EPA proposed reporting requirements for greenhouse gases seen as a precursor to GHG controls
Co-authored with Tara Kowalski.
On March 10, 2009, EPA proposed a comprehensive national greenhouse gas (“GHG”) emission reporting requirement, which was hailed as potentially serving as “the basis for a federal cap on the buildup of carbon dioxide and other gases linked to global warming.” The proposed GHG reporting requirement would apply to certain suppliers of fossil fuel and industrial chemicals; manufacturers of motor vehicles and engines; and sources annually emitting at least the global warming potential (GWP) equivalent of 25,000 metric tons of carbon dioxide. The reporting requirement would affect approximately 13,000 facilities (which EPA claims account for 85 to 90 percent of the nation’s greenhouse gas output) spanning a broad range of industries, including chemical, cement, iron and steel production; electricity generation; vehicle, engine, and electronics manufacturing; and food processing and wastewater treatment facilities. EPA estimates that compliance with the GHG reporting requirements would cost the private sector $160 million for the first year, and $127 million annually thereafter.
Continue Reading...Record insurance losses in Texas ignite debate over state's ability to address rising risks related to climate change
Two major hurricanes that hit the Texas coastline in 2008 sent damage claims soaring, and resulted in $6.6 billion in losses for state insurers, even as the insurers collected a record-high $5.17 billion in premium revenue, according to data released by the Texas Department of Insurance (TDI). Policyholder groups are concerned that the insurance companies will exploit these record losses as a means to raise rates to policyholders. "The effect of climate change on weather patterns raises very real concerns," said Alex Winslow, executive director of the consumer group Texas Watch, "however, we believe that insurers are using the potential for climate change to increase rates more than is necessary." Consequently, one proposal currently being debated in the state legislature would require rate increases to be approved by the state insurance commissioner before they go into effect. Currently, rate increases go into effect as soon as insurers file a notice with TDI and can only be challenged after the fact.
Continue Reading...CBD seeks ESA protection of Kittlitz's murrelet
The Center for Biological Diversity has filed a scientific petition with the Alaska Department of Fish and Game to protect an Alaskan seabird under Alaska’s Endangered Species Act. The Center claims that the seabird, a species known as Kittlitz’s murrelet, faces extinction due to threats from global warming.
The Kittlitz’s murrelet is only the latest species that the Center has sought to add to the endangered species list due to perceived effects from global warming. Recently, the US Fish and Wildlife Service agreed to determine whether the American pika warrants protection from global warming effects under the Endangered Species Act by May, 2009, settling a lawsuit filed by the Center for the agency’s failure to make the determination in the required statutory period. Emboldened by its success, the Center vowed to commit even greater resources to similar climate litigation.
Continue Reading...House Agriculture Committee contributes to a bumper crop of proposed climate change legislation
On March 12, 2009, House Agriculture Committee Chairman Collin C. Peterson (D-Minn.) announced that the committee, which has jurisdiction over the Commodity Futures Trading Commission ("CFTC"), is seeking comments from agricultural, environmental and other groups and members of the public on priorities for future climate change legislation. The committee has prepared an instruction letter and a questionnaire, with responses due by April 10, 2009.
Rep. Peterson’s announcement follows the committee’s February 12, 2009, passage of H.R. 977, The Derivatives Markets Transparency and Accountability Act of 2009 (“DMTAA”). Although the DMTAA has received attention primarily for its provisions addressing financial derivatives – including authorizing the CFTC to suspend U.S. trading of so-called “naked” credit default swaps under certain circumstances and requiring that most over-the-counter derivatives be cleared through central clearinghouses – the bill would also require carbon offsets and emissions allowances to be traded on a designated contract market under CFTC oversight.
Continue Reading...EPA proposes GHG endangerment finding; briefing document states greenhouse gas emissions endanger human health and welfare
According to numerous reports, the US EPA proposed an "endangerment finding" on greenhouse gas emissions ("GHGs") to the White House last Friday. The substance of the finding has not officially been made public; however, according to reports from Reuters, the White House Office of Management and Budget showed EPA sent a proposed rule for an "Endangerment Finding for Greenhouse Gases under the Clean Air Act" and such a finding is only sent to the White House when EPA determines that human health and welfare are threatened. The finding could have broad implications, primarily triggering regulation of GHGs, including CO2, under the Clean Air Act. An internal EPA document (“Proposed Endangerment Finding for GHGs in Response to Mass. v. EPA: Guidance-Option Selection Briefing”), widely circulated earlier this month, suggests that the endangerment finding likely concludes that GHGs endanger both public health and welfare, potentially prompting nationwide regulation of GHGs.
Continue Reading...Insurance companies required to disclose climate change risks - will disclosure facilitate risk mitigation, climate change regulation, or litigation?
Co-authored with John Wyckoff.
On March 17, 2009, the National Association of Insurance Commissioners (NAIC), an organization composed of the chief insurance regulatory officials of the 50 states, the District of Columbia and five US territories, adopted the requirement that insurance companies having in excess of $500 million in premiums disclose to regulators and the public the financial risks they face from climate change, as well as their response actions taken to address these risks, by May 1, 2010. Those companies with premiums in excess of $300 million are required to report a year later and those with lower premiums may voluntarily report at any time. The NAIC believes that insurer disclosures will allow regulators to understand the impact of climate change on insurance (property, casualty, life, and health) including its availability, affordability, and solvency.
Continue Reading...Section 115 of the Clean Air Act urged as vehicle for greenhouse gas control
A former Bush EPA General Counsel has urged regulation of greenhouse gases under a rarely used 1977 amendment to the Clean Air Act entitled “International air pollution” (Section 115). Writing in the March 9 issue of the BNA Daily Environment Report, Roger Martella and Matthew Paulson state that “Section 115 could provide an effective, flexible, economically reasonable, and legally supportable tool” and advise EPA to take a “much harder look” at this section before deciding to regulate greenhouse gases elsewhere under the Clean Air Act.
Section 115 of the Clean Air Act requires EPA to provide notice to the states to revise their State Implementation Plans (SIPs) if EPA concludes, based upon receipt of a study from a duly constituted international agency, that air pollutants “emitted in the United States cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country…” The authors argue that the Intergovernmental Panel on Climate Change is a proper international agency and that their report entitled: Climate Change 2007: Mitigation, Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change satisfies the statutory prerequisite of an international report.
Continue Reading...Signs point to US-China cooperation on climate change
Ever since President Obama announced in his Inaugural Address that the United States will “work tirelessly” to “roll back the specter of a warming planet,” momentum has been building for the world’s top two leading emitters of greenhouse gases to cooperate on the issue of climate change. Many feel the time is ripe for such cooperation. For example, earlier this year, the Brookings Institution released a report on Overcoming Obstacles to US-China Cooperation on Climate Change, while the Pew Center on Global Climate Change and the Asia Society produced A Roadmap for US-China Cooperation and Climate Change, a project which was co-chaired by current Secretary of Energy Steven Chu.
It was no great surprise, therefore, that last month during her first trip abroad as Secretary of State, Hillary Clinton visited the People’s Republic of China with her Special Envoy on Climate Change Todd Stern to propose a new partnership to combat climate change. According to Secretary Clinton, “the United States and China will build an important partnership to develop and deploy clean energy technologies designed to speed our transformation to low-carbon economies.” Secretary Clinton and her counterpart Yang Jiechi also agreed that the two countries would work together to produce a new comprehensive climate change treaty at the fifteenth Conference of the Parties to the United Nations Framework Convention on Climate Change to be held in Copenhagen in December.
Continue Reading...New York Bar Association Task Force calls for action to combat greenhouse gases
The New York Bar Association Task Force on Global Warming recently submitted a preliminary report entitled “Taking Action in New York on Climate Change,” which summarizes New York’s existing climate change provisions and outlines twenty-two action items to further address the issue. The recommendations were divided into four categories – (1) buildings and energy, (2) land use, (3) vehicles and transportation, and (4) other initiatives. The Task Force recommendations include improving access to energy efficiency incentives in new buildings, creating additional training on enforcement of the Energy Code for building inspectors, and amending the SEQRA regulations and various town, city and municipal laws to include climate change considerations. Other action items include encouraging wind energy projects and putting in place time-of-use pricing in electricity. Time-of-use pricing would allow consumers to save on electricity by shifting their usage to non-peak periods when prices would be lower.
Continue Reading...Ninth Circuit hears argument in lawsuit urging higher minimum efficiency standards for electricity distribution transformers
On March 9, 2009, the United States Court of Appeals for the Ninth Circuit heard oral arguments in People of California v. US Dept. of Energy, a lawsuit brought by the state of California, Earthjustice, the Sierra Club and the Natural Resources Defense Council (NRDC) against the US Department of Energy (DOE) to adopt stronger energy efficiency standards for electricity distribution transformers. Amongst other things, Petitioners argue that, by rejecting a proposal for stronger efficiency standards, DOE failed to "achieve the maximum improvement in energy efficiency" that is "technologically feasible and economically justified," as required by the Energy Policy and Conservation Act (EPCA) and the Energy Policy Act of 1992. In support of this argument, they allege that DOE failed to account for the monetary benefits of reducing carbon dioxide pollution. (Listen to California v. DOE Ninth Circuit oral arguments.)
Continue Reading...EAB remands several issues in Ripley Heating Plant dispute; decision suggests regulation of CO2 under Clean Air Act
On February 18, the Environmental Appeals Board (EAB) issued a decision remanding several issues and denying review of others, in response to a Sierra Club petition regarding a permit authorizing Northern Michigan University to construct a boiler at the Ripley Heating Plant on its Marquette, Michigan Campus. The Michigan Department of Environmental Quality (MDEQ) issued the permit on May 12, 2008, after issuing a draft permit for public review and comment in October 2007. On June 13, 2008, the Sierra Club filed a petition for review which challenged seven aspects of the MDEQ decision and response to comments. In particular, the Sierra Club petition addressed several aspects of MDEQ’s analysis of Best Available Control Technology (BACT), as well as MDEQ’s air quality analysis. The EAB held that MDEQ “clearly erred” in selecting SO2 limits, because it did not follow the EPA New Source Review Manual or other relevant guidelines.
Continue Reading...US-Canada "clean energy dialogue" to address coal, oil sands, and carbon capture
On February 19, President Obama made his first foreign trip, as he traveled to Canada to meet with Prime Minister Stephen Harper. One of the main topics on the agenda was a “US-Canada clean energy dialogue” – an attempt to cooperate across the border to protect the environment and improve energy security. One of the main goals of the new initiative is to reduce carbon emissions, in particular by developing cost-effective carbon capture technologies and ways to push the emissions underground instead of into the atmosphere. The leaders also mentioned creating a more efficient electric grid.
Continue Reading...EPA nears ruling on greenhouse gases
Lisa Jackson, the new administrator for the EPA, announced to the press last week that her agency would soon make findings on whether greenhouse gases are a danger to public health and welfare. In an interview with the Associated Press on February 17, Ms. Jackson stated "If EPA is going to talk and speak in this game, the first thing it should speak about is whether carbon dioxide and other greenhouse gases endanger human health and welfare." If the agency finds that greenhouse gases are a danger, they could begin to regulate them under federal law. Ms. Jackson added that "[i]t is clear that the Clean Air Act has a mechanism in it for other pollutants to be addressed."
Continue Reading...Shaw Development v. Southern Builders: The First Green Building Litigation is Settled
Forecasts of a wave of green building litigation are numerous, and the key question that always arises in these discussions is: “Just who will be found responsible when a supposed green building fails to obtain the LEED rating or other green credential that the developer was counting on?” Well, the first green building litigation raising this issue, Shaw Development v. Southern Builders, has come and gone, and since it was settled, we are no wiser in terms of judicial pronouncements. But the real world example of an actual lawsuit nevertheless highlights some lessons regarding the principles that will doubtless govern many future cases.
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