Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

Late last week, the CEQ issued its long-awaited draft Guidance on how to factor climate change into NEPA reviews. CEQ explicitly stated the draft is not effective at this time. CEQ will take comment for 90 days and “intends to expeditiously issue this Guidance in final form” after close of the comment period. Assuming CEQ does so, it will join several states, including California, New York, and Massachusetts, which already require that climate change be addressed in their state NEPA analogues.

The draft is very limited in scope at this point; CEQ may have decided that what is most important is simply the statement that climate change is real, it matters, and it therefore must be taken into account under NEPA. For example, CEQ proposes a threshold a 25,000 tpy of direct emissions CO₂e for NEPA applicability. The Guidance does not propose to apply this threshold to indirect emissions, “the analysis of which must be bounded by limits of feasibility.” Shocking recognition of what’s actually possible.

There are some tidbits that will nonetheless give pause to those who expect to be subject to this Guidance. First, the Guidance does discuss the need to consider the cumulative effects of GHG emissions. This is not surprising, given that NEPA already requires consideration of cumulative impacts outside the GHG context, but since all GHG impacts are cumulative, it is of particular importance here. Second, the Guidance also notes that project planners must consider the impact of climate change on projects, as well as the impact of projects on climate change. The example given in the Guidance is a plan for transportation infrastructure on a barrier island. The Guidance also suggests a longer-term time horizon than may have been used in the past. The example here is that of an industrial process drawing water from a source that relies on snow pack that is expected to decrease as a result of climate change.

As noted above, CEQ spends a lot of effort making the case that the Guidance is not a radical document. The phrase “rule of reason” is used no less than four times in the draft Guidance – and it feels like more. Nonetheless, I doubt opponents will be satisfied. I suspect that they – like the CEQ itself – believe that the fact of the document is more important than its immediate requirements.

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According to a report released last week by Environment America, power plants were responsible for 42% of the CO₂ emitted in the United States in 2007, substantially more than any other sector, including transportation. What’s the explanation? Largely, it’s the age of the United States power plants. The report, based on EPA data, states that 73% of power plant CO₂ emissions came from plants operating since prior to 1980.

What’s the solution to this problem, in the absence of cap-and-trade legislation enacting? EPA’s already told us, and we shouldn’t be surprised – promulgation of EPA’s “Tailoring Rule,” subjecting existing facilities emitting more than 25,000 tons per year of CO_2e to EPA’s New Source Review program.

And what’s the problem with this solution? To a significant degree, it’s that it is the NSR program that got us in this mess in the first place. As my friend Rob Stavins has noted, regulatory programs – such as NSR – that impose different requirements based on the age of a facility, known in the lingo as “vintage-differentiated regulations” or “VDR”, not surprisingly lead to the perverse result that older, more-polluting, facilities stay in service longer than if regulations were imposed in an even-handed manner on different vintages of facilities.  In other words, we have the NSR program to thank for the situation described in the Environment America report.

Can anyone doubt, therefore, that application of NSR rules to GHGs will cause those who own such facilities to try to operate them as long as possible without implementing any “modifications” that would trigger application of NSR? Moreover, can anyone doubt that application of NSR rules to new facilities would give old facilities a further cost advantage? Sure, EPA can try to tighten the NSR rules and continue to pursue NSR enforcement cases in order to discourage existing facilities from disguising “life-extension” projects as routine maintenance. However, it’s still a jury-rigged system at best. After all, the program is called New Source Review for a reason.

I’m just a poor country lawyer, but I still think that a cap-and-trade program is a better solution for all sides. Add a traditional three-pollutant piece to it, trade that for elimination of the NSR program in its entirety, and you’d really have something. 

Still dreaming, I know.

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Following my post yesterday about the E.U. construction standards directive, I received the following two emails from my friend and client Lydia Duff.

Given what people until very recently were paying for in their home purchase decisions, and builders were providing -- e. g. Cathedral ceilings, minimal insulation, no double paned windows, huge foot prints and cheap construction -- it seems that rulemaking to impose more energy efficient building prototypes is just what we deserve. Zero will be hard to get to but I think we're a long ways from technical impracticability at this point. 

Why can't they make as much, or more, money selling equally expensive houses, smaller with more meaningful features? Building disposable houses (and hence communities) is obscenely wasteful. Our time horizons for modern construction are so short. We're beginning to turn people from disposable coffee cups; perhaps we'll shift to enduring buildings, rather than architectural and moral hideosities we merely endure.  (Bias note: my house was built in c. 1860)

Will any of my friends in the development community pick up the gauntlet that Lydia has thrown down? (Oh, and my house was built in 1862, and we love it, but I wish it were more energy-efficient.)

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I spoke a few weeks ago at a NAIOP event concerning implementation of the Massachusetts Global Warming Solutions Act. During that talk, I described the GWSA as “the future of everything.” Why? Because to achieve even medium-term greenhouse gas emission targets in 2020 or 2030, let alone the 2050 target of an 80% reduction, is going to require significant changes throughout the economy. Even substantial reductions in the power plant or transportation sectors alone are not going to be enough.

Need more evidence? How about this story from yesterday’s Greenwire. The E.U. has reached agreement on a directive that will require almost all large buildings, including large houses, to attain “nearly zero” energy use. Existing buildings will have to improve energy efficiency during any renovations, if feasible. Sounds like a BACT analysis for building renovations.

The directive still must be approved by the European Parliament and then be written into the laws of the individual E.U. countries. However, unless Massey CEO Don Blankenship can convince Al Gore that we are entering a period of global cooling, can there be much doubt that something like this is in our future here as well?

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My post on the Portland Climate Action Plan has gotten some reaction, which I take as a good thing. For as reasoned a defense of local climate action as is possible in the space of a blog post, take a look at Holly Doremus’s response in Legal Planet, the Law and Environmental Policy Blog. If the Portland plan really were just about filling in the interstices and addressing local issues, I would be more inclined to agree. However, that’s not how I see the plan. We won’t know the details of how the plan will be implemented for some time, but much of it is simply regulatory. Moreover, it’s very likely that those regulations will be of a traditional command and control sort and will indeed duplicate in some way what a federal program is or should be doing.

In any case, thanks for the reaction. Next time, post a comment. If someone hadn’t let me know about your response, I never would have seen it.

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Waxman-Markey. Boxer-Kerry. Public nuisance litigation. EPA regulation under existing authority. What’s next in the arsenal of weapons against climate change? How about including climate change impacts in reviews under NEPA?

In February 2008, the International Center for Technology Assessment, the Natural Resources Defense Council, and the Sierra Club petitioned the CEQ to “clarify” its regulations to require the assessment of potential climate change impacts in environmental reviews performed under NEPA. CEQ has not yet formally responded to the petition, but that hasn’t stopped noted environmentalist Senator James Inhofe (R. Okla.) from weighing in preemptively. Calling NEPA a “bedrock environmental statute,” Senator Inhofe has informed Nancy Sutley, CEQ Chairwoman, that NEPA “is not an appropriate tool to set global climate change policy.” It’s not obvious to me why a bedrock environmental statute shouldn’t be used to address the impacts of climate change.

In any case, whether Senator Inhofe is correct or not, it seems likely that CEQ will eventually take some action, whether by guidance or regulation, to require inclusion of climate change assessments into NEPA reviews. Moreover, this is yet another area of climate change policy in which the federal government will be following the laboratories of democracy, the states, rather than leading. As we have previously reported, a number of states, including California, Massachusetts, and New York, already require GHG assessments in reviews under their state NEPA analogues.

Going forward, those planning large projects, whether the projects are public or private and whether they are state or federal, should expect to have to assess the climate change impacts, including whether alternatives to the project are available that would have reduced climate change impacts.

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New York Governor Patterson last week announced a plan to divert $90 million in funds raised from New York’s share of RGGI auctions to deficit reduction. The reaction was not positive from environmental NGOs, who are understandably concerned about the “precedent-setting nature of this move.”

It shouldn’t really be surprising in these times of fiscal challenge for state governments. It’s no different than what happened with the diversion of money from tobacco settlements away from smoking prevention programs to deficit reduction.

The interesting questions will be whether other states follow New York’s lead and whether this has any effect on the debate in Congress regarding preemption of state and regional trading programs in the context of a federal cap-and-trade program.

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As BNA reported this morning, at yesterday's Conference of New England Governors and Eastern Canadian Premiers in New Brunswick, the six New England governors adopted The New England Governors' Renewable Energy Blueprint.  Through this plan, the governors of Maine, Massachusetts, Connecticut, New Hampshire, Rhode Island and Vermont agreed to speed regional development of renewable energy by coordinating state reviews of proposed interstate transmission lines and synchronizing solicitation and decisions on power procurement and long-term energy contracts.  The blueprint calls for states to hold joint hearings and coordinate decisions when appropriate, but even using common applications and timelines could have a significant impact on how long the siting process takes.  

The blueprint is based on conclusions reached in a study conducted by ISO-New England, called the Renewable Scenario Development Analysis, which concluded that there is a large quantity of untapped renewable resources in the New England region, including more than 10,000 MW of on-shore and off-shore wind power potential, but that such resources could not easily be developed without coordination between the states on siting transmission.

The blueprint also discusses the option of New England states tapping into renewable energy sources located in Canada and calls for a state-federal partnership in which the federal government uses regional plans as guidance for interconnection-wide analysis and federally-funded renewable energy infrastructure development.  It will be interesting to see the impact that such regional developments have on the national level.

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Construction and development companies praying for an economic recovery next year have something else to worry about: pending new EPA regulations regarding stormwater discharges from construction activities – and claims from environmental groups that EPA’s proposal isn’t stringent enough.

EPA issued a proposal on November 28, 2008. That proposal is complex, but the aspect of it that has received the most attention is the requirement that certain construction sites greater than 30 acres meet numerical turbidity limits (specifically, 13 nephelometric turbidity units (NTUs), which I had to include in this post just because it sounds so cool). Developers have opposed the numeric limits; the National Association of Home Builders estimates that the cost to comply would be $15,000 to $45,000 per acre.

On the other hand, the NRDC and Waterkeeper Alliance have threatened to sue EPA if EPA does not revise the propose rule to include post-construction controls as part of the rule. EPA has stated that it is not planning to do so. It’s not obvious that NRDC and Waterkeeper Alliance have the better of this specific debate, but the argument regarding post-construction controls is similar to the ongoing discussion in Massachusetts and elsewhere regarding the need for ongoing stormwater controls at properties other than industrial facilities that are already regulated.

The issue is not going to go away.  EPA is under a deadline to issue the rule by December 1, 2009.

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As most readers know, Massachusetts and California have been leading the pack in requiring analysis of greenhouse gas impacts in connection with reviews of new development. Now, New York State is catching up. This week, the Department of Environmental Conservation, or DEC, released its Policy on Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements. The policy is certainly similar to the Massachusetts Greenhouse Gas Emissions Policy and Protocol. Nonetheless, the DEC Policy has a few items worth noting.

DEC has provided that, with respect to indirect GHG emissions from: (1) off-site energy generation and (2) vehicle trips, a project proponent may avoid the need to provide a quantitative analysis of these issues if he/she can demonstrate to DEC that the project already “has minimized emissions to the maximum extent practicable.” This opt-out is similar to one provided in the Massachusetts GHG policy, except that the MA policy requires that the developer commit in advance to GHG reductions that are variously described as “exceptional” and “extraordinary.”

The DEC Policy includes specific provisions governing assessment of methane emissions from landfills. It requires use of site specific information, together with EPA’s Climate Leaders Greenhouse Gas Inventory Protocol, Direct Emissions from Municipal Solid Waste Landfilling module (October 2004).

Even aside from the provisions addressing landfill emissions, the Policy requires an assessment of emissions from waste generation and management. This is not required by the MA policy.

Like Massachusetts, the DEC Policy requires that “priority and preference” be given to on-site mitigation measures. Off-site mitigation can be considered, but only after DEC staff have considered the “completeness” of on-site mitigation.

There is no doubt that requiring an assessment of the GHG impacts of new development is a trend at this point – and one that is only going to accelerate. As federal legislation or regulation under existing CAA authority becomes a reality, and as more states start to pass their own version of a Global Warming Solutions Act, as California and Massachusetts have already done, squeezing the maximum GHG reductions out of new development is going to become an imperative. At some point, GHG review may become similar to offset programs in non-attainment areas. New developments are going to have to be as efficient as possible – and may also have to purchase offsets to make such new developments climate neutral.  

Time will tell, but it’s often much easier to go after new development than to try to squeeze emissions reductions out of existing facilities. The result is that increasingly stringent mitigation requirements seem inevitable.

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Thinking about how to take advantage of funding for energy efficiency retrofits from the federal stimulus package, state-level programs like Massachusetts’ Green Communities Act, or even utility-funded programs?  You should also think about whether your actions will create another income stream – offsets under the Regional Greenhouse Gas Initiative (RGGI) – and whether taking funds will prohibit the creation of offsets when the project is finished.

RGGI, Inc. this week released model applications for offset projects which could create interesting incentives if implemented by each of the RGGI states. Unlike some of the offset provisions proposed under ACES, all of the RGGI offset categories are outside of the electric generation sector that RGGI regulates. The 5 categories of emission reductions that are eligible for offsets in RGGI include landfill methane capture and destruction; reductions in sulfur hexafluoride in the electricity transmission and distribution sector; sequestration of carbon due to afforestation; avoided methane emissions from agricultural manure management, and, most interestingly, reductions or avoidance in CO₂ emissions from natural gas, oil or propane in residential or commercial facilities due to energy efficiency in the building sector. 

RGGI has a notoriously strict stance on additionality which certainly shows in the application for energy efficiency offsets. To qualify, the applicant must certify that the project did not receive any funding or incentives from any state run programs or programs funded with RGGI auction proceeds. Given that a large portion of the money from RGGI auctions is being directed by the states toward energy efficiency improvements, being able to provide this certification may be difficult. The application also notes that any renewable portfolio standard (RPS) attributes generated by the offset project must be transferred to the state regulatory agency, rather than sold separately. 

Energy efficiency projects that can qualify for offsets are not necessarily complex. The types of energy efficiency projects that can qualify for offsets include:

• Improvements in the energy efficiency of combustion equipment that provides space heating and hot water, including a reduction in fossil fuel consumption through the use of solar and geothermal energy
• Improvements in the efficiency of heating distribution systems, including proper sizing
• Installation or improvement of energy management systems
• Improvement in the efficiency of hot water distribution systems, including reduction in demand for hot water
• Measures that improve the thermal performance of the building and reduce the building envelope air leakage
• Measures that improve the passive solar performance of buildings or utilize active heating systems using renewable energy
• Fuel switching to a less carbon-intensive fuel in combustion systems, including the use of liquid or gaseous eligible biomass (but not conversions to electricity).
  

On the other hand, the projects must achieve very high efficiency gains to qualify. Whole-building energy projects must be 30% above ASHRAE 90.1-2004 standards, and retrofit projects that commenced after January 1, 2009 must show that the energy conservation method they employ has a market penetration rate of less than 5%, although the market or class of buildings can be defined by the applicant. In addition, the baseline from which reductions in CO₂ are measured is based on a combination of the current building code and the actual equipment to be replaced, so not all of the gains from retrofits can be certified as offsets. 

If your summer home improvement efforts this year include upgrading to a state-of-the-art boiler, you didn’t take RGGI funds from the state to do so, and you are persistent enough to endure certification and verification of the reductions, you could qualify for up to 10 years of offset credits to sell to electric generators in the 10-state region. It is certainly something to think about.

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As we previously noted, last fall Massachusetts proposed sweeping new regulations designed to reduce phosphorus discharges in stormwater. In response to a very large number of comments, MassDEP is taking a second look at the regulations, though the bookies in Las Vegas are laying odds against there being any significant changes made when the regulations reappear.

Now Maryland is also getting into the act, although it is taking a slightly different approach. Under a statute enacted in 2007, developers in Maryland must incorporate the concept of “environmental site design” into their plans. ESD means

using small-scale stormwater management practices, nonstructural techniques, and better site planning to mimic natural hydrologic runoff characteristics and minimize the impact of land development on water resources.

The Maryland statute will be enforced by counties and municipalities. Therefore, the Maryland Department of the Environment has released a Model Stormwater Management Ordinance for use by local governments in implementing the statute.

As one of the contentious issues in the Massachusetts debate has been when redevelopment would subject a property to the requirements of the regulations, it is notable that the Maryland ordinance defines redevelopment as

any construction, alteration, or improvement performed on sites where existing land use is commercial, industrial, institutional, or multifamily residential and existing site impervious area exceeds 40 percent. [Emphasis added.]

To that, I can only say, uh-oh.

One final note on stormwater – Oregon just enacted legislation limiting the phosphorus content of certain soaps.  This is not significant in its own right. However, in Massachusetts, many of the comments from developers and industrial interests noted that the types of stormwater controls proposed by MassDEP may not be the most cost-effective way to reduce nutrient loading to water bodies, and specifically suggested that programs targeted at consumers using products containing nutrients might be a better way to attack the problem in the first instance.

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I know it’s hard to believe, but some of you may not have realized that today is World Oceans Day. In connection with World Oceans Day, Senator Jay Rockefeller has written a letter to the White House in support of the concept of “ocean zoning.” Senator Rockefeller will also be holding hearings on the issue tomorrow. Among those testifying will be Deerin Babb-Brott, who is the Assistant Secretary in the Massachusetts Executive Office of Environmental Affairs and is in charge of Massachusetts’ first in the nation ocean zoning effort.

The Massachusetts effort is based on the Oceans Act of 2008, which called for development of a comprehensive ocean management plan. In other words, ocean zoning. Since enactment of the Act, EOEEA has been working on developing the required plan, with assistance from the Ocean Advisory Commission, which was created by the Act to help guide EOEEA’s development of the plan. The plan has yet to issue and, based on recent documents from EOEEA, it may be some time before the final plan sees the light of day.

Notwithstanding the complexities of the issue – or perhaps because of them – Senator Rockefeller apparently believes that federal ocean zoning would be appropriate. He may be right. Issues such as renewable energy and deepwater aquaculture may be of local concern, but do we really want a patchwork of local laws and regulations dictating policy on issues of broad national concern?  If we go that route, it won’t be very long before there is a yet more complicated set of exemptions and preemptions.

I’m sure that Deerin will not be advocating federal preemption of local ocean zoning efforts, but there is a part of me that hopes that Deerin’s testimony is so effective that he talks himself out of a job.

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The competition between the states on who can move more aggressively in regulating greenhouse gases continues. Earlier this week, the Massachusetts Board of Building Regulations and Standards voted to approve a “Stretch” Building Code. The Stretch Code can be adopted locally by municipal option. Where adopted, buildings will have to be 20% more efficient than what would be required under the ASHRAE 2007 standard.

Since there was some ambiguity previously, let me be clear: I’m not a supporter of the stretch code. It’s one thing for states to regulate greenhouse gases in the absence of an active federal program. Even state and interstate programs, such as RGGI, should go away once a federal program is in place. To go the other way, and allow multiple programs within a state, is simply to let too many flowers bloom. Consistency is too important. 

There’s an element of “be careful what you wish for” here, but my view is that if a more stringent code can be cost-effectively achieved, then the Board could adopt that code for the entire state; if the standards in the Stretch Code cannot be cost-effectively achieved statewide, then they should not be allowed by local option.

The Stretch Code is important evidence that Massachusetts continues to pursue an aggressive agenda on climate change, notwithstanding the current economic slowdown. The element of competition among states should also not be underestimated.  Yesterday, New York City Mayor Bloomberg announced an agreement with 13 hospital systems to reduce GHG emissions by 30% over 10 years.  That’s a major commitment – and one that I’m sure will be noticed in Massachusetts and California.  

Any bets on how long it will take Ian Bowles at the Massachusetts Executive Office of Environmental Affairs to call MGH and BIDMC and see if they are willing to up the ante?

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I previously noted that some of my friends in the development community were concerned that I seemed to be too welcoming of certain moves by the Patrick administration related to energy efficiency and climate change.  If, as is often the case, developments in California are a harbinger of things to come in Massachusetts, now I am in a position to really give Massachusetts developers something to worry about.

San Diego Congresswoman Lori Saldana, who is part of the Democratic leadership in the California Assembly, has introduced legislation that would require all new residential construction in California to be energy neutral by 2020.

In case anyone has any doubts, this is a heads up, not a statement of support.  As noted by Tim Coyle of the California Building Industry Association, the problem is with existing homes; new home construction is, of course, already much more energy efficient than existing homes. That is only one of many good reasons to oppose such legislation.  However, given our track record in Massachusetts, who would bet against introduction of a similar bill here? 

And I'd give better odds of it passing in Massachusetts than in California. 

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 As we have already noted, Representatives Waxman and Markey released a 648-page discussion draft energy bill last week that provides the first comprehensive look at how Congress may approach the nexus of energy, job creation, and the environment. Although this bill is only being released in discussion draft form, as the first major energy volley by Congressional Democrats, it will undoubtedly have a major influence on the debate in Washington. 

In addition to the global warming provisions that we posted about last week, clean and renewable energy occupies a significant place in the draft bill.  The first 157 pages are dedicated to energy, with additional provisions scattered throughout. 

Title I, the clean energy section, addresses four broad policy areas: (1) creation of a national renewable energy standard, (2) carbon capture and geologic sequestration (“CCS”), (3) low-carbon vehicles and transportation fuels, and (4) electricity transmission including smart grid technologies. In addition, the draft creates a State Energy and Environment Development Fund ("SEED Fund") to act as a repository for monies received through federal energy programs.  Each of these provisions is an example of how policy leaders are beginning to see synergies between job creation and environmental stewardship. 

We take a deeper dive into the energy provisions after the jump.

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A recent post of mine concerning Congressional testimony by Phil Giudice, Commissioner of the Massachusetts Department of Energy Resources, in support of a national building code requiring significant improvements in energy efficiency, has apparently caused heartburn among some of my friends in the development community in Massachusetts. Some folks have asked if I have “drunk the kool-aid.” My selfish responses to these comments are, first, that I’m glad some one is reading the blog and, second, that I’m sorry they are not commenting directly. I really do want discussion.

My third reaction is that a point of clarification seems in order. No, I am not a supporter of the so-called “stretch” building code in Massachusetts, which would allow municipalities, by local option, to promulgate a building code more stringent than the already efficient code recently promulgated by the State Board of Building Regulations and Standards. Local option or not, one building code is enough for Massachusetts.

At the same time, there is little doubt that energy consumption in buildings is going to be a significant piece of the solution to climate change. It’s not all going to come from power plants and mobile sources. Moreover, tough regulations that involve some measure of technology-forcing are almost certainly going to be necessary if we’re going to achieve an 80% reduction in GHG emissions. Just as those in the power generation sector and mobile source sector have had to deal with technology-forcing in the past – and will again going forward with respect to climate change – so too will the building and development sectors.

Finally, from a purely parochial level, if that type of tough technology-forcing regulation is coming in Massachusetts, I want the same tough regulations nationwide; otherwise it’s only going to get more difficult for Massachusetts to compete with other states for new development projects.

If that’s drinking the kool-aid, give me more.

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We previously noted efforts by Massachusetts to require greater energy efficiency in new construction through revisions to the state building code. The Massachusetts Global Warming Solutions Act requires adoption of a more energy efficient code. Massachusetts is also pursuing an even more aggressive “Stretch” code, that municipalities would have the option of adopting.

Yesterday, Massachusetts took this green building message to Washington. The Environment Reporter states that Phil Giudice, Commissioner of the Massachusetts Department of Energy Resources, testified before the Senate Energy and Natural Resources Committee in favor of Congressional action to require states to require at least a 30% increase in energy efficiency over current standards. The 30% figure appears to be a minimum. Mr. Giudice stated that a requirement for a 50% reduction would be even better.

There is little doubt that there is a lot of the proverbial low-hanging fruit to be picked with respect to energy efficiency in buildings. It’s good to see Massachusetts taking its message onto the national stage.  At least this way, if such legislation is enacted, Massachusetts won’t be at a competitive disadvantage compared to other states whose codes currently do not require significant improvements in energy efficiency!

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Strange as it sounds, the next industry group to take substantive action on climate change might just be insurers.  In Tuesday's key vote by the Climate Change and Global Warming Task Force of the National Association of Insurance Commissioners, 18 state insurance commissioners voted to approve rules requiring insurers to disclose the impacts of climate change on their business decisions. If the rules are approved by the full committee in March, and each state adopts them, reporting could begin as early as May 2010.

The survey approved by yesterday’s vote asks insurers to annually answer eight questions involving what the company is doing to measure and mitigate its own emissions, how it identifies climate risks in its portfolio, how emerging climate risks could affect coverage, whether the company has altered its investment strategies in light of climate change risks, and what the company is or could be doing to change the behavior of millions of Americans, and reduce our overall risk from climate change.  The survey is based on the Carbon Disclosure Project questionnaire, the tool through which over 1550 companies voluntarily reported their emissions in 2008.

The proposed survey is not without controversy. In December, the Task Force agreed to remove a requirement that would have mandated survey answers to be included in each company's annual financial statements, and made the questions more general to avoid requiring companies to disclose confidential competitive information.

The Task Force is also working on guidance to help insurers answer the questions, and examples of how insurers can change their procedures to reach climate change goals. One idea that has been mentioned is pay-as-you-drive insurance, a policy that could reduce car emissions by rewarding motorists for driving less.

The next step for the proposed survey is a final vote by the full association at the national meeting in March. The National Association of Insurance Commissioners is a voluntary organization of the insurance regulatory officials of all 50 states, the District of Columbia and five U.S. territories (American Samoa, Guam, Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands).  As insurance is actually regulated by each state independently, there is no guarantee all states will adopt the survey. Nonetheless, it seems likely that at least some reporting requirements for insurers are on their way, and with them, probably other companies, too.

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In October 2007, the Massachusetts MEPA office issued its Greenhouse Gas (“GHG”) Policy, requiring certain limited categories of projects subject to MEPA to assess the GHG impacts of those projects and include mitigation of those impacts in the environmental impact review. In short, projects with obvious traffic or air emissions impacts were subject to the policy.

On August 8, 2008, Governor Patrick signed the Global Warming Solutions Act of 2008. Among other provisions, the Act provided specific statutory authority for the MEPA GHG Policy and provided that greenhouse gas emissions should be addressed in any state permits.

As a result of this change, the MEPA office has revised the MEPA GHG Policy to require that any project that will require an Environmental Impact Report must comply with the GHG Policy. This revision to the jurisdiction of the policy will be applicable to any project proponent who files an Environmental Notification Form after the February 2, 2009 MEPA filing deadline. The Secretary has retained discretion to require compliance with the GHG Policy for any Notice of Project Change filed after the February 2, 2009 filing deadline. For your convenience, the MEPA office has provided a summary of the changes to the policy.

Let the fun begin.

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That did not take long. When I first drafted the introduction to this blog, I included text inviting people to notify us if, God forbid, I made a mistake. The powers that be vetoed that language, apparently on the basis that it was not possible for a Foley lawyer to make a mistake.

Well, the blog’s been up for less than a week, and I have received my first such notice. In my post yesterday about the Governor’s announcement regarding changes to the state building code, I noted that developers would be concerned about a multiplicity of building codes in different municipalities. The Commonwealth’s MEPA director, Alicia McDevitt, correctly notes that municipalities will not be able to promulgate their own building code provisions regarding energy efficiency. There will be only two codes: the baseline code and the “stretch” code, which municipalities will be permitted to adopt at their option.  However, the municipalities will not be able to tinker with either code; they will have to choose between them.

I have revised the original post, but wanted to thank Alicia and invite everyone to tell me when I’m wrong if, God forbid, it should ever happen again.

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