Law360: Climate Change Likely To Stay Back-Burner Issue For Obama

Jon Welner was quoted below in the Law360 article titled, “Climate Change Likely To Stay Back-Burner Issue For Obama,” commenting on what steps the Obama administration might take towards climate change legislation.

Climate Change Likely To Stay Back-Burner Issue For Obama

By Sean McLernon

This article was originally posted in Law360 on January 17, 2013

Law360, New York (January 17, 2013, 6:29 PM ET) — As his second term begins Sunday, President Barack Obama is facing significant pressure to dive headlong into climate change, but experts expect the administration to continue its slow and steady approach to emissions regulation and renewable energy while the national debt and gun control dominate the agenda.

Public interest groups, Senate lawmakers and several states have been calling for more stringent restrictions on greenhouse gases like methane, increased investment in solar and wind technologies, and other steps to stem the tide of climate change in the wake of Hurricane Sandy and record-high U.S. temperatures in 2012. But it won’t be enough to sway the president, environmental attorneys say, because he has made it clear that other issues hold more importance in the short term.

Obama, whose term will officially begin a day before the formal inauguration celebration on Monday, has focused his energy on gun legislation following last month’s mass shooting at the Sandy Hook Elementary School in Newtown, Conn., as well as the debt ceiling fight with House Republicans. Eleni Kouimelis, co-chair of Winston & Strawn LLP’s environmental practice, said the president will likely continue to spend his political capital in other areas.

“The president has — as he’s always had — other priorities,” Kouimelis said. “I think there will be more in terms of enforcing the rules already on the books rather than promulgating new rules.”

Environmental advocates are still working hard to capture Obama’s attention, however. The Sierra Club this week launched its “Obama Climate Legacy” campaign that includes 100 days of rallies around the country. The 2.1 million-member organization is calling for stricter emissions standards for refineries, greater protection for water resources near oil and gas drilling sites, and halting the controversial 1,700-mile Keystone XL pipeline project, which is slated to transport tar sands oil from from Alberta, Canada, to southern Texas.

Public officials are making their voices heard, too, as seven states in the Northeast last month announced plans to sue the U.S. Environmental Protection Agency for failing to address climate change by neglecting to enact a more stringent methane emissions standard for oil and gas operations, including hydraulic fracturing. In Congress, Sen. Barbara Boxer, D-Calif., has added a climate change counsel to the Senate Environment and Public Works Committee and announced a weekly “climate change clearinghouse” to support legislation on the issue.

Grassroots activity like the Sierra Club campaign could have an impact on Congress if it receives enough attention, but Kouimelis said it is unlikely to convince the president to move climate change higher on his to-do list. It will probably take some kind of major storm or other incident linked to climate change in order to spur significant action, according to Kouimelis

“The process is often reactive to some big event,” Kouimelis said. “Another report about how bad carbon is is not going to do that. These scholarly exercises are reported and some people read about them, but they are not drivers for immediate prioritization.”

Jeffer Mangels Butler & Mitchell LLP partner Jon Welner said the Obama administration should be recognized for what it has already accomplished in the realm of climate change, including dramatically increasing fuel efficiency for vehicles to 54.5 miles per gallon by 2025 and authorizing billions of dollars in tax credits, grants and loans for renewable energy projects.

But even as environmental groups and lawmakers on the left emboldened by the results of the presidential election are demanding more, Welner said he doesn’t expect the administration to take any dramatic steps in the coming months.

“I don’t see a sudden surge of activity with regards to climate change,” Welner said. “I think they are taking a long-term steady approach.”

Administrative action is still more likely than new legislation, which would have to wind its way through Congress, according to Welner. With EPA Administrator Lisa Jackson announcing her resignation last month, the extent of climate change action could depend on who takes her place. California air regulator Mary Nichols, who is considered a potential replacement, would likely push for stricter limits on greenhouse gases, Welner said.

“If someone like Mary Nichols is appointed, that would be a strong signal that the administration expects to eventually take significant action on climate change,” Welner said. “If it’s someone with less of an innovative or aggressive reputation, it would signal that climate change issues are less of a priority.”

Another option for Obama to alter climate change policy is issuing an executive order, which Michelman & Robinson LLP partner Dan Lavoie said environmental advocates have already called for. If the president can show that Hurricane Sandy and other anomalies from changing weather patterns have created an “exigent circumstance,” he can theoretically take action on his own to tackle climate change, according to Lavoie.

An executive order is unlikely, however, because the attention given to the issue in the days following Hurricane Sandy has dissipated, Lavoie said.

“The initial trauma of Sandy is over,” Lavoie said. “It’s not on the evening news every night now. The gun control issue has captivated the national consciousness, so to speak. Unless and until the next storm comes along, climate change may not be catapulted back into the forefront of the public debate like it should.”

Scott Hitch, environmental counsel for Burr & Forman LLP, said that even as climate issues have been put on the back burner by the administration for now, policy development at the EPA may be moving ahead. While there is little signal that the executive branch will immediately dial up its regulatory activity, the president’s silence on the issue may not tell the whole story, according to Hitch.

“Most of the work that I’ve observed from the administration has been behind the scenes,” Hitch said. “Even though there hasn’t been much use of the bully pulpit, there has been constant and consistent work at the EPA on Clean Air Act regulations. I think that’s going to continue.”

Hitch said one of the most significant regulatory actions on tap for the next few months is the finalization of Clean Air Act standards for carbon pollution from new power plants that would set up significant barriers to constructing coal-fired facilities. The standards require fossil-fuel-fired burners larger than 25 megawatts to achieve an emissions rate of 1,000 pounds of carbon dioxide per megawatt-hour.

That rule was proposed last March, however, and does not represent any change in the administration’s policy or bring anything new to the table. Regulation of methane emissions will also likely move along at the same pace as the last four years despite the lawsuit from the states, according to Kouimelis

“The regulation will just plod along,” Kouimelis said. “It will get decided at some point, but there is no driver in the short term.”