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.
Continue Reading...Center for Biological Diversity asks court to require EPA to designate Washington State's coastal marine waters as impaired
On May 14, 2009, the Center for Biological Diversity (CBD) sued the EPA for allegedly violating the Clean Water Act when it approved the impaired waters list submitted by Washington State under Clean Water Act section 303(d). According to the CBD complaint, any body of water that does not attain Washington’s water quality standards must be included on the impaired waters list. As evidence of coastal water impairment, CBD refers to a scientific report (“Dynamic patterns and ecological impacts of declining ocean pH in a high-resolution multi-year dataset,” by J. Timothy Wootton, Catherine A. Pfister, and James D. Forester, Proceedings of the National Academy of Sciences (PNAS), August 2008) that modeled an aggregate pH decline of approximately 0.36 units in Washington’s coastal waters based on data collected between 2000 and 2007. According to the CBD, a pH decline greater than 0.2 units violates Washington State’s water quality standards, and therefore Washington’s coastal waters must be included on the state’s impaired waters list. The CBD suit asks the court to declare that the EPA violated the Clean Water Act by approving Washington State’s impaired waters list and compel the EPA to add the ocean waters allegedly impaired by ocean acidification caused by carbon dioxide to Washington’s list of impaired water bodies.
Continue Reading...WCI to close public comment on mandatory GHG reporting policy June 4
The Western Climate Initiative (WCI) will close the public comment period on its “Final Draft Essential Requirements of Mandatory Reporting for the WCI this Thursday, June 4. The Final Draft and Response to Stakeholder Comments, made available together on May 8, 2009, describe both WCI’s responses to prior public comment (regarding its January 2009 greenhouse gas reporting requirements) and the changes it made in response to those comments.
Although the report informs the public of changes WCI considered in response to public comment, recommended changes to key policy details were largely rejected. For instance, “many commenters” expressed concern that the reporting and verification thresholds (e.g., 25,000 metric tons of CO2e for the cap and trade program; 10,000 metric tons of CO2e for mandatory emissions reporting) were too low and that third-party verification of emissions reports was unnecessary.
Continue Reading...Sotomayor climate change case just one of three stalled global warming appeals
In January we commented on three pending appeals with significant implications for tort-based climate litigation. In Friday’s National Law Journal, Marcia Coyle notes that Supreme Court Nominee Sonia Sotomayor is the presiding judge on the Second Circuit panel that heard the appeal in Connecticut v. American Electric Power Co., Inc. (AEP). In AEP, District Court Judge Loretta Preska dismissed the public nuisance case brought by 8 state attorneys general against 5 power companies based on the companies’ greenhouse gas emissions. The court held that the case was non-justiciable because it required “identification and balancing of economic, environmental, foreign policy, and national security interests” of a “transcendently legislative nature.”
Judge Sotomayor’s Second Circuit panel heard oral argument in AEP in June 2006. While Coyle’s NLJ article described the wait for a decision as a “mystery,” it is noteworthy that appellate decisions are also long awaited in Comer v. Murphy Oil Co. and California v. General Motors Corp., both of which also involved lower court dismissals on political question grounds (among others).
Continue Reading...Swiss Re withdraws from carbon emissions trading activities; Insurance industry still evaluating climate change issues
Swiss Re has enjoyed a reputation in the marketplace as an insurance market leader in climate change issues. However, apparently due to falling carbon prices and much weaker trading of carbon emissions allowances in European markets, Swiss Re has announced that it is closing its carbon emissions trading desk and will no longer be engaging in carbon trading activities. Swiss Re’s move seems somewhat surprising given some of its significant prior efforts in this area, including deals in China and having been scheduled as a speaker at the upcoming EU Emissions Trading Conference in July. In any event, Swiss Re’s move likely underscores the fact that the insurance industry will continue to view climate change issues through the lens of profit opportunities and act accordingly.
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