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March 2, 2010 Jackson: GHG Emissions Requirements for Stationary Sources to Begin in 2011

By Jennifer Cassel

On March 29, 2010, EPA formally announced that it had reconsidered its interpretation of the term “subject to regulation” under the Clean Air Act (“CAA”), and as a result, will delay the effective date of greenhouse gas (“GHG”) emissions requirements for stationary sources until at least January 2, 2011.  75 Fed. Reg. 17004.  The announcement stems from EPA’s February 2009 agreement to reconsider the December 2008 “Johnson memorandum,” in which memo former EPA Administrator Stephen Johnson interpreted the terms “subject to regulation” under the CAA to include only those air pollutants for which the CAA requires actual control of emissions.  EPA has decided to maintain that interpretation, refining it only to clarify that GHG emission requirements for stationary sources under the Prevention of Signification Deterioration (“PSD”) program “will not apply to a newly regulated pollutant until a regulatory requirement to control emissions of that pollutant ‘takes effect.’”  Because GHG emissions limits for vehicles will not take effect until at least January 2, 2011, EPA explains, the PSD requirements will not take effect until that time.  EPA published notice of its announcement in the April 2, 2010 Federal Register.   

The Federal Register notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-7536.pdf.

CATEGORIES: Air, Climate Change, Greenhouse Gas

March 2, 2010 States Mount Joint Attack on EPA’s Endangerment Finding; Others Defend Finding

By Jennifer Cassel

In late March, 2010, sixteen states sought permission to intervene in a lawsuit filed by Virginia in the U.S. Court of Appeals for the District of Colombia Circuit, in which Virginia alleges that EPA’s finding that GHGs endanger the public health and welfare (“the endangerment finding”) is based on unsound science and would have adverse economic effects.  Coalition for Responsible Regulation Inc. et al v. United States Envtl. Protection Agency, No. 09-1322 (D.C. Cir. filed Feb. 16, 2010).  The sixteen states seeking intervention to oppose the endangerment finding, Alaska, Florida, Hawaii, Indiana, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Nebraska, North Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota and Utah, also contend that the administrative burden on EPA and state permitting authorities that would result from the endangerment finding would be overwhelming.  Meanwhile, approximately 15 states, including New York, California and Arizona, as well as environmental groups such as Sierra Club, Natural Resources Defense Council, Environmental Defense Fund and Wetland Watch, have sought permission to intervene on EPA’s behalf in the suit.

CATEGORIES: Air, Climate Change, Greenhouse Gas

March 2, 2010 Jackson: GHG Emissions Requirements for Stationary Sources to Begin in 2011

By Jennifer Cassel

On March 29, 2010, EPA formally announced that it had reconsidered its interpretation of the term “subject to regulation” under the Clean Air Act (“CAA”), and as a result, will delay the effective date of greenhouse gas (“GHG”) emissions requirements for stationary sources until at least January 2, 2011.  75 Fed. Reg. 17004.  The announcement stems from EPA’s February 2009 agreement to reconsider the December 2008 “Johnson memorandum,” in which memo former EPA Administrator Stephen Johnson interpreted the terms “subject to regulation” under the CAA to include only those air pollutants for which the CAA requires actual control of emissions.  EPA has decided to maintain that interpretation, refining it only to clarify that GHG emission requirements for stationary sources under the Prevention of Signification Deterioration (“PSD”) program “will not apply to a newly regulated pollutant until a regulatory requirement to control emissions of that pollutant ‘takes effect.’”  Because GHG emissions limits for vehicles will not take effect until at least January 2, 2011, EPA explains, the PSD requirements will not take effect until that time.  EPA published notice of its announcement in the April 2, 2010 Federal Register.   

The Federal Register notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-7536.pdf.

CATEGORIES: Air, Climate Change, Greenhouse Gas

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 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 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