Around the Web (10/29/2008)
A roundup of recent news and articles from around the web relevant to climate change law and litigation.
Continue Reading...Dynegy Inc. agrees with New York Attorney General Andrew Cuomo to disclose material risks related to climate change
Following in the footsteps of Xcel Energy's August 2008 landmark settlement with New York Attorney General Andrew M. Cuomo, on October 23, 2008, Mr. Cuomo announced an agreement with Dynegy Inc. under which Dynegy will include disclosures of material risks related to climate change in its Form 10-K filings. The agreements with Dynegy and Xcel are the fruits of Mr. Cuomo's innovative use of New York's Martin Act as an environmental enforcement tool, which began with the New York Attorney General's September 14, 2007 letters and accompanying subpoenas to Dynegy, Xcel, AES Corporation, Dominion Resources, and Peabody Energy. Mr. Cuomo's inquiries regarding AES Corporation, Dominion Resources, and Peabody Energy are said to be "ongoing."
Continue Reading...Insurance industry climate change strategy has serious potential implications for corporate policyholders
Historically, when a significant liability risk begins to emerge, the insurance industry employs a three-pronged strategy in response. Signs of this three-pronged strategy by the insurance industry are already manifesting themselves in the climate change arena. First, as noted in a prior blog entry, insurers are beginning to litigate aggressively against policyholders seeking coverage for climate change claims. Second, the insurance industry is carefully monitoring legislation and public policy initiatives in order to shape the debate (and limit their financial exposure). Finally, the insurance industry is beginning to market “new” policies to address climate change risks.
Corporate policyholders should monitor the insurance industry efforts closely including: (1) being alert to new exclusions being added to policies; (2) watching legislative efforts that might result in valuable coverage being undermined; and (3) evaluating whether new insurance products being marketed are necessary to address potential gaps in a company’s existing coverage.
Continue Reading...Lawsuit against mega-dairy in California's Central Valley seeks to reduce greenhouse gases
On October 15, 2008, the Center for Biological Diversity and California Rural Legal Assistance filed a lawsuit challenging the failure to consider global warming impacts in conducting the environmental review of a mega-dairy in the Central Valley of California. This is the latest in a series of actions focusing on the environmental review process under the California Environmental Quality Act (CEQA), which requires public agencies to consider the environmental impacts of a proposed project before approving it. In the case of greenhouse gas emissions, several suits have claimed that CEQA requires identification of a project’s emissions, and if they are significant, may require the agency to impose mitigation measures to lower the project’s carbon footprint.
Continue Reading...Lawsuits seek protection of American pika as endangered species due to climate change
Alleging a failure of regulators to declare the American pika an endangered species based on the impact of climate change, the Center for Biological Diversity on August 19 filed lawsuits in California state and federal court seeking injunctive relief. To combat the perceived deleterious effects of global warming on the pika, the Center is seeking protection of the animal under the California Endangered Species Act and the federal Endangered Species Act. However, regulators have not been so quick to adopt the Center’s position and this reluctance has resulted in two lawsuits.
Continue Reading...House committee releases draft cap-and-trade legislation, challenging state and regional initiatives
On October 7, 2008, John D. Dingell (D-MI), Chairman of the House Committee on Energy and Commerce, and Rick Boucher (D-VA), Chairman of the Subcommittee on Energy and Air Quality, released a discussion draft of legislation establishing a cap-and-trade system designed to cap greenhouse gas emissions. In a memorandum to members of the Committee on Energy and Commerce, Representatives Dingell and Boucher observed:
Since January 2007, the debate over climate change has evolved dramatically, beginning with groundbreaking reports released by the International Panel on Climate Change, which affirmatively settled the question of whether human activity is contributing to global warming. In addition, in the absence of Federal action, some 24 states and several regional organizations have moved towards regulation of greenhouse gases. While the States should be lauded for their progressive stance in addressing the problem, their actions, if not properly coordinated and directed and accompanied by Federal action, could be disruptive to interstate commerce and counterproductive to the goal of limiting national greenhouse gas emissions. (Emphasis added.)
Continue Reading...AB 32 Final Implementation Plan issued by CARB
This week, the California Air Resources Board (“CARB”) issued its final implementation plan directed at meeting the greenhouse gas reduction goals set forth in the state’s amibitious 2006 Global Warming Solutions Act, commonly referred to as AB 32. The 142-page final version of the plan incorporates feedback received in the four months since a Draft Scoping Plan was released by CARB in June. In it, CARB provides estimates of how and where the state and its residents will need to reduce emissions to return to 1990 carbon emission levels. The plan estimates that California will need reduce its annual emissions by about 4 tons per person—from 14 tons currently to about 10 tons in 2020.
Continue Reading...Europe considering fast track procedures for "green" patents
The European Patent Office and the European Commission recently organized a forum to consider whether green friendly changes to the European IP system were necessary in order to encourage technological development in key fields. Günter Verheugen, Vice President of the European Commission spoke of the urgent need for progress on the European Community Patent and indicated that he was in favor of fast track procedures for "green" patents. Such a procedure, however, would likely be unworkable. Most patent applications have at least some claim to being environmentally conscious – by use of more efficient processes or alternative, cleaner raw materials. Their inventors or applicants are, however, not always concerned with a speedy outcome to the procedure.
Continue Reading...Around the Web (10/15/2008)
A roundup of recent news and articles from around the web relevant to climate change law and litigation.
Continue Reading...CEQA and Senate Bill 97 will require agencies to consider greenhouse gas emissions in evaluating projects
The role of the California Environmental Quality Act ("CEQA"), if any, in addressing climate change and greenhouse gas emissions ("GHGs") was the subject of debate in California after the passage in 2006 of the California Global Warming Solutions Act, often referred to as Assembly Bill 32 (“AB 32”). CEQA is a public disclosure law that requires public agencies to identify "significant environmental effects" of discretionary projects that they intend to carry out or approve, and to mitigate such significant effects when it is feasible to do so. AB 32 provided that GHG emissions can cause significant environmental effects, but did not address how public agencies in carrying out their duties pursuant to CEQA in approving projects should evaluate those emissions. For example, how does a public agency determine whether GHG emissions relating to a project meets a threshold of "significant impact"?
Continue Reading...NGOs charged with playing larger role in climate regulation and climate litigation
Non-governmental organizations (“NGOs”) have historically taken an active role in the development and enforcement of environmental laws in the United States in an approach that some refer to as “regulation by litigation.” Given their concerns about global climate change, and the absence of federal legislative activity and enforcement, NGOs are calling for more unified and effective litigation tactics in an attempt to force action on climate policy.
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