March 2, 2010 Automakers Abandon Suits Against California’s GHG Emissions Standards for Vehicles

By Jennifer Cassel

On April 6 and 7, 2010, automakers filed motions to withdraw their appeals in three lawsuits challenging California’s GHG  emissions standards for vehicles.  Central Valley Chrysler-Jeep Inc. v. Goldstene, 9th Cir., No. 08-17378, (motion to dismiss filed Apr. 6, 2010), Lincoln-Dodge Inc. v. Sullivan, D. R.I., No. 06-70T, (motion to dismiss filed Apr. 7, 2010), and Green Mountain Chrysler-Plymouth-Dodge-Jeep v. Crombie, D. Vt., No. 05-cv-302 (motion to dismiss filed Apr. 7, 2010).  In Lincoln-Dodge, Inc. and Green Mountain, automakers had challenged Rhode Island’s and Vermont’s adoption of California’s vehicle emission standards before California agreed, in May 2009, to accept compliance with revised federal emission limits as compliance with its own standards.  The automakers’ challenge in Goldstene to California’s GHG emission limits for vehicles was likewise withdrawn after the May 2009 agreement between California and the federal government eliminated the disparities between California emission limits and federal limits until at least 2016.  The withdrawal of appeals in all three cases fulfilled the automakers’ promise, made as part of the May 2009 agreement, to drop their suits after federal GHG emission standards were issued and California agreed to recognize those standards as compliant with the state’s rules.

 

 

CATEGORIES: Air, Climate Change, Greenhouse Gas

March 2, 2010 EPA Proposes to Require Cogeneration Facilities to Report GHG Emissions

By Jennifer Cassel

On April 12, 2010, EPA published notice of a proposal to require facilities subject to the mandatory GHG reporting rule, issued by EPA in October 2009, to report whether any of their GHG emissions come from combined heat and power generation, or “co-generation,” units at those facilities.  75 Fed. Reg. 18455.  EPA explains that it is requesting this additional data because “information on the types and characteristics of facilities that employ cogeneration technologies and the performance of cogeneration units could be important to future development of greenhouse gas mitigation strategies.”  The proposed rule also calls for covered facilities to report any U.S. parent companies of those facilities, and to provide the North American Industry Classification System (“NAICS”) code applicable to the facility, in their annual emissions reports.  The comment period on the proposed rule will close on June 11, 2010.

The notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-6765.pdf

CATEGORIES: Air, Climate Change, Greenhouse Gas

March 2, 2010 EPA, DOT Issue Joint Standards for Vehicle Fuel Economy, GHG Emissions

By Jennifer Cassel

On April 1, 2010, EPA and the Department of Transportation (“DOT”) released joint fuel economy and the first ever greenhouse gas (“GHG”) emission limits for 2012-2016 model year light-duty vehicles, mandating that those vehicles decrease CO2 emissions each year until they achieve a combined average of 250 grams of CO2 per mile for model year 2016 vehicles.  75 Fed. Reg. 25324.  Under the new standards, vehicles may decrease their CO2 emissions either by improving fuel economy or by taking other GHG-reduction measures, such as cutting leaks of hydroflourocarbons (HFCs) from vehicle air conditioning systems.  If all of the vehicles’ CO2reductions come from improved fuel economy, they would achieve an average fuel economy of 35.5 miles per gallon by model year 2016.  EPA estimates that the new standards will decrease GHG emissions by approximately 960 million metrics tons over the lives of each of the covered 2012-2016 vehicles.  The standards result from the May 2009 agreement among EPA, DOT, the state of California and other entities, discussed in the May 2009 issue of GE Climate Change EWS.  The final standards were published in the May 7, 2010 issue of the Federal Register. 

The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-8159.pdf

CATEGORIES: Air, Climate Change, Greenhouse Gas

March 2, 2010 Bills Would Provide Incentives for Development of Off-Shore Wind Energy

By Jennifer Cassel

On April 19, 2010, Sen. Sherrod Brown (D-Ohio), along with Senators Ted Kaufman (D-Del.), Tom Caper (D. Del), Susan Collins (R-Me) and Olympia Snowe (D-Me), introduced a bill that provides funds to expand research and development (“R&D”) of offshore wind energy resources in the U.S.  The bill, titled the “Program for Offshore Wind Energy Research and Development Act of 2010,” or the “POWERED Act of 2010” (S. 3226), would create a grant program for R&D on numerous subjects pertaining to wind energy development, including research of ice formation and other weather-related matters, integration of offshore wind energy into the power grid, impacts of offshore wind development on wildlife, and mooring technologies, among many others.  The bill also directs the Secretary of Energy to formulate a “comprehensive roadmap” towards expanding offshore wind energy resources in the U.S., which roadmap would be reported to Congress within 180 days of enactment of the bill.  S. 3226 was referred to the Senate Committee on Energy and Natural Resources on April 19, 2010.

S. 3226 is available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s3226is.txt.pdf

CATEGORIES: Air, Climate Change

March 2, 2010 Bills Would Bar Consideration of Climate Change Impacts under NEPA

By Jennifer Cassel

On April 20, 2010, Sen. James Inhofe (R-Okla.) introduced a bill which would prohibit agencies from taking climate change impacts into account when conducting environmental impact evaluations under the National Environmental Policy Act (“NEPA”).  Specifically, under Inhofe’s NEPA Certainty Act (S. 3230), “compliance with [NEPA] shall not include consideration of—(1) the greenhouse gas emissions, or any climate change effects of those emissions, of a proposed action and alternative actions; or (2) the relationship of climate change effects to a proposed action or alternatives, including the relationship to proposal design, environmental impacts, mitigation, and adaptation measures.” The bill, co-sponsored by 6 other Republican Senators, also includes a “declaration” that NEPA “should not be used to document, predict, or mitigate the climate effects of specific Federal actions.” The NEPA Certainty Act was referred to the Senate Committee on Environment and Public Works on April 20, 2010. 

S. 3230 is available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s3230is.txt.pdf

CATEGORIES: Air, Climate Change

March 1, 2010 February 2010 Update: Climate Change

By Gabrielle Sigel and Jennifer L. Cassel

Federal Legislative Developments

  • Obama Requests Increased Funding for Climate Change

    On February 1, 2010, President Obama sent to Congress a budget request for fiscal year 2011 in which he requested increased funding for climate change measures even as he decreased his overall budget request. 

    Some of the items listed in the President’s budget request include: $54.5 billion for Dept of Energy loan guarantees for clean energy technologies; $21 million for EPA to implement the mandatory greenhouse gas (“GHG”) reporting rule; $56 million for EPA and State climate change programs, including $25 million to be used to assist EPA and the States to incorporate GHG emission restrictions into Clean Air Act (“CAA”) permitting, $5 million to develop best available control technology (“BACT”) for GHG emission limits in CAA permits, and $7 million to develop new source performance standards for certain sources that produce GHG emissions; $7 million to fund carbon capture and sequestration (“CCS”) projects and $545 million to fund research of CCS technologies; $6 million for EPA to implement GHG emission standards for vehicles; and $2.6 billion to fund research related to climate change.  Unlike his budget request for FY 2010, President Obama does not request funding to implement a cap-and-trade program in FY 2011.

CATEGORIES: Air, Climate Change, Water

PEOPLE: Gabrielle Sigel

February 26, 2010 What You Need To Know About The New SEC Guidance on Climate Change Disclosure

By Jerry J. Burgdoerfer, Gabrielle Sigel, William L. Tolbert, Jr., Elaine Wolff, and Lee E. Dionne

On February 2, 2010, the Securities and Exchange Commission (“SEC”) issued guidance, in the form of an interpretive release (the “Release”), as to a public company’s disclosure requirements on climate change issues.[1]  The SEC puts companies on notice that it will review the effect of the Release on companies’ filings through its disclosure review program.  This Release should be considered in the context of the SEC staff’s recent reminders that their review will look beyond the four corners of a company’s SEC filings, including considering disclosures in a company’s earnings calls, earnings releases, website and press releases.[2]  The SEC expects to hold a public “roundtable” on climate change disclosures in the spring of 2010.

CATEGORIES: Climate Change

PEOPLE: Gabrielle Sigel

February 12, 2010 SEC Issues New Guidance Regarding Climate Change Disclosures

By Jerry J. Burgdoerfer, Gabrielle Sigel, William L. Tolbert, Jr., Elaine Wolff, Lee E. Dionne

At an open meeting held January 27, 2010, the Securities and Exchange Commission voted to issue an interpretive release (the “Release”) to provide guidance on existing climate change disclosure obligations.[1] Specifically, the Commission’s discussion identified four categories of information about climate change that companies should consider disclosing:  

  • the impact of legislation and regulation;
  • the impact of international accords;
  • the indirect consequences of regulation or business trends; and
  • the physical impacts of climate change.

CATEGORIES: Climate Change

PEOPLE: Gabrielle Sigel

February 10, 2010 January 2010 Update: Climate Change

By Gabrielle Sigel and Jennifer L. Cassel

Federal Legislative Developments

  • Obama Calls for Comprehensive Energy and Climate Bill in Address to Nation

    On January 27, 2010, in his first State of the Union address, President Obama reiterated his desire to see a comprehensive energy and climate bill adopted in the coming year. In his speech, Obama tied such legislation to job creation, providing examples of “green jobs” and emphasizing that, “to create more of these clean energy jobs, we need more production, more efficiency, more incentives.” Among the programs Obama espoused are the construction of new, “safe, clean” nuclear power plants; “continued investment in advanced biofuels and clean coal technologies,” and the passage of a “comprehensive energy and climate bill with incentives that will finally make clean energy the profitable kind of energy in America.” While Obama did not mention the words “cap and trade” in his speech, he supported his plea for climate legislation by stating that “providing incentives for energy-efficiency and clean energy are the right thing to do for our future—because the nation that leads the clean energy economy will be the nation that leads the global economy.” Obama also indicated that he would be willing to make “tough decisions about opening new offshore areas for oil and gas development,” but only as one component of his energy plan for the country.

 

CATEGORIES: Air, Climate Change

PEOPLE: Gabrielle Sigel

January 13, 2010 A green economy: What lawyers need to know

Grayson PhotoBy E. Lynn Grayson

A media buzz surrounds the politically charged concept of developing a green economy by investing in initiatives that are good for the environment and financially beneficial for business.

CATEGORIES: Air, Climate Change