Thursday, December 27, 2012

EPA Administrator Jackson to Resign after State of Union Address

I guess this was not unexpected, given the rumors and reports by the Washington Post.  This is rather sad.

Here's an excerpt from the NY Times story on her resignation, which encapsulates some of the challenges she have faced during her time:

"After Republicans seized control of the House in 2010, Ms. Jackson became a favored target of the new Republican majority’s aversion to what it termed “job-killing regulations.” One coal industry official accused her of waging “regulatory jihad,” and she was summoned to testify before hostile House committees dozens of times in 2011. She was frequently subjected to harsh questioning that at times bordered on the disrespectful.
Ms. Jackson, the first African-American to head the E.P.A., brushed off that treatment as part of the territory and a reflection of the new partisan reality in Washington. More difficult for her was the lack of support she received at times from environmental groups, who saw every compromise as a betrayal, and from the White House, which was trying to balance worries about the economy and the president’s re-election campaign against the perceived costs of tough environmental policies."

Wednesday, December 26, 2012

Yang Doha Climate Op-ed Piece on

Here's a link to my Doha climate ope-ed piece on, just out today:

Happy Holidays to all.

Wednesday, December 19, 2012

Links for Leaked IPCC AR 5 and IPCC response

For links to the leaked Fifth Assessment Report of the IPCCC, posted by the leaker himself, climate skeptic Alec Rawls, see here:

UCLA's Cara Horowitz posted a blog entry on Berkeley's Legal Planet a few days ago, just as the news of the leaked report had broken, together with a link to the IPCC response is at:

At that time, the IPCC press office also sent out the response by email to a listserv that I am on.  Here's the text:

Dear Climate - L readers
The Second Order Draft of the Working Group I contribution to the Intergovernmental Panel on Climate Change (IPCC) Fifth Assessment Report Climate Change 2013: The Physical Science Basis (WGI AR5) has been made available online. The IPCC regrets his unauthorized posting which interferes with the process of assessment and review. We will continue not to comment on the contents of draft reports, as they are works in progress.

The Expert and Government Review of the WGI AR5 was held for an 8-week period ending on 30 November 2012. A total of 31,422 comments was submitted by 800 experts and 26 governments on the Second Order Draft of the Chapters and the First Order Draft of the Summary for Policymakers and Technical Summary. The author teams together with the Review Editors are now considering these comments and will meet at the Working Group I Fourth Lead Author Meeting on 13-19 January 2013 in Hobart, Tasmania, to respond to all the comments received during the Expert and Government Review.

The IPCC is committed to an open and transparent process that delivers a robust assessment. That is why IPCC reports go through multiple rounds of review and the Working Groups encourage reviews from as broad a range of experts as possible, based on a self-declaration of expertise. All comments submitted in the review period are considered by the authors in preparing the next draft and a response is made to every comment. After a report is finalized, all drafts submitted for formal review, the review comments, and the responses by authors to the comments are made available on the IPCC and Working Group websites along with the final report. These procedures were decided by the IPCC’s member governments.

The unauthorized and premature posting of the drafts of the WGI AR5, which are works in progress, may lead to confusion because the text will necessarily change in some respects once all the review comments have been addressed. It should also be noted that the cut-off date for peer-reviewed published literature to be included and assessed in the final draft lies in the future (15 March 2013). The text that has been posted is thus not the final report.

This is why the IPCC drafts are not made public before the final document is approved. These drafts were provided in confidence to reviewers and are not for distribution. It is regrettable that one out of many hundreds of reviewers broke the terms of the review and posted the drafts of the WGI AR5. Each page of the draft makes it clear that drafts are not to be cited, quoted or distributed and we would ask for this to continue to be respected.

For more information:
IPCC Press Office, Email:
Jonathan Lynn, + 41 22 730 8066 or Werani Zabula, + 41 22 730 8120


Tuesday, December 18, 2012

Unfortunate Distraction - Investigation of EPA Email Accounts?

For people outside of the Washington Beltway, the following headline would sound totally ridiculous:  "EPA IG audits administrator’s private e-mail account," from the Washington Post. ( )

The story is about the request by House Republicans to the EPA Inspector General to investigate the use by EPA Administrator Lisa Jackson of an email account that is not named in accordance with standard EPA email naming convention.  The question is whether the email alias is somehow inappropriate or even illegal.  There is one statement in the article that speaks for itself.  According to a letter sent to Congress related to this issue, "EPA Associate Administrator Arvin Ganesan wrote that for 'nearly two decades EPA administrators have managed the agency with two email accounts' because one is publicly listed on the agency’s Web site. Jackson received more than 1.5 million e-mails on her primary account in fiscal 2012, he added."

Monday, December 17, 2012

Senator Daniel Inouye Passes Away

After all of the sad events of the Newtown shooting, Senator Daniel Inouye, the senior senator from Hawaii, passed away on Monday.  Within the Asian American community, he was a towering figure both because of his senior role in the Senate but also because of his service during World War II in the legendary 442 infantry regiment (made up of Japanese Americans), a time when Americans of Japanese descent on the West Coast were forced into the World War II internment camps.   

Environmental Justice/Title VI Personnel Change at EPA

Inside EPA reported on Thursday that Rafael DeLeon, currently the director of the Office of Civil Rights, is leaving his current position and taking a new job as director of the Office of Site Remediation Enforcement within the Office of Enforcement and Compliance Assurance (OECA), led by Assistant Administrator Cynthia Giles.  I am rather sad to see Rafael move on.  It will also mean some transition and delay in Office of Civil Rights' important Title VI work.  (For those readers unfamiliar, EPA work under Title VI of the Civil Rights Act has been quite controversial; even though much progress has been made under Administrator Jackson on these issues, Title VI advocates have also continued to push hard for more and faster agency action.)

According to the Inside EPA article, the announcement of Rafael's departure (an email from Cynthia Giles, whom I incidentally saw at a workshop last week) did not come with a statement who would head up the Office of Civil Rights in the interim, while a search for a permanent replacement for Rafael is ongoing.  But it seems likely that Helena Wooden-Aguilar, currently the Assistant Director of that office (if I recall her title correctly) and who is most directly responsible for the Agency's external civil rights work, especially external compliance by state and local governemnt recipients of EPA funds with Title VI requirements, is likely to take on more responsibility in this regard.  She'll be terrific, I know (not only because I worked with her previously and had her as a student at Vermont Law School).  Nevertheless, when I spoke to one lawyer from the Title VI advocacy community about this personnel change, he expressed concern about the likely disruption this might mean for progress on Title VI.

Friday, December 14, 2012

Best Places to Work in Federal Government, Lubchenco Departure

And this recently came in from the 2012 Rankings of The Best Places to Work in the Federal Government:   In the category of Agency subcomponents, i.e. distinct offices/divisions within agencies that are headed by a Senate-confirmed political appointee (usually at the level of an Assistant Secretary):  . . . . drum-roll . . . .

#3.  Office of General Counsel of the EPA
#4.  Environment and Natural Resources Division of the US Department of Justice

These are 2 entities within the federal government that employ a very large number of very talented and highly motivated environmental lawyers and provide a great deal of very interesting work.  Both are places that I have worked at and that in my own estimation fully deserve those high rankings.

EPA OGC reports a workplace satisfaction/commitment index score of 81.6.  DOJ's Environment Division reports an index score of 80.9.  According to the survey's explanation, "the index score measures the performance of agencies and agency subcomponents related to employee satisfaction and commitment."  So there you have it  . . .  environmental lawyers are pretty happy with their jobs in the federal government.   Could it also mean that environmental lawyers working for the federal government are happier than their private sector counterparts? That you'll have to decide for yourself.

But wait . . .  there is, strangely, the low ranking of the Office of the Solicitor in the Department of Interior, the counterpart to the EPA Office of General Counsel.  (If it's not understood by readers, the Department of Interior handles most of the federal government's natural resources, lands, and wildlife-related legal work, while EPA focuses on the pollution issues.)  According to the 2012 Rankings, the DOI Solicitor's Office unfortunately ranks at 204 with a 58.9 index number.  What a shocker!  I am not sure what accounts for that low number since DOI's work should also be very interesting for environmental lawyers.

Anyway, EPA OGC's high ranking may not be surprising in light of the overall high ranking of EPA as a federal agency.  Among all large federal agencies, EPA ranks 5th, with an agency-wide index # of 67.6. 

So . . .  hoorray for EPA, EPA-OGC, and DOJ-ENRD.   Great kudos to Administrator Lisa Jackson and General Counsel Scott Fulton for keeping their staff motivated and satisfied with their work and mission.

For a link to that 2012 Ranking, see here:

Also, a few days ago, Professor Holly Doremus wrote on Berkeley's LegalPlanet blog about the recent announcement that Jane Lubchenco, Administrator of the National Oceanographic and Atmospheric Administration, will leave her position at the end of February. Link here:
It will be a loss for NOAA, but it seems in line with other departure announcements or speculations about senior Obama Administration officials.  Of course, there has been plenty of speculation about EPA Administrator Lisa Jackson's status by the Washington Post.  I have no more specific information, though I did ask her when she was at Santa Clara University back in late October and when she met with some of our law students.  (Santa Clara Law's student newspaper ran a story on Administrator Jackson's visit, which I'll post separately.) 

Saturday, December 08, 2012

Doha finally concluded

Wow - AP and Reuters just reported that Doha finally came to an agreement to extend the Kyoto Protocol to 2020.  Here's a link to the pre-final decision document:

It's really impossible for me to tell whether any parts of this draft document were changed before being adopted.  Decisions about financial assistance were apparently postponed.  As expected, only European Union and a couple of other states are part of the emissions limit extension deal, covering just a fraction of global emissions. 

Thursday, December 06, 2012

Global GHG Emission Coverage of Second Kyoto Commitment Period?

Based on the current state of likely participation in the second Kyoto commitment period, and using 2008 GHG emission data from the World Resources Institute (which exclude land use/bunker fuels), the global coverage of the second Kyoto commitment period looks rather bleak.  (Link for WRI data is here: )

As is currently understood, Russia, Canada, Japan, New Zealand, and the US are not likely/will not be taking on QELROs (quantitative emission limit/reduction obligations) in the second commitment period.  With the exception of Kazakhstan and Belarus, other current non-Annex B countries (i.e. the developing countries/emerging economies) will not be taking on QELROs either.  (That is being put off to the negotiation for a future agreement that would start in 2020 .)

Based on that, here are some interesting numbers:

1.  World Total GHG Emissions in 2008:  29986 MMT (million metric tons)

2.  Emissions of top 10 countries in 2008: 20166 MMT (67.25% of world total)
3.  Emission of next 15 countries in 2008:   5219 MMT (17.40% of world total)
4.  Next 14 countries (100-200 MMT/year): 2021 MMT (6.74%)
5.  Next 56 countries (10-100 MMT/year): 2255 MMT (7.5%)
6.  Next 55 countries (1-10 MMT/year):  248 MMT (0.8%)
7.  Bottom 35 (0-1 MMT/year):  13 MMT (0.04%)

Russia, Canada, Japan, and US: 9022 MMT (30% of world total)

17 of the top 25 emitters (lines 2&3) will not have binding QELROs either because they were not originally part of Annex B (i.e. developing countries/emerging economies) or they chose not to take on new QELROs for second commmitment period.  These 17 countries will make up 74% of global emissions. 

The remaining 8 (of the top 25) emitters make up 11.13% of global emissions.

A rough/ballpark guess at the likely second period Annex B parties (which will be primarily the EU and some of the economies in transition/former Soviet block countries) is that they will make up about 15% of global emissions.

So this is where things seem to be headed:

1.  The second commitment period will only cover about 15% of the global GHG emissions
2.  Non-participation by 4 (Russia, Canada, Japan, US) of the 6 largest GHG emitters among developed economies drops 30% from participation in the second commitment period.
3.   Combined with non-participation by developing/emerging economies, 17 of the top 25 emitters will not participate in the second commitment period - making up 74% of global emissions. 
4.  The remaining 8 states of the top 25 emitters will make up about 11% of global emissions.

Thus, the non-participation decision by Russia, Canada, Japan, and US reduce the effective scope of emission coverage by about 3/4 of Annex B.

One final thought:  IF the top 25 emitters (both industrialized and developing/emerging economies) were to get together and negotiate an agreement just among themselves, they would be able to address about 85% of global emissions.  These 25 countries would also make up about 65% (4.5 billion people) of world population.

Now think about that and discuss amongst yourselves . . .

December 5 Status of Kyoto Protocol Second Commitment Period

The latest set of options that the parties appear to be considering, per a draft decision document by the chair of the Kyoto Protocol amendment working group, include provisions regarding provisional application of the amendment, carry-over with various limitations of AAUs and CERs (original Annex B credits from their first commitment period as well as CDM credits), and three versions of a new Annex B.  The paper is dated Dec. 5, so it appears to be the latest.  See here:

Sunday, December 02, 2012

Latest on proposals for continuation of Kyoto Protocol QELROs beyond 2012

I just spent the last few hours digging through the documents that are available for the ongoing negotiations in Doha on the UNFCCC website.  Transparency is great, of course, and the amount of available information for such negotiations is a night-and-day difference from just a decade ago.  But it also provides a deluge of information and documents that can bury some of the more significant documents and processes.  I always wonder how some of the smaller nation (or those with lesser resources to focus on international environmental negotiations) can possibly keep up with the mountain of paperwork and meetings. 

I came across the latest draft (dated December 1) of negotiation proposals (as prepared by the chair of that workgroup) for the continuation of the Kyoto Protocol, i.e. amendment of the the KP for a new commitment period (2013-2017 or 2020), emission reduction commitments, and related issues.  Here's link:

Unfortunately, the document shows lots of unresolved issues -- all of the major ones, essentially.  And of course, stark acknowledgment that Russia, Japan, and Canada are out for the next commitment period (and apparently also New Zealand). 

Wednesday, November 28, 2012

COP 18 Doha Climate Change Negotiations

The 18th meeting of the Conference of the Parties (COP) to the UN Framework Convention on Climate Change started on Monday, Nov. 26. Undoubtedly, COP 18 is a key meeting since it is the last meeting before the expiration of the first commitment period on December 31, 2012 for the Kyoto Protocol's Annex B emission reduction commitments. This meeting will hopefully lead to the adoption of amendments to the Kyoto Protocol allowing for the commencement of a second commitment period in January 2013.

The International Institute for Sustainable Development provides terrific daily meeting summaries, available at  Among the key things that happened on Monday were not just the opening statements, which included mandatory posturing, but also the adoption of the meeting's rules of procedure.  These rules are critical not only for the orderly conduct of the meeting but also for the adoption of decisions that become the official outcomes of this gathering of the COP (the governments that are parties to the treaty).

According to the Monday summary, the COP adopted the 1996 draft rules of procedure (FCCC/CP/1996/2), with the exception of draft rule 42.  (The draft rules can be found here: .)  The 1996 draft rules were first put forward for adoption by the COP at its second meeting in 1996.  In spite of UNFCCC Article 7.2(k), which requires that the COP "agree upon and adopt, by consensus, rules of procedure . . . for itself," and Article 7.3, which requires that the COP adopt these rules of procecure at its first session, that has never occurred in the 20 year history of the UNFCCC.  Thus, as far as I can tell, at each COP meeting since then, the parties have used the draft rules provisionally with the exception of draft rule 42.

What is draft rule 42?  In essence draft rule 42 sets out the key voting requirement for COP "decisions on matters of substance," i.e. anything that really matters.  Without draft rule 42, there is no explicit voting rule for the meeting.  However, that does not mean that there can be no binding votes.  Instead, the default rule in international law applies - decisions must be taken by consensus of all the parties.

Thus, if one ever wondered why it is so difficult to for the UNFCCC parties (and Kyoto Protocol parties, or for that matter many international environmental treaty organizations) to make controversial decisions, the inability to adopt a voting rule altering the consensus requirement should tell a lot.

Tuesday, November 27, 2012

More on EPA's General Counsel Retirement

Here's a story by Dawn Reeves from today's Inside EPA on Scott Fulton:

EPA's Top Lawyer Retires

Posted: November 27, 2012
EPA General Counsel Scott Fulton is retiring from the agency effective Jan. 3, leaving open another top slot for President Obama to fill in his second term.

Fulton, whose departure was announced by EPA Administrator Lisa Jackson in an email last week, oversaw the agency's lawyers during a period of mixed legal outcomes -- though some pending cases could still face additional review by the Supreme Court. He will become a visiting scholar at the Environmental Law Institute.

In addition to Fulton, other top slots that will have to be filled include leaders of the agency's water and toxics offices. Jackson has not said whether she will remain at the agency, though some sources say the White House may ask her to stay on to avoid a “hellish” Senate confirmation battle.
Jackson announced Fulton's departure with “mixed emotions,” citing his “leadership, impeccable judgment, respected integrity and considerable experience.” Principal Deputy General Counsel Brenda Mallory will serve as acting general counsel, according to Jackson's email, where she also praised deputy general counsels Avi Garbow and Bicky Corman as “invaluable” saying they “provide outstanding leadership in the coming months.”

For more, see the following link that Inside EPA kindly provided:

EPA General Counsel Scott Fulton Retiring

Scott Fulton, my former boss at EPA, is retiring from the Agency effective January 3.  Principal Deputy GC Brenda Mallory will be acting until a new successor is confirmed by the Senate.  This was not so unexpected, but means that the Agency is losing one of its most experienced and thoughtful senior leaders who has helped steer it in the right direction for the last few decades.  He has also been one of the Agency's most versatile leaders, with an amazing grasp of the Agency's operations, having served in a number of very different roles at EPA.

He started his career doing enforcement work at the Environment Division in the Justice Department in the early 80s, then moved to the Enforcement Office at EPA, where he eventually rose to the  Deputy Assistant Administrator position.  He then served as Principal Deputy General Counsel, was appointed a judge on EPA's Environmental Appeals Board, and then joined the Office of International Affairs as Deputy Assistant Administrator.  For a while, Scott also served as the Acting Assistant Administrator for the International Affairs Office.  At the beginning of President Obama's first term, EPA Administrator Jackson asked Scott to serve as Acting Deputy Administrator of the Agency, the number 2 role in the organization.  Eventually, he was nominated by the President and confirmed by the Senate as the Agency's General Counsel, the role that he is now stepping down from. 

When he leaves EPA, Scott will be joining the Environmental Law Institute as a visiting scholar and possibly become engaged in other matters. 

Incidentally, here's an interesting record that Scott holds:  He is already the longest-serving General Counsel in the history of EPA.  By the time he leaves, he will have served in his capacity for about 3 years and 5 months - longer even than Jonathan Cannon, who logged 3 years at General Counsel. 

Monday, November 26, 2012

Vermont Law School Downsizing

This is sad news (for me as a former faculty member of Vermont Law School), but not surprising.  Law school applications have been lower nation-wide over the past couple of years.  The expectation expressed by some, such as Dean Frank Wu of Hastings, is that this is  part of a permanent adjustment for law schools that reflects fundamental changes in the market for legal services. 

In response to these trends, VLS will be reducing staff, including potentially faculty, according to VLS President Marc Mihaly.  Good luck to VLS and all of my former colleagues there.