Tenth Circuit allows Mountain Coal Company to intervene in NEPA challenge
In WildEarth Guardians v. United States Forest Service, the Tenth Circuit has reversed the United States District Court for the District of Colorado and allowed Mountain Coal Company to intervene in the Forest Service’s approval of plans to allow the venting of methane gas from “a large underground coal mine lying beneath the Grand Mesa, Uncompahgre, and Gunnison National Forests in Colorado.” Given the stated intent of a number of environmental groups to oppose coal projects on grounds including potential effects on climate, intervention decisions like the Tenth Circuit’s are an important tool for potentially affected companies to participate in those challenges.
WildEarth Guardians – an environmental group with a self-professed goal of “pounding away on the idea that the climate crisis mandates a serious curb in our use of fossil fuels” – sued the Forest Service and the Department of the Interior claiming that they violated NEPA by approving methane gas venting without evaluating: “(1) reasonable alternatives to methane venting, (2) measures to mitigate the environmental impact of methane venting, and (3) the global warming impact of methane venting.”
Continue Reading...Wal-Mart to develop index of product environmental impacts; supply chain likely to bear the costs
On July 16, Wal-Mart announced that it will require suppliers to answer environmental impact surveys about their products, as part of a “sustainable product index” initiative. The eventual plan is to label products with more consumer-friendly environmental information. Wal-Mart will utilize the supplier disclosures through the Carbon Disclosure Project (CDP), the world’s largest database of corporate environmental data. The CDP expanded to include suppliers’ data in January 2008. The questionnaire for suppliers contains fifteen questions regarding issues such as greenhouse gas emissions and water usage.
Although a relatively simple survey, Wal-Mart’s new requirement raises many issues, namely the balance between cost to businesses and transparency to customers. According to the CDP, companies bear the cost of compliance. However, the suppliers must now be responsible for collecting accurate and current data and responding truthfully to the surveys. Wal-Mart’s plan will affect over 100,000 suppliers. By creating this chain of reporting obligations, Wal-Mart is essentially regulating and creating new costs for suppliers.
Continue Reading...Despite lack of regulation, power plant permit applicant voluntarily agrees to limit greenhouse gases
On June 23, 2009, the Bay Area Air Quality Management District (BAAQMD) released for public comment a revised draft Clean Air Act permit for the Russell City Energy Center power plant, which – apparently for the first time ever – includes limits on the emission of greenhouse gases. Taking on what some might consider an unnecessary legal obligation, Calpine Corporation, majority owner of the plant to be built in Hayward, CA, agreed to limit heat input and mass emissions of carbon dioxide (CO2), methane (CH4), and nitrous oxide (N2O), expressed as “CO2-equivelents” (CO2E).
Continue Reading...New York City hybrid taxi plan winding its way through court
On June 22, Southern District of New York Judge Paul Crotty granted a preliminary injunction preventing enforcement of Taxi and Limousine Commission (TLC) regulations that attempt to convert the New York City taxi fleet to hybrid vehicles. The City of New York has now officially appealed the decision to the Second Circuit. The regulations are part of Mayor Bloomberg’s initiative to incentivize “greener” taxicabs. Notably, Judge Crotty rejected a related plan in October 2008. The previous plan created a miles-per-gallon rating for taxicab owners, and required the owners to purchase only taxis that had hybrid or clean-diesel engines. Shortly after Judge Crotty enjoined that plan, Mayor Bloomberg announced his intent to come up with an alternative.
Continue Reading...Will the CFTC oversee all US carbon-related trading?
On July 6, 2009, the Carbon Market Oversight Act of 2009 (CMOA) (S. 1399) was introduced in the Senate by Sen. Dianne Feinstein (D-Calif.) and Sen. Olympia Snowe (R-Maine). If passed, the CMOA would amend the Commodity Exchange Act to create federal oversight for markets that trade carbon allowances and carbon derivatives and grant full oversight authority for all carbon-market trading to the Commodity Futures Trading Commission (CFTC). Sen. Feinstein cited estimates from experts that the new carbon markets could generate “upwards of $100 billion to $370 billion in economic activity each year”. The bill has been referred to the Senate Committee on Agriculture, Nutrition, and Forestry.
The CMOA differs in several key respects from the American Clean Energy and Security Act of 2009 (ACES) (H.R. 2454), sponsored by Rep. Henry A. Waxman (D-Calif.) and Rep. Edward J. Markey (D-Mass.) and passed by the House on June 26, 2009. With respect to carbon-trading oversight, ACES divides authority between the CFTC and the Federal Energy Regulatory Commission (FERC), giving FERC oversight of cash-based allowances trading and the CFTC oversight of carbon futures and derivatives trading.
Continue Reading...Lawsuit challenges Bush-era energy corridor plan
Fourteen conservation groups and a Colorado county sued the federal government on July 7, alleging it violated environmental, property and energy laws in designating 6,000 miles of electricity transmission corridors on Western public lands. The lawsuit, filed in the US District Court for the Northern District of California, attempts to ensure that the designated corridors serve renewable sources more than fossil fuels and are built on environmentally sound locations.
The corridors were designated in January – just a week before the Bush administration left office. The plan covers 3.2 million acres of federal lands in 11 western states and creates a network of right-of-ways known as the “West-Wide Energy Corridor.” Plaintiffs argue that the Bush corridor plan ignores the renewable electricity standards that have been adopted by 9 of the 11 western states, which call for the increased use of the region’s wind, solar and geothermal resources. They allege that the corridors are convenient for moving electricity generated by coal plants and other fossil fuels, but do little to facilitate the production of renewable energy on public lands.
Continue Reading...Economic and Allocation Advisory Committee (EAAC) established to advise CARB regarding cap and trade program
Already sporting a Climate Action Team, Environmental Justice Advisory Committee, Economic and Technology Advancement Advisory Committee, and Market Advisory Committee, on May 22 the California Air Resources Board (CARB) established another committee known as the Economic and Allocation Advisory Committee (EAAC). The EAAC was established to advise CARB regarding the implementation of the California Global Warming Solutions Act of 2006 (AB 32) and the cap and trade system to be implemented to reduce California’s greenhouse gas emissions. Per AB 32, the cap and trade program is to be developed by January 1, 2011 and implemented in beginning of 2012.
Continue Reading...Georgia court ruling regarding Longleaf Energy coal plant reversed
The Georgia Court of Appeals last week reversed and remanded a Superior Court decision that would have required Best Available Control Technology (BACT) for carbon dioxide emissions from a proposed new coal power plant. The $2 billion Longleaf Energy Plant would be the first new coal plant in Georgia in more than two decades. GreenLaw, the Sierra Club and other environmental groups sought to block the plant’s construction based on the US Supreme Court’s ruling in Massachusetts v. EPA allowing greenhouse gases to be regulated under the Clean Air Act. Construction was halted in June 2008 when Fulton County Superior Court Judge Thelma Wyatt Cummings Moore ruled that federal air pollution laws require permits for all pollutants that could be regulated under the federal Clean Air Act - including carbon dioxide. Judge Moore’s ruling invalidated the Longleaf Energy Plant’s permit, and was the first time a judge applied the Massachusetts v. EPA carbon dioxide holding to emissions from an industrial source.
With federal legislation to regulate CO2 and other greenhouse gases pending, the Appeals Court held that Judge Moore's order would pre-empt federal efforts to regulate the gas, require the state to invent new regulations and ultimately lead to "a regulatory burden on Georgia never imposed elsewhere."
Continue Reading...Countdown to Copenhagen: The debate over technology transfers and the protection of intellectual property
The debate over the role of technology transfers in any future climate change treaty is set to intensify as the UN Climate Change Conference in Copenhagen approaches. On one side, there are those who believe that intellectual property (IP) rights should not stand in the way of international cooperation on climate change. For example, Secretary of Energy Stephen Chu has suggested that it may be necessary to “share all intellectual property as much as possible,” especially when it comes to certain vital technology like systems for capturing and storing carbon dioxide. A report issued this month by the Center for American Progress and the Global Climate Network warns: “Intellectual property (IP) law can also act as a barrier, and measures to encourage companies to use or relinquish IP (and in some circumstances to use the flexibility already available through the World Trade Organization’s TRIPs agreement) may be necessary.” The report recommends that “patents could be withdrawn if developers seek inappropriately high rents from their IP protection or use IP to restrict a technology’s use.”
In contrast, groups such as the Global Intellectual Property Center (GIPC) of the US Chamber of Commerce and the Coalition for Innovation, Employment and Development (IDEA), an alliance of multinational corporations, worry that the inclusion of technology transfer provisions in any climate treaty poses a serious threat to the protection of IP rights. For example, a report issued by GIPC warns that there is “a growing movement of anti-IP activists drawn from universities, foundations, non-governmental organizations (NGOs), ideologically driven interest groups, and even governments. These activities promote the idea that IP rights should not be recognized and that the protection of IP impedes progress and hurts the poor.” In an interview with the New York Times, the head of IDEA refuted the notion that IP rights are an obstacle to cooperation on climate change:
Continue Reading...Consumer groups call for FTC to use consistent and comparable fuel economy ratings in advertising guide
In April, the Federal Trade Commission (FTC) proposed amendments (74 Fed. Reg. 19,148) to its Fuel Economy Advertising Guide, in order to make it consistent with Environmental Protection Agency’s fuel economy ratings. A collective of consumer advocacy groups, including Consumer Federation of America, Consumer Action, and Consumers for Auto Reliability and Safety submitted their comments to the proposed revisions. Central to the consumer groups’ concerns is that advertising assist consumers in making informed decisions when buying vehicles. A significant factor in accomplishing this goal is to make published, consistent, and fully disclosed fuel economy ratings readily accessible to the consumer.
Continue Reading...IGCC aims for regulatory framework for green construction
On June 29, the International Code Council (ICC), in conjunction with the American Institute of Architects (AIA) and the American Society for Testing and Materials (ASTM) announced the launching of a new initiative, the International Green Construction Code (IGCC). The IGCC will be a model code for commercial and high performance buildings, with a framework based on environmentally sound standards. The goal is to create a sustainable regulatory framework that can be adopted into local, state, and federal law.
Continue Reading...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.
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