California requires greenhouse gas emissions to be part of environmental impact calculus
Greenhouse gas emissions are officially factors to be considered in determining the environmental impact of local projects in California. On December 30, 2009, the California Natural Resources Agency adopted amended guidelines to aid public agencies and developers in complying with the California Environmental Quality Act (CEQA). The guidelines expressly provide that greenhouse gas emissions are included in the environmental impact calculus under CEQA.
Continue Reading...EPA makes endangerment finding for greenhouse gases
In a bold move that attempts to force the Senate’s hand on climate change legislation, the U.S. EPA today announced a final rule that regulates greenhouse gases as an air “pollutant” under the federal Clean Air Act. In announcing the rule, Administrator Lisa Jackson justified the rule by stating that there is an overwhelming amount of scientific studies and evidence showing that greenhouse gas emissions are “deteriorating the natural balance in our atmosphere and hurting our climate.” EPA's decision to regulate greenhouse gases as a pollutant, however, has the potential to spin out of control, triggering other areas of the Clean Air Act, such as Prevention of Significant Deterioration and New Source Review standards, which could delay thousands of new construction projects nationally by imposing time-consuming and stringent permit requirements at a time of near historic unemployment.
Continue Reading...Environmental advocates challenge permit for Centralia coal plant
On November 2, EarthJustice filed a petition asking the EPA to block the renewal of an air pollution permit for TransAlta Corporation’s coal-burning power plant in Centralia, Washington. The Southwest Clean Air Agency (“SWCAA”) had renewed the permit on September 17, and on September 28, the Sierra Club and other likeminded groups appealed the renewal. The November 2 petition alleges violations of the federal Clean Air Act and state pollution laws. In particular, the petitioners oppose the permit because it does not contain emissions limits for greenhouse gases or mercury, and because it does not require the best controls for regional haze-pollution.
Continue Reading...New York Green Building Construction Act shifts responsibility for setting green building standards
New York Governor David Paterson recently signed into legislation the State Green Building Construction Act. The Act amends previous green building legislation by affording the Office of General Services (“OGS”) the responsibility of promulgating rules and regulations that comply with green building standards. The bill had passed unanimously in the New York Assembly on June 10 and by a large margin of 55-2 in the state Senate on July 10. The Act requires new construction and substantial renovations of state facilities to comply with green building standards.
Continue Reading...Public Citizen lawsuit seeks to require Texas Commission on Environmental Quality to regulate greenhouse gases
On Tuesday, the environmental group Public Citizen filed a lawsuit against the Texas Commission on Environmental Quality (“TCEQ”) seeking to require it to regulate carbon dioxide and other greenhouse gases. The lawsuit is believed to be the broadest attempt so far to force a state to control greenhouse gases through the permits granted by a state for power plants, refineries, factors, and similar industrial facilities. Public Citizen’s filing is most likely timed to coincide with Congress’ consideration of landmark climate change legislation and the December 2009 United Nations Climate Change Conference in Copenhagen.
Continue Reading...Petition asks EPA to regulate GHG emissions from "factory farms" under Clean Air Act
The Humane Society and a coalition of other environmental groups have filed a petition with the Environmental Protection Agency (EPA) that seeks to classify factory farms as a source of greenhouse gases and regulate them accordingly under the Clean Air Act. Petitioners allege that concentrated animal feeding operations (CAFOs) emit excessive amounts of methane and nitrous oxide, both greenhouse gases. According to the petitioners, these emissions are the result of farm animals being raised in small spaces in increasingly large numbers at a few facilities.
Continue Reading...US State Department sued over permit approval for "Alberta Clipper" tar sands oil pipeline
Four environmental and Native American advocacy groups have filed suit challenging the US State Department’s August approval of Enbridge Energy’s plans to build the Alberta Clipper tar sands pipeline. The pipeline would pump 450,000 barrels of tar sands oil per day from northern Alberta to Superior, Wisconsin for refining. In their complaint, the plaintiff groups claim that the State Department and the U.S. Army Corps of Engineers violated the US National Environmental Policy Act (NEPA) by failing to adequately analyze the indirect and cumulative impacts of the proposed pipeline. They further argue that the State Department’s approval was unconstitutional because Congress has not fully delegated its authority to regulate pipelines to the Executive Branch. Plaintiffs have requested preliminary and permanent injunctions to halt the construction of the pipeline.
Continue Reading...Lawsuit targeting Dominion Virginia coal-fired power plant forces revised permit, but GHG emissions challenge unsuccessful
A recent victory for environmental activists in a lawsuit against Dominion Virginia Power may turn out to be less significant than it first appeared. The case, filed in Richmond Circuit Court by the Wise Energy for Virginia Coalition, challenged the Maximum Achievable Control Technology (MACT) permit granted to Dominion. The permit was to allow the construction of a coal-fired power plant in southwest Virginia. While the court invalidated the permit on the grounds that it allowed an escape hatch based on cost and feasibility in the mercury emission limits, the portions of the permit relating to greenhouse gas emissions, which were also challenged in the complaint, were found valid by the court. Subsequent to the ruling, on September 2, 2009, the Virginia Department of Environmental Quality approved an amended air permit for the plant, including stringent new mercury emissions limits without the objectionable escape hatch.
Continue Reading...Lawsuit alleges California's cap-and-trade plan fails to minimize GHG emissions
A lawsuit by several environmental advocacy groups against the California Air Resources Board (CARB) (09-509562) continues to wend its way through the San Francisco Superior Court, with a scheduled hearing on the Environmental Defense Fund’s motion to file an intervening complaint being the next step in the litigation. The complaint alleges that the agency’s plan fails to minimize greenhouse gas emissions and protect vulnerable communities, which contravenes the Global Warming Solutions Act of 2006 (AB 32). The complaint also alleges violations of the California Environmental Quality Act (CEQA).
The lawsuit has garnered significant attention because of its focus on an emissions trading program proposed by the agency. The lawsuit could be viewed as foreshadowing similar challenges to federally implemented cap-and-trade programs. Even if cap-and-trade and similar programs win the approval of mainstream environmental activists, they can still face major legal challenges by smaller groups.
Continue Reading...Tennessee Valley Authority ordered by EPA to revise permit for coal-fired plant
The US Environmental Protection Agency has sided with environmental groups, including the Sierra Club and the Center for Biological Diversity, and ruled that a permit for a Tennessee Valley Authority coal-fired plant in Drakesboro, Kentucky failed to account for air pollution (specifically the greenhouse gas nitrogen oxide) in violation of the Clean Air Act. Parties have until October 9 to seek judicial review of the EPA’s order, or state regulators will have until October 27, 2009 to submit a revised permit in response.
Continue Reading...Ohio Edison agrees to repower coal plant with biomass, reducing carbon emissions
Ohio Edison Company has agreed, as part of a consent decree, to retrofit one of its coal-fired power plants to use primarily biomass. The agreement was reached in federal court in the Southern District of Ohio and announced by the US Justice Department and the US Environmental Protection Agency last month. The agreement originates from a lawsuit filed in 1999 against Ohio Edison for violations of the Clean Air Act. The original lawsuit was resolved with a consent decree in 2005, which mandated that the company reduce the emissions of sulfur dioxide (SO2) and nitrogen oxide (NOx). In order to accomplish this goal, the 2005 consent decree left Ohio Edison with only three options: close the plant, install a scrubber or repower with natural gas. The new, modified consent decree, however, opts for what the parties believe will be a more cost-efficient and environmentally sound fourth option.
Continue Reading...NYU Law School sponsors cap-and-trade petition; proposes market-based approach to controlling motor vehicle emissions
The Institute for Policy Integrity (IPI), a nonprofit advocacy think-tank organization at NYU School of Law, has filed a petition for rulemaking with Lisa P. Jackson, the Administrator of the EPA. The petition proposes a cap-and-trade system to control greenhouse gas emissions from fuels used in the transportation sector. The petition is apparently the first to address emissions from motor fuels. The comprehensive proposal encompasses emissions from motor vehicles, non-road vehicles, and aircraft. IPI emphasizes the benefit of a market-based approach to emissions control, as opposed to a “command-and-control” system. The petition reflects the IPI’s lengthy April 2009 report that assessed the EPA’s options for regulating greenhouse gas emissions.
Continue Reading...National Research Council recommends use of "full fuel cycle" measurements in setting appliance efficiency standards
The National Research Council (NRC), part of the National Academy of Sciences, recently released a report advising the Department of Energy (DOE) to update its criteria for setting appliance energy-efficiency standards. The new analysis would incorporate energy consumed in producing and distributing different fossil fuels (“full fuel cycle” measurements) and include the efficiency of the fuel source used to operate the appliance. This type of analysis is especially useful in appliances that can be powered by more than one fuel source, like water heaters, furnaces, and heat pumps. The report states that full-fuel-cycle measurements would provide consumers with a more complete picture of product efficiency, energy consumption, and environmental impacts.
Continue Reading...Chamber of Commerce seeks public hearing on scientific evidence of climate change; EPA calls request a "waste of time"
Yesterday the Los Angeles Times reported that “[t]he US Chamber of Commerce, trying to ward off potentially sweeping federal emissions regulations, is pushing the Environmental Protection Agency to hold a rare public hearing on the scientific evidence for man-made climate change.” In its blog, the US Chamber highlighted the LA Times story on the Chamber’s “efforts to force transparency from the EPA on their finding that greenhouse gases emissions are a danger to public health and welfare.” According to William Kovacs, the Chambers’ Senior Vice President, the Chambers’ June 23, 2009 Petition for EPA to Conduct Its Endangerment Finding Proceeding on the Record Using Administrative Procedure Act (APA) §§ 556 and 557 would put “the science of climate change on trial.”
Continue Reading...API August studies indicate adoption of Waxman-Markey bill will negatively impact US refining sector and economy
American Petroleum Institute (API) published an August 21, 2009 study by EnSys Energy, entitled “Waxman-Markey Refining Sector Impact Assessment.” Based on its Refining Sector Assessment, EnSys concluded that by 2030, the US refining throughput will be reduced by 4.4 million barrels per day with refineries located in Gulf Coast and California being hardest hit. EnSys also predicts that by 2030 the US decrease in throughput will be balanced by increases of 3.3 mgd in world refining throughput. EnSys predicts that these impacts will correspond with additional negative impacts including reduced annual US refining investments by up to $89.7 billion, reduced refinery utilization (63.4% from 83.3%) and decreases in unemployment. These reductions would parallel increases in capacity, investment and employment at non-US refineries. Given these economic “translocations” a similar translocation of GHG emissions is predicted by EnSys in that the GHG emissions reductions realized in the US would be offset by increases in GHG emissions abroad.
Continue Reading...Washington Post weighs in on continuing debate over cap and trade vs. carbon tax
Today’s Washington Post (Post) published an Editorial entitled, “Cap and Rage” in which it claims that that Washington politics surrounding health care reform may doom the Senate’s ability to “tackle cap and trade legislation” in the fall. The editorial remarks that the House barely passed the American Clean Energy and Security Act in June and the Senate is having difficulty trying reconcile its members’ differing opinions on aspects of the bill ranging from the amount of allowances to provide various carbon emitting industries to whether cap and trade legislation should be stripped from the bill entirely. The Post editorial offers three reasons to support a carbon tax as an alternative to a cap and trade approach: 1) it is a simpler approach to devise and implement; 2) it requires no new bureaucracy: and 3) the revenue can be rebated to the taxpayer using different approaches.
Continue Reading...Recent DC Circuit decision limits standing of private parties to sue over climate change
The Court of Appeals for the District of Columbia Circuit recently issued an opinion in Center for Biological Diversity v. United States Department of the Interior (“CBD”). In the suit, three non-profit activist groups and one tribal government sued the Department of the Interior for failing to account for climate change when deciding to grant oil and gas leases off the Alaska coast. The ruling creates a hurdle for parties filing climate change based lawsuits. In the opinion, the DC Circuit holds that the petitioners lacked “substantive” standing to pursue their National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) claims, though it did find that they had established procedural standing. The ruling also sets out specific limits on the application of the Supreme Court’s most recent decision on the regulation of greenhouse gases, Massachusetts v. EPA.
Continue Reading...Climate change and corporate responsibility: are there long-term financial incentives for environmental reform?
The Canadian Institute of Chartered Accountants (“CICA”), through its Risk Management and Governance Board, has commissioned a briefing entitled “Climate Change Briefing: Questions for Directors to Ask”. The stated purpose is to “increase awareness among Canadian directors about the business impacts and related governance issues resulting from climate change.” The result is a guide that focuses on business strategy, risk management, and structure.
The briefing addresses five major areas for director improvement: understanding of business issues; influence on risk management and strategy; impact on financial performance; external communications and disclosures; and the adequacy of information systems and internal controls. For each of the sections, the briefing provides relevant questions for directors to ask themselves regarding their business.
Continue Reading...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...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...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...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...Polar bear "special rule" remains; trend toward climate change "regulation by litigation" likely to follow suit
"The Endangered Species Act is not the proper tool to deal with a global issue - global warming," said Secretary of the Interior Ken Salazar on May 8, in announcing that the administration would retain the Bush era “special rule” under section 4(d) of the ESA, aimed at protecting the polar bear. Despite Salazar’s proclamation, however, environmental advocates are increasingly predicating climate change-based lawsuits on the ESA. Lawsuits seeking protection for specific animals, such as the Pika and the Alaskan Kittlitz’s Murrelet, focus on the indirect effects of global warming on those animals. Other lawsuits use the ESA as a platform to advocate against climate change on a much more general level. The ESA lawsuits are part of a larger trend toward “regulation by litigation,” in which environmental advocates have sought to regulate greenhouse gas emissions through lawsuits based on a host of US laws, such as the Energy Policy and Conservation Act, the Clean Air Act, the Energy Policy Act of 1992, the Administrative Procedure Act, the National Environmental Policy Act (“NEPA”), the Federal Land Policy and Management Act (“FLPMA”), and the Mineral Leasing Act (“MLA”).
Continue Reading...California court rules Wal-Mart's failure to consider greenhouse gas impact significant renders environmental impact report inadequate
Wal-Mart’s plans to build a “supercenter” near Joshua Tree National Park have been put on hold pending revisions of the Environmental Impact Report (EIR) submitted by the company. In a lawsuit filed by the Center for Biological Diversity (CBD), a California Superior Court Judge last week ruled that Wal-Mart’s EIR was inadequate because it failed to consider the greenhouse gases (GHGs) that the project will generate as a significant environmental impact. The ruling prevents Wal-Mart from proceeding with its plans unless and until the lead agency (the City Council of the Town of Yucca Valley, CA) revises the EIR to include a discussion of GHG impacts and mitigation measures.
The ruling is notable for several reasons:
Continue Reading...CBD lawsuit challenges Obama's new fuel economy standards
The Obama administration recently announced new fuel economy standards, which would push average fuel economy requirements to 27.3 mpg for all vehicles. This represents only a 7% increase from 2010. Under the new regulations, passenger cars would have to reach 30.2 mpg and light trucks 24.1 mpg. This modest change was not enough for environmental group the Center for Biological Diversity (CBD), which has challenged the requirements by filing a lawsuit against the National Highway Traffic Safety Administration (NHTSA) and the Department of Transportation in federal court.
CBD has asked the Ninth Circuit to find that the administration violated the Energy Policy and Conservation Act which requires that miles-per-gallon standards be set at the maximum feasible level. The CBD alleges that the Obama rule is much lower than current standards in Europe, Japan, China, and other countries, and is thus clearly not at the maximum feasible level.
Continue Reading...EPA's Proposed new National Renewable Fuel Standard (RFS-2) - the end of corn-based ethanol?
*Co-authored with Amy Garber.
The Obama Administration proposed new standards for biofuels this week, triggering a searing debate between ethanol supporters and the Environmental Protection Agency (EPA) over the scientific assumptions on how to consider the effect of indirect land use changes when evaluating greenhouse gas (GHG) reductions from biofuels. If finalized, the rule could cost the grain ethanol industry billions and ultimately give advanced biofuels a clear economic lead over biofuels produced from corn and other grain.
On May 4, EPA released its proposed revision to the National Renewable Fuel Standard (RFS-2) that establishes new volume requirements for biofuels which must be used in transportation fuels each year to meet the requirements of the 2007 Energy Independence and Security Act (EISA). Included for the first time in an RFS rulemaking is EPA’s required estimate of the “life-cycle greenhouse gas emissions” that various classes of biofuels (renewable fuel, advanced biofuel, biomass-based biofuel and cellulosic biofuel) emit from production through end use. These lifecycle estimates are economically vital to biofuel producers because the RFS-2 volume mandates can be met only through the use of those renewable fuels that meet lifecycle GHG reduction thresholds when compared to the baseline lifecycle emission of petroleum fuels. At controversy is the particular impact that EPA’s proposal will have on the production of grain-based ethanol. The RFS-2 proposes that because of international indirect land use changes corn and other grain ethanol produce weak GHG emission reductions, particularly when compared with second-generation biofuels.
Continue Reading...Energy companies settle Clean Air Act claims by agreeing to spend $6M on pollution reducing technology
Six energy companies have agreed to spend nearly $6.4 million to install pollution reducing technology to settle claims that they violated the Clean Air Act. Lawyers with the Department of Justice filed the proposed consent decrees with the federal district court in Salt Lake City on Friday, April 17th. While not admitting to any Clean Air Act violations, the companies also agreed to pay a combined $632,000 in civil penalties.
The companies, Bill Barrett Corp.; Miller, Dyer & Co.; Whiting Oil and Gas Corp.; Wind River Corp.; XTO Energy Inc.; and Dominion Exploration and Production, Inc., operate natural gas production facilities including wellheads, pipelines, and compressor stations on remote parts of the Uintah and Ouray Indian Reservations in Utah. According to complaints filed by the Justice Department concurrently with the proposed consent decrees, the companies violated the CAA by exceeding emissions standards for hazardous air pollutants, failing to monitor and report those emissions, and failing to obtain proper permits in connection with their natural gas production operations.
Continue Reading...EPA seeks remand of Desert Rock coal fired power plant permit to consider gasification technology as BACT
Despite granting a permit for the proposed Desert Rock coal fired power plant in New Mexico less than a year ago, the US Environmental Protection Agency (“EPA”) recently moved its Environmental Appeals Board (“EAB”) to remand the permit to allow the EPA to reevaluate its decision. In particular, the EPA wants to consider requiring the plant, which would be built by Desert Rock Energy Co., to use low-carbon dioxide gasification technology. The technology gasifies coal before it is burned, resulting in lower carbon dioxide emissions than conventional coal burning technology.
Continue Reading...California passes Schwarzenegger's Low Carbon Fuel Standard
On Thursday California Air Resources Board (“CARB”) adopted a regulation implementing Governor Schwarzenegger's Low Carbon Fuel Standard (“LCFS”) making it the first state in the nation to mandate carbon-based reductions in transportation fuels. This “new low-carb” standard hopes to officially slash from California’s diet the greenhouse gas emissions blamed for climate change. Specifically, the new standard is expected to significantly reduce the state’s carbon emissions waistline by trimming California transportation fuels by 10% and replacing 20% of the petroleum fuels burned by California cars by the year 2020. The new low-carbon standard was recently proposed as part of the implementation of the California Global Warming Solutions Act (AB 32).
Continue Reading...California OPR issues proposed amendments to CEQA guidelines regarding greenhouse gases
On April 13, 2009, the Governor’s Office of Planning and Research (“OPR”) submitted to the Secretary for Natural Resources its proposed amendments to the California Environmental Quality Act (“CEQA”) Guidelines for greenhouse gas emissions, as required by Senate Bill 97. These proposed CEQA Guideline amendments are intended to provide public agencies guidance when analyzing and mitigating the effects of greenhouse gas emissions in draft CEQA documents. The California Natural Resources Agency will conduct formal rulemaking in 2009, prior to certifying and adopting the amendments, but must certify and adopt the guidelines on or before January 1, 2010.
Continue Reading...Obama administration ups the ante for climate change legislation by proposing regulation of greenhouse gases under the Clean Air Act
The US Environmental Protection Agency (EPA) made a game-changing move last Friday in the policy debate over climate change. EPA declared in a proposed rule released on April 17 that greenhouse gases endanger human health and welfare and that greenhouse gas emissions from new motor vehicles and new motor vehicle engines contribute to climate change. The proposal is the Obama Administration’s response to the 2007 US Supreme Court decision in Massachusetts v. EPA, wherein the Court held that greenhouse gases are “air pollutants” under the Clean Air Act and remanded the matter to EPA to set forth a reasoned explanation for its decision as to whether to regulate greenhouse gasses.
In its rulemaking proposal, EPA answered the Supreme Court ruling by providing the Administration’s rationale for regulating greenhouse gases: that climate change is the “unambiguous result of human [greenhouse gas] emissions” and that the “observed” adverse effects of climate change include degraded air quality, greater sea level rise, increased drought, and harm agriculture, wildlife and ecosystems. If the proposal becomes a final rule, EPA would define “air pollution” to include “the mix of six key directly emitted and long lived greenhouse gases: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydroflurocarbons (HFCs), perflurocarbons (PFCs), and sulfur hexafluoride (SF6).”
By taking the administrative route to regulate greenhouse gases through the existing Clean Air Act, the Administration is gambling in high stakes poker. Similar endangerment language to Section 202 (a) is present in many other sections of the Clean Air Act including Section 108 (NAAQS), Section 111 (NSPS), Section112 (NESHAP), Section 213 (Non-road vehicle emissions) and Section 231 (Aircraft emissions). The proposed endangerment finding could well lead to a cascade of unintended regulation that includes a presumption of an endangerment finding under multiple provisions of the Clean Air Act, a corresponding duty to regulate new and existing stationary sources, and a duty to permit greenhouse emissions from as many as a million or more new sources including numerous construction projects selected to be built pursuant to the Stimulus Package. This would create what Rep. John Dingell (D-Mich.), a 30 year veteran of Clean Air Act legislation, has called "a glorious mess."
Continue Reading...United Nations Human Rights Council resolves to conduct panel on human rights and climate change
At the tenth session of the UN Human Rights Council, from March 11-27, the Council passed Resolution L30, which calls upon the Council to hold a panel discussion on the relationship between human rights and climate change at the eleventh session. The Maldives, an island nation southwest of India, proposed Resolution L30. The Maldives has been emerging as a proponent of environmental protection, as evidenced by a July 2007 speech of its President, Abdul Gayoom. The country recently announced a dedication to be carbon neutral by the year 2020. Since 2007, the Maldives has been urging the United Nations to globally address the issue of climate change.
Continue Reading...Professor advocates new nuclear waste policy
On March 27, 2009, Professor Richard Stewart of NYU presented his recent paper, entitled “US Nuclear Waste Law and Policy: Fixing a Bankrupt System” at the US Capitol Visitor Center. Steve Kraft, Senior Director of used fuel management at the Nuclear Energy Institute (NEI), Tom Cochran, the director of the nuclear program of the Natural Resources Defense Council (NRDC), and Charles Powers (moderator), a professor at Vanderbilt University also provided comments on this paper. Stewart’s paper advocates a major shift in the way the US has thought about nuclear waste policy since the 1970s. He provides five steps towards creating a more effective nuclear policy: 1) rethinking the ethics of nuclear waste; 2) creating a Nuclear Waste Policy Commission; 3) creating new waste management and siting agencies and eliminating regulatory duplication; 4) a risk-based approach to categorizing nuclear waste (as opposed to process-based approach); and 5) a flexible and adaptive waste management strategy. The fundamental tenants of his plan are garnering public support and acceptance and using nuclear waste reprocessing as an alternative to disposal.
Continue Reading...RAT Board to monitor spending of stimulus plan dollars for fraud, waste and abuse
The stimulus package, also known as the American Recovery and Reinvestment Act, signed into law on February 17, 2009, includes a number of initiatives aimed at addressing climate change, including investment in renewable energy. However, companies receiving monies from the stimulus package for clean tech, renewable energy, and other climate-related projects will be subjected to heightened scrutiny, transparency in spending and accountability. Along with the billions of dollars allocated to energy and the environment, the Act created the “Recovery Accountability and Transparency Board,” commonly referred to as the “RAT” Board, which has been given the authority to root-out fraud, waste and abuse in the expenditure of stimulus dollars. Indeed, of the $787 billion to be plowed into the economy, $350 million was allocated to the RAT Board and the offices of Inspector General for many of the major federal agencies.
Continue Reading...Major Economies Forum on Energy and Climate to address emissions targets, clean energy tech, more
President Obama has announced the launch of the Major Economies Forum on Energy and Climate. A preparatory session will be held at the Department of State in Washington, DC on April 27-28 and further talks will take place in La Maddalena, Italy in July. The goal of these meetings is to lay the diplomatic foundation for a successful outcome at the UN climate change negotiations to be held in Copenhagen, Denmark in December.
Continue Reading...FTC updating Green Guides, which govern environmental building claims
Original post available at www.constructionweblinks.com.
The Federal Trade Commission’s Green Guides, which govern environmental marketing claims, will be updated this year. The Green Guides are the FTC’s primary tool for preventing consumer deception in the ever-expanding arena of environmental claims. The manual was last updated in 1998. This year’s version will clarify the legal parameters for environmental promises made to consumers and business clients.
The Green Guides are intended to prevent “greenwashing” – claims of environmental superiority or benefit that are untruthful or misleading. Companies may engage in greenwashing in an effort to sell more products or to bolster their reputation with consumers.
Waxman-Markey climate change and energy bill faces significant political hurdles
On March 31, 2009, House Energy and Commerce Committee Chair Henry Waxman (D-MA) and Energy and Environment Subcommittee Chair Ed Markey (D-MA) unveiled the American Clean Energy and Security Act of 2009 (ACES). Although the legislation sketches a skeletal framework for carbon regulation, it is conspicuously silent on several key issues. Most importantly, the bill does not discuss what percentage of allowances, if any, will be auctioned or provided free of charge; nor does it specify whether, to what extent, and in what form, the billions in revenue generated by allowances will be returned to US taxpayers. These critical questions have been tabled for committee deliberation.
Reps. Waxman and Markey have fast-tracked ACES to be out of committee by Memorial Day. This schedule is consistent with the administration’s larger objective of signing a comprehensive climate and energy bill into law in advance of the December 2009 UN Climate Change Conference in Copenhagen. With key questions yet to be addressed and stark policy differences between supporters and detractors of the draft bill, some are skeptical whether the US can agree on comprehensive climate legislation before the Copenhagen summit.
Continue Reading...New York's participation in RGGI to be reconsidered
New York Governor David Paterson plans to reconsider the rules that enable New York’s participation in the Regional Greenhouse Gas Initiative (RGGI), according to a recent report in the New York Times. Power plants have long contended that the RGGI system of auctioning emission allowances puts companies who are locked into long term contracts at a serious disadvantage. Such generators, argue representative groups such as the Independent Power Producers of New York (IPPNY), cannot recoup the extra costs associated with purchasing allowances. Similar concerns prompted Indeck Energy in January to file a lawsuit challenging New York’s authority to implement RGGI, and alleging that the regulations would essentially impose an unauthorized tax.
Continue Reading...California proposes regulations implementing Low Carbon Fuel Standard for transportation fuels
At its upcoming April 23-24 hearings, the California Air Resources Board (CARB) will consider adoption of recently proposed regulations for implementing a Low Carbon Fuel Standard pursuant to an Executive Order signed by Gov. Arnold Schwarzenegger in 2007. The proposed regulations, part of the implementation of the California Global Warming Solutions Act (AB 32) would require a 10 percent reduction in transportation fuel emissions by 2020, which would be accomplished by requiring regulated parties to incrementally reduce the carbon intensity of fuels sold in California. CARB predicts this will require 20 percent of fuel currently used statewide to be replaced with alternative energy sources (e.g. biofuels, electricity, and hydrogen). CARB Chairwoman Mary Nichols described the proposed rule as a “comprehensive, cradle-to-grave approach” for spurring competition and innovation in the alternative energy market.
Continue Reading...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...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...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...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.
Continue Reading...New York City strengthens anti-idling laws, reflecting nationwide trend of state and local idling regulation
On February 10, 2009, New York Mayor Michael Bloomberg signed legislation reducing the amount of time that vehicles can idle near schools and expanding New York City's enforcement of idling laws. Introductory Number 631-A reduces the amount of time that non-emergency vehicles can idle adjacent to schools from three minutes to one minute. In addition, the legislation requires the Environmental Control Board and Department of Finance to submit annual reports on the number of idling violations issued and the total value of penalties assessed. Introductory Number 40-A authorizes the Department of Parks and Recreation and the Department of Sanitation to enforce idling laws (enforcement was previously limited to the Department of Environmental Protection and the Police Department). The new legislation also gives civilians the ability to report truck idling violations. (Previously, citizens were entitled to report noncompliant buses only.) Hearings were recently held on a third piece of potential legislation, known as Proposed Introductory Number 881-A, which, if passed would require the city to implement technology to allow traffic enforcement agents to issue idling tickets via their hand-held computers.
Continue Reading...Human rights-based climate change litigation - a new tool for environmental advocates?
A January 15 UN report on the relationship between climate change and human rights has concluded that while, in theory, global warming may infringe on certain fundamental human rights, individual human rights-based climate lawsuits are not likely to be successful. Nonetheless, environmental advocates may soon be taking up these issues in the courtroom, in part because litigation can bring mass public awareness to climate change issues. This increased exposure may apply added pressure to shape government policy, but is climate change an issue for courts to address?
Continue Reading...Kansas judge takes Sunflower arguments under advisement; Legislature may moot ruling
*Updated 2/23/09 - added link to administrative proceeding opinion.
Oral arguments on a motion filed by Governor Kathleen Sebelius to dismiss a lawsuit filed by Sunflower Electric Power Co. were heard earlier this month in US District Court for the Federal District of Kansas. That ruling may be moot, however, as the Kansas Legislature is considering a bill (SB 265) that would limit the state’s environmental regulators from enforcing air quality standards in excess of federal limits. The legislature also considered a proposal to allow Sunflower to resubmit its request for air quality permits to build the new coal-fired plants. The Republican-led legislature passed three bills previously permitting the construction of the plants to go forward, but the Governor rejected the bills and the legislature failed to override the Governor’s veto.
Continue Reading...New EPA Administrator partially grants Sierra Club petition toward Agency regulation of CO2 in PSD permits
On February 17, 2009, US EPA Administrator Lisa Jackson partially granted a petition by the Sierra Club to reconsider the prior EPA Administrator’s late 2008 interpretative memorandum excluding carbon dioxide, and other monitored but uncontrolled pollutants, from Prevention of Significant Deterioration (“PSD”) permit program requirements. While Administrator Jackson opted against a complete stay of the memorandum, she announced her intention to open a public comment period regarding the PSD issue. This clearly is a move by EPA toward potential regulation of carbon dioxide as a “pollutant” under the Clean Air Act, which the Bush Administration had infamously resisted. A Sierra Club organizer was quoted as saying that the Jackson letter “should halt virtually all new coal plant development until the EPA decides how to handle global warming pollution.”
Continue Reading...Antelope Creek tar sands oil project challenged by environmental groups
The Sierra Club and the Indigenous Environmental Network have filed a complaint in a Utah federal court alleging that the proposed Antelope Creek tar sands oil project will disrupt wildlife, poison and dry up rivers, and harm human health with hazardous air pollutants – including greenhouse gas emissions. Specifically, the complaint states that the Department of the Interior and other defendants violated the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA) by failing to prepare an Environmental Impact Statement (EIS) and failing to allow for public participation in the agency’s decision. The complaint alleges that the project anticipates the construction of 288 closely spaced new oil wells and will employ experimental thermal recovery methods. According to the Sierra Club, greenhouse gas emissions from tar sands production are three times those of conventional oil and gas production.
Continue Reading...Highwood coal-fired power plant suspended in favor of natural gas
In a sign of the changing times, a group of Montana electric utilities for the first time has suspended plans to build a coal-fired power plant in favor of immediate plans to build a natural gas power plant that would emit fewer greenhouse gases. The Southern Montana Electric Generation & Transmission Cooperative (“SME”) early last week announced that it would halt plans to build its $900 million 250-megawatt coal-fired Highwood Generating Station. Instead, construction will continue with a different fuelbase: natural gas. SME has decided to build a 120-megawatt natural gas-fired power plant in addition to a few wind towers in place of the coal-fired plant.
Continue Reading...Center for Biological Diversity to devote $17 million to climate litigation and advocacy over five years
The Center for Biological Diversity (CBD) today announced the launch of its San Francisco-based Climate Law Institute. The stated mission of the Institute is to bring a strong climate focus to the Center’s five program areas -- Biodiversity, Public Lands, Oceans, Urban Wildlands, and International – in what the Center calls a “coordinated strategy to protect species and ecosystems from the sweeping and potentially catastrophic effects of warming.” The Center states that it is “dedicating” $17 million to this effort over the next five years.
What does the Center mean by a “coordinated strategy”? Apparently more climate-based litigation, and more administrative and regulatory action designed to serve as bases for additional climate-based litigation. The Institute states it will accomplish its mission through: strategic, creative litigation; scientific petitions to protect species; administrative and policy advocacy; and public education and outreach.
Continue Reading...Center for Biological Diversity follows ESA climate change rulemaking petition with litigation
*Co-authored with Amy Garber.
On January 15, 2009, the Center for Biological Diversity (“CBD”) filed a complaint in the US District Court for the District of Columbia against the US Environmental Protection Agency (EPA) and the Interior, Commerce, Agriculture, Transportation, and Defense Departments, seeking declaratory and injunctive relief. In its complaint, CBD claimed that those federal agencies had violated the Administrative Procedure Act by failing to make merits determinations within a “reasonable” amount of time in response to a petition filed by CBD on February 1, 2007. The petition, entitled “Endangered Species and Global Warming Initiative: An Administrative Procedure Act Petition to Enhance the Recovery of Endangered Species and Address the Growing Impacts of Global Warming on Imperiled Species,” proposed a series of specific modifications to federal regulations at 50 C.F.R. Parts 17, 402, and 424 to require analysis and mitigation of federal actions “that impact the relationship between global warming and endangered plants and animals.”
Continue Reading...Obama appointees include dedicated climate change advisors
All indications are that addressing climate change will be a top priority for the Obama Administration. In addition to reversing the previous administration’s course on the issue of state-level GHG emissions standards, President Obama has also made a statement by appointing numerous advisors with backgrounds in climate change, including several persons appointed to posts specifically related to climate change. These staffing choices reinforce the policy actions taken by the administration in its first weeks in office. Taken as a whole, all signs point to increased regulation of GHG emissions and other activities related to climate change – either through new national legislation, federal waivers for regulation at state/regional levels, or application of existing federal legislation (such as ESA and NEPA) to the climate change arena. The challenge for Obama’s climate team (discussed below) will be balancing the interests of environmental advocates concerned about climate change, and the interests of corporations concerned about increased operational expenses in a slumping economy.
Continue Reading...EPA to reconsider California emissions waiver request
On Friday, the US Environmental Protection Agency formally agreed to reconsider California's request for a waiver from the Clean Air Act -- specifically, the state's request for authority to impose its own state regulations on vehicles in an effort to reduce greenhouse gas emissions. One of President Barack Obama's first actions when he took office included signing an order requesting that the EPA reconsider the Bush Administration's rejection of California's request. New EPA Administrator Lisa Jackson signed the notice on Friday officially reopening the comment period on California's waiver request. Jackson said the Clean Air Act gives EPA the authority to allow California to adopt its own emissions standards for motor vehicles due to the seriousness of the state's air pollution challenges. However, automobile manufacturers prefer a single, uniform standard, as opposed to different standards in different states or regions.
Continue Reading...Friends of Earth climate change lawsuit nearing settlement
*Updated 2/9/09 - added links to text of proposed settlement agreements.
A groundbreaking global warming lawsuit is now on the verge of settlement in the Northern District of California. The lawsuit, Friends of the Earth, Inc., et al. v. Spinelli (Case No. 3:02-cv-04106, sometimes referred to as Friends of the Earth v. Watson), was originally filed in 2002 against the Overseas Private Investment Corporation (“OPIC”) and the Export-Import Bank of the United States (“Ex-Im”). The Plaintiffs – Friends of the Earth, Inc. (a non-profit environmental advocacy organization), Greenpeace, Inc. and the cities of Boulder (CO), Oakland (CA), Arcata (CA) and Santa Monica (CA) – claimed that OPIC and Ex-Im – federal agencies providing loans, insurance or other assistance for fossil fuel projects around the globe – funded projects without complying with the requirements of the National Environmental Policy Act (“NEPA”).
Text of proposed agreements:
The case originally made headlines in August, 2005 when the Court determined that the Plaintiffs had the legal right to bring suit against OPIC and Ex-Im for funding projects in other areas of the world because United States cities could be affected by global warming effects from these projects. “This was the first court opinion that said greenhouse gas emissions in Chad and Saudi Arabia could have an effect on the environment of the United States,” said Sue Ellen Harrison, the assistant city attorney for plaintiff city Boulder, Colorado.
Continue Reading...Environmental group sues Bureau of Land Management for failing to consider greenhouse gas emissions in granting oil and gas leases
The Western Environmental Law Center (“WELC”) has filed suit in New Mexico federal court against the Bureau of Land Management (“BLM”), alleging that the agency’s 2008 grant of 92 oil and gas leases in New Mexico violated federal law by failing to address greenhouse gas emissions. The complaint also alleges that the Bureau failed to adopt policies designed to make drilling more efficient. This lawsuit, along with a similar complaint filed by WELC in Montana in December, is among the first to use greenhouse gas emissions as a basis for challenging oil and gas leases in the west. Named plaintiffs in the suit are Amigos Bravos, the Natural Resources Defense Council (NRDC), and members of the Oil and Gas Accountability Project.
Continue Reading...Indeck Energy files lawsuit challenging New York's authority to implement RGGI
Indeck Energy has filed suit against several New York state agencies over their participation in the Regional Greenhouse Gas Initiative (RGGI), a carbon trading system between 10 Northeastern states designed to limit greenhouse gas emissions by power plants. Indeck Energy is the owner of Indeck-Corinth Generating Station, a combined-cycle natural gas plant in upstate New York. RGGI began its first compliance period on January 1, 2009. The Indeck lawsuit alleges that the agencies did not have authority from the New York legislature to implement the system. The complaint further alleges that the multi-state RGGI compact is unconstitutional without Congressional authorization. The complaint names Governor David Paterson, the New York State Department of Environmental Conservation, the New York State Energy Research and Development Authority, and the New York State Public Service Commission as defendants.
Continue Reading...Appeals pending for public nuisance climate change litigation
Appeals are pending in three cases with significant implications for tort-based climate litigation. Connecticut v. American Electric Power Company, Inc.; Comer v. Murphy Oil Co.; and California v. General Motors Corp. – all dismissed in district court on political question grounds – are pending in the Second, Fifth, and Ninth Circuits, respectively. As the legislative and executive branches mobilize to address climate change issues under the Obama administration, activity in the judicial branch may also impact the climate law landscape.
Continue Reading...Georgetown Law professor forecasts "A Climate Agenda for the New President"
After yesterday’s two Presidential Memoranda regarding the Energy Independence and Security Act of 2007 and the State of California Request for Waiver Under 42 U.S.C. 7543(b), the Clean Air Act it seems like someone in the Administration must have gotten a hold of Lisa Heinzerling’s recent Michigan Law Review commentary: A Climate Agenda for the New President. While encouraging the Obama administration to review and, where there is legal and scientific support, undo Bush Administration environmental policies, Heinzerling, a professor at Georgetown Law and Faculty Director of their Climate Resource Center, suggested an early focus on climate change: “the first order of business is to take action on climate change—the defining environmental issue of our time, and one for which the window of effective action is rapidly closing.”
Continue Reading...Obama directs EPA to reconsider denial of California waiver - enabling states to set stricter standards regulating vehicle greenhouse gas emissions
*Updated 1/27/09 - added link to text of memorandum.
President Barack Obama today issued a memorandum directing the EPA to reconsider a previous denial of waivers to California and at least twelve other states, allowing them to set auto emissions standards stricter than the current federal standard. The move would reverse a Bush administration decision denying California’s application for a waiver, and would open the door for stricter regulations in many other states. Some 17 states, including New York and Florida – accounting for up to 50% of the US population – have already adopted or are considering the stricter California standards, which require the EPA waiver of federal preemption in order to be enforceable.
Continue Reading...New Jersey publishes draft plan for reducing greenhouse gas emissions
On December 15, the New Jersey Department of Environmental Protection (NJDEP) published for public comment an ambitious plan to reduce greenhouse gas emissions to 1990 levels by 2020, followed by a further reduction of emissions to 80% below 2006 levels by 2050. The draft entitled “Global Warming Response Act Recommendations Report” was authorized by the New Jersey Global Warming Response Act of 2007. The plan emphasizes three core programs – the New Jersey Energy Master Plan, the Regional Greenhouse Gas Initiative and the New Jersey Low Emissions Vehicle program – to deal with the largest green house gas producing sectors: transportation and energy.
Continue Reading...Sunflower Electric seeks oral argument on preliminary injunction regarding air quality permit for coal-fired power plant
Sunflower Electric Power Corp. of Kansas has asked the US District Court for the District of Kansas to allow a hearing on its request for a preliminary injunction in Sunflower's $1.5 billion lawsuit against the state. Sunflower filed the lawsuit last month (Sunflower Electric Power Corporation v. Sebelius) claiming that Kansas Department of Health and Environment (“KDHE”) officials had violated Sunflower's rights to equal protection and to conduct interstate commerce by denying Sunflower's application for an air quality permit for two coal-fired plants in western Kansas. The lawsuit seeks $1.5 billion in damages and an injunction to prevent the state from considering carbon dioxide emissions in future proceedings in connection with Sunflower's application for an air quality permit for the coal-fired energy plants.
Continue Reading...CARB unanimously approves AB 32 implementation plan
California’s top air agency – the California Air Resources Board (CARB) – unanimously approved a sweeping plan yesterday to implement the state’s law 2006 Global Warming Solutions Act (commonly referred to as “AB 32”), requiring dramatic cuts in greenhouse gas emissions. After several months of comment on the draft proposal, CARB adopted what is referred to as its “Scoping Plan”, a 134-page plan that outlines targets for every sector of the economy, including cars, refineries, buildings, landfills, energy sources, and others. The ambitious plan requires a third of California’s electricity needs to come from solar energy, wind farms, and other renewable sources to meet the greenhouse gas reduction goals set forth in AB32.
Continue Reading...Electric company brings federal lawsuit against Kansas Governor for denial of permit for coal-fired power plant expansion
A Kansas electric power company, Sunflower Electric Power Corporation (“Sunflower Electric”), has sued the state government in federal court, seeking injunctive relief relating to the denial of an air quality permit for its planned power plant expansion. On Monday, November 17, 2008, Sunflower Electric filed a complaint (Sunflower Electric Power Corporation v. Sebelius) in the United States District Court for the District of Kansas, asserting that Kansas Governor Kathleen Sebelius and her administration have violated Sunflower Electric's right to equal protection under the law and are unlawfully prohibiting interstate commerce. Sunflower Electric seeks a Court Order declaring that its rights have been violated and enjoining and vacating the Kansas government’s denial of an air quality permit.
Continue Reading...Cap and Trade in China: Shanghai, Beijing and Tianjin establishing emissions exchanges
The Wall Street Journal recently reported that China is taking steps to set up a nationwide emissions trading system. Specifically, the cities of Shanghai, Beijing, and Tianjin are in the process of setting up emissions exchanges modeled on the cap-and-trade system developed in the United States to control sulfur dioxide emissions. The Shanghai and Beijing exchanges were launched in early August, and the Tianjin Climate Exchange was launched in late October. The Tianjin exchange is a joint venture formed by Chinese and American partners, including the giant energy conglomerate China National Petroleum Corp. (CNPC), which is the parent of PetroChina, China’s largest oil and gas producer and distributor, and the Chicago Climate Exchange, the company behind the world’s first voluntary trading system to reduce emissions of greenhouse gases.
Continue Reading...EAB ruling in In re Deseret Power Electric Cooperative opens door to a new regulatory era on climate change
The USEPA Environmental Appeals Board (EAB) issued a potentially groundbreaking decision in In re Deseret Power Electric Cooperative (PSD Appeal No. 0703) by ruling that EPA Region 8 was incorrect when it exempted a new coal fired unit at an existing Utah power plant from limiting carbon dioxide emissions and remanded the permit decision to the Region to reopen the record and reconsider its refusal to impose limits on carbon-dioxide emissions. In its November 13 decision the EAB rejected the Region 8 contention that it was not required to regulate carbon dioxide because the greenhouse gas, while a “pollutant” under the Clean Air Act, was not subject to current regulatory standards. (“We hold that this conclusion is clearly erroneous because the region’s permitting authority is not constrained in this matter by authoritative agency interpretation.”)
Continue Reading...Preliminary injunction stops implementation of Albuquerque Energy Conservation Code provisions
On October 3, 2008, United States District Court for the District of New Mexico entered a preliminarily injunction in The Air Conditioning, Heating and Refrigeration Institute v. City of Albuquerque, barring enforcement of key provisions of Volume I and Volume II of the Albuquerque Energy Conservation Code, and the High Performance Building Ordinance. The code would have required, “either implicitly or explicitly, the installation of appliances with energy efficiencies greater than federal standards.”
Continue Reading...New York Attorney General Andrew Cuomo establishes Wind Industry Ethics Code
*Article updated on 11/18/2009.
On July 15, 2008, New York Attorney General Andrew Cuomo announced an “investigation into two companies developing and operating wind farms across New York state amid allegations of improper dealings with public officials and anti-competitive practices.” While the investigation appears to remain underway, Mr. Cuomo announced on October 30, 2008 that the two wind-farm companies under investigation — Noble Environmental Power, LLC (majority-owned by JPMorgan Partners Fund) and First Wind (formerly known as UPC Wind) — have signed the Attorney General’s new Wind Industry Ethics Code. Mr. Cuomo’s office characterized the Wind Industry Ethics Code as
a result of the Attorney General’s investigation into, among other things, whether companies developing wind farms improperly sought land-use agreements with citizens and public officials, and whether improper benefits were given to public officials to influence their official actions relating to wind farm development. Both Noble and First Wind fully cooperated in the inquiry and their assistance was instrumental in developing the Code of Conduct that is being announced today.
Mr. Cuomo is also establishing an Advisory Task Force to monitor wind companies to ensure that they comply with the Code of Conduct embodied in the Wind Industry Ethics Code.
Continue Reading...Georgetown Law establishes first-of-its-kind State-Federal Climate Resource Center
On November 3, 2008, Georgetown Law announced the establishment of the Georgetown State-Federal Climate Resource Center. The Law Center’s Dean T. Alexander Aleinikoff described climate change as “the single most important environmental issue of our time.”
According to the press release announcing the opening of the Climate Resource Center:
The Center will serve as a resource to states and provide input on climate legislation and regulatory developments under the Clean Air Act; bring together state leaders and federal officials to address climate policy challenges; monitor state, federal and international developments; respond to information requests about state policy from congressional offices and federal agencies; and offer analytical support to states and local governments seeking to protect and promote their role in climate policy. National conferences, as well as briefings and roundtable discussions on Capitol Hill, are also planned.
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...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...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...Chicago announces plan to reduce area emissions to Kyoto Protocol levels
The ongoing federal-state disagreement over the regulation of greenhouse gases has not prevented a major U.S. city from initiating its own efforts to reduce emissions. As recently reported in the New York Times and Washington Post, Mayor Richard Daley announced a plan to reduce Chicago’s climate-changing emissions. The express goal of the climate plan is to reduce Chicago emissions – by 2020 – to a Kyoto Protocol-inspired level of 25% less than the city’s 1990 emissions.
Continue Reading...Schwarzenegger proposes climate policy summit to counter federal inaction
Saying he was "tired of waiting for Washington to act," this week California Governor Schwarzenegger announced plans to organize a "climate policy summit" to be held next month and he plans to invite the Governors of all 50 states, as well as leaders of regional and local states and provinces from Canada, China, India, and other countries. Governor Schwarzenegger plans to use the summit to get state leaders to agree on a plan for the reduction of greenhouse gas emissions, which no doubt is intended to put pressure on the next administration to incorporate these regional initiatives into a federal plan of action. The summit is scheduled for November 18 and 19 in Los Angeles.
Continue Reading...Law professor's novel advocacy of public trust doctrine in climate litigation faces hurdles
A University of Oregon law professor has urged the use of the public trust doctrine to address climate change issues. Professor Mary C. Wood, speaking at the March 2008 Public Interest Environmental Law Conference, advanced what she refers to as “atmospheric trust litigation” as a new legal strategy in climate change litigation. She asserted that the atmosphere is an asset owned in common by the people and the government is the trustee of that asset. Her theory is “part of a roadmap for citizens to bring suit against their government.” Professor Wood says relief would come through declaratory judgments and “injunctive backstops” in which a court would require the government to show that “it’s reducing carbon in accordance with the scientifically defined fiduciary obligation.
Continue Reading...Endangered Species Act becoming a key battleground in climate change regulation and litigation
The newly-filed American Petroleum Institute, et al. v. Kempthorne, et al. lawsuit, as well as recently proposed regulatory changes to the Endangered Species Act (“ESA”) confirm that the ESA is becoming a key battleground over the use of existing legislative and regulatory tools to atttempt to regulate greenhouse gases.
Continue Reading...CARB announces draft plan for implementation of AB 32
In September 2006, California enacted the first major state initiative for reducing climate change or greenhouse gas (GHG) emissions. Commonly referred to as Assembly Bill 32 ("AB 32"), California's Global Warming Solutions Act sets a goal of reducing GHG emissions to 1990 levels by 2020 – a reduction of about 25 percent – followed by a reduction of 80% below 1990 levels by 2050. On June 26, 2008, the California Air Resources Board (CARB) issued a "Climate Change Draft Scoping Plan," which details the concrete measures that it proposes to not only reach AB 32’s GHG emissions reduction goals, but also to drive innovation, support an emerging "cleantech" sector of the state's economy and create new jobs.
Continue Reading...Climate risk disclosure requirements: Senate Appropriations Committee seeks guidance from SEC
Investors, legislators and others continue their efforts to require that publicly-traded companies enhance their disclosure of material business risks posed by climate change. In one of the most recent examples, the Senate Appropriations Committee’s July 14, 2008 report on the 2009 Financial Services and General Government Appropriations Bill (S. 3260) included language calling on the Securities and Exchange Commission to provide guidance on the appropriate disclosure of climate risk:
The Committee is aware that a petition was filed with the Commission on September 18, 2007, calling for the issuance of an interpretative release clarifying the application of existing law to the disclosure of risks associated with climate change. The Commission is encouraged to give prompt consideration to this petition and to provide guidance on the appropriate disclosure of climate risk.
Report at 108.
Continue Reading...Federal failure to regulate greenhouse gas emissions alleged by new climate lawsuit
On July 31st, Western Environmental Law Center attorney Dan Galpern is expected to announce what a press release describes as "a new lawsuit targeting the Bush administration's unlawful refusal to regulate certain major sources of global warming pollution." The announcement will occur during the eight-day Oregon Climate Convergence.
Continue Reading...Civil conspiracy claim targets political question defense in public nuisance climate suit
While three nuisance-based climate lawsuits have been dismissed by federal district courts because, among other reasons, they raised non-justiciable political questions, plaintiffs in the latest public nuisance case believe that the addition of a civil conspiracy claim will overcome the political question defense.
Continue Reading...International climate discussions and the political question defense
The first three major tort-based climate change lawsuits against alleged greenhouse gas emitters were dismissed in part because they raised non-justiciable political questions (all three cases are currently on appeal). For example, the district court in Conn. v. Am. Elec. Power Co., Inc. rejected a 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.”
Recent events offer added support for advocates of the political question defense in climate-based tort litigation:
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