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When one talks of pipelines in recent days one hears nearly an incessant buzz about Keystone XL, as if that is where the real action is. But it isn't, notwithstanding the histrionics over President Obama's veto of S.1, the Keystone XL Pipeline Approval Act. The real action lies not with an 850,000 barrel per day oil pipeline, but instead with the natural gas pipelines that are needed to supply the natural gas electricity generating plants that will be required to replace, in part, 103 gigawatts of coal powered generation.
What are we talking about? Building Block 2 of EPA's Clean Power Plan posits the replacement of coal-fired generation with cleaner natural gas-fired plants. Natural gas plants are also part of the solution to compliance with the strict Mercury and Air Toxics Standards, which are also driving coal plants off the grid.
But to get and keep those natural gas plants on-line, the natural gas needs to get there and to do that it needs a means of transportation, which for natural gas, means pipelines.
How many miles of pipelines are needed? EPA concluded: "the power industry in aggregate can support higher gas consumption without the need for any major investments in pipeline infrastructure." But the Nation's reliability watchdog, the North American Reliability Corporation, politely disagrees. In its November 2014 review, Potential Reliability Impacts of EPA's Clean Power Plan, NERC noted EPA's position, but then commented:
"there are a few critical areas that likely will need additional capital investments. As an example, current and planned pipeline infrastructures in Arizona and Nevada are inadequate for handling increased natural gas demand due to the CPP. Pipeline capacity in New England is currently constrained, and more pipeline capacity additions will be needed as more baseload coal units retire."
And that was not the end of it. NERC concluded that more pipeline capacity was needed independent of Clean Power Plan retirements.
Further, as should be obvious, pipeline construction will not occur in an instant. NERC points out that "it takes three to five years to plan, permit, sign contract capacity, finance, and build additional pipeline capacity." In other words, planning and permitting of new pipelines is required now if the EPA's initial 2020 compliance date is to be met. But as we reported in a recent post, States aren't even drafting their implementation plans, much less making determinations about what plants to shut down and where pipelines need to be built.Which suggests that we should ask the miles-of-pipeline-needed question again. We have not seen that number but NERC reports that, based on EPA's own estimates for plant retirements due to the Clean Power Plan and other regulatory requirements (primarily the Mercury and Air Toxics Standard), "the power industry will need to replace a total of 103 GW of retired coal resources by 2020, largely anticipated to be natural-gas-fired NGCC and CTs.
We tried to compare 103 gigawatts to Keystone XL's 850,000 barrels of oil per day. We came up with a rather stunning number: the energy needed to replace the to-be-retired coal plants is almost 2000 times more than Keystone XL can deliver.*
Which leads us back to the beginning of this post: the real action in pipeline permitting is going to be in natural gas.
*A barrel of oil contains about 1700 kW-h of energy. So Keystone XL will deliver 850,000 bbl x 1700 kW-h or 1.445 x 10e9 W-h in one day. 103 GW of coal plants operating for 24 hours yields 2472 x 10e9 W-h.
Carbon Dioxide | Legislation | Regulation | Utilities
With the release of EPA's proposed regulation of CO2 from existing sources on June 2, there has been a lot of speculation that states will look to cap-and-trade schemes as a means of complying with EPA's mandate that the states reduce CO2 emissions by 30% of 2005 levels by 2030. The Regional Greenhouse Gas Initiative (RGGI) provides an existing market-based framework for states in the northeast, and maybe nationwide, to implement cap-and-trade on an interstate basis. RGGI is currently a voluntary, interstate greenhouse gas emissions trading platform among Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island and Vermont.
For New Jersey, which was in RGGI at one time but withdrew under the Christie administration, the new EPA regulations, assuming they become final in substantially the same form, give it the opportunity to re-think its decision to withdraw several years ago. So far, the New Jersey regulators have indicated that they are not willing to re-join RGGI, even as means of complying with the new EPA regulations. There are certainly other means for the state to achieve the emissions reductions called for by the EPA regulations such as limits with no trading, or mandates on use of non-CO2-emitting generation such as solar, wind and nuclear. However, the cap-and-trade structure provided by programs like RGGI offers sources the economic incentives for voluntary reductions even beyond what is called for by the EPA regulations. Time and pressure from the regulated community may change this position over the next several years – wait and see. Pennsylvania's situation is even more intriguing. There is a Pennsylvania gubernatorial election this November. Pennsylvanians will vote either to keep the incumbent Republican, Tom Corbett, or to replace him with Democratic candidate, Tom Wolf. At the Pennsylvania Environmental Council's Annual Philadelphia Dinner on Wednesday night, both candidates spoke to the mixed crowd of representatives of environmental groups, government and industry. Governor Corbett did not mention either RGGI or the proposed EPA CO2 emissions regulations, but he did signal his continuing support for natural gas production in the Commonwealth through fracking as a means to provide cleaner energy for Pennsylvania, and his belief that environmental stewardship is important but must be "balanced" with economic considerations. Mr. Wolf, on the other hand, unequivocally stated that, if elected Governor, he will "bring RGGI to Pennsylvania!" Several members of the crowd clapped enthusiastically, while everyone else remained quiet in anticipation of the dinner which had yet to be served. It will be interesting to see whether this limb that Mr. Wolf climbed (jumped) out on will sustain the weight of five more months of what is sure to be a heated campaign. There is a very good potential that this issue will become an important hot button in the election.
Carbon Emissions | Greenhouse Gases | Legislation | Regulation
Another six months have passed and it is time for our semi-annual look at climate change and its intersection with the law. Here are some highlights of the last six months:
1. The Administration's Focus. After months of silence in the 2012 presidential campaign, President Obama rejuvenated his administration's commitment to addressing climate change. We heard in his inaugural address: "We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations. Some may still deny the overwhelming judgment of science, but none can avoid the devastating impact of raging fires and crippling drought and more powerful storms." He carried this forward in his State of the Union address less than a month later: "I urge this Congress to get together, pursue a bipartisan, market-based solution to climate change, like the one John McCain and Joe Lieberman worked on together a few years ago. But if Congress won't act soon to protect future generations, I will. (Applause.) I will direct my Cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy." And in a speech this past Tuesday the promises took another step toward reality when the President outlined his "climate action plan."
Recognizing the logjam in Congress, the Administration's plan is based on authority the executive branch already has. The salient points include: 1) further restrictions on powerplant greenhouse gas emissions (notably addressing coal); 2) promotion of resilience and adaptation with respect to weather-related calamities; 3) additional permitting of renewable energy facilities on public lands; and 4) engagement in the international arena on climate change such as working out a global free trade agreement on clean energy technologies. The goal is a reduction of U.S. greenhouse gas emissions by 17%. The Wall Street Journal called these "sweeping climate policies." We will see; with no new authority, Gina McCarthy's nomination to head EPA held up, and the bounty of natural gas unleashed by fracking, greenhouse gas reduction may be achieved by the market, see Leveraging Natural Gas to Reduce Greenhouse Gas Emissions, not governmental efforts.
2. 400 PPM. On May 9, Mauna Loa Observatory of NOAA's Earth System Research Laboratory reported that the average weekly value of atmospheric carbon dioxide at the observatory had reached 400 ppm, a level unsurpassed in 3 million years. The world collectively ignored the number, treating it more like an insignificant decimal, 0.0004, which it was (a decimal, not insignificant). We don't think anyone will dispute that there are three ways to interpret this number: it's bad, it's good, it's neither. Climate scientists are unanimous that it's bad. There is nothing saying it's good. Which means the justification for not taking action on climate change is that the ever increasing levels, and the ever increasing rate of accumulation, of carbon dioxide in the atmosphere (see the graphs by the observatory), are of no consequence. US Airways will probably side with the climate scientists - it canceled 18 flights as a result of the record-breaking temperatures in the southwest this past weekend.
As a footnote, we note that Mauna Loa's number is an average, and is subject to refinement. As it turned out, the 400 ppm number was refined a few weeks later to 399.89.
3. Free Trade. In 2009 Ontario enacted its Green Energy Act to promote renewable energy in the province. One approach is the adoption of a feed-in tariff (mandatory above-market rates for electricity derived from renewable resources). This had successfully been pioneered in Germany. Ontario legislators also saw the opportunity to spur job growth by giving subsidies to businesses that sourced their wind turbines and solar panels in Ontario (i.e., "domestic content").
Japan jumped on this protectionism immediately and sought consultations with Canada under the General Agreement on Tariffs and Trade and the World Trade Organization. The consultations were ineffective and Japan requested a panel to hear the dispute concerning Ontario's "domestic content requirements," with which renewable energy generators were required to comply "in the design and construction of electricity generation facilities in order to qualify for guaranteed prices" under the feed-in tariff program.
Last December the panel ruled in favor of Japan on the domestic content requirements. Canada appealed and this May the appellate panel affirmed. Ontario's energy minister has confirmed that Ontario will abide by the WTO decision and revise its Green Energy Act. We conclude that free trade remains colorblind.
4. Climate Change Liability Lawsuits. For seven years now, the first wave of climate change liability lawsuits have roiled the legal waters. It bears remembering that in October 2009, the plaintiffs in these cases rode the crest of the wave. The Second Circuit had reversed the trial court's dismissal in Connecticut v. American Electric Power (AEP), and the Fifth Circuit likewise overturned the Southern District of Mississippi's dismissal of Comer v. Murphy Oil USA. Plaintiffs had standing; the political question doctrine did not apply.
Things have gone badly for the plaintiffs since. All readers of this blog know of the Supreme Court's decision in AEP, stifling the plaintiffs' case under the doctrine of displacement. This year two more decisions confirmed the Judicial Branch's hostility to these claims. Comer made it back to the Fifth Circuit, where dismissal was summarily affirmed on the doctrine of res judicata. And the last of the original quadriga, Native Village of Kivalina v. ExxonMobil Corp., found its petition for certiorari denied in April, thus leaving the Ninth Circuit's affirmance of dismissal unchanged.
The only reed left for the plaintiffs is the granting of a petition for certiorari in Comer, a prospect we deem unlikely, if only because the appeal would be based on a purely procedural question of little likelihood of being repeated and of little relevance to the larger climate change issues.
5. Ursus Maritimus. On March 1 the D.C. Circuit in In re Polar Bear Endangered Species Act Litigation affirmed the district court's dismissal of challenges to the Fish and Wildlife Service's designation of the polar bear as threatened under the Endangered Species Act because "due to the effects of global climate change, the polar bear is likely to become an endangered species and face the threat of extinction within the foreseeable future." The polar bear's friends (environmental groups) sought to have the bear listed as "endangered." Ursus maritimus's less-than-friends (the State of Alaska and hunting groups), urged that no listing was appropriate. The standard in such reviews is relatively simple: "Our principal responsibility here is to determine, in light of the record considered by the agency, whether the Listing Rule is a product of reasoned decisionmaking." The Court found that it was, holding specifically the the Listing Rule rests on a three-part thesis: the polar bear is dependent upon sea ice for its survival; sea ice is declining; and climatic changes have and will continue to dramatically reduce the extent and quality of Arctic sea ice to a degree sufficiently grave to jeopardize polar bear populations. See Listing Rule, 73 Fed. Reg. at 28,212. No part of this thesis is disputed and we find that FWS's conclusion – that the polar bear is threatened within the meaning of the ESA – is reasonable and adequately supported by the record."
As arctic resource development progresses as the ice retreats, the polar bear's Endangered Species Act listing is sure to take on larger significance, both as a model for the preservation of other arctic species, and as a tool to block development.
6. Compressed Natural Gas (CNG). On June 13 the Fifth Circuit affirmed the district court's decision in Association of Taxicab Operators USA v. City of Dallas. In the case the local taxicab organization challenged a city ordinance that allowed CNG-fueled taxicabs "head-of-the-line" privileges at Love Field in downtown Dallas. Plaintiff's theory was that section 209(a) of the Clean Air Act, which prohibits states and their political subdivisions from adopting emission standards for motor vehicles, preempted the ordinance either directly or by implication. The Fifth Circuit did not agree. Traditional police powers of the state were preserved to the state by section 209(d) of the Clean Air Act. More importantly, an ordinance granting head-of-the-line privileges, on its face did not set an emission standard, as required by the statute. As to any implied preemption, the ordinance may have influenced taxicab operators to alter their behavior, but it did not compel them to do so. Less than 7% of Dallas's taxicabs served Love Field and the only place CNG cabs had head-of-the-line privileges was at Love Field; there were plenty of other places for gasoline powered cabs to pick up fares. Accordingly implied preemption did not apply either.
One of our themes in a world beset by climate change is that there will be winners and there will be losers. Little did taxicab operators know they would be both.
Carbon Dioxide | Carbon Emissions | Climate Change | Greenhouse Gases | Legislation | Regulation | Utilities | Year in Review
One of the shibboleths of those following climate change litigation is the idea that new legal theories will be surfaced, fired in the furnace of litigation and then forged as the vehicle for addressing climate change in the courts. The public trust doctrine is being hammered out in that direction.
Last month in Butler v. Brewer an appellate panel in Arizona considered a claim based on the theory that the atmosphere is subject to the public trust doctrine and that, therefore, the State of Arizona was obligated to take steps to address greehnouse gases and combat climate change. Although the court affirmed the trial court's dismissal of the suit, before reaching that conclusion it specifically rejected Arizona's argument that greenhouse gas issues are non-justiciable under the doctrine.
Butler is one of a slew of cases and regulatory petitions against the federal and state governments orchestrated by Our Children's Trust, a public interest organization based in Oregon. We have commented on OCT previously. Its success has not been overwhelming, or even any. Not one court has concluded that a state or the federal government can be compelled to do anything. Yet, if the measure of success is whether one's theory is more well-formed than previously, and whether one can cite more legal precedent supporting it, then OCT is moving its ball forward. By our count, OCT has positive rulings on its atmospheric trust theory from Texas, New Mexico and now Arizona.
In Butler, the appellant raised only one issue: "[w]hether the [public trust doctrine] in Arizona includes the atmosphere." The State of Arizona engaged that argument head on: "the Doctrine does not include the atmosphere." Arizona also raised defenses of displacement, standing, and political question, among others.
The court considered prior Arizona and federal precedent to set forth the scope of the doctrine:
First, that the substance of the Doctrine, including what resources are protected by it, is from the inherent nature of Arizona's status as a sovereign state. Second, that based on separation of powers, the legislature can enact laws which might affect the resources protected by the Doctrine, but is it up the to judiciary to determine whether those laws violate the Doctrine and if there is any remedy. Third, that the constitutional dimension of the Doctrine is based on separation of powers and specific constitutional provisions which would preclude the State from violating the Doctrine, such as the gift clause.
From those principles the court had no difficulty responding to Arizona's argument that the doctrine did not apply to the atmosphere: "we reject the Defendants' argument that the determinations of what resources are included in the Doctrine and whether the State has violated the Doctrine are non-justiciable." Further, "While public trust jurisprudence in Arizona has developed in the context of the state's interest in land under its waters, we reject Defendants' argument that such jurisprudence limits the Doctrine to water-related issues." (Note, however, Presiding Judge Gemmill concurred separately and stated: "the atmosphere is not subject to the public trust doctrine.")
Thus, "For purposes of our analysis, we assume without deciding that the atmosphere is a part of the public trust subject to the Doctrine." Unfortunately for the appellant, this was as far as the court was willing to go. Appellant did not point to any violation of the Arizona Constitution or statutory law. Such a violation was mandatory for the claim to succeed.
Additionally, in 2010 Arizona's legislature took strong steps to ensure that the regulation of greenhouse gases remained in its bailiwick, rather than any administrative agency's. A.R.S. 49-191 provides:
A. Notwithstanding any other law, a state agency established under this title or title 41 shall not adopt or enforce a state or regional program to regulate the emission of greenhouse gas for the purposes of addressing changes in atmospheric temperature without express legislative authorization.
Absent a ruling that A.R.S. 49-191 was unconstitutional, there was no order the court could issue that would be able to implement the relief appellant sought. Accordingly, appellant had no standing.
Rome wasn't built in a day. The atmospheric public trust doctrine hasn't been either. But construction continues.
Carbon Dioxide | Climate Change Litigation | Greenhouse Gases | Legislation
You've just weathered a post-tropical cyclone. Your garage is flattened. Do you have a hurricane deductible? Or will your regular deductible apply? The answer can be worth thousands of dollars as a hurricane deductible is not a fixed amount but is calculated based on a percentage of your home's insured value. These questions loom large as the process of recovery from what-was-at-one-time-known-as Hurricane-Sandy gathers steam and homeowners get the lights back on. The news services and trade press have been all over this topic in the last few days with the governors of New York, New Jersey, Pennsylvania and Connecticut (as well as their Departments of Insurance) weighing in and advising that hurricane deductibles cannot be applied because the storm that started in the south as a hurricane, was no longer a hurricane when it arrived in their respective states.
Would that it were so easy. All you need to determine the meaning of your policy is the ipse dixit of the governor. Not quite.
What actually was going on was this: the governor was getting advice from his department of insurance, which in turn had reviewed the weather reports and the hurricane deductible form or regulation that had been approved months or years ago. New Jersey for example issued an executive order, which referenced the applicable regulation. N.J.A.C. 11:2-42.7 provides:
"This deductible applies, as described below, in the event of direct physical loss to property covered under this policy, caused directly or indirectly in the event of a hurricane named by the National Weather Service or its successor from which sustained hurricane force winds of 74 miles per hour or greater have been measured in New Jersey by the National Weather Service (regardless of whether the sustained hurricane-force winds reach the risk insured under the policy) and shall replace any other applicable deductible in that event."
New York hasn't codified its hurricane deductible rule and the policy language very much matters. In the case of one insurer in New York, for example, for a hurricane deductible to apply, a number of things are necessary. One needs
A windstorm of tropical origin; Winds of 74 miles per hour or greater;Those winds must by confirmed by the National Weather Service at a landfall in specified counties.
Because Sandy could not muster 74 mile per hour winds as it entered New York, the hurricane deductible could not be applied. But suppose the winds had reached 74 mph, what then? It gets complex fast.
First, according to NASA Sandy packed tropical storm force winds across almost 1000 miles. The hurricane deductible under this insurer's policy applies to any insured property "regardless of [its] specific location." So, all that is needed is a trace of a hurricane in Montauk at the tip of Long Island and the good citizens of Albany could be facing hurricane deductibles for whatever windstorm loss occurs as the tropical storm ultimately demises, regardless of how violent the winds were (or weren't).
Second, the deductible applies 12 hours before the hurricane gets there and "ends 12 hours after a hurricane …" – whatever that means.
Third, maybe you don't care about the hurricane deductible because your policy is only triggered by a Category 2 storm or requires that the hurricane force winds be within your county.
Fourth, or maybe you are at the opposite end of the spectrum and your policy applies the deductible if hurricane force winds are in any county in New York, not just coastal counties, or worse, if hurricane force winds are in a contiguous state.
The point is that the terms of your policy matter and they may vary widely. The Department of Financial Services in New York put together a table outlining all the permutations of coverage. We assume that one is likely to have to pay for the differences where more risk is shifted to the insurer.
And these wide differences can get even wider as one changes states. Maryland, for example, requires by statute that the hurricane deductible may only apply "beginning at the time the National Hurricane Center of the National Weather Service issues a hurricane warning for any part of the State where the insured's home is located and ending 24 hours following the termination of the last hurricane warning issued for any part of the State in which the insured's home is located." Md. Insurance Code § 19-209(b). In plainer English, the hurricane warning has to be for the county where your home is, not just any place in Maryland. (With regard to Sandy, the Maryland Insurance Administration echoed what the governors were doing. Bulletin 12-24 advised that hurricane deductibles would not apply because "The National Hurricane Center of the National Weather Service did not issue a hurricane warning for the State of Maryland.")
Florida, as might be expected, has its own rules. A hurricane deductible can only apply per calendar year, and can be a fixed amount, or 2%, 5% or 10% of the home's value. The hurricane period is extended out to 72 hours after the last hurricane warning.
Hurricane deductibles are ubiquitous but they are not all the same. Even where the language is mandated by state law, insurers can always provide more coverage than is required. You should check that, but also check the premium.
Florida's hurricane deductible popped up after Hurricane Andrew in 1992. Its calendar year requirement was enacted after Charley, Frances, Ivan and Jeanne wreaked their havoc in 2005. Connecticut revised its hurricane deductible law following Hurricane Irene. The meteorologists tells us Sandy was a unique megastorm: a tropical storm, combined with a winter storm, combined with frigid Canadian air, combined with a high tide. Unique or no, we expect revisions to state hurricane deductible laws as a result.
Insurance | Legislation | Regulation | Weather
We have been rather tough on Florida and its insurer of last resort, Citizens Property Insurance Corporation, over the years (not that they pay any attention to climatelawyers.com). But Citizens has deserved it. Here is what its president, Barry Gilway, has had to say about the current state of affairs:
Citizens is close to being able to cover a major hurricane, the kind that strikes once every 100 years. ... Citizens has the ability to pay $19.5 billion in claims – close to the roughly $22 billion maximum expected damage from a 100-year storm. But more than $5 billion, or about a fourth of the claims-paying funds, are from loans that would have to be paid back.
Close to being able to cover? Close to the maximum expected damage? Loss payments to be covered by loans? Not the most fiscally conservative program on the planet and certainly not one that would be approved by any insurance regulator that wanted to keep her job.
Tough love coming from somewhere though is having an effect. This year continues big fiscal change at Citizens, demonstrated again just this past Thursday, when the Florida Office of Insurance Regulation (OIR) 1) announced a significant depopulation (i.e., transfer of policies) at Citizens, and 2) tentatively approved a proposal for low-interest loans to private insurers. This follows steps by Citizens to pursue a vigorous reinsurance program, cede the largest catastrophe bond ever placed, and restrict its obligations by dropping coverage for carports and screened enclosures, limiting personal liability coverage and raising deductibles. Citizens has also taken a lot of heat for conducting reinspections of homes claiming wind-storm mitigation features qualifying for premium discounts. When the features don't satisfy the inspectors' standards, the discounts are removed, an approximately one billion dollar boost to the bottom line.
Depopulation is the Florida Legislature's term. Under that authority, 150,000 policies were just approved for removal from Citizens, roughly ten percent of the 1.4 million policies provided by Citizens. But depopulation is not mandatory. Instead, the Florida Legislature settled on incentives to convince private insurers to step in. A private insurer can get up to $100 from Citizens' for each risk the insurer takes on. F.S.A. 627.3511(2). Perhaps more importantly, the insurer can be excluded from assessments for the next three years. F.S.A. 627.3511(3). Mandatory ssessments, for those who don't recall, are the secret sauces relied upon in Florida to balance the books in the event Citizens' resources are not sufficient to pay claims. One has to imagine that the reduced coverages and rising rates for Citizens' policies may be of moment in a policyholder's decision to shift insurers. And it is the policyholder's decision; he or she does not have to agree to leave Citizens.
As for the low-interest loans, this alternative route to depopulation is being pushed by insurers and their investors. They seek "surplus notes" (last-to-get-paid instruments) from Citizens and guarantees of premium. In exchange, the companies would commit to:
• Renew the assumed policies for at least 10 years after the expiration of the current policy term.• Limit rate increases, for renewal offers from January 1, 2013, through January 1, 2016, to no more than 10 % per policy per year (consistent with Citizens' current 10% glidepath).• Provide substantially the same coverage for the first three years as that provided by Citizens.
All of these may be steps in the right direction but caution is still the word. First, Citizens is subject to a rate increase cap of 10%. Media advisories issued by the OIR indicate that Florida insurers seeking rate increases in 2012 were looking for increases in excess of 17% (Universal – 22%, Cypress – 17.7%, Sunshine State – 17.8%). Even if someone agrees to depopulate himself because rates are better at the new insurer, there is no guarantee they will remain better. One researcher has written: "Over the past five years, indeed, nearly all "depopulated" policies have ended up back in Citizens and as liabilities for Florida's taxpayers." Second, Florida's insurance market is substantially a world unto itself. A presentation to the Cabinet by the OIR shows this clearly (at 3). Citizens has 24% of the coverage, other Florida domestic carriers 60% and non-domestic carriers have 16%. That lack of diversity should give one pause. Over 80% of the coverage is written by Florida companies.
Tough love is effecting change in Florida. It remains to be seen whether it will be enough.
After a string of defeats at the regulatory agencies and state and federal courts, Our Children's Trust finally notched two victories last month in its quest to use the public trust doctrine to implement carbon dioxide emission regulations. Our Children's Trust, an environmental organization based in Oregon, began its campaign in May 2011 when it oversaw the filing of nearly two score regulatory petitions and a dozen lawsuits seeking to force individual states to take action to restrict carbon dioxide emissions. OCT's trademark feature is to include as plaintiffs "youth activists". Up to the beginning of July it had not had any success. But then, maybe, the tide began to turn.
First, on July 9 Texas District Court Judge Gisela Triana partially overrode the Texas Commission on Environmental Quality's decision rejecting a petition for rulemaking on the public trust doctrine. Petitioners appealed the decision in Bonser-Lain v. TCEQ. Petitioners had sought, relying on the public trust doctrine, to force the TCEQ to act to preserve the atmosphere by regulating carbon dioxide. The TCEQ had concluded that in Texas the public trust doctrine applies solely to water. Furthermore, according to the Commission, it was precluded from acting by the federal Clean Air Act, which preempted more restrictive state action.
Judge Triana made short shrift of both arguments. Relying on Article XVI of the Texas Constitution she ruled: "The Court will find that the Commission's conclusion, that the public trust doctrine is exclusively limited to the conservation of water, is legally invalid. The doctrine includes all natural resources of the State." As to the preemption idea, the federal Clean Air Act "is a floor, not a ceiling, for the protection of air quality, and therefore the Commission's ruling on this point is not supported by law." The court did find, however, that because of other pending litigation, the TCEQ did properly exercise its discretion in refusing to entertain the petition.
Second, on July 14, New Mexico District Court Judge Sarah Singleton refused to dismiss a case asserting the State of New Mexico had an obligation to protect the atmosphere under the public trust doctrine. The 18-line decision would hardly merit discussion except that this was the first decision allowing one of these cases to move forward. Like the petitioners in Texas, the plaintiffs in New Mexico sought to establish the public trust doctrine as a vehicle to control carbon dioxide emissions. In a nutshell, Judge Singleton ruled that the suit, Sanders-Reed v. Martinez, could go forward insofar as it alleged that the State of New Mexico was not in compliance with laws passed by the New Mexico Legislature. Specifically, the "Motion [to Dimiss] is DENIED to the extent that Plaintiffs have made a substantive allegation that, notwithstanding statutes enacted by the New Mexico Legislature which enable the state to set state air quality standards, the process has gone astray and the state is ignoring the atmosphere with respect to greenhouse gas emissions." The motion was successful, however, where the court dismissed claims "based on the New Mexico Legislature's failure to act with respect to the atmosphere."
These cases may or may not be important in the climate change arena. To be sure, they upset an unbroken stream of victories for state regulators over OCT plaintiffs and will undoubtedly serve as a rallying point for the remaining cases as well as to-be-filed cases. But the comments in Bonser-Lain are only dicta and that Sanders-Reed survived a motion to dismiss says nothing about the merits. But the mass-filing strategy by Our Children's Trust bears watching because it is not unique and may surface elsewhere. Indeed it has.
A big filing day is mandatory to maximize press coverage. As were the atmospheric trust cases, the law school placement cases were nearly all filed on the same day. Both litigation teams have sought public exposure throughout the course of the litigation.
A defendant's typical response in both sets of cases is a motion to dismiss. Some throw in everything and the kitchen sink, others are more thoughtful. There is a danger to the kitchen sink approach; the court may issue a ruling giving the plaintiffs a set of victories as happened with Thomas Cooley Law School in Michigan (see attached) (even though Cooley ultimately prevailed at the trial court).
But this is where the mass filing paradigm falls down. Both sets of litigation are based on state law. In the law school placement cases, two California cases have survived demurrers because California consumer protection law includes educational services (see attached), and two have been dismissed because, among other things, Michigan consumer protection law does not reach professional schools and New York law finds law students to be sophisticated consumers. In the atmospheric public trust cases, notwithstanding case after case rejecting the claims, courts in New Mexico and Texas find under their states' laws that the theory is well-founded.
The lesson one should take from this is that, like politics, all law is local. Well-timed press releases and news conferences touting the ineluctable triumph of the plaintiffs, at the end of the day count for very little. Rather, what matters is the particular law of the particular jurisdiction on the particular facts of the case. Both plaintiffs and defendants should take note.
20120726 Filing in Florida Coastal of USF and Golden Gate decisions.pdf (366.85 kb)
20120607 Initial Thomas Cooley Law School Order re Motion to Dismissf.pdf (67.07 kb)
Carbon Dioxide | Climate Change Litigation | Legislation | Regulation
President Obama signed the Moving Ahead for Progress in the 21st Century Act, aka "MAP-21", this past Friday. Support was broad: the House voted 373-52; in the Senate it was 74-19 in favor. The bill is a potpourri. The bulk of the enactment addresses surface transportation topics, but it also includes measures to keep down student loan interest rates, overflights of the Grand Canyon, sport fish restoration, and extensive reform of the National Flood Insurance Program (including significant climate change provisions). Interestingly, the White House eschews both statutorily-provided titles and chooses a simpler nomenclature, the Transportation and Student Loan Bill. According to the White House, the Bill "accomplishes two important goals -- keeping thousands of construction workers on the job rebuilding America's infrastructure and preventing interest rates on federal student loans from doubling."
These features are important, but we think the bill's significance will come from the unheralded feature: reform of the National Flood Insurance Program (NFIP). Reform is sorely needed. As stated on the FEMA "Rethinking the NFIP" website, "The NFIP was designed as a means of discouraging unwise occupancy of flood prone areas, yet occupancy of these areas has expanded since 1968. Additionally, as risks continue to increase, the cost of flood insurance mirrors that increase, making it unaffordable for many Americans." Criticism of the NFIP was nearly universal following Hurricane Katrina. The program was underfunded - premiums came nowhere near the amount needed to cover claims (the NFIP is over $15 billion in debt). Floods were repeatedly damaging the same properties, which had been rebuilt sometimes three or four times in the same location. Fewer than half the properties at risk were covered; in some areas uninsured properties were the substantial majority. The Washington Post in a 2005 editorial called for compulsory insurance and the end of subsidized rates. A Wall Street Journal article reached similar conclusions. Notwithstanding, reform could not be obtained. The NFIP limped along living (and, on occasion, even dying) on borrowed time. Since 2008, it has been extended no fewer than 15 times. Four times the program lapsed as lawmakers could not come to terms.
Somehow, however, with the most recent extension due to expire on July 31, reformers prevailed and the act was revised and extended for another five years to September 30, 2017. The reform act, known as the Biggert-Waters Flood Insurance Reform Act of 2012 (sec. 100201)), can be found at Title II of Division F (Miscellaneous) of MAP-21.
The reforms are extensive (and they will leave many wondering how any of these reforms were opposed in the first place). Among other things, the bill provides:
In light of the politicization of the climate change topic, perhaps the most astounding of all the changes in the NFIP is the acknowledgement in the bill that climate change is a critical consideration in establishing a program that works. (We and others have called for this for some time, see Underwater? What Climate Change Means for a Loan Portfolio Near the Flood Plain). The Technical Mapping Advisory Council must report to the FEMA Administrator within one year of enactment on the following:
100215(d) Future Conditions Risk Assessment and Modeling Report-
(1) IN GENERAL- The Council shall consult with scientists and technical experts, other Federal agencies, States, and local communities to--
(A) develop recommendations on how to--
(i) ensure that flood insurance rate maps incorporate the best available climate science to assess flood risks; and
(ii) ensure that the Federal Emergency Management Agency uses the best available methodology to consider the impact of--
(I) the rise in the sea level; and
(II) future development on flood risk; ...
And this report cannot just sit on the shelf. The Administrator is obligated to, "as part of the ongoing program to review and update National Flood Insurance Program rate maps ..., shall incorporate any future risk assessment submitted [in the required report] in any such revision or update." (sec. 100215(d)(2)).
We note that the statute speaks definitively about sea level rise. It is not something indefinite; rather, the report must consider the impact of the rise in the sea level. We also note that "best available climate science" is standard phrasing at NOAA, and the National Park Service, as well as among NGOs. How it will fare in the ultimate report is, of course, unknown. But we do not expect the effects of climate change will be shouted down, turned away or buried. At the end of the day, the conclusions in the report will influence how money is to be spent and who will profit. The best way to figure that out is to use the best information. Certainly some will have an interest in obscuring the best available science, but the bipartisan support of the bill suggests that many more may have an interest in just getting the best answer.
Climate Change | Climate Change Effects | Flood Insurance | Legislation | Regulation | Rising Sea Levels
Arbitrary and capricious. Familiar words to anyone involved in regulatory activity. But also applicable to calendars, which willy-nilly cut off a series of events and ascribe them to one solar cycle, as if the sun gave two hoots. As we perused the various "Climate Change: Year in Review" reviews that crossed our desk last January, we concluded 365 days are arbitrary and one year capricious in assessing what is important to resurrect and re-discuss. We further concluded that a 12-month look-back is too long. So, for what it is worth, here is one of six months.
1. Cap-and-Trade in the U.S. - On January 1 the Western Climate Initiative (WCI) (or what remains of it) initiated its long-anticipated cap-and-trade program for greenhouse gas emissions. Notwithstanding the lack of support from other WCI members, California and Quebec are moving forward with a cap-and-trade program. California's and Quebec's mandated reporting rules applied to stationary sources emitting at or above 25,000 metric tons of CO2e per year. On May 9 coordination between the two programs was announced initiating the 45-day public comment period. The first auction will be held in November and then, on January 1, 2013, enforcement begins when covered entities must participate. It is obviously too soon to tell how successful the California program will be, but when the world's eighth largest economy takes an initiative, it is likely to have impact elsewhere, particularly when it is the only program in the nation.
2. Greenhouse Gas Liabilities and Insurance Coverage - We didn't think there would be anything to say this year about coverage for GHG liabilities. After all, in the only case in litigation the Virginia Supreme Court issued its opinion in AES Corp. v. Steadfast Insurance Co. in September 2011 and concluded that there was no "occurrence" triggering coverage made in the allegations pleaded by the Native Village of Kivalina against AES Corporation. But then the Court granted a motion for reconsideration in January and many puzzled as to what was going on. Apparently nothing as the Court reiterated its previous conclusions in an April 20, 2012 opinion. The decision will be significant in Virginia because it may have upset coverage in more conventional cases, as the concurring opinion of Justice Mims suggests. As for the rest of the nation, it is one decision, on one issue, on one set of facts. The case is important because it is the first, but we will be surprised if it provides guidance anywhere else. As for greenhouse gas liability that is a story unto itself. Like something out of a Steven King novel, the Comer v. Murphy Oil case refuses to pass quietly into the night. This is the case that was dismissed by the Southern District of Mississippi, reversed by the 5th Circuit, vacated by the 5th Circuit en banc when it accepted rehearing and then reinstated as dismissed when the 5th Circuit's quorum dissolved. Following a denial of a request for a writ of mandamus from the U.S. Supreme Court, the Comer plaintiffs re-filed their complaint against over 100 electric utilities, oil companies, chemical companies and coal companies alleging their GHG emissions were responsible for the ferocity of Hurricane Katrina. And the Southern District of Mississippi dismissed the plaintiffs again on March 20. And plaintiffs appealed again. We don't expect the case to be finally at rest until the Supreme Court denies certiorari, or accepts it (perhaps in order to address the Ninth Circuit's much-anticipated decision in Native Village of Kivalina v. ExxonMobil, which has been pending for over six months since oral argument).
3. Natural Gas: The Bridge Fuel - With the combining of two technologies, hydraulic fracturing and horizontal drilling, a resource of unprecedented volume is "changing the game" of energy. "Annual shale gas production in the US increased almost fivefold, from 1.0 to 4.8 trillion cubic feet between 2006 and 2010. The percentage of contribution to the total natural gas supply grew to 23% in 2010; it is expected to increase to 46% by 2035." Thus reported the Energy Institute at the University of Texas in February in a 400+ page tome entitled Fact-Based Regulation for Environmental Protection in Shale Gas Development. Momentously, the UT researchers report "there is at present little or no evidence of groundwater contamination from hydraulic fracturing of shales at normal depths." The reference to "normal depths" acknowledged that in December 2011 the EPA linked contamination in Pavilion, Wyoming to shallow fracking operations. In March 2012, however, EPA agreed to conduct further testing. And then in May, a personal injury tort case, Strudley v. Antero Resources Corp. et al., No. 2011-CV-2218 (2d Jud. Dist. Ct. Col. May 9, 2012), brought against fracking operators in Colorado was thrown out because plaintiffs could not muster adequate proofs of specific causation. Despite some intense opposition, fracking is moving forward. What does all of this have to do with climate change? Natural gas when burned emits half the carbon dioxide of coal. Accordingly, some argue that natural gas is the bridge to a low-carbon future. If so, then fracking builds that bridge.
4. Innovative Climate Change Legal Theories - Last spring the sound and the fury were intense as the environmental organization Our Children's Trust unleashed several dozen regulatory petitions and a dozen lawsuits across the nation. The goal: establish the public trust doctrine as applicable to the atmosphere and use it to implement greenhouse gas regulation. It appears that all of that is signifying nothing. Over two dozen petitions were denied in 2011 and two lawsuits were dismissed (Montana and Colorado). It did not get any better in 2012. The first six months of this year delivered only bad news to OCT. State courts dismissed lawsuits in Alaska, Arizona, Minnesota, Oregon, and Washington. The federal court in the District of Columbia did the same. Plaintiffs took a voluntary dismissal in California. To be sure, OCT has filed appeals (the one in Minnesota is scheduled to be argued on July 18). Having failed to convince a single court so far, we think we are safe in predicting an uphill battle.
5. Power Plant Performance Standards - On April 13, 2012, a scant seven months before the presidential election, the EPA published in the Federal Register standards of performance for all new fossil fuel-fired electricity-generating units requiring them to meet an electricity-output-based emission rate of 1,000 lb of carbon dioxide for every megawatt-hour of electricity generated. The only plants that can meet this standard without implementing costly carbon capture and storage technology are natural gas plants. Thus, the administration took a strong stand against coal-based generation. Or it is all smoke and mirrors. As EPA notes in the proposed rule, because of the glut of natural gas made available by fracking, there is little likelihood of a new coal-powered plant before 2030. Notwithstanding, industry groups have filed a half-dozen lawsuits seeking to derail the rule.
6. EPA's Greenhouse Gas Regulatory Program - Less than a week ago USEPA and its GHG program got a firm "thumbs up" from the D.C. Circuit. Inundated with over two dozen appeals of various USEPA GHG regulations, the Endangerment Finding, the Tailpipe Rule, the Tailoring Rule and the Timing Rule (for citations see The DC Circuit Locks in USEPAs GHG Regulations Sort Of). The court turned away every challenge, sometimes on the merits and sometimes on procedural grounds such as standing. There is much that deserves comment not the least of which are the differences between the states with California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, and Washington, lining up on one side, and Alabama, Florida, Indiana, Kansas, Kentucky, Louisiana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Virginia lining up on the other. To focus more on legal matters, several challenges were turned away on standing. For example, neither states nor industry groups could challenge the Tailoring Rule as they did not allege the requisite injury. Because the Tailoring Rule benefits small businesses (who are not required to comply with certain GHG emission requirements), it would appear that the door may remain open for parties who allege competitive injury (i.e., non-regulated entities gain a competitive advantage). In the meantime, do not expect Congress this election year to touch the issue.
Carbon Dioxide | Climate Change | Climate Change Litigation | Greenhouse Gases | Insurance | Legislation | Regulation | Year in Review
It took a little over five years but USEPA's greenhouse gas regulation program is now firmly established - for the moment anyway. The D.C. Circuit today rejected every challenge by numerous petitioners and intervenors to the whole raft of USEPA rules that followed from the critical Supreme Court decision, Massachusetts v. EPA, in 2007. In Coalition for Responsible Regulation, Inc. v. Environmental Protection Agency (attached), the D.C. Circuit considered arguments against the validity of
The Endangerment Rule, Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(s) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009),
The Tailpipe Rule, Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards, 75 Fed. Reg. 25,324 (May 7, 2010)
The Tailoring Rule, Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31, 514 (June 3, 2010), and
The Timing Rule, Reconsideration of Interpretation of Regulations That Determine Pollutants Covered by Clean Air Act Permitting Programs, 75 Fed. Reg. 17,004 (Apr. 2, 2010),
as well as a general challenge to the USEPA's implementation of the Clean Air Act. Each argument was rejected. The Endangerment and Tailpipe Rules are not arbitrary and capricious, no petitioner (whether from industry or a state) had standing to attack the Timing and Tailoring Rules, and the USEPA's interpretation of the relevant Clean Air Act provisions "is unambiguously correct."
The blogosphere is overwhelmed with commentary and analysis. Rather than repeat what others have already said, we want to focus on just one small segment (pages 45-50) of the 82 page opinion: standing for the National Association of Home Builders (NAHB) and the National Oilseed Processors Association (NOPA). The court singled out the NAHB and the NOPA because they were the only industry petitioners that had standing to challenge the "result of the Tailpipe Rule, which had the effect of expanding the [Prevention of Significant Deterioration] PSD program to never-regulated sources."
A little background is in order. Massachusetts v. EPA established that greenhouse gases could be regulated as air pollutants (within the meaning of the Clean Air Act) by USEPA. The Endangerment Finding concluded that six "well-mixed" greenhouse gases emitted from motor vehicles contributed to the "climate change problem" and thus were "reasonably anticipated to endanger public health and welfare." As a result, USEPA issued the Tailpipe Rule, which set GHG emission standards for cars and light trucks.
Two sections of the Clean Air Act, the PSD program and the state permitting requirements under Title V, are triggered by the emission of "any air pollutant" (which USEPA has interpreted to mean: any regulated air pollutant). Accordingly, once GHGs were regulated anywhere under the Clean Air Act (such as from tailpipes of motor vehicles), GHGs constituted an "air pollutant" within the meaning of the Act and stationary sources that emitted GHGs became subject to PSD and Title V permitting requirements. The proverbial camel's nose was in the tent, and the camel followed post-haste. This approach to regulation was long-standing and had been relevant to rules promulgated in 1978, 1980 and 2002. Since the Act provided for a basis for review only within 60 days of the promulgation of national regulations, challenges to USEPA's approach were very much time-barred, but with one very significant exception: "if such petition is based solely on grounds arising after such sixtieth day, ..." 42 U.S.C. 7607(b)(1).
What this means is that an entity whose claim has recently ripened has standing to challenge the USEPA's approach. Stated differently, entities that did not have standing in 1978, 1980 or 2002 because "their alleged injuries were only speculative" (such as NAHB and NOPA), may subsequently find they do have standing because their facilities are now regulated. NOPA asserted that "[prior] to promulgation of the Tailpipe Rule, no member's facility had triggered PSD review by virtue of emissions of a non-criteria pollutant. Now that greenhouse gases are a regulated non-criteria pollutant, many NOPA members will have to obtain PSD permits as [a] result of their facilities' emissions ..." NAHB members who likewise were not subject to PSD requirements, were now certain to have to obtain PSD permits sometime in the future. Accordingly, unlike other industry petitioners, NOPA and NAHB were found to have standing to challenge USEPA's "interpretation of the PSD permitting triggers ..."
This result is important. Absent regulations like the Tailoring Rule, GHG regulation will be far-reaching and will bring in entities not previously subject to regulation. Those entities will be entitled to challenge the regulation, as well as the methods USEPA uses to implement the regulations, even if those methods have been around for decades. Thus, even though USEPA's GHG program sailed through this set of challenges, the door certainly is not closed to other challenges as GHG regulation expands.
20120626 Coalition for Responsible Regulation, Inc. v EPA (D.C. Cir.).pdf (188.21 kb)
The business case for the development of renewable energy projects, from biodiesel and ethanol to wind, solar, and distributed generation, is more compelling than ever as tax and regulatory incentives combine to attract investments. Emerging issues in environmental law and increasingly recognized principles of corporate social responsibility are encouraging public companies to voluntarily reduce greenhouse gas emissions, install clean energy alternatives, and invest overseas in projects under the Kyoto Protocol to respond to climate change concerns.
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The case of the golddigger's purse by Erle Stanley Gardner
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About meI have been an avid reader since the age of three, according to my mother and father! I have a variety of interests, but I concentrate on gardening/plants, animals, and biographies. Orchids and the island of Tristan da Cunha are special interests of mine. I live on a small farm now, and have a retirement home for old horses.
About my libraryI have moved into a much smaller home, so many of my books are being sent to new homes. My core library still has orchids and animals. I don't know how many books will remain, but I think it will get down to 1000 volumes or so.
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Amber Liana — Babe of the Day
Amber is a model from the Tulsa / Owasso, Oklahoma area who just got started posing for pictures last year.
Amber is a model from the Tulsa / Owasso, Oklahoma area who just got started posing for pictures last year.
It's funny how everyone can be bitching about the Tigers, but as soon as Justin Verlander gets out there and goes 8+ on a No-No and everybody is right back on board. Thoughts on JV, why Matthew Stafford is the man, and why you should be cheering for the Pacers, even if one of them punched you in the face.
Shinedown have had much success with their latest album 'Amaryllis,' which includes their radio hit 'Bully' and the new single 'Unity.' Loudwire had the chance to catch up with the band's guitarist Zach Myers backstage at Rock on the Range today (May 19) and he talked about the songwriting process for the album.
Everybody step back from the ledge. The Tigers are going to be fine. Just relax people. My thoughts on the Tigs, the flopping epidemic of the NBA, and hell, we'll even talk some soccer.
Flint native JaVale McGee has spent most of this season being considered one of the worst players in the NBA. McGee critics are biting their tongues now, as the center/power forward has put together a series of impressive games, helping to extend his Denver Nuggets' playoff push.
Have you ever spent the entire weekend, on your couch, drinking, smoking, and watching sports? Welcome to my life. Check out my thoughts on aftermath of Junior Seau's suicide, the ridiculousness that is Floyd Mayweather, and why Jimmy Smokes Leyland is stressing me out.
"Take your kid to work day" is cool but "take a supermodel to work day" is a dream come true, especially if you get to bring Kate Upton with you. In Skullcandy's Episode 1, supermodel Kate Upton goes to work with NBA superstars Kevin Durant and James Harden of the Oklahoma City Thunder. The guys don't seem too happy about it until they get to go to work with Kate.
How is it that we are in the best month in sports, but every Detroit team has dropped the ball? It's been a frustrating week to sit around and watch sports, but hey, somebody has to do it.
Two 13 year old girls in Pennsylvania were ran over by a car after they fell asleep while sunbathing in a road. WTAE-TV is reporting that the driver of the car was actually a cousin of one of the girl's. Both girls were conscious after the accident and were rushed by helicopter to the hospital.
Gamers have been swapping rumors about Call of Duty's next move like giggly high school girls do potential prom dates. Now they have something solid to grasp on to — not only a title but a release date. As expected,
I love watching sports, because you can feel the glory of winning, with no effort what so ever. Check out what's happening in the world of men getting paid millions of dollars to play a game.
Linkin Park spark excitement for TNT's coverage of this year's NBA playoffs with their song 'Burn It Down' in a new promo that also features a sneak peek at the upcoming music video for the track.


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60-Second (Memorial Day) Weekend
It's a holiday weekend, with a lot of opportunities to party — hopefully this three- (or four-, or five-) day vacation won't go from being a long weekend to a lost weekend… So here are some things to keep you on your feet:
City Putt Grand Opening (10:30 a.m.) — No, you are not dreaming. New Orleans now has, in addition to the rest of our attractions, An 18-hole mini-golf course to boast of. It's hard to believe we haven't always had this. Come celebrate its inauguration with opening day festivities (ribbon cutting and all), including complimentary popcorn and Arnold Palmers; again, #youarenotdreaming. Head to City Park to find this new "complex" wedged between Storyland and the Peristyle… a.k.a. 8 Victory Drive. Fore!
Greek Fest (11 p.m.) — If you haven't already felt it in your left knee, it's that time of year — the Annual Hellenic party called Greek Festival returns to New Orleans and the Holy Trinity Church at the meeting point of Wisner Ave. and Robert E. Lee Blvd. And, as the organizers claim, they will be "celebrating the Big 4-Opa in style." Traditional food and drinks (holla, Ouzo) can be enjoyed on the banks of the Bayou, with music and and entertainment for the eyes and ears. If you haven't been, it's fun; and if you have, you're probably already fixing to go again. #Thisis40.
Saints and Sinners Literary Festival (All Day) — Sunday marks the closing reception and last call of this annual celebration of LGBT publishers, writers, and readers from around the world. This 10th anniversary will have readings, walking tours, classes and panels centered around the HIV virus, the LGBT community and all things written word. Last chance activities will be held at the Hotel Monteleone in the Quarter(s).
A My House NOLA Food Truck Party (2 p.m.) — It's Day Two of a two-day food truck takeover in Mid-City. Five trucks (NOLA Girl, La Cocinita, Empanada Intifada, Fat Falafel and Brigade Coffee), drinks and live music (from 4-6 p.m.) around Juan's Flying Burrito on Carrollton. My House is a local organization who's mission is to celebrate the "community and its culinary entrepreneurs through event planning"; this translates to: Lots and lots of food trucks. Come hang in Mid- City, or catch future events with their "Rolling Through" series.
And then again, there's always BCS ...
Louisiana Eats!


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1979 Ford Thunderbird. Very serious collector T-Bird, true one owner, little old lady beauty. Many docs including original invoice, built in LA plant then... More
Just arrived, the 1979 Heritage Edition was touted as one of the most luxurious, well equipped Thunderbirds ever. It was the follow-up to the... More
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Smoking Heart of the Mountain
This trinket looks like a great dk leveling trinket, here are the mats:
Requires Essence of Fire (3), Small Brilliant Shard (3)
Guess what mats I suggest to stock up on?
So why has this trinket's stats been adjusted? Many lower level crafted items such as trinkets, armor, enchants, and weapons are having their stats adjusted to make them more valuable to a leveling character in patch 3.1. Obviously any items that share positions with account bound purchases will not sell as well as the other slots, but you should take a look through your profession tabs to see if any items have become best in slot for twinks or just useful for leveling in general.
UPDATE: Check here for more info on your particular profession and mat changes.
Here's an item I think will be very popular with twinks:
Spidersilk Drape
Smoking Heart of the Mountain
14 comments: on "Changes in Patch 3.1 - Smoking Heart of the Mountain"
Stabs said... April 13, 2009 at 8:51 AM
I don't agree
The trinket is BOP. Very few DKs will level up enchanting early. Most DKs who want to be Enchanters will hit 80 first then power-level it.
Markco said... April 13, 2009 at 9:02 AM
I guess I'm unique in leveling my dk's professions as soon as he turned 58 :( ? Either way, if you get anything from this post it's that many items are having their stats readjusted to make them appealing to leveling characters.
I agree with Markco.
Leveling professions while leveling is a good idea - esp when you can make money doing it. By waiting to level Enchanting you miss out on tons of enchanting mats from all the quest rewards.
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Kring said... April 13, 2009 at 10:10 AM
Stabs comment was not, that it is not smart. Stabs comment was, that most people don't do it.
We can't sell what's good for them, we can only sell what they buy.
It would actually be a great trinket for other melees, too.
Are you trying to farm and sell the schematic?
Archangel said... April 13, 2009 at 10:35 AM
I think you also need to see the big picture with "changes in patch 3.1": the changes to the reagents needed to craft useful leveling items like Smoking Heart. Blizzard is removing a plethora of reagents from old world items/enchants, reagents that are currently, for some players, a decent amount of income : Greater Eternal Essence, Elemental Water, Hearth of Fire, Heavy Leather, Rugged Leather, Guardian Stone, strange items like Wicked Claw, Ironfeathers and the list may continue. Second, they are reducing the mats needed for many old items/enchants: mageweave and runecloth bolts require 4 cloth instead of 5, thorium ore, dust essences, everything is less.
So while Blizzard is aiming to help all the (leveling) players, not to waste time chasing these elusive or long time to get materials, I'm sure they will hit a good number of niche markets too.
Wiggin said... April 13, 2009 at 11:27 AM
Hey Archangel, you wouldn't by chance have a list/link to some of the items that will be getting their mats changed would you? I'm not sure if such a list/link exists but if it does, that would be a huge help.
I've been working in the Strange/Soul Dust markets recently, as on Mon-Thurs I can usually pick up stacks at 50% of their value or less, and then resell most of the stock on Fri-Sun. But if there is strong chance lower items will have their mats reduced, I would likely want to get out of this market.
Thanks for the heads up.
The Grinch said... April 13, 2009 at 12:26 PM
MMOChampion has a full list of all the changes being applied to the professions, mat wise, in one convenient spot.
Markco said... April 13, 2009 at 12:36 PM
Added a link, thanks Grinch
Andrew said... April 13, 2009 at 6:58 PM
Twinking will become no more in 3.1 So if your thinking, this will be a great item for twinks etc.. think again. Twinking finally got killed.
Anonymous said... April 13, 2009 at 8:28 PM
Hey Marco, I hate to nitpick but this recipe also requires a Blood of the Mountain (http://www.wowhead.com/?item=11382).
I recently made one for my pally, it's a nice little trinket but also a reward as it's a bit of a saga to make. (It can only be forged in the Dark Iron forge in Blackrock).
And I bought all of the mats and the enchanting recipe for it as soon as I found out it existed, it took me about a week of watching the Ah before the recipe appeared.
Peter said... April 13, 2009 at 8:32 PMThis comment has been removed by the author.
Anonymous said... April 13, 2009 at 8:36 PM
My apologies Marco, I did not read the link in your post before commenting :p.
Well, I guess I am happy that this trinket will be getting better, but I'm also a little disppointed that it is now going to be so easy to produce. I think that the fact you had to go into BRD to forge this made it fell a bit more special then what it stats give to it.
Anonymous said... April 14, 2009 at 4:38 AM
Andrew! are you talking about enchanting lvl requirements? or xp in BGs which is still not going to be out for ages
Andrew said... April 14, 2009 at 9:04 AM
I was refering to the change in enchanting lvl requirments.
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By Marshall Connolly, Catholic Online (NEWS CONSORTIUM)
10/10/2013 (1 year ago)
Catholic Online (www.catholic.org)
If you traveled at the speed of light, it would still take a lifetime to arrive, but eighty light years from Earth astronomers believe they have discovered a lone planet, without a parent star. You may be lonely, but nothing is as lonely as this solitary giant.
By Marshall Connolly, Catholic Online (NEWS CONSORTIUM)
Catholic Online (www.catholic.org)
10/10/2013 (1 year ago)
Published in Technology
Keywords: PSO J318.5-22, planet, rogue, Jupiter, mass, discovery
LOS ANGELES, CA (Catholic Online) - Adding insult to injury, its discovering astronomers have dubbed the planet a "rogue" cruelly pointing out that it appears to be an orphan without any parent whatsoever.
Far, far away from our Solar System, and even farther than several stars, astronomers have found, by direct imaging, a planet six times the size of Jupiter gliding gracefully through the heavens without a parent star in sight.
The lone world must be exceedingly cold without a star to warm it, but it still gives off infrared radiation, likely because if its size.
Dubbed PSO J318.5-22, the planet was discovered with the pan-STARRS 1 wide field survey telescope on Halekala, Maui.
The planet is the first to be clearly identified as a "rogue planet" or a planet without a parent star to orbit.
Previous reports of similar objects have not been clearly delineated to be planets or "brown dwarfs," which are not planets at all, but failed stars a bit too small to shine brightly.
In this case, it appears to clearly be a planet.
Rogue planets are just one of many rogue objects in space, that is objects just cruising through interstellar space without orbiting a parent body. Although this is the first such confirmed observation, the phenomenon is thought to be relatively common.
Rogue planets are created when gravitational perturbations of normal planetary orbits result from interactions with other planets, stars, or even black holes. Interactions with another gravitational force likely stripped the planet away from its parent star and flung it into space.
Such objects are difficult to detect because astronomers have no way of spotting them directly, other than luck. Planets orbiting stars are easy to find because they cause their parent stars to wobble as they orbit. Rogue planets however, have no parent start to shake, buy instead they float alone through space.
While this makes them much harder to discover, it also makes them easier to study. Rogue planets don't have a star to wash out the faint light shining off them, which allows scientists to determine the chemical makeup to the planet's atmosphere.
Scientists say they know this is a planet and not a brown dwarf because it shines redder than brown dwarfs do. Follow up observations confirmed the object was consistent with a planet as opposed to a failed star.
The planet is thought to be very young, possibly an offspring from the Beta Pictoris group which is a family of stars that formed just 12 million years ago. Astronomers have already discovered a giant planet orbiting the chief star of the group, Beta Pictoris. That planet is at least eight times the size of Jupiter.
Astronomers hope to learn more about rogue planets by studying PSO J318.5-22 further. Let's just hope they are kind enough to give it an easier name in the meantime.
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