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Corporate Environmental Lawyer Blog

March 2, 2010 Bills Would Strip EPA Authority to Regulate GHG Emissions from Stationary Sources

By Jennifer Cassel

On March 4, 2010, Sen. Jay Rockefeller (D.-W. Va.) and Reps. Nick Rahall (D-W. Va.), Rick Boucher (D-Va.) and Alan Mollohan (D-W. Va.) introduced identical bills, S. 3072 and H.R. 4753, that would suspend for two years the U.S. Environmental Protection Agency’s (“EPA”) authority to regulate carbon dioxide (“CO2”) or methane emissions from stationary sources under the federal Clean Air Act, excepting reporting requirements.  The bills, called the “Stationary Source Regulations Delay Act,” would preclude CO2 and methane from being deemed pollutants “subject to regulation under the Clean Air Act” during the two year period of the bills’ effect, regardless of any other law or EPA action.  The bills would not modify EPA’s authority as to emissions from motor vehicles.  On March 4, 2010, H.R. 4753 was referred to the House Committee on Energy and Commerce, and S. 3072 was referred to the Senate Committee on Environment and Public Works. 

H.R. 4753 is available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h4753ih.txt.pdf.  

CATEGORIES: Air, Climate Change, Greenhouse Gas

March 2, 2010 Australia to Postpone Implementation of Carbon Trading Until At Least 2013

By Jennifer Cassel

On April 27, 2010, Australian Prime Minister Kevin Rudd announced that implementation of the country’s carbon trading program, which would cap the amount of carbon dioxide that polluters could emit and require those emitters which exceeded the cap to purchase trading permits, would be delayed until at least 2013. The Prime Minister stated that the reason for the delay is that the controversial program lost the support of the Liberal Party, and could not garner enough votes to pass this year for Rudd’s planned start date of July 2011. Opposition lawmakers, in contrast, claim that Rudd pulled the plug on the program because he was afraid he would lose votes in an expected election this year.

More information is available at http://news.yahoo.com/s/afp/20100427/sc_afp/australiapoliticsclimate

CATEGORIES: Air, Climate Change

March 2, 2010 Southwestern States Put the Brakes on GHG Regulation

By Jennifer Cassel

In April 2010, Utah, Arizona and New Mexico each took actions to limit the states’ plans to regulate GHGs.  First, on April 13, 2010, a state judge in New Mexico issued a preliminary injunction preventing the New Mexico Environmental Improvement Board (“EIB”) from considering or adopting a rulemaking petition to cap GHG emissions until the court determines whether EIB is authorized, under New Mexico law, to regulate GHGs.  Leavell v. New Mexico Envtl. Improvement Bd., N.M. Dist. Ct., No. D-506-CV-201000050, preliminary injunction issued Apr. 13, 2010).  Plaintiffs, a group of state Congressmen, utility companies, and farming and petroleum-related associations, argued in their complaint that EIB may not regulate air contaminants, including GHGs, until EIB “determine[s] the quantity and duration at which that air contaminant becomes ‘air pollution,’” which determination, they argued, EIB makes by adopting an ambient air quality standard for the contaminant.  Because no ambient air quality standard for GHGs has been set, plaintiffs asserted that EIB may not entertain or adopt the rulemaking petition.

CATEGORIES: Air, Climate Change, Greenhouse Gas

March 2, 2010 Power Plant in Texas to Capture 85% of Carbon Dioxide

By Jennifer Cassel

On April 19, 2010, the Environmental Defense Fund (“EDF”) and Tenaska, Inc., announced that they had reached an agreement under which EDF agreed not to oppose a 600 megawatt coal-fired power plant Tenaska proposes to construct near Sweetwater, Texas, in exchange for Tenaska’s promise to capture and sequester 85% of the estimated 7.5 million tons of carbon dioxide (“CO2”) the plant will produce each year, as well as reduce water use.  Tenaska will arrange for the transport and injection of the captured CO2 into the Permian Basin oil fields, to be used for enhanced oil recovery.  EDF, in turn, will withdraw from a contested case hearing on the air quality permit for the proposed plant, called the Trailblazer Energy Center, and will not attempt to delay the granting of the air quality permit or any future air quality permits for the plant.  The proposed plant has not yet received all required approvals, however, and other organizations may oppose it.  If the plant receives all required approvals, construction will begin in 2011 and operation is expected to start in 2016.

A press release about the agreement is available at http://www.tenaskatrailblazer.com/media/press-100419b.html

CATEGORIES: Air, Climate Change, Water

March 2, 2010 CA Court: Refinery Changes Cannot Proceed Without GHG Mitigation Measures

By Jennifer Cassel

On April 26, 2010, the California Court of Appeal of the First Appellate District upheld the injunction prohibiting modifications to Chevron’s Richmond, California oil refinery, holding that the City of Richmond improperly approved permits without requiring measures, mandated by the California Environmental Quality Act (“CEQA”), to mitigate the increased GHG emissions that would result from the refinery’s modifications.  Communities for a Better Envt. v. Richmond, Cal. Ct. App., No. A125618 (Apr. 26, 2010).  The case dates back to 2005, when Chevron initially proposed the modifications.  In July 2008, Richmond approved the permits for the modifications, and issued an Environmental Impact Report (“EIR”) pursuant to CEQA.  As part of its approval of the EIR, although Richmond acknowledged that the increase of 898,000 metric tons per year of GHG emissions would have a significant effect on the environment, the only mitigation measure Richmond required was that Chevron prepare a plan, within one year of the permits’ approval, “for achieving complete reduction of GHG emissions up to… 898,000 metric tons per year…,” which plan would be approved by the Richmond City Council.  Stating that “the development of mitigation measures, as envisioned by CEQA, is not meant to be a bilateral negotiation between a project proponent and the lead agency after project approval; but rather, an open process that also involves other interested agencies and the public,” the Court held that the mitigation measure “does not satisfy CEQA’s requirements.” 

The opinion is available at http://caselaw.lp.findlaw.com/data2/californiastatecases/a125618.pdf?DCMP=ESP-pro_calcases

CATEGORIES: Air, Climate Change, Greenhouse Gas

March 2, 2010 Industry Files Petition For Review of EPA’s Re-Interpretation of Johnson Memo

By Jennifer Cassel

On April 2, 2010, the same day EPA published its final reinterpretation of the meaning of “subject to regulation” under the Clean Air Act, triggering regulation of GHG emissions from stationary sources in January 2011, several industry groups filed a petition for review of that final EPA action in the United States Court of Appeals for the District of Columbia Circuit.  Coalition for Responsible Regulation v. Envtl. Protection Agency, D.C. Cir., No. 10-1073 (filed Apr. 2, 2010).  Petitioners, which include the Coalition for Responsible Regulation, Inc., the Industrial Minerals Association-North America, the National Cattlemen’s Beef Association (“NCBA”), Great Northern Project Development, L.P., Rosebud Mining Company and Alpha Natural Resources, Inc., do not specify in their petition why they are requesting review of EPA’s action.  However, in a press release issued by petitioner NCBA, NCBA chief environmental counsel Tamara Thies opined that EPA is acting in violation of the Clean Air Act by not issuing a National Ambient Air Quality Standard for GHGs prior to regulating them under the Prevention of Significant Deterioration program for stationary sources.  “Before imposing very-real, long-term negative impacts on the entire U.S. economy,” This continues, “the EPA should at least follow Congress’ strict instructions for regulating pollutants under the PSD program.”  

The NCBA press release is available at http://www.beefusa.org/NEWSNCBAChallengesEPAsInterpretationofGreenhouseGasPermittingRules40507.aspx

CATEGORIES: Air, Climate Change, Greenhouse Gas

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 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