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.
In its 284-page final rule, EPA made the much disputed “endangerment” finding that current and projected concentrations of the mix of six key greenhouse gases -- carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6) -- in the atmosphere threaten the public health and welfare of current and future generations. EPA also finalized its “cause or contribute” determination under the Clean Air Act for greenhouse gases from new motor vehicles and motor vehicle engines by finding that these sources contribute to the atmospheric concentrations of greenhouse gases and hence to the threat of climate change. The final rule may be challenged in the U.S. Court of Appeals for the District of Columbia within 60 days of publication in the Federal Register.
EPA’s final rule is certain to pressure the Senate to act on climate-change legislation. The House of Representatives already passed the American Clean Energy and Security Act ("ACES," H.R. 2454, Waxman-Markey) bill by a very narrow margin in June, but the outcome in the Senate is uncertain with a number of Democrats and Republicans from key energy states opposed.
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.
(Names in parens are original sponsors of each component, with link to text of that section.)
- Provides accommodations for states using a central purchasing model for their renewable electricity standards (Waxman);
- Provides Federal Regulation and Oversight of Energy (“FERC”) authority to build interstate transmission lines in the Western Interconnection and amends the National Interest Electric Transmission Corridors (Inslee/Markey);
- Exempts forestry and agriculture industries from the Act’s emission’s caps, grandfathers existing biodiesel plants making them exempt from the Renewable Fuels Standard’s lifecycle analysis; changes the definition of “biomass”; and mandates the Secretary of Agriculture create a list of agricultural and forestry practices that reduce or avoid greenhouse gas emissions (Peterson);
- Allows states to convey allowances in a SEED account directly to renewable energy generators (Polis);
- Mandates the creation of a carbon incentives program by the Secretary of Agriculture to achieve supplemental greenhouse gas emissions reductions on private agricultural and forestland (Kratovil);
- Sets a Renewable Electricity Standard (“RES”) for Federal agencies and allows Federal agencies to enter into renewable energy power purchase agreements for up to 20 years (Titus/Giffords/Heinrich);
- Makes natural gas fueled vehicles eligible for clean vehicle incentives, the vehicle integration program, and the manufacturing incentives for alternatively fueled vehicles (Boren/Larson/Sullivan);
- Caps the cost of a permit for a license for the construction of a solar energy system and provides that noncompliance with the permit cost requirements disqualifies the entity from Community Development Block Grants (Cardoza);
- Authorizes a national education, training, and awareness program to inform building, facility, and industrial plant owners and managers, government and industry leaders of the large energy-saving potential of using of mechanical insulation and (Halvorson);
- Amends the definition of a “cluster,” as it applies to Energy Innovation Hub, and ensures that virtual connections qualify when defining a cluster (Hinchey);
- Amends the Retrofit for Energy and Environmental Performance (REEP) program so that funds provided to disaster victims through the Robert T. Stafford Disaster Relief and Emergency Assistance Act may qualify as the building owners’ contribution toward the matching requirements of the REEP program while also requiring Federal agencies administering such assistance inform disaster victims of the REEP program, and finally provides 10% of funding under the REEP program for retrofits of public and assisted housing (Loebsack);
- Creates a Community Building Code Administration Grant program, providing $100 million over five years in competitive, matching grants for local building code enforcement (Moore);
- Limits the Building Energy Performance Labeling Program in sec. 204 of the bill to new construction only (Perlmutter);
- Incentivizes lenders and financial institutions to provide lower interest loans and other benefits to consumers who build, buy, or remodel homes and businesses to improve their energy efficiency (Perlmutter);
- Directs Department of Housing and Urban Development to issue rules prohibiting private covenants that restrict or prohibit the installation of solar energy systems (Cardoza);
- Authorizes the Secretary of Energy to develop a research program studying the factors affecting whether consumers adopt energy conservation practices or make energy efficiency improvements (Holt/DeLauro/Baldwin/ Baird);
- Requires the Secretary of Energy report to Congress on a study on the use of thorium-fueled nuclear reactors for national energy needs, including a response to the IAEA study entitled “Thorium fuel cycle - Potential benefits and challenges.” (Sestak);
- Establishes a clean energy career training clearinghouse to aid institutions with Federal resources, expertise, information and points of contact when establishing and maintaining quality training programs (Polis);
- Adds provision seeking to ensure that minority-owned and women-owned businesses benefit from grants aimed at stimulating business development, and requires the Secretary of Labor monitor the potential growth of impacted and displaced workers to ensure that the necessary funding continues to support the number of workers affected (Jackson-Lee);
- Expresses the sense of Congress that the United States should work with the International Civil Aviation Organization regarding the development of a global framework for the regulation of greenhouse gas emissions (Larsen).
With the amendment, the bill passed by recorded vote: 219 - 212 (Roll no. 477). The final vote included 211 Democrats and 8 Republicans in favor with 168 Republicans and 44 Democrats opposed. Representatives Jeff Flake (R-AZ); John Sullivan (R-OK); and Alcee Hastings (D-FL) abstained.
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.
The citizen suit provision was set forth in Section 336 of the discussion draft version of ACES, and it would have given environmental groups and other activists standing under the Clean Air Act to “commence an action” when someone has “suffered, or reasonably expects to suffer, a harm attributable, in whole or in part, to a violation or failure to act referred to in subsection (a).” Harm under this section was defined as: “For purposes of this section, the term ‘harm’ includes any effect of air pollution (including climate change), currently occurring or at risk of occurring, and the incremental exacerbation of any such effect or risk that is associated with a small incremental emission of any air pollutant (including any greenhouse gas defined in Title VII), whether or not the risk is widely shared.”
The citizen suit provision in ACES generated significant controversy. A staff member in the office of Sen. Jim Inhofe (R-OK) had warned that the subsection could result in a flood of “lawsuits filed by environmental groups who perceive some risk—and they undoubtedly will perceive it” and that “this provision will further empower the eco-trial bar to fight the ravages of climate change and the businesses it dislikes, with no effect on the former and disastrous consequences for the latter.” However, supporters of the bill, such as the Center for Progressive Reform, offered a contrasting view, arguing that an “extremely positive aspect of the bill is its approach to citizen enforcement of the laws. In addition to government enforcement provisions, the bill includes strong citizen suit provisions. It reaffirms the importance of citizen enforcement of the environmental laws against both potential violators and agencies that have the responsibility to implement the regime. Citizens have traditionally had this enforcement power under the environmental laws, but it has recently been threatened by a series of judicial decisions. The Waxman-Markey bill responds to these judicial decisions and strives to ensure the vitality of citizen suits.”
Concerns about a “landslide of litigation” appear to have been behind the elimination of the citizen suit provision. In the Committee on Energy and Commerce’s Report on ACES, the Minority noted that: “If citizen suits are allowed to go forward against any person, it is likely that there would be a substantial amount of new climate change litigation brought against companies throughout the United States in all of the sectors of the economy regulated by the bill. While a windfall to lawyers, such litigation would impose significant costs and burdens on those companies in addition to the already enormous direct and indirect costs imposed by the bill. An amendment to limit citizen suits would prevent excessive or unwarranted litigation and protect US companies and ultimately US jobs and consumers.”
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.
Highlights of the American Clean Energy & Security Act include:
- Targets reduction of greenhouse gases by 17 % from 2005 levels by 2020 and 83 % by 2050 through cap-and-trade;
- Caps emissions from major industrial sources, including power plants, factories, refineries and electricity and natural gas distributors.
- Emissions from agriculture not capped.
- Places limits on carbon dioxide emissions from fossil fuel use, and six other greenhouse gases;
- Includes offset allowances to permit companies to meet emissions targets by investing in things such as tree planting and forest protection;
- Requires electric utilities to produce at least 12% of power from renewable sources such wind and solar by 2020; requiring as much as 8% in energy efficiency savings;
- Imposes stricter performance standards on new coal-fired power plants and provides $1 billion a year to fund carbon capture for such plants;
- Requires new buildings to be 30% more energy-efficient by 2012 and 50% more efficient by 2016;
- Provides for energy rebates for consumers and credits to low-income households (intended to offset anticipated increases in energy costs).
To build broader support for the bill, its chief sponsors, Democratic Representatives Henry Waxman (D-CA) and Edward Markey (D-MA), agreed during the past month to reduce the bill’s environmental mandates and increase aid to greenhouse gas emitters, including coal-fired power plants in order to help companies meet the measure’s emission regulations.
The House rejected Rep. Randy Forbes' (R-VA) substitute bill amendment, the only Republican amendment to clear the Rules Committee. Had the amendment passed, it would have replaced the current version of the bill with Forbes' proposals for the US to reach 50% energy independence in 10 years and 100% in 20 years.
Check back later with www.GlobalClimateLaw.com for additional updates and analysis.
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.
The far-reaching, 648-page draft bill sets forth standards and incentives designed to promote clean energy and energy efficiency while reducing greenhouse gas emissions. Employing a comprehensive approach, the legislation is intended to enhance US energy independence, reduce energy costs to American consumers, create green jobs, and curb global warming pollution. The draft bill’s global warming regime is modeled largely on US Climate Action Partnership (USCAP) recommendations from the Blueprint for Legislative Action. To reduce global warming emissions, the bill broadly outlines a market-based cap-and-trade program with aggressive carbon reduction standards and offset-availability to covered entities. Relative to 2005 levels, the bill calls for reductions of 3% by 2012, 20% by 2020, 42% percent by 2030, and 83% by 2050.
The bill’s energy provisions require that 25% of the US energy supply be generated from renewable sources such as wind, solar, and geothermal by 2025. In addition, the bill promotes development of carbon capture and sequestration technology (CCS), modernization of the US electrical grid, increased production of electric vehicles, and heightened energy efficiency across all sectors of the economy, including building, appliances, and transportation. To facilitate transition to a clean energy economy, Title IV of the bill subsidizes domestic education and training for green jobs as well as exportation of clean technologies to developing countries abroad.
The Waxman-Markey draft has sparked a chorus of approval among commentators and policymakers alike. In an email statement, White House spokesman Ben LaBolt affirmed that “President Obama is committed to an energy policy that launches a new sector of clean energy jobs, makes our economy more competitive, and weans the nation off its dependence on foreign oil,” adding that “[i]t is clear that Chairman Waxman’s legislation would advance all of those goals.” Echoing the response from Pennsylvania Ave., Dr. Richard H. Moss, vice president for climate change at the World Wildlife Fund issued a statement praising the draft as “a major first step toward a strong cap and trade bill that will cut emissions, jumpstart a new clean energy economy and strengthen the ability of the Obama administration to negotiate a fair and effective global climate deal this December in Copenhagen.”
Opponents of the bill do not share Dr. Moss’s optimism. House Minority Leader John Boehner (R-OH) claimed that bill, as proposed, would “raise energy taxes in the midst of a serious recession.” Likewise, Sen. Joe Lieberman (I-CT), a longtime supporter of climate legislation, opined that the draft bill’s emissions targets “impose too much of a burden [on industry]” making it unlikely the bill would garner the 60 votes necessary to pass in the Senate.
