EPA grants California request for waiver, enabling states to set vehicle GHG emissions standards more stringent than national standards
The Environmental Protection Agency has reversed the Bush Administration's denial of California's request for a waiver to set its own, state-specific greenhouse gas emission limits from cars, and granted California's petition for a waiver. President Obama had issued a memorandum directing his newly appointed EPA Administrator to direct the agency to re-consider California's waiver petition.
“After review of the scientific findings, and another comprehensive round of public engagement, I have decided this is the appropriate course under the law,” EPA Administrator Lisa P. Jackson said. “This waiver is consistent with the Clean Air Act as it’s been used for the last 40 years.” Thirteen states and the District of Columbia have already gone through the formal process of adopting the California standards.
Continue Reading...Significance of the removal of citizen suit provision from ACES
Original HR 2454 provision differed substantially from Clean Air Act counterpart
Co-authored with Cyrus Frelinghuysen.
This post is prompted by an interesting question received in response to a previous post (Removal of "citizen suit" provisions eased passage of ACES). The commenter asks:
“Because the bill amends the Clean Air Act, wouldn't citizens be able to bring suits pursuant to the Clean Air Act's regular citizen suit provision anyway? It seems like the removal of the citizen suit provision isn't a big deal if the main citizen suit provision in the Clean Air Act can still be used.”
The question is an interesting one, and we thought the answer would merit an additional post. The short answer to your question is, yes, parties will still be able to bring lawsuits under the citizen suit provision of the Clean Air Act (CAA). However, the citizen suit provision in ACES differed from the current citizen suit provision in the CAA in several significant ways.
Continue Reading...ACES passage assisted by 300+ pages of amendments
Facing tough opposition to its passage in the House, the American Clean Energy and Security Act’s (ACES) chief sponsor, Democratic Representative Henry Waxman (D-CA) submitted a 300-plus page amendment to H.R. 2454, which was reported out of the House Rules Committee at 3:47 a.m. – the morning of the vote – Friday, June 26, 2009.
In lieu of the amendment originally recommended by the Committee on Energy and Commerce that was printed in the bill, the House considered, debated, and passed the Act with the Waxman amendment consisting of the text of H.R. 2998.
A substantive summary of the components of the Waxman amendment follows.
Continue Reading...Removal of "citizen suit" provisions eased passage of ACES
*Co-authored with Cyrus Frelinghuysen.
See also previous post: American Clean Energy and Security Act (H.R. 2454) passed by House.
Today, in what President Obama described as a “vote of historic proportions,” the House passed the American Clean Energy and Security Act (ACES). Given the slim margin with which ACES passed, it is important to note which controversial parts of the bill fell by the wayside to ensure its passage. In this case, one notable provision that was eliminated was the so-called “citizen suit” provision in the bill. Many environmental statutes contain citizen suit provisions, which empower citizens to bring lawsuits against either polluters for violations of environmental regulations or against the Administrator of the Environmental Protection Agency for failing to enforce environmental standards.
Continue Reading...American Clean Energy and Security Act (H.R. 2454) passed by House
“To create clean energy jobs, achieve energy independence, reduce global warming pollution and transition to a clean energy economy.” Bill # H.R.2454
Today the House of Representatives debated and passed (219-212) the American Clean Energy and Security Act of 2009 (H.R. 2454, ACES), which is intended to radically redefine the way the United States uses and pays for energy. The Waxman-Markey climate change legislation centers on a renewable electricity standard, encouraging the use of renewable energy, and a cap-and-trade policy. The bill establishes a cap-and-trade system regulating carbon dioxide emissions, in which emitters will be allowed a certain allotment of permits and will be able to sell unused permits or buy more as needed.
Continue Reading...Desert Rock power plant owner challenges EPA request to remand permit in order to consider requiring technology to control GHG emissions
On June 11, 2009 owners of the Desert Rock Energy Facility – a new 1500 megawatt coal-fired power plant on the Navajo Nation tribal reservation in New Mexico – argued to the EPA Administrative Appeals Board that the agency will violate the Clean Air Act if it is allowed to consider requiring the plant to use low-carbon-dioxide gasification technology.
On April 27, 2009, the EPA asked the Environmental Appeals Board (EAB) for a voluntary remand of the permit in order to provide the EPA an opportunity to consider requiring integrated gasification combined cycle technology (IGCC) as best available control technology (BACT) at the Desert Rock plant. Specifically, the EPA has said that it is reconsidering the Bush administration's stance that the Clean Air Act’s prevention of significant deterioration (PSD) provisions do not apply to greenhouse gas emissions. According to Desert Rock, the EPA’s remand request violates Section 165(c) of the Clean Air Act, which requires the EPA to grant or deny a PSD permit within a year of filing the permit request by the applicant. Also, EPA regulations (40 C.F.R. Part 124) prohibit EPA from withdrawing a permit after the EAB has granted a petition for review.
Continue Reading...Plaintiff's lawyer predicts "massive" climate change litigation; proving causation remains challenging
Australia’s Sydney Morning Herald recently published an interview with Gerald Maples, the lead plaintiff’s attorney in Comer v. Murphy Oil. In Comer, fourteen individuals filed a class action lawsuit against insurance, oil, coal and chemical companies seeking relief for property damages resulting from Hurricane Katrina, alleging that defendants’ emissions contributed to climate change and thus magnified adverse weather events, including Hurricane Katrina. The district court dismissed the Comer case on constitutional standing and political question grounds. The interview provides interesting insight into the case, the complaint, the plaintiff’s views on causation, and possible future climate litigation against private parties and the government.
Continue Reading...California v. General Motors: State moves to voluntarily dismiss climate change lawsuit against major automakers
On Friday, June 19, the California Attorney General’s Office voluntarily dropped its appeal to the Ninth Circuit in California v. General Motors Corp. to review the lower court’s dismissal of the state’s public nuisance lawsuit against six major automobile companies. The lawsuit was originally filed in the Northern District of California in 2006 by then-Attorney General Lockyer, alleging that the automakers’ cars were a substantial source of greenhouse gas emissions, which caused climate change, resulting in millions of dollars in damages to the state, including increased air pollution, a decline in the snowpack, and coastal erosion.
The automakers – General Motors, Ford, Chrysler, and the North American outlets of Toyota, Honda and Nissan – filed early motions to dismiss, which the District Court granted in September 2007 on the grounds that the issues raised were “political questions” which were reserved for the President and Congress, and not issues that the Court could, or should, resolve at that time.
Continue Reading...CBD lawsuit seeking ESA protection of sea turtles due to climate change the latest attempt at regulation through litigation
Co-authored with Amy Garber.
The failure of the US to define its climate change policy through legislation and rulemaking has once again resulted in an attempt by environmental groups to force global warming policy through litigation. Plaintiffs Center for Biological Diversity (CBD), Turtle Island Restoration Network and Oceana Inc., have filed a complaint alleging violations of the Endangered Species Act (ESA) and Administrative Procedure Act based upon allegations that the habitat of the leatherback and loggerhead sea turtles is being destroyed by climate change. The case, Center for Biological Diversity et al v. Locke et al, which is docketed in the Northern District of California, seeks declaratory and injunctive relief requiring the government to protect the turtles and their habitat from the effects of climate change.
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FTC files "greenwashing" charges against three companies based on eco-friendly advertising claims
The Federal Trade Commission announced on June 9, 2009 that it charged Kmart, Tender Corp., and Dyna-E International with making false and unsubstantiated claims that their products were “biodegradable.” The charges were announced in testimony before the US House Subcommittee on Commerce, Trade, and Consumer Protection of the Committee on Energy and Commerce. (FTC prepared statement: “It’s Too Easy Being Green”) Kmart and Tender agreed to consent decrees to settle the charges against them and the case with Dyna-E will proceed in administrative litigation with the FTC.
The FTC action is based on its “Green Guides,” which govern environmentally- and climate-friendly claims in advertising. Among other things, the Green Guides require that any unqualified claims that a product is biodegradable be based on scientific evidence that it will completely decompose within a reasonably short period of time under customary methods of disposal. The FTC alleges that the products identified in its complaints against these companies are typically disposed in landfills, incinerators, or recycling facilities where it is impossible for waste to biodegrade within a reasonably short time. The charges were based on Kmart’s using the word “biodegradable” to describe its American Fare disposable plates, Tender Corp. using the word to describe its Fresh brand moist wipes, and Dyna-E calling “biodegradable” its Lightload brand compressed dry towels.
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