening in state and local governments, where the lightbulbs have been fluorescent for years….

It’s the law in government buildings, and voluntary in others, but the majority of private sector buildings have bought in.

(We like saving energy, but 81F?  Gives me pause.)

So it’s a big-government environmental regulation, so therefore it must have had some crushing blow on some sector of the economy, right? Actually, true to form, the free market finds a way to create wealth from regulation — Despite the government specifically pushing a new no-tie-no-jacket office standard, a whole new industry of ultra-light business attire has come onto the scene. So instead of giving up their famously-traditional business suits, your classic (or stereotypical?) Japanese businessman can still dress the part.

That’s the moral of the story, economically: environmental regulations will require change, but the free market will spawn products and services to facilitate that change, and the economy will innovate into a more sustainable future. It happens all the time, in every aspect of society.

Could Cool Biz (Hot Office) work in the US?

It sure could, if we raised the temp to about 75F instead of 81F. But we could go up a few degrees, at least. Everybody’s had the experience of walking into a store out of a blisteringly-hot summer day and being shocked — not comforted, but hit — by a bracing cold blast. When it’s over 90F, nobody’s going to complain that a 75F store temperature isn’t cold enough. Plus, having just spent a DC summer with a sweater draped over my office chair for chilly August afternoons at work, I can safely say from personal experience that there’s room to burn less coal on summer air conditioning.

But could we go all the way to 81F? Nah — we’re a little too chubby a population to stay comfy over 80.

Is this a good target, strategically, for environmentalists in the US?  No.  It will reduce electricity demands, but it won’t make a huge impact on total consumption (it makes about a 0.5% impact in Japan, where people drive less), and it won’t do anything to impact the causes of the growth in our CO2 emissions.  Further, and more importantly, there are enough ways for us as a society to make bigger impacts (fuel efficiency, CFL’s, better transit, city planning, and community design) that pushing a plan to make 100 million Americans suffer through hot stuffy days at jobs that they already don’t like isn’t necessary.  The real risk is the pushback against this and against environmentalism in general.

The greatest misconception is that our standard of living will suffer with conservation efforts, and a massive sweaty-offices campaign by green groups would just feed that misconception and increase resistance against the cause.